WHAT CONGRESS JUST DID TO HELP FILL THE HELIUM GAP - SOMETHING TO CELEBRATE (EVEN WITHOUT BALLOONS)

While most people were watching whether the Land and Water Conservation Fund would be reauthorized in the John D. Dingell, Jr. Conservation Management, and Recreation Act (Dingell Act), a few of us were hoping the long-sought “helium fix” would at last make it across the finish line. When the President signed the Dingell Act on March 12, 2019, Section 1109, “Maintenance of Federal Mineral Leases Based on Extraction of Helium,” was included. What is the helium “fix” and why should we care about helium anyway?

Most people are familiar with helium from buying party balloons. But that is a minor (1%) part of its use. Helium plays a much more important role in space and aerospace applications, fiber optics, airbags, high-speed internet and medicine. MRI imaging depends on the ability of helium to hold a temperature of -269 degrees. In May 2018, pursuant to Executive Order 13817, the Trump administration identified helium as one of 35 minerals deemed critical to U.S. national security and the economy. 83 Fed. Reg. 2395 (May 18, 2018). And, this year, the media is highlighting a helium shortage that is closing 45 Party City stores and sending helium prices sky-high.

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The Uncertain Future of the Clean Power Plan under the Trump Administration

Since the Obama Administration announced its implementation in August of 2015, the Clean Power Plan (“CPP”) has managed to survive despite the many challenges brought against it. The Environmental Protection Agency (the “EPA”) rule was the centerpiece of the Obama Administration’s climate change plan and seeks to reduce carbon pollution from power plants by 32% from baseline 2005 levels by 2030 by setting reduction goals for each state. However, the CPP has encountered many legal roadblocks, and, with the election of Donald Trump and a Republican Congress, its future appears to be in doubt.

On February 9, 2016, the United States Supreme Court ordered the Obama Administration to stay any efforts to implement the CPP until the completion of all legal challenges to the same in a 5-4 ruling. While the Court stay of the CPP is not final, it placed the Obama Administration’s environmental agenda in peril. However, the death of Justice Scalia in February appeared to put the CPP in a much more stable position. The sitting panel of the United States Court of Appeals for the District of Columbia Circuit, which will decide the challenge, is composed of a majority of judges appointed by Democratic Presidents that would likely uphold the regulations. A majority of the Supreme Court would then be needed to overturn the Supreme Court’s decision. Prior to the election, that seemed unlikely, as the Court was deadlocked at 4-4. Oral arguments in case against the CPP were heard in the D.C. District Court on September 27, 2016, but no final ruling has been issued.

With the recent election of Mr. Trump to the presidency, however, the CPP will likely be rendered completely ineffective. Mr. Trump has stated that he believes that climate change is a hoax, and, in a May 2016 speech to the North Dakota Petroleum Council, he said that he would “rescind” the CPP in his first 100 days in office. Further, he has appointed Myron Ebell, the Director of Global Warming and International Policy at the Competitive Enterprise Institute, as the head of his EPA transition efforts. Mr. Ebell is a well-known skeptic of climate change and is a vocal opponent of the CPP.

In order to limit or block the CPP, the Trump Administration has several options:

• As a far-reaching option, the Trump Administration, working with the Republican-controlled Congress, could author and pass a bill amending the Clean Air Act that would reduce or eliminate the power of the EPA to regulate carbon emissions. This would effectively kill the CPP. Such a bill would be subject to a Democratic filibuster in the Senate; however, Senate Republicans have the constitutional option of removing or substantially limiting the filibuster. In the alternative, the Republican Congress may attempt to attach a rule reducing the regulation of carbon emissions to a more popular bill as a compromise with the Democrats to avoid a battle over the filibuster.

• If the D.C. District Court does not issue its decision before Mr. Trump’s inauguration, the Trump Administration’s newly-appointed Attorney General could move for a “voluntary remand” as discussed in SKF USA, Inc. v. United States, 254 F.3d 1022 (Fed Cir. 2001), whereby the agency, in this case the EPA, can ask that the court remand the action to the agency to conduct additional proceedings in the underlying case. The Trump Administration then could modify the CPP at the agency level to weaken or remove its more stringent regulatory requirements.

• If the D.C. District Court does uphold the CPP prior to January 20, 2017, the Trump Administration could require the EPA to re-write the CPP. The EPA would then need to follow the full necessary rulemaking procedures, including notice, drafts of the rule, and public comment on the same, which would typically take at least 12 to 15 months.

• The Trump Administration, through the EPA, could also decline to strictly enforce the CPP regulations and instead give states leeway to create very weak implementation plans.

If the Trump Administration is successful in weakening or overturning the CPP, various states, such as Colorado and California, will likely move ahead with their state-specific plans, while other states, such as Texas and West Virginia, may abandon their plans entirely. Moreover, economic factors such as the low price of natural gas and the continuing growth and efficiency of solar and wind energy will likely continue the decline in the use of coal-fed power plants. Regardless, the elimination of the CPP will slow the de-carbonization of the energy sector, and the Trump Administration’s actions on the CPP will likely be indicative of the coming political battles over energy production during the next four years.

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Utah Congressman Rob Bishop Promises to Release Public Lands Initiative Bill

For the past several years Congressman Rob Bishop (R), representing Utah’s 1st Congressional District, has been promising to reveal a bill encapsulating what he calls the “Utah Public Lands Initiative.” His ambitious plan involves bringing together key state and national stakeholder groups, the Utah Congressional Delegation, Utah Governor Gary Herbert and state and local leaders to create a collaborative and comprehensive process for managing public lands in Utah. Bishop’s initiative has garnered support, albeit cautious, from industry as well as conservation groups. The process included the heavy involvement of counties and is somewhat unique nationally for that reason. The bill promises to support wilderness designations in exchange for measures ensuring continued access to lands for resource development. Additionally, the bill will facilitate Utah school trust land (SITLA) swaps and transfer management of some roads and federal lands to local authorities. As chair of the House Natural Resources Committee, Bishop is well positioned to advance the bill through the legislative process.

In a recent address to the Energy, Natural Resources and Environmental Law section of the Utah Bar Association, Congressman Bishop said that he would “slit his wrists” and those of his staffer if the bill has not been released by the end of 2015. He later stated that he would probably not actually slit his own wrists, but left no such ambiguity regarding the fate of his Legislative Assistant.

Congressman Bishop has declared that the bill, if passed, will provide certainty to public land managers and users. He prognosticates an end to the bitter fighting and distrust that has grown up around Utah public land use decisions in recent decades. It remains to be seen whether the actual proposed legislation can live up to the congressman’s ambitions. Its chances for success are particularly difficult to gauge given that no one has seen what the bill actually says. In any event, for our edification and for the personal safety of certain congressional aides, we are hoping to see the initial version of the bill introduced in the next few months.

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