President-elect Joe Biden announced Thursday that he will nominate U.S. Rep. Deb Haaland as Secretary of the Interior. If confirmed, Haaland would be the first Native American to serve in the cabinet.
Haaland, 60, would face pressure from Democratic constituencies to advance policy goals focused on traditional conservation goals and the worsening climate crisis. While many of those policies would return the department to the priorities advanced during the Obama administration, others might draw opposition from natural resources users intent on continuing Trump era permissiveness toward exploitation.
UTAH NATIONAL MONUMENTS
Priorities for the Biden administration should be to reverse the damage done by the Trump administration, according to Alice Madden, executive director of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment at the University of Colorado Law School. Under current Interior secretary David Bernhardt, the department has focused the Interior department on promotion of fossil fuel extraction on public lands and reduction of the federal government’s obligations to consider environmental consequences of natural resources uses and protect wildlife. Overall, the current administration has rolled back 84 federal regulations aimed at protecting air or water quality, public lands and wildlife or limiting toxic chemical releases, according to a Nov. 10 report in The New York Times and, according to the Brookings Institution, 20 more are now underway.
Madden believes it likely that the first rollbacks will include returning Utah’s Grand Staircase-Escalante National Monument to the boundaries first established by President Bill Clinton in 1996 and Bears Ears National Monument — sacred land to native Americans — to the size authorized by President Barack Obama in 2016. According to Biden’s campaign website, he will “work with tribal governments and Congress to protect sacred sites and public lands and waters with high conservation and cultural values.”
Restoration of both national monuments would diminish the significance to the Colorado Plateau of ongoing litigation challenging Trump’s use of the Antiquities Act to reverse a predecessor’s decision to conserve land.
CLIMATE POLICY AND FOSSIL FUELS
During his campaign, Biden has said he would achieve a goal of the U.S. seeing net zero carbon emissions by 2050. To accomplish that, he has said he will impose moratoria on new public land coal, and oil and gas leasing. When it comes to coal, the Department of Interior could halt leasing.
With regard to oil and natural gas, arguments about that authority are likely. Katie Schroder, a partner at Davis Graham & Stubbs, said she believes the Mineral Leasing Act — a 1920 statute intended to encourage fossil fuel exploration — might prevent such a move.
A former Interior solicitor and long-time scholar of natural resources law, John Leshy, disagrees. Leshy, a professor at the University of California-Hastings College of Law, told E&E News in 2015 that the MLA gives Interior discretion. The statute, which says that lands “known or believed to contain oil or gas deposits may be leased by the secretary,” is couched in permissive language. “‘’May’ means ‘may,'” Leshy said, and public lands are available to energy companies only if “the secretary makes them available.”
RESTORING REGULATIONS
Other high priority regulatory moves, Madden said, may well include a re-thinking of a significant loosening of National Environmental Policy Act rules in 2019 and a change of course on Bernhardt’s move to excuse inadvertent killing of birds from penalties under the Migratory Bird Treaty Act. “There are a number of groups who have a long list of rollbacks that need to happen,” she said. “They are important.”
Travis Bruner, conservation director at Grand Canyon Trust, highlighted the importance of revisiting changes to the NEPA regulations that have expanded the use of categorical exemptions from the requirement to complete environmental impact statements and environmental assessments and that have limited opportunities for the public to be involved in decision making.
In southern Utah, he said, “we’ve seen several large piñon juniper removal projects under categorical exclusions, to the tune of hundreds of thousands of acres. Clearcutting piñon juniper on large swaths of land like that is not something that should be done without public involvement.”
Renaud, meanwhile, said his organization is highly keen to see Biden dump Trump’s permissive MBTA rules. That statute, which is among the country’s oldest environmental laws, has “been a very effective law in curbing pollution from industry [that has] a significant impact on all wildlife,” Renaud said. “Birds are a great indicator of how ecosystems are performing.”
Bruner also emphasized that his organization would push the Biden administration to continue a moratorium on uranium mining now in place around Grand Canyon National Park. “There were several attempts under the Trump administration to change that,” he said. Interior under Bernhardt’s leadership has considered designating uranium as a “critical mineral” as a means to encourage quarrying. Bruner expressed hope that Biden and his Interior appointees would push Congress to enact the proposed Grand Canyon Centennial Protection Act, which would permanently extend the uranium extraction ban and which passed the U.S. House of Representatives in Oct. 2019, or extend the 20-year moratorium through administrative action.
One advantage that Biden’s Interior chief may have in any program to restore the regulatory situation to that which existed before Trump took office is that the many of the Trump administration’s regulatory moves have proven to be legally vulnerable. According to an April 2019 report in The Washington Post, more than 60 rule changes have been invalidated by federal courts, which leaves the door open for the Biden administration to revise them to address judicial concerns or to abandon defense of the Trump initiatives under challenge and restore the prior mandates. “Those actions have often been inept,” Madden said. “There’s been numerous lawsuits, many that have been successful, so I think those rollbacks will proceed and some may take longer than others.”
TRIBAL RELATIONS
Yet another priority will be to reinvigorate Washington’s relationship with tribal nations. “We have to restore and advance meaningful consultation with tribes, treating them like the sovereigns that they are,” Madden said, a task that means “settling water rights,” addressing issues of social and environmental justice, and exploring opportunities for “collaborative management of land.”
“Tribes are sovereign governments,” said John Echohawk, executive director of Native American Rights Fund in Boulder. He emphasized the importance of the Bureau of Indian Affairs to Native Americans, pointing out its crucial role in “implementing the government-to-government relationship.” Echohawk thinks that Haaland’s nomination heralds a department with enhanced awareness of tribal concerns.
Echohawk said that “tribes haven’t been very pleased with what’s happened during the Trump administration.” In addition to shrinking Bears Ears National Monument, Interior fended has offended native nations by constructingpipelines across tribal lands without consultation and by participating in Trump’s forceful battle to construct a multibillion-dollar border wall that crosses a tribal cemetery.
The task of improving federal-native relations may be easier for Biden’s team simply because the 45th President will no longer be in office. Under Trump, tribal nations and leaders have developed hardened attitudes, in part because of the president’s actions. Trump has made harsh comments about Native Americans over the course of many years, pejoratively invoked or supported offensive stereotypes by referring to a political opponent as “Pocahontas,” and defended sports teams’ use of names considered offensive.
FOREST MANAGEMENT
Wildfire management is also likely to be an area of concern for the next secretary, who will oversee the Bureau of Land Management, which oversees about 65 million acres of forest land. Record-breaking forest fires have occurred in Colorado and elsewhere in the West during the past several years and mitigating the likelihood of recurrence is thought to be essential to protect the safety of communities and protect wildlife.
Former Colorado U.S. Sen. Hank Brown said he believes it will be vital for Biden’s team to pay more attention to the problem of dead and diseased forest stands. “Interior has a significant portion of land that could benefit by a rethinking of our ‘let it burn’ policy,” he said. “It defies belief that you could have major forest fires across the country on public land and not allow normal measures to prevent forest fires. That involves some harvesting of beetle kill trees, which the previous administration wasn’t able to accomplish. It involves some fire breaks, which 50 years ago were commonplace and people simply forgot good practices. It involves harvesting mature trees instead of burning them up.”
While public land conservation advocates are not likely to support programs aimed at cutting old growth forests, there is consensus that effective measures to control wildfires should gain the next secretary’s attention. “Beetle kill, drought, increasing temperatures made us really susceptible to massive wildfires,” Madden said. “I know the views on how to address that differ, but that’s incredibly important.” A 2014 interagency fire management plan commits Interior and the U.S. Department of Agriculture’s Forest Service to build “fire-adapted communities” and to restore and maintain “fire-adapted ecosystems.” The Cohesive Wildland Fire Management Strategy can therefore be a pillar on which the new administration’s wildfire policies rest.
WILDLIFE
Wildlife management will be in the spotlight, too. Bruner and Joro Walker, general counsel for Western Resource Advocates, emphasized the importance of making progress in establishing migration corridors. “Wildlife corridors have been under threat for years and continue to be both by the development of roads and by logging and mining development,” Bruner said. Walker said her organization will push Interior to increase habitat for fauna by adopting a “30-by-30” program, under which 30% of public land is conserved and connected for wildlife by 2030.
“With wildlife you safeguard a whole host of values, including water quality, air quality, recreation, scenic beauty and the like,” she said. “In order to achieve that, significant protection has to be placed on public lands as well as private land.” Walker explained that, while the Endangered Species Act is a vital tool for protecting wildlife, “it’s also important to protect large ungulate populations by giving them lots of land and making sure their migration corridors and riparian areas within their habitat are largely free of development.”
A 2018 report by the National Wildlife Federation concluded that, for the entirety of American wildlife, an extinction crisis has begun. The study found that as much as one-third of the nation’s wildlife is at risk of disappearing. The Democratic-controlled U.S. House of Representatives passed a wide-ranging bill to address threats to wildlife in July, but it has not been taken up in the Senate.
Another measure now awaiting floor action by the House and that would reverse Trump regulations that weaken the application and enforcement of the Endangered Species Act is also among legislative fixes that environmental advocates hope to see make it to the status of law.
Whatever the merits of those and other legislative initiatives preferred by environmental protection advocates, many of their policy objectives are likely to run into Congressional resistance if the Senate continues to be under Republican control. Brown argued that, while Capitol Hill partisan gridlock may remain entrenched during Biden’s presidency, some needed policy changes for the public lands could still be executed.
Specifically, Brown said he would advocate for land exchanges that would assure more open space near cities. “We have some wonderful places, but we have a need for land for open space in areas near where people live as well,” the former U.S. Representative and U.S. Senator said. “It’s a shame that we haven’t figured out [that] there’s a way to exchange ground where it doesn’t have to be publicly owned and trade it for ground in urban areas where you desperately need the open house,” Brown continued. “That takes place from time to time but it’s one of the ways where you could simply acquire the floodplains. [It] should be an area where both parties find it to their advantage to deal.”
Note: This reporter is acquainted with quoted source Professor John Leshy. He was a student of his between 1988-1991.
This article appears in the Dec. 21 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.