WASHINGTON – U.S. Senators Ben Cardin and Chris Van Hollen (D-Md.), members of the Senate Environment and Public Works Committee, led over 17 of their colleagues in sending a letter to U.S. Department of Interior (DOI) Secretary David Bernhardt urging him to withdraw DOI’s harmful rulemaking on the Migratory Bird Treaty Act (MBTA), which was based on an unlawful Solicitor’s Opinion. DOI’s proposed rule would reinterpret the MBTA, a landmark conservation law that protects billions of migratory birds. The new rule would have a number of devastating impacts on wildlife, including letting oil companies off the hook for environmentally harmful oil spills that kill migratory birds.

Senators Cardin and Van Hollen has pressed Secretary Bernhardt on this rule on a number of occasions. In July, Senators Cardin and Van Hollen led their colleagues in a letter urging Secretary Bernhardt to reverse course on the rule.

“Considering the recent federal court ruling that vacated the Solicitor’s Opinion and the ongoing concerns raised by a diverse set of stakeholders during the regulatory process, we urge you to abandon the effort to codify the Opinion,” the Senators write in today’s letter to Secretary Bernhardt.

“We believe a choice between conservation and regulatory certainty is a false choice. We urge the Department of the Interior to comply with the federal court ruling, and consider an alternate approach that both regulates incidental take and encourages the creation and implementation and of best management practices by industry. We stand prepared to work with you on such an alternate approach,” they continue.

The Senators conclude with a number of pressing questions regarding the future of the rule, given the now-vacated Solicitor’s opinion.

In addition to Senators Cardin and Van Hollen, the letter was signed by Senators Tom Carper (D-Del.), Dianne Feinstein (D-Calif.) Tom Udall (D-N.M.), Ed Markey (D-Mass.), Cory Booker (D-N.J.), Mazie Hirono (D-Hawaii), Ben Cardin (D-Md.), Chris Coons (D-Del.), Gary Peters (D-Mich.), Tina Smith (D-Minn.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), Sheldon Whitehouse (D-R.I.), Martin Heinrich (D-N.M.), Robert Menendez (D-N.J.), Kirsten Gillibrand (D-N.Y.), Bernie Sanders (I-Vt.), Patrick Leahy (D-Vt.), and Richard Blumenthal (D-Conn.).

The full text of the letter is available here and below.

Secretary Bernhardt:

We are writing to follow up regarding the Department of Interior’s implementation of the Migratory Bird Treaty Act. Specifically, we continue to have concerns with the draft Environmental Impact Statement (EIS) and proposed regulation to codify the 2017 Solicitor’s Opinion on incidental take. Considering the recent federal court ruling that vacated the Solicitor’s Opinion and the ongoing concerns raised by a diverse set of stakeholders during the regulatory process, we urge you to abandon the effort to codify the Opinion.

On August 11, 2020, the U.S. District Court for the Southern District of New York vacated the Solicitor’s Opinion. The court found that this interpretation and policy is “contrary to the plain meaning of the MBTA,” “runs counter to the purpose of the MBTA,” and concluded that the Opinion was “a solution in search of a problem.” The decision unambiguously found that the legal rationale and the outcome of the Solicitor’s Opinion does not align with the law.  Moving forward with a regulation that continues to avoid and undermine these obligations is not a viable path forward.

As consistently demonstrated since the Department of the Interior first announced the 2017 Solicitor’s Opinion, there is deep and broad concern from across the country, and internationally, about the impacts of this Administration’s position on incidental take and the processes that the Department of the Interior has undertaken. Since issuing the proposed rule, representatives from more than 25 state governments have opposed the rule or requested another path forward. Numerous tribes have expressed opposition to the rule and requested government-to-government consultation on the regulation. The Government of Canada objects to the rule and has raised concerns about how it impacts our bilateral treaty and shared migratory birds. Three flyway councils have continued to request that the Department of the Interior not move forward with the policy. Numerous individuals and organizations representing sportsmen, conservationists, and scientists have asked that you reverse course, joining more than 250,000 people in submitting comments against the regulation.

This is a significant moment for the history of this bedrock conservation law, along with the billions of birds that it protects and the economies that rely upon healthy migratory bird populations. We believe a choice between conservation and regulatory certainty is a false choice. We urge the Department of the Interior to comply with the federal court ruling, and consider an alternate approach that both regulates incidental take and encourages the creation and implementation and of best management practices by industry. We stand prepared to work with you on such an alternate approach.

In light of the court decision and the draft EIS public comment concerns highlighted above, we also request a response to the following questions by Friday, October 23, 2020:

• Will FWS rescind its guidance memo, issued April 11, 2018, which implements the now-vacated Solicitor’s Opinion?
• Will FWS rescind its memo, issued June 14, 2018, titled “Destruction and Relocation of Migratory Bird Nest Contents”, which relies on the now-vacated Solicitor’s Opinion?
• How is FWS responding to requests from tribes that it engage in government-to-government consultation before it advances a regulation any further?
• How will FWS acknowledge and respond to the objections raised by Canada, states, and flyway councils, among other stakeholders, in regard to its proposed rule and draft EIS?

In conclusion, we request that this letter be posted to the rulemaking docket and included in the rulemaking record. Thank you for your attention to this matter and your prompt response to these questions. 

Signed,

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