Attorney General Becerra Challenges Trump Administration Attack on Longstanding Protections for Migratory Birds

SACRAMENTO – California Attorney General Xavier Becerra today joined a multistate coalition in challenging the Trump Administration’s final rule weakening longstanding protections for migratory birds. The final rule purports to limit the scope of the Migratory Bird Treaty Act (MBTA) to no longer protect migratory birds from killings incidental to human activities, such as the operation of facilities like wind farms, power lines, and oil waste pits. Experts estimate that the final rule would increase migratory bird deaths by tens of millions each year. In the lawsuit, the coalition argues that the final rule is arbitrary, capricious, and contrary to law.

“In California, we recognize the critical importance of protecting our precious wildlife and upholding the rule of law,” said Attorney General Becerra. “We won’t let the Trump Administration get away with its last-ditch effort to aid special interests at the expense of our nation’s treasured migratory birds.” 

Migratory birds are vital to California’s ecosystem, culture, and economy. Millions of migratory birds, including threatened and endangered species, move through California each year as part of the Pacific Flyway, a migratory superhighway that runs from Alaska to South America. Until now, Democratic and Republican administrations alike have consistently interpreted the MBTA to require industries to take preventative measures to reduce and mitigate bird mortality incidental to their activities.

In December 2017, however, Department of the Interior Solicitor Daniel Jorjani issued an opinion reinterpreting the MBTA to no longer protect migratory birds from incidental harm caused by human activities. By narrowing the MBTA to only prohibit the intentional killing or capturing of these birds, Solicitor Jorjani removed incentives for industries to ensure migratory birds are not harmed by their activities. On September 5, 2018, Attorney General Becerra, as part of a multistate coalition, filed a lawsuit challenging the opinion. The U.S. District Court for the Southern District of New York later ruled in the coalition’s favor, finding the conclusions set forth in the Jorjani opinion contrary to law.

Despite this, the Trump Administration finalized a rule last month codifying the now-vacated Jorjani opinion. The rule, which expressly adopts the same legal arguments rejected by the district court, is expected to increase migratory bird deaths by tens of millions each year. In the lawsuit, the coalition argues that the final rule is arbitrary, capricious, and contrary to law and should be vacated because its conclusion that the MBTA does not prohibit incidental take directly conflicts with:

• The language and purpose of the MBTA;
• Subsequent legislation reaffirming Congress’s understanding of the MBTA;
• Second Circuit precedent; and
• International treaty obligations.

Attorney General Becerra joins the attorneys general of New York, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, and Washington. 

A copy of the lawsuit can be found here.