Encouraging Federal-State Partnership Key
Author
Doug Wheeler - Hogan Lovells US LLP
Hogan Lovells US LLP
Current Issue
Issue
3
Parent Article

As Richard Nixon developed an ambitious environmental agenda after becoming president in 1969, he thought, also, of the need for reorganization of the executive branch to address emerging issues of air and water pollution, land use, and natural resource management. In The Morning After Earth Day, Mary Graham concurs that “these newly prominent issues confound the normal workings of government.” To correct these institutional deficiencies, the incoming president sought advice of his transition team and an Advisory Council on Executive Reorganization.

The transition team had initially recommended a new Department of Environment and Natural Resources. But the advisory council demurred, and proposed instead the establishment of an Environmental Protection Agency and a Department of Natural Resources, to consist of four divisions: land and recreation; water resources; energy and mineral resources; and oceanic, atmospheric, and earth sciences.

EPA was promptly established, but like earlier attempts to reshape the Department of the Interior by Presidents Franklin Roosevelt, Herbert Hoover, and Lyndon Johnson, the Nixon proposal for Natural Resources fell on deaf ears, occasioned by the entrenched iron triangle of Congress, interested constituencies, and civil servants in its defense of the status quo.

Secretary of the Interior Ryan Zinke is similarly interested in transformation of his department, in order to provide — he says — more efficient service to its diverse constituencies, a closer connection to the resources for which it is responsible, and cost savings. Although he has not yet proposed to assimilate natural resource agencies from other departments, possibly including NOAA and the Forest Service, Zinke has proposed to establish 13 “joint management areas” based on the natural delineation of ecosystems, watersheds, and landscapes. The admirable intent is to foster closer working relationships among disparate DOI agencies with responsibilities for the management of a shared resource, presumably reducing conflict and promoting effective cooperation within a designated resource area.

This realignment would be an important step in the right direction, long sought by conservation biologists and others who argue persuasively that the current array of agencies along state and regional boundaries does not correspond to the dictates of effective ecosystem management. So far so good. But, predictably, those who fear the effects of this reconfiguration, including state governments, have objected to the Zinke plan. By disrupting the old order, they suggest, the secretary’s proposal would sever well-established relationships with federal officials, and make access to the department more difficult. In response to these concerns, Zinke appears to have abandoned his preference for ecosystem boundaries. If so, he has relinquished the most compelling argument for an internal reorganization of the department.

The states are understandably concerned about any plan for reorganization which would impede, rather than facilitate, increased cooperation with the federal government on issues of resource management within their boundaries. But believing strongly in the benefit of such cooperation as a result of long experience at the Department of the Interior and as a state resource official in California, I am convinced that state boundaries and the physical location of regional offices are not nearly so important as a mutual commitment to open communication and effective collaboration.

Upon arriving in Sacramento to serve as Governor Pete Wilson’s secretary for resources, I quickly became aware that we could not tackle the state’s pressing resource issues without the active cooperation of our federal counterparts. California has its own endangered species act, state park system, historic preservation program, water resources department, and procedural mandates. It made no sense to administer redundant programs if, by sharing resources and expertise with agencies of the Department of the Interior, we could achieve better resource outcomes at lower cost.

Thus, with the cooperation of secretaries of the interior in Republican and Democratic administrations, we were able to merge the management of state and national redwood parks; to develop an ESA-compliant Natural Communities Conservation Program; to create a California Biodiversity Council and to design a CalFed Bay-Delta Program, among other joint initiatives, all of which are more effective than if they had been attempted by the participating state or federal agencies alone. Today, such federal-state joint ventures, usually with private sector partners, are commonplace in other states and regions, including the 10-state sage grouse initiative, the five-state Range Wide Plan for management of lesser prairie chicken habitat, and the Pecos Watershed Conservation Initiative in Texas and New Mexico.

If Secretary Zinke encounters continued opposition to his reorganization plans, as did his predecessors, he would be well-advised to pursue instead a virtual restructuring of the department, in which its agencies and employees are encouraged to seek common ground with their counterparts in state and local government and the private sector. They are — after all — only a phone call or e-mail message away.

Doug Wheeler is senior counsel with Hogan Lovells US LLP in Washington. His 49-year career in conservation, historic preservation, and natural resource management has included senior assignments at the U.S. Department of the Interior and the California Resources Agency.

Don’t Just Shuffle Offices: Give Local Officials Teeth
Author
Peter Schaumberg - Beveridge & Diamond, P.C.
Beveridge & Diamond, P.C.
Current Issue
Issue
3
Parent Article

Secretary Ryan Zinke’s conceptual reorganization proposals inspire cautious optimism, but to be successful the plans need teeth to achieve the presumptive goal: more timely and efficient decisionmaking.

The secretary of the interior must reconcile multiple, often competing, and sometimes mutually exclusive responsibilities when facilitating resource development on public lands. These may range from a large-scale oil-and-gas project, or a plan for development of other leasable minerals, or hardrock claims located under the Mining Law.

Such projects are at the intersection of the secretary’s multiple-use mandates, responsibilities under the Endangered Species Act, statutory obligations to protect the nation’s parks and wildlife refuges, and trust responsibility to manage resources for the benefit of Native Americans. Layered on these competing demands are the external interests of other federal resource agencies, including the Army Corps of Engineers, and the Forest Service.

DOI organizational changes are not new. Following Deepwater Horizon, Secretary Ken Salazar reorganized the former Minerals Management Service into (forgive the acronyms) BOEM, BSEE, and ONRR, with the last, revenue-collection office reassigned under the assistant secretary for policy, management, and budget. MMS was itself created by the stroke of the secretary’s pen in the early 1980s. But the mixed results of these efforts caution that not all organizational reform reduces inefficiency and confusion.

The Bureau of Land Management has seen more modest organizational changes over the years. In response to the Energy Policy Act of 2005, the department began co-locating staff from BLM and other federal agencies to minimize duplication of effort in environmental reviews and expedite decisions. Congress further mandated inter-agency collaboration under the FAST Act of 2015 to facilitate energy and infrastructure projects, including on federally managed lands.

While these efforts sometimes succeeded in shortening environmental reviews, benefits have been limited, even where only DOI bureaus were involved. For example, if BLM is primarily responsible for completing an environmental impact statement for a major project, but Fish and Wildlife Service biologists are dilatory in completing ESA consultation, BLM lacks supervisory authority over the co-located FWS personnel to avoid protracted decisionmaking delays.

DOI surely would benefit from further organizational efficiencies to reduce longstanding problems stemming from fragmented and slow decisionmaking. As an example, BLM often has several district offices within a single state office, with multiple field offices within each district. As operators on public lands have long experienced, this multiplicity of responsibilities results in inconsistent application of policies and regulations within even a single state. But simply eliminating state offices will not resolve these problems.

The secretary has created a stir in Congress and among the states by suggesting eco-regional administrative boundaries for new DOI offices in the West. This would parallel the administrative boundaries of certain Interior and other agencies, and is attractive from a planning or high-level resource-management perspective. But reducing the role of state-level players could frustrate decisionmaking that is responsive to the needs of the people who most use federally managed natural resources.

States currently play a significant role in determining how such resources within their borders are allocated and used. They also have a direct stake — via royalties and other economic benefits of development — in just how the federal resources within their boundaries are utilized. States are justifiably concerned that creating multi-state eco-regional decisionmaking bodies superior to state offices would upset the existing balance.

The secretary is also considering moving BLM and other bureau headquarters to the western states. Moving DOI senior managers closer to the public lands they oversee has merit, but presents a somewhat converse risk of making management of nationally owned lands too localized. Because policy governing federally managed lands historically emanates from Washington, those relocated managers risk being cut off from national policy discussion and perspective, even as they are expected to implement Washington’s policies on the ground.

Whether these physical moves occur or the current structure is just tweaked, the secretary should ensure that regional or local managers remain closely involved in the formulation of agency policy and, more importantly, are vested with the authority to require that co-located representatives of all DOI agencies are held accountable for timely implementation of their respective responsibilities.

Reorganization holds the promise for beneficial change. But it will take more than simply reshuffling office locations to facilitate timely actions relating to development of the nation’s mineral and other resources. While expediency is the end goal, the department and Congress should assess the pros and cons of any reorganization plan slowly and thoughtfully.

Peter Schaumberg spent 25 years in DOI’s Office of the Solicitor, where he was responsible for providing legal advice to the minerals programs of the BLM, MMS, and other agencies. He currently is a principal in the Washington, D.C., office of Beveridge & Diamond, P.C.

Interior Needs to Foster “Value-Creating Networks”
Author
Lynn Scarlett - The Nature Conservancy
The Nature Conservancy
Current Issue
Issue
3
Parent Article

Federal land management has been a saga of tensions at the delicate interface of people and places. The Department of the Interior’s mission lies at this confluence, with its tensions and the challenges and opportunities they beget. Should snowmobiles traverse Yellowstone? Where might ranchers graze their cattle? Or where might we find energy to warm our houses? And who should decide?

The Interior Department makes these decisions amid a tapestry of rights and responsibilities on lands comprising some 500 million acres and increasingly involving landscape-scale issues. Fire, water, species protection, and energy production all present challenges that extend beyond lines on a map or ownership patterns and have deepened the impetus for collaboration across agencies and with the private sector.

Thus, a central question for the department is how to collaborate across boundaries and among agencies. And how managers might strengthen the voices of communities amid varying priorities, preferences, and perceptions.

These questions have prompted secretaries over three decades to try to improve coordination, enhance efficiency, operate at relevant scales of action, and strengthen participatory processes. The Clinton administration configured some decisions around watersheds. The George W. Bush administration highlighted “Cooperative Conservation,” strengthening the role of collaboration and co-locating bureaus. Obama established Landscape Conservation Cooperatives comprising multiple agencies, tribes, and others to develop shared goals and relevant science around large-landscape issues.

And, now, we have another effort. Shortly after his confirmation, Secretary Ryan Zinke pressed for a major reorganization of the 70,000-person department. He sought to hold people accountable, improve permitting efficiency, and enhance collaboration across the department’s multiple bureaus at some 2,400 locations.

These management goals ring familiar. They mirror qualities heralded in public administration primers and sought after by various secretaries as they strived to better fulfill the department’s mission involving competing goals that often arouse strong passions among diverse constituents.

As Secretary Zinke strives to advance this reorganization, three points merit emphasis.

First, the challenges of coordination are real, but overstated. Through grassroots and Interior initiatives, the past couple decades have seen new forms of governance characterized by networks, collaboration, and partnerships. It is easy to recall the Bundy episodes and imagine these deep tensions are the norm, while forgetting the inspiring federal, tribal, state, local, public, and private partnerships advancing economic and environmental outcomes in efforts like the Blackfoot Challenge in Montana and others. These efforts have emerged organically, tailored to needs, with Interior agencies serving as boots-on-the-ground partners.

Second, I am reminded of economist Thomas Sowell’s quip that “there are no solutions; there are only trade-offs.” Good management is a balancing act among attributes often in tension: a desire for innovation versus consistency; decentralization versus uniformity and decision discipline; or efficiency versus community building.

MITRE Corporation observes that “a first instinct may be to believe . . . that moving organizational ‘boxes and lines’ will create improved results. But . . . structure is only one component of a complex organizational system.” These components include performance measures, incentive systems, decision processes — mechanisms that improve knowledge sharing and collaboration.

Third, reorganization is not free. Political costs, practical costs, and “people” costs accompany reorganizations. And there are dollar costs. Estimates of long-term costs for reorganization as envisioned by Secretary Zinke have ranged as high as $1 billion.

Successful management improvements hinge on having clear goals, good information about current structures and processes, and an assessment of management options and what trade-offs accompany them. These are not idle questions. McKinsey & Company research reveals that fewer than 25 percent of restructuring efforts succeed.

Zinke describes a Washington-centric organization. But is that so? Some 6,500 of Interior employees (less than 10 percent) work in the capital area. Many more work in dispersed field locations. He has also described a department top-heavy with senior management, which he would replace with junior employees. Yet just 300, or less than .5 percent, are within the ranks of the Senior Executive Service. And zeroing in on grade levels may be the wrong focus. What Interior needs are skillsets in systems-thinking, collaboration, and the ability to nurture what management expert Gary Hamel calls “value-creating networks.” These skills often spring from years of employee experiences addressing complex problems involving people with many perspectives. Interior needs people with these decades of experience.

Don’t get me wrong — there is always room for management improvements. Landscape-level problems require agency coordination at scales commensurate with those problems. But restructuring can bring high costs and fail to deliver the decision processes, people development, and tools needed for Hamel’s networks.

The Nature Conservancy’s Lynn Scarlett served as deputy secretary of the interior in the George W. Bush administration.

A Little Historical Perspective on Interior’s Mission
Author
Patti Limerick - University of Colorado Center of the American West
University of Colorado Center of the American West
Current Issue
Issue
3
Parent Article

I write to offer my personal gratitude to Ryan Zinke but also to propose an improbable premise that initially will make little sense but then will evolve into persuasiveness; to suggest an essential next step that, if Secretary Zinke takes it, will go a long way toward making my premise carry force; to provide a glimpse of the bigger picture that historical perspective can provide; and to make a case for consultation with historians as the activation of an advance warning system for ironic outcomes.

First, the gratitude. As a citizen who watches the Department of the Interior with the intense interest that better-adjusted Americans reserve for sports teams, I am now unmistakably in the secretary’s debt. With his reorganization plan, he has dispelled the boredom and ennui that usually set in at the first mention of the word bureaucracy. His proposal has stirred up a lively round of public deliberation on Interior’s mission and structure, and the prospects for engaging my fellow citizens in energetic conversation are correspondingly enhanced.

Second, the improbable premise. In a nation fragmented by specialization as much as by polarization, contemplating Interior’s agglomeration of agencies with wildly disparate missions offers a wondrous opportunity to find — and embrace — alternatives to the shouting matches that dominate civic discussion in 2018.

Third, Zinke’s essential next step. To permit that cheerful premise to gear up for action, the secretary must invite historians to play a central role in the process of deliberation that he has initiated. His frequently expressed admiration for Theodore Roosevelt and for the explorer John Wesley Powell provides compelling evidence that he is predisposed to accept my suggestion.

Fourth, if we aim historical perspective at Interior, the first recognition to appear is a very positive one: the lands and natural resources under the management of agencies located in the department represent a great legacy given to the Americans of the present by the Americans of the past. The second recognition is less heartening: this magnificent inheritance comes in the same package with the unwieldy administrative entity called the Department of the Interior.

Interior’s agencies make an exact match to an under-utilized term of organizational analysis: they constitute a “hodgepodge,” or, as Merriam-Webster defines the term, “a heterogeneous mixture.” When Zinke rode on horseback to his first day at work, he did indeed dismount into a heterogeneous mixture of agencies and bureaus.

Newly arrived secretaries instantly find themselves charged with overseeing everything from the National Park Service’s trails and wildlife to Reclamation’s dams and reservoirs, from the U.S. Geological Survey’s sensitive studies of climate change to the Bureau of Land Management’s leases for subsurface (onshore and offshore) oil and gas development.

Thus, historical perspective and the secretary’s viewpoint at least momentarily coincide: his proposal for reorganizing Interior responds to a genuine dilemma presented by our inheritance from our predecessors on the planet. It is perfectly natural for a secretary to exclaim, “How can anyone possibly expect me to manage such a hodgepodge?”

In the 20th century, the implementation of conservation practices in Interior’s land management agencies had to proceed while responding to two contrasting frameworks of strong opinion. Believers in what we will call “the romance of local control” endorsed the superior wisdom, legitimacy, and moral right of the people who lived in proximity to — and made some share of their living from — the lands under federal management. By contrast, believers in the “romance of centralized expertise” championed, with an equal intensity of righteous sentiment, the superior expertise and greater claim on scientifically based authority held by appointed officials, often stationed in offices distant from those lands.

And so, when Zinke put forward his proposal to reorganize Interior, he offered an affirmation of the fact that these two systems of belief constantly compete for the attention and loyalty of Interior’s leadership.

Fifth, a case for embracing the historian’s gift for sensing ironic outcomes on the horizon. Contemplating Zinke’s vision for reorganization, the historians’ advance warning system for unintended consequences beeps with some urgency on two counts.

Pursuing the theoretical goal of recognizing and respecting local variations, the current plan seems headed toward a one-size-fits-all prescription for the creation of regional administrative units. And aimed at goals of efficiency, economizing, and streamlining, the plan seems much more likely to direct time and attention to the production of memos and directives, preparations for testimony to congressional committees, and the crafting of responses to litigation, not to mention expenses and expenditures that will achieve an elevation that dwarfs the mountains of Interior’s landscapes.

Hanging out with historians could reduce these risks significantly. And here’s the best news of all: we cost dramatically less than management consultants.

Usually, we are just flattered to be asked.

Patty Limerick is the faculty director and chair of the board of the Center of the American West at the University of Colorado, where she is also a professor of history.

A Proposal Meant to Hamstring Agency Function
Author
Amanda Leiter - American University
American University
Current Issue
Issue
3
Parent Article

Reorganizing the Department of the Interior is a perennialproject for new administrations, likely due to the department’s size and reach. DOI manages over 400 million acres of land, employs over 70,000 people, and houses 11 separate bureaus that work on issues of almost unimaginable breadth, from protecting endangered species, to managing national parks, to leasing mineral resources, to overseeing 183 tribal schools.

The latest reorganization effort is Secretary Ryan Zinke’s proposal to separate DOI into 13 newly designated “unified regions.” Like past proposals, this plan would generate winners and losers, and has received mixed reviews from employees, regulated entities, and interest groups. In two respects, however, the current plan is far worse than its predecessors: the process of and context for proposal development make clear that this administration has no real intention of improving DOI structure and function but instead hopes to sow confusion, destabilize the department, and encourage staff departures.

According to DOI’s cursory explanation, the proposed reorganization will respond to certain “organizational challenges,” including curtailing “unnecessary bureaucracy.” Under the proposal, DOI will assign staff from all bureaus to the 13 unified regions. Apparently, regional chains of command will be defined by geography not subject matter, thereby advancing three goals: greater bureau cooperation; increased regional influence; and reduced political oversight.

The proposal is short on details, but two significant flaws nevertheless stand out. The first relates to the process of proposal development. Unlike past reorganization efforts, this proposal does not implement a suggestion from an outside evaluator, like a congressional oversight committee or an independent commission. Rather, this proposal seemingly originated with political appointees who are new to DOI and unfamiliar with its structure.

That unfamiliarity is concerning because DOI’s unwieldy structure represents a deliberate compromise among competing goals. Aspects of that structure already advance the three goals identified in the proposal (improving bureau cooperation; increasing regional influence; and reducing political oversight), but other structural elements promote contrasting goals, including reducing conflicts of interest, establishing checks and balances, promoting democratic accountability, and mitigating capture.

To take just a few examples, existing laws and regulations already require that multiple bureaus approve significant land management decisions, thereby ensuring bureau cooperation. On the other hand, DOI divides certain incompatible functions (like mineral leasing, risk reduction, and royalty collection) into separate bureaus. This division, and the balance of power among the resulting bureaus, ensures that each function gets proper attention, but no single function can overreach.

With respect to regional influence, many bureaus assign field staff to their Washington offices on short-term details to share their perspectives, and some bureaus also employ regional councils to advise on resource management. On the other hand, big decisions must still be made in Washington, to guarantee that DOI remains responsive to presidential priorities, and to mitigate the risk that a regional office will make decisions that benefit local constituencies at the expense of the broader public.

The proposed reorganization includes no details about whether and how DOI intends to maintain these existing structural protections. At best, therefore, the proposal offers a drastic and expensive solution to a non-problem. At worst, it threatens to destabilize the existing power balance among bureaus, and between regions and headquarters, in favor of an ill-defined, untested, and one-sided new structure.

The second flaw concerns the context for proposal development. The proposal comes on the heels of personnel and administrative actions that have alienated DOI’s dedicated career staff. Over the last year, Zinke has involuntarily reassigned over 50 senior employees, sometimes to areas outside their expertise. Moreover, as he explained to Congress, he plans to use reassignments to reduce full-time staff (presumably through resignations). In addition, DOI suspended the activities of about 200 advisory panels — the very panels that formerly brought a regional perspective to resource management decisions. Finally, in September, Zinke publicly accused one-third of his staff of disloyalty “to the flag” and promised “huge” restructuring.

In this context, any effort to move or reassign large numbers of people must be viewed with suspicion and interpreted not as an effort to improve agency function but as a strategy to encourage departures. In short, this context reveals the reorganization proposal for what it really is: an effort to disrupt chains of command, and to shift career personnel from jobs they have done well for years to locations and into roles where they will be less comfortable and less expert, and hence more likely to leave DOI. If that is the secretary’s true aim, then this proposal may well succeed — but success will come at great cost to DOI’s effectiveness and, in turn, to tribal interests and to America’s precious cultural, mineral, wildlife, wilderness, and open space resources.

Amanda Leiter is professor of law at American University. She served as deputy assistant secretary of the interior for land and minerals in the Obama administration.

The Zinke Plan Misses the Mark
Author
David J. Hayes - NYU Law School State Energy & Environmental Impact Center
NYU Law School State Energy & Environmental Impact Center
Current Issue
Issue
3
Parent Article

Political leaders find the prospect of reorganizing complex governmental organizations seductive. Surely, the argument goes, reorganizations can break down silos and enable agencies to be better aligned toward common goals. And what better place than the Interior Department, which includes nearly a dozen large, distinct agencies that have complex missions that sometimes don’t line up together.

From the beginning of his tenure, Secretary Zinke has talked about undertaking a reorganization of Interior. I was interested in hearing what he had in mind, having developed some perspectives during my two tours of duty as the deputy secretary of the sprawling department and its 70,000 employees.

Despite the hype, much still remains unknown about the secretary’s plans. With the exception of one bright spot — Zinke’s proposal to establish a common regional structure for all of the department’s bureaus — it is difficult not to be disappointed in what remains a largely ill-defined plan to meet unclear goals.

The concept of co-locating major regional offices in hub cities, and adopting common regional boundaries for all of Interior’s bureaus, is a good one. The department works better when its bureaus have more opportunities to interact with each other, particularly at the regional level, where the vast majority of Interior’s resources are allocated and difficult problems are addressed and solved.

But there is little else to commend the plan. The notion that a single, rotating regional head from one bureau should have decisionmaking authority over other bureaus in contested, multi-bureau squabbles is a recipe for disaster. Regional officials need to work together better, and co-locating them is a good start. Setting up a Russian roulette system that gives one bureau authority over others in resolving interagency disputes, however, is sure to exacerbate infighting.

Simply put, conflicts will not be effectively resolved by randomly empowering one bureau over others. On many tough issues, Interior’s bureaus have shown that when guided by the department’s common, unifying mission and purpose, they eagerly work together toward that end. In my experience, the department’s workforce is extraordinarily dedicated to, and proud of, Interior’s goal of conservation, prudent use of our nation’s natural resources, and honoring and protecting our historic and cultural resources.

On the other hand, divisive dictates from the top that depart from Interior’s core mission and value system drive wedges within the department that no reorganization plan can overcome. Zinke’s full-throated push to achieve energy “dominance” by expanding fossil fuel development on public lands and in offshore waters, and his political team’s efforts to ignore, or outright deny, the climate change impacts that already are profoundly impacting every corner of the department’s vast physical and scientific dominion, illustrate the point.

On a brighter note, here are better reorganization ideas that future, less divisive administrations might pursue.

A future secretary, for example, could accelerate the sharing, and leveraging, of land management functions and expertise that are now stove-piped in three major land management agencies in Interior (the Bureau of Land Management, the National Park System, and the Fish and Wildlife refuge system), and one at the Department of Agriculture (the Forest Service). Why not extend, for example, NPS’s extraordinary talent at welcoming visitors to other land management agencies that are underserving Americans who crave more outdoor experiences?

Similarly, as President Obama pointed out in a State of the Union address, it makes no sense that two agencies in two different departments (FWS at Interior, and NOAA at Commerce) co-regulate endangered and threatened species.

Also, climate change impacts are challenging land, water and wildlife managers across the entire span of Interior. There is no playbook for how best to discharge stewardship responsibilities in the face of extended droughts, elongated and more intense wildfire seasons, the spread of invasive species, sea rise and storm surge impacts on coastal resources, and changing wildlife patterns. So wouldn’t it make sense to aggressively explore more collaborative science and management responses across agency lines to systematically analyze and address these new and already-present threats?

Hopefully, a future secretary and Congress will have an appetite to pursue these ideas, and more. While they are at it, they might take a cue from former Republican and Democratic secretaries who urged that Interior be renamed to reinforce its mission area, by calling it the Department of Conservation, the Department of Energy and Natural Resources or, my preference: the Department of Natural and Cultural Resources.

So there is a lot to discuss when it comes to a potential reorganization. But like so many tough issues addressed in the department, a successful outcome depends on dispassionate, inclusive analysis undertaken by knowledgeable, nonpartisan champions of Interior’s mission, complemented by congressional input and broad public engagement.

Perhaps Secretary Zinke’s plan will provide the spark to pull together such an effort. I will be the first to thank him, if it does.

Political leaders find the prospect of reorganizing complex governmental organizations seductive. Surely, the argument goes, reorganizations can break down silos and enable agencies to be better aligned toward common goals. And what better place than the Interior Department, which includes nearly a dozen large, distinct agencies that have complex missions that sometimes don’t line up together.

From the beginning of his tenure, Secretary Zinke has talked about undertaking a reorganization of Interior. I was interested in hearing what he had in mind, having developed some perspectives during my two tours of duty as the deputy secretary of the sprawling department and its 70,000 employees.

Despite the hype, much still remains unknown about the secretary’s plans. With the exception of one bright spot — Zinke’s proposal to establish a common regional structure for all of the department’s bureaus — it is difficult not to be disappointed in what remains a largely ill-defined plan to meet unclear goals.

The concept of co-locating major regional offices in hub cities, and adopting common regional boundaries for all of Interior’s bureaus, is a good one. The department works better when its bureaus have more opportunities to interact with each other, particularly at the regional level, where the vast majority of Interior’s resources are allocated and difficult problems are addressed and solved.

But there is little else to commend the plan. The notion that a single, rotating regional head from one bureau should have decisionmaking authority over other bureaus in contested, multi-bureau squabbles is a recipe for disaster. Regional officials need to work together better, and co-locating them is a good start. Setting up a Russian roulette system that gives one bureau authority over others in resolving interagency disputes, however, is sure to exacerbate infighting.

Simply put, conflicts will not be effectively resolved by randomly empowering one bureau over others. On many tough issues, Interior’s bureaus have shown that when guided by the department’s common, unifying mission and purpose, they eagerly work together toward that end. In my experience, the department’s workforce is extraordinarily dedicated to, and proud of, Interior’s goal of conservation, prudent use of our nation’s natural resources, and honoring and protecting our historic and cultural resources.

On the other hand, divisive dictates from the top that depart from Interior’s core mission and value system drive wedges within the department that no reorganization plan can overcome. Zinke’s full-throated push to achieve energy “dominance” by expanding fossil fuel development on public lands and in offshore waters, and his political team’s efforts to ignore, or outright deny, the climate change impacts that already are profoundly impacting every corner of the department’s vast physical and scientific dominion, illustrate the point.

On a brighter note, here are better reorganization ideas that future, less divisive administrations might pursue.

A future secretary, for example, could accelerate the sharing, and leveraging, of land management functions and expertise that are now stove-piped in three major land management agencies in Interior (the Bureau of Land Management, the National Park System, and the Fish and Wildlife refuge system), and one at the Department of Agriculture (the Forest Service). Why not extend, for example, NPS’s extraordinary talent at welcoming visitors to other land management agencies that are underserving Americans who crave more outdoor experiences?

Similarly, as President Obama pointed out in a State of the Union address, it makes no sense that two agencies in two different departments (FWS at Interior, and NOAA at Commerce) co-regulate endangered and threatened species.

Also, climate change impacts are challenging land, water and wildlife managers across the entire span of Interior. There is no playbook for how best to discharge stewardship responsibilities in the face of extended droughts, elongated and more intense wildfire seasons, the spread of invasive species, sea rise and storm surge impacts on coastal resources, and changing wildlife patterns. So wouldn’t it make sense to aggressively explore more collaborative science and management responses across agency lines to systematically analyze and address these new and already-present threats?

Hopefully, a future secretary and Congress will have an appetite to pursue these ideas, and more. While they are at it, they might take a cue from former Republican and Democratic secretaries who urged that Interior be renamed to reinforce its mission area, by calling it the Department of Conservation, the Department of Energy and Natural Resources or, my preference: the Department of Natural and Cultural Resources.

So there is a lot to discuss when it comes to a potential reorganization. But like so many tough issues addressed in the department, a successful outcome depends on dispassionate, inclusive analysis undertaken by knowledgeable, nonpartisan champions of Interior’s mission, complemented by congressional input and broad public engagement.

Perhaps Secretary Zinke’s plan will provide the spark to pull together such an effort. I will be the first to thank him, if it does.

David J. Hayes is executive director of the State Energy & Environmental Impact Center at New York University School of Law. He was deputy secretary of the interior in the Clinton and Obama administrations.

 is executive director of the State Energy & Environmental Impact Center at New York University School of Law. He was deputy secretary of the interior in the Clinton and Obama administrations.

Science Key to Achievements. Let’s Support It
Author
Ruth Greenspan Bell - Woodrow Wilson International Center for Scholars
Woodrow Wilson International Center for Scholars
Current Issue
Issue
2
Parent Article

EPA is fundamentally a regulatory agency, not a science agency. But EPA runs on science and generates research to help it do its job more effectively. Many forms of science, from toxicology through engineering, are interwoven into almost everything the agency does — from regulations to reviews of new chemicals to Superfund cleanups. Much of the public may not fully understand — or may take for granted — the interplay of the agency’s science in protecting people, communities, and the Earth.

Consider EPA’s key achievements over its first 47-plus years. They include removing lead from gasoline, reducing acid rain and the harmful effects of ozone and small air particles, improving water quality, decreasing second-hand smoke exposure, improving vehicle efficiency and emission controls, encouraging the consideration of waste as reusable material, and putting a spotlight on environmental justice. Evaluating and acting on science is the lynchpin in any of these actions.

Using lead in gasoline as an example, EPA sorted through multiple studies to determine how exposure to lead affects health, how exposures occur, what alternative technologies were available if lead were to be removed from gasoline, and how to make the technical transition to cars that run on unleaded. In making regulatory decisions such as this, the results must often be defended in litigation, putting a big burden on scientists to back up their judgments.

Over time, science evolves as we learn more or techniques for measuring pollution improve. Our knowledge of how particular pollutants react in humans or nature, or what kinds of exposures cause harm, improve. That puts the onus on EPA to improve its regulatory protections. Lead, again, provides an example: The standard for blood lead levels in children has been lowered multiple times based on new information and as methods to reduce exposure are better understood. Getting lead out of gas was a multi-year process and now the challenge is to revise standards for lead in old paint.

Another lens is EPA’s more ordinary, daily work reacting to problems as they occur. The agency has been tasked with setting protective standards for pollutants that are discharged to water and air and to manage bacterial, viral, parasitic, and chemical agents that might contaminate drinking water. EPA is directed by Congress to clean up polluted sites that once housed industrial facilities or poorly maintained gas stations, and to be sure that the chemicals used in agriculture don’t pose a threat to children and families.

All of these actions require data, analysis, and judgments guided by the best available science. The assessments EPA must make about the impacts of pollutants, how they travel through air or water, how easy or hard it is to capture and assess them, and what kinds of technologies are effective in their control are all guided by science. Hazardous waste sites in need of cleanup generally house multiple pollutants; science is the key to figuring out a safe level for each potentially dangerous contaminant present. If your family lives around the corner from that site, you want to be sure this calculation is accurate.

A practical example connecting science, research and EPA’s mission can be found at its Environmental Center in Edison, New Jersey. The center needed a staff and visitor parking lot for 110 cars. EPA turned this otherwise mundane task into an applied research project designed to reduce negative effects of stormwater runoff, including stream bank erosion, contamination of waterbodies, and harm to aquatic plant and animal life. When it rains, stormwater runs off paved areas, picking up oil and other pollutants and eventually flows into rivers, lakes and the oceans.

So EPA designed a parking area using low impact development controls, systems and practices that mimic the way plants and landscapes capture water, and conducted long-term stormwater-management studies. The goal is to demonstrate and document the performance and capabilities of three permeable pavement systems: porous asphalt, pervious concrete, and permeable interlocking concrete pavers. Rain gardens were added to capture any runoff from the impervious sections of the parking lot, the sidewalk, and a nearby roof. The parking lot is monitored for water quality performance, maintenance effects, parking behavior, and hydrologic performance, including the ability to accept, store, infiltrate, and evaporate stormwater. The project is helping EPA, Edison, and myriad other cities and facilities adapt to the new conditions posed by a radically changing climate.

From the development of far-reaching regulations to practical decisionmaking in a central Jersey parking lot, science is where work begins at the agency. Science is at the heart of EPA’s huge advances and must be supported rigorously if the agency is truly going to fulfill its mission to protect public health and the environment.

Bottling Up Science
Author
Michael Halpern - Union of Concerned Scientists
Union of Concerned Scientists
Current Issue
Issue
2
Bottling Up Science

The administration is booting experts from advisory panels. Inconvenient studies are shut down early. Officials are forbidden from using certain words. But as professional integrity is compromised, scientists are getting creative in blunting the damage.

Michael HalpernMichael Halpern is deputy director of the Center for Science and Democracy at the Union of Concerned Scientists. He works to promote solutions that ensure government decisions are fully informed by scientific information, and that the public understands the scientific basis for those decisions.

When Administrator Scott Pruitt banned experts from serving on EPA advisory panels if they receive grant funding from the agency, he claimed to be defending scientific integrity and federal agency independence. The subtext, however, is that the experts whom the agency has decided are doing the most promising environmental and public health research should be banned from giving the agency advice. “This EPA decision is motivated by politics, not the desire for quality scientific information,” said Rush Holt, CEO of the usually cautious American Association for the Advancement of Science.

Science, like other independent checks on arbitrary decisionmaking, has become a significant target of this administration. In multiple departments, political appointees are at best neglectful and at worst hostile to the science-based missions of their agencies. The administration is gutting expert capacity, sidelining science and scientists from policymaking, and, most troubling, exerting control over the research process itself.

While science has been politicized by all modern presidents in one way or another, the Trump administration’s attacks are far worse in both scope and severity. Left unchecked, these actions will have profound long-term consequences for public health and the environment. But never before has the science community been so energized to push back.

The first measure of the administration’s attitude toward science is the people who fill the ranks — when they fill them. The president has yet to appoint a science advisor, and the White House Office of Science and Technology Policy is a shell of what it was during the Obama administration. In recent years, OSTP has been directly involved in everything from preventing the spread of the Zika virus to addressing antibiotic resistance. No longer.

Many mainstream Republicans distanced themselves from Trump during his campaign, allowing people solely motivated by ambition and ideology to step in. An emboldened Stephen K. Bannon pledged the “deconstruction of the administrative state.” He wasn’t kidding. A track record of opposition to the authority of a federal agency was an important qualification for many cabinet-level positions. And while agency leaders get most of the headlines, lower-level appointees can wreak just as much havoc.

The American Chemistry Council is a trade organization that has downplayed and sometimes misrepresented data on toxic chemicals. Nancy Beck led chemical safety policy for ACC. She’s now part of the team overseeing EPA’s chemical safety decisions. Her ACC colleague Liz Bowman took a job in the EPA press office, where she has regularly stonewalled reporters. A disgraced banking executive with no environmental experience now leads the Superfund program. He helped Pruitt buy his house.

Then there’s Sam Clovis, the talk show host and Trump loyalist with no scientific training who was unsuccessfully nominated to serve as the Department of Agriculture’s chief scientist. After facing fierce opposition, he withdrew when he was linked to the Russia investigation. Kathleen Hartnett-White, a comp-lit major tapped to lead the Council on Environmental Quality, rejects climate change science and could not answer basic questions about science at her confirmation hearing. William Wehrum, who recently argued that human lungs are designed to deal with silica dust exposure, was too toxic for Senate confirmation during the George W. Bush administration. This time around, he sailed through the Senate to head EPA’s air office.

The administration’s pick for National Oceanic and Atmospheric Administration chief, AccuWeather CEO Barry Myers, could directly benefit financially from the agency’s decisions. Three former NOAA administrators declared that Myers is unfit for the position. Said one, D. James Baker, “You’ve got the potential of decisions being made on the basis of money rather than what’s best for the country.”

The Republicans who control Congress, perhaps afraid of being on the wrong end of a presidential tweet, have rubber stamped nearly every patently objectionable nomination. Only one science nominee has thus far withdrawn after senators indicated he could not be confirmed: Michael Dourson, named to oversee chemicals policy at EPA. He was paid to defend the use of the volatile organic compound trichloroethylene; at EPA, he would have been in charge of finalizing a plan to ban it. Public outrage from veterans and scientists poured forth in North Carolina, where water contamination with TCE sickened and killed people who lived at Camp Lejeune.

Once in place, appointees are politically targeting scientific capacity. Aggressive buyout schemes are combining with explicit and de facto hiring freezes to leave environmental agencies with insufficient staff to develop scientific analyses and fully enforce environmental laws.

The consequences are real. A rule to protect drinking water from lead contamination, due last January, has been delayed at least until this summer. The EPA Office of Water is short-staffed, and the assistant administrator in charge didn’t start until December.

In some cases, agencies have shut down studies midstream based on what they anticipate will happen. It isn’t at all subtle. In an unprecedented move, last August the Department of the Interior ordered the National Academies of Science, Engineering, and Medicine to stop research into the potential health risks of surface coal mining on communities in West Virginia. A NASEM study on offshore oil drilling safety was shelved in December. The decisions can’t possibly be considered anything but political.

The Department of Energy plans to shutter a $100 million effort aimed at improving tropical-climate models after just three years of its ten-year run. Tropical forests are critical to preventing climate change, and are therefore tremendously important to understanding Earth systems. And in December, the Government Accountability Office found that DOE illegally withheld $91 million of funding for an advanced energy technology initiative that the administration wants to eliminate.

Many of the most drastic cuts in the president’s proposed budget zeroed in on scientific initiatives, especially if those initiatives were climate-related. The EPA Office of Research and Development faced a 40 percent cut; a senior official told Science magazine that this would cause the agency’s science office “to implode.”

The president’s proposed budget called for deep cuts for the U.S. Geological Service library system. Existing information would be put into a dark archive, which is librarian-speak for restricted public access. NOAA’s Sea Grant program, a national network of 33 university-based research, extension, and education programs to benefit coastal and Great Lakes communities, would be eliminated.

Administration appointees traditionally go to Capitol Hill to defend their budgets from a skeptical Congress. Not so with Scott Pruitt; Republican members of Congress were in the highly unusual position of trying to convince him that he needed more resources to carry out EPA’s mission.

The research community pushed back hard against many of the budget cuts, and as a result, the most egregious have not yet been realized. So far, science champions in Congress have held the line, although the disastrous tax law passed in December will put significant additional pressure on discretionary spending.

Beyond the capacity squeeze, federal environmental agencies are excluding science and scientists from policymaking. The lack of interest in institutional and scientific knowledge began during the transition. At the Department of Agriculture, dutiful federal employees carefully prepared materials for the transition teams. Only one guy showed up. Brian Klippenstein possessed a singular fixation: the department’s work on climate change.

In early January, Klippenstein finally rustled up three other transition team members for a briefing on the department’s extensive scientific enterprise. It lasted an hour. “The Trump transition sent in these teams in the end just to say they were doing it,” a former White House official told Vanity Fair. Elsewhere, inquiries seemed more malevolent than indifferent. At DOE, the transition team requested answers to dozens of questions, including a list of all employees who worked on climate change, and a list of websites that staff had developed over the previous three years. After a public uproar, the department refused to comply.

Soon after the inauguration, aided and abetted by Congress, the administration triggered a seldom-used tool to circumvent science-based policymaking: the Congressional Review Act. The 1996 law had been successfully used previously just once, to rescind an ergonomics workplace standard finalized by the Clinton administration. The CRA substitutes political judgment for scientific analysis by allowing Congress to strike down environmental health and safety rules, developed over many years with notice-and-comment procedures and high evidentiary standards, without any scientific review.

Since Inauguration Day, with the president’s support, the CRA has been used successfully 15 times. Congress removed the Stream Protection Rule, which would have shielded communities from contamination from mining operations. Other CRA votes reduced data retention related to workplace injuries and the sharing of mental health data within the government, as well as the cessation of hunting restrictions on Alaska wildlife refuges. Without public pressure, more science-based public protections would have fallen.

At EPA, Pruitt’s schedule shows a steady stream of meetings with industry lobbyists but scant interaction with independent experts. Evidence suggests that the pesticide chlropyrifos harms brain development in children. In 2015, the agency proposed phasing out the chemical. In May, after multiple meetings and communications among the administrator’s office and industry representatives, Pruitt reversed the proposal. Public health and scientific organizations were not consulted, nor were the EPA scientists who put together the plan.

Advisory committee problems are rife. Some new committees — such as the president’s election integrity commission — reached their conclusions before they are even formed, eschewing members with expertise in favor of those with political agendas. Fortunately, the lack of credibility doomed the commission to irrelevance. All Department of the Interior advisory committees were suspended in May, and as of this writing, many of them are in limbo. This includes the Utah Resource Advisory Council, which provides advice (including science advice) to the Bureau of Land Management. As a result, decisions to severely reduce the size of national monuments in Utah were carried forward without advisory panel input. It also includes the Advisory Committee on Climate Change and Natural Resource Science, which was quietly disbanded over the summer. There is even an unwillingness to collect the necessary data in the first place. In March, EPA withdrew requests for oil and gas company operators to monitor and report on their methane emissions. 

When all else fails, the administration is restricting the communication of science and interfering in the scientific process itself. Websites began changing on Inauguration Day, with references to climate science and policy removed from or buried in the White House and EPA sites. Climate change experts were prevented from presenting their work at conferences. Hundreds of USGS scientists were barred from participating in December’s American Geophysical Union meeting. For self-preservation, many scientists and career staff avoid referencing global warming.

Public and media scrutiny of the administration’s treatment of climate science has been strong — which also has its downsides, as it can lead to a rush to judgment. In 2017, the National Climate Assessment, a massive intergovernmental effort to synthesize current and future impacts of climate change in the United States, was moving through the internal review process smoothly. Then the New York Times published an already-public draft of the report with concerns from anonymous sources that the report was going to be censored. Report authors had urged the newspaper not to run a story, as they were afraid that undeserved attention would actually increase the possibility that it would be censored or manipulated. In an exception that proves the rule, policy wonks were surprised that the report came out intact.

But the pattern of political interference still persists. Deborah Swackhammer, who sits on the EPA Science Advisory Board, was pressured by the White House to change her testimony in advance of a congressional hearing where she would be critical of board member dismissals.

Scientists at the Centers for Disease Control have been told to check with political superiors on “everything from formal interview requests to the most basic of data requests,” a flagrant violation of the department’s scientific integrity policy. Employees were banned from using seven words essential to research — including “science-based, “diversity,” and “vulnerable” — in the CDC’s budget proposal. The ability to communicate science without political filters is essential to the government’s ability to share timely information about public health and the environment. At EPA, Trump campaign staffer John Konkus, who now works in the public affairs office, was put in charge of reviewing all agency scientific grants. Former Republican EPA administrators have been aghast. “We didn’t do a political screening on every grant, because many of them were based on science, and political appointees don’t have that kind of background,” said Christine Todd Whitman, administrator under George W. Bush.

It is unusual to pull back funding that has already been awarded. Yet EPA has rescinded funding to two organizations that would have supported the deployment of clean cookstoves in the developing world — which would curb the impacts of climate change from wood harvesting, and also limit indoor pollution that disproportionately affects women and children. 

The administration’s actions to undermine science do not come out of a vacuum. Industry trade groups have long manipulated science and scientists to distort the truth about the dangers of their products. What’s different is that their influence has increased considerably; appointees are carrying out the wish lists of trade associations, anti-government activists, and some members of Congress who have long resented the strong role of science in bedrock public health and environmental laws.

The Endangered Species Act requires that decisions on whether or not a species merits protection be based solely on science. The Clean Air Act requires EPA to set ambient air pollution standards in much the same way. The grounding in science increases these laws’ success and makes them more resilient to political meddling.

Numerous bills have been introduced in recent years that would chip away at this capacity. There’s the Regulatory Accountability Act, which would paralyze science-based rulemaking by requiring redundant analyses. The REINS Act, which would require both houses of Congress to approve any major regulation put forward by an agency. The failed EPA Science Advisory Board Reform Act, which would compromise the independence of the agency’s expert committees.

The legislation shares a common outcome: to get those pesky experts out of the way. Compromise the agency’s knowledge and it’s easier to put forward policies that lack a scientific basis.

F ortunately, while government scientists are now often sidelined from policy decisions, most are keeping their heads down and doing their research and documenting how it is being used — or not used — in policy decisions. In doing so, they create an administrative record that can be used in both litigation and accountability, including investigative journalism, inter-governmental watchdog investigations, and eventual congressional oversight.

The executive branch is still required to follow congressional laws, and the judiciary is still largely willing to enforce those laws. Presidential tweets aside, the removal or weakening of environmental protections must be rooted in the best available science, or they can be thrown out in court.

Legal challenges have already been filed, and are expected to mount as the administration makes more decisions that are either arbitrary or capricious (or both). The Union of Concerned Scientists has joined Earthjustice in challenging the executive order that would require agencies to withdraw two public protections for every one they put forward. We have also joined numerous other organizations in challenging the administration’s decision to delay implementation of the Risk Management Plan, a rule that would better protect communities from chemical accidents.

The science community outside government has slowly built its political muscle over the past two decades, and has shown its willingness to flex that power. The wakeup call came during the George W. Bush administration, when officials routinely muzzled scientists and rewrote studies to support predetermined outcomes. Experts began speaking out against political interference and created a movement to defend professional integrity. The need to protect science and scientists began to seep into their collective consciousness.

The unprecedented threat to science from the Trump administration has catalyzed a surge of scientist engagement. The March for Science, which drew 1.1 million participants worldwide last April, was a symbol of scientists stepping into public life that many hope will persist well beyond the Trump administration.

Enduring infrastructure is being built to make that a reality. My organization is developing state-based collectives of scientists to watchdog for science, providing microgrants for scientists to design and lead local advocacy projects, ramping up engagement training, and connecting young scientists with veteran policy mentors. Responding to increased threats against marginalized groups, scientists created 500 Women Scientists, an organization dedicated to making science more open, inclusive, and accessible. The group now has scores of local “pods” that are building capacity among future leaders to advocate for a strong role for science in society in a way that serves everyone.

Scientists worked with Data Refuge, a team of librarians, archivists, and environmental humanities scholars, to archive terabytes of data that were vulnerable to removal from government websites. These efforts prevented large-scale takedowns of information and led to the introduction of the Preserving Government in Data Act, sponsored by Colorado Republican Senator Cory Gardner and Michigan Democratic Senator Gary Peters.

In the absence of genuine political leadership, scientists are speaking up in creative ways. After Pruitt reconstituted EPA science advisory committees, the Association of Environmental Engineering and Science Professors created a shadow advisory committee to review the official EPA advisors’ work. Experts who have served on the board during previous administrations will join other experts to help determine whether the committees have been compromised.

David Sedlak, editor in chief of Environmental Science and Technology, encouraged other societies to follow suit. He wrote, to assure “a skeptical public that the EPA’s advisory boards and panels are conducting unbiased analyses that draw upon the full range of necessary expertise, the research community must fill the void.”

The cumulative result of this work is that journalists and some leaders in Congress are laser-focused on exposing and calling out actions that undermine federal scientific capacity. It was front page news when Interior climate scientist Joel Clement was reassigned to work in the department’s accounting office. When agency scientific web pages are taken offline, or when scientists are censored, multiple mainstream media stories are up within hours. All of this work raises the price of politicizing science.

And despite the rhetoric, facts still matter to some in both major political parties. Bipartisan reform is possible. Republicans and Democrats have both spoken of the need to afford federal scientists more latitude to attend conferences to stay current. And members of both parties have advanced stronger whistleblower protections for employees who report abuses of science.

It will get worse before it gets better. The administration will continue to hollow out federal science agencies through buyouts and budgets. They will continue to sideline science in decisionmaking, enabling political appointees to do the bidding of their former employers. New ways of politicizing science that we have not yet conceptualized will be invented.

How far they get depends on our ability to demonstrate the consequences of their actions on public health and the environment. And with hard work, the scientific community will emerge from this national nightmare with the infrastructure that is necessary for sustained public engagement. TEF

COVER STORY ❧ The administration is booting experts from advisory panels. Inconvenient studies are shut down early. Officials are forbidden from using certain words. But as professional integrity is compromised, scientists are getting creative in blunting the damage.

Grappling With “Power to Delay” as Regulations Undergo Changes
Author
Ethan Shenkman - Arnold & Porter Kay Scholer LLP
Arnold & Porter Kay Scholer LLP
Current Issue
Issue
1
Ethan Shenkman

“I understand entirely that a new administration needs time to figure out what it wants to do, [but] it is now November 9,” D.C. Circuit Judge Karen L. Henderson informed government attorneys last fall. Environmental groups and industry had both challenged an EPA rule adopting a long-delayed Maximum Achievable Control Technology standard for hazardous air pollutants emitted by brick and tile manufacturers. Before the court could hear argument, the agency requested an indefinite abeyance of litigation while the agency reconsiders.

Judge David B. Sentelle acknowledged the new administration’s prerogative, but questioned whether the court should stand idly by. “I don’t see what we’re taking away from you if we deny your motion.” Even if the court upheld the 2015 rule, EPA could still change it. “You’re not locked in for the entire future of mankind.” Judge Patricia A. Millet bluntly added, “Don’t you have some duty to act with exceptional urgency?”

Environmental law firm practitioners follow developments on a weekly basis, as the Trump administration seeks to revise or rescind dozens of environmental regulations. As we mark the administration’s first anniversary, one thing has become clear — change takes time. The regulatory regimes are complicated, and Congress has imposed strict procedural mandates and deadlines. One question that practitioners are now confronting as they advise clients on what lies ahead: to what extent does a new administration have the ability to call a time-out to stay a court proceeding challenging a rule or implementation of the underlying rule itself while it navigates the reconsideration and rulemaking process?

Consider the saga of the Obama administration’s hydraulic fracturing rule. A district court enjoined the rule soon after it was finalized in 2015, eventually holding that the Bureau of Land Management exceeded its statutory authority. The government appealed, but before argument Trump announced his intent to reconsider the rule.

Caught in a legal limbo, government lawyers had to walk a thin tightrope before the Tenth Circuit, attempting simultaneously to defend the Executive Branch’s authority to regulate oil and gas activities on public lands, while preserving BLM’s ability to reverse course on policy. The government wanted to keep its appeal live but held in abeyance, thus maintaining the lower court’s injunction against the rule, while forestalling an appellate decision that could interfere with BLM’s rulemaking process.

This “death defying” balancing act was too much for the court. It agreed not to decide the merits, but instead of continuing the abeyance, it dismissed the appeal and directed the trial court to vacate its opinion and injunction — an ironic result, potentially resurrecting the very rule that BLM wants to rescind.

The land agency’s attempt to stay its methane rules met a similar fate. In June, BLM announced it was delaying compliance deadlines under the Obama-era waste prevention regulations, which had directed drillers to detect and repair leaks, and limit venting and flaring from wells on federal and tribal lands. BLM claimed authority under the Administrative Procedure Act, which allows agencies to postpone effective dates pending judicial review when “justice so requires.”

Attorneys general from California and New Mexico were among those who challenged the postponement before Judge Elizabeth D. LaPorte, who struck it down as arbitrary and capricious. “A free pass for agencies to exceed their statutory authority and ignore their legal obligations under the APA” would make “a mockery of the statute.”

Nor are these issues limited to EPA and BLM. In a new lawsuit, attorneys general from five states are challenging the Trump National Highway Traffic Safety Administration’s authority to delay implementation of a prior rule increasing penalties for violations of fuel economy standards.

Meanwhile, EPA proposed a new rule to delay the effective dates of the Obama-era regulation defining the jurisdictional term “Waters of the United States” under the Clean Water Act, in case the existing judicial stay of that regulation is lifted before the administration can complete its two-phase rulemaking process to repeal and replace WOTUS.

Although the sheer number of “delay” cases winding their way through the courts is unprecedented, controversy over the power to delay is not new. In the Obama administration, for example, government lawyers sought abeyances and stays to buy time for their client agencies.

As law firm practitioners keep abreast of how courts grapple with these issues, they should keep in mind that new law on “the power to delay” could affect not only the Trump administration’s regulatory agenda, but ground rules for future administrations as well.

Grappling with the “power to delay” as regulations undergo changes.