Last week, the U.S. Fish and Wildlife Service announced a proposed rule to restore criminal penalties for accidental killing of migratory birds, revoking the January 7, 2021, final regulation that limited the enforcement of the 1918 Migratory Bird Treaty Act.

“The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations,” said Secretary Deb Haaland.

On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for example a sparrow flying into a solar panel, is not prohibited under the MBTA. That rule made changes to the enforcement of the MBTA to decriminalize incidental take of migratory birds and was widely supported by the solar panel industry and wind turbine businesses, with an effective date of February 8.

In 2013, during the prosecution of Duke Energy for bird deaths by wind turbine, the Fish and Wildlife Service estimated that “wind turbines kill between 140,000 and 500,000 birds a year in accidental collisions.”

And a 2014 study, conducted by scientists from the Smithsonian Institution and the Fish and Wildlife Service, estimated that between 365 million and 988 million birds are killed in the United States every year as a result of building collisions. But that study concluded that building collisions, are second to cats as the greatest threat to birds. But criminalizing housecats bird kills does not make a good public policy.

With the change in Administration earlier this year, the Fish and Wildlife Service extended the effective date of that January 7 decriminalization rule until March 8 and opened a public comment period. Last week, rather than extending the effective date again, the agency instead immediately proposed to revoke the rule.

The Service is now requesting public comment on issues of fact, law and policy raised by that MBTA rule published on January 7. Public comments must be received or postmarked on or before June 7, 2021. The notice will be available at www.regulations.gov, Docket Number: FWS-HQ-MB-2018-0090.

To appreciate the issue, know that concomitantly with this action on March 8, 2021, the Interior Department rescinded a 2017 Solicitor’s Opinion M-37050 on the MBTA that had famously said, “[i]nterpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

In a parallel but not directly related action, on August 11, 2020, Judge Valerie Caproni, of the U.S. District Court for the Southern District of New York, struck down that same Interior legal opinion,

It is not only a sin to kill a mockingbird, it is also a crime,”

paraphrasing Harper Lee. “That has been the letter of the law for the past century.”

But when President Wilson signed the MBTA into law in 1918, just 20% of U.S. households had electricity, so Congress never contemplated nor intended this law would apply to electricity generation and transmission; such is a pragmatic, very much non-originalist expansion of the law as enacted.

Which takes the saga to last week and this newly proposed rule. While it is suggested it is all but certain the current Administration will finalize withdrawing the current rule, it is debatable if they will seek to replace it or simply use discretion on a case by case basis in enforcement actions? Such is already sparking a debate, pitting members of the environmental industrial complex against one another and in opposition to business scale renewable energy. The question is if this is good environmental public policy? You may wish to consider if this rule strikes the correct balance between the 1918 era MBTA law and unintended take, including bird deaths associated with modern wind turbines and solar panels, not to mention collision deaths with modern glass office buildings, and comment ..