Jump to Navigation

Trumping Obama’s Interior Department

December 5, 2016

President-elect Donald J. Trump made clear on the campaign trail that he intends to roll back regulations affecting domestic oil and gas and coal production on public lands. A methane rule finalized by the Department of the Interior (“Interior”) one week after the election will no doubt be on top of his list.[1] However, the methane rule is just one of many Obama Administration Interior initiatives that will be carefully reviewed by the Trump Administration to “identify and eliminate unnecessary regulations that kill jobs and bloat government.”[2]

After assessing the Trump Administration’s rollback options, this article examines four Interior initiatives outside the fossil fuel context that may be reconsidered in the near future. Those initiatives include Interior’s landscape-scale planning policies; a new “net gain” mitigation policy; migratory bird enforcement; and new wind and solar energy permitting rules.  

Rollback Options

The Trump Administration’s efforts to shift Interior policies toward a more consumptive, development-based agenda may be more difficult in some instances than others, depending on the legal form of Interior’s current initiatives.

New Departmental guidance can replace old guidance without much difficulty. New policy statements in the form of executive or secretarial orders can similarly replace the old. But policies are more difficult to change once implemented through specific regulatory processes. For example, Interior policies often find expression through land use plan amendments (“LUPAs”) under the Federal Land Policy and Management Act (“FLPMA”).[3] LUPAs can only be altered through a formal National Environmental Policy Act (“NEPA”) environmental impact review process that usually requires public notice and opportunities to comment.[4] LUPAs often take years to approve because they cover large geographic areas.[5]

Attempts to change regulations promulgated under the Administrative Procedure Act (“APA”)[6] require more process as well. Just how much depends on whether the regulation in question is pending or final. A new administration has several options regarding pending “midnight” regulatory proposals that do not take effect before Inauguration Day.

For example, the day the George W. Bush Administration took office, the President’s Chief of Staff issued a memorandum directing all departments and agencies to (i) not send proposed or final rules to the Office of the Federal Register, (ii) withdraw rules that had not yet been published in the Federal Register, and (iii) postpone for 60 days the effective dates of rules that had been published but had not yet taken effect.[7] The Clinton and Obama administrations issued similar memoranda shortly after Inauguration Day, as well.[8] President-elect Trump has indicated he intends to do the same.[9] But even if their effective dates are successfully postponed, final rules published in the Federal Register by an outgoing administration can only be repealed or modified by the incoming administration through procedures prescribed by the APA. Subject to certain limited “good cause” exceptions, those procedures require public notice and comment.[10] They also require a reasoned explanation justifying repeal or modification of the rule in question.[11]

Published final rules can also be repealed or modified by an act of Congress under the Congressional Review Act (“CRA”).[12] The CRA requires an agency to submit a rule to Congress before it takes effect.[13] In addition, “major”[14] rules cannot take effect for 60 session days, rather than the 30 calendar days normally required by the APA. During that period, Congress may enact a “resolution of disapproval,” which, if passed and signed by the President, can overturn any rule promulgated by a federal agency. A carryover review period for major rules submitted in the final 60 session days of a congressional session greatly extends the CRA’s reach.[15] These rules can be disapproved within 75 legislative days of commencement of the next session of Congress.[16]

The CRA has overturned a rule just once since its enactment in 1996. The mechanism is only effective for incoming administrations whose party is in control of Congress. The Trump Administration and the Republican-controlled Congress are likely to use the CRA to scrutinize and potentially rescind major “midnight” rules promulgated as far back as the end of May 2016.

There are other options, as well. On the formal end of the spectrum, Congress can undermine a rule by amending the statute upon which it is based. One less formal approach is to simply de-fund the rule or policy.[17] Another informal strategy could involve the administration directing agencies not to enforce a policy initiative. An element of risk would remain, however. The adopted rule could be funded or enforced in a future administration, with potential enforcement risk for parties who did not comply during an unfunded or unenforced period. Such risks can complicate financing.

Landscape-Scale Strategies

The concept of landscape-scale public land planning has been a hallmark of current Interior Secretary Jewell’s tenure.[18] The environmental community has praised Interior for placing emphasis on frontloaded, nationally-directed planning efforts to provide additional predictability for conservation and project development through layered management and habitat “zoning”.[19] But many developers believe Interior has used the concept to sharply restrict multiple-uses of public lands. At a minimum, the new Administration will likely take a long and critical look at four such landscape-level efforts.

BLM Planning Rule 2.0. In February 2016, the Bureau of Land Management (“BLM”) published a proposed rule to “amend existing regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to [FLPMA].”[20] Known as BLM’s Planning 2.0 initiative (“BLM 2.0”), it intends to further solidify and implement the landscape-scale concept by requiring land-use planning procedures that designate where and under what conditions future development may take place over large swaths of the West.[21]

Western states have expressed concern this approach will lead to increased influence from national stakeholders, reduce access to the lands, and dilute the influence of state governors and local communities.[22] BLM released a final BLM 2.0 rule in late November that has yet to be published in the Federal Register. The high level of Republican opposition to it in Congress suggests the new administration may seek to suspend the rule once it is published.

Federal Sage-Grouse Strategy. The Federal Sage-Grouse Strategy[23] is one of Interior’s trailblazing landscape-scale efforts. The Strategy is composed of a series of LUPAs with a geographic scope of 67 million acres across 10 states. Eight pending legal challenges,[24] a proposal to withdraw over 10 million acres from future mineral development,[25] BLM’s recent issuance of seven “Instruction Memoranda” implementing, in particular, the livestock grazing and oil and gas portions of the LUPAs,[26] all make the Federal Sage-Grouse Strategy a target for modification by the new Administration.

The linkage between the Strategy and the U.S. Fish and Wildlife Service’s (“FWS”) decision not to list the sage-grouse,[27] including the agency’s commitment to re-evaluate the status of the species in five years, may give the Trump Administration pause before deciding on a path forward to provide regulatory relief. But even with those administrative hurdles, industry and some states will push LUPA modification of the Federal Sage-Grouse Strategy and attendant NEPA review because it affects virtually every extractive industry across 10 western states.[28]   

Western Solar Plan. The President-elect is skeptical of anthropogenic climate change. But Mr. Trump has also evinced a more pragmatic, market-based “all of the above” approach to energy.[29] Preserving and creating jobs appears to be one of his highest priorities. The solar industry has created 300,000 jobs to date.[30] The industry is large enough to seek and possibly obtain regulatory relief in stride with more traditional resource extraction industries.

One avenue for relief might involve Interior’s six-state, 100-million-acre 2012 Western Solar Plan. The Western Solar Plan is another flagship of landscape-scale planning that may be revisited by the Trump Administration. While presented as a planning initiative designed to encourage utility-scale solar energy, many in the industry view the plan as a hindrance, in no small part because it removed 79 million acres of BLM lands from development.[31] The plan did set aside a quarter million acres as preferential solar zones,[32] but the best management practices imposed on those zones have often been viewed as much more restrictive than would otherwise be the case. When the oil and gas, mining, and agribusiness industries seek relief from the Trump Administration for the Federal Sage-Grouse Strategy, the solar industry may join them over the Western Solar Plan. There is a reasonable chance of revision because the Western Solar Plan can be modified administratively by a series of LUPAs instead of by APA rulemaking or by act of Congress.

Desert Renewable Energy Conservation Plan (“DRECP”). TheDRECP is a 22.5 million-acre LUPA that covers most of the southern quarter of the state of California, including some of the best solar and wind energy resources in the State. Initially presented as a tool for streamlining endangered species permitting for wind and solar projects on public and private lands, the DRECP has received a cold reception, with California counties notably refusing to sign on to the private lands component of the plan.

BLM nevertheless pressed forward in September 2016 by adopting the plan insofar as it applied to BLM lands. That decision designated roughly 6.5 million acres of lands as off limits to any form of development.[33] The DRECP process reduced California BLM lands open to solar development under the Western Solar Plan by more than 50 percent, with further restrictions imposed on the remaining acres. The wind industry has been particularly vocal in its opposition, asserting the DRECP has essentially zoned out further wind development of BLM-administered lands in Southern California. While all indications point to a Trump Administration that will not favor renewable energy development over fossil fuels, landscape-level LUPAs like the DRECP risk modification if they are perceived to limit economic growth through unnecessary regulation.

Mitigation Strategies

On November 3, 2015, President Obama issued a memorandum to several federal departments and agencies directing them to revise their existing policies to incorporate a new “net benefit goal” for mitigating the impacts of natural resource development.[34] While the mitigation goal established in the White House Policy may not per se be new, the implementation of the “net benefit goal” has raised the bar for future project development. The policy shift also follows several other Interior policy initiatives, including landscape-scale strategies (above), advance conservation efforts, and the continued “zoning out” of certain areas for development.

Interior’s application of the White House’s mitigation initiative has largely been in the form of nonbinding guidance that could easily be modified or undone by the new Administration. This outcome is possible in light of questions raised regarding the authority of federal agencies to impose the “net gain” standard.[35] For example, FWS recently released a final new “net gain” policy on compensatory mitigation[36] under the Endangered Species Act (“ESA”) that some will contend is in excess of the ESAs statutory “jeopardy” standard.[37]    

Migratory Bird Treaty Act

On May 26, 2015, FWS published a Notice of Intent outlining a proposal for a rule requiring a multi-layered permitting program under the Migratory Bird Treaty Act (“MBTA”).[38] The permitting program would regulate private activities that inadvertently injure or kill members of most bird species in the United States. The program would affect a wide range of industries and activities, reaching well beyond the renewable energy and oil and gas sectors that have been the subject of enforcement actions over the last several years. If finalized, the proposal almost certainly would draw legal challenges from industry stakeholders. No progress has been made since the initial announcement, however. The Trump Administration is unlikely to take the process any further.

MBTA enforcement may also be influenced by the new Administration. FWS has relied on Court of Appeal decisions in the 2nd and 10th Circuits[39] to enforce (or threaten to enforce) the MBTA’s strict criminal liability provisions against multiple wind and oil and gas facilities, sometimes resulting in multi-million-dollar settlements. However, the 5th, 8th and 9th Circuits[40] have disagreed with this interpretation, holding that the MBTA applies to purposeful activities only (such as unlicensed hunting) and does not apply to unintentional “take” of migratory birds.

The Interior Secretary under the Trump Administration could rely on the 5th, 8th and 9th Circuit court precedents to issue a regulation, or at a minimum, an internal policy memorandum, that prohibits enforcement of the MBTA against non-purposeful forms of take.

Wind and Solar Competitive Leasing Rule

On November 10, 2016, Interior released a final rule to establish a framework for the designation of preferred “designated leasing areas” (“DLAs”) for wind and solar projects that would be subject to competitive leasing rather than the current first-in-time, first-in-right regime.[41] The rule would also codify certain wind and solar bonding, rental, megawatt capacity fee, and pre-application policies implemented by BLM for the past five years without formal rule making. The solar and wind industries have strenuously opposed the rule on almost every front. Whether the competitive leasing concept remains will likely depend on whether the Trump Administration decides to alter the analogous competitive leasing regime applied to public land oil and gas leases for the past 30 years. The top-down DLA zoning concept might strike a Trump Administration as contrary to a market-based approach. The megawatt capacity fee may be perceived as an illicit tax outside Interior’s statutory mandate. However, the final rule likely will be published in the Federal Register before December 22, 2016 and therefore take effect before the President-elect is sworn in. If that is the case, rescinding or modifying the competitive leasing rule would require a new rulemaking (congressional action through the CRA would not apply because the application is not classified as “major”). The formal rulemaking process may handicap efforts to modify a rule that focuses almost exclusively on renewable energy facilities.

Conclusion

There is little doubt Interior will place greater emphasis on the consumptive use of resources under the Trump Administration. In addition to reducing restrictions on fossil-fuel development, President-elect Trump’s focus on creating jobs and reducing regulation in general will likely include an attempt to roll back the Obama Administration’s landscape-scale planning and mitigation strategies, both because they cut across industries and because they are generally easier to amend. The extensive reach of the Federal Sage-Grouse Strategy guarantees it will receive ample attention from the new Administration. The recently proposed MBTA permitting program will likely be abandoned. MBTA enforcement may be relaxed, as well. Wholesale modification of BLM’s wind and solar competitive leasing rule seems less likely. Its final status and narrow focus on the renewable energy industry may insulate it against extensive modification. Overall, however, Interior will loosen natural resources regulation across all industries to implement the President-elect’s broad goal of reducing federal regulation in general.

[1] See Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83,008 (Nov. 18, 2016).

[2] The President-elect’s website states, “[r]egulatory reform is cornerstone of the Trump Administration, and the effort will include a temporary moratorium on all new regulation, canceling overarching executive orders and a thorough review to identify and eliminate unnecessary regulations that kill jobs and bloat government.” See https://www.greatagain.gov/policy/regulatory-reform.html (last visited Nov. 15, 2016).

[3] The Interior Secretary, through BLM, is required to “develop, maintain, and, when appropriate, revise land use plans” that involve the public and are “consistent with the terms and conditions” of FLPMA. 43 U.S.C. § 1712(a).

[4] 42 U.S.C. § 4321.

[5] FLPMA defines “multiple use” as “the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people,” while providing “a combination of balanced and diverse resource uses … without permanent impairment of the productivity of the land and the quality of the environment ….” 43 U.S.C. § 1702(c).

[6] 5 U.S.C. § 551 et seq.

[7] Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, The White House, to Heads and Acting Heads of Executive Departments and Agencies (Jan. 20, 2001), in 66 Fed. Reg. 7702 (Jan. 24, 2001).

[8] Memorandum from Leon Panettta, Director, Office of Management and Budget, to Heads and Acting Heads of Agencies Described in Section I(d) of Executive Order 12291 (Jan. 22, 1993); Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, The White House, to Heads and Acting Heads of Executive Departments and Agencies, in 74 Fed. Reg. 4435 (Jan. 26, 2009).

[9] See Footnote 2, above.

[10] 5 U.S.C. § 553.

[11] See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) (holding that the agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”); see also National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981-982 (2005) (holding that agencies are free to change their existing policies as long as they provide a reasoned explanation for the change).

[12] 5 U.S.C. § 801 et seq.

[13] 5 U.S.C. § 801(a)(1)(A).

[14] A major rule is one with an annual effect of $100 million or more on the economy or other “significant adverse effect” on the economy. 5 U.S.C. § 804(2). The Office of Budget and Management (“OMB”) determines whether a regulation is major. By contrast, the effective dates of “non-major” rules are determined by the Administrative Procedure Act (“APA”), which generally requires the effective dates for new rules to be at least 30 calendar days.

[15] Id. § 801(d)(1).

[16] Id. § 801(d)(2)(A).

[17] For example, in 2011 Congressman Mike Simpson (R-ID) led an effort to de-fund Interior’s “Wild Lands” initiative that would designate certain lands as such and manage them accordingly. See http://simpson.house.gov/news/documentsingle.aspx?DocumentID=235285 (last visited Nov. 11, 2016).

[18] See generally U.S. Dep’t of Interior, “Secretary Jewell Releases Landscape-Scale Mitigation Strategy to Encourage Dual Objectives of Smart Development and Conservation,” Press Release (Apr. 10, 2014); available at: https://www.doi.gov/news/pressreleases/secretary-jewell-releases-landscape-scale-mitigation-strategy-to-encourage-dual-objectives-of-smart-development-and-conservation (last visited Nov. 14, 2016).

[19] The Federal Sage-Grouse Strategy, for example, utilizes a habitat zoning scheme where project development is shifted away from key sage-grouse habitat through closures and/or restrictive conservation measures, while the remaining “General Areas” provide for more flexibility.

[20] BLM, “Planning 2.0: Improving the Way We Plan Together,” http://www.blm.gov/wo/st/en/prog/planning/planning_overview/planning_2_0.html.

[21] “In addition, recent Presidential and Secretarial policies and strategic direction emphasize the value in applying landscape-scale management approaches to address climate change, wildfire, energy development, habitat conservation, restoration and mitigation of impacts on Federal lands … Through Planning 2.0, the BLM aims to improve the land use planning process in order to apply this policy and strategic direction and to complement related efforts within the BLM.” See Resource Management Planning; Proposed Rules, 81 Fed. Reg. 9674 (Feb. 25, 2016).

[22] Id. at 9675.

[23] The Federal Strategy, covering some 67 million acres of federally-managed land across 10 western states, is comprised of five total Records of Decision from BLM and the U.S. Forest Service. See also T. Perry, Interior’s Sage Grouse Plans Raise Concerns for Industry, Politicians in 10 Western States, Marten Law News (June 2, 2015).

[24] See Otter v. Jewell, No. 1:15-cv-01566 (D.D.C. filed Sept. 25, 2015); Western Exploration LLC v. DOI, No. 3:15-cv-00491 (D. Nev. filed Sept. 23, 2015); Wyo. Stock Growers Ass’n v. DOI, No. 2:15-cv-00181 (D. Wyo. filed Oct. 14, 2015); Herbert v. Jewell, No. 2:16-cv-00101 (D. Utah filed Feb. 4, 2016); Wyo. Coal. of Local Gov’ts v. DOI, No. 2:16-cv-00041 (D. Wyo. filed Mar. 1, 2016); Am. Exploration & Mining Ass’n v. DOI, No. 1:16-cv-00737 (D.D.C. Apr. 19, 2016); Western Energy Alliance v. DOI, No. 1:16-cv-00112 (D.N.D. filed May 12, 2016).

[25] See 80 Fed. Reg. 57,635 (Sept. 24, 2015) (notice of proposed withdrawal and notice of intent to prepare an EIS for the Sagebrush Focal Areas). In addition to the proposed sage-grouse withdrawals, Obama’s Interior Department has undertaken other controversial large-scale withdrawals under FLPMA. See, e.g.,77 Fed. Reg. 2,563 (Jan. 18, 2012) (Public Land Order 7787 withdrawing from location and entry under FLPMA section 204(c) over one million acres in Arizona).

[26] See, e.g., IM No. 2016-141, “Review of Grazing Permits,” IM No. 2016-142; “Grazing Thresholds and Responses,”; IM No. 2016-143, “Oil and Gas Leasing and Development”; and IM 2016-145, “Tracking and Reporting Surface Disturbance and Reclamation.

[27] See generally 12-Month Finding on a Petition to List Greater Sage-Grouse as an Endangered or Threatened Species, 80 Fed. Reg. 59,858 (Oct. 2, 2015) (FWS 2015 Finding).

[28] Congress has also been active in the sage-grouse discussion. House Natural Resources Chairman Rob Bishop (R-UT) has included a provision in the National Defense Authorization Act that would allow governors to opt-out of the current Federal strategy and replace it with a state-based plan for at least five years. The provision would also prohibit the Interior Secretary from changing the ESA status of sage-grouse until Sept. 30, 2026. See H.R. 4739, “Greater Sage Grouse Protection and Recovery Act of 2016,” 114th Congress, 2d session.

[29] President-elect Trump’s website states, “[o]ur energy policies will make full use of our domestic energy sources, including traditional and renewable energy sources.” See https://www.greatagain.gov/policy/energy-independence.html (last visited Nov. 15, 2016).

[30]Department of Energy, US Energy and Employment Report (March 24, 2016).

[31] BLM, Approved Resource Management Plan Amendments/Record of Decision (ROD) for Solar Energy Development in Six Southwestern States (October, 2012), page 2.

[32] Id.

[33] BLM, Desert Renewable Energy Conservation Plan Land Use Plan Amendment to the California Desert Conservation Area Plan, Bishop Resource Management Plan, and Bakersfield Resource Management Plan (September, 2016), page 12.

[34] Presidential Memorandum, “Mitigating Impacts on Natural Resource from Development and Encouraging Related Private Investment,” Nov. 3, 2015; see also T. Perry, et al., The President’s Environmental “Net Benefit Goal” – The White House Sets a New Approach to Mitigation, Marten Law News (Nov. 16, 2015).

[35] Id.

[36] 81 Fed. Reg. 83,440 (Nov. 21, 2016).

[37] Under the ESA Section 7, FWS must evaluate whether a federal action (e.g. renewing a livestock grazing permit) is likely to jeopardize the continued existence of any listed species or result in the adverse modification of critical habitat. 16 U.S.C. § 1536(a)(2).

[38] FWS, Notice of Intent, Migratory Bird Permits: Programmatic Environmental Impact Statement, 80 Fed. Reg. 30032 (May 26, 2015). See U.S. Fish & Wildlife Proposes Incidental Take Rule for Migratory Birds, Marten Law News (June 17, 2015).

[39] E.g., United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) (affirming oil producers’ misdemeanor convictions under the MBTA after dead migratory birds were discovered lodged in pieces of their oil drilling equipment); United States v. Moon Lake Electric Ass’n, Inc., 45 F. Supp. 2d 1070, 1074 (D. Colo. 1999) (“In proscribing the acts of taking, capturing, killing, possessing, selling, purchasing, importing, exporting and transporting, Congress expressed a clear intent to proscribe conduct beyond that associated only with hunting, trapping or poaching.”).

[40] E.g., U.S. v. Citgo Petroleum Corp, 801 F.3d 477, 488-494 (5th Cir. 2015) (MBTA does not apply to incidental take); U.S. v. Brigham Oil and Gas, 840 F. Supp. 2d 1202 (D. ND. 2012) (MBTA does not apply to unintentional take); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991) (MBTA does not apply to habitat modification); Protect Our Communities Foundation v. Salazar, 2013 WL 5947137, *17-18 (S.D. Cal. 2013); Protect Our Communities Foundation v. Jewell, 2014 WL 1364453, *21 (S.D. Cal. 2014).

[41] See U.S. Dep’t of Interior, “Solar and Wind Energy Rule”; available at: https://www.blm.gov/programs/energy-and-minerals/renewable-energy/laws/solar-and-wind-energy-rule (last visited Nov. 14, 2016).

 

This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.