Late last week, newly confirmed Department of the Interior (DOI) Secretary Deb Haaland took two major steps to advance the Biden-Harris administration’s climate priorities and accelerate the shift to a clean energy future. First, by Secretary’s Order 3398, Haaland revoked a series of actions by the prior administration that promoted fossil fuel development on public lands and waters. Then, Haaland issued a separate directive—Secretary’s Order 3399—that prioritizes climate change in departmental decision-making. The actions come as DOI is undertaking a comprehensive review of the federal oil and gas leasing program and just one week ahead of President Biden’s virtual global summit on climate change.1
Secretary Haaland’s Order 3398 reverses many actions that sought to bolster oil, gas and coal extraction on federal lands and waters. It also establishes a Department-wide policy “to listen to the science; to address societal inequities and create opportunities for the American people; to conserve and restore our land, water, and wildlife; to reduce greenhouse gas emissions; to create jobs through a growing clean energy economy; and to bolster resilience to the impacts of climate change.” In a video announcing the actions, Haaland said many of her predecessors’ orders “unfairly tilted the balance of public land and ocean management toward extractive uses, without regard for climate change, equity or community engagement.”
To that end, Haaland revoked a dozen orders2 she deemed “inconsistent with” or that “present obstacles to” President Biden’s Day One Executive Order 13990, entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The revoked orders had lifted the pause on coal leasing on federal lands; required reconsideration of Obama-era mitigation and climate change policies for large development projects; promoted oil and gas leasing, exploration and development in federal waters, Alaska’s National Petroleum Reserve and the Arctic National Wildlife Refuge; streamlined environmental and historical property reviews under the National Environmental Policy Act (NEPA) and National Historic Preservation Act; and prioritized investigation and enforcement of intentional violations of laws and regulations administered by the Department.
For many of the issues covered by the revoked orders, it is not clear whether the Department will revert to prior policies or impose new requirements. A DOI spokesperson said that the revocation of the coal order, for example, does not immediately impact coal development, adding that the Department is “continuing to review an appropriate path forward.” Thus, the immediate practical effect of Order 3398 may be limited.
Secretary Haaland’s Order 3399 establishes a DOI “Climate Task Force” to ensure that “climate change is appropriately analyzed in governmental decision-making, and that Tribes and environmental justice communities are appropriately engaged” across the Department. The Task Force will, among other things, make recommendations on prioritizing climate change in policy-making and budget processes; support “development and use of the best available science” for evaluating climate change impacts of federal land uses and opportunities to increase carbon sequestration; take steps to increase the climate resilience and adaptive capacity of federal lands; assume responsibility for implementing review and reconsideration of federal oil and gas leasing and permitting practices; and expedite permitting and environmental review of renewable energy projects. The order, which may have more short-term ramifications than its precursor, also requires each of the Department’s bureaus and offices to apply Obama-era NEPA policies and guidance when conducting environmental reviews, including specifically considering greenhouse gas emissions and climate change impacts from a proposed action. Finally, the order directs bureaus and offices to “proactively begin consultation” with potentially impacted Tribes and “engage potentially impacted environmental justice communities early in the project planning process.” In combination, these provisions may foreshadow a shift in DOI permitting that favors renewables over traditional energy sources.
As we have noted, DOI continues to pause new oil and gas leasing activities while it undertakes a comprehensive review of the federal oil and gas leasing program and its future. The Department indicated that these orders will not affect that pause or the ongoing review, the preliminary results from which DOI plans to release this summer.
1 Also on Friday, new leadership in the DOI Solicitor’s office withdrew M-37062, a Trump-era legal opinion that concluded that the Interior Secretary must create a National Outer Continental Shelf Oil and Gas Leasing Program consisting of a five-year lease schedule with at least two lease sales during the five-year plan. The Solicitor’s office said it will conduct its own review of DOI’s obligations under the Outer Continental Shelf Lands Act.
2 S.O. 3348 – “Concerning the Federal Coal Moratorium” (March 29, 2017); S.O. 3349 – “American Energy Independence” (March 29, 2017); S.O. 3350 – “America-First Offshore Energy Strategy” (May 1, 2017); S.O. 3351 – “Strengthening the Department of the Interior’s Energy Portfolio” (May 1, 2017); S.O. 3352 – “National Petroleum Reserve – Alaska” (May 31, 2017); S.O. 3354 – “Supporting and Improving the Federal Onshore Oil and Gas Leasing Program and Federal Solid Mineral Leasing Program” (July 6, 2017); S.O. 3355 – “Streamlining National Environmental Policy Reviews and Implementation of Executive Order 13807, ‘Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects’” (August 31, 2017); S.O. 3358 – “Executive Committee for Expedited Permitting” (October 25, 2017); S.O. 3360 – “Rescinding Authorities Inconsistent with Secretary’s Order 3349, ‘American Energy Independence’” (December 22, 2017); S.O. 3380 – “Public Notice of the Costs Associated with Developing Department of the Interior Publications and Similar Documents” (March 10, 2020); S.O. 3385 – “Enforcement Priorities” (September 14, 2020); and S.O. 3389 – “Coordinating and Clarifying National Historic Preservation Act Section 106 Reviews” (December 22, 2020).