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Call to ban onshore windfarm developments in Clare
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Wednesday, May 12, 2021
On May 7, the US Fish and Wildlife Service (USFWS or Service) under the new Biden administration published a proposed rule to revoke a final rule issued during the final weeks of the Trump administration, 86 Fed. Reg. 1134 (Jan. 7, 2021) (January 7 rule), which excluded incidental take from the prohibition against take under the Migratory Bird Treaty Act (MBTA or Act). 86 Fed. Reg. 24,573 (May 7, 2021) (Proposed Rule). This proposal is the latest development in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA, as we have reported in
previous articles. If USFWS revokes the January 7 rule as proposed, the regulated community will once again face uncertainty regarding its exposure to criminal enforcement under the MBTA for unintentional take of protected birds associated with a wide range of productive activities. Notably this could include the operation of wind turbines, an activity t
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On May 7, 2021, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) published a proposed rule that would restore the traditional interpretation of the Migratory Bird Treaty Act (“MBTA”) as prohibiting incidental take and not just purposeful killing of migratory birds. This was a predictable step by the Biden Administration, but the proposed rule contains some revealing commentary that may signal how the USFWS will implement and enforce the MBTA after the rule is finalized.
I. Political Ping-Pong
For over fifty years it was widely accepted that the prohibition in the MBTA against killing migratory birds “at any time, by any means, and in any manner” applied to incidental killing, or “take” of migratory birds as well as intentional killing. Courts that had interpreted the statute generally confirmed that interpretation with a few exceptions, most notably the Fifth Circuit Court of Appeals. I
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