The Trump administration’s final rule interpreting the Migratory Bird Treaty Act (MBTA) to not prohibit the incidental take (accidental injury or death) of migratory birds recently hatched. But with the Biden administration taking the regulatory reins on Jan. 20, 2021, this lame-duck regulation will be quickly grounded.
Anticipating this, power companies should remain vigilant in implementing their avian protection plans, prepare for the possibility of an MBTA general permitting program, and work with the new administration to ensure that future regulatory actions in this area will not undermine the rapid development and deployment of renewables infrastructure needed to address climate change.
MBTA Developments Over the Past Four Years
Disagreements about the proper meaning of the MBTA and how to regulate the protection of migratory birds have taken center stage in multiple forums over the past four years. Beginning with President Trump taking office, the U.S. Department of the Interior withdrew the Obama administration’s outgoing interpretive guidance on the subject and subsequently issued new guidance (Opinion M-37050) that adopted the opposite legal conclusion—i.e., that the MBTA does not prohibit the taking or killing of migratory birds that is incidental to and not the purpose of otherwise lawful activities.
Unsurprisingly, the issuance of Opinion M-37050 generated significant controversy and sparked several lawsuits from conservation groups and states challenging the non-binding guidance. All three lawsuits were filed in the U.S. District Court for the Southern District of New York, presumably because the litigants believed that United States v. FMC Corporation (a decision from the U.S. Court of Appeals for the Second Circuit that would bind the district court) favored their legal position.
After denying the federal government’s motion to dismiss the consolidated lawsuits, the district court reviewed summary judgment briefing and reached its merits decision. Instead of fully engaging with the federal appellate court decisions addressing the scope of the MBTA’s prohibitions, the district court linguistically sidestepped them.
First, the district court stated that the FMC decision was inapposite and did not control because it merely concluded that the MBTA imposes strict liability. Second, the district court observed that other existing federal appellate court decisions, including the U.S. Court of Appeals for the Fifth Circuit’s United States v. CITGO Petroleum Corporation, only addressed the MBTA’s prohibition related to the term “take,” and did not address the statute’s prohibition related to the term “killing.” Third, focusing on the prohibition against “killing,” the district court concluded that the unambiguous, plain language of the MBTA makes it unlawful at any time, by any means or in any manner, to kill any protected migratory bird. Based on this focused interpretation, the district court determined Opinion M-37050 was unlawful and vacated the guidance.
In practical effect, the district court’s decision has several implications. First, even without Opinion M-37050 in effect, the federal government retains its prosecutorial discretion and generally could continue to operate as if the guidance were still in effect. Second, assuming the federal government were to prosecute the accidental killing of migratory birds, the judicial patchwork that existed before Opinion M-37050 clearly is back in full force. Third, even though the U.S. Fish and Wildlife Service’s (FWS’s) recent rulemaking codifying Opinion M-37050 was not expressly addressed by the district court, the court’s decision applied to that rulemaking would find it unlawful. Specifically, because the court concluded that the MBTA’s prohibition against killing protected migratory birds is unlawful, FWS would have no interpretative leeway to conclude otherwise in that jurisdiction. As a result, any challenge to the new rulemaking codifying Opinion M-37050 almost certainly would be filed in the U.S. District Court for the Southern District of New York.
While Interior has filed an appeal of the district court’s decision to the U.S. Court of Appeals for the Second Circuit, the recent election effectively nullifies that appeal. Interior’s opening brief is not due to be filed until after President-elect Biden takes office. As a result, Interior likely will file a motion to voluntarily dismiss the appeal shortly after inauguration day.
Where Things Are Going Over the Next Four Years
Nobody doubts that the new MBTA rule will be short-lived. How quickly and what tools the Biden administration will use to render it ineffective are unclear. But given that the new rule involves only one issue of statutory interpretation, it is low-hanging fruit, and the administration likely will aim to stay its effectiveness and repeal it quickly. This may involve an accelerated rulemaking to repeal the rule that relies on the legal positions announced in the previously withdrawn M-Opinion from the Obama administration and the recent decision from the U.S. District Court for the Southern District of New York; or, given the recent changes in the Senate, it is possible that Congress would repeal the rule using the Congressional Review Act. Whatever the means, the process almost certainly will be quick.
The immediate repeal of this new rule presents a serious problem for power companies but also for the Biden administration’s agenda to aggressively address climate change. By repealing the rule, the Biden administration will be reopening the door to civil and criminal liability for power companies whose development or ongoing operations accidentally or incidentally injure or kill migratory birds. Not to mention, many anticipate that the incoming administration will quickly and forcefully ramp up enforcement efforts related to environmental and wildlife issues. Beyond raising the specter of criminal prosecution and steep civil penalties, this regulatory reversion threatens to undermine power companies’ ability to procure financing needed for essential projects like new transmission lines and wind energy projects. As such, the repeal of the new rule and the uncertainty about when and how the federal government will impose liability necessarily limits the full potential for the type of transmission and renewables build-out needed to address climate change.
With this is mind, there are two likely regulatory approaches. The first would be to repeal the rule and revert to the way things were done during the Obama administration, where the federal government retains full enforcement discretion and where power companies adopt and implement voluntary measures based on the understanding that their good-faith efforts in doing so generally will protect them against enforcement actions. The second approach would be for FWS to develop and implement a general MBTA permitting program that provides power companies with coverage from the threat of liability when they obtain and operate within the parameters of that permit.
There currently appears to be no consensus among power companies about which approach would be better. Each approach has pros and cons. Going back to the way things worked during the Obama administration would avoid what many believe would be an unwieldy and costly general permitting program akin to the current program for the Bald and Golden Eagle Protection Act (BGEPA), but it also would carry with it a significant degree of uncertainty that could harm project financing efforts and business planning. Adopting a general permitting program should reduce a significant degree of uncertainty, but again, the cost and time of compliance could disincentivize (and would slow down) the development and deployment of transmission and renewables infrastructure.
Given that the development of an MBTA general permitting program would entail a significant investment of federal resources and time, power companies should assume that the Biden administration will first repeal the new rule and that, at least for the short term, things will operate as they did during the Obama administration. But this does not rule out the possibility of a general permitting program, especially considering that some conservation groups have expressed a desire for such a program.
Recommendations for Power Companies
In the short term, power companies should ensure that their avian protection plans are current and that relevant employees are diligently following them. They should also begin working with the Biden administration to discern what its intentions are regarding the MBTA and what measures power companies will need to take to protect themselves against enforcement actions when the rule is repealed.
In the longer term, power companies should work with each other to build a consensus on their preferred approach, to the extent that doing so is possible. Should it become clear that the federal government will develop an MBTA general permitting program, power companies should work together as joint stakeholders and retain experts to design the regulatory framework for an optimal MBTA general permitting program. This regulatory program would need to accomplish the conservation purposes of the MBTA as understood by the Biden administration, be practicable for power companies, and otherwise ensure the rapid development and deployment of new green and supporting infrastructure.
—Jared Wigginton is an environmental and natural resources attorney with Baker Botts.