Interior’s review rollbacks: Why we shouldn’t trade long-term protections for uncertain outcomes
Last month, the Department of the Interior (DOI) announced it would circumvent key environmental review and public participation processes to allow energy resource development and critical mineral mining on U.S. public lands. Interior argues this unprecedented decision, which overrides longstanding safeguards designed to protect public health and the environment, is necessary to respond to the President’s unjustified declaration of an “energy emergency.”
But rolling back environmental review processes under the false pretense of an “emergency” will not only sacrifice our long-term public health and environmental protections; it will also increase confusion and litigation risk for project developers and allow resources posing the greatest harms to receive the least scrutiny. Here are four issues with the order.
1. The “energy emergency” is unsubstantiated and the response overlooks potential for renewable energy of public lands.
The January Executive Order declaring an “Energy Emergency” fails to make a credible case that such an emergency exists. Interior’s own regulations require an imminent threat to life, property, or important cultural and historic resources to justify emergency action – yet no such threat has been identified. In fact, the United States is currently a net energy exporter.
If this were a true energy emergency, the federal government would deploy all available energy resources to respond. Instead, Interior has identified a narrow list of approved technologies, notably omitting solar and wind — two technologies that are modular and scalable with great potential on public land managed by the Department.
Interior has already permitted more than its Congressionally authorized goal of 25 gigawatts (GW) of clean energy projects well ahead of the 2025 deadline, and the Bureau of Land Management’s (BLM) Western Solar Plan identified 31 million acres of public lands across the West as suitable for utility-scale projects. CATF research shows there is approximately 2,100 GW in technical potential for solar, wind, and conventional geothermal energy generation on BLM land alone, and the National Renewable Energy Laboratory estimates 1,500 GW of offshore wind technical potential in federally managed waters. While not all of this potential can or should be developed, it represents triple the total installed generating capacity in the United States today.
Excluding solar and wind energy from the emergency permitting processes—combined with the active hamstringing of wind energy permitting and the targeting of offshore wind projects already under construction and nearly ready to generate electricity— does not align with a response to a true energy “emergency.” It also overlooks the fastest path to expanding generating capacity and grid reliability.
2. For energy resource development and mining activities that “qualify” under new policies, inadequate review timelines effectively eliminate a key venue for public and Tribal input.
As CATF has previously written, the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and other federal laws require public transparency and public participation in the review process, and provide some of the only formal venues for community input on impactful infrastructure. The new timelines proposed by Interior for specific technologies and mining activities are unreasonable and fail to preserve meaningful opportunities for public transparency and engagement.
For projects likely to have significant environmental impacts requiring an Environmental Impact Statement (EIS) under NEPA, the Department now “anticipates that most comment periods will be approximately ten days” of the 28 days total allocated to the preparation of the EIS. This guidance severely limits the potential to reduce overall project timelines. CATF research shows that collaboration among communities and developers in identifying and evaluating alternative routes leads to project routing decisions that are more acceptable to all stakeholders, minimizing opposition and accelerating project construction. But such collaboration is impossible under the new timelines established by DOI. The compressed review schedules leave insufficient time to meaningfully consider public comments, especially as the Department cuts significant staff.
Interior is the primary federal agency responsible for fulfilling the U.S. government’s trust responsibility to Tribes, managing 55 million surface acres and 57 million acres in subsurface estates, charged with supporting tribal self-determination and working with tribal governments to promote the health and development of native communities and the ecosystems they rely on.
DOI’s new guidance also provides that under the NHPA, impacted Tribes or Native Hawaiian organizations will have only seven days to comment on energy projects proposed on culturally significant lands. As required by emergency procedures in regulations, this shortened comment period should only have applied within 30 days of the purported “emergency” declaration, unless a formal extension was requested. Nevertheless, Interior’s guidance as it stands today gives sovereign governments only one week to evaluate and provide formal comment on the impacts of private — potentially polluting — infrastructure on culturally important lands, waters, and sites. Immediate impacts are hard enough to assess in that short of a timeframe, let alone the compounding, longer-term effects of pollutants and heavy metals in the air and water on the well-being of culturally important animals and landscapes.
In a recent report on offshore wind, the Government Accountability Office (GAO) found that (1) a critical area of improvement for the Bureau of Ocean Energy Management (BOEM) in offshore wind deployment is more meaningful consultation with Tribes and more consistent efforts to consider or address Tribal concerns and (2) that Tribal capacity to “adequately review documents or meaningfully consult with government officials” is lacking. DOI’s expedited timelines for select resources is inconsistent with GAO’s recommendations and represents a major step backward in fostering collaboration and trust with Tribes, ignoring and worsening the very challenges the Administration has identified.
3. Hasty reviews significantly increase industry risk and uncertainty, offsetting potential benefits to private developers.
Policy and process certainty is incredibly important to infrastructure developers. While circumventing key environmental reviews on public lands might seem like a boon to the private sector, Interior’s changes to permitting and review regimes are rapid and inconsistent, subjecting developers to greater litigation risk and poor interagency processes that will ultimately delay projects.
CATF previously noted that the White House Council on Environmental Quality’s (CEQ’s) recent dismantling of rules dictating federal agency compliance with NEPA will only cause confusion in the environmental review process, adding delays and ambiguity into a process that would benefit from more interagency cooperation and collaboration. Interior’s “alternative” interpretation of NEPA provides a case study of the destabilizing effect of this dismantling.
Interior is often not the only agency involved in environmental reviews. Depending on a project’s location, the Department of Energy, the Department of Agriculture, and the Department of Defense are frequently supporting agencies. Project developers must meet the requirements of all agencies — not just the lead. Where BLM or another Interior agency is the lead agency on an EIS review, Interior acknowledges that other agencies are not required to comply with the same 28-day timeline. Staffing cuts across all agencies are making extremely short timelines even more difficult to meet.
The lack of clarity around what technologies are covered under the emergency guidelines creates additional burdens on developers. Energy developers think at the systems level – no matter the source of generated electricity, they must consider how that power will be delivered to and integrated into the market. Supplemental infrastructure, like the transmission lines needed to carry electricity from hydropower or geothermal resources on public lands, is essential. But the text of the emergency permitting procedures is unclear on whether transmission would be covered under the new guidelines. Even if transmission projects qualify under Interior’s emergency permitting procedure, it remains unclear whether developers can obtain the permits required from other federal agencies, Tribes, or state authorities to connect them to the grid in a timely manner.
Additionally, while developers hoping to take advantage of emergency permitting timelines may obtain permits more quickly from the Interior Department than they would have otherwise, the shortened timelines for engagement from Tribes, impacted communities, and the public — as well as the questionable legal basis for declaring an “energy emergency” — increase the likelihood of litigation, potentially delaying projects rather than accelerating them.
4. Interior’s accelerated review process hinders its ability to comply with this mandate.
The Department of Interior’s mandate is to manage and conserve most federal lands and natural resource. The federal environmental review processes in critical to that mandate, as it ensures that our precious natural resources are properly stewarded, particularly for development activity on lands preserved for future generations, either as parks, monuments, federally managed forests and rangelands
Federally owned and managed parks, monuments, forests, rangelands, and wetlands are some of our most precious shared resources. They give Americans of all income levels, and visitors from around the world, the opportunity to appreciate nature’s splendor, study and learn about wildlife and environmental stewardship, and take part in recreational activities. They provide habitat for many ecologically important species and include working lands that support forestry and agricultural sectors. These lands offer economic opportunities for neighboring communities, and they are the ancestral homelands of many Tribes.
The importance of our public lands is reflected not only in NEPA processes, but also in other federal statutes enacted by Congress that govern the management of public lands resources. For example, the Federal Land Policy and Management Act (FLPMA) states that public lands must be managed “ in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that where appropriate will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.”
A bad solution for an invented emergency
CATF recognizes the urgent need to build more infrastructure to achieve a high-energy, low-cost, reliable, secure, and decarbonized energy system. However, the Interior’s proposal to fast-track the development of energy projects and mining under the guise of an “energy emergency” opens the door to potentially harmful development, undercutting decades of bipartisan efforts by Congress, Tribal Nations, conservationists, outdoor recreation groups, and past administrations to protect our shared natural and cultural heritage.
Rushed and unnecessary development on public lands could cause lasting environmental, economic, cultural, and social harm — damage that may be impossible reverse.
CATF will continue to investigate and advocate for streamlined review and permitting processes that maintain environmental and community safeguards, protect our valuable public lands, and achieve better project outcomes for developers and communities alike.
