HAPPY TUESDAY! 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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IN TODAY’S EDITION OF ‘IS IT LEGAL?’ A new Interior Department move to leave controversial temporary leaders in place indefinitely may violate laws on filling vacancies, legal experts say, and skirts requirements for Senate confirmation.
In a statement provided to The Hill on Friday, Interior said leaders for the Bureau of Land Management (BLM) and the National Park Service (NPS) will continue to serve in their roles pursuant to “updated succession orders.”
However, Interior refused to provide a copy of the new orders, leaving unclear the breadth of the directive leaving acting BLM head William Perry Pendley and acting NPS director David Vela in place.
The effort quickly drew criticism from outside groups, who argued the administration is once again avoiding the Senate to keep controversial leaders in place.
“What they’re doing is the result of a failure of imagination from Congress,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group. “They never imagined an administration that would ignore the law and ignore the constitutional duties to consult the Senate.”
Pendley had long advocated for selling off the public lands he now manages, while Vela has faced scrutiny for reopening national parks during the coronavirus outbreak.
Interior Secretary David Bernhardt has faced criticism for issuing orders to keep Pendley and Vela in their posts for several months at a time.
Watchdog group Public Employees for Environmental Responsibility sued in April, arguing the orders violated the Federal Vacancies Reform Act by keeping the men in their posts beyond 210 days.
The orders “falsely asserted that the need for the ‘temporary’ re-delegations is due to the ‘Presidential transition,’ which now is long past more than three and one quarter years post-inauguration,” the group wrote in its suit.
The new orders “provide the same legal standing as prior actions and ensure the smooth continuity of operations for leadership positions,” Interior said in a statement Friday.
Updating the succession orders would mark a shift in the strategy used to keep Pendley and Vela in office. The move leaves the men in their roles without the expiration date hanging over their authority that accompanied the earlier orders from Bernhardt.
Nina Mendelson, a law professor at the University of Michigan, said the legality of the order depends on just how much authority is being given to the two men. Assigning very limited duties might withstand muster, while a wholesale handing over of the role could be problematic.
“The issue is we don’t know what’s in the succession order. If it changes one little function maybe we’d have fewer concerns about it, but if it’s transferring a significant number of functions from one office to another office or a particular person, it is potentially illegal,” she said.
So how bout that public records law…
Interior refused multiple requests from The Hill to provide documentation of the orders. It instead said that the department’s leadership team was listed online.
“It should be a very easy paper to produce out of the department’s operating manuals,” Weiss said. “The fact that they have not produced any documentation for this theoretical order of succession means that they are hiding something.”
Other legal experts said the succession order raises more ethical concerns than legal ones.
“It’s a crazy workaround to the appointments process,” said Anne Joseph O’Connell, a law professor at Stanford University.
Read more on the legal issues here.
SEE YOU IN COURT: An environmental group on Tuesday said it will sue the White House if President Trump doesn’t walk back an executive order that waives endangered species protections along with a host of other environmental laws.
The Thursday order from Trump relies on emergency authority to waive the requirements of a number of environmental laws, arguing the U.S. needs to fast-track construction projects to fight the economic fallout tied to the coronavirus pandemic.
The order could be a boon to controversial projects that have lingered while agencies undertake environmental reviews, ranging from pipelines to oil and gas drilling to highway construction.
Weighing how those projects might impact imperiled plant and animal life is just one of the considerations.
But the suit from the Center for Biological Diversity argues the Trump administration is violating laws that allow for sidestepping environmental review only in fast-moving emergencies like an environmental disaster.
“Congress made the deliberate decision not to elevate general economic activity and ordinary infrastructure projects above the interests of imperiled species but, rather, to ‘afford’ listed species ‘the highest of priorities’ even above the ‘primary missions’ of federal agencies,” the Center wrote in its letter of intent to sue.
The letter follows guidelines requiring a 60 day notice before filing a suit.
“President Trump has used his lawful executive authority to expedite infrastructure projects and the economic recovery while protecting the environment, and CBD is misreading the plain text of the order to push a radical, Green New Deal-like agenda,” White House spokesman Judd Deere said in an email, using an abbreviation for the Center.
The Trump administration has taken a number of steps to weaken the Endangered Species Act.
A rule finalized by the administration in August dramatically scales back America’s landmark conservation law, limiting protections for threatened species and how factors like climate change can be considered in listing decisions. It also curbs the review process used before projects are approved on their habitat.
The Thursday order also lifts environmental review required under the National Environmental Policy Act and the Clean Water Act — all of which Trump argued was necessary.
Read more on the executive order here.
AND A RAPID FIRE ROUNDUP:
-Investigation, please… Democratic lawmakers are requesting an investigation into the U.S. Park Police’s use of force in clearing demonstrators who had gathered near the White House to protest the killing of George Floyd.
Park Police have acknowledged using chemical agents on June 1 to clear protesters shortly before President Trump crossed Lafayette Square for a photo op at a nearby church.
The Department of Interior, which oversees Park Police, has been under increasing pressure from Democratic lawmakers to explain why a largely peaceful protests was met with such a show of force.
Sens. Ron Wyden (D-Ore). and House Natural Resources Chair Raul Grijalva (D-A.Z.) along with Rep. Deb Haaland (D-N.M.) have asked Interior’s Office of Inspector General to create a website where people present for the protest can submit footage documenting the actions taken by police.
Lawmakers are asking OIG to “investigate whether the Park Police’s use of force in Lafayette Park complied with applicable law, regulations and agency guidance, including standards set by the Federal Law Enforcement Training Center. The OIG’s investigation should extend to actions taken by the Park Police and any other Department of Interior law enforcement agencies involved in responding to protests since the death of George Floyd. It also should examine from where the agency received its directives,” the wrote.
Read more on it here.
–Menezes advances… The Senate Energy and Natural Resources Committee on Tuesday advanced the nomination of President Trump’s pick for the second-in-command role at the Energy Department.
Mark Menezes’s nomination to be deputy energy secretary received opposition from just one senator on the committee, Catherine Cortez Masto (D-Nev.), over the Trump administration’s reported consideration of nuclear testing.
The Washington Post reported last month that administration officials discussed the possibility of such testing during a May 15 meeting with senior officials.
This would be the first time the U.S. has conducted a nuclear test since 1992. In the 20th century, some U.S. nuclear tests were conducted at a site in Nevada, Cortez Masto’s home state.
“Reports are suggesting that this Administration is prepared to jeopardize the health and safety of Nevadans, undercut our nation’s nuclear nonproliferation goals, and further weaken strategic partnerships with our global allies just to flex its muscles on the global stage,” Cortez Masto said in a statement submitted to the congressional record.
Read more on it here.
EMINENTLY QUOTABLE: Senate Majority Leader Mitch McConnell (R-Ky.) pushed back on the idea that support for a bill that would give money for the Land and Water Conservation Fund, which uses oil and gas revenues to provide money for conserving habitats of endangered species and developing parks and outdoor recreation sites, was an election-related move to help vulnerable senators.
Asked if the legislation was an “ election-year gift” for Sens. Cory Gardner (R-Colo.) and Steve Daines (R-Mont.), McConnell said “It’s in proximity to the election but nobody said you ought to quit doing things just because there’s an election.”
“We have one every two years. There’s always an election coming up but we’ve been able to find our way through all this partisanship and do something important for the country,” he added.
ON TAP TOMORROW:
The House Natural Resources panel will hold an online forum looking at coronavirus impacts on wildland fire operations and vulnerable communities.
OUTSIDE THE BELTWAY:
Chesapeake Energy, a Fracking Pioneer, Is Reeling, The New York Times reports
Britain about to hit 2 months without power generated by coal plants, we report
As EPA Steps Back, States Face Wave Of Requests For Environmental Leniency, NPR reports
ICYMI: Stories from Tuesday…
Interior move keeping controversial acting leaders in office faces legal scrutiny
White House faces suit on order lifting endangered species protections
Barrier around Lafayette Square to be removed by Wednesday
Britain about to hit 2 months without power generated by coal plants
EPA to allow use of weedkiller until July 31 after court overturns approval
Senate advances deputy energy secretary nominee
In Trump response to coronavirus, left sees environmental injustice
Lawmakers seek investigation of Park Police after clearing of White House protesters