The National Audubon Society and other organizations named 2018 the year of the bird to celebrate the centennial of the landmark Migratory Bird Treaty Act. Ironically, 2018 could also mark the most significant reversals to the 100-year-old law.

According to the Washington Post, the Interior Department recently informed federal wildlife police that a new legal interpretation on the enforcement of the Migratory Bird Treaty Act will now take effect. The reinterpretation excludes punishment for “incidental take,” activities that are not intended to harm birds but do so directly in ways that could have been foreseen and prevented. The move follows the Interior’s solicitor general’s opinion on incidental take released in December 2017.

“The M-Opinion concludes that the take of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds,” wrote Vanessa Kauffman, public affairs specialist at the U.S. Fish and Wildlife Service, in an email to Sierra. “Migratory bird conservation remains an integral part of the U.S. Fish and Wildlife Service's mission. We will continue to work with any partner that is interested in voluntarily reducing impacts to migratory birds and their habitats.”

Proponents of the new interpretation contend that “incidental take” opens individuals and corporations alike to unlimited potential for criminal prosecution. As the argument goes, cat owners whose pets attack migratory birds, drivers who accidentally strike birds, homeowners who cut down trees with nests, and curious explorers gathering exotic feathers could be charged with jail time and fines.

But this is a red herring says Steve Holmer, vice president of policy at the American Bird Conservancy. “The Fish and Wildlife Service has been very judicious in their enforcement of the law,” he says. Holmer explains that typically the agency gives multiple warnings and engages in a dialogue with offenders before jumping to enforcement. “In fact, we have found numerous cases where they probably could have done more enforcement than they have,” he adds.

A century ago, avian protections in America were for the birds. The high demand for fashionable plumes for hats, scarves, and other accessories in the late 19th century spurred a lucrative wild bird feather trade that killed as many as 5 million birds per year. In 1914, after decades of overhunting decimated its once Hitchcockian flocks, the last passenger pigeon died at the Cincinnati Zoo. For a nation symbolized by the majestic bald eagle (a migratory bird itself), it became embarrassingly clear that something had to be done to protect birds.

In 1918, Congress passed the Migratory Bird Treaty Act, a law that makes it illegal to capture, hunt, or kill over 1,000 species of migratory birds without a permit. The law also prohibited unpermitted gathering, selling, buying, and trade of bird parts, nests, and eggs. The act is credited with saving the snowy egret, the wood duck, the sandhill crane, and other threatened bird species.

Up until now, enforcement for incidental take in the Migratory Bird Treaty Act has given industries an effective incentive to work with government agencies to anticipate, avoid, and mitigate preventable bird deaths. According to the Audubon Society, over 70 million birds are killed each year by industrial activities and structures, including power lines, communication towers, and improperly sited wind turbines. Uncovered oil field waste pits, where confused birds land thinking the glossy surface is water and are poisoned or drowned in a slow, viscous death, are accountable for the deaths of 500,000 to 1 million birds each year alone. The risk of prosecution under the Migratory Bird Treaty Act incentivized the industry to implement the inexpensive, commonsense solution of putting nets over these pits, saving thousands of birds every year from easily preventable deaths at each compliant facility.

“There are a variety of industrial impacts that we think can be regulated and enforced against,” Holmer says. “Really the goal is to get industry to adopt reasonable best management practices that would reduce these needless deaths.”

But some companies that believe they should not have to comply with any commonsense measures to protect birds under the Migratory Bird Species Act are using the straw man of the overbearing government to push back on the protections. The charge is being led by the industry that stands to benefit most: oil companies, which have been responsible for 90 percent of incidental takes prosecuted under the act. In a report released earlier this year, the Center for Investigative Journalism showed that big corporations conducted intensive lobbying against the Migratory Bird Species Act prior to the Interior’s solicitor general’s opinion, with energy trade groups sending regulatory reform “wish lists” to the Interior that included rollbacks to the act and spending hundreds of thousands of dollars to lobby against issues including the Migratory Bird Treaty Act. With the rollback on incidental take protections, the Migratory Bird Treaty Act will no longer apply even after catastrophic events like oil spills. For causing the deaths of over 1 million birds in the 2010 Deepwater Horizon oil spill, BP paid $100 million in fines, much of which was directed toward habitat restoration for affected species.

“Under this new policy, we wouldn’t see the same kind of ability to help restore the environment,” says Erik Schneider, policy analyst at the Audubon Society. “We’ve seen decades of administrations under both parties address this issue, so it’s frustrating to see this attempt to go after the law when the solutions are not difficult and when we know that they will help birds.”

The impacts of reducing protections under the Migratory Bird Treaty Act would also be felt internationally. Though initially signed in collaboration with Canada, the act has since expanded to include Mexico, Japan, and Russia. Migrating birds passing through the United States would face increased risks on their way to other destinations. “We have shared species, and that’s why countries came together to work for the conservation of migratory birds,” says Amanda Rodewald, Garvin professor and director of conservation science at the Cornell Lab of Ornithology. Because migratory birds play such an important ecological role as seed dispersers, pest controllers, and food sources for larger animals, the impacts could also cause a ripple effect in global trade. “For example, a lot of migratory birds spend the winters in shade coffee plantations, and research shows that pest control services by birds in these plantations improve coffee yields,” Rodewald explains. “The way this act protects the environment really goes beyond birds.”

But the administration’s changes to the act must follow a certain pecking order before they are made permanent. The Interior’s reinterpretation does not change the law itself; rather, it takes advantage of the fact that the Migratory Bird Treaty Act has always been vague as to what extent the law allows for criminal prosecution for incidental take. Only legislative action can truly change the law—and there have been moves to do just that. Representative Liz Cheney introduced a bill last year to weaken protections and prevent any enforcement for incidental take in order to facilitate oil and gas drilling. But the weakening protections for birds is unpopular among the general public—one Audubon Society poll shows that over 60 percent of registered voters support industry regulations to minimize harm to birds—and Congress seems to be catching on. Earlier in April, 10 U.S. senators sent a letter to Interior Secretary Ryan Zinke calling on him to keep enforcing incidental take.

“Eliminating agency authority to address incidental take under the MBTA risks reversing the significant progress the nation has made in recovering and maintaining bird populations, ties the hands of the department’s wildlife professionals, and undermines our international obligations,” the letter reads.