This blog post was originally published by the Environmental Law Institute at https://www.eli.org/vibrant-environment-blog and is republished with permission. It is cross-posted here as part of an upcoming series related to the March 12 Conference on Public Lands and Energy Transitions hosted by the George Washington University Law School's Environment and Energy Law Program.
With the help of the U.S. Congress, the U.S. Department of the Interior (DOI) has had a long and proud history of tackling pressing challenges through responsible and inclusive management of America's public lands. One might expect it would continue that tradition as climate change has become a major challenge confronting the nation.
Not so. In fact, Secretary of the Interior David Bernhardt has been doing more than any of his predecessors to promote fossil fuel development on America's public lands, all the while dancing around the issue of whether he has an obligation, or even the legal authority, to address climate change. In recent interviews and testimony on Capitol Hill, Bernhardt grudgingly admits that existing law says he must take climate into account in managing public lands. This is hardly a revelation. For some time, the courts have been telling DOI that the National Environmental Policy Act, which applies to all federal agencies and actions, requires it.
More important, there are other laws that apply specifically to DOI. They instruct the Secretary to manage public lands to serve "the long-term needs of future generations" and to "prevent unnecessary or undue degradation," to "ensure" that the "environmental health" of national wildlife refuges is maintained, and to leave national parks "unimpaired for the enjoyment of future generations." Bernhardt's slippery response to such mandates is that he does not see in them a "shall" that lays out specific steps he must take to meet the climate challenge.
One wonders what people in a decade or two will think when they look back on such sophistry. Surely, more should be expected from our public officials than using fallacious legal interpretations to justify putting their heads in the sand. At a time when companies and communities and governments all over the globe are stepping up to be part of a climate solution, this is nothing less than an abdication of responsibility.
The legal argument for climate-focused management of our public lands is clear. What more pressing problem faces those "future generations" whose needs Congress has directed Secretary Bernhardt to meet in managing public lands? His own Department has shown how important it is for him to take action. A U.S. Geological Survey report just last year details how carbon emissions from fossil fuels extracted from public lands comprise a significant proportion of total U.S. emissions.
Yet, Bernhardt told a House Committee that he is "not losing any sleep" over the climate issue. Instead, he has responded to critics by offering the bizarre argument that because carbon emissions are being curbed more in the United States than elsewhere, he has no obligation to do anything to reduce carbon emissions supplied by America's public lands. He has also asked Congress to enact legislation to stop him if it doesn't like the Administration's policy of "keeping none of it in the ground if you can help it," a policy that ranked high on the wish list of many of Bernhardt's former clients when he was in the private sector.
While existing laws may not explicitly require an immediate end to the production of all fossil fuels from the nation's public lands, they surely create a solemn obligation not to ignore future generations in how those lands are managed.
Secretary Bernhardt may not be losing sleep over climate change, but he is losing something more important – an opportunity to do what Congress has effectively already told him to do; namely, to make public lands part of the climate solution, and not a significant part of the problem.
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John Leshy | March 5, 2020
With the help of the U.S. Congress, the U.S. Department of the Interior (DOI) has had a long and proud history of tackling pressing challenges through responsible and inclusive management of America's public lands. One might expect it would continue that tradition as climate change has become a major challenge confronting the nation. Not so. In fact, Secretary of the Interior David Bernhardt has been doing more than any of his predecessors to promote fossil fuel development on America's public lands, all the while dancing around the issue of whether he has an obligation, or even the legal authority, to address climate change.
Matt Shudtz | March 5, 2020
From the farm fields of California to the low-lying neighborhoods along the shores of the Chesapeake Bay, structural racism and legally sanctioned inequities are combining with the effects of the climate crisis to put people in danger. The danger is manifest in heat stroke suffered by migrant farmworkers and failing sewer systems that back up into homes in formerly redlined neighborhoods. Fortunately, public interest attorneys across the country are attuned to these problems and are finding ways to use the law to force employers and polluters to adapt to the realities of the climate crisis.
Karen Sokol | March 2, 2020
Earlier this year, on the heels of the Earth's hottest decade on record, a coalition of former government officials, fossil fuel companies, car manufacturers, financial companies, and nonprofit organizations renewed their endorsement of a national carbon tax as "the most effective climate solution" (emphasis added). And by "the," it appears that they mean "the only." The catch is that the coalition's legislative plan also calls for preventing the federal government from regulating carbon emissions and from taking any other protective measures "that are no longer necessary upon the enactment of a rising carbon fee." Given the scale and complexity of the planetary emergency that we face, it would certainly be nice if the solution were that simple. But that, of course, is too good to be true.
David Driesen | February 27, 2020
On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
Noah Sachs | February 26, 2020
Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest.
Joel A. Mintz | February 24, 2020
In recent months the Trump administration has intensified its assault on federal environmental safeguards on several fronts. It has proposed drastic reductions in the scope of protections against water and air pollution, lagged in the cleanup of hazardous waste contamination, allowed the continued marketing of toxic herbicides, narrowed the scope of needed environmental impact reviews, ignored and undermined legitimate scientific studies and findings, and dismantled government attempts to mitigate and adapt to the climate crisis.
Noah Sachs | February 19, 2020
On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline's construction and protect the Appalachian Trail.
Daniel Farber | February 18, 2020
The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current global warming may impact society.
Matthew Freeman | February 12, 2020
When I was a 7th grader living in a Maryland suburb of Washington, D.C., my school system was one of many around the nation to launch a program of school busing to desegregate its schools. After 18 years, the 1954 decision in Brown v. Board of Education finally traveled a handful of miles down the road from the Supreme Court and arrived in Prince George’s County, Maryland. I was reminded of that as I listened to the latest episode of Connect the Dots, CPR’s podcast hosted by Rob Verchick, on the Juliana v. United States case