Guest post by Thomas Buckley, Fall 2025 Intern
Since 1970, bird populations have declined by the billions, according to the 2025 State of the Birds Report. Populations of eastern forest birds—including many species commonly seen at the museum—have declined by 27 percent. The report identified 112 “tipping point species” including the Northern Pintail, Chimney Swift and Bobolink (whose can all be found as life-size woodcarvings at the museum), which have lost more than half of their populations in the past 50 years.
Given the threats facing birds, it is more important than ever to consider the recent changes by the federal government to conservation policy and practice. Some of the Executive Orders, decisions by the Departments of Defense and Interior, decisions by the Supreme Court, and the budget reconciliation bill signed into law in July 2025 will all have a tremendous impact on bird conservation in the coming years. Understanding these changes is critically important for anyone concerned about reducing the precipitous avian population declines we have observed over the past decades.
On April 11, 2025, the Department of the Interior (DOI) issued a memorandum opining that the Migratory Bird Treaty Act does not prohibit the incidental take of species protected under the act. Under this new guidance, companies will no longer be held responsible for imminently foreseeable bird deaths caused by hazards such as powerlines, utility poles, and open waste pits. Relatedly, US Fish and Wildlife Service and the National Marine Fisheries Service published a rule to rescind the definition of “harm” under the Endangered Species Act (ESA) to exclude incidental killing due to habitat modification.
The justification the agencies used for these changes stems from the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo which overturned the previously established doctrine of “Chevron deference” in which the supreme court ruled that federal courts must defer to a government agency’s interpretation when applying a law or statute. Under Loper Bright, agency interpretation may be subject to challenge if a court determines that its actions do not match the best meaning of the statute. USFWS and NMFS used Loper Bright to argue that rescinding the definition of harm was necessary to remain in line with the “single, best meaning” of the ESA.
Prior to these rule changes, any organization seeking to engage in activities likely to result in harm to species protected under ESA or MBTA would be required to seek an incidental take permit (ITP) which would require them to create a conservation plan to minimize incidental take of protected species. These rule changes will greatly reduce the scope of activities that will require an ITP, greatly limiting developers’ responsibility to prevent unlawful taking of protected species.
Not only will these rule changes greatly hamper the powers of the ESA and MBTA to protect vulnerable avian species, but they are bad for business as well. Since FWS has largely dismantled the incidental take permitting system, entities that might have otherwise been granted an ITP can no longer even apply for one. As a result, they may lose the legal shield that the ITP grants permittees from fines and lawsuits under the ESA and MBTA. If a new administration decided to undo these rule changes, then anyone without an ITP could find themselves vulnerable to prosecution.
The budget reconciliation bill—commonly referred to as the “One Big Beautiful Bill Act” (BBB) —will also have a substantial impact on bird conservation. The act rescinds many conservation programs funded by the Inflation Reduction Act (IRA) in 2021. These programs include clean energy tax credits, habitat restoration programs, and funds to support forest conservation by small land owners. Collectively, these cuts will lead to hundreds of millions of dollars of lost funding for conservation of critical habitat and climate mitigation. BBB also mandates the sale of federal lands for drilling in the Arctic National Wildlife Refuge in Alaska, disturbing critical habitat.
The act also makes several changes to the National Environmental Policy Act (NEPA) permit review system. NEPA, sometimes called the “Magna Carta” of US environmental law, requires federal agencies to evaluate the environmental impact of their actions. In the name of cutting regulations, BBB greatly weakens the enforcement capabilities of the act, notably by allowing project sponsors to pay for expedited Environmental Assessment.
In April, the Council on Environmental Quality (CEQ), which oversees NEPA, revoked its own authority and remanded decision-making to each agency individually. That created a patchwork of different and potentially conflicting regulations. In the same proposed rule, CEQ instructed agencies to exclude cumulative impacts analyses and environmental justice assessments from their reports. Such changes are consistent with the Supreme Court’s May ruling in Seven County Infrastructure Coalition v. Eagle County that permits government agencies to exclude downstream effects from their analyses.
The final draft of BBB cut proposed provisions that would have sold millions of acres of federal land for housing development which would have threatened yet more crucial habitat. The bill also continues to fund conservation programs administered by the department of agriculture including EQIP, RCPP, CSP, and ACEP, which provide funding and technical assistance for farmers/farm businesses to undertake a variety of conservation activities.
Unfortunately on October 23, 2025, the Department of the Interior announced its intention to allow oil and gas drilling in Arctic National Wildlife Refuge, the largest wildlife sanctuary in the United States. In addition, the department announced that it had finalized plans to allow a road through Izembek National Wildlife Refuge, one of the most important staging areas for migratory birds including 90 percent of the Pacific Brant Population and large populations of Emperor Geese and Stellar’s Eider. A road would damage this crucial habitat and could open the door for further development in other pristine refuge areas.
The advocacy work that Audubon, American Bird Conservancy and many others have done at the federal, state and local level will continue to be critical to fight back against the increasing threats to birds.