Among the provisions of President Trump’s March 28, 2017,  Executive Order “Promoting Energy Independence and Economic Growth” (the “Executive Order”) is the repeal of President Obama’s November 3, 2015, Presidential Memorandum entitled “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (the “Obama Memorandum”).  The Executive Order also directed all agencies to identify “Agency Actions” (existing regulations, orders, guidance documents, polices, and other similar agency actions) arising from the Obama Memorandum and, as appropriate, and “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules [to do so]…”

Secretary of Interior Zinke acted the following day to issue Order No. 3349 “American Energy Independence” (“Order 3349”) to set in motion a “reexamination of the mitigation policies and practices across the Department of the Interior (Department) in order to better balance conservation strategies and policies with equally legitimate need to creating jobs for hard-working American families.”

Zinke Order 3349

With regard to the Obama Memorandum, Order 3349 identified two policies from the previous administration that needed a thorough reexamination.  Zinke identified Order 3330 issued in October 2013 as being related by having directed the “development and implementation of a landscape-scale mitigation policy.”  Second, a resulting April 2014 Report from the Energy and Climate Change Task Force to the Secretary “A Strategy for Improving Mitigation Policies and Practices of the Department of the Interior” was also identified as advancing mitigation policies as directed by Order 3330.

Order 3349 then revoked Order 3330 and set in motion a review of the Agency Actions taken pursuant to Order 3330 for “possible reconsideration, modification or rescission” as follows:

(i) Within 14 days of Order 3349 all bureau and office heads are to provide the Interior’s Deputy Secretary all Department Actions adopted, or in the development process, relating to the Obama Memorandum and Order 3330,

(ii) Within 30 days of Order 3349, the Deputy Secretary is to notify the Assistant Secretaries whether to proceed with reconsideration, modification or rescission of any of the Actions identified in (i),

(iii) Within 90 days of Order 3349 each bureau and office notified to proceed by the Deputy Secretary is to submit a draft revised or substitute Department Action for review.

More detail on the Obama Memorandum

The Memorandum was directed to the Secretaries of Defense, Interior and Agriculture and the Administrators of the Environmental Protection Agency and National Oceanic and Atmospheric Administration.

The Memorandum established mitigation policies and principles to be utilized by the federal agencies to which it is directed.  Central themes of the Memorandum and the policies and principles it spelled out included:

(i) Promoting private and non-profit investment in natural resource mitigation,

(ii) Promoting the use of mitigation measures that provide restoration prior to a project’s impacts occurring,

(iii) Making it the policy of the agencies to “avoid and then minimize harmful effects to land, water, wildlife, and other ecological resource (‘natural resources’) cause by land- or water-disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities,”

(iv) Utilizing existing watershed or regional studies to better direct where development could occur (or not occur) to result in fewer natural resource impacts,

(v) Requiring the development of consistent national mitigation policies (mitigation being generally defined as avoidance, minimizing and then mitigation/compensating for impacts) across agencies relating to “the impacts of their activities and the projects they approve,” to create more predictability for the regulated community and mitigation bankers to help speed permitting, and provide more security for long term entrepreneurial investments, while at the same time providing larger scale mitigation planning and benefits,

(vi) Establishing as  agency mitigation policy a “net benefit goal, or at a minimum a no net loss for natural resources the agency manages that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.”  If it is determined that a resource is irreplaceable, avoidance, consistent with applicable legal authorities, was to be the preferred approach.

The Memorandum also directed several agencies to undertake specific actions to support the policies and principles:

  • The US Forest Service – develop and implement, within 18 months, additional guidance on the agency’s approach to avoidance, minimization and compensation to impacts to natural resources within the National Forest System and finalize a mitigation regulation within 2 years of November 3, 2015.

 

  • The Bureau of Land Management – finalize, within one year, a mitigation policy bringing consistency to the consideration and application of avoidance, minimization and compensation for development activities of projects impacting public lands and resources.

 

  • The US Fish and Wildlife Service – within one year, finalize (i) a revised mitigation policy that applies to all USFWS authorities and trust responsibilities, (ii) a policy for compensatory mitigation associated with its Endangered Species Act responsibilities, and (iii) a policy that clarifies and provides predictability to those who conserve species in advance of future ESA listings and provides a mechanism to credit those actions as avoidance, minimizations and compensation.

Given the repeal of the Obama Memorandum and the forthcoming reexamination of policies implemented thereunder, the new administration is likely to consider a new mitigation policy addressing its concern regarding impacts on economic development and on energy projects specifically.