Ep. 91: @Interior: Victories and Defeats for the Oil Industry

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It took 40 years but this week the Trump administration announced that it would open up 1.5 million acres of the Arctic National Wildlife Refuge to oil and gas drilling. The administration argues the decision will lead to jobs and generate billions of dollars in revenue, but opponents warn that opening the area to drilling will have a devastating effect on the region - which is a critical habitat for polar bears, migrating caribou and other wildlife.

On this episode, host Julie Grant talks with Darryl Fears who covers the Interior Department and Wildlife for The Washington Post about what the ANWR win means. They also talk about a recent defeat at Interior. Citing a line from To Kill a Mockingbird, a federal judge in New York struck down a Trump administration decision to scale back U.S. government protections for migratory birds. "It is not only a sin to kill a mockingbird, it is also a crime," Judge Valerie Caproni wrote.

Listen to the full episode or read the transcript below:

(this conversation has been edited for clarity)

Alaska National Wildlife Refuge

Julie Grant: The Trump administration has announced that they finalized drilling plans for the iconic Arctic National Wildlife Refuge. This has been a goal of some Republicans for 40 years. What does this mean, what the Trump administration has done here?

Darryl Fears: It means that companies will be able to bid on leases in one of the most pristine wildlife areas of the country. Companies can begin sort of acquiring land for the purpose of drilling. But this land has been protected for a very long time for very specific reasons. And the reasons are that millions of caribou living there sustain native peoples in that area.

Also, there are a number of oxen there and untold numbers of migrating birds. So all of that is endangered. Also, there have been studies that show that drilling companies that rely on seismic tests and aerial mapping to discover polar bear dens west of that refuge are only correct about 40% of the time. So drilling in that entire area is fraught.

Also, in order to support drilling, the human footprint has to widen. And so, in addition to drilling in those waters to extract oil, minerals and gas, companies will have to build roads. They will have to build sewage treatment areas. They will have to build facilities to store whatever minerals they capture. And so the human footprint on this 1.6 million acre area will be huge compared to what it is now, which is nonexistent.

Grant: What does it look like there now?

Fears: It looks beautiful. I mean it's pretty cold. And if you go there in the summer is still cool. As I understand it, there are a lot of bugs. But for caribou and for oxen and for birds is the perfect place. I mean, one of the reasons birds are there for the bugs, birds eat bugs. And so it is an excellent place to be if you're a wild animal. It is one of the most untouched areas in the United States.

Grant: So was there anything in this announcement by the administration that was surprising?

Fears: No. They've been planning this for a long time. The administration wants companies to have the ability to lease federal land in the oceans across the coast. So this isn't just happening in Arctic National Wildlife Refuge (ANWR). But they're also proposing it for the Atlantic Coast.

What they want is for companies to own these parcels. So in some future, for the 10 years or so that they can lease this land, they might be able to drill if they can get another president who's sympathetic with drilling rights.

I should point out that this is something that Alaskans, at least that the Alaskan leaders have wanted for some time. Drilling means more revenue and more shared revenue for Alaskans. So this is something that they favor while most of the country, according to polls, do not. According to a Yale poll done recently, 70 percent of voters, disagreed with drilling in ANWR.

Grant: How have environmental groups have reacted to this plan?

Fears: Hair on fire. They've opposed this for a long time. I can see from my inbox there is anger from those groups and vows to fight it, not just from the conservation groups but from the Gwich'in people that rely on caribou. They feel that caribou migration will be greatly disrupted and those caribou that sustain their tribe will move on elsewhere and it will be harder for them to continue their traditional practices.

Migratory Bird Treaty Act

Grant: Let's shift gears and talk about something called the Migratory Bird Treaty Act. The Interior Department changed the focus of this. And as I remember earlier in the year, kind of put this through rulemaking to change this rule and how it would be interpreted by the government. So can you remind us, what is the Migratory Bird Treaty Act and what's at stake here?

Fears: The Migratory Bird Treaty Act is more than a century old. It's an agreement between Russia, Britain, Japan, Canada, to protect birds and limit the number of birds that were taken. It was enacted because a number of species of birds had disappeared.

A certain species of pigeon had disappeared because its feathers were popular for women who like to wear a certain hat. In the course of those 100 years, there were amendments to this law and amendments that make it what it is today.

Grant: My understanding is initially and for many decades, the way this was interpreted was that if an industry, if somebody were doing work and incidentally impacted birds, the government would investigate and there would be at least a discussion. If there was any more impact on birds, the government could take action against the company for incidental impact on birds. And the Trump administration is changing that or has changed that?

Fears: It has changed that. After the Exxon Valdez oil spill killed hundreds of thousands of birds, Congress began to repurpose the Migratory Bird Treaty Act to punish that type of incident that leads to all these deaths.

Generally, that new way of looking at the act affected oil and gas companies. When birds see oil slicks or oil pits from the air, they think that they are bodies of water and they fly right into them. So under other administrations, the U.S. Fish and Wildlife Service required these companies to cover those pits. And when they didn't cover those pits and birds died as a result, they were punished under the MBTA.

Grant: The Audubon Society did an analysis and found that oil companies were the greatest beneficiaries of the new interpretation.

Fears: Right. They were punished 90% of the time. It was basically them that the rule was created for because they were the largest culprits.

Grant: So the latest developments with this rule happened last week. What's gone on there.

Fears: As soon as Trump came into office, his interior secretary back then, Ryan Zinke, targeted this law. And then after Zinke was forced to resign, David Bernhardt, the new interior secretary, took this on.

Interior knew that it couldn't change the Migratory Bird Treaty Act. Only Congress could do that. So what they set out to do was to reinterpret it and create new legal language by which they would enforce the rule and then change the rules.

“The judge thought that the Interior Department willfully set out to undermine what Congress had voted for and what Congress intended under this law."

In 2018, they proposed to not enforce the law unless a company or an individual specifically intended to harm birds. So, for example, if I went out and I was wanted to build some type of structure and as a result of that, there was a nest of endangered birds and I laid a foundation on them. I wouldn't be responsible for that unless I wanted to kill those birds -- if I was building my building just to kill those birds. That's how Interior reimagined the enforcement of this rule.

So Exxon would not be responsible for birds killed as a result of that spill. And neither would BP in the Deepwater Horizon incident. And neither would any oil company that forgot to cover its oil pit because only if they left the oil pit open for a specific purpose of killing birds, could they be prosecuted or penalized under this new interpretation of enforcement of the MBA.

Grant: If you're going in thinking, 'we are going to go and kill these birds,' then they'd hold you accountable. But otherwise, even if you know you're going to kill birds, if that's not why you're doing it, then you're OK.

Fears: Right. And who could prove that? I mean, any company can say, even if they intended to kill the birds, the [Fish and Wildlife] police would have to show that they intended to kill the birds. The company could presumably say, 'we didn't intend to do that at all.' So it would be the word of Fish and Wildlife police against [the company's]. Under this interpretation, it's almost impossible to enforce the Migratory Bird Treaty Act.

Grant: So there's this quote from the judge in this case from To Kill a Mockingbird: "It's not only a sin to kill a mockingbird, it's also a crime." So what's the judge saying there?

Fears: The judge is saying that the way that they would about this was a violation of federal law. They did not leave enough room for public comment. They did not deliberate over this enough. And then they also undermined, the judge said, the will of Congress.

Congress did not say that you needed to intend to kill a bird in order to enforce this act. And so the judge thought that the Interior Department willfully set out to undermine what Congress had voted for and what Congress intended under this law.

Grant: So then what happens now is this federal judge's opinion the final word. Or what can the Trump administration do to fight this?

Fears: The administration, as always, can appeal this. I asked the Interior Department if they would appeal and I got no answer from them. Interior said that they felt that the judge essentially got rid of a very commonsense law, that people aren't intending to hurt animals, so they should not be penalized for it. That's how Interior under David Bernhardt sees this.

Grant: I'm sure as someone who covers the Interior Department, you've got some sources in there. Is there some silent cheering from the department? We talked with some former leaders of Interior for this podcast when the rulemaking was underway, and they were talking about how they were speaking out and writing amicus briefs because they disagreed with the Trump administration interpretation. And even though they'd never been political and had never spoken out before, they felt that was important in this case.

What are you hearing from the inside?

Fears: Well, this is interesting. You know, I don't hear a lot from inside Interior. There's a chill there. Under the Trump administration, people aren't really speaking out.

Now, I hear from people who say employees inside the agency's applaud certain laws, but you don't really hear from them. I might hear from one or two people saying that they appreciate a decision like this. But by and large, I would expect that Interior police and staff who were accustomed to enforcing these laws for decades were against this change. But as far as hearing from my hearing from people as a reporter, I can't say that I really have.

Darryl Fears covers the Interior Department and wildlife for The Washington Post.

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