Bird Killing Plan Uses 'Sully' Plane Crash as Rationale

and dirty environmental law lesson. Whenever a federal agency, any agency, does anything that might hurt the environment, the law requires it to come up with a report that studies the negative consequences and determine whether the thing the agency wants to do is worth it in spite of the environmental harm. The government issues tons of these reports all the time, but it recently came out with one that was, well,

a little unusual. This report was from the Department of the Interior, and it was created to justify a change to a federal rule that prohibits the killing of migratory birds, either on purpose or accidentally. This rule, known as the Migratory Bird Treaty Act, is part of an international bird compact with the three North American countries plus Russia and Japan,

and it's been around for a long time. But Interior Department lawyers recently re examined the MBTA and they determined that the treaty says accidental bird killings are legal, and that the federal rules should be changed to reflect this. Now, that wasn't the unusual part of the report. What was unusual was the reason the Interior Department gave to justify the inevitable increase in bird deaths that doing this would cause. It said, actually, birds are kind of bad for humanity

in a lot of different ways. For example, remember that time birds crashed into that airplane and then the plane had to do an emergency landing in the Hudson You know what I'm talking about. They made a movie about it with Tom Hanks. Call you a here. I don't feel like a hero. So Bloomberg Law reporter Bobby McGill was the one who noticed this Interior Department report, and he says allowing accidental bird killings under the Migratory Bird Treaty Act would be a sea change in how this

law functions. What it does is prevent or aims to prevent the killing of migratory birds without a permit from what's now the US Fish and Wildlife Service. The federal government has to give you permission to kill birds. And since you know the MBTA applies to about a thousand species or more, actually it has a pretty big effect. Okay, well that is actually way more straightforward than I thought it would be. But what is the Interior Department proposing

to do here with this rule change? So for about a century, the Migratory Bird Treaty Act, it established fines for unintentional killing of birds. For example, the biggest impact that this has had that I'm aware of was after the BP oil spill in the Gulf of Mexico. BP was fined one hundred million dollars for unintentionally killing scores

of birds with its oil slick. And in twenty seventeen, the Interior Solicitor's Office basically reinterpreted the MBTA to apply only to intentional killing of birds rather than unintentional killing of birds. And this is a reinterpretation of a law that's been on the books for one hundred years, that's right, And every administration since nineteen what was that the Wilson administration has has interpreted this to apply to unintentional killing.

So in other words, if you're an oil and gas operator and you have a like a wast pit sitting next to your oil well and your bird and a bird dies in the waist pit, then you're responsible for that bird death. And you could be even though you know you weren't like taking a shotgun and going out and shooting birds. That wasn't what you were intending to do. But you're still responsible. Right. So the Trump administration issued

this to the Interior. Your solicitor's office issued this opinion in twenty seventeen, reinterpreting this to applying only to intentional killing. So you have to say I want to kill a bird today, and you kill a bird and then you get a and then you're fined. So what this rule

change does is codify that solicitor's opinion from twenty seventeen. Right, So, we've got an attorney I guess, someone who's sort of like the General Council at the Interior Department saying hey, I think this you know, Bird Treaty Act only applies to intentional killings, not to unintentional killings. Now the Trump administration is taking that opinion and saying we're going to make this into federal law. Essentially, we're going to reinterpret the law here. Is this the first time this has

been done? I mean you mentioned that, you know, this goes back to maybe the Wilson administration or whoever was president in nineteen eighteen. Sorry, we'll we'll look that up later. Yes, as it turns out, Bobby was right, it was Wilson. But is this the first time this interpret this law has ever been interpreted this way? As far as I'm aware, that's true. I mean, every administration has has interpreted this

is to apply to unintentional killings as well as intentional killings. Right, So, okay, let's talk about why the Interior Department is doing this. I mean, I could see this is a I guess a very sort of pro business move. I mean, there are a lot of you know, large industrial businesses who have to worry about, you know, killing birds, and that's costly, and if they wouldn't have to worry about that, then that could save them some money. I understand that. Well.

I mean, basically, at the end of the day, it's about letting the oil and gas industry and the energy industry generally speaking, off the hook for killing birds. And so you know, basically they are. The Administration is using the term regulatory or legal certainty to promote this and to basically say, you know, companies need to know what to expect when they, you know, build, when they drill for oil, or when they have any sort of commercial

or industrial installation. They need to know what they're going to be liable for. And you know, if you unintentionally kill lots of birds, you know that might be unexpected. It really it's about fines, like the administration wants to make sure that migratory birds don't add extra cost to energy development. All right, we're going to take a quick break here, but when we get back, we'll explain what Captain Sully Selenburger has to do with all this. Stay tuned.

We are back and we're talking with reporter Bobby McGill about the changes to the way the federal government protects birds. Bobby says, the thing that really caught his eye here was the Interior Department's support justifying its proposed changes something that's also known as an environmental impact statement. So basically what they had to do is to make this as part of it, this is a rule making right, So

they had to do an environmental impact statement. They had to look at all the ways that this is going to affect the environment, and they you know, in this they say it's going to kill lots of birds. It's gonna you know, these birds are declining because of climate change, and it's going to have a detrimental impact on birds themselves. This rule, as it outlines all of those impacts, it also it has this this section called Detrimental Impacts of

migratory Birds on Humans. And basically what this is is, you know, they're building the case for how birds themselves affect people in negative, negative ways. It's evidence to roll back this. I mean, this isn't exclusively what they're hinging their arguments on here by any means, but you know, it's just more evidence they're using to show that, you know, companies don't need to be responsible for killing the birds

that their industrial practices and their installations effect. And so basically what they're saying here is that birds can kill people. They you know, can slam into airplanes, they can you know, they can slam into your into your car windshield, they could you know, they spread disease like the Avian flu,

those sorts of things. A parallel to that might be hypothetically, you know, the federal government trying to outline all the ways that trees are damaging to people, right, because like trees would fall on houses or or you know, trees house snakes that might bite you or something. Right. And and to be clear, I mean this is a really important thing because you know, first of all, birds are natural, second that birds are essential to global ecosystems, and there

are indicator species. They indicate the health of the ecosystems which we all live in and rely on. And they're outlining all the ways that you know, migratory birds are bad for you, and one of those ways is colliding with airplanes. And so in this section about how they collide with airplanes, they cite the miracle on the Hudson flight. US Airways flight fifteen forty nine from two thousand and nine.

I remember it, you know, to Canada geese or Canada geese struck, you know, the engines of this air bus and it you know, there was a power outage in the in the flight had to ditch successfully fortunately in the Hudson River. And so they're essentially using the miracle on the Hudson flight. Captain Selly's flight as one of you know, a long list of reasons to roll back protections for migratory birds. So, okay, you had a lot of great quotes from environmentalists in your story who were

really aghast and kind of upset about this. What did they have to say about the justifications here? So one senior attorney for the Natural Resources Defense Council says, she's she's never seen something like, you know, detrimental impacts of any sort of natural thing on humans in an environmental

impact statement. And she said that, you know, to her, it's mind boggling that, you know, the nation's top wildlife agency, in this case, the Fish and Wildlife Service, would associate harmed humans from birds in an environmental impact statement for a reinterpretation of a statute that is entirely focused on

protecting birds. You know, she seemed to be a gas at the idea that, you know, they would even mention the miracle on the Hudson flight and spreading the avian Eric Schneider at the National Audubon Society told me that the use of an aviation accident to justify the loss of millions of birds as results of repealing decades of bird protections is insulting. This was the subject of a really capative exchange between you know, Interior Secretary David Bernhardt

and you know a couple of senators. So I'm a position taken by multiple circuit courts, respectory that is not true. It's absolutely true. All right, we will pursueize. And basically Bernhardt sparred with Senator Chris van Holland from Maryland, who was basically accusing him of trying to let someone like BP off the hook. So, in other words, a future BP oil spill would not necessarily result in a one hundred million dollar fine for BP or a company like it,

you know, for all the birds it kills. So okay, I'm not an environmental scientist. I don't claimed to you know, know a lot about birds or even really like birds or care for birds, to be honest. So I'm not going to be able to say, you know, yes, who's right here, or whether the Trump administration, whether these arguments are ridiculous, or whether they have merits. So let's put

that aside. But I have to imagine if this goes through and it's finalized, the environmentalists are going to take it to court and will they be able to use some of these justifications that are a little out there. Could they use that as ammunition for getting a court

to overturn this, they seem to think. So. I mean, you know, it just on on the face of it, it certainly seems highly unusual to the high highlight the way that birds, which are which are absolutely essential to ecosystem health, are damaging to people, especially when you know human cost climate change is is you know, causing these these birds to decline in number, And so I think that, you know, environmental groups certainly see this as as something

that they can challenge in court. So, Bobby, let's talk timing here. We have about a half a year before a new administration might come in if the Trump campaign does not succeed at gaining a second term. Do they even have time to finalize this and to get this into the books or is this kind of something that they might just sort of leave on the table. I think that they are determined to find a way to

finalize this before you know, the end of his first term. Yeah, I just know that, you know, in the summer, in the fall of an election year or presidential election year, that's a time when you see federal agencies really crank out a lot of regulations because they're really trying to get it into the wire. Of course, you know, if if the Trump administration wins a second term, this is all moot. But it sounds like they have they're really motivated to get this done like this year or bust. Right,

it sounds like it. But you know, they've they've got a lot of regulations in the hopper. They've they've really tried to you know, move things along during the uh, you know, their deregulatory agenda, during the COVID crisis, and I think that, you know, it seems to be it seems to suggest they're trying to get as much done as possible before, if not before the election, then certainly before inauguration day. That's it for today's episode of Parts

per Billion. If you want more environmental news, check out our website news dot Bloomberg environment dot com. That website, once again is news dot Bloomberg environment dot com. Today's episode of Parts Pervilion was produced by myself along with Josh Block. Pars Pavilion was created by Jessica Coombs and Rachel Dagel, and a special thank you to Marissa Horne, who's edited this podcast now for quite some time. She's moving on, but we wanted to express our deepest, most

sincere sense of grat thanks. And the music for today's episode is a Message by Jizarre and Emerald Steps by Tom Hillock and Nicholas Boskovic. They were used under a Creative Commons license, and thank you, of course for listening. Taxes and accounting are complicated, but finding a good tax podcast shouldn't be. I'm Siri Vlusu and I'm Amanda Icone. Listen to Talking Tax, the podcast that breaks down all

of these issues on a weekly basis. Every Thursday, Talking Tax will explain the latest issues for you, from what Congress is working on to legal rulings to the global digital tax debate. Download and subscribe to Talking Tax wherever you get your podcasts