Overnight Energy: Lawyers question public lands chief move leaving himself in power | DNC removes measure calling for end of fossil fuel subsidies from platform | Louisiana aims for net-zero emissions by 2050

HAPPY WEDNESDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-stage.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-stage.thehill.com or follow her on Twitter: @RachelFrazin.

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A SUCCESSFUL SUCCESSION? The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.

Over the weekend, it was made public that William Perry Pendley’s nomination will be withdrawn amid doubts he had the votes to be confirmed. Democrats all opposed the nomination because of Pendley’s opposition to federal ownership of public lands and his controversial comments on climate change and the Black Lives Matter movement. 

But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled. 

The Department of Interior previously had relied on a series of temporary delegations of power to keep Pendley and other Interior officials in office, even though they have not been confirmed by the Senate.

Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.

“It is the ultimate in bootstrapping because Pendley, who is in my view not serving legally in this job, is naming himself at the top in the order of succession,” said Nina Mendelson, a professor of law at the University of Michigan and an expert on administrative law. 

So what exactly is this succession order?

The May order mandates that if there is no BLM director, the next person in line, who gets to exercise the “authority of the director,” or act in that role, is the deputy director of policy and programs, which is the job Pendley officially holds. A June order lays out a similar policy for the National Park Service (NPS). Neither agency’s director position has been filled throughout the entirety of the administration. 

Interior spokesperson Conner Swanson argued that the orders “provide the same legal standing” as the department’s prior moves to extend the tenures through temporary secretarial orders. 

“These delegations under succession orders, which have existed and been updated throughout this administration and many prior administrations, comply with the Vacancies Reform Act in that they do not encompass the performance of functions or duties assigned by statute or regulation exclusively to the … position,” he told The Hill in an email. 

Pendley is already facing two lawsuits challenging his legal right to retain the position he’s served in for more than a year. 

Both suits, one from Montana Gov. Steve Bullock (D) and the other from the group Public Employees For Environmental Responsibility (PEER), say keeping Pendley in office violates the Federal Vacancies Reform Act (FVRA), which limits how long acting officials can fill vacancies for roles requiring Senate approval. 

PEER argued Pendley, along with then-NPS chief David Vela, violated the FVRA by filling in vacant roles beyond the 210 days allowed under the law.

And what do they think about the order?

After reviewing the succession orders for Vela and Pendley that were obtained by The Hill, PEER attorney Peter Jenkins similarly argued that they don’t have the authority to appoint themselves. 

He particularly took issue with the fact that the orders that say they are outlining who will “automatically succeed the director … in the absence of the incumbent.”

“There’s no director so what he’s saying doesn’t make any sense. He was never the director. He was never even appointed as the acting director. He was always the deputy director so first of all he wouldn’t have any authority to decide who shall succeed the director, only the director could decide that,” Jenkins said of Vela’s order. He made similar criticisms of the Pendley order.  

“This document itself only says who could succeed the director in their absence so since there is no director, there can’t all of a sudden become an absence of the director,” he added. 

Vela is set to retire in September, and Interior once again returned to a delegation order to name Margaret Everson as his replacement. The August 10 order has no expiration date. 

Pendley’s succession order gets more complicated by the fact that the other signatory, Principal Deputy Assistant Secretary Casey Hammond, is also serving in that role through a succession order of his own. 

“Maybe the idea here is that both of them are issuing the memorandum? But it’s not clear that Hammond has any greater authority to create a succession order than Pendley does. And in fact Hammond is not even an acting assistant secretary,” Mendelson said. “He is also a pseudo-acting official.”

“For very senior positions in the federal government, these kinds of pseudo-acting officials might not only violate the statute on acting officers. They also might violate the Constitution.”

And is it even legal for Pendley to keep leading the agency without Senate approval?

Other experts see the layers and layers of delegated authority that have kept Interior functioning since the beginning of the administration as part of a bigger issue.

“These orders themselves don’t tell us whether the delegations at [Interior]are legal under the vacancies act or the Appointments Clause. Congress didn’t intend for top positions at major agencies to go unfilled for years. When do stop-gaps go too far?” said Anne Joseph O’Connell, a professor at Stanford Law School who reviewed the succession orders.

Read more about Pendley’s order keeping himself in power here. 

WHAT’S HAPPENING AT THE DNC?

To subsidize or not to subsidize, that is the question: The Democratic National Committee (DNC) has quietly removed a portion of its climate platform saying that it wants to end subsidies to fossil fuel companies, HuffPost reported.

Party officials added an amendment that said, “Democrats support eliminating tax breaks and subsidies for fossil fuels, and will fight to defend and extend tax incentives for energy efficiency and clean energy,” to a group of provisions that were approved together, according to the news outlet. 

However, that language does not appear in the final version of the party’s platform. 

A DNC spokesperson told HuffPost in a statement that the amendment was “incorrectly included” and removed “after the error was discovered.” 

DNC spokespeople didn’t immediately respond to The Hill’s requests for comment. 

Although the party has decided to not endorse ending fossil fuel subsidies, it is a position that its nominee former Vice President Joe Biden has endorsed. 

“The Biden plan will be paid for by reversing the excesses of the Trump tax cuts for corporations, reducing incentives for tax havens, evasion, and outsourcing, ensuring corporations pay their fair share, closing other loopholes in our tax code that reward wealth not work, and ending subsidies for fossil fuels,” his climate plan says. 

Environmental activists blasted the DNC’s action on social media. 

“This move plays directly into the pockets of the oil and gas executives and lobbyists who’ve been vying for handouts for decades, and is a slap in the face for our movements for climate justice,” tweeted Greenpeace USA. 

Read more about the removal here. 

Inslee has high praise for Biden: Washington Gov. Jay Inslee (D) on Tuesday evening said that former Vice President Joe Biden’s climate plan is “perfect for the moment.”

“It’s perfect for the moment. I can’t tell you how thrilled I am [by] what Joe Biden has come up with under this energy plan,” Inslee said during a virtual event held by the Democratic National Committee (DNC) climate council.

Inslee, who was one of a number of Democrats who ran in the party’s presidential primary before ending his campaign in August 2019, had put forth an ambitious environmental plan that climate activists considered the gold standard.

On Tuesday, Inslee specifically praised the plan’s scope, use of environmental standards and its focus on racial justice.

“Every time he’s picked up a tool against climate change, he’s picked up a tool against social inequality and racial inequality at the same time,” the governor said. 

Read more about what Inslee had to say here. 

LOUISIANA MAKES A MOVE: The state of Louisiana will aim to achieve net-zero emissions statewide by 2050 under a new executive order signed by the state’s Democratic governor. 

The order, signed by John Bel Edwards, establishes a task force to make recommendations for the reduction of greenhouse gas emissions, and to help the state reach intermediate targets.

The state aims to reach at least a 26 percent reduction in greenhouse gas emissions by 2025 compared to 2005 figures. Five years later, it aims to have reduced emissions by at least 40 percent of the 2005 figure. 

The state cited, among other reasoning, the need to protect the state from the impacts of rising sea levels. 

A significant part of Louisiana’s economy is based on oil and gas production, an industry known to have many greenhouse gas emissions. 

However, Harry Vorhoff, the deputy director for the governor’s office of coastal activity, said the state hopes to work with industry to achieve its goals. He cited carbon capture technology as one possible fix.

“Our plan is to pull them in and have their engagement on the task force,” Vorhoff said of the industry. 

The net-zero goal puts the state in line with similar nationwide targets proposed by both Democratic presidential nominee Joe Biden and the Democratic National Committee. 

Edwards on Wednesday also signed a second executive order that aims to increase the state’s resilience to hurricanes and floods. That order requires state agencies to appoint resilience coordinators to help it adapt such measures across the government. 

Read more about the executive orders here. 

ON TAP TONIGHT: 

The Democratic National Convention will feature a section on climate change tonight. This portion of the evening will feature:

• Remarks from New Mexico Gov. Michelle Lujan Grisham
• A video on Joe Biden’s climate and clean energy plan, narrated by an electrical union worker in Pennsylvania
• A discussion with young climate activists
• A performance by Billie Eilish

OUTSIDE THE BELTWAY:

U.N. investor group targets Congress, U.S. regulators for climate action, Politico reports

Border wall created ‘dire emergency’ at Arizona wildlife refuge, The Arizona Daily Star reports

The Washington Post explains why California wildfires are so extreme right now

New York’s ConEd Faces ‘Steep Penalties’ for Storm Response, Bloomberg reports 

ICYMI: Stories from Wednesday (and Tuesday night)…

Iraq to sign oil deal with Chevron, foreign minister says

Maine delegation fears Trump won’t deliver on trade aid for lobster industry

DNC removes measure calling for end of fossil fuel subsidies from platform

Louisiana aims for net-zero emissions by 2050

Lawyers question public lands chief move leaving himself in power

Inslee calls Biden climate plan ‘perfect for the moment’