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In recent years, numerous industries have been charged with violations of the Migratory Bird Treaty Act (MBTA) when their otherwise lawful activities resulted in the deaths of bird species protected under that law. Telecommunications companies, power transmission companies, wind energy producers, and others paid fines, despite the fact that the law is unsettled as to whether the MBTA applies to what is called "incidental take."
During the Obama administration, the U.S. Fish and Wildlife Service USFWS) developed a policy pertaining to the wind industry that offered permits to the industry for incidental take in exchange for the use of mitigation measures and oversight. Later, the USFWS attempted to develop a comprehensive policy pertaining to incidental take, despite the legal uncertainty. That effort, which almost certainly would have resulted in litigation, was initiated far too late in the second term to have had any hope of completion and, even if completed, would almost certainly have been reversed by the current administration.
The potential for industry pushback in the form of attempts to persuade Congress to change the MBTA has always been a concern and now, it is more than a potential. The oil and gas industries and others would have a complete and full pass should legislation sponsored by Steve Scalise (R-LA) become law. That legislation, known as the SECURE American Energy Act, includes this provision,
SEC. 207. CLARIFICATION REGARDING LIABILITY UNDER MIGRATORY BIRD TREATY ACT. Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is amended by adding at the end of the following: ‘‘(e) This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.’’.
This amendment was offered by Liz Cheney (R-AK) during the mark-up.
It will strip the USFWS of any leverage it has to push industries to use best practices (siting, technology, etc.) to minimize or eliminate incidental take.
The bill is problematic for other reasons. It would encourage offshore drilling by distributing revenues from oil and gas leasing on the outer Continental Shelf to certain coastal States, requiring sale of approved offshore oil and gas leases, promoting offshore wind lease sales, and empowering States to manage the development and production of oil and gas on available Federal land, and for other purposes.
At the same time, the Department of the Interior published a report of the burden of DOI actions that "potentially burden domestic energy."