Streamlining Energy Dominance

Fact-based deliberation and debate are suffering a well-documented tumble from their central place in our democracy. Environmental decisionmaking, conceived under modern law as driven by science and public input, should be a stronghold for such dialogue, but President Trump’s effort to “streamline” environmental review in favor of “Energy Dominance” is quickly ensuring that these important processes — and resulting outcomes — will suffer as well. At the Department of the Interior, streamlining not only threatens public lands, but undermines the basic principles and processes that make good public land management possible.

Speaking with Fox News about his intent to “dismount” from his two-year ride as secretary of the interior, Ryan Zinke claimed, “We’ve given back the local community voice.” In fact, Interior has systematically limited the voice of the public — along with the voices of scientists. Instead, the department has provided a megaphone for those with financial stakes in certain outcomes.

To be clear, a longstanding part of Interior’s mission is to facilitate for-profit activities by business. These include grazing, mining, timbering, and drilling on public land, all part of the department’s “multiple use” legal mandate. But that mandate also includes conservation, wildlife preservation, and recreation. What is required is a balancing act, but the scales will tip when voices supporting conservation and information gathering are systematically excised. Instead, we create a situation where Energy Fuels Resources, a mining firm, quietly influences the boundaries of Bears Ears National Monument to exclude uranium claims, and Cadiz, Inc., a water-resources firm in the Southwest, obtains a significant, though unpublicized, change in the government’s reading of the law to facilitate a right-of-way through sensitive desert ecosystems.

But this is not just a question of whether to value coal production over climate or oil over endangered species. This is also a question of how our decisions are, or should be, made — including who has a place at the table.

Businesses and individuals seeking government action likely have rational motivations for their positions; it is the job of the federal government, on behalf of the American people, to weigh those positions against others, and consider them in light of science, law, and the public interest. The Federal Land Policy and Management Act and the National Environmental Policy Act establish requirements to marshal facts, apply science, and engage the public in government decisions.

Implementation of these requirements has evolved over decades of striving toward a more ideal process for the sake of better outcomes for all. This administration’s distance from that ideal could not be more clearly illustrated by then Secretary Zinke’s words to the Louisiana Oil and Gas Association last fall: “Our government should work for you, the oil and gas industry.”

In March 2017, two months into the new administration, Executive Order 13783 launched a government-wide effort to review agency actions that “potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.” While the order made headlines for the substantive protections it targeted, the EO also dismantled analytical frameworks, such as guidance on how to consider climate impacts in environmental reviews and technical documents underpinning the assessment of the social costs of carbon dioxide and methane. While controversial in the current political arena, these documents dictated processes, not outcomes. They established methods for considering scientific and economic data so that decisions could benefit from technical expertise. They have been removed from the federal policymaking toolbox.

From the beginning, the Department of the Interior enthusiastically embraced the new president’s Energy Dominance agenda. The department manages lands, subsurface rights, and offshore areas that produce about a fifth of the nation’s energy. The day after EO 13783 was released, Zinke signed Secretarial Order 3349, which set in motion a “burden” removal process. It directed the Bureau of Land Management to “proceed expeditiously with proposing to rescind” the hydraulic fracturing rule, and directed review of several specific oil and gas rules. It canceled a review of Interior’s coal program, and directed BLM to resume processing coal leases — also expeditiously.

While these flagship endeavors drew both praise and ire, the department was also making many smaller adjustments throughout its programs that drew little attention. The same EO directed review of a climate policy that had built analysis of impacts into decisionmaking, as well as mandating review of a policy encouraging science-based mitigation strategies in long-term planning. Both were in fact revoked and Interior has now eschewed compensatory mitigation altogether by adopting the position that the department does not have the authority to consider it — an inconvenient pronouncement should a future Interior wish for more flexibility in approving projects and improving habitat.

In furtherance of these programmatic changes, Secretarial Order 3351 establishes an energy counselor position and a vision for “achieving American energy dominance,” by removing regulations on the energy industry and maximizing use of domestic resources. The first inhabitant of the position moved on to Cox Oil a year later, but changes in policy and practice continue to operationalize this vision, both by prioritizing energy development and by deprioritizing anything that might slow it down.

The administration generally and Interior in particular use the attractive term “streamlining” to describe many of these changes. This is an appealing concept because it implies getting to a destination more quickly; it rests on the assumption that the outcome will be the same, but we will waste less time, and money, along the way. Unfortunately, this administration has used the term to justify cutting the public out of decisions and eliminating crucial analysis. When seen alongside other changes at Interior, one might suspect the goal is to alter the destination entirely — to give exploitation priority over conservation, despite legally required balancing.

Some of these charges are department-wide. Interior’s Open Science Policy — signed in October by Acting Secretary David Bernhardt — limits the department’s ability to use scientific analysis to inform decisions. Under the banner of transparency, and paralleling a similar action at EPA, it disfavors scientific studies if raw data are not publicly available. While that may sound reasonable, in practice it means eliminating studies that use private health information or proprietary business information, or that would reveal the whereabouts of vulnerable species or the locations of Native American artifacts. Non-public data are important in a whole host of situations where they might provide a reason to consider not developing an energy resource because it would damage an important public interest.

Only months after the Open Science Policy purported “to ensure that the American people have sufficient information about what their federal government is doing to assess where it is coming from and correct the federal government when we err,” Interior proposed another rule blatantly limiting transparency. Amendments to its Freedom of Information Act regulations would make it easier to reject requests and fee waivers, while slowing response time.

Further efforts focus on eliminating environmental review by narrowing analyses or expanding the use of categorical exclusions. Improvements that had been underway to provide a broader range of stakeholders an opportunity to participate in decisionmaking have been abandoned. This departmental pattern also holds within individual bureaus: Less input and information on the front end combined with less transparency on the back end puts citizen participation in a murky downward spiral. The loss is deeply damaging — it deprives government decisions of essential ingredients needed for improved outcomes, including durability and greater public trust in the result.

The Bureau of Land Management is a natural target for Interior streamlining efforts. It administers more land than any other federal agency, over 245 million surface acres and 700 million acres of subsurface mineral development. BLM operates largely under FLPMA, home to the oft cited “multiple-use sustained-yield” mandate, including the admonition that “the secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” Meanwhile, mining and drilling on BLM land occurs under the industry-oriented Mineral Leasing Act, and the Manifest Destiny-era General Mining Law of 1872. Free of the regulatory restrictions that protect the natural state of National Park Service lands, BLM is the bureau most susceptible to our swinging policy pendulum; it is the indicator species for the health of public land management.

In January 2018, BLM issued Instruction Memorandum 2018-034, “Updating Oil and Gas Leasing Reform.” The memorandum purports to “streamline” — that term again — “the leasing process to alleviate unnecessary impediments and burdens” and to expedite the process. It reverses 2010 reforms that were designed to improve decisions by incorporating broader outreach, cultural and environmental experts, and landscape-level planning. These efforts had resulted in more informed — and likely more lasting — decisions, but they did add process, or “burdens” in the language of the current administration.

The 2018 memorandum imposes a six-month limit on parcel review, the stage in which BLM field staff determine the conditions under which leasing and development should occur. It discourages the site visits that 2010 reforms had made routine, concluding that modern technology makes them unnecessary. This approach discounts the value of on-the-ground fact gathering to assess the unique character of environmental and historical resources. Instead decisions may emphasize the availability of energy resources as the most relevant consideration.

The memo also directs BLM to rely on existing assessments under NEPA. This “tiering” of NEPA analysis is not unusual but should be used in conjunction with site-specific analysis. BLM’s approach is to rely on an existing assessment and claim its NEPA obligations are satisfied through a vehicle of its own creation: the Determination of NEPA Adequacy. The new DNA process eliminates public participation in new leases. In addition, the time allowed to protest leases has been reduced from 30 days to 10. So, not only do BLM staff have less time to get it right, the public has very little ability to “correct the federal government when we err.”

The 2018 memorandum places little value on understanding the broader landscape, such as how impacts of lease decisions relate to each other or to nearby conditions. Interdisciplinary resource teams, as well as master leasing plans, which were designed to consolidate leasing where it causes the least harm, have been eliminated or left to the discretion of state offices. BLM reasons that these innovations were duplicative of NEPA, an artless justification given the simultaneous elimination of NEPA review. What does this look like in practice? In September, BLM posted no information about a Nevada lease sale until the protest period began, then gave the public 10 days to review almost 300,000 acres of public land offered for oil and gas.

If it appears to you that these failures to marshal facts, apply science, and engage the public stray so far from the ideal that they may violate NEPA or FLPMA, you are not alone. For example, in Western Watersheds Project v. Zinke, a case about lease sales in sage grouse habitat, the plaintiffs argue the 2018 memorandum illegally constrains public participation. In September the U.S. District Court in Idaho agreed and issued a preliminary injunction ordering BLM to return to 2010 procedures for leases in sage grouse territory. The court held that the 2018 memorandum “unlawfully constrains environmental review . . . and public participation,” and that “the public involvement requirements of FLPMA and NEPA cannot be set aside in the name of expediting oil and gas lease sales. The benefits of public involvement and the mechanism by which public involvement is obtained are not ‘unnecessary impediments and burdens.’ ’’ As of this writing, the case is still pending.

While this decision was narrow, and potentially temporary, the case is one of many challenges to the ineffective process throughout Interior and at other agencies as well. The courts are not the only backstop: The new House leadership is expanding oversight, and, in many instances states are choosing to push back. For example, a lease sale was proposed last year in Colorado under the current, diminished process. Senator Michael Bennett (D-CO) and then Governor John Hickenlooper wrote to BLM: “The result is a process that does not afford the state, local governments or the public an opportunity to comment on stipulations for parcels BLM plans to include in the lease sale until . . . a condensed 10-day protest period.” The two politicians conclude, “This new process is insufficient to allow for meaningful input.”

In addition to demanding adequate input, advocates and affected communities continue to take BLM to court to demand adequate analysis. The administration’s effort to strip all climate-related science from decisionmaking processes rings particularly tone-deaf when juxtaposed with the parade of recent court decisions requiring just that. These holdings began long before Energy Dominance became the defining mantra of public lands management. Energy Dominance’s disregard for longstanding law seems to assure further decisions will continue to push back against these policies.

Earlier this year we were provided another measure of Interior’s selective hearing. During the government shutdown, the activities the department chose to continue — and to shelve — are telling. While unmonitored visitors cut down Joshua trees to make way for illegal off-road vehicles, BLM continued to run oil and gas programs in service of its “Energy Revolution Unleashed.” During the lapse in funding, it issued 15 new leases and approved more than 75 permits for drilling. Meanwhile, BLM greeted the public with a website banner declaring it was “closed,” and bounce-back email messages from staff “not authorized to work.” The press office declined to respond to questions, and for weeks its information-accesss portal read, “No FOIA requests can be accepted or processed at this time.”

Similarly selective hearing is being institutionalized in Interior’s other bureaus — and across the executive branch. The president’s recent executive order on wildfires, for example, directs agencies to keep time periods for “comment, consultation, and administrative review processes” to a minimum, while maximizing categorical exclusions.

But the most far-reaching and potentially damaging of the administration’s streamlining efforts is not any of the many and various ways NEPA is being applied less rigorously, but the reinterpretation of the venerated and foundational statute. This further threatens the decisionmaking ecosystem for which BLM is the indicator species.

Four days after his inauguration, President Trump issued Executive Order 13766 to “streamline” environmental impact reviews for infrastructure. While the EO proved impractical, it stated a revealing perspective that projects were “routinely and excessively delayed by agency processes.” It also revealed an ignorance of the many efficiency improvements already established and underway. In August 2017, the administration took another run along the well-trod path of improving efficiency in permitting with Executive Order 13807, “Establishing Discipline and Accountability.” The passage of seven months found the White House more steeped in the weeds of federal decisionmaking: it specified “Process Enhancements” and acknowledged existing coordination.

The National Environmental Policy Act has been scrutinized frequently over the nearly fifty years since President Nixon signed it into law. The path to efficiency in permitting is certainly well-trod, and it is paved in smooth NEPA processes. Today, these processes are an essential vehicle for ensuring that all communities — especially low-income, minority, and tribal communities who have been underrepresented — are engaged when significant projects affect their lives.

NEPA states the policy of the federal government is to preserve the environment for current and future generations and to take it into account in major decisions. It launched environmental impact assessment as the key decisonmaking vehicle. It acknowledges the need for society to exploit natural resources but ensures all affected constituencies are heard and all relevant facts are obtained and weighed — the fabled “hard look” required of decisionmakers and upheld by decades of jurisprudence.

The stories of NEPA’s achievements make for an impressive catalog. ELI’s 2010 Research Report titled “NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government” provides examples of how the statute has given us better outcomes, from identifying cultural artifacts, to avoiding watershed degradation, to building a collaborative framework so projects can serve both communities and developers. The White House Council on Environmental Quality, established by the law, has also published a study of NEPA successes in the context of the infrastructure enhancements mandated by the American Recovery and Reinvestment Act, the stimulus measure passed during the financial crisis.

We achieve these successes through process: a process that requires listening to people with needs, opinions, or information that may not fit neatly into a project proponent’s initial work plan. The law in action is never straightforward, and NEPA is no exception; it epitomizes the long, messy arc of democracy. Because of this statute, we learn of unforeseen impacts and unanticipated controversy and we are provided the opportunity of an informed decision. While improving efficiency has been ongoing and should continue, “reforms” that excise important analysis or affected constituencies violate the law. Beyond endangering compliance, these reforms estrange entire communities — from local residents to expert scientists — whom NEPA was designed to pull into the discussion for the sake of better outcomes. Selective hearing undermines the quality and legitimacy of final decisions.

Many NEPA success stories relate to projects on public lands, where federal decisions hold significance for all of us. Across the country you will find a high degree of passion, an impressive depth of knowledge, and a great variety of opinion regarding how best to manage our public lands. These passions and opinions, and all the facts and analysis that can be mustered to support them, have found a home in the NEPA process. And, over the years, via the practice of marshalling facts, applying science, and engaging the public, Interior has become more informed by and accountable to the full range of people it serves.

Long and complex approvals are the exception to the rule. Only about 1 percent of federal actions are subject to an Environmental Impact Statement, and NEPA compliance is completed with minimal disruption for most regulatory actions. When federal actions do take a long time, NEPA is not always to blame. Both the Government Accountability Office and the Congressional Research Service have found that inadequate funding, public opposition, and competing agency priorities are frequent factors in delays.

Nevertheless, there has been a steady flow of legislative proposals to weaken NEPA’s basic call for agencies to take that hard look at the effects of their actions before proceeding. Recent bills have attempted to eliminate environmental analysis and public input on specific projects, such as a sulfide ore mine in the Boundary Waters, or a road through the Izembek Wildlife Refuge. Other bills have proposed sweeping exemptions for oil and gas operations, timber sales, and broadband development. Some proposals would have assigned NEPA enforcement to states, or prohibited agencies from considering climate change.

While legislative efforts to weaken the law continue, the Trump administration has launched an effort to reinterpret the law as it exists. Executive Order 13807 directs CEQ to “enhance and modernize the environmental review process.” Last June, CEQ issued an Advance Notice of Proposed Rulemaking announcing it would revisit its longstanding NEPA regulations. It asked a broad range of questions. The notice emphasized “streamlining” and made frequent use of the word “efficient” in an apparent bid to structure questions that would generate “yes” answers. The series of queries posed about foundational concepts was also troubling: Should changes be made to the scope of review? The nature of public participation? Should there be new definitions for alternatives, purpose and need, reasonably foreseeable, and other terms of art that provide the underpinning for NEPA compliance?

How CEQ answers these questions will affect the health of environmental decisionmaking for decades. If the policies we have seen at Interior are an indication, there is reason to pay attention, and reason to be concerned. Viewed in isolation, one might dismiss the changes at BLM, our indicator species, as limited political handouts or temporary directives to be reversed by the next administration, but, as NEPA counsels, we should consider the cumulative impacts: These changes are moving us away from the democratic principles that form the foundation for environmental decisionmaking and sustain its effectiveness in a changing world. And now there is a threat Trump’s streamlining will be built into CEQ regulations, the blueprint for NEPA practice across the federal government. The result would be a less effective process, worse outcomes — and a greater likelihood of court challenges. This would place a real burden onto the shoulders of the public, especially vulnerable communities.

CEQ received approximately 12,500 comments on its advance notice. A coalition of 341 public interest organizations wrote: “The promise of the NEPA process — that the government will consider the environmental impacts of its decisions, disclose those impacts to those affected, and ensure the public has an opportunity to meaningfully weigh in — is at the heart of democracy.”

NEPA has a lot to offer. It has a long record of facilitating an informed and balanced approach in public land management and other federal actions. But as we have seen at BLM, opportunities can be missed and tools misused when one constituency is ensured “dominance” through “streamlining” and the others are systematically silenced. TEF

Editor’s Note: We attempted to obtain a Sidebar from the Interior Department addressing the president’s energy development policies on public lands, but our request was turned down by the department’s press office.