null VIEWS FROM THE FEDERAL AGENCIES AND THE HILL: THE HILL

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 3C
VIEWS FROM THE FEDERAL AGENCIES AND THE HILL: THE HILL
Karen Billups
Partner
Balch & Bingham LLP
former U.S. Senate Energy and Natural Resources Committee Staff Director
Washington, DC

[Page 3C-1]

KAREN K. BILLUPS is a Partner at Balch and Bingham LLP in Washington, DC. From 2013 to 2015, Karen served as Staff Director for the Committee on Energy and Natural Resources of the United States Senate. From 2008 to 2013, she served as Republican Chief Counsel for the Committee, and Republican Deputy Chief Counsel from 2003 to 2008. She worked for the Senate Energy & Natural Resources Committee from 1995 to 1999. From 1995 through 1998, she was Counsel for energy issues and civilian and defense nuclear issues. In December, 1998, Billups became the Committee's Senior Counsel for energy issues, a position she held until she left the Committee in December 1999. Between 1999 and 2003, Billups was the Director of Federal Affairs and Washington Counsel for Entergy Corporation. She served as Counsel to Republican Members of the House Energy and Commerce Committee from 1993-1995; as legislative and regulatory counsel for energy clients at the law firm of Balch and Bingham from 1992-1993; with the Office of General Counsel at the Department of Energy from 1990-1991; and as an attorney with Baker & Botts from 1987 to 1990. She holds a J.D. from the University of Texas School of Law and a B.A. from Southern Methodist University.

I. A Power Shift in Washington

[Page 3C-2]

A redline of the presentation most would have written prior to Nov. 8^th

(vs. what really happened):

President Trump

Vice President Pence

Majority Leader McConnell

Minority Leader Schumer

Speaker Ryan unchallenged

II. What is the Substantive Difference for Public Lands?

A. From Candidate Trump:

AN AMERICA FIRST ENERGY PLAN

? Make America energy independent, create millions of new jobs, and protect clean air and clean water. We will conserve our natural habitats, reserves and resources. We will unleash an energy revolution that will bring vast new wealth to our country.

? Declare American energy dominance a strategic economic and foreign policy goal of the United States.

? Unleash America's $50 trillion in untapped shale, oil, and natural gas reserves, plus hundreds of years in clean coal reserves.

? Become, and stay, totally independent of any need to import energy from the OPEC cartel or any nations hostile to our interests.

? Open onshore and offshore leasing on federal lands, eliminate moratorium on coal leasing, and open shale energy deposits.

? Encourage the use of natural gas and other American energy resources that will both reduce emissions but also reduce the price of energy and increase our economic output.

? Rescind all job-destroying Obama executive actions. Mr. Trump will reduce and eliminate all barriers to responsible energy production, creating at least a half million jobs a year, $30 billion in higher wages, and cheaper energy.¹

B. In his Energy Policy speech, Candidate Trump had some complaints about President Obama's Oil and Gas Policy (4 out of 5 were about public lands):

[Page 3C-3]

? He's taken a huge percentage of the Alaska National Petroleum Reserve off the table

? Oil and natural gas production on federal lands is down 10%.

? 87% of available land in the Outer Continental Shelf has been put off limits.

? Atlantic Lease sales were closed down too - despite the fact that they would create 280,000 jobs and $23.5 billion in economic activity.

? President Obama entered the United States into the Paris Climate Accords - unilaterally, and without the permission of Congress. This agreement gives foreign bureaucrats control over how much energy we use right here in America.²

C. Candidate Trump's "100-day Action Plan":

? We're going to rescind all the job-destroying Obama executive actions including the Climate Action Plan and the Waters of the U.S. rule.

? We're going to save the coal industry and other industries threatened by Hillary Clinton's extremist agenda.

? I'm going to ask Trans Canada to renew its permit application for the Keystone Pipeline.

? We're going to lift moratoriums on energy production in federal areas

? We're going to revoke policies that impose unwarranted restrictions on new drilling technologies. These technologies create millions of jobs with a smaller footprint than ever before.

? We're going to cancel the Paris Climate Agreement and stop all payments of U.S. tax dollars to U.N. global warming programs.

? Any regulation that is outdated, unnecessary, bad for workers, or contrary to the national interest will be scrapped. We will also eliminate duplication, provide regulatory certainty, and trust local officials and local residents.

? Any future regulation will go through a simple test: is this regulation good for the American worker? If it doesn't pass this test, the rule will not be approved.³

III. Examples of Major Obama Rules/Executive Orders Under Threat of Reversal

[Page 3C-4]

A. The Environmental Protection Agency ("EPA") has multiple targets:

? Clean Power Plan⁴

? Endangerment Finding⁵

? Waters of the US Rule⁶

? Ozone National Ambient Air Quality Standards⁷

B. The Department of Interior has its share:

? Stream Protection Rule⁸

? Endangered Species Act Critical Habitat Rule⁹

? Coal Mine Leasing Moratorium¹⁰

? Public Land Planning 2.0¹¹

? Methane and Waste Prevention Rule¹²

? Energy Valuation Rule¹³

? Sage Grouse Conservation Plans¹⁴

C. And, finally, Executive Orders/Presidential Proclamations

[Page 3C-5]

? Monument status for Atlantic and Arctic Outer Continental Shelf¹⁵

? New monuments - Bears Ears,¹⁶ Gold Butte¹⁷

? Social Cost of Carbon¹⁸

? Others issued prior to January 20^th ?

IV. How Can Congress and the New Executive Effectuate Regulatory Change?

[Page 3C-6]

A. Tools in the New Administration and Congress' Toolbox

? Stand-alone legislation

? Appropriations riders

? Budget Reconciliation

? Congressional Review Act

? Traditional Rulemaking Process

? Informal agency actions

? Litigation option

B. Advantages and Drawbacks

1. Stand-alone legislation:

Pro: most direct and legally binding

Con: "regular order" is time consuming; requires supermajority of 60 votes in Senate for cloture.

2. Appropriations Riders:

Pro: "must pass" legislation

Con: generally limited to fiscal impact; point of order on legislation on appropriations

3. Budget Reconciliation:

Pro: expedited process; only requires simple majority for passage

Con: must be an assumption in the budget resolution; in the Senate, all language must have budgetary impact (raise or save federal dollars). ¹⁹

4. Congressional Review Act:

Pro: Expedited process; only requires simple majority for passage

Con: limited time of application ( see more below).

5. Traditional Rulemaking Process:

Pro: avoids legislative action;

Con: changes cannot be "arbitrary or capricious;" rulemaking process is resource and time intensive; subject to legal challenge

[Page 3C-7]

6. Informal Agency Actions:

Pro: less time consuming

Con: cannot directly conflict with statutes or regulations

7. Litigation Options:

Pro: Places decision in the hands of the courts; creates judicial precedent

Con: Generally rely on outside groups to file challenges.

V. The Congressional Review Act

A. The Statute

Enacted in 1996 as part of the Small Business Regulatory Enforcement Fairness Act (as part of the "Contract with America") ²⁰

-Applies to all agency rules promulgated in last 60 legislative days

-Privileged under Senate rules - limited to 10 hours of debate

-51 votes needed in Senate, simple majority in House

-Must be signed

...