Weekly Newsletter | February 8, 2019

Issues

David Bernhardt, selected to head Interior Department. President Trump has selected David Bernhardt to be the next Secretary of the Department of Interior Department (DOI). David Bernhardt is no stranger to serving the public – beyond his time as acting secretary following former Secretary Ryan Zinke’s resignation, Bernhardt oversaw hundreds of attorneys in the DOI during a formative tour as the department’s solicitor.

Following his early time with DOI, Bernhardt worked for lobbying law firm Brownstein Hyatt Farber Shreck LLP. Upon President Trump’s announcement of Bernhardt’s nomination, IPAA President and CEO Barry Russell released the following statement:

“We are pleased with President Trump’s choice of David Bernhardt to be the next Secretary of the Interior. Mr. Bernhardt knows the department well and understands the integral role that the Department of the Interior plays in oil and natural gas development, both onshore and offshore. As a westerner, Mr. Bernhardt is familiar with western lands and how by statute the Interior Department manages public lands and waters with multiple use policies that balance conservation, recreational opportunities, job-creating economic activities, and safe, responsible energy development. David Bernhardt is knowledgeable about the independent producers that operate on federal lands and we look forward to working with the Department on new ways to continue growing our economy, while improving the environment and enhancing life for all Americans.”

Bernhardt has long been an advocate of reforming the Endangered Species Act (ESA) and if he is approved by the Senate, Bernhardt is expected to continue that work.

A date for Bernhardt’s Senate confirmation hearing as Interior Secretary has yet to be set.

Federal and state sage-grouse conservation plans remain at odds. The postponement of federal sage-grouse conservation plans following the 35-day partial government shutdown has spurred some Western states to act on their own.

In Nevada, Sen. Catherine Cortez Masto wrote the bill that would prohibit the Secretary of the Interior from issuing oil and gas leases throughout the entire 450,000-acre Ruby Mountains Ranger District. The bill would not affect grazing, mining or any other existing use on the land. Masto cited a need to protect habitat for wildlife including deer, mountain goats, bighorn sheep, sage grouse and mountain lions.

In Wyoming, a measure proposed by State Rep. Steve Harshman, would extend the limits on sage grouse farming in Wyoming by 10 years. The first-quarter oil and gas lease sale from the BLM will go forward next month — as will the supplemental sale of sage grouse parcels this month — despite delays from the partial federal shutdown.

In Utah, although the U.S. Fish and Wildlife Service has recommended buffer zones around the grouse’s breeding areas, or leks, various state and federal plans governing the bird’s 173 million acres of range are inconsistent. A new study, supported by Utah Public Lands Policy Coordinating Office, Utah Division of Wildlife Resources, and Utah State University Extension has quantified the appropriate buffer distances based on existing sage grouse habitat and installation of new electric power and transmission lines. The study also covered habitat in Idaho and Wyoming.

These latest findings suggest land managers can minimize general impacts of development by creating buffer zones for active leks of at least 1.7 miles.

In the News

Record grizzly deaths spark call to action. E&E News, Sub req’d. Failure to implement “common-sense measures” recommended in a decade-old report has led to a record number of Yellowstone grizzly bears killed last year, mostly due to interactions with people, according to a coalition of conservation groups that is also seeking updated guidance. In a letter sent yesterday to the members of a subcommittee of federal-state officials and researchers monitoring grizzlies in the Yellowstone ecosystem, the coalition says the 2009 “Yellowstone Mortality and Conflicts Reduction Report” needs to be updated — and additional protection measures developed — after a record 65 grizzly bear deaths in the region in 2018. The Interagency Grizzly Bear Study Team compiled the data, which the U.S. Geological Survey released in December. A total of 56 Yellowstone grizzlies were killed in 2017, 58 in 2016 and 61 in 2015, data show. The federal-state Yellowstone Ecosystem Subcommittee — a multiagency group overseeing grizzly bear recovery in the ecosystem — completed the conflicts reduction report in 2009. The report made “33 recommendations to reduce grizzly bear mortalities, including 21 recommendations to reduce hunter-related conflicts alone.

Industry takes aim at deference standard. E&E News, Sub req’d. Electric utilities, energy producers and industry groups are urging the Supreme Court to strike down an agency deference rule they believe gives the executive branch too much power. The Utility Air Regulatory Group, the National Mining Association, the American Farm Bureau Federation and others filed briefs yesterday criticizing what’s known as Auer deference, a legal standard that directs judges to defer to an agency’s reasonable interpretation of its own ambiguous regulation. “The Court should abandon this doctrine, which would encourage agencies to be clearer in drafting regulations and allow courts to play their proper role in interpreting the regulatory burdens imposed on the public,” several groups told the Supreme Court in an amicus brief yesterday. Named for a 1997 case, Auer is in the hot seat this year as the justices consider whether to overturn the precedent. The high court in December agreed to review Kisor v. O’Rourke, a case that centers on veterans’ benefits but turns on whether the deference standard should be scrapped (Greenwire, Dec. 10, 2018). The mining association and the farm bureau joined a brief with other organizations listing examples of court cases in which Auer led to confusion or outcomes they consider unfair. Among the cases: a district court decision upholding Endangered Species Act habitat protections for piping plovers despite local governments’ allegations that the scope of land protections exceeded certain parameters of the Fish and Wildlife Service’s own regulations.

Trump admin appeals injunction over pipeline. E&E News, Sub req’d. The Trump administration is appealing a recent court order that temporarily halted construction of the Keystone XL pipeline. U.S. District Court for the District of Montana Judge Brian Morris last year ordered a stop to the long-embattled oil transport line through Canada and Nebraska while the State Department reworks its review (Energywire, Nov. 9, 2018). The government’s appeal, filed Friday, follows appeals by both TransCanada Corp. and environmental challengers, who said they may fight some parts of the November injunction (Energywire, Jan. 17). Morris found that the Trump administration’s State Department had failed to justify why the agency decided to issue a cross-border permit after the Obama administration blocked the project. He called for more analysis of the pipeline’s climate impacts and discussion of where the project fits in the current oil market. The judge, an Obama appointee, simultaneously quashed some environmental challenges, such as a claim that TransCanada fell short of its duties under the Endangered Species Act in its plans to mitigate impacts to animals in the pipeline’s path. The cases now head to the 9th U.S. Circuit Court of Appeals, which has blocked several Trump administration policies. President Trump, who said the Morris order was politically motivated, has also accused the West Coast court of exhibiting liberal bias.

Greens seek to overturn Utah lease sales near monuments. E&E News, Sub req’d. A Utah-based conservation group today filed suit in federal court challenging dozens of oil and gas leases sold by the Bureau of Land Management, arguing the Trump administration relied on “arbitrary, capricious and legally inadequate efforts” ahead of a March 2018 auction. The nonprofit Friends of Cedar Mesa is contesting 43 leases that cover more than 51,000 acres of land in San Juan County, Utah, and seeking to have the sales reversed. “For an on-the-ground organization focused on stewardship and working constructively with government agencies, going to court is an absolute last resort for us,” Friends of Cedar Mesa Executive Director Josh Ewing said in a statement. The lawsuit filed in the United States District Court for the District of Utah marks the first time the Bluff, Utah-based group has filed a case against the government. The suit argues that BLM violated various environmental regulations, including the National Historic Preservation Act, National Environmental Policy Act, Administrative Procedure Act and Endangered Species Act.

Atlantic Coast permit pileup: Where things stand. E&E News, Sub req’d. Though the Atlantic Coast pipeline’s path winds through mountainous Appalachia, the contentious gas project may face its biggest uphill battle in court. Over the last two months, the 4th U.S. Circuit Court of Appeals has instructed or allowed federal agencies to revisit a slate of critical approvals for the gas pipeline. The court’s Dec. 7 delay of a key Fish and Wildlife Service Endangered Species Act review, which the 4th Circuit has now twice rejected, led developers to halt construction Since that time, the court has returned several other key federal permits and approvals — sometimes at regulators’ request. In the meantime, the project’s costs and schedule have become moving targets. The delays are notable, especially in light of President Trump’s reported plans to further smooth the path for energy infrastructure build-outs across the country (Greenwire, Jan. 24). “Trump’s deregulatory agenda and efforts to streamline the pipeline permitting process is bumping up against the law,” said Josh Price, energy and utilities analyst at Height Capital Markets. “Just because he wants to speed infrastructure doesn’t mean the laws have changed.”