Energy 202: Ryan Zinke's move is not for the birds, say 17 former Interior officials

Friday , January 12, 2018 - 9:00 AM

Dino Grandoni

(c) 2018, The Washington Post.

WASHINGTON - A group of former Interior Department officials from both major parties is calling a Trump administration move to ease wildlife restrictions bird-brained.

Seventeen former political appointees and career officials sent a letter to Interior Secretary Ryan Zinke urging him to reconsider easing rules around a century-old law used to prosecute oil firms and other companies for the killing of migratory birds, the Post reported Friday.

“This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970’s,” the group wrote in a letter sent to Zinke on Wednesday, as well as to members of Congress.

The letter-writing group is diverse, spanning the administrations of former presidents Jimmy Carter to Barack Obama. Paul Schmidt, assistant director of migratory birds at U.S. Fish and Wildlife Service (FWS) from 2003 to 2011, organized the effort, saying both Republicans and Democrats were easy to recruit. “There wasn’t any hesitation on anyone’s part,” Schmidt said. “We finalized that letter in short order.”

Interior’s principal deputy solicitor, Daniel Jorjani, issued the new legal interpretation three days before Christmas - one of several last-minute stock-stuffers given out by Trump’s environmental officials.

The law being reinterpreted is the 1918 Migratory Bird Treaty Act, or MBTA, one of the nation’s oldest environmental statutes. The act made it illegal to “pursue, hunt, take, [or] capture” any migratory bird “by any means whatever [and] at any time or in any manner.”

Because the law is so broadly worded, incidences like a motorist striking and killing a bird “might be a technical violation,” Schmidt said. But in practice, he added, federal prosecutors tend to exercise restraint, bringing cases against companies that had failed to take precautionary measures aimed at averting bird deaths.

Interior’s office of the solicitor, however, worried the law still “hangs the sword of Damocles over a host of otherwise lawful and productive actions.” Under the new interpretation, a company would be in violation of the law only when it is “engaged in an activity the object of which was to render an animal subject to human control.”

The former Interior officials felt that interpretation was far too narrow: “This is a new, contrived legal standard that creates a huge loophole” in the existing act, the letter-writers wrote, “allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would ‘render an animal subject to human control.‘ “

Interior did not respond to requests for comment Thursday. But in late December, Interior’s deputy director of communications, Russell Newell, said in an email the opinion issued just days before President Trump’s inauguration “criminalized all actions that killed migratory birds, whether purposeful or not.”

One experience that may have swayed Interior is that of Harold Hamm, as the Post’s Juliet Eilperin explained in December:

“One of the sharpest critics of the MBTA is Harold Hamm, chief executive of the energy exploration company Continental Resources, who served as Trump’s energy adviser during the 2016 campaign. In 2011, a U.S. attorney in North Dakota charged Hamm with a criminal misdemeanor after a Say’s phoebe got stuck and died in a pond of oil waste. Hamm fought the charge and got it dismissed in 2012.

“Trump attacked the Obama administration over the incident during an energy speech in May 2016.”

This is far from the first time officials from past administrations have chewed out Trump’s crew over environmental policy.

Last month, three former administrators of the Environmental Protection Agency under Republican presidents joined with Bill Clinton’s Interior secretary, Bruce Babbitt, in publicly criticizing the proposed opening of an Alaskan gold and copper mine near Bristol Bay’s sockeye salmon fishery. In June, seven former heads of the Energy Department’s energy efficiency and renewables office wrote in protest of proposed budget cuts there.

- Zinke’s Sunshine State burn continues: Formal requests from states besides Florida are piling up on the Interior secretary’s desk demanding meetings after the announcement of the department’s new offshore oil drilling plan (states such as Washington and Virginia are mad after the Trump administration exempted Florida from the effort). Democrats, including Sen. Bill Nelson, D-Fla., cast the decision to exempt Florida as a political favor to Gov. Rick Scott, a Republican who Trump is trying to woo to run against Nelson in November.

Washington Gov. Jay Inslee, a Democrat, asked for an exemption, joking in an interview with CNN’s Wolf Blitzer that he would need to bribe Trump to make it happen: “We believe America deserves a president who will protect our beaches from sea to shining sea, not just those who have a political pal who’s in trouble in a Senate race in Florida. . .I don’t know, maybe I have to buy Donald Trump a golf course in Washington or something to get him to protect us.”

North Carolina Gov. Roy Cooper, a Democrat, insisted in a statement that like Florida, “offshore drilling threatens tourism, which is a vital economic driver” in his state.

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