President Biden's proposed American Jobs Plan is intended to bolster the economy and create jobs but would also benefit our public lands and waters. Among other things, the plan calls for funding to put 250,000 people to work in union jobs plugging oil and gas wells and restoring and reclaiming abandoned coal, hardrock, and uranium mines; to invest in small and rural water infrastructure systems; to support USDA resilient forest restoration projects in the west for thinning, prescribed fire, and reforestation efforts; and to address critical water infrastructure needs in Indian Country as well as tribal water settlements. The Department of the Interior applauded the plan, noting that it would "fund Interior initiatives seeking to address the climate crisis, advance environmental justice, honor our nation-to-nation relationship with Tribes, and invest in a clean energy future."
The DOI applauds and stands poised to administer historical levels of relief pursuant to the American Rescue Plan (ARP) legislation that was passed on March 11. Under the ARP, DOI will invest unprecedented resources in Tribal communities including: (1) $900 million for the Bureau of Indian Affairs, which will include direct aid payments to Tribal governments and funding to address concerns related to housing and potable water, and (2) $850 million for the Bureau of Indian Education, which will benefit BIE-funded schools and Tribal colleges and universities. Separately, DOI will also invest $105 million for the Fish and Wildlife Service to address wildlife trafficking, wildlife disease outbreaks, and wildlife inspections, and for research to strengthen early detection, rapid response, and science-based management to address wildlife disease outbreaks before they become pandemics and strengthen capacity for wildlife health monitoring.
On March 15, 2021, the Senate voted to confirm Deb Haaland as Secretary of the Interior. Haaland, confirmed in a 51-40 vote, will serve as the first Native American Cabinet Secretary. Haaland was supported by four Republican Senators—Lisa Murkowski and Dan Sullivan of Alaska, Susan Collins of Maine, and Lindsay Graham of South Carolina. In her new role, Haaland will face the challenging task of conserving and managing our nation’s natural resources and cultural heritage and overseeing multiple Department Bureaus including the Bureau of Indian Affairs, Bureau of Land Management, National Park Service, Fish and Wildlife Service, and more.
On Thursday, March 25, 2021, the Department of the Interior will host a day-long virtual forum to inform its next steps in the review of the federal oil and gas leasing program called for in Executive Order 14008. The forum, which will be livestreamed, will feature panels representing perspectives from industry representatives, labor and environmental justice organizations, natural resource advocates, and other experts. The Department of the Interior is expected to complete an interim report outlining its recommendations "to improve stewardship of public lands and waters, create jobs, and build a just and equitable energy future" early this summer. Interested individuals can register for the forum by completing this registration form and can watch the livestream at www.doi.gov/events. The program will begin with an address from Secretary Deb Haaland followed by presentations from the Bureau of Ocean and Energy Management (BOEM) and the Bureau of Land Management (BLM).
On March 3, 2021, the Animal and Plant Health Inspection Service of the USDA issued a proposed rule to eliminate the Voluntary Trichinae Certification Program. Trichinae are parasites found on swine and other warm-blooded creatures.
On March 2, 2021, the Food Safety and Inspection Service issued a proposed rule to require the following businesses to FSIS in carrying out inspection activities: official meat establishments, poultry establishments, egg production plants, and businesses receiving voluntary FSIS inspections.
On March 3, 2021, acting Interior Secretary, Scott de la Vega issued Secretarial Order No. 3397, which rescinds SO 3369 and SO 3369A1 signed by former Secretary Bernhardt. Order No. 3397 directs all bureaus and offices within the Department to, among other things, "ensure that their scientific-integrity policies ban improper political interference in the conduct of scientific research and in the collection of scientific or technological data" and to "prevent the suppression or distortion of scientific or technological findings, data, information, conclusions, or technical results." The order is intended to "reaffirm and build on the principles identified in President Biden’s Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking."
This became effective February 23, 2021
On February 23, 2021, the White House issued a Statement of Administration Policy endorsing H.R. 803 which, among other things, would permanently protect public lands and waters in Colorado, California, and Washington. The proposed legislation would designate 1.39 million acres of new wilderness and incorporate more than 1,000 river miles into the National Wild and Scenic Rivers System. The Administration’s statement notes that H.R. 803 is consistent with its goal of conserving at least 30 percent of U.S. lands and ocean by 2030.
On February 5, 2021, EPA issued updated frequently asked questions (FAQs) for its Audit Policy Program. The FAQs supersede previously issued guidance for this program and clarify a number of issues, while leaving the fundamental requirements for obtaining civil penalty relief the same as they have been for several administrations.
On February 5, 2021, DOJ’s Environment and Natural Resources Division (ENRD) withdrew a number of policies put into effect during the Trump Administration. Among other things, DOJ withdrew policy documents that curtailed the use of Supplemental Environmental Projects (SEPs) and payments to third parties in DOJ settlements for environmental matters.
On February 11, 2021, Acting Secretary of the Interior, Scott de la Vega, issued Secretarial Order No. 3396, revoking former Secretary Bernhardt’s Secretarial Order No. 3388, which imposed restrictions on the availability of Land and Water Conservation (LWCF) funding for Federal acquisitions of land, water, or interests therein. Through the order, the Biden administration will reinstate the Outdoor Recreation Legacy Partnership (ORLP) program, a $125 billion competitive grant program that provides funding for urban parks.
On February 4 2021, the Natural Resource Conservation Service issued a final rule to implement the 2018 Farm Bill’s changes to the Agricultural Conservation Easement Program (“ACEP”). The final rule made minor changes to the proposed rule issued on January 6, 2021, including, among items, widening acceptable documentation for farmers to be considered “qualified” under ACEP and removing ambiguities relating to deed requirements.
Executive Order on the President’s Council of Advisors on Science and Technology
On January 27, 2021, the White House issued an executive order establishing the President’s Council of Advisors on Science and Technology (PCAST). The order tasks the PCAST with providing advice to the President on scientific matters including, among other things, information needed to inform public policy relating to energy and the environment.
Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking
On January 27, 2021, the White House issued a memorandum to the heads of executive departments and agencies setting forth a series of scientific integrity principles and directing agency and department heads to establish and enforce scientific-integrity policies. This memorandum also requires agencies to review and update, if needed, any website content and agency reports, data or other materials published since January 20, 2017, that are inconsistent with the scientific integrity principles established by the memorandum.
On January 20, 2021, President Biden officially re-committed the United States to the Paris Agreement, a legally binding international treaty aimed at reducing greenhouse gas emissions and combating the impacts of climate change. The Agreement, to which 194 nations are party, endeavors to limit the global mean temperature increase to 1.5 degrees Celsius above pre-industrial times. On August 4, 2017, former President Trump initiated the withdrawal procedure pursuant to Article 28 of the Agreement. The withdrawal was officially submitted to the United Nations Framework Convention on Climate Change on November 4, 2019, and became effective November 3, 2020. By rejoining the Paris Agreement, the United States’ commitments under the treaty now become effective February 19, 2021.
The United States has not submitted a Nationally Determined Contribution (“NDC”) since 2015, when the Obama Administration signed the Agreement. The Agreement requires all parties to submit updates on their emissions reduction efforts every five years. Per the 2015 NDC, the United States committed to reducing emissions 26 to 28% below 2005 levels, by the year 2025.
Chemicals and Contamination
On February 16, 2021, EPA announced that it will refine its approach to selecting and reviewing the scientific studies that are used to inform Toxic Substances Control Act (TSCA) chemical risk evaluations, known as systematic review. This move is part of the new administration’s commitment to making evidence-based decisions and developing policies and programs that are guided by the best available scientific data.
On March 15, 2021, the Biden Administration filed a brief asking the Ninth Circuit to vacate a lower court decision regarding Trump’s Executive Order 13795 and remand to the district court with a direction to dismiss the case. The brief argues that President Biden’s Executive Order 13990, which rescinds Executive Order 13795, renders the case moot. Executive Order 13795 purported to reverse President Obama’s withdrawals of Outer Continental Shelf lands from oil and gas leasing under Outer Continental Shelf Lands Act.
On February 25, 2021, Jennifer M. Granholm was sworn in to lead the U.S. Department of Energy. Prior to her confirmation as Secretary of Energy, Ms. Granholm served on the faculty of the University of California, Berkley as a Distinguished Professor of Practice focusing on the intersection of law, clean energy, manufacturing, policy, and industry. Ms. Granholm also was the first woman elected Governor of Michigan and served two terms in that role from 2003 to 2011.
On February 22, 2021, the Federal Energy Regulatory Commission (“FERC”) announced it will examine the threat that climate change and extreme weather pose to electric reliability in the United States. Specifically, FERC’s new proceeding will review the ways in which grid operators can prepare for and respond to extreme weather events made worse and more frequent by climate change. This announcement comes at the same time FERC and the North American Electric Reliability Corporation (“NERC”) launch a joint inquiry into the operations of the bulk-power system during the severe cold weather spell that ravaged the Midwest and the South in mid-February.
In response to President Biden's January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad, the Bureau of Ocean Energy Management (BOEM) announced its intention to resume the environmental review of Vineyard Wind’s proposed offshore wind project, moving forward with preparation of a Final Environmental Impact Statement. The Vineyard Wind Project proposes to construct and operate an 800 megawatt (MW) wind energy facility offshore Massachusetts.
Section 208 of the January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad directs the Secretary of the Interior to: (1) "Pause" on entering into new oil and natural gas leases on public lands or offshore waters; and (2) review and reconsider Federal oil and gas permitting and leasing practices. The EO directs DOI to complete the review in consultation with Secretary of Agriculture, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, and the Secretary of Energy. The EO also states that, in conducting this analysis, the Secretary of the Interior shall consider whether to adjust royalties associated with oil, gas, and coal extraction.
On January 20, Scott de la Vega, the Acting DOI Secretary appointed by President Biden, issued Secretarial Order 3395, which limits the ability of agencies and bureaus within the Department to take certain delegated actions without authorization from senior officials. The covered actions include, among others, (1) granting rights-of-way, easements, or other conveyances of property (including land sales or exchanges) or any notices to proceed under any prior authorizations that will authorize ground disturbance activities; and (2) issuing any onshore or offshore fossil fuel authorization, including leases, lease amendments, lease extensions, contracts, or other agreements, or permits to drill. The order went into effect immediately and remains in effect for 60 days.
President Biden Issues Executive Order Halting Oil and Gas Leasing in Arctic National Wildlife Refuge, Revoking Keystone Pipeline Permit, and Ordering Review of Agency Actions Contrary to Climate Objectives
On January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The Executive Order imposes a moratorium on all activities of the Federal Government that implement the Coastal Plain Oil and Gas Leasing Program in the Arctic National Wildlife Refuge and revokes the permit issued to TransCanada Keystone Pipeline, L.P. in March 2019 to construct the Keystone XL Pipeline. The Executive Order also requires the heads of agencies to conduct an immediate review of regulations, orders, guidance documents, policies, and other agency actions made during President Trump’s term from 2017 to 2020 to ensure these federal actions do not conflict with national objectives to confront the climate crisis. Among the actions to be reviewed are: (i) “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration; (ii) The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 Fed. Reg. 51310 (September 27, 2019); (iii) Energy Conservation Program for Appliance Standards: Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment,” 85 Fed. Reg. 8626 (February 14, 2020); (iv) National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review,” 85 Fed. Reg. 31286 (May 22, 2020).
On Thursday, January 21, 2021, President Biden named Richard Glick as Chairman of the Federal Energy Regulatory Commission (FERC). President Trump first nominated Mr. Glick to FERC in August 2017. Prior to his nomination in 2017, Mr. Glick was general counsel for the Democrats on the Senate Energy and Natural Resources Committee and previously served as Director of Government Affairs for PPM Energy. He attended George Washington University and Georgetown Law. FERC is expected to maintain a Republican majority until Neil Chatterjee’s term ends in June 2021.
On April 8, 2021, the U.S. Fish and Wildlife Service (FWS) finalized its critical habitat designation for the yellow lance, a freshwater mussel found in North Carolina, Virginia, and Maryland. The yellow lance was listed as threatened in 2018 following population declines due to habitat loss and degradation. FWS has designated eleven critical habitat units totaling 319 river miles. The units are located in the Patuxent, Rappahannock, York, James, Chowan, Tar and Neuse River Basins in North Carolina, Virginia and Maryland.
On April 7, 2021, the U.S. Fish and Wildlife Service (FWS) issued a proposal to list the Suwanee Alligator Snapping Turtle (Macrochelys suwanniensis) as threatened under the Endangered Species Act. According to FWS, factors affecting the species' viability include illegal harvest, drowning as a result of bycatch from recreational and commercial fishing, hook ingestion, habitat alteration, and nest predation. FWS is proposing a 4(d) rule to tailor protections to support the species' specific needs. FWS will accept comments on the proposed rule until June 7, 2021.
On March 31, 2021, the U.S. Fish and Wildlife Service (FWS) issued a Five-Year Status Review report recommending that the grizzly bear should continue to be listed as threatened under the Endangered Species Act (ESA). FWS found that "considerable challenges remain to fully recover the grizzly bear in the lower-48 states" including "limited habitat connectivity, management of access by motorized vehicles, human-caused mortality and uncertainty surrounding future conservation efforts in some ecosystems." While FWS acknowledged in a press release that "grizzly bear populations in the Northern Continental Divide and Greater Yellowstone ecosystems are biologically recovered," it explained that the species must be evaluated as a whole because the grizzly bear is "listed under the ESA as a single entity in the lower-48 states."
States Challenge Moratorium on New Oil and Gas Leasing on Federal Lands and Waters
On March 24, 2021, a group of thirteen states filed suit in the Western District of Louisiana challenging President Biden's Executive Order 14008, which halts new oil and gas leasing on federal lands and waters. The group of states includes Louisiana, Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Texas, Utah, and West Virginia. The states assert that the moratorium is arbitrary and capricious under the APA and violates the Outer Continental Shelf Lands Act (OCSLA) and the Mineral Leasing Act (MLA). The State of Wyoming filed a separate suit in the U.S. District Court for the District of Wyoming claiming that the "de facto moratorium" violates the MLA, Federal Land Policy Management Act (FLPMA), Resource Management Plans applicable to federal lands, the Administrative Procedure Act (APA), and the National Environmental Policy Act (NEPA).
On March 1, 2021, the Department of the Interior announced that it will invest more than $260 million for states and Tribes to support reclamation efforts in fiscal year 2021. More than $152 million is available through the Surface Mining Control and Reclamation Act’s (SMCRA) Abandoned Mine Land (AML) grant program, which funds projects close dangerous mine shafts, reclaim unstable slopes, improve water quality by treating acid mine drainage, and restore water supplies damaged by mining. In addition, $115 million will be disbursed through the Abandoned Mine Land Economic Revitalization (AMLER) grant program. The AMLER program provides grants to the six states and three Tribes with the greatest amount of unfunded abandoned mine land problems for projects that leverage mine land reclamation with local economic development. The investment will support the Biden-Harris administration’s commitment to help stabilize communities most affected by reduced demand for coal energy.
On February 9, 2021, the U.S. Fish and Wildlife Service (USFWS) published a notice in the Federal Register delaying the effective date of its proposed Migratory Bird Treaty Act (MBTA) rule, which was published on January 7, 2021. The rule was originally set to take effect on February 8, 2021, but USFWS is delaying the rule's effective date until March 8, 2021. The agency is also seeking comments, among other things, on "whether the rule should be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect." Comments may be submitted until March 1, 2021.
On Wednesday, January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The Executive Order requires the Secretary of the Interior to conduct a review of the boundaries and conditions established by previous presidential proclamations pertaining to the Bears Ears National Monument, the Grand Staircase-Escalante National Monument, and the Northeast Canyons and Seamounts Marine National Monument. The Secretary has 60 days to submit a report to the President summarizing its findings.
On February 22, 2021, EPA took action on two fronts to address per- and polyfluoroalkyl substances (PFAS) in drinking water. EPA reissued final determinations to regulate PFOS and PFOA, two members of the broader PFAS family of emerging contaminants. These determinations are an initial step in the process of implementing nationwide primary drinking water regulations for these contaminants and paves the way for the consideration of additional PFAS compounds.
On February 22, 2021, EPA proposed its most recent Unregulated Contaminant Monitoring Rule (UCMR). Under the Safe Drinking Water Act, EPA is required to issue a UCMR every five years. The UCMR is a list of unregulated contaminants for which public water systems are required to sample pursuant to the Safe Drinking Water Act. The proposed list includes 30 contaminants, 29 of which are members of the PFAS family of compounds. The proposed UCMR would provide new data to help EPA and other stakeholders understand the extent to which these contaminants are present in the nation’s drinking water system.
On his first day in office, President Biden directed EPA and the Department of Defense (Army Corps of Engineers) to review the Trump Administration’s Navigable Waters Protection Rule. Promulgated in April 2020, the Rule replaced the Obama Administration’s Clean Water Rule and significantly narrowed the scope of federal jurisdiction under the Clean Water Act.