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Public Lands and Environmental Protections Actions Under the 115th Congress and the Trump Administration: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

By popular request, and subject to my typical caveats for this series,* I’ve been digging up primary sources having to do with recent public lands and environmental actions by Congress and President Trump. (This is a long one, and even more of a primary source overload than usual…)

Here is a list of all House and Senate Bills and Joint Resolutions having to do with energy and the environment. Of these, here are the proposals of the Republican Party, here are the proposals of the Democratic Party, and here is the proposal by the Independent congressman. Of bills and joint resolutions currently before Congress, I’ve gathered some that seem the most relevant to the questions of environmental protection that have been floating around.

As you read about these bills, remember that many bills and joint resolutions do not make it all the way through the process of becoming law. In the full list of current legislation, use the “Status of Legislation” filter on the left-hand navigation menu to see which items have progressed through one or both chambers of Congress. Anything can be “introduced” and then “referred to committee,” but it takes some coordinated action to get the item passed even one chamber of Congress.

(I will update the progress of these laws periodically. Last update was 2/17/2017)

Fossil Fuels and the Law

(Indented bills have been signed into law.)

Representative Don Young (R-AK) introduced H.R.49 – American Energy Independence and Job Creation Act on January 3rd, 2017. (referred to committee)
This bill directs “the Secretary of the Interior to establish and implement a competitive oil and gas leasing program that will result in an environmentally sound program for the exploration, development, and production of the oil and gas resources of the Coastal Plain of Alaska” As of 2/17/2017 this bill has been referred to the Subcommittee on Energy and Mineral Resources and has been there since yesterday.

✼ Several congressmen have introduced bills and joint resolutions “disapproving” the “Stream Protection Rule” 81 Fed. Reg. 93066 (December 20, 2016). (made it to the president)
H.J.Res.11, H.J.Res.16, H.J.Res.38, and S.J.Res.10 all “disapprove” of the same rule according to the procedures used to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if they pass the House, the Senate, any relevant committees, and are signed by the President, they would invalidate the “Stream Protection Rule.” That rule starts, “We, the Office of Surface Mining Reclamation and Enforcement (OSMRE or OSM), are revising our regulations, based on, among other things, advances in science, to improve the balance between environmental protection and the Nation’s need for coal as a source of energy” (according to its own summary).
As of 2/16/2017, Joint Resolution 38 has been signed into law.

Representative Rob Bishop (R-Utah) introduced H.J. Res. 36 on January 30th, 2017. Meanwhile, on the same day Senator John Barrasso (R-WY) introduced the identical S.J.Res 11. (passed 1 chamber)
These are two of the Joint Resolutions that seek to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if they pass the House, the Senate, any relevant committees, and are signed by the President, they would invalidate the “Waste Prevention, Production Subject to Royalties, and Resource Conservation” rules, 81 Fed. Reg. 83008 (November 18, 2016). The rule in question is designed to prevent venting and flaring of oil and gas on public lands, especially the greenhouse gas methane. As of 2/17/2017 the House version it had passed the House and been sent to the Senate, and it had been with the Senate since 2/2/2017. The Senate version had been referred to the Senate committee on Energy and Natural Resources and been with them since 1/30/2017.

✼ Congressman Bill Huizenga (R-MI) introduced H.J.Res. 41 on January 30th, 2017.
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Disclosure of Payments by Resource Extraction Issuers” rule, 81 Fed. Reg. 49359 (July 27, 2016). The bill summary states: “The rule, mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act, requires resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas, or minerals.”
As of 2/17/2017, this Joint Resolution has been signed into law.

Representative Kevin Cramer (R-ND) introduced H.J.Res.45 on January 30th, 2017. (referred to committee)
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Management of Non-Federal Oil and Gas Rights” rule, 81 Fed. Reg. 79948 (November 14, 2016). That rule is intended to “improve [the U.S. Fish and Wildlife Service’s] ability to protect refuge resources, visitors, and the general public’s health and safety from potential impacts associated with non-Federal oil and gas operations located within refuges” (according to its own summary). As of 2/17/2017 the joint resolution had been referred to the House Committee on Natural Resources and had been there since 1/20/2017.

Representative Paul Gosar (R-AZ) introduced H.J. Res. 46 on January 30th, 2017. (referred to committee)
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Non-Federal Oil and Gas Rights” rule, 81 Fed. Reg. 77972 (November 5, 2016). The rule that this Joint Resolution seeks to repeal is the November 2016 update to the National Park Service’s “9B Regulations.”  According to the National Park Service, these regulations “control conduct associated with private mineral rights on, across, or through federal land so that these activities avoid or minimize harm to park resources and values” (see their information page on the topic). The 2016 update had been proposed in October 2015, after initial Hydraulic Fracturing rules had been blocked by the case State of Wyoming v. United States Department of Interior. As of 2/17/2017 it had been referred to the House Committee on Natural Resources and been with that committee since 1/30/2017.

Congressman Stevan Pearce (R-NM) introduced H.J.Res.56 on February 1st, 2017. (referred to committee)
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Site Security” rule, 81 Fed. Reg. 81356 (November 17, 2016). This rule deals with oil and gas produced on Federal or Indian land, saying that it should be  “properly and securely handled, so as to ensure accurate measurement, production accountability, and royalty payments, and to prevent theft and loss” (according to its own summary). As of 2/17/2017 the resolution has been referred to the House Committee on Natural Resources and has been there since 2/1/2017.

Congressman Kevin Cramer (R-ND) introduced H.J.Res 68 on February 7th, 2017. (referred to committee)
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of Gas” rule, 81 Fed. Reg. 81516 (November 17, 2016). This rule “establishes minimum standards for accurate measurement and proper reporting of all gas removed or sold from Federal and Indian” land (according to its own summary). As of 2/11/2017 the resolution has been referred to the House Committee on Natural Resources and has been there since 2/7/2017.

Congressman Don Young (R-AK) introduced H.J.Res.70 on February 9th, 2017.
This is one of the Joint Resolutions that seeks to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if it passes the House, the Senate, any relevant committees, and is signed by the President, it would invalidate the “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf” rule, 81 Fed. Reg. 46477 (July 15, 2016). This rule introduces “new requirements to regulations for exploratory drilling and related operations on the Outer Continental Shelf (OCS) seaward of the State of Alaska” (according to its own summary). As of 2/17/2017 this joint resolution had been referred to the House Committee on Natural Resources and had been there since 2/9/2017.

Interested in federal subsidies for fossil fuels?

Land and the Law

Representative Bob Goodlatte (R-VA) introduced HR 5 – Regulatory Accountability Act of 2017 on January 3rd, 2017.
This bill seeks to amend the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Act of 1996 (SBREFA) in ways that would impact the U.S. Forest Service (USFS) and Bureau of Land Management (BLM) when they revise or amend land management plans. It includes language indicating that in addition to direct economic effect of final rules, proposed rules that include “any indirect economic effect (including compliance costs and effects on revenue) on small entities which is reasonably foreseeable and results from such rule (without regard to whether small entities will be directly regulated by the rule)” would now require review under the RFA. The bill also proposes prior to publishing a proposed rule, the Chief Counsel has to put the rule through an extensive review (Sec 306). However, “The Chief Counsel is empowered to waive the review panel requirements if they are deemed impracticable, unnecessary, or contrary to the public interest.” 13 environmental groups have signed a letter opposing HR 5. As of 2/17/2017 this bill has passed the House, been presented to the Senate, and been referred to the Senate committee on Committee on Homeland Security and Governmental Affairs, where it has been since 1/12/2017.

Representative Ken Calvert (R-CA) introduced H.R.481 – Reducing Environmental Barriers to Unified Infrastructure and Land Development Act of 2017 Act or the REBUILD Act on January 12th, 2017.
This bill shifts some environmental review responsibilities from the Federal government to the states. As of 2/17/2017 this bill had been referred to the House Committee on Natural Resources and had been there since 1/12/2017.

Representative Jason Chaffetz (R-UT) introduced H.R.621 – Disposal of Excess Federal Lands Act of 2017 on January 24th, 2017.
…as he has done in each of the 5 Congresses in which he as served. This bill seeks to sell federal land that has been previously identified in the report submitted to Congress on May 27, 1997. As usual, this bill has been referred to committee.

Representative Liz Cheney (R-WY) introduced H.J. Res. 44 on January 30th, 2017. That same day, Senator Lisa Murkowski (R-AK) introduced S.J.Res 15 to the same effect. 
These are two of the Joint Resolutions that seek to roll back previous legislation (as discussed in further detail in my last post in this series). In short, if they pass the House, the Senate, any relevant committees, and are signed by the President, they would invalidate the “Resource Management Planning” rule, 81 Fed. Reg. 89580 (December 12, 2016). The Rule in question is often referred to as the Bureau of Land Management’s “Planning 2.0” rule. It updated procedures for preparing or revising resource management plans under the Federal Land Policy and Management Act of 1976. As of 2/17/2017 the House version had passed the House and been received in the Senate, and it been with the Senate since 2/8/2017. Meanwhile the Senate version has been referred to the Committee on Energy and Natural Resources and has been there since 1/30/2017.

Representative Paul Gosar (R-AZ) introduced H.R.825 – Public Land Renewable Energy Development Act of 2017 on February 2nd, 2017. 
This bill encourages the development of renewable energy on public lands. As of 2/17/2017 this bill had been referred to the House Committee on Agriculture and had been there since 2/2/2017.

President Trump’s Executive Actions on the Environment

There is no good way to provide a link to the full list of Executive Actions on energy and the environment because so far the Executive Actions that seem relevant have been classified under subjects like “Business & Industry” and “Money,” though primarily under “Business & Industry.” There is, however, an “issues” page on the White House website that lays out President Trump’s goals around Energy. Here it says that “President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.” With that in mind, here are the Executive Actions that are relevant to energy and the environment.

As a side note: the early temporary freeze on EPA grants and contracts as well as the early temporary directive that the EPA not to talk to the media or post information on blogs or social media appear to have been conducted through channels that didn’t leave officially published source documents. Because of this, I also can’t determine whether these actions are unusual compared to previous executive transitions using official documents.

Cabinet

Three cabinet members will have significant power over energy policy and the environment.


* Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.

New Congresses Undoing the Legislation of Previous Congresses: The source documents behind the news

The Primary Source Crusader (my own mashup of images)

People talk about Congress “rolling back” or “reversing” various legislation from the Obama administration. People who didn’t like that original legislation are relieved, and people who did like it feel cheated. So can they really do that so easily? What’s on the chopping block? And is this different from previous changes in Congressional or Executive power? Subject to my “source documents behind the news” caveats,* here’s what I’ve been able to gather on the topic.

Can they do that?

Yes. Since March 29, 1996, Congress can “disapprove” of previous legislation under Chapter 8 of 5 U.S.C. §802 as long as the Join Resolution is received by Congress within 60 legislative days (which in no way resemble calendar days) and then passes both the House and the Senate, plus any relevant committees, and is then approved by the President.

§802. Congressional disapproval procedure

(a) For purposes of this section, the term “joint resolution” means only a joint resolution introduced in the period beginning on the date on which the report referred to in section 801(a)(1)(A) is received by Congress and ending 60 days thereafter (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress), the matter after the resolving clause of which is as follows: “That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect.” (The blank spaces being appropriately filled in).

(b)(1) A joint resolution described in subsection (a) shall be referred to the committees in each House of Congress with jurisdiction.
(2) For purposes of this section, the term “submission or publication date” means the later of the date on which—

(A) the Congress receives the report submitted under section 801(a)(1); or
(B) the rule is published in the Federal Register, if so published.

What’s on the chopping block, and for how long?

As of February 9th, 2017, a record number (see below) of Joint Resolutions had been submitted in accordance with Chapter 8 of 5 U.S.C. Here is a complete list to date.

  • You can use the “Status of Legislation” filter on the left-hand navigation of the full list of these joint resolutions to explore these joint resolutions according to how far they’ve made it through the three major steps process of passing first one Chamber of Congress, then the second Chamber, and then the President. (These joint resolutions also have to go through any relevant committees, but those aren’t filterable in the same way.)
  • You can also use the “Subject – Policy Area” filter the full list of these joint resolutions by general topic (Energy, Environmental Protection, Financial Regulation, Eduction, etc).

How long until this window of time closes? It’s hard to say, since a legislative day can span or skip several calendar days. It all depends on how many times the chambers of Congress adjourn. The Congressional Record‘s Daily Digest is essentially the meeting minutes of Congress and lists when the Senate adjourns in the proceedings of each day. So far, as of 2/9/2017, there have been 17 legislative days since the start of this Congress.

Is this rate of Congressional disapproval different from previous times when the balance of party power changed?

Using the History, Art & Archives of the House of Representatives and the Senate History, here are the times since 1996 (when the law being called upon was enacted) when power shifted between Republicans and Democrats, and how many times Congress employed Chapter 8 of 5 U.S.C. in each instance.

No shifts of party majority happened between 1996 and 2001.

2001 was complicated. The President changed from Democratic to Republican. The House remained Republican, as it had since 1995. The Senate was so evenly matched that it switched back and forth a few times (when the vice president changed party and then a couple senators switched affiliations). By November 2002 the Senate had settled back into being Republican majority, as it had been in since 1995.

  • Joint Resolutions Introduced: 12
  • Passed one chamber: 1
  • Successful Joint Resolutions: 1

2007 (midterm) – House and Senate both changed from Republican to Democratic. 

  • Joint Resolutions Introduced: 10
  • Passed one chamber: 1
  • Sent to the President: 0
  • Successful Joint Resolutions: 0

2009 – The President changed Republican to Democratic. The House and Senate remained Democratic.

  • Joint Resolutions Introduced: 13
  • Passed one chamber: 0
  • Successful Joint Resolutions: 0

2011 (midterm) – The House changed from Democratic to Republican. The Senate remained Democratic.

  • Joint Resolutions Introduced: 20
  • Passed one chamber: 2
  • Sent to the President: 0
  • Successful Joint Resolutions: 0

2015 (midterm) – The Senate changed from Democratic to Republican. The House remained Republican.

  • Joint Resolutions Introduced: 27
  • Passed one chamber: 6
  • Sent to the President: 5
  • Successful Joint Resolutions: 0 (all were vetoed)

2017 – The President changed from Democratic to Republican. The House and Senate remained Republican. (This section will be updated as needed – last updated 2/21/2017)

  • Joint Resolutions Introduced: 42
  • Past one chamber: 13
  • Sent to the President: 3
  • Successful Joint Resolutions: 2

This means that in all the years that this law has been in effect, only one rule has been rolled back. In 2001, Congress disapproved the rule submitted by the the Department of Labor relating to ergonomics, published at 65 Fed. Reg. 68261 (2000).

 

* Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.