Last month, we wrote about “midnight” regulations issued by the Trump Administration and a process available for Congress to respond. Since then, the Trump Administration took an important step towards issuing one such regulation, regarding activities that “incidentally” harm protected migratory birds. If finalized, this rule would be the culmination of a years-long effort to loosen the Migratory Bird Treaty Act’s (MBTA) restrictions, which could aid energy and infrastructure developers and operators.
We’ve written about the Trump Administration’s efforts to reform regulations implementing the MBTA on this blog before. In the past, enforcement suits have been brought against energy facilities including oil producers and wind farms for inadvertently injuring or killing protected species. But a circuit split between federal appellate courts meant that the MBTA’s precise scope was somewhat hazy. In 2017, the Department of the Interior sought to use a policy memorandum to limit the scope of the MBTA, such that only activities that intentionally harm protected bird species would be prohibited. Interior’s interpretation was quickly challenged by environmental groups and in August, a federal district court vacated the policy memorandum. That decision is now being appealed in the Second Circuit.
The Department of the Interior, however, is now close to finalizing a different approach to MBTA reform. This time, instead of a policy memorandum, it is using the notice and comment rulemaking process to codify new regulations implementing the MBTA. Like the now-vacated policy memorandum, the regulations Interior proposed in February 2020 would limit the MBTA’s restrictions to actions that purposefully harm birds. Last week, Interior released a Final Environmental Impact Statement for the proposed rule.
If Interior’s proposed rule is finalized by the Trump Administration, it will be difficult for the Biden Administration to quickly reverse it. But — like the earlier policy memorandum — the final rule will likely be challenged in court, meaning uncertainty for industry will continue in the months to come. Continue to follow this blog for updates on midnight regulations from the Trump Administration and the inevitable pushback from both environmental groups and the incoming Biden Administration.