Amid Coal-Plant Closures, Navajo Nation and Hopi Tribe Face Economic Transition By CU Law Student Lauren Sakin

Despite President Trump’s promise to end “the war on coal,” the Hopi and Navajo Nations are facing the inevitable transition away from a coal-dependent economy due to the upcoming closure of the Navajo Generating Station (NGS) and Kayenta Mine. The Trump administration maintains that its policies will revive coal. However, so far such efforts have achieved little success. The Federal Energy Regulatory Commission (FERC) rejected the administration’s proposal requiring utility companies to subsidize and stockpile coal. Tribes and communities across the country must therefore plan, whether sooner or later, for a future without conventional coal. Colorado Law Professor Sarah Krakoff has begun to explore these issues, which will form part of her continuing research agenda. Ideally, a future without NGS and Kayenta Mine would provide opportunities for the Navajo Nation and Hopi Tribe to diversify their economies while safeguarding their land and resources. The idea of a “Just Transition,” which would provide funding for lost revenue and jobs as well as a long-term plan to create an economically and environmentally sustainable economy, has gained traction in some quarters. Colorado Law and the GWC stand ready to provide research to support such a solution, if it is a path that the Tribes themselves choose.

What Does the Colorado Plateau Mean to the University of Colorado Law School?

Recently, Colorado Law students experienced first-hand NGS’s impacts on the Navajo Nation. GWC’s executive director, Alice Madden, taught a capstone course on the history, diversity, and natural resources of the region. The seminar included a week-long road-trip on the Colorado Plateau where students met tribal leaders, attorneys, and national parks managers. According to student Gregor MacGregor “meeting people who have to make the decision and live with the decision” allows University of Colorado law students to tie together law, policy, and the people it affects.

During the trip, students met with Navajo environmental activist Nicole Horseherder, who has been an integral part of advocating for a transition that will benefit the Navajo people and their lands. According to Nicole, “everybody is tethered to this [coal] plant. Because so much water is being used and so much of the resources are being dedicated to that plant, we can’t really do anything else.” Therefore, she sees her primary role as educating the Navajo community so that they can mobilize themselves towards a self-sufficient future without NGS. Nicole’s vision is that by moving NGS to renewables, the Navajo will regain control of valuable natural resources needed for local development.

A Proposed Transition to Clean Energy.

Currently, the most environmentally and economically sustainable transition option is to replace NGS with sources of renewable energy. The topography of the region combined with the declining solar construction costs makes NGS a desirable location to install renewables. Navajo Nation President Russell Begaye has negotiated title to the rights of the transmission lines after the closure of NGS. These rights will allow the Navajo people to decide how they want to develop energy infrastructure on their land.

The initial construction and ongoing electricity generation of solar and wind energy facilities will increase the number of local jobs and replace some, though not all, of the lost tribal revenue. Careers in solar power are increasing nationwide and at a faster rate than the fossil fuel sector. Renewable energy projects on Navajo Nation that repurpose the use of the coal power transmission lines offer the Hopi and Navajo tribes an opportunity for economic and infrastructure development. If combined with transitional support from the federal government and a broader plan for a diversified economy, renewable projects could be an anchor for a sustainable future.

Utility-scale solar projects providing energy to the Navajo and Hopi tribes are already underway and providing significant economic activity. The Kayenta Solar Farm, owned by the Navajo Tribal Utility Authority (NTUA) and Salt River Project (SRP), opened in August 2017. The construction of the solar farm employed approximately 236 tribal members, paying over $5.2 million to the workforce and an estimated $15.6 million in revenue to the Navajo Nation. Additionally, SRP provided 4,700 hours of specialized solar utility construction training. In January, the owners agreed to build the second phase of the project. Hopefully, this is a promising first step to make Navajo and Hopi Nations clean energy producing Tribes.

A successful transition will start with the construction of renewable projects while the power-plant begins to scale back. Collaborative planning initiatives from tribal and state governments could hasten development and attract the business investment required to fund projects. The transition to renewable energy sources will not be simple. Funding will be difficult to obtain, and technological developments are still required to make renewables a stable source of electricity. However, the closure of NGS presents a perfect opportunity to implement these changes.

At this time, NGS closure looks inevitable, and the question to ask is how to accomplish environmental sustainability while establishing social and economic justice for the Navajo and Hopi? Optimistically, a successful and just transition in the four-corners will pave the way for coal communities across the country, whether in Indian country or otherwise. The Getches-Wilkinson Center, Colorado Law, and our faculty and students hope to be a part of this larger Just Transition movement.

Lauren Sakin is a rising 2L at Colorado Law, and a GWC Research Assistant

Advising the EPA: The Insidious Undoing of Expert Government By CU Law Professor Sharon B. Jacobs

This post originally appeared on the Harvard Law Review Blog

The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA) employs biologists and chemists while the Nuclear Regulatory Commission employs physicists and reactor systems engineers. Increasingly, agencies have also sought the advice of outside experts. These outside experts form advisory committees, task forces, work groups, and boards that review agencies’ internal decisions and provide recommendations and advice.

The federal government now makes use of upwards of 1,000 such committees. Sheila Jasanoff has called them a “fifth branch” of government. In the 1970s, congressional concern about the proliferation of advisory committees produced the Federal Advisory Committee Act of 1972 (FACA). FACA imposes reporting and transparency requirements on federal advisory committees. In addition, the Act states that advisory committees should be “fairly balanced in terms of the points of view represented and the functions to be performed.”

On Halloween, EPA Administrator Scott Pruitt issued a new directive entitled “Strengthening and Improving Membership on EPA Federal Advisory Committees.” The directive states that no member of an EPA advisory committee shall “be currently in receipt of EPA grants” or be “in a position that otherwise would reap substantial direct benefit from an EPA grant.” A memorandum accompanying the directive explained that direct receipt of EPA grants “can create the appearance or reality of potential interference” with members’ abilities to “independently and objectively” serve.

That justification is superficially appealing. But the directive’s outward concern with impartiality masks an effort to rebalance advisory committee membership to favor industry representatives over academics. By preventing EPA grantees from serving on advisory committees, the agency is likely disqualifying some of the country’s ablest scientists. Those dismissed from the EPA’s advisory commissions in the wake of the directive include researchers from Harvard, Stanford, and the University of Southern California. In contrast to academics, industry scientists need not seek EPA grants because their research is funded by their employers. They are thus unaffected by the directive. Industry membership on advisory boards raises impartiality concerns of its own. But Administrator Pruitt’s directive ignores this source of potential bias completely.

Moreover, the insinuation that receiving a grant from the EPA renders an advisory board member impartial is misleading. The EPA estimates that in the past three years, members of its Science Advisory Board, Clean Air Scientific Advisory Committee, and Board of Scientific Counselors received a combined total of more than $77 million in direct EPA grant funding. But that figure, by itself, proves nothing. The EPA already employs a conflicts screening process. According to one former member of EPA’s Scientific Advisory Board, advisory commission members are given a conflict of interest form to fill out for each separate issue discussed. If a conflict is identified, the member is immediately recused.

Disallowing advisory committee service by agency grant recipients will not necessarily lead to ideological “stacking” of committees. But the directive’s application has already resulted in more substantial industry membership on EPA advisory committees. There have also been committee leadership changes. Dr. Peter Thorne, whose University of Iowa webpage identifies him as a co-investigator on an EPA-funded study, was recently replaced as chair of the EPA’s Science Advisory Board by Dr. Michael Honeycutt, lead toxicologist for the Texas Commission on Environmental Quality. Dr. Honeycutt has broken with the scientific consensus by questioning the need to reduce smog levels. One of his arguments? Most people spend 90% of their time inside, where smog is less likely to affect them.

Administrator Pruitt’s directive is of concern to those who value advisory committees’ scientific integrity (and some lawmakers have already expressed their displeasure). But is it illegal? Any legal challenge must overcome several hurdles. The first, and most easily surmounted, is that the APA limits judicial review to “final agency action.” The EPA’s directive is likely final under Bennet v. Spear, which requires that the action “mark the ‘consummation’ of the agency’s decisionmaking process” and be one “from which ‘legal consequences will flow.’” As the D.C. Circuit has held, even informal guidance like this directive can be deemed final when it reflects a settled agency position. This directive is binding on its face and has immediate legal consequences for advisory committee members. While Administrator Pruitt was careful to note that he was “reserv[ing] the right to exercise my discretion to depart from the procedures set forth in this directive,” that statement is probably not enough to deprive the directive of finality.

The second hurdle is Article III standing. Under the governing test, plaintiffs must demonstrate to a court’s satisfaction that the directive has caused them a cognizable injury. They must also show that a verdict in their favor will redress that injury, at least in part. The most obvious candidates to challenge the directive are advisory board members who were dismissed due to their EPA grant funding or EPA grant recipients who were potential appointees prior to the directive’s issuance. As the 10th Circuit has explained, “Standing predicated upon denial of a fair opportunity to compete for a position or contract is well established.”. Alternatively, environmental groups like the NRDC and the Sierra Club may be able to invoke the ideas of organizational standing and procedural injury to challenge the directive on their members’ behalf. The Fifth Circuit has held that entities with an interest in the accuracy of particular agency decisions have standing to challenge advisory committee irregularities under FACA, although in that case the challenge came from regulated industry rather than from regulatory beneficiaries.

On the merits, one possible challenge to the directive is that it violates FACA’s requirement that advisory committees be “fairly balanced.” As one commentator has noted, the courts are divided on whether this requirement is justiciable. The Ninth Circuit observed that FACA does not “articulate what perspectives must be considered when determining if the advisory committee is fairly balanced,” and thus provides no meaningful standard for judicial review. However, the D.C. Circuit, Tenth Circuit, and Fifth Circuit have reached the opposite conclusion. In a case called Cargill v. United States, the Fifth Circuit not only found the “fairly balanced” requirement justiciable, but it also found that appointing agency grantees to serve on advisory boards at the Department of Health and Human Services (HHS) was not a violation of FACA. “Moreover,” the court concluded, “if HHS were required to exclude from peer review committees all scientists who somehow had been affiliated with the department, it would have to eliminate many of those most qualified to give advice.”

Per Cargill, therefore, status as a grant recipient is not disqualifying under FACA. But arguing that the EPA is not permitted to disqualify grant recipients is much harder. FACA’s “fairly balanced” edict is worded broadly enough to give agencies significant latitude in selecting advisory commission members. A facial challenge to EPA’s directive would likely fail, since there undoubtedly exist qualified members of academia not in receipt of EPA grants. More likely to succeed are as-applied challenges to the makeup of specific EPA advisory committees on the basis of industry over-representation. There is some evidence, however, that courts are inclined to defer to an agency’s selection of advisory committee members.

Plaintiffs might also challenge the directive as arbitrary and capricious under the Administrative Procedure Act (APA) or as a violation of FACA. Courts assessing agency action under the APA’s arbitrary and capricious standard ask, in part, whether an agency has articulated a rational connection between the facts found and the choice made. There is a powerful argument here that EPA’s focus on one version of independence (from the EPA itself) while ignoring another version of independence (from regulated industry) was arbitrary. It could also be argued that the equation of grant receipt with bias is itself an arbitrary conclusion, especially in light of the Fifth Circuit’s Cargill opinion.

Because Administrator Pruitt’s directive was announced on Halloween, it seems fitting to invoke the Celtic origins of that holiday, on which Celtic druids would make predictions about the future. My gloomy prediction is that this directive is not the last blow to agency expertise and unbiased science that we will see from the Pruitt EPA. Advocates should pursue judicial solutions where possible, but the surest remedy for such violations is political. Scott Pruitt is unfit to lead the EPA and should be replaced at the earliest possible opportunity.

Sharon B. Jacobs is a Professor at CU Law and a member of the GWC Board.


The Looming Battle over the Antiquities Act By CU Law Professor Mark Squillace

This post originally appeared on the Harvard Law Review Blog

On December 4, 2017, President Trump announced his long-anticipated decisions to shrink two major national monuments in southern Utah. Trump shrunk the Bears Ears National Monument designated by President Obama at the end of 2016 from 1.35 million acres to 201,786 acres, a reduction of about 85%. The Grand Staircase Escalante National Monument was reduced by approximately 46%, from 1.87 million acres to a little more than one million acres. And more reductions at other monuments are expected to follow. In terms of reversing public land protections, these decisions are unprecedented in scale. Nothing comes even close.

Trump’s decisions have set the table for the most dramatic legal fight over the Antiquities Act since the Supreme Court unanimously upheld President Theodore Roosevelt’s 1908 designation of the Grand Canyon National Monument in 1920. So, how did we get here, and how is this battle likely to play out?

The History of the Antiquities Act

The original impetus for the Antiquities Act was a concern about looting of ancient artifacts from public lands. The looters were not only pothunters but also included major museums such as the American Museum of Natural History. In 1900, under pressure from archaeologists and their societies, three separate bills were introduced into the House Committee on Public Lands chaired by Iowa congressman John Lacey. These bills ranged from the very broad to the quite narrow. While all were designed to protect ancient artifacts, one would have allowed the President to set aside lands for their scenic beauty or to protect natural wonders, another would have simply made it a federal crime for individuals to harm antiquities on public lands, and the last would only have granted the Secretary of the Interior the power to set aside small tracts of public lands not exceeding 320 acres. Lacey sent these bills to Interior for review. Interior supported congressional efforts to stop looting, but the agency favored a broader bill that would have authorized the President to designate national parks “for their scenic beauties [and] natural wonders,” as well as to protect ancient ruins and “other objects of scientific or historic interest.” Congressman Lacey and some members of his committee pushed back against the Interior bill and over several years a compromise emerged that removed the authority to designate national parks, but retained the language from the original Interior proposal allowing the president to designate objects of historic or scientific interest. See generally, Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 478–85 (2003) (hereafter, Monumental Legacy).

As enacted, the Antiquities Act authorizes the President—

to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected. . . .

54 U.S.C. § 320301.

Theodore Roosevelt was President when Congress passed the Antiquities Act in 1906, and he wasted no time employing the new law, designating four national monuments that year, five more in 1907, and eight more in 1908 and 1909 before he left office. Monumental Legacy at 489–91. Perhaps the most important of these was the more than 800,000-acre Grand Canyon National Monument designated in 1908. Grand Canyon was important not only because it protected one of our most prized national treasures but also because it spawned the lawsuit that sustained the President’s power to designate large landscapes as national monuments.

Ralph Henry Cameron was a mining claimant and Arizona politician who was using the General Mining Law of 1872 to exploit tourists by charging them a dollar to pass through his mining claims on the Bright Angel Trail. Cameron’s enterprise ran afoul of Santa Fe Railroad, which had opened a hotel on the south rim of the Grand Canyon. Complaints from its guests who wanted to hike the trail down to the Colorado River prompted the Railroad to ask Interior to investigate Cameron’s claims. In 1909, just one year after the monument had been designated, Interior Secretary James Garfield determined that Cameron’s claims were not valid. Nonetheless, Cameron refused to vacate the land, however, and the federal government subsequently sued to evict him. Cameron responded by asserting that his mining claims were valid and, further, that the President lacked the authority to designate the Grand Canyon under the Antiquities Act. Monumental Legacy at 490–92. In a unanimous decision in Cameron v. United States, the Supreme Court disagreed, noting that the Grand Canyon was plainly an object of scientific interest as “it is the greatest eroded canyon in the United States if not the world.”

Over its long history, the Antiquities Act has been used many times by Republican and Democratic presidents to protect both small historic sites, as well as large tracts of public land. Although presidents may not designate national parks, Congress has repeatedly signaled its support for these presidential monuments by redesignating many of the most remarkable ones as national parks. In addition to the Grand Canyon, President Roosevelt set aside the Mt. Olympus National Monument, which is now part of Olympic National Park. Zion National Park was first protected by William Howard Taft as Mukuntuweap National Monument. Woodrow Wilson established Sieur Du Monts, now Acadia National Park. William Harding set aside Bryce Canyon, Calvin Coolidge protected Glacier Bay, and Herbert Hoover set aside Saguaro, Death Valley, and Arches — all now protected as national parks. Monumental Legacy at 493-494.

Decades of Disagreement

Despite their enormous popularity with the general public, national monument designations have historically attracted their fair share of controversy. Woodrow Wilson cut the more than 600,000 acre Mt. Olympus National Monument nearly in half, allegedly to provide timber to support the war effort, but almost certainly also to appease the timber industry and Forest Service, which had opposed the monument. See Carten Lien, Olympic Battleground: Creating and Defending Olympic National Park 51–52 (2000). Wilson’s decision created an outcry from the nascent environmental movement and ultimately, much of that land was restored to protected status when Congress created the Olympic National Park in 1938.

When Franklin Roosevelt created the Jackson Hole National Monument, now part of the Grand Teton National Park, local politicians were outraged. A young Teton County Commissioner, Cliff Hansen, who later became a U.S. Senator, drove an illegal cattle drive through the new monument and helped persuade congress to adopt the only amendment ever enacted to the Antiquities Act, banning new monuments in the State of Wyoming. 54 U.S.C. § 320301(d). Much later, Hansen and other local opponents of the monument acknowledged that their opposition to the monument had been a mistake. Monumental Legacy at 498, n.159.

Observed from this backdrop, the current controversy over the two big monuments in Utah, and several others that appear to be in Trump’s sights, is not especially new. What is different today is the commitment of monument supporters to fight to preserve the public land protections that the original monuments represent. On the very day of Trump’s announcements two lawsuits were filed over the Bears Ears decision — one by local native tribes and another by environmental groups. More lawsuits followed over both Bears Ears and Grand Staircase-Escalante. At the time of this writing, three lawsuits over Bears Ears were all in front of Judge Chutkan in the Federal District Court for the District of Columbia. A lawsuit filed by the Grand Staircase-Escalante Partners over the Grand Staircase-Escalante decision has been assigned to Judge Sullivan in the same court.

Key Questions Facing Courts Today

These cases raise fascinating legal questions involving both process and substance. On the process side is the fundamental question of how the court should approach the litigation. The Supreme Court has made clear that the President is not an agency for purposes of the Administrative Procedure Act, and thus the court lacks a clear roadmap for how to proceed with the case. Two particular questions stand out. First, what is the standard of review in such cases? And second, should the courts resolve these cases on the administrative record made to support the President’s decisions, or should courts hold an evidentiary hearing to ascertain whether the proclamations are consistent with the requirements of the law?

Regarding the scope of review, it seems likely that the court will follow the lead of the federal district court in Wyoming in a pre-APA case that challenged the Jackson Hole National Monument. In Wyoming v. Franke, the court found that it had “a limited jurisdiction to investigate and determine whether or not the Proclamation is an arbitrary and capricious exercise of power under the Antiquities Act so as to be outside of the scope and purpose of that Act . . . .” The court admitted that “if a monument were to be created on a bare stretch of sage-brush prairie in regard to which there was no substantial evidence that it contained objects of historic or scientific interest, . . . [it] would undoubtedly be arbitrary and capricious . . . . ” But the court found sufficient “evidence of experts and others as to . . . objects of historic and scientific interest” that it was bound to uphold the decision even if it did not fully agree with it. If one were to apply this standard to the original Grand Staircase and Bears Ears proclamations, then it seems likely that they would be found to comply with the law. Both proclamations contain a detailed description of the cultural, biological, geological, and historic resources that Presidents Clinton and Obama intended to protect. And, while a future President might reasonably disagree with these decisions, one would be hard pressed to describe the original decisions as arbitrary.

As for the record, President Clinton’s Secretary of the Interior Bruce Babbitt transmitted detailed memorandum to the President to support the original Grand Staircase-Escalante proclamation. President Obama’s Interior Secretary, Sally Jewell sent to the President a similar memorandum to support the Bears Ears proclamation. Although these memoranda were not released to the public, they laid out the case for the monuments, and included a comprehensive bibliography of sources deemed to support the monument designation. It does not appear that Secretary Zinke has made any effort to refute these memoranda, although he did prepare an undated memorandum for the President addressing 27 separate monuments that had been designated since 1996. So, the court could require and the parties could agree that these, along with any publicly released documents and any additional documents prepared by the Trump Administration, should be recognized as the administrative record for purposes of judicial review. This would obviate the need for a hearing on the original and subsequent proclamations, which could easily cascade out of control.

Somewhat surprisingly, the primary rationale put forth in the Trump proclamations for shrinking the Bears Ears and Grand Staircase-Escalante monuments was that the Obama and Clinton proclamations were not limited to the smallest area compatible with the protection of the objects identified in the original proclamations. This kind of reasoning is not necessarily new. In a 1938 opinion, Attorney General Cummings appears to use it to justify acquiescing to monument modifications, even as he found that the President lacked the authority to abolish a monument altogether. 39 U.S. Op. Atty. Gen. 185. But given the substantial mountain of evidence marshalled to support the original proclamations and the limited scope of judicial review suggested by Wyoming v. Franke, and likely to be followed in these new cases, the government will find it difficult to defend the new decision on the “smallest area compatible” grounds alone.

On the other hand, and notwithstanding the language in the new proclamations, Trump will likely argue that he has the authority to shrink a monument created by a predecessor irrespective of whether the original monument was valid. This is the legal issue that has captured the attention of legal scholars and commentators, at least since the day that Trump was elected.

I have previously argued, first in 2003, and more recently in a joint article published last year, that Presidents lack the authority to modify or revoke monuments decisions issued by their predecessors. The basic argument is straightforward. The Property Clause of the constitution gives Congress plenary authority over public lands. While the Antiquities Act may delegate power to the President to “reserve” public lands as national monuments, the Supreme Court has made clear that delegations of congressional power must be construed narrowly. And because the Antiquities Act says nothing of the authority to modify or revoke a reservation once made, the statute is properly construed to grant “one-way” authority.

Reinforcing this point is the sharp contrast between the Antiquities Act and other contemporaneous statutes such as the Forest Service Organic Administration Act and the Pickett Act of 1910. Both of these statutes authorized the President to withdraw public land for particular purposes and both gave the President the additional authority to revoke and/or modify these withdrawals. As Attorney General Cummings wrote in the 1938 opinion referenced earlier, “the Executive can no more destroy his own authorized work, without some other legislative sanction, than any other person can.”

Those who support presidential power to modify monuments claim that the power to reserve public lands as national monuments implicitly encompasses the power to reverse those decisions, just as presidents can modify and rescind executive orders and agencies can modify or rescind their regulations. But a President who issues or modifies an executive order is exercising direct executive power granted under Article II of the Constitution. And an agency that modifies or rescinds rules is doing so pursuant to the express rulemaking authority granted under the Administrative Procedure Act to “formulat[e], amend[], or repeal[] a rule.” They also point to the fact that Presidents have in the past modified monuments, as if past practice is enough to justify an otherwise illegal act. But because none of these decisions has ever faced a judicial challenge, their legality has never actually been tested. Moreover, until the recent decisions on Grand Staircase-Escalante and Bears Ears, no president has attempted to modify a monument since Congress enacted the Federal Land Policy and Management Act (“FLPMA”) in 1976. That turns out to be an important event for understanding the Antiquities Act.

FLPMA came about as a result of recommendations from the Public Land Law Review Commission in a report released in 1970. Among other things, that report recommended consolidating all of the public land withdrawal authorities, including the Antiquities Act, into a general withdrawal provision contained in the new law. While Congress accepted most of the Commission’s recommendations, it explicitly chose to retain the Antiquities Act, and it further made clear in the House Report on the final bill, that FLPMA “would … specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.” H.R. Rep. 94-1163 (1976).

Critics complain that the legislative history of FLPMA cannot be used to interpret the Antiquities Act. This argument misses the mark for two reasons. First, the Antiquities Act is clear on its face. The gloss of FLPMA’s legislative history merely reinforces the most logical reading of the text of the statute. Second, while FLPMA does not amend the Antiquities Act, it was an important vehicle for reviewing and reconsidering all of the federal government’s authorities to withdraw and reserve public lands for particular purposes, including the Antiquities Act. Thus, debates around FLPMA should be understood and respected for reflecting Congress’ views about public land withdrawals generally, including its views on the continuing importance of the Antiquities Act as an instrument for furthering public lands policy.

While the technical legal arguments that favor a narrow reading of the President’s authority under the Antiquities Act are compelling, they risk obscuring the important policy reasons that might have persuaded Congress to limit the President’s Antiquities Act power in one direction. Federal public lands face constant risks of undue degradation by mining claimants and other mineral developers, by ranchers grazing livestock, and by off-road vehicle users, among others. The Antiquities Act allows a President to protect the status quo on public lands and prevent their further degradation until Congress decides to do something else with those lands. This one-way protection policy has worked remarkably well. While Congress has abolished several minor monuments over the years, it is telling that it has never abolished or shrunk any significant national monument. On the contrary, when Congress takes action on monuments, it is often to expand them and elevate their status to that of a national park.

Ultimately, of course, the last word on the myriad legal issues raised by the recent proclamations on Grand Staircase-Escalante and Bears Ears will come from the federal courts, and predicting the outcome of litigation is always fraught with risk. But even if the case is closer than I suspect it will be, the special place that our public lands hold in the hearts and minds of the American people will not likely be lost on the courts, and could, in the end, tip the scales in favor of their protection.

Mark Squillace is a CU Law Professor and a member of the GWC Board.

Saving Coal: A Tale of Two Agencies By CU Law Professor Sharon B. Jacobs

This post originally appeared on the Harvard Law Review Blog

Generating electricity from coal is a dirty business. Coal mining and power production release toxic heavy metals like mercury, respiratory irritants like sulfur dioxide and particulates, and large volumes of heat-trapping gases like carbon dioxide and methane. Nevertheless, the current administration has made no secret of its desire to “save” coal. Its latest effort involved a little-used statutory provision that allows an executive agency to dictate the focus of an independent regulator.

The effort began this past fall when Secretary Rick Perry’s Department of Energy (DOE) issued a Notice of Proposed Rulemaking (NOPR) that would provide guaranteed payments in wholesale energy markets to “fuel-secure” power plants. “Fuel-secure” plants were defined as those with a 90-day supply of fuel on-site, a requirement that only coal and nuclear power can satisfy. Troublingly, the DOE provided no legal justification for its proposed rule. Instead, it argued that the “resiliency” of the nation’s power grid was “threatened” by what it called the “premature retirement” of these power plants. Even that claim is vulnerable to critique. As the Rhodium Group has shown using the DOE’s own data, only 0.00007% of major electricity disruptions nation-wide from 2012–2016 were in fact caused by fuel supply problems.

Curiously, the DOE itself has no authority to finalize such a rule. Instead, its proposed rule directed the Federal Energy Regulatory Commission (FERC) — the ostensibly independent regulatory agency that oversees wholesale electricity markets — to finalize the proposal. So how can the DOE tell FERC what to do? It all goes back to the Department of Energy Organization Act of 1977. That Act created the DOE and transformed the Federal Power Commission into FERC. The Act placed FERC within the DOE but labeled it an “independent agency” and made its commissioners removable by the president only for “inefficiency, neglect of duty, or malfeasance in office.”

Section 403 of the Act, codified at 42 U.S.C. §7173(a), gave the Secretary of Energy authority “to propose rules, regulations, and statements of policy of general applicability with respect to any function within the jurisdiction of [Federal Energy Regulatory] Commission . . . .” The DOE first invoked this authority in 1979 during the nationwide fuel oil shortage, proposing a rule that would allow one-year authorizations to transport natural gas if the DOE certified the gas would be used to displace fuel oil. FERC issued a final rule based on this proposal. While the recent NOPR asserted that the DOE has “subsequently acted under section 403 on several occasions by publication of a NOPR in the federal register,” it did not elaborate. My search revealed only one additional invocation of the provision: in 1985, the DOE proposed a rule setting certain natural gas prices (which also resulted in publication of a final rule). Additionally, in 2000, the DOE considered invoking its authority to propose a rule imposing mandatory electric reliability standards. However, it did not ultimately propose such a rule.

According to 42 U.S.C. §7173(b), once the DOE proposes a rule, FERC must “consider and take final action” on the proposal “in an expeditious manner in accordance with such reasonable time limits as may be set by the Secretary for the completion of action. . . .” In this case, the DOE ordered FERC to take final action on the rule within 60 days. FERC subsequently sought, and the DOE granted, a one-month extension of the deadline.

The statute does not require FERC to adopt the Secretary’s proposal–only to take “final action.” This “final action” could be the adoption of the proposed rule without modification, adoption of a modified form of the proposal, or a decision not to adopt the proposed rule in any form. The DOE has limited recourse if FERC elects not to finalize its proposed rule. Pursuant to another section of the statute, “[t]he decision of the Commission involving any function within its jurisdiction . . . shall not be subject to further review by the Secretary or any officer or employee of the Department [of Energy].” On January 8th, two days before its deadline, FERC respectfully declined to finalize the DOE NOPR. There was no way FERC could have adopted this proposed rule with a straight face. FERC needs a reason to intervene in competitive power markets. Under the Federal Power Act, it must find that the existing market rules are unjust, unreasonable, discriminatory or preferential in order to invalidate them. Not only did the DOE fail to invoke any part of this triggering language, the defenses it did offer of its proposal rang hollow. Commissioner Richard Glick, in his concurrence, noted that the DOE’s “own staff Grid Study concluded that changes in the generation mix, including the retirement of coal and nuclear generators, have not diminished the grid’s reliability or otherwise posed a significant and immediate threat to the resilience of the electric grid.”

Importantly, however, FERC did not frame its response as a loss for the DOE. While it declined to adopt the DOE’s proposed rule, it simultaneously initiated a new proceeding to look at resilience in wholesale power markets. In fact, the Commission seemed to go out of its way to placate the DOE. It stressed in the decision’s first paragraph that “we appreciate the Secretary reinforcing the resilience of the bulk power system as an important issue that warrants further attention.” Only a few sentences later, it assured the DOE that “[t]he resilience of the bulk power system will remain a priority of this Commission.” Commissioner Neil Chatterjee went further in his concurrence, “applaud[ing] Secretary Perry’s bold leadership in jump-starting a national conversation on this urgent challenge.”

What was FERC’s strategy in responding to the NOPR? Perhaps the Commission’s Republican majority, all of whom are recent appointees of President Trump, share Secretary Perry’s concerns about coal and nuclear retirements (or at least about wholesale market “resiliency”). While this particular proposal was indefensible, they might ultimately seek to adopt a better-considered, better-defended rule that identifies an actual problem with wholesale market pricing mechanisms and seeks to remedy it.

A second possibility is that none of the five FERC commissioners (with the possible exception of Commissioner Chatterjee) wish to adopt a rule pricing the “resiliency” attributes of power plants in wholesale markets. Despite this, they may want to keep on the DOE’s good side. FERC must have been aware that the media would characterize its failure to adopt the DOE’s proposal as a loss for the administration. Here are just a few of the headlines that followed FERC’s denial: “Perry says NOPR; FERC Says Nope (To Propping Up Coal) (Forbes); “Rick Perry’s Proposed Coal Bailout Just Died an Unceremonious Death: FERC says “nope” to the NOPR” (Vox); “Critics slam Perry after FERC blocks his ‘crazy Hail Mary’” (Greenwire). FERC may have softened its denial in an effort to mitigate this negative coverage. As I have written elsewhere, even independent regulatory commissions must conserve political capital. FERC may be exercising what Alexander Bickel called the “passive virtues” — placating the DOE in order to shield itself from greater scrutiny and interference.

Secretary Perry has already threatened to pursue other options under the Department of Energy Organization Act, the Federal Power Act and other authorities to support coal plants. Consider this scenario: nothing technically prevents the DOE from invoking Section 403(a) over and over again, monopolizing FERC’s agenda and preventing it from getting any other work done. Although the provision has been invoked infrequently in the past, this is an administration that seems determined to buck convention. The prospect of the provision’s more regular use, coupled with DOE’s abuse of its 403(a) authority in issuing this legally indefensible proposal, suggests that 403(a) has outlived its usefulness. While it may have been helpful as the fledgling agencies sought to understand and clarify their respective powers in the aftermath of reorganization, today its risks outweigh its benefits. It permits an executive agency headed by a member of the president’s cabinet (DOE) to set the agenda for an independent, expert regulator (FERC). Let us hope this is the last we will see of it.

Sharon B. Jacobs is a Professor at CU Law and a member of the GWC Board.

Can Tribes and Environmental Groups Ensure Agencies Properly Evaluate Private Interests on Public Lands? By Getches-Wyss Fellow, Michelle White

After a long history of disposal and extractive exploitation on federal public lands, Congress codified protection of broader public values by passing comprehensive reform in the Federal Lands Policy and Management Act (FLPMA) of 1976. A recent decision from the Ninth Circuit calls into question the ability of parties with environmental interests to ensure public lands agencies properly evaluate private economic interests on public lands that may pre-date FLPMA.

Three public lands professors from the University of Colorado Law, Sarah Krakoff, Mark Squillace and Charles Wilkinson, signed on to an amicus brief supporting a petition by the Grand Canyon Trust (GCT) for en banc review of a Ninth Circuit decision. An Arizona district court and Ninth Circuit panel denied the GCT and Havasupai Tribe standing to challenge the Forest Service’s decision to allow a uranium mine to operate on public land withdrawn by Secretary Salazar. The brief, signed by Eric Biber of UC Berkeley, expressed concern that the original decision made several fundamental legal errors that could have far-reaching effects on standing, particularly in the public lands and environmental law context.

As discussed in the Ninth Circuit’s opinion upholding the Secretary’s authority to make the withdrawal, uranium mining was popular in the United States in the late 1970s through early 1980s. A decrease in demand in the 1990s caused the closure of many Arizona mines. However, a spike in prices recently rekindled interest in the deposits and former mines surrounding the Grand Canyon National Park. As of 2009, over 10,000 mining claims had been located around the Grand Canyon National Park. In response to renewed interest in uranium, then Secretary of the Interior Ken Salazar began a process to determine if he should exercise authority under the Federal Land Policy and Management Act (FLPMA) and withdraw land around the Grand Canyon from operation of the Mining Law of 1872.

In January 2012, after public comment and publication of an Environmental Impact Statement, the Secretary issued a Record of Decision (ROD) withdrawing 1,006,545 acres of federal land. The withdrawal protected the Grand Canyon’s watershed from new mining activities and allow time for research on potential adverse impacts from mining activities. In order to conduct uranium mining on the withdrawn lands, a miner must have “valid existing rights.” Subsequently, the GCT, along with the Havasupai Tribe and several environmental non-profits, challenged a Forest Service determination that a particular uranium mine, shuttered since 1986, had valid existing rights and could resume mining operations on the withdrawn land.

Affirming the district court, the Ninth Circuit denied petitioners’ standing to challenge the Forest Service’s determination under the “zone-of-interest” test. The circuit held: (1) the GCT’s claim arose under the Mining Law, not FLPMA, and (2) because the Mining Law serves interests that “are frankly economic,” the GCT’s environmental and recreational interests did not meet the zone-of-interest test. Therefore, the panel denied the GCT standing. Amici (Environmental and Natural Resource Law Professors), filed a brief supporting en banc review, expressing concern about the panel’s zone-of-interest analysis.

Amici argued that the panel erred by misstating the GCT’s cause of action and using an overly restrictive view of the interests sufficient to meet a zone-of-interest test. The first error is particularly vexing. FLPMA, not the Mining Law, gives the Secretary withdrawal authority and limits that authority from affecting valid existing rights. If a miner continued to mine on withdrawn lands without valid existing rights, FLPMA would be violated, not the Mining Law. The Forest Service, by allowing mining on withdrawn land in absence of valid existing rights, would violate its duties under FLPMA, not the Mining Law. Despite this reality, and citing to no authority, the panel concluded that because FLPMA does not define “valid existing right,” the GCT’s claim arose under the Mining Law. Amici pointed out that statutes commonly refer to and borrow terms from other statutes, but that does not transform the cause of action to the secondary statute. In essence, the panel’s decision focused on how mining rights are created while ignoring the focus of the GCT’s claim – how mining rights are limited. 

Second, analyzing what satisfies the zone-of-interest test under the Mining Law, the panel recognized that limitations on mining rights protect the interests of those with competing claims. But, the panel differentiated between property interests and environmental interests and held the limitations did not protect environmental interests. This holding ignored the Supreme Court’s controlling zone-of-interest precedent, Data Processing. From Data Processing on, the Supreme Court has repeatedly and explicitly held that Congress need not have had in mind the exact interests of those affected by the statutory limitation. Rather, plaintiffs can share Congress’s interest in enforcing the limitation, so long as they meet other traditional requirements of standing.

If the panel’s opinion stands, it may allow parties to question opponent’s standing in a variety of public lands lawsuits. For example, FLPMA, the Wilderness Act, and the Wild and Scenic River Act are all statutes enacted by Congress to protect interests in public lands that are not private and economic, and all preserve valid existing rights. The panel’s opinion appears to make it impossible for a member of the public to ensure agencies properly preserve the public interests contained in FLPMA in situations where they conflict with private, economic rights that may predate the statutory protection of public values. It is unclear exactly how broad the negative effects from the opinion may be; however, from the line of cases starting with Data Processing, the financial industry could also be impacted. As argued by Amici, the holding conflicts with Supreme Court and Ninth Circuit precedent in an area of law that is already rife with confusion, and is therefore appropriate for en banc review.