David J. Hayes
Executive Director, State Energy & Environmental Impact Center at NYU School of Law

In the last few weeks, we've seen numerous events with implications for how to think about the twin challenges of developing the energy resources we need while also protecting our public lands, curbing climate change, and protecting the environment. There have been setbacks for three major U.S. pipeline projects, all rooted in flaws that courts found in environmental review processes; a new announcement by  President Trump about a “top to bottom overhaul” of the nation’s environmental review process, a cornerstone of the landmark environmental law President Nixon signed half a century ago; and ambitious new plans announced by Vice President Biden to dramatically increase clean energy investments. 

In this edition of Columbia Energy Exchange, host Jason Bordoff is joined by David J. Hayes to discuss what all these changes might mean for energy infrastructure projects on federal lands moving forward, along with other issues like what’s next for clean energy and climate policy, how states are responding to the Trump administration’s recent environmental rollbacks, and much more. 

David J. Hayes is an environmental, energy and natural resources lawyer who leads the State Energy and Impact Center at the NYU School of Law, which supports state attorneys general in their advocacy for clean energy, climate and environmental laws and policies. David previously served as the Deputy Secretary at the U.S. Department of the Interior for President Barack Obama and Bill Clinton. He’s also been a visiting lecturer at Stanford Law School, is a member of the board of the Coalition for Green Capital, and is founder of the U.S. Wildlife Trafficking Alliance. Earlier in his career, he worked in private law practice as global chair of the Environment, Land and Resources Department at Latham & Watkins. 

 

Transcript

[00:00:03]
Jason Bordoff:  Hello and welcome to Columbia Energy Exchange, a weekly podcast from the Center on Global Energy Policy at Columbia University.  I’m Jason Bordoff.  In the last few weeks, we have seen numerous events with implications for how to think about the twin challenges of developing the energy resources we need, while also protecting our public lands, probing climate change and protecting the environment.  Setbacks for three major U.S. pipeline projects, all rooted in flaws that courts found in the environmental review process, a new announcement by President Trump about a top to bottom overhaul of that process, a cornerstone of the landmark environmental laws that President Nixon signed a half century ago, and then ambitious new plans announced by Vice President Biden, to dramatically increase clean energy investments.

I wanted to hear about what all of these changes might mean for energy infrastructure projects on Federal lands, moving forward along with other issues, like what’s next for clean energy and climate policy, how the States are responding to the Trump administration’s recent environmental rollbacks and much more.  So, I reached out for this episode to my friend and former colleague David Hayes.  David is an Environmental Energy and Natural Resources lawyer, who leads the State Energy and Impact Center at the NYU School of Law, which supports State Attorneys General and their advocacy for clean energy, climate and environmental laws and policies.

He previously served as the Deputy Secretary at the U.S. Interior Department twice, for President Barack Obama and for President Bill Clinton.  He’s been a visiting lecture at Stanford Law School, a member of the board of the Coalition for Green Capital and is the founder of the U.S. Wildlife Trafficking Alliance.  Earlier in his career, he worked in private law practice as Global Chair of the Environment, Land and Resources Department at Latham and Watkins.  David, thanks for joining us today on Columbia Energy Exchange.

[00:01:48]  
David Hayes:  It’s great to be here.

[00:01:50]
Jason Bordoff:  So, there’s so much I want to talk to you about, we’re not going to have enough time, but let – I want to – broadly speaking, want to talk to you about your two different hats or I should say two of your myriad hats.  Federal lands and then, I also want to talk about States, which I know is the focus of much of your work at NYU.  So, starting with Federal lands, when people think of Federal lands, hopefully they think of our extraordinary National Parks and monuments, hopefully they have visited some of these national treasures, if not, I encourage people to do so.  But most energy in the country is produced on private lands, right?  So, when we talk about energy and climate change, just explain to start for people, why Federal lands are -- and thus -- the Department of Interior are important?

[00:02:35]
David Hayes:  Well it’s a surprise to a lot of people, but one third of the land mass of the United States are in public hands, most of that, the Department of the Interior, big chunk as well with the United States Forest Service and then you add to that the Outer Continental Shelf, which is managed by the Interior Department.  So, the first three miles offshore are in State Waters, after that until the Economic Exclusion Zone, that’s Federal Waters.  So, in terms of energy, historically a very significant percentage of our domestic energy has come from the public lands, that tradition is oil and gas, with the Intermountain West.  And then, Alaska is obviously a big player, most of that oil comes from State lands, but of course it crosses Federal lands, the Trans-Alaska pipeline, to get to markets et cetera.  

And now, with the prospect and the imperative of much more clean energy, the Federal lands, the public lands, we call them the public lands, more than the Federal lands if you will, they’re owned by all of us, every citizen has a stake in this.  The public lands have enormous renewable energy resources that we’ve begun to tap and need to tap more to respond to the climate crisis.

[00:04:05]  
Jason Bordoff:  So, I’m going to turn to both of those, the conventional energy and also kind of how to grow clean energy.  Interior Secretary Bernhardt, President Trump’s Interior Secretary, testified before Congress that the Interior Department lacks statutory authority to manage public lands to address climate change.  How do you react to that?

[00:04:26]  
David Hayes:  Well he’s wrong about that.  The Federal Land’s Policy and Management Act FLPMA, specifically talks about the importance of sustainable use of our public lands and the long-term environmental integrity of our public lands.  You cannot use those words without addressing climate change.  The public lands are an example writ large of the impacts of climate change.  We are seeing huge historic droughts in the Colorado River Basin, which is dominated by public lands.  We are seeing wildlife issues, which are managed by the Fish and Wildlife Service – U.S.  Fish and Wildlife Service and the National Marine Fishery Service on public and private lands, all managed by Federal authorities, highly impacted by climate change.

We are seeing the coastal resources, there are 30,000 miles of coastal lands that are managed by the Federal government, if we can believe that, and they’re being impacted by public – by climate.  So, you cannot manage these resources without engaging in climate analysis and reacting to it and its disingenuous and an abdication of his responsibility to walk away from climate.

[00:05:51]  
Jason Bordoff:  Well, tell us what you really think.  Well the -- so, the – and just related to climate, energy, environment, another key area of responsibility, obviously for Interior is its trust responsibilities –

[00:06:03]  
David Hayes:  Yes.

[00:06:04]
Jason Bordoff:  -- for relationships between the Federal government and Native American tribes.  We’ve seen a growing focus, as you know very well on how climate policy intersects with issues of environmental justice, including for tribes.  Can you just talk a little bit about that relationship and how do we think about energy and climate issues in that context?

[00:06:21]
David Hayes:  Very important, the trust obligation is one of the most sacred obligations the Federal government has to treat federally recognized tribes as the sovereigns that they are, work with them on a government to government relationship.  Their historical relationship with the States is not good, the Federal government is their trustee, and that means -- when it comes to all economic development decisions, tribes need to be listened to and encouraged and they need to have a partner in the Federal government.

We worked hard on this, in my time in government, to effectuate the executive order that laid out how government to government consultations work.  It’s not – it’s fallen away unfortunately, as you could see with the Dakota Access Pipeline decision just last week, a recognition that the Federal government has not taken adequate attention – given adequate attention to the concerns  there of the – of a number of Sioux tribes very concerned about the pipelines potential impact on their water supplies and their land base.

[00:07:35]
Jason Bordoff:  And the – I’m just curious by the way this Supreme Court decision that came out about, half of Oklahoma being tribal land.  What the implications of that are, either for energy, climate, environmental, or just more broadly?

[00:07:47]
David Hayes:  Well, more broadly, it’s incredibly important.  I think it reminds people, and teaches people, some people don’t have enough base information to be reminded, but teaches people, that we have treaty obligations to tribes.  And they need to be honored and in this case, they were not in Oklahoma and it’s interesting, if you read the Dakota Access Pipeline decision from a week or two ago, the judge there was – came down and recognized the tribes rights under National Environmental Policy Act, NEPA, but he was ready to move on to their treaty rights as well, he didn’t have to reach that -- and also environmental justice issues, which are very much at the center of the trust responsibility.  

Tribes have been treated poorly. When I first started at the Interior Department for Bruce Babbitt in 1997, my first assignment was to work on Indian Water Rights in the West, and I traveled all around the West, had regional listening sessions with tribal members and leadership, and learned a lot and listened a lot, and that’s what the Federal government needs to do way more of.

[00:09:12] 
Jason Bordoff:  So, let me -- you mentioned Dakota Access twice now and we saw setbacks for several pipelines recently in response, in part due to flaws in the environmental reviews.  President Trump announced major reforms to NEPA that were widely criticized by environmentalists, I assume you will agree with those criticisms, but let me ask you, the White House in announcing those reforms also said, according from their press statement, the Federal Environmental Review Process has historically been far too complex, costly and time consuming.  

You probably don’t disagree with that so, just talk a little bit about what was wrong assuming, you think it was, with what the administration did, and then, how we should address that problem, if not in the way that this administration did?

[00:09:58]
David Hayes:  Well that’s a big question, Jason, but let me break it down, it’s very timely, it’s very important, I mean there’s no question that permitting large projects is complicated and challenging, and that that we can do better, and that we have done better.  The problem is this administration doesn’t get it.  Step one has to be -- an embrace of the environmental concerns that are manifested in our laws and a recognition that projects are going to need to meet the environmental standards that Congress has laid out for everyone in the U.S.

When you start from the proposition, that these environmental requirements are largely a nuisance and we just – we need to somehow power through them and get pass them and get these projects built, that’s the philosophy that leads to the terrible track record this administration has in complying with NEPA.  So, start there, how can we trust a reform to an administration that fundamentally disagrees with NEPA and with the Environmental laws underlying it?  

And what they’ve done here is basically slash away at NEPA every way imaginable.  The final rule limits the projects that are covered, provides – asks the big question, what’s the major project, suggesting that a lot of projects where Federal government has important permitting requirements or financing requirements, but doesn’t control the whole project, perhaps we don’t need to do NEPA for them.  So, let’s throw up the ball and have fun with that one.  Limits alternatives analysis, suggest that you’re going to look at the alternatives that the project developer wants and/or the lead agency has jurisdiction over.  

So, if we are going to look at a pipeline delivering gas to the southeast by the Federal Energy Regulatory Commission, we’re not going to look at renewable energy alternatives, because that proponent of the pipeline doesn’t want clean energy as a competitor, et cetera.  And we’re going to limit the scope of the analysis, in particular, we’re going to avoid climate considerations. We’re not going to look at indirect impacts, including for example, the downstream combustion products of the gas that’s in the pipeline, we’re not going to look at cumulative impacts, we are actually just going to change the definition and take those words out.

And then, you can see also climates in the crosshairs are going to look at only reasonably foreseeable events that -- not events that are remote in time, Hello! Climate? Not events that are geographically remote, Hello! No climate? Not the results of lengthy casual chains, Hello! We’re not going to look at climate? This is not reform.  

[00:13:02]
Jason Bordoff:  So, you’re talking about what it looks like in your view to do thorough analysis, to include more, not less, especially issues around climate change and so just coming back to this question of how to get this done in a time efficient manner, and as you know because your comments were very helpful although, all errors were my own, I argue in the New York Times today that some of the issues that brought down pipelines might put some clean energy projects at risk, and I have a hyperlink in there for people who want more detail to something you wrote about some efforts in this direction so, people should read that.

Talk a little bit about what you think needs to be done to be as comprehensive and thorough as you just described, but make sure that we can – but still get these energy projects built and especially for clean energy? 

[00:13:50]
David Hayes:  Well this has been done before, when I walked in with Ken Salazar to the Interior Department as his Deputy in January 2009, despite the enormous solar energy resource in the southwest U.S. and the enormous Federal estate there, there were no solar – utility scale solar projects that had been permitted.  In the Bush administration, just like the Trump administration, it was all about oil and gas, all the time, not renewable energy.  The President, Ken Salazar, and I wanted to change that equation, and there were 400 applications stacked up on BLM’s desk for solar projects.

We decided we were going to move out on that, and do it right and we started with – and I should say, the Energy Policy Act, in 2005 called on the Federal government to have 10,000 megawatts of clean energy permitted within 10 years.  When, we came in, there were maybe 1000 megawatts in three years, three years – two years, before the deadline, we hit 10,000 megawatts. We permitted large footprint projects that required environmental impact statements in an average of 18 months, how did we do it? 

We brought all the parties to the table early, including all the Federal agencies that had a stake in this, as well as the environmental community, local communities, environmental justice communities and the developer.  We looked at projects to identify if there were fatal flaws, to get all the environmental issues on the table so the environmental impact statement would be fulsome and address all the issues to the extent that there were problems, they were identified early.  The project was either abandoned or fixed and we moved on.

And this led to in four, five – four and a half years, 15,000 megawatts of permitted utility scale projects on our public lands.  Along the way, we learned that actually we inherited the Cape Wind Project, the offshore wind project in Nantucket Sound, and we brought that home, but we realized this was not a good place for a wind project, in the middle of Nantucket Sound, nor were some of the self-identified lease requests in the desert.  Instead we should have a more programmatic landscape scale approach, try to deconflict the areas that where we know there are going to be environmental problems, provide green lights for industry to come in and ask for permitting in the right places.

We did that in the southwest with solar energy zones, we took that same playbook to the Atlantic Ocean and through the – through our department and our leadership, we deconflicted areas, identified wind energy areas and those are the areas that are now under lease, and that are going to be developed.

[00:17:04] 
Jason Bordoff:  And what do you think of deadlines, one year for an EA, two years for an EIS, I think New York, when it comes to clean energy, recently proposed deadlines like that.  Do they – does that make sense?

[00:17:14] 
David Hayes:  I am a believer in schedules.  We came in and we wanted to get it done, we wanted to change – to move the Titanic away from a single minded emphasis on oil and gas to clean energy, and we got it done and so, there’s nothing wrong with -- I think, with requiring discipline in terms of bringing in the public input, getting the science right and getting decisions made.

And interestingly, some of that is in the final NEPA rule, of course, but that’s not new.  Actually, that’s just a codification of what Congress adopted in 2015, under the FAST Act.  People – a lot of people aren’t aware of this, but they took the playbook that we had there at the Interior Department, and put it into law.  It requires for example, that the lead agency work with other cooperating agencies upfront, that there would be a dashboard with schedules and all that.  So, a lot of what the -- the few real NEPA reforms that are in that final rule are actually just fleshing out what Congress already required, based on the positive experience we had in the Obama administration.

And that’s the playbook that’s needed going forward because, as you say in the New York Times this morning, we have got to scale up clean energy, we’ve got to get it done right.  And one of the keys is to not have it all gummed up in litigation and subject to reversal, which is what’s happened again and again with Trump.  So, I think, we’ve got a playbook that will work and has to work for climate.  

[00:19:02]
Jason Bordoff:  So, in addition to that playbook for making environmental reviews work well, while still upholding the core of these landmark environmental laws, talk about what else the role of the Department of Interior is in hoping to expand clean energy from solar in the southwest, offshore wind and much more.  What should the Interior be doing in an administration that is focused on trying to scale up clean energy?

[00:19:29]  
David Hayes:  Well two things.  Number one, we’ve talked a lot about the renewable energy side, and the offshore wind in particular is an amazing resource and very conveniently located to the northeast, which really needs clean energy and that’s run by Governors and legislatures that want clean energy.  Also, I would say on the positive side, transmission is a big problem and as you know, a lot of renewable energy is stranded.  The public lands, one-third the land mass, it’s very difficult to cross significant landscape without encountering public lands.

And the Interior Department working with the Forest Service and the parks, and our units, in the Interior department, my former – not mine anymore, need to figure out a better way to deal with transmission to get that done.   The other half of it Jason, is that – is the climate impact piece, we alluded to this early on, but the public lands are seeing the impact of climate on water, on land resources, on wildlife resources, on coastal resources.   And because the Federal government has such a big footprint, it should be leading in terms of identifying and addressing the impacts that climate is having and helping provide States and localities a playbook for them to have more resilient coastlines and to deal with and see the future.  And we started this in the Obama administration, but it’s dying on the vine, right now.  

[00:21:17]
Jason Bordoff:  And this administration, obviously I know you’re critical of most – much most of what it’s done, but we have seen offshore wind leases taking place and moving forward, is that right?

 [00:21:30]
David Hayes:  Yes, yeah, it’s wonderful, it’s – and it’s – the leases are taking – are moving forward in the wind energy area is that we created, in consultation with the Governors, up and down the east coast.  We worked with other Federal agencies to find the areas that looked like they had fewer conflicts, we worked with the coast guard, the department of the navy, NOAA others that – and fishery interest to identify the areas that look the best, it’s a wonderful thing.  I would say that we can’t thank the Trump administration for this, I mean this is being driven by the States in the northeast that have made a decision that they’re going to transition to clean energy.

And offshore wind is a fabulous opportunity for them so, they’ve been pushing and yes the Interior Department has not been resisting, although their late identification of the need for cumulative impacts analysis has thrown Vineyard Wind for a loop for a year. That should have been identified way earlier, but whatever, it’s moving forward now, and I think we all are grateful for that.

[00:22:47]
Jason Bordoff:  And New York, where you and I both work at two Universities, there has been pushing for clean energy renewables, offshore wind, also hydropower, which falls in part within the Interior Department’s purview so, you can talk a little bit about how we balance the need for zero carbon energy like hydro with the environmental concerns that exist around hydropower?

[00:23:11]
David Hayes:  Well it’s really interesting, a lot of our historic environmental -- our historic energy laws have not been modernized. This is why David Bernhardt says, and why FERC says, “Hey! The Natural Gas Act or the Federal Power Act don’t talk about the environment or climate so, therefore we don’t have to worry about it,” that’s wrong.  But it would be good to have these laws modernized.  When it comes to hydropower, the Federal Power Act was modernized in the 80s with the raising up of environment as a coequal interest to power production.  

So, the relicensing processes that have moved forward since then have embraced the importance of conforming hydropower with the needs of the fisheries et cetera that are impacted by hydropower.  That’s been a bumpy and difficult permitting process, but it’s a fulsome one that takes into account environmental impacts and dams are getting relicensed and in some places they’re  – they’re not, where they really don’t make sense, and there are consensual agreements to take down dams as is happening in the Klamath basin for example.

So, Interior plays a big role, because the Fish and Wildlife Service actually has essentially veto authority under Section 4 of the Federal Power Act, and also fishway interest under Sections 10 and 18 and then, they also – the Federal Power Act takes a bow to impacts on public lands, like park lands et cetera.  So, hydropower is really an important issue and also I should say, as you know Jason, there are some exciting possibilities of small hydro, of run-of-the-river-hydro, the major energy source on Kodiak Island in Alaska is hydro with a balance of it being wind, in Denali National Park there is -- small hydro is the main power provider, so, hydro’s an important part of the puzzle.  

[00:25:36]
Jason Bordoff:  So, at the – Center on Global Energy Policy, in addition to our work on Climate Policy, clean energy technologies, we have what we call the Carbon Management Research Initiative.  Can you talk about the role of public lands in carbon management, nature-based carbon removal, using public lands onshore, offshore for carbon sequestration?

[00:25:55]
David Hayes:  Yes, this is an exciting area for the public lands.  Public lands as you know, are a carbon resource writ large.  Obviously, our National Parks, but also our grasslands, our wetlands, the Prairie Pothole Region in the plains, northern plains, you look all across our country and you see the natural carbon cycle at work, drinking in carbon.  Interestingly, the – in the – it was the 2007 Energy Act asked the Science Agency for our department, the Interior Departments United States Geological Survey to do an analysis for the entire country of carbon storage and carbon flux, when we came in, that study had not been started.

We got the funding for it, we got it done.  There is now a fabulous science study that is an inventory of the carbon resource on all of our lands, including the public lands and -- Congress also asked that from a – from the purpose of biological sequestration that this study look at what the possibilities were to increase sequestration of carbon on these lands and the study did that.  The study has been gathering dust for the last four years.  

What we did in the Interior Department was look at combining that study which was underway, with the notion of getting climate analysis, scale down to the public lands, but also to adjacent private lands and State lands so that folks could understand what the impacts of climate would be, and also start thinking about natural solutions that could enhance carbon.  So, through the USGS, we established eight regional climate science centers with major universities.  We had a competition and universities competed to partner with USGS.  And that -- that’s continued, the Trump administration tried to get rid of that, Congress insisted that it stay in place, and that network exists and it works with another network called Landscape Conservation Cooperatives, where the science is delivered to the actual land managers to help them adapt and the opportunity is there for them to then work together with scientists to figure out how to improve the carbon budget for the public lands.  

And then the other piece of course, is the climate budget, is also going to be related to, are we generating clean energy, are we mitigating, you know, the fossil fuel energy? So, it’s -- the Federal Government has a big role here, but working with states and localities.

[00:29:15]
Jason Bordoff:  And also resources on public lands for carbon capture and sequestration?

[00:29:19]
David Hayes:  Yes, absolutely.  That same 2007 Energy Act asked the USGS to come up with analysis on geological sequestration.  And I think it’s been a mistake to not use the public lands to test drive carbon capture and sequestration.

[00:29:40]
Jason Bordoff:  And what more can -- should be done, how do we think about public lands’ role in adaptation and resilience?

[00:29:48]
David Hayes:  Well, it’s as I discussed, I think this is where federalism really comes into play, because the public lands provide, because of the one third foot print and the science behind it, there’s an opportunity to help states and localities figure out their adaptation plans.  The adaptation has to happen at the state and the local level.  What -- and that was the idea of the Landscape Conservation Cooperatives, to have the Federal Government  be a convener, sharing the science of what’s ahead and then providing a table around which the region can come up with a unified adaptation plan.  

The other piece of this Jason, that’s really important, is that we are learning how to better -- how to make our coasts more resilient to storm rise, storm surge and sea rise, but we are not sharing that information broadly.  Hurricane Sandy, after Hurricane Sandy hit your region, the $400 million was given to the Interior Department to work on pre-disaster mitigation for the next one.  I am on a -- I am co-chairing a planning committee for the National Academy of Sciences, looking at the Gulf of Mexico, where $16 billion is being spent largely on restoration and resilience.  

Are those lessons going to be socialized and shared with everybody, so that local folks aren’t having to reinvent the wheel?  Federal Government is in the position, through GIS mapping, through its data sharing and information source to help identify best practices, share them and energize and fuel the resilience efforts that need to happen.  

[00:31:57]
Jason Bordoff:  You started the conversation by talking, you know, about how traditionally; historically the public lands have been used for developing hydrocarbon resources; particularly, oil and gas.  Just want to talk about the pathway forward there for a minute.  You just mentioned the Gulf of Mexico, that was something that was front and center on your plate, dealing with the Deepwater Horizon disaster, can you can -- what lessons did you take from that and how much better prepared are we today to avoid or respond to something like that?

[00:32:31]
David Hayes:  Well, that was a searing experience for me. I was the first administration official in the Gulf the morning after the disaster.  That the morning of April 21st 2010, Ken Salazar came into my office and said, we don’t know what happened down there, but I don’t have a good feeling about it.  I want you to take Kendra Barkoff, our Press Secretary and go down there.  I got on the phone with Thad Allen, the commandant of the coast guard, with whom I had travelled to Alaska, new well, got dialed into the coast guard’s discussions that were happening that morning, hopped on a plane, went down there, they delayed the first press conference so, I could participate.  

And for the next three months actually, more like, six months, until the well was killed in September by a relief well, it was 24/7.  I learned a lot of things from that.  One thing I learned is -- and I appreciate now, more than I did before, for example, the concerns that the tribes have about the Dakota Access Pipeline or the Enbridge Pipeline under the Straits of Mackinac in Michigan.  There’s no such thing as technological fail-safe, which is -- which was the watchword for the offshore oil industry.  

And we learned that the Interior Department’s regulations and its regulatory culture were not up to the task.  We learned that the industry’s culture, safety culture was not up to the task, that we could spend a whole podcast on this. I guess, I would just -- bottom line is, things are much safer now.  Ironically, the most important thing that happened, I think, was the fact that we required, before deep water drilling could reengage, we required that industry put together a ready response team and equipment, that would have a capping stack, that kind of was actually used to chill the well, also a containment ship, essentially an Armada ready to go immediately to address an oil spill.  

That was done by, actually not by regulation, but by -- insisted by permitting condition.  It should be codified actually.  And that’s where the problem is, we then had significant new offshore safety requirements, Trump administration has rolled some of them back.  We’re getting back into the same of kind of industry capture situation that got us into this problem in the first place.  So, we’re safer, but vigilance is required.  

[00:35:19] 
Jason Bordoff:  And when we look and think of the outlook for oil and gas leasing and production on public lands, obviously there are many who call for restricting that, banning that, but I just want to understand, legally what authorities exist, because there are statutory authorities, correct me, to develop public lands for economic value.  

[00:35:39]
David Hayes:  Yeah.

[00:35:39]
Jason Bordoff:  And so, saying, we will not do another lease sale offshore, period.  Presumably that means a five-year leasing plan with nothing in it perhaps, you tell me how that would work, is that within an onshore too, it just won’t do any more lease sales onshore.  Is that within the Interior Department’s authority to actually make a decision like that?

[00:36:02]
David Hayes:  Well, it’s a decision that would have to be based on rationale that is articulated.  The Mineral Leasing Act, combined with other, the Offshore Continental Lands Act, provides a lot of discretion to the Secretary of the Interior when making leasing decisions.  And there’s no question that the Secretary has the discretion to say, if there are good reasons, we’re not going to lease in this area.  And thank goodness for that, you know, there’s a wonderful geothermal resource called Yellowstone National Park, it’s actually a special national park requirement there, but that’s just an illustration that there are places to drill, there are places not to drill.

And one of the reforms that we pursued was to look in particular, at areas where there’s not been oil and gas development.  But, where there’s potential interest and having a special look at those areas to evaluate the resource interest and the local and state interests to decide whether they should be opened up or not.  And that, called the master leasing plan program; that was abolished by the Trump administration.

And now, it seems like the old process of industry nomination is driving leasing.  That’s not the way it should be.  The leasing process should be driven by a landscape scale consideration of the needs and appropriate use of our public lands, combined with input from the public obviously and interested parties of all sorts and to make rational decisions.

[00:37:52]
Jason Bordoff:  And do I, if I remember correctly, correct me if I don’t, the after Deep Water Horizon, the administration put in place a six-month moratorium on production and the court actually, reversed that.  So, do I take from that, that leasing is one thing, but it’s much harder to ban production, to restrict production from already leased lands?

[00:38:16]
David Hayes:  Well, let me -- the answer to your last question is yes, yes, you know the --

[00:38:24]
Jason Bordoff:  For people who have said we should ban oil and gas production.

[00:38:29]
David Hayes:  Yes so, there is a contract between the Federal Government and oil companies.  And they have the – they’re given the right to develop, they have some obligations in terms of the pace and type of development.  But, yes, you can’t just turn that spigot off legally.  It’s interesting that you mentioned the moratorium, the moratorium, the first moratorium was overturned by a Circuit Court, because the court said it wasn’t justified enough, it wasn’t explained well enough, so we re-explained it and it stuck.

And interestingly that we ended up lifting that moratorium early after five months, because we had put in place some safety requirements.  But, we said, no more -- no drilling until you put in place industry, this Gulf technology and system availability.  And it took the industry another six months, before they had that in place and that’s when the drilling started again.

[00:39:34]
Jason Bordoff:  The -- you did mention a minute ago, there are places where it’s appropriate to drill; there are places where it’s not.  In your mind, and I know, you dealt with this too, how do think about the Arctic?

[00:39:46]
David Hayes:  Well I testified against oil drilling in the Arctic in 1999, when I was Deputy Secretary.  And Don Young got very mad at me, because somebody slipped a note to him and said, Secretary Hayes, I don’t think he’s been in the Arctic refuge.  I had been to Prudhoe Bay, you know, 30 miles west in there, but I said, yes, I have not been there.  And he got very upset and said, yeah it’s a Tundra, frozen Tundra, there’s nothing there at all.  I said, Congressman I will go.  And two weeks later, in Summer Solstice, the Fish and Wildlife Service, flew me, on a Cessna, we landed on a Sandbar and visited the refuge for three days.  I’ve been there back a couple of times since then and it is magic.

There is -- it is the worst place imaginable to drill for oil.  While we were there, above the rise, came the Porcupine Caribou, breaking around our camp, this herd has the longest migration of any mammal on this earth, they go 1000 miles every year.  They have their young on the coastal plains, which is where the oil drilling would occur.  Why are we doing that, particularly now, when there is oil available in concentrated areas in the lower 48, there’s a lot -- oil still available in Alaska.  There are some places we should not drill and the Arctic refuge is one of them.

[00:41:29]
Jason Bordoff:  Let me ask you about one part of it.  The NPRA, the Nation Petroleum Reserve in Alaska, which unlike other public lands, was specifically designated by Congress for the purpose of developing oil resources.  So do you think differently about how one would think about production and making that available?

[00:41:53]
David Hayes:  Its name is the National Petroleum Reserve.  It wasn’t designated with the primary purpose of being developed for oil.  However, it’s essentially a BLM property which is of mixed use, so oil is certainly a possibility.  And interestingly and significantly, Bruce Babbitt opened it up to oil and there is -- there are good oil deposits in the eastern part of the National Petroleum Reserve, which is close to the Trans-Alaska Pipeline, and it’s being developed productively.

I oversaw in 2013 or 2012, I should say, the first management plan for the entire 24 million acres, 24 million, it’s six times the size of Yellowstone National Park.  And we reconfirmed with the incredible science that was developed through that EIS process, that there are areas of that refuge, including in particular, around the Teshekpuk Lake region, that are world class sensitive resources of that area, Teshekpuk Lake, a large percentage of the migratory birds that come down the Pacific flyway, the Atlantic flyway et cetera are there in the summer, that’s no place to oil drill.  So, we opened up some more in 2012, but what is being proposed right now with an EIS that was finished within the last month is essentially, you know, potentially opened up that whole Teshekpuk Lake area, which would be a travesty.

[00:43:42]
Jason Bordoff:  I wanted to ask you about what’s happening at the state level and just related to that also with Federal lands and oil and gas, obviously Interior under Obama put in place rules to regulate shale development, limit methane emissions.  The Trump administration lost a court battle recently over rolling back some of BLM’s rules.  How do you think about the right rule for Interior relative to States when it comes to regulation of oil and gas production? 

[00:44:09]
David Hayes:  Well, these are lands that every American owns, that Congress has entrusted with the Federal Government to manage for future generations.  So, it’s perfectly logical and consistent with law that the Federal Government can establish minimum standards to the extent that it’s going to lease lands for, you name it, for renewable energy, for oil and gas, for grazing, for mining, whatever.  It is not appropriate to assume that potentially 50 State laws that may vary or be silent unimportant issues, necessarily apply.

There’s a long history of accommodating State interests by the Federal Government in establishing these Federal standards and -- but when it came for example to fracking and water management on public lands, including the handling of the very large water supplies that were, that are used in fracking and the developed water that comes back, Federal standards make a lot of sense, the minimum standards.  The ones that were developed actually in the Obama Administration were modeled on Colorado State Standards, so, it’s of course, there’s a role for the Federal Government here.

[00:45:36]
Jason Bordoff:  And your work at NYU now, focuses on helping State Attorneys General stop some of the environmental rollbacks like --

[00:45:42]
David Hayes:  Yeah.

[00:45:43]
Jason Bordoff:  -- you just talked about methane.  How much success are States having?

[00:45:48]
David Hayes:  States are having amazing success.  And from a personal perspective, this has been a joy for me, because as we’ve talked about, I’ve had a lot of experience in the public lands, but the majority of my career has been in more traditional energy and environmental law.  So, I’m back with the Clean Air Act again after many years and back with the Clean Water Act.  I am really enjoying it and I’m enjoying the ability to help State Attorneys General from States that are progressive on these issues.  We’re non-partisan, but we’re unabashedly progressive and we will work with any attorney general that is pushing for climate, for clean energy and for sound environmental requirements.

The AGs have been a bulwark of defense against the constant efforts to rollback key laws in the climate area, and it had been incredibly successful.  I’ll mention one process and then, a quick sort of rundown.  The process point is that the Trump administration came in and tried to do shortcuts from the very beginning, tried to put requirements that were in law, that had been in final rule, put them on ice and set them aside and move in a different direction, without doing the hard work of rule making and et cetera.  And the AGs stopped them at every -- with the courts, because they had no business doing this under the law.  

But that frittered away two or three years of the Trump administration before they finally got to the reality that they had, if they’re going to make a change in direction, they had to do the hard work and create a record, notice, and comment, a new rule et cetera.  Those rules have been largely coming out literally in the last 18 months here at the end.  Many of them are – we’re still awaiting them or else they’ve just happened.  The Waters of the United States Rule just happened, the Tailpipe Emissions Standards just happened.  

And the -- and what we found is, so far that the administration has not done a good job in establishing an administrative record for these matters.  And in terms of climate, we’ve lost four years, but no lasting damage has been done yet, in terms of for example the clean power plant, we’re right where we were at the beginning of the administration with in front of -- in front of the DC circuit courts is, what does Clean Air Act mean, in terms of, for power plants, what the best system of emissions reduction is, is it just between the fence line or is it potentially a broader statewide flexibility tool? 

Okay, we’re right where we were four years ago.  Nothing -- no bad law yet, the tailpipe stuff is just starting basically.  And of course, on the oil and gas side, they haven’t, the BLM rule just got overturned that they tried to rescind and on the EPA side of methane, we’re waiting for a final rule where we expect them to try to essentially back away entirely from regulating methane under the Clean Air Act and the AGs are ready to stroll in to court within 24 hours thereafter.

[00:49:28]
Jason Bordoff:  So, this is a really important point, I just want to highlight it and make sure I heard you correctly, because in the course of this great conversation, thanks for making so much time available, I heard a consistent theme, if you want to regulate, I’ve asked you about what authorities, the Federal Government has on public lands, the more -- the reason you explained why the moratorium for six months in the Gulf was initially out reversed.  The importance of justifying your action of a good factual record --

[00:49:58]
David Hayes:  Yeah.

[00:49:58] 
Jason Bordoff:  Based on facts and science and the same is true for deregulation.  The reason, you run into problems when you’re trying to do that, is because you don’t explain well in a persuasive way, what you’re doing, and why. And I’ve heard that come across loud and clear and what you just said is important about – I’m curious at a holistic level, your view on kind of the– the impacts that this administration has had, I think headlines got a lot attention, you remember in 2018, the headline, the administration is going to open 99% of the Federal offshore to drilling or something like that.  

And I think nothing additional has been opened, I’m not even sure if they’ve done a five-year leasing plan.  You’ve seen me say this on Twitter before I think that, I’ve seen a pattern where big announcements are made about major rollbacks, actions to support oil, gas or coal, but in the end, I’m not saying -- not that there hasn’t been things that I find problematic done, but the impact on the ground has been more limited, because it is hard to deregulate and you can lose in the courts if you don’t do it well.  So I’m just wondering when you look at all of that, do you agree and if so, at least in the first term, speculate on the second possible term, where do you think the damage from an environmental standpoint has been greatest and maybe where it has been, the bark has been worse than the bite?

[00:51:20]
David Hayes:  Well, I think largely thanks to State Attorneys General on the – on the regulatory side, there has been limited damage to date.  I would say though that there’s significant damage inherently in losing four years, to addressing the climate crisis.  So, I don’t want to diminish that, but through really good lawyering on the part of State AG’s and also environmental groups that have stood with them on a number of matters, and frankly really lousy lawyering on the other side, that the damage has been contained so far, but it’s poised to go south.  

I would say though, and again I’ve really enjoyed, personally and professionally being back into that regulatory side because it’s a good complement to the time I spent on the public lands, and broader land and water and wildlife issues.  But it’s that latter category where frankly there’s a lot of damage being done, the – this very similar field to me as the end of the Bush administration where oil and gas leasing was opened up everywhere, places had made no sense.  My nomination for President Obama to be Deputy Secretary of Interior was held up for several months because Bob Bennett of Utah, was upset that Ken Salazar had cancelled 77 lease sales in Utah, and Mike Pence in order to get Bob Bennett to acquiesce, ultimately was confirmed by unanimous vote until these things go, was to look into those 77 leases.

And guess what dozens of them made no sense at all, they’re in Southern Utah, where there’s no gas infrastructure that right in the shadow of Arches National Park and Canyonlands National Park, the huge recreational economic engine of the Moab Region, of this made no sense at all.  Well we’re right back there now again with this administration.  Why are we messing with Chaco Canyon, why are we messing with Southern Utah? I mean, put chips on chips, where there’s substantial development and infrastructure, that’s one thing, when you’re talking about and the Interior Department can do this without going through public and notice and comment rule making.  Thankfully they’ve actually to the extent they have to do environmental reviews, they’ve messed that up so, a number of lease sales have been stopped, because of NEPA.  But we shouldn’t be relying on NEPA to protect us from these kinds of assaults.

[00:54:16]
Jason Bordoff:  I’ve kept you for too long although, I could talk for hours more and continue learning from you as I was lucky enough to do for – have been lucky enough to do for many years, just listening to this conversation, I have a little stack of reading preparation reading in front of me, including your past writings and you had a quote in an Op-Ed in the Washington Post, I hadn’t seen before from Teddy Roosevelt over century ago.  I’m going to quickly read it.  

“We’ve become great in a material sense because of the lavish use of our resources and we have just reason to be proud of our growth.  But the time has come to enquire seriously what will happen when our forests are gone, the coal, the iron, the oil, the gas are exhausted, when the soils shall have been still further impoverished and washed into the streams, polluting the rivers, denuding the fields and obstructing navigation, that was 1908.”

Those concerns of course are still with us, we just talked about them for almost an hour and only more emerge of course as demand for resources continues to grow along with new environmental concerns like climate change.  You spent a career focused on that mission that Roosevelt described over a century ago, including two tours in government so, thanks for your service and thank you for making time to be with us and talk about all of it here this morning.  

[00:55:32]
David Hayes:  I enjoyed immensely Jason, thank you for the great work that you do in the Center and this was a pleasure.  

 [00:55:40]
Jason Bordoff:  Thank you.  And thanks to all of you, our listeners for joining on this episode of Columbia Energy Exchange.  For more information about the podcast the center on global energy policy visit us online at energypolicy.columbia.edu or follow us on social media @ColumbiaUEnergy.  I'm Jason Bordoff, thanks for listening.  We’ll see you next week.