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Environmental Edge
May 5, 2021

For the Birds: Changes to the Migratory Bird Treaty Act and the Endangered Species Act Under the New Administration

Environmental Edge: Climate Change & Regulatory Insights

The new Biden Administration has indicated that it plans to modify how it implements and enforces key provisions of the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). The Trump Administration previously instituted unprecedented regulatory changes to both the MBTA and the ESA that were the subject of intense controversy and have already been or will likely be rolled back.

Migratory Bird Treaty Act

There has been significant uncertainty regarding the parameters of the MBTA for decades due to a Federal Circuit Court split that no administration before Trump settled. The circuit split involves the question of whether the MBTA only prohibits intentional taking of migratory birds, and not incidental take (accidental harm). The Trump Administration made efforts to answer this question by releasing an opinion stating that the MBTA does not prohibit incidental take. There was enormous blowback from the conservation community in response, and the decision was eventually overturned in federal court. The Biden Administration has already begun to undo this rule, which unfortunately means that there is once again uncertainty for businesses that are at risk of accidentally harming birds. It is unknown when the Biden Administration will propose its replacement rule or if there are plans to develop an incidental take program. In the interim, there will likely be an enforcement lull.

Endangered Species Act

The Trump Administration initiated sweeping changes to the ESA that rolled back protections for endangered and threatened species by limiting interagency cooperation, redefining critical habitat, lowering the standard of what qualifies as harm, introducing economic considerations, and other changes. The prior administration also received a lot of heat for delisting the gray wolf; declining to list many other species; and removing 3.5 million acres of protected habitat for the northern spotted owl .

On the first day of the new administration, President Biden directed federal agencies to review Trump-era polices that were “damaging to the environment, unsupported by the best available science, or otherwise not in the national interest.” Immediately thereafter, the new administration announced that it would review four ESA-specific regulations, as well as the revision to the critical habitat for the northern spotted owl, the findings on 12 other species, and the decision to delist the gray wolf. The new administration also faces a backlog of hundreds of species awaiting a decision on federal protection under the ESA that were not addressed by Trump.

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© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.