Climate Actions: Respecting Social Considerations While Heeding the Science
On January 20, 2021, in one of his first official actions, just hours after his swearing-in, President Biden announced that the U.S. would be rejoining the Paris Agreement to combat climate change. The Paris Agreement’s long-term goal is to keep global temperature rise well below 2 degrees Celsius and to pursue efforts to limit the temperature increase to 1.5 degrees above pre-industrial levels.
On the same day, Biden also issued Executive Order 13990 on climate change, entitled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. A week later, he issued a second Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. A signature feature of the two Executive Orders -- and of Biden’s climate-change approach in general -- is their wraparound quality, or what has become known as the “whole of government” approach to climate change. This concept emphasizes the idea that the United States can fight climate change while simultaneously achieving other key economic and social objectives. The administration has been consistent and clear that all of these goals must be pursued -- not just in parallel, but in ways that are mutually reinforcing.
President Biden’s climate change agenda is highly ambitious and centers around the goal of achieving a 100% carbon free electricity grid by 2035 and a carbon-free economy by 2050. Achieving these goals while simultaneously pursuing other Biden economic and social goals will require a significant change in the way Americans produce and consume energy, along with a significant investment in climate-related technologies, and in helping Americans transition to this new way of life. Social considerations are a critical part of achieving these goals at two federal agencies that will play critical roles in its implementation -- specifically:
1. The Department of Energy’s (DOE) considerations of economic and environmental justice in promoting climate friendly technologies; and
2. The Department of Interior’s (DOI) delicate dance between clean energy and the trust relationship with Indian Tribes.
1. DOE’s Economic and Environmental Justice Considerations
In any climate initiative, DOE would be expected to play a major role, helping to develop and promote climate friendly technologies. Led by Secretary Jennifer Granholm, DOE under the Biden administration has seized upon thedirection of the Executive Orders to attack the threat of climate change in ways that also promote economic and environmental justice.
At its core, DOE is about research and development (R&D). Over its history, DOE and its predecessor agencies have supported more than 118 Nobel Prize winning researchers, and DOE’s national laboratories have won more than 800 R&D 100 awards since 1962, including nearly one-third of the total awarded in 2018 alone. Every year, regardless of the administration in power, DOE provides billions of dollars toward R&D for groundbreaking technologies. Historically, DOE has worked through industry partners and its network of national laboratories to find and promote energy innovation of every kind: in exploration, production, power generation, and efficiency in the consumer, commercial, building, industrial and transportation sectors. Its industry partners have often been either large, established corporate partners, research universities, or high-tech start-ups with the latest great idea about how to produce and use energy in better, smarter ways.
In these R&D programs, DOE has long focused in part on jobs creation, requiring that the funded research be conducted in the U.S. and that resulting inventions be manufactured substantially in the U.S. However, environmental justice and the community impacts of energy technologies have not generally been prioritized, indeed often not considered at all. That is changing under President Biden. In this administration, technological advancement alone is not enough. It is also necessary to help ensure that the focus on climate does not harm the communities it affects, but rather helps strengthen them. Executive Order 14008 anticipates this very challenge in its Justice40 Initiative, which aims to deliver 40% of the overall benefits of certain federal investments in the energy sector to underserved communities.
In its climate technology funding activities, DOE is not only “on message,” but also and more importantly, it has shown that it is “on the case” in carrying out the multi-pronged climate objectives the President’s Executive Orders articulated. DOE is now actively engaged in trying to ensure that, in its climate initiatives and funding opportunities, the opportunity to receive R&D funding reaches a wider community, that jobs for the U.S. economy -- particularly in under-represented communities -- are always a focus, and that the energy innovations it supports work to the benefit of all Americans.
On a near daily basis, DOE has been issuing announcements of funding opportunities expressly or requests for information (RFIs) expressly designed to achieve the President’s 2035 goal of decarbonizing the electricity grid and the 2050 goal of a carbon-free economy. Since President Biden took office, those announcements now regularly include the recognition that women and minorities are under-represented in clean energy industries and the benefits of these improvements do not always reach low-income communities. More importantly, the funding objectives have been expressly broadened to address those concerns.
In a recent Funding Opportunity Announcement (FOA) designed to support the development of technologies that will drive down the cost of solar power, DOE promoted its goal to support more equitable participation in the solar industry:
To achieve the administration’s energy justice goals, [the Solar Energy Technologies Office (SETO)] is working to ensure that the research it funds will support more equitable participation in the solar energy research community. To this end, SETO, recognizing the inherent advantages of diverse teams, requires applicants to this FOA to include a diversity, equity, and inclusion (DEI) plan that describes proposed activities applicants will engage in to broaden participation from members of groups and institutions that are historically underrepresented in solar energy research.
DOE is implementing this objective in a very concrete fashion, by making applicants’ diversity plans one of the handful of selection criteria that will be weighed in selecting winners. This is not a “one-off” example. Another funding opportunity that is focused on both R&D and deployment of low-greenhouse gas emitting vehicles took a similar approach, identifying eight different examples of ways the diversity goals of the funding opportunity might be achieved.
DOE’s approach to energy justice is further highlighted in a recent announcement by Secretary Granholm concerning DOE’s “Energy Earthshot” for hydrogen, which seeks to reduce the cost of hydrogen fuel by 80% and make it a central part of the effort to achieve the Biden goal of a carbon free economy by 2050. Historically, hydrogen has been available in small quantities for limited industrial uses. The Hydrogen Energy Earthshot is intended to support research that will lead to a new, much larger hydrogen economy, with all of the necessary supporting infrastructure. The RFI that accompanied this announcement solicits input on what is necessary to create a hydrogen economy at scale. It poses questions about how the U.S. can realize this new hydrogen economy in ways that will create opportunities in underserved communities, serve environmental justice, and diversify the suppliers and service providers as the energy economy undergoes the transition to cleaner energy.
The apparent underlying goal is to “get it right” from the start, not just on the technology front, but on the broader societal impacts of energy infrastructure. This is a fundamentally different approach to energy technology development than DOE has pursued in the past, when it uncritically assumed that technology innovation would be good for all of society. Significantly, DOE’s Hydrogen Program is a cross-disciplinary project that includes Fossil Energy, Nuclear Energy and Energy Efficiency and Renewable Energy. Thus, the Hydrogen Energy Earthshot has the opportunity to reinforce across DOE programs how R&D funding can expand its beneficial reach if the agency is intentional about the goal.
Another RFI, focusing on expanding deployment of solar power, solicits feedback from environmental justice organizations, community-based organizations, solar developers, state and local governments, and others about how DOE can support increased community solar to reduce energy poverty through community wealth building. DOE notes in particular its interest in deployment models that enable communities to own such solar systems. Still another DOE initiative seeks to fund the development of a more diverse workforce in the solar industry.
Plainly, under President Biden, DOE is seeking to institutionalize the focus in its climate response on both engaging a broader community in climate-related technology development and building a sensitivity to how energy technologies can be developed and deployed in a way that more broadly serves society. DOE has recently reached out to environmental justice and community-based organizations, incubators and accelerators, developers, investors and funders, state, local, and tribal governments, and the academic research community with a general inquiry on what DOE should be doing to enable “an inclusive and equitable entrepreneurial and innovation ecosystem.” Among other considerations, this RFI seeks information about what is necessary to increase awareness of and reduce barriers to DOE technology funding opportunities and success in performance within the funding framework. The RFI also asks whether it should provide direct support to non-governmental organizations that in turn could support entrepreneurs in underrepresented communities so that they might successfully participate in DOE’s R&D programs and, if so, what assistance would be most useful.
Groundbreaking research has been a point of pride for DOE from its earliest days. The new efforts by DOE to broaden its considerations of what it funds and to whom the funds are dispersed are promising. It is too soon to measure results. We will only learn going forward whether this wider focus will have staying power and whether it will successfully demonstrate that a more diverse group of researchers and innovators can identify and address important solutions to the climate crisis. At the same time, we will learn whether we will successfully build out new energy infrastructure that supports economic growth and environmental justice in communities that have historically borne an unfair share of the burdens of the energy infrastructure of the past.
2. DOI’s Delicate Dance between Clean Energy and the Trust Relationship with Indian Tribes
During the first 100 days in office, the Biden administration directed DOI to make clean energy its top priority and adopted an unprecedented commitment to address environmental justice issues, which will apply to projects on public lands and waters. President Biden also made history with the appointment of the first Native American cabinet secretary in U.S. history -- DOI Secretary Deb Haaland, who is a member of the Laguna Pueblo and hails from New Mexico.
These goals will require a significant shift in policy at DOI, which oversees millions of acres of public lands, federal waters, the national parks, endangered species protection, western water projects, and the trust relationship with over 550 Indian tribes. The DOI’s portfolio is vast and often conflicting, where energy development projects can collide with environmental obligations and tribal opposition. The DOI must both unwind many Trump administration initiatives that are inconsistent with the new administration’s vision and carefully navigate these new priorities, which will not always be in sync.
One of the first acts of the administration was to direct the DOI to review former President Trump’s decision to reduce existing national monuments designated under the Antiquities Act. One of the designations at issue is the Bears Ears National Monument in southeastern Utah, which has cultural significance to several southwestern Indian tribes. The tribes, along with other nonprofit and interested parties, sued President Trump, alleging he lacked the authority under the Antiquities Act to reduce Bears Ears from 1.35 million acres to approximately 199,140 acres. The plaintiffs viewed the Trump reduction as a first step to opening the area to mining.
The litigation remains on hold at the request of the Biden administration, which only recently received DOI’s recommendations regarding the federal position in this case. It is anticipated that President Biden will restore the original Bears Ears National Monument, if not institute a larger designation, as requested by the affected Tribes. This decision will likely lead to new litigation and calls for a permanent, legislative solution. This tension between conservation and respect for tribal sacred sites and opposition to federal control of western landscapes will continue as the new administration attempts to lead DOI toward climate resiliency and conservation. Other projects that are facing similar dynamics are oil and gas drilling on public lands in Chaco Canyon, New Mexico, the Oak Flat mining project in Arizona involving U.S. Forest Service lands, and the ongoing litigation involving cancelled leases in the Badger II Medicine area in Montana.
While the tribes and the Biden administration are aligned on Bears Ears and Badger II Medicine, there can be tensions when it comes to fossil fuel development. This tension became evident after President Biden’s decision to pause all new oil and gas leasing on public lands to assess climate impacts and the program’s benefits to the American taxpayer. This shift in public land management priorities was met with some consternation from tribal nations that depend on fossil fuel royalties from projects on their reservation lands. In light of their concerns, the administration later clarified that the pause would not impact tribal lands, which are regulated under a separate set of laws from the public land laws applicable to Bureau of Land Management (BLM) lands.
This adjustment reflects the administration’s commitment to respect the sovereign authority of tribes to decide how their lands will be used, notwithstanding its broader goal of transitioning to a clean energy economy. This careful tightrope act was recently reflected by DOI Assistant Secretary of Indian Affairs nominee, Bryan Newland, in his comments at his Senate confirmation hearing: “[my] priority, if confirmed at this job, is to make sure the tribes have control of whether, when and how to develop their energy resources, be it renewable energy or other resources they have on their land.” There is no doubt that Indian Country is enthusiastic about the Biden administration’s efforts to combat the impacts of climate change; however, some tribes will want assurances that the transition to clean energy does not result is economic hardship for their communities that are dependent on fossil fuels. These complexities will continue to exist for DOI, as reflected in the differing Alaskan Native perspectives on drilling in the coastal plain of the National Petroleum Reserve Area (NPR-A) and the Alaska National Wilderness Refuge (ANWR).
Another top priority where the Biden administration will carefully consider tribal interests is related to solar and wind energy on public lands and waters. The BLM must review applications for such projects, which are often located near tribal lands or in areas of cultural significance. The former Obama administration faced similar issues where environmental and tribal interests sued DOI in opposition to some of the first solar projects on public lands. This prior litigation indicated that courts are generally reluctant to enjoin clean energy projects, particularly where DOI has gone to lengths to reduce the physical, visual, and environmental impacts of projects on sensitive species’ habitats or cultural sites. The Obama administration similarly weathered tribal cultural resource claims involving a tribe that opposed the offshore Cape Wind project in Nantucket Sound.
The Biden administration will be relying on this past precedent as it seeks to expand solar and wind on public lands and waters while upholding its obligations to Indian nations. Unlike under the Trump administration, there will be a return to compensatory mitigation measures, consideration of traditional cultural landscapes under the National Historic Preservation Act (NHPA), as well as more expansive National Environmental Policy Act (NEPA) reviews as part of DOI’s consideration of solar and wind applications. These initiatives will provide a platform for greater tribal input.
The new DOI leadership is also expected to promote solar and wind projects on tribal lands. At the end of the Obama administration, DOI adopted new regulations for solar and wind projects on tribal lands. Many tribal lands are prime areas for wind and solar yet such projects have been slow to materialize on tribal lands. Renewed attention to this area of untapped growth is likely, as we have already witnessed with DOI’s announcement of the issuance of a final Environmental Impact Statement under NEPA for the Moapa Band’s South Bighorn solar project in Nevada.
One final area that will pose highly sensitive issues for the Biden administration pertains to pipelines, such as the Dakota Access pipeline, which remains a source of controversy. This 1,200 mile pipeline crosses the Missouri River approximately a half mile north of the Standing Rock Sioux reservation in North Dakota and was the focus of intense protests at the end of the Obama administration. The pipeline is subject to U.S. Army Corps of Engineers’ (USACE) approval authority and has been in litigation for years. Although the D.C. federal district court judge recently dismissed the tribal plaintiffs’ case, there will likely be new litigation filed by the tribes should the Biden administration re-approve the project. Moreover, the tortuous path of this case is indicative of the contentious and complex issues at play between various interests.
Interestingly enough, although the case is dismissed, the tribal plaintiffs gained a major victory as the D.C. federal district court judge ruled that the USACE’s authorization for the pipeline was invalid, which was upheld on appeal. What escaped the tribes was a remedy, as their efforts to seek an injunction were unsuccessful. To the disappointment of the tribes and environmental groups, the Biden administration has maintained the former Trump administration’s position that an injunction is unwarranted, arguing that “irreparable harm” is not present and that its court-ordered EIS review under NEPA is the proper forum to consider impacts of the pipeline on the tribes.
Behind the scenes, DOI has likely been involved in inter-agency discussions on this matter given the tribal interests at stake, as was the case under the Obama administration. Although the case is no longer active at the moment, as soon as the USACE issues a new decision on the pipeline after the NEPA review is completed, there will be a challenge to that decision by either the pipeline operator or the tribes. Without question, this case showcases the various, competing interests at play that can arise between environmental justice, the transition to a clean energy agenda, and maintaining the U.S. litigation position across administrations in a defensive posture. The future course of this case will inform how the Biden administration will seek to balance these varying interests.
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As aggressively as it has addressed any policy priority short of its COVID response, the Biden administration has moved rapidly in its first 100 days to renew our government’s efforts to stem climate change. DOE and DOI will both play outsized roles among the federal agencies in helping to implement Biden’s climate agenda. This is made more challenging, however, because the Biden agenda is about much more than just slowing the increase in average global temperatures. The concurrent efforts by DOE to prioritize environmental justice, and by DOI to renew and strengthen the federal government’s trust relationship with Indian tribes also seek to make the necessary changes in a smarter, more inclusive way. In its early days, however, this administration has demonstrated a clear desire to meet these goals in parallel. Early signs are positive, but time will tell if all of these goals can be achieved.
About the Authors:
Mary Anne Sullivan is senior counsel and her practice spans the energy spectrum at Hogan Lovells. Whether in the development of new electric transmission for low carbon energy, advanced nuclear reactors, advanced biofuels, novel approaches to demand response, offshore wind development, electric vehicles or efficiency standards compliance, Mary Anne helps her clients navigate the challenges and find the benefits in the inexorable move to lower carbon energy options. She formerly served as general counsel of the U.S. Department of Energy.
Hilary C. Tompkins is a partner in the Environment practice group and the head of the Native American practice area at Hogan Lovells. Hilary previously served as Solicitor of the U.S. Department of the Interior (2009-2017), overseeing all the legal issues of the agency, from energy, natural resources, and water issues to tribal trust, wildlife, and national parks. Hilary currently serves as a trustee for Dartmouth College and on the non-profit boards of the Environmental Law Institute and the Conservation Lands Foundation. Hilary is a member of the Navajo Nation.
Jamie Wickett is a partner in the Government Relations practice of Hogan Lovells. With more than 25 years of federal policy experience, starting as a Capitol Hill staffer, his practice focuses on federal tax policy, in particular related to clean energy incentives and standards, and in areas where new technologies are outpacing old policies.
Acknowledgements:
The authors acknowledge and thank Juliya Grigoryan, Knowledge Lawyer at Hogan Lovells, and summer associates, Ashley Grey and Alex Ervin, for their assistance with this article.