Winds of Change?? The Sun Will Come Out Tomorrow?? “You’re Fired!”??:
The BLM’s Rules Promoting Renewal Energy Development Under the Incoming Trump Administration
December 15, 2016
By Kevin E. Lockhart Law Office of Kevin E. Lockhart, LLC
In November of 2016, the United States Bureau of Land Management (“BLM”) released its final rule titled “Competitive Processes, Terms, and Conditions for Solar and Wind Energy Development and Technical Changes and Corrections.” This new rule formalizes BLM’s existing Smart from the Start approach to renewable energy development in areas with few natural resource conflicts. The rule supports renewable energy development by offering competitive leasing and incentives to developers of wind, solar, geothermal, and biomass resources.
This new rule could help drive development and create jobs in places like New Mexico, where there exists a stagnating state economy and the BLM oversees management of 13 million acres of public lands. According to the BLM’s website, there are currently no wind projects on BLM lands in New Mexico, and despite New Mexico having excellent solar resource development potential, there are currently no solar energy development applications on BLM public lands in New Mexico.
So the rule has been issued. The local economy has a workforce that is in desperate need of opportunities in industries that are based in emerging technologies. BLM managed pubic land is in abundance. What is there to impede this seemingly natural progression? Some might say that impediment goes by the name of President-elect Trump. Based on campaign promises and some of his recent cabinet appointments it is not farfetched to think that renewable energy projects and rules created by the Obama administration could be abandoned or reversed entirely once Mr. Trump occupies the Oval Office. You could expect traditional fossil fuel resources to potentially be aggressively developed with Republicans holding the House, Senate, and the White House. But what about renewables?
The President-elect is no doubt expected to retreat from the carbon-reducing policies of the Obama administration. However, rules promulgated by administrative agencies such as the BLM and EPA cannot simply be reversed by the stroke of a pen. Not even the pen of a president. Past decisions of the U.S. Supreme Court have made it clear that doing away with regulations passed by executive agencies requires the same kind of rule-making analysis, and notice and public comment period as the regulation did when it was initially enacted. Reversing executive orders issued by Obama will likely be a focus of the Trump presidency. However, rescinding executive orders does not rescind regulations passed pursuant to those executive orders. Attempts by the incoming Trump administration to change or reverse rules such as the BLM rules promoting renewable energy, will likely result in losing legal battles unless his administration can show good cause why such rules should be changed. This could take time. Possibly years in federal courts. Meanwhile, innovation and private sector investment in renewable energy is expected to continue. If the cost of renewable energy continues to decrease, the development of renewable resources such as wind and solar energy will be desirable regardless of the policy that emerges from Washington.
Will there be political opposition under the incoming Trump administration to rules that promote renewable energy development on America’s public lands? Most likely. But the final rule has already been passed and that means something. It means that it’s likely to stay at least in the short-term; absent a showing in the courts that reversing the rule makes more sense. And as we stated, even that would take some time. As innovation and development continues to make renewable energy more viable and cost-efficient, wind and solar projects on BLM land in states in the west seem likely to emerge as the needed providers of jobs in industries of the future. The land is there. Alongside oil and natural gas, the development of renewable energy on public lands is a sound strategy for increasing our energy independence, upholding our responsibility to be stewards of the beautiful places that make up our public lands, as well as provide the economic opportunities in emerging technological fields that often eludes those areas that contain the majority of public land in America.