Obama's Mad Dash to Protect the Environment

What environmentalists hope to accomplish before the 44th president leaves office

Gold Butte, a dramatic stretch of Mojave Desert and sagebrush steppe with fossilized dunes and Native American etchings, is also home to Cliven Bundy and his family. (Jeff Scheid/AP)
gold butte

Within a week of the election, League of Conservation Voters president Gene Karpsinski met with several key White House officials to deliver a single, consistent message on how they should address the administration’s unfinished environmental and energy business.

“You have been bold and aggressive so far. Don’t slow down at all now,” Karpinski told them. “This will be our last chance to make progress for four years. Be bold.”

They were pushing on an open door. President Obama and his top aides, who have ushered through an increasingly ambitious set of energy and environmental policies during his second term, have decided to flood the zone during his remaining couple of months in office. For months, they had envisioned finalizing a set of regulations and other executive actions that would set the stage for Hillary Clinton’s presidency; now they face the prospect of a Republican successor who has vowed to revive the U.S. fossil fuel industry and eliminate two regulations for every one he adopts.

Obama, who noted a week after the election that the federal government “is not a speedboat, it’s an ocean liner,” is determined to shift its trajectory as far to the left as possible before Donald Trump takes office in January. In many cases, that means exerting every federal lever still available to promote renewable energy, restrict drilling and coal extraction, and safeguard a handful of prized landscapes in the western United States.

Within the span of just two weeks after the election, the administration issued a series of key policies aimed at cementing environmental gains. It issued a five-year plan for offshore oil and gas drilling that halts such decisions in the Chukchi and Beaufort Seas off Alaska, as well as in waters off the southeast Atlantic Coast. The administration also finalized a rule aimed at curbing accidental methane releases from oil and gas drilling on federal and tribal lands. Officials estimate the new methane rule—which compels reductions in gas flaring, more leak inspections, and the installation of new equipment in some operations—will cut annual emissions of the heat-trapping gas by 175,000 to 180,000 tons.

The Department of Justice also announced a settlement with Devon Energy that cancels 15 leases in the Badger-Two Medicine area of the Lewis and Clark National Forest in Montana, near Glacier National Park. The leases, which were initially leased under Ronald Reagan and have not been developed, had been the subject of a protracted legal dispute because the area is home to the creation story of the Blackfeet tribe and is close to the Bob Marshall Wilderness Area. And on December 4, the Army Corps of Engineers announced it would consider an alternate route for the $3.7 billion Dakota Access pipeline, which the Standing Rock tribe in North Dakota protested out of concern that the pipeline could pollute the tribe’s drinking water supplies and threaten sacred sites.

On the other side of the ledger, the Interior Department finalized a rule just two days after the election that aims to expand wind and solar development on Bureau of Land Management–owned land by streamlining the permitting process and providing financial incentives for firms to bid on areas that have the best potential for generation capacity and the fewest conflicts with imperiled species.

“We don’t think about these decisions in the here and now. We’re thinking about it for generations forward,” Interior Secretary Sally Jewell explained to an audience at Georgetown University on November 29.

Republicans—who will control both chambers of Congress as well as the White House—have threatened to overturn some of these rules, especially those that restrict coal, oil, and gas exploration. While it takes at least a year to rewrite a regulation and even longer to overhaul a five-year leasing plan, the rules Obama has issued since June can be reversed under the Congressional Review Act, a 1996 law that has been used successfully just once in its 20-year history, to overturn an ergonomics rule adopted in 2001, at the very end of President Clinton’s second term. Under the law, the House and Senate can overturn a rule by a majority vote within 60 legislative days if the president signs the resolution of disapproval into law, and given the current congressional schedule, lawmakers will have several months to jettison Obama’s regulations even after he’s left office. Senator John Barrasso (R-Wyoming), who has frequently criticized the president’s energy and environmental policies, has already said, “We plan to use that technique vigorously in the next administration.”

Obama doesn’t seem too worried about these threats. Asked about it during a press conference on November 20, while traveling in Lima, Peru, he replied, “That’s their prerogative,” but “I feel very strongly these are the right things to do, and I’m going to make sure I do them.”

That means environmental advocates—who confess to going through alternating phases of deep depression and panic in recent weeks—are working doggedly to secure as many victories as they can over the next few weeks while they still have easy access to the Oval Office. Some of the as-yet-uncompleted actions are piecemeal regulations, such as Environmental Protection Agency standards aimed at preventing accidental chemical releases that haven’t been updated for a quarter century, a stream protection rule, and tighter energy efficiency standards for appliances ranging from furnaces to commercial boilers.

But others have a more overarching theme, such as protections for sacred Native American sites across the country. The Dakota Access pipeline decision and the recent settlement with Devon both fall under this category and have cheered the tribal-environmental alliance that elevated these issues to national prominence. Now attention has shifted to sites such as Bears Ears, a site in southeastern Utah that contains ancient Pueblo petroglyphs and other archeological treasures that remains vulnerable to looting and vandalism.

Five tribal nations have joined together to ask Obama to designate Bears Ears a national monument under the 1906 Antiquities Act and are seeking to manage a proposed 1.9 million-acre swath of land along with federal authorities. Many environmental groups have joined in the effort, arguing the move would safeguard a public resource and serve as an important precedent for tribal-federal relations.

“I think there’s a huge opportunity for President Obama to right historic wrongs by addressing the rights and welfare of sovereign tribal nations by answering their call to protect their sacred lands and waters,” said the Wilderness Society’s Jamie Williams in an interview.

Nearly every elected state and federal official in Utah—including Rob Bishop, who chairs the House Natural Resources Committee, and Jason Chaffetz, who chairs the House Oversight and Government Reform Committee—oppose unilateral action by the president and have introduced legislation that would protect a portion of Bears Ears while opening other parts of the state to development. Administration officials are currently looking at making a national monument designation but scaling back the size from the tribes’ original proposal in an effort to respond to Utah officials’ concerns.

Obama has shown an increasing willingness to use his authority under the Antiquities Act to protect areas of historic, cultural, and ecological importance—only Franklin D. Roosevelt has used it more often—and Bears Ears is not the only place Obama is probably going to single out for attention. A pair of civil rights sites in Birmingham and Anniston, Alabama, are likely to make the list to commemorate the 1963 bombing at the 16th Street Baptist Church and the 1961 attack on a group of Freedom Riders, respectively. And 6,200 acres in Humboldt, Santa Cruz, and San Luis Obispo Counties in California will likely be added to the existing California Coastal National Monument.

Then there’s Gold Butte, a dramatic stretch of Mojave Desert and sagebrush steppe that includes fossilized sand dunes, ancient Native American etchings, and critical habitat for the threatened desert tortoise. It is also home to Cliven Bundy and his family, who have challenged BLM officials’ authority to patrol the region despite the fact that it’s the agency’s land. Senate Minority Leader Harry Reid (D-Nevada) has spent decades working to protect Gold Butte and has personally appealed to Obama to create a monument before they both leave office.

“This land belongs to all of us, but that hasn’t stopped radicals and far-right voices from fighting to use public lands like Gold Butte for their own selfish interests,” Reid said in a statement to Outside. “President Obama has the authority to protect Gold Butte, and I hope he will. I will continue pushing to make this happen for as long as it takes.”

While some environmentalists worry that an aggressive use of the Antiquities Act at the end of Obama’s term could prompt Congress to try to amend the law, that fight might happen anyway.

Bishop is already lobbying Trump to overturn not only some monuments designated by Obama but also sites Clinton declared two decades ago. The law surrounding such moves are murky: In 1938, the U.S. Attorney General wrote a formal opinion saying that the Antiquities Act authorized a president to establish a monument but did not grant a president the right to take one away. But that concept has not been tested in court. In a couple instances, presidents have shrunk the boundaries of a previous president’s proclamations. While that has happened only a few times, such as when Woodrow Wilson cut the acreage of the Mount Olympus National Monument, former Interior Department Solicitor General John Leshy noted in an email, “That’s not been tested in court either.”

What is clear is that Congress can alter the boundaries of a monument or rescind it altogether. And most activists are gearing up for the barrage of defensive battles they will have to wage once they’re facing a GOP-controlled executive and legislative branch.

Andrew Rosenberg, who directs the Union of Concerned Scientists’ Center for Science and Democracy, said many are “nervous” about what they might face under Trump, and it is difficult to determine how many measures the president-elect intends to roll back. “I’m not looking forward to spending this portion of my career defending things that I thought no longer needed to be defended, because of the significance they hold for public health and the environment,” Rosenberg said.

But Williams said that his community must take this moment to form new alliances with social justice groups to enlist broader support for the goals it already holds. “It’s time to build a movement,” he said.

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