On October 25, 2017, the U.S. Department of the Interior (DOI) released a report entitled, “Review of the Department of the Interior Actions that Potentially Burden Domestic Energy” (Review). The Review was prepared pursuant to Executive Order (EO) 13783, through which President Donald Trump commenced an immediate review by executive departments and agencies of “existing regulations that potentially burden the development or use of domestically produced energy resources[.]” After the review, any regulations that are determined to constitute an “unduly burden” are to be suspended, revised, or rescinded.

Background

As explained in the Review, the DOI:

• . . .is the steward and manager of America’s natural resources, including oil, gas, coal, hydropower, and renewable energy resources.

The DOI manages the production of these resources on federal lands and waters. In total, these resources produce approximately 19 percent of U.S. energy, which generates, on average, more than $10 billion in annual federal revenue.

On March 28, 2017, President Trump signed EO 13783, entitled “Promoting Energy Independence and Economic Growth.” In response, DOI Secretary Ryan Zinke has “aggressively pursued” a comprehensive review of DOI activities, to determine whether the activities and related regulations constitute an “unduly burden” on the development or use of domestically produced energy resources, with an emphasis on the aforementioned energy resources. The results are detailed within the Review.

Department Bureaus

There are nine DOI bureaus with energy programs and related responsibilities. These nine bureaus are:

• The Bureau of Land Management (BLM), which “administers onshore energy and subsurface minerals on certain public lands.”

The Office of Surface Mining Reclamation and Enforcement (OSMRE), which “works with states and tribes to oversee environmentally sound coal mining operations.”

The Bureau of Ocean Energy Management (BOEM), which “oversees offshore oil, gas, and wind development.”

The Bureau of Safety and Environmental Enforcement (BSEE), which “is the lead Federal agency charged with improving safety and ensuring environmental protection related to the offshore energy industry, primarily oil and natural gas, on the U.S. Outer Continental Shelf (OCS).”

The Bureau of Reclamation (BOR), which “is the second largest producer of hydroelectric power in the United States, generating over 40 million megawatt-hours of electricity each year.”

The Bureau of Indian Affairs (BIA), which “oversees leasing of tribal and Indian land for energy development.”

The Office of Natural Resources Revenue (ONRR), which “collects revenue from energy production and development.”

The United States Geological Survey (USGS), which “conducts research and assessments on the location, quantity, and quality of energy resources, including the economic and environmental effects of resource extraction and use.”

The U.S. Fish and Wildlife Service (FWS) and National Park Service (NPS), which “may have Federal or non-Federal oil and gas or mineral holdings” despite not being “directly involved in the production or development of energy as part of their missions[.]”

The Review

The Review is separated into sections that discuss the DOI’s review of the actions of each respective agency that fall within the purview of EO 13783.

Some of the most notable findings of the Review were the determinations that the following programs and actions constituted “unduly burdens” pursuant to EO 13783:

• “Obama-Era 5-Year Program,” which placed 94% of the OCS “off-limits” from leasing, which has “an adverse effect on jobs and energy dominance, while drastically reducing access to future revenue.”

2016 Federal Coal Leasing Moratorium, which “undermines American energy security, inhibits job creation, and reduces revenues to state and local governments.”

2015 Hydraulic Fracturing on Federal and Indian Lands Rule, which imposes compliance costs that “are not justified.”

“Holding energy producers hostage via Compensatory Mitigation,” which has “reduced predictability, created conflicts, and unnecessarily increased permitting/authorization timelines.”

Climate Change Section of the Review

In addition to the bureau-by-bureau breakdown, there is a section in the Review entitled, “Climate Change,” in which the DOI states that it is:

• . . .reviewing bureau reports. . .to identify requirements relevant to climate that can potentially burden the development or uses of domestically produced energy resources.

Thus far, the DOI has only found non-regulatory documents, such as handbooks, memoranda, manuals, and guidance.

The Review also noted that the BLM previously rescinded its Permanent Instruction Memorandum (PIM) earlier this year, pursuant to EO 13783. The PIM:

• . . .transmitted the [Council on Environmental Quality (CEQ)] guidance on consideration of greenhouse has (GHG) emissions and the effects of climate change in NEPA review, and provided general guidelines for calculating reasonably foreseeable direct and indirect GHG emissions of proposed actions.

The CEQ guidance was previously withdrawn pursuant to EO 13783.

Conclusion and Implications

The Review provides an overview of regulations that are going to be suspended, revised, or rescinded in the near future. Therefore, it is no surprise that various regulations previously enacted by the Obama administration made their way onto the list.

Looking forward, it will be interesting to see how effectively the Trump Administration will be in effectuating the goals of EO 13783, given that multiple environmental organizations have promised to file litigation in opposition to any attempt to repeal any regulations previously enacted by Obama.

The Review is accessible online at: https://www.doi.gov/sites/doi.gov/files/uploads/interior_energy_actions_report_final.pdf. (Martin P. Stratte)