In a proposed rule published May 7, 2021, the Biden Administration seeks to withdraw the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. The MBTA liability rule was published as a final rule on January 7, 2021, and provided the first regulatory definition of the scope of liability for take of migratory birds under the MBTA. Adopting one side of a court split, that rule interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.  Comments can be provided on the proposal to withdraw the MBTA rule until June 7, 2021. 

The Biden Administration delayed the effective date of the rule to March 8, 2021, and solicited additional public comments on whether the rule should be amended, rescinded, further delayed, or allowed to go into effect. On March 8, 2021, the Department of the Interior withdrew the 2017 legal opinion which preceded and formed the basis of the rule and had since been struck down in federal district court. In withdrawing the legal opinion, Interior stated that it was not consistent with its long-standing interpretation of the MBTA, signaling that it would likely move to withdraw the rule itself next. 

The current proposed rule, rather than further extending the MBTA rule’s effective date, provides that “the most transparent and efficient path forward is instead to immediately propose to revoke the January 7 rule.” The proposed rule states that the MBTA liability rule “does not reflect the best reading of the MBTA’s text, purpose, and history.” 

Given the sequence of developments, it is likely that the Biden Administration will finalize the withdrawal of the MBTA rule. If this occurs, Interior will once again interpret the MBTA as prohibiting incidental take but will apply enforcement “discretion.” The Biden Administration could also pursue policies that would provide greater clarity to industry, such as the proposal considered by the Obama Administration to develop an incidental take permitting program for the MBTA. Final withdrawal of the MBTA rule could also trigger renewed litigation, possibly in a forum that agrees with the legal interpretation in the withdrawn MBTA rule.

Industry and project proponents undertaking activities potentially affecting migratory birds should closely monitor the shifting liability rules for migratory birds and ensure that the administrative record reflects their views before the withdrawal becomes final.