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Obama’s rush to the end

Keeping track of rulemaking, policy decisions and other last actions before the Trump administration’s inauguration.

 

In their final weeks in office, Obama administration officials are releasing a flurry of rules that could have implications for federal land for decades to come. Most bolster the president’s conservation legacy but some do not. These rules have been years in the making but face imperiled futures.

A Trump administration could not simply erase these actions in most cases— but it could get help from the GOP-controlled Congress to either block them or prevent funding from going to implement them. It also could settle industry lawsuits and ask courts to send the rules back to the agencies to be rewritten in ways that reflect President Trump’s pro-industry and fossil fuel-friendly policies. It also could restart the rulemaking process to over turn the rules but that would take significant amounts of time.

This story will be updated as the Obama administration finalizes policy and rulemaking before President-Elect, Donald Trump, is inaugurated on Jan. 20. 

Update: On Dec. 20, Obama used executive order and banned drilling permanently in most Arctic waters and portions of the Atlantic Ocean, using a 1953 law to declare more than 125 million acres indefinitely off limits for future oil and gas leasing. The executive order protects the entire Chukchi Sea and a “significant portion” of the Beaufort Sea. The move was in conjunction with Prime Minister of Canada Justin Trudeau, who did the same for Canadian waters in the Arctic.

Extractive industry leasing on public lands

Montana: Badger-Two Medicine 

A three-decade dispute over oil and gas leases on culturally important native lands has been resolved by the Obama administration. On Nov. 16, the Bureau of Land Management cancelled 15 oil and gas leases owned by Devon Energy in the Badger-Two Medicine, a 130,000 acre area in northwestern Montana’s Lewis and Clark National Forest, and bordered by the Blackfeet Indian Reservation, the Bob Marshall Wilderness, and Glacier National Park. The announcement comes nine months after the BLM cancelled another oil and gas lease owned by Solenex LLC in the Badger-Two Medicine Area because a full impact study on natural and cultural resources never happened, which violates the National Environmental Policy Act (NEPA) and the National Historical Preservation Act. 

The leases were first awarded in the 1980s, but were later suspended; they were granted illegally, and the required consultation with the Blackfeet Tribe, which holds the area sacred, never occurred. The leases have long been controversial, and are part of the Obama’s administration tidying up of outstanding oil and gas lease disputes.

Two other leases in Badger-Two Medicine are owned by different companies, and were not addressed by the latest announcement. No date has been set for resolving them, as the lessees have not responded to the BLM’s attempts at resolution. Devon Energy was refunded $200,000 for rent and other costs, and Solenex LLC turned down a refund so they could appeal the March cancellation instead.

Colorado: Thompson Divide

On Nov. 17, the Bureau of Land Management announced a decision on a set of controversial oil and gas leases issued in 2003. The leases reside in Thompson Divide, which borders the affluent Aspen area within the White River National Forest, the most visited national forest in the nation. Thompson Divide is used for agriculture and, increasingly, recreation. Of the 65 leases addressed in the agency’s decision, 25 were cancelled. The companies that owned the leases, SG Interests and Ursa Operating, will be reimbursed by the BLM for lease sales and rent of the land, getting approximately $470,000 and $840,000 respectively. 

The decision also put new restrictions on 12 undeveloped leases, to update the time of year that drilling is allowed and how far operations must be from water. The decision also reaffirmed or modified 20 other leases, some of which have gone undeveloped for 10 years and are expired. 

Will Roush of the Wilderness Workshop, which has worked on the cancellation of the oil and gas leases, says that the deal was decades in the making. Still, the decision falls in the window of time when Obama administration officials are finishing up what they can before a new, drilling-friendly administration takes over.

On the same day in a separate case, the BLM took 17 leases permanently off the table in Roan Plateau, an area northwest of Thompson Divide that’s home to large herds of mule deer, elk and other wildlife, as well as large sources of oil and gas.

Utah: Greens Hollow

After being once delayed by lawsuits from environmental groups, the BLM has scheduled a coal lease sale in January 2017 that will give coal companies, likely Bowie Resources, access to 55.7 million tons of coal in Greens Hollow within the Manti-La Sal and Fishlake national forests in Utah.

The Greens Hollow tract finished its environmental impact analysis in 2015, before a 2016 federal moratorium on new coal leases was in place, allowing the sale to go forward. Amidst a number of initiatives to restrain extractive industries, the lease announcement follows an Obama administration decision in Colorado that could allow for the expansion of Arch Coal’s West Elk coal mine, on the Western Slope.

In September, the Sierra Club, Grand Canyon Trust, the Center for Biological Diversity and WildEarth Guardians filed an appeal to stop the sale, saying the BLM and Forest Service’s environmental analysis needed to include what impact mining would have on sage grouse conversation, and how the mined coal would contribute to climate change. The appeal was rejected because the Interior Board of Land Appeals, part of the Department of the Interior, decided only development of the lease, not the BLM sale itself, might contribute to those concerns. The lease is adjacent to the already-operating Southern Utah Fuel Co. Mine, owned by the Kentucky-based coal company Bowie Resources that pushed for an export coal terminal in Oakland, California.

BLM 2.0

The Bureau of Land Management published a new rule this week that aims to provide more people input in planning the future of vast stretches of public land of a West.

BLM Planning 2.0 calls for the agency to look broadly at large landscapes and across jurisdictional boundaries when it’s planning the future of the 245 million acres of land it oversees and give the public an earlier look at the big decisions the agency is considering. So multiple BLM field offices are to work together on plans and collaborate with surrounding landowners be they other federal or state agencies or private citizens.

The rule was years in the making and the BLM took pains to include the public as it drafted the rule.

But many local and state government officials oppose the rule. For instance, Western Governors’ Association executive director Jim Ogsbury told Congress this summer that Western Governors believe Planning 2.0 creates “confusion rather than clarity, less transparency rather than more.” 

Environmental groups generally consider the rule a step in the right direction. But Defenders of Wildlife was disappointed that the rule didn’t include specific provisions to support the conservation or recovery of endangered and threatened species or to require BLM field offices to assess the impacts of climate change and develop strategies to protect resources in peril or adapt manage practices to reflect climate change effects such as more intense wildfire, warming streams, earlier snowmelt and rising seas.

BLM Methane Rule

On Nov. 15, the Interior Department announced a final rule to reduce methane emitted during oil and gas operations in Bureau of Land Management areas. The rule aims to cut natural gas waste by capturing it for energy instead of losing it to leaks, venting or burning the excess. According to a 2010 Government Accountability Office report, 1.7 million homes could be fueled with the amount of natural gas emitted each year. Taxpayers would also benefit from harnessing the lost methane, as royalties from natural gas drilled on public lands are paid back to the federal government.

Through the Western Energy Alliance and Independent Petroleum Association of America, oil and gas companies responded with a lawsuit the same day, arguing that the BLM was overstepping in trying to manage air pollution. Montana and Wyoming filed a separate suit against the rule three days later, echoing the first lawsuit and adding that it infringed on states’ rights. The BLM cites the Mineral Leasing Act of 1920 as their mandate to prevent waste from oil and gas. The update of the 30-year-old rule will affect approximately 100,000 oil and gas wells on BLM land nationwide, and echoes a rule finalized in May by the EPA to cut methane emissions.

The rule will apply at both new and existing facilities, and was described by Secretary of the Interior Sally Jewell as being a part the Interior’s reform agenda, in accordance with the Obama administration’s Clean Power Plan. 

Offshore Drilling

The Department of the Interior released its five-year plan for offshore oil and gas leasing Nov. 18, officially taking drilling in the Arctic Ocean off the table until 2022. The Chukchi and Beaufort Seas will remain free of leases under the new plan, as well as the Pacific and Atlantic coasts. The plan, which took the Obama administration two years to put together, gives the opportunity for 10 new leases in the Gulf of Mexico and one in Alaska’s Cook Inlet, which has existing oil and gas infrastructure.

The Interior cited fragile Arctic ecosystems, potential negative impacts to native communities, and a lack of industry interest in the area as reasons for the limited leasing. Shell abandoned its drilling explorations in the Chukchi Sea in 2015 because of disappointing results and high costs.

Courtesy Bureau of Ocean Energy Management

Drilling in the Arctic has long been a contentious issue, since environmentalists fear it could not only damage already threatened Arctic wildlife, but also exacerbate climate change. Alaskan Republicans see the drilling as a way forward for job growth and oil and gas tax revenues in the state. Republican Sen. Lisa Murkowski, a strong fighter for Alaskan energy for her entire career, called the plan a “shortsighted decision.”

Secretary of the Interior Sally Jewell can approve the plan after a 60-day waiting period, before the new administration takes the helm. Trump hasn’t chosen a new Interior Secretary yet, but his reported shortlist includes Republicans who favor oil drilling, like former Alaskan governor Sarah Palin. The plan takes effect July 2017.

Colorado Roadless Rule

In 2014, a federal judge stopped an expansion of Colorado’s West Elk coal mine because the federal government had failed to take a “hard look” at the climate impacts from an exemption to the Colorado Roadless Rule that allowed the mining.   

Last week, the Forest Service released an Environmental Impact Statement that revealed its preferred alternative could increase greenhouse gas emissions 433 million tons over time and cost society billions of dollars. The pollution would come from methane vented into the air during mining and from burning federal coal to make electricity.

Administration officials plan to finalize the rule by the end of the year so that the decision is theirs and not Trumps’ appointees’.

Despite all its rhetoric about fighting climate change, this policy is an example of the Obama administration allowing more mining of the dirtiest fossil fuel in an area that would otherwise be protected from road building and other industrial development. The decision made some environmental activists furious and was part of a campaign by WildEarth Guardians, the Sierra Club and other groups to get the Obama administration to consider the greenhouse gas implications of its decisions for federal fossil fuels. “It got us riled up,” recalled Jeremy Nichols of WildEarth Guardians.

Robert Bonnie, the Under Secretary for Natural Resources and Environment, says reinstating the coal mining exception will preserve a roadless policy for Colorado that is the strongest in the nation. Colorado’s roadless rule, which was crafted by three governors and the Obama administration, preserves important forests that otherwise would be at risk, he says. These areas provide habitat to species pushed out of other areas due to climate change. “Roadless areas are part of the climate agenda too,” he adds. He concedes that the decision will gives Arch Coal a green light to do a lot more coal mining but justifies that by saying that regardless of the decision coal will be part of our energy mix for years to come.

But Earthjustice attorney Ted Zukoski said it is preposterous for Obama administration officials to keep supporting this policy given the strong and mounting evidence that the countries of the world need to keep most fossil fuels in the ground to avoid catastrophic consequences of climate change. The Obama administration officials’ refusal to rethink their decision, Zukoski said, sounds like: “We all agreed to steer the Titanic in this direction; we know there’s an iceberg ahead but we all agreed.” The final decision is expected in mid-December.

U.S. Secretary of the Interior Sally Jewell at the National Solar Thermal Test Facility in Bernalillo, New Mexico, in Jan. 2015.
Sandia Labs/Flickr user

Renewable Rules

The Obama administration, which from the start aspired to open public lands to wind farms and solar power projects, in November published the first comprehensive rules for competitive leasing for renewable power.

The 442-page rule is designed to encourage development of solar and wind farms in places with good access to transmission lines and demand for power and the least conflict with other uses of public land.  It does so by giving financial incentives to site projects in areas known as designated leasing areas, which have been vetted to ensure they do not contain important cultural, tribal or natural resources; do not provide habitat for rare species; and are not needed by the Defense Department. It also enshrines the rules for competitive auctions and the fees to ensure that taxpayers get a reliable return for the use of federal land for clean energy. 

The Obama administration identified 700,000 acres of public land as good locations for renewable projects in Arizona, California, Colorado, Nevada, New Mexico and Utah. “This rule is going to help continue to facilitate responsible renewable energy development on public land; something that Westerners are demanding because of the economic and clean energy benefits it provides,” says Alex Daue, assistant director of energy and climate at the Wilderness Society. 

The President’s Climate Action Plan calls on Interior to permit 20,000 megawatts of renewable power by 2020. Since 2009, Interior has approved 60 large renewable energy projects on public lands, including 36 solar, 11 wind and 13 geothermal projects. If built, the projects could provide 15,500 megawatts of renewable energy capacity, or enough to power approximately 5.1 million homes, according to the Bureau of Land Management. One of the biggest approved projects, for example, the Chokecherry Sierra Madre wind farm in south central Wyoming has been seeking approvals for 10 years. The company in September finally started building the main road for the first phase of its project. It still needs final approval for siting the first 500-wind turbines, but hopes to get that approval before President Obama leaves office.

“It’s an incredibly difficult process. The regulations are designed to make it easier; we’ll see,” said Bill Miller, president and CEP of the Power Company of Wyoming, a subsidiary of the Anschutz Corporation. Miller is skeptical that there will be an appetite for wind projects on federal land because of all the time it takes to get approval and because there are great wind resources on private land. The BLM has prioritized solar over wind and has designated solar energy zones, where there is less red tape.

Minerals Withdrawal Near Yellowstone National Park

Last week, Obama administration temporarily blocked new mining claims on approximately 30,000 acres of U.S. Forest Service land near the northern entrance of Yellowstone National Park. “There are good places to mine for gold, but the doorstep of Yellowstone National Park is not one of them,” said Interior Secretary Sally Jewell.

The ban will be in effect for two years, while the Departments of Interior and Agriculture evaluate whether to withdraw this land from new mining claims for an additional two decades. Only Congress can permanently ban mining. 

It is unclear how a Trump administration will approach this issue. Local businesses are hopeful that he will listen to their concerns. They joined together to press for action because they see gold mining as a threat to their livelihoods and lifestyles, and celebrated the announcement with a lunch in late November. “Then it will be boots on the ground because we’ve got to get legislation passed, and we’ve got to start tomorrow,” said Tracy Raich, a real estate agent who sells ranches in the area.

This story has been updated to correct the spelling of Alex Daue, assistant director of energy and climate at the Wilderness Society.

Elizabeth Shogren is HCN’s DC Correspondent. . Anna V. Smith is an editorial intern. She tweets .