The future of public lands under the Biden Administration

Hogan Lovells

Hogan Lovells

President-elect Biden will assume office in January, 2021, with a divided nation, the global coronavirus pandemic, and a domestic energy market in a distressed state. The new administration will need to oversee the management of the nation’s public lands and waters for the benefit of the American people in this unprecedented, difficult climate. One third of the Nation's land area is publicly-owned, and managed primarily by the Bureau of Land Management of the Department of the Interior.

The future of public lands will be largely informed by the Biden administration’s “Clean Energy Future” agenda, with a target of a carbon-free power sector by 2035 and net-zero carbon emissions by 2050. To achieve this agenda, the Biden administration will support regulatory measures to combat climate change with a focus on reducing air emissions, advancing alternative fuels and electric vehicles, pursuing clean energy initiatives such as renewables and carbon capture methodologies, reducing fossil fuel development, and prioritizing environmental justice concerns. The Biden administration also will be tested on its commitment to foster infrastructure development, advance technological innovation in the energy sector, and regain a leadership role on climate issues on a global scale. One key question is how will this new agenda impact the U.S. Department of the Interior’s oversight of the nation’s public lands and waters?

We offer our views below in the form of responses to questions we expect to be the most common.

How will President-elect Biden undo various deregulatory initiatives regarding public lands under the Trump administration?

The Biden administration will seek to reverse the deregulatory agenda of the Trump administration across multiple fronts, but it is anticipated that these reversals may be modulated in light of the close election margins. In addition, how quickly the new administration can do so depends on the action it seeks to undo. Most immediately, President Biden can revoke Trump’s Executive Orders with little more than a stroke of the pen.

For duly adopted rules and regulations, the Biden administration will have to engage in a much longer and complicated process. To repeal a regulation, an agency must give a reasoned explanation and provide public notice and comment. President Biden will also likely engage in new rulemaking, which is an even longer process that requires a rationale for the change in policy, public notice and comment, and responses to comments before finalization of the rule. If the rule is significant, it must be reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget and a cost-benefit analysis may be necessary.

Lastly, unless Democrats do ultimately take control of the Senate, the Biden administration will not be able to rely on the Congressional Review Act (CRA) as a tool for policy change. The CRA allows Congress to invalidate regulations that are submitted to Congress within 60 legislative days before its adjournment. If Congress takes this action, the executive branch is barred from adopting a regulation that is substantially similar. Thus, immediate executive order activity is likely, but the longer process of repealing, amending, and promulgating new regulations will take time.

What executive order action is Biden expected to undertake regarding the management of public lands and waters?

The Biden administration is expected to repeal a number of Trump executive orders (EOs), but in the realm of public lands, President-elect Biden is also likely to issue new executive orders that advance his climate change and environmental protection agenda while retaining certain aspects regarding streamlining and economic development opportunities for those rural communities and industries hit hardest by the pandemic and the shift to a renewables economy.

Some of the Trump EOs that President-elect will likely revoke are as follows:

  • E.O. 13792: Review of National Monuments, which directed a review of all national monument designations since the Clinton administration, resulting in the reduction of the Bears Ears National Monument and Grand Staircase Escalante National Monument, among others (Apr. 26, 2017);
  • E.O. 13795: entitled “America First Off-shore Energy Strategy,” which outlined a strategy to increase domestic oil production on federal land and streamline permitting processes. In League of Conservation Voters v. Trump, a federal court in Alaska vacated the portions of the EO that withdrew the US Outer Continental Shelf from leasing protections (Apr. 28, 2017);
  • E.O. 13807: entitled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” which instructed the Council of Environmental Quality to identify actions that would reduce the average time for an environmental review and reduce the length of Environmental Impact Statements (Aug. 15, 2019); and
  • E.O. 13868: entitled “Promoting Energy Infrastructure and Economic Growth,” which aims to speed up energy infrastructure permitting processes (Apr. 10, 2019).

What public lands and wildlife rulemakings may be in jeopardy under the Biden-elect administration?

  • EPA regulation of methane emissions: The Environmental Protection Agency (EPA) finalized a rule in August 2020 that rolled back Obama-era new source performance standards for methane emissions, including volatile organic compounds (VOCs), for oil and gas facilities. The D.C. Circuit issued an administrative stay that temporarily prevents the rule from going into effect. Envt’l. Def. Fund, et al. v. Andrew Wheeler, et al., No. 20-1359 (U.S. App. D.C. 2020). The Biden administration would likely repeal the Trump regulation and attempt to extract itself from the pending litigation. Before taking any new regulatory action, the new administration will likely evaluate recent state regulatory efforts and federal tools for regulating methane and explore methods for incentivizing new technologies and fostering best practices to minimize emissions.
  • Bureau of Land Management (BLM) Waste Prevention Rule: The Obama administration adopted this rule in 2016 to address venting and flaring on public lands, including with regard to increasing royalty payments for leaks and “waste” of oil and gas and by favoring flaring over venting activities. The Trump administration repealed this rule and adopted a replacement rule in 2018, which has been the subject of litigation. A federal court in California vacated the Trump rule. California v. Zinke, No. 4:18-cv-05712 (N.D. Cal.). The new administration will seek to repeal the Trump rule and not maintain an appeal in the California case, but will likely not return to the Obama 2016 rule given that a Wyoming district court recently vacated that rule. Western Energy Alliance, et al. v. Sally Jewell, No. 2:16-CV-0280 (D. Wyo.). Instead, the Biden administration will craft its own, new methane rule to restart the clock.
  • BLM’s Hydraulic Fracking Rule: The Obama administration adopted a hydraulic fracking rule in 2015. The Trump administration repealed this rule and has not adopted a replacement rule. Currently, there is a 9th Circuit appeal regarding the legality of the Trump administration’s repeal of the Obama era rule. California v. BLM, 20-16157 (9th Cir.). Previously, the Wyoming district court ruled against the Obama rule, determining that the BLM did not have the authority to adopt the rule(based on an interpretation of the Safe Drinking Water Act). The 10th Circuit then dismissed the pending and essentially vacated the Wyoming court’s ruling in light of Trump’s repeal of the rule. Wyoming v. Zinke, No. 16-8068 (10th Cir.). The Biden administration will revisit the Obama era hydraulic fracking rule and develop a stronger legal argument to support its interpretation of BLM’s authority under the Federal Land Management and Policy Act (FLPMA) to regulate such activity on public lands. The Biden administration will also attempt to extract itself from the 9th Circuit appeal.
  • Endangered Species Act (ESA) Regulations: The Trump administration revised the ESA regulations to remove the regulatory prohibition against reviewing the economic effects of a listing decision, end the practice of automatically applying endangered species-level protections to threatened species through uniform application of the “4(d) rule,” and require a close causal link between impacts to species and the proposed project. The Trump administration also adopted a new regulation on the definition of critical habitat based on the Weyerhaeuser Supreme Court ruling. The new regulations are being challenged in court. The Biden team will evaluate the best strategy for handling these pending cases and determine if a full repeal or partial amendment is advisable as some of the revisions had been favored by past administrations.
  • Royalty Valuation Rule: The Trump administration repealed the Obama 2016 rule, but this repeal was vacated by a California court. Meanwhile, a Wyoming court enjoined the Obama era rule regarding coal but maintained the oil and gas provisions. Given the Wyoming court ruling, the Biden administration will likely keep the oil and gas valuation regulation in effect but revisit the coal provisions.
  • Interpretation of the Migratory Bird Treaty Act (MBTA): The Trump administration attempted to remove the prohibition against liability for “incidental take” (i.e., accidental harm or killing). However, a district court struck down this interpretation. Nat. Res. Def. Council, Inc. v. U.S. Dep’t of Interior, No. 18-CV-04596-VEC, (S.D.N.Y.) (Aug. 11, 2020). The Biden administration will likely abandon the pending appeal and return to the prior, long-standing interpretation that the MBTA prohibits incidental take. However, the administration may also seek to provide protection for various industries impacted by a return to strict liability under the MBTA by implementing a permit program for those companies that have adopted best practices to minimize harm to migratory birds.

What is the future of fossil fuel development on public lands?

The Biden administration will certainly seek to shift energy development on public lands from fossil fuels to clean energy such as renewables. As part of this effort, expect to see programmatic NEPA reviews to advance solar and wind projects on public lands. The administration would also be wary of permitting new lease sales and would stop all pending land use planning efforts. The new administration will also need to evaluate the impact of the Congressional Review Act resolution that invalidated BLM’s Planning Rule 2.0.

The new administration will also revisit the multi-state sage grouse plans, including development of a strategy to address the pending 9th Circuit appeal arising from the injunction against the Trump plans that revised the Obama-era strategy and invalidated approximately 440 lease sales. Montana Wildlife Fed’n v. Bernhardt, No. 20-35614 (9th Cir.). The Biden administration will also revisit drilling in the Alaska National Wildlife Refuge (ANWR) and the National Petroleum Reserve in Alaska (NPR-A), with the former being the focus of discussions with Congress.

The Trump administration lifted the Obama era moratorium on new coal leasing on public lands and conducted new environmental reviews to open the door for new leasing. Like other reversals, the adequacy of the environmental review is pending in litigation. The Biden administration will not defend the Trump reversal and will likely not authorize new coal leasing on public lands.

Despite these reversals, the Biden administration will need to consider the legal status of valid existing rights to minimize the United States’ risk of takings claims. Other potential areas of focus will be requirements of due diligence on existing leases, outdated automatic renewal terms, and royalty performance issues. The new administration will also reverse the Trump revision of mitigation policies, including requirements of compensatory mitigation.

What about offshore energy development?

Under the Trump administration, the Bureau of Ocean Energy Management (BOEM) rolled-back offshore safety and inspection requirements that were adopted in the aftermath of the Deepwater Horizon oil spill. In addition, the Trump administration considered opening the Atlantic to oil and gas drilling, but retreated from that stance given strong, bipartisan, coastal Governor opposition. Most recently, Trump issued a presidential memorandum that withdrew the Outer Continental Shelf from energy developing along the coasts of North Carolina to Florida.

The Biden administration will seek to increase regulation for offshore activities in the Gulf of Mexico, assess the various Obama withdrawals that Trump reversed which are the subject of litigation, and conduct the next round of the 5-year planning process in the Atlantic, Gulf, Pacific, and Arctic Oceans under the Outer Continental Shelf Lands Act (OCSLA). The new administration will also explore mechanisms for ensuring that fossil fuel development is not feasible in the Outer Continental Shelf except for valid existing leases, namely in the Gulf of Mexico in existing, permitted areas.

The Biden Administration will accelerate the review and permitting of offshore wind projects in the Atlantic, relying upon the extensive NEPA cumulative impacts analysis conducted under the Trump administration. Other areas of focus will be new job creation through such projects, as well as addressing other stakeholder interests such as commercial fisheries and mariner concerns, but with an eye towards launching the first utility scale renewables in the US. These projects will be instrumental in achieving the Biden administration’s clean energy goals.

What is the future fate of the new NEPA regulations under the Biden administration?

The National Environmental Policy Act (NEPA) is applicable to nearly every major decision made by the Department of the Interior involving public lands and waters. The Trump administration’s final NEPA rule contains significant procedural and substantive changes that include reducing the scope of when NEPA applies, removing consideration of cumulative impacts, increasing the use of categorical exclusions, and limiting the breadth of reasonable alternatives. The final regulations have been in effect since September 14, 2020, but their longevity is in question. While some in the regulated industry touted these NEPA revisions as a welcomed change, environmental groups are challenging them in court.

The Biden administration will likely seek to amend the new regulation to ensure the consideration of climate change impacts, the social cost of carbon, and adequacy of environmental protection. In the meantime, it will also seek to apply more rigorous levels of review as a matter of discretion in pending cases such as the Dakota Access pipeline controversy, which involves a project located a half mile north of the Standing Rock Sioux Reservation in North Dakota. The Trump administration reversed the Obama era requests for additional environmental reviews in this matter. The D.C. Circuit recently held oral arguments on the district court’s vacatur of the federal authorizations to proceed with the project. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, -- F. Supp. 3d -- , 2020 WL 3634426 (D.D.C. July 6, 2020). The Biden administration will evaluate the litigation through an environmental justice lens, which will likely lead to a change in the federal government’s position. Other pending cases involving similar claims will likely be re-evaluated.

Despite these reversals in position, in other areas the new administration will be wary of removing streamlining measures that will enable its infrastructure projects to proceed in a timely fashion. For example, BLM may have specific categorical exclusions (CXs) that they wish to update in their regulations and the new regulation will make those additions easier. Indian tribes are also seeking greater streamlining for projects on their lands and welcome the ability to conduct their own reviews to avoid delay and bureaucratic oversight. Interior would also welcome less interference from other federal agencies in the NEPA process.

Please see our published articles for additional details: CEQ's NEPA regulatory overhaul: highlights and predictions and Final NEPA rule and its consequences, which is related, herein, for detailed discussion on the NEPA rule changes.

What kinds of enforcement could we see on public lands issues?

President-elect Biden will bring renewed attention to requiring fossil fuel companies to clean up abandoned mine lands and oil and gas wells, particularly where marginalized, minority communities are adversely impacted. This effort was started at the end of the Obama administration so there is a track record that the new administration will resume.

The Biden administration has also indicated that it will increase coal companies' payments to the black lung benefits program and require public companies to disclose climate-related financial risks and the greenhouse gas emissions in their operations and supply chains.

Will there be a shift to conservation values in public land management?

The Biden administration will seek to implement land conservation measures nationally to achieve the “30 x 30” goal of protecting a third of the world’s landmass by 2030 to combat climate change through carbon sequestration. This priority will encourage the use of conservation easement protections on private and public lands, approaching federal land management from a stewardship perspective, and exercising executive authority to withdraw public lands from conventional energy development. The recently-authorized funding in the Great American Outdoors Act to address $20 billion in deferred maintenance at National Parks and public lands will also be a top priority.

Areas proposed or under consideration for development under the Trump administration, such as the Minnesota Boundary Waters Canoe Area, the Pebble mine in Alaska, and New Mexico’s Chaco Canyon, will be reconsidered under the Biden administration.

In addition, the Biden administration will likely shift the Department of Justice’s defense of President Trump’s decision to significantly reduce a number of national monuments, such as Bears Ears National Monument and Grand Staircase Escalante. Hopi Tribe v. Trump, No. 1:17-cv-02590 (D.D.C.). The new administration will evaluate how to reinstate the prior national monument designations on the premise that President Trump violated the Antiquities Act when he significantly reduced or revoked previously designated national monuments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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