Incidental Take Permits Under the Migratory Bird Treat Act — Why Is This So Difficult?

Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act.  I’m not taking a position on the proposal.  I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe.  To me, it’s not crazy to conclude that the MBTA was intended to apply only to intentional takes, rather than including incidental takes.

I do agree that a migratory bird is equally dead, whether as the result of intentional or inadvertent action.  From an environmental perspective, all bird deaths are equally important.  And what’s inadvertent today may be subject to control in the long run with the right incentives in place.

And so we come to the not-so-revolutionary idea of an incidental take permitting program.  When word broke in March that the Biden Administration was planning to revoke the Trump rule, Law 360 noted (subscription required) that this would set “the stage for a potential regulatory overhaul that could reduce bird deaths.”  The Law 360 story noted support for an incidental take permitting program both from the environmental community and from industry representatives.  I agree with almost everything in the story, other than the idea that development of a permit program necessarily must be so difficult to accomplish.

It is a measure of the dysfunctionality of our politics that practical solutions supported by representatives of a range of interests still are somewhere between very difficult and impossible to implement.

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