Internal Emails Show Discord as Interior Department Moves to Gut Migratory Birds Rule

December 2, 2020
Zhuravlev Andrey/Shutterstock
Maria Caffrey
Climate scientist

Last week President Trump pardoned “Corn” the turkey as part of the traditional Thanksgiving pardoning ceremony, yet the timing is pretty vexing given that a new investigation has revealed the extent to which the outgoing administration has worked to change a law that would kill thousands of other birds.

Newly revealed emails, retrieved by the Union of Concerned Scientists, show that the Department of the Interior (DOI) has upended the normal review process for its controversial reinterpretation of the Migratory Bird Treaty Act (MBTA). This pressured the Office of Management and Budget to hurry a decision on a draft environmental impact statement without allowing greater opportunities for public review.

The story so far…

Earlier this year I wrote a blog post on the administration’s attempts to reinterpret the MBTA to allow the “incidental” killing of birds. This revision would essentially gut the law by permitting industry to avoid taking measures to prevent bird deaths, as long as those deaths were—according to industry—accidental.

The revision drew outrage from various environmental groups, including the National Audubon Society and the Natural Resources Defense Council, along with legislators from eight different states, all of whom recognized that the revision would be a real gift to industry.

A federal judge saw through the DOI’s legal arguments, however, and voided a judgement that would have allowed the new MBTA interpretation. And that’s where the story should have ended if the DOI had listened to legal and public opinion and dropped the MBTA fight. But instead it continues. Which leads us to the next chapter of this story…

Abusing the review process

We are currently awaiting a ruling from the Office of Management and Budget that would permanently enact the 2017 proposed rule change. While we await that decision, new emails, obtained by the Union of Concerned Scientists via Freedom of Information Act (FOIA) requests, show insiders at the DOI and US Fish and Wildlife (who administer and enforce the MBTA) voicing concerns at how the decision process has been subverted. Specifically, they indicate:

  • That the decision-making process was rushed. One official commented that it was unclear how the Office of Management and Budget could review documents over 14 days when the process typically takes 90 days.
  • The draft documents show an unusual emphasis on the economic impacts of the rule change. In one email an employee at the Fish and Wildlife Service expressed concern that they might not get enough industry input, saying that, “The best-case scenario is that we receive comments from industry sectors…this would allow the Service to complete a quantitative economic analysis.”
  • That there were calls for greater public review of the draft environmental impact statement documents after the apparent dismissal of already submitted public comments. As one source stated, “In this case, the [Fish and Wildlife Service] has already issued a proposed rule for public comment – comments that cannot be ignored.”
  • At the same time, public opinion shows overwhelming disapproval of the plan. One email indicated that 98.8% of public comments came from people opposing the proposed reinterpretation.

Based on these emails, it appears that a decision to alter the MBTA was heavily favored by senior DOI officials before the process to draft an environmental impact statement was complete while others within the DOI and Fish and Wildlife Service were pushing for the collection of more data and longer time to review the documents they had collected.

The Huffington Post article suggests that embedded in this might also be a potential conflict of interest given that the chief lawyer for DOI, who issued the initial legal opinion in this case, formerly worked as an advisor for the Koch brothers.

Regardless of what level of conflicts may exist, it is clear from these new emails that there is significant disagreement among government officials about whether the draft environmental impact statement process in this instance was on the up-and-up.

Now that the Office of Management and Budget has approved the DOI’s documents, it leaves a door open for the administration to rush through paperwork that finalizes the proposed rule change as law before this lame-duck period ends.

And if that is the case, then I am sure many environmental groups will continue the fight to restore the MBTA to what it was – because we can be sure that our love for migratory birds will last much longer than the Trump administration.