Natural Resources Legal Scholar Discusses Biden’s Public Lands Protections

An Oregon natural resources law scholar cautioned against unwarranted optimism about the Biden administration’s commitment to public lands protections during an April 7 lecture sponsored by the University of Colorado Law School.

Marcilynn Burke, dean of the University of Oregon School of Law, said many of the programs necessary to advance the president’s policy agenda will require assent from a Congress that shows little sign of being likely to grant it and a persistent willingness to engage with critics who are likely to raise many of the same arguments and legal battles that prevented more policy progress during President Barack Obama’s 2009-2017 administration.

Burke, a former Obama administration Department of Interior official and University of Houston Law Center faculty member, began her talk by reminding the audience of the significant shifts that occurred during the Trump administration. “We know that, with every election, every time there’s a change in party, we’re going to see a pendulum swing with respect to law and policy,” she said. “Now I wonder how far this pendulum is going to swing this time in response to how far we went under the Trump administration.”

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She said that, in her view, Biden shares a centrist political orientation with his former governing partner. On the other hand, said Alex Hamilton, a law and environmental studies graduate student at CU, Burke’s message also indicated that Biden’s “environmental and climate agenda is ambitious in a way that Obama’s was not — perhaps, in part, as a response to the Trump Administration.”

Burke said it is important for those paying attention to natural resources policy developments to frame expectations for the new administration in a practical manner. “As Biden began his presidential run, many may have wished that what he would do is restore us to the time of the Obama administration,” she said. “Maybe it will be a remix. It’s the same song. As I often say, there’s nothing new under the sun.” That, she said, is not likely. “Or are we talking about something that’s really different? Is it a recasting?”

Using Biden’s January 27 Executive Order on Tackling the Climate Crisis at Home and Abroad as an organizing template for her lecture, Burke found the latter to be the more likely course. She opined that Biden and his team would elevate the importance of the government’s response to the climate change crisis and work to assure cross-agency focus on environmental justice.

Burke then moved on to the means that Biden proposes to use to advance climate goals, first highlighting the ways in which Biden’s policy moves might mirror those Obama undertook during his presidency. “Where they’ll be quite similar is in this big infrastructure focus,” she said. “We’re going to see the return of the programmatic environmental impact statement.” She said this will also produce “some of the same conflicts” that were seen during the Obama years.

More significantly, Biden, like his predecessor, faces a Congress that may not be willing to finance policy change. “This is going to be difficult,” she said. “Because Congress, as we know, controls the purse strings.” Obstacles to convincing legislators to provide federal dollars to carry out the administration’s policy wishes include the breadth of it. “It’s a pretty ambitious wish list,” Burke said. She also cautioned that Biden’s agency leaders will have to carefully weigh the likely reaction of federal judges to them. The judiciary will “not always agree that the administration is properly exercising its authority or its discretion,” she said.

The desires of other governments in the nation’s decentralized and diverse structure of sovereignty also cannot be ignored, she explained. “They are great partners, and they are also formidable foes,” she said. Nor are the executive orders relating to the environment that Biden have issued, including the January 27 missive, likely to be the last word. “We don’t have a lot of details just yet,” Burke said. “They are temporary, sort of fleeting in their influence.”

As for the goals themselves, Burke mentioned the administration’s infrastructure improvement proposal, energy policy reform ideas that include deemphasizing fossil fuel production on public lands, imposition of tougher energy efficiency requirements and a national clean electricity standard, assistance to coal-dependent communities that continue to grapple with a sharp decline in the industry, promotion of renewable energy resources and the transmission capacity to support their use, and a restoration of a conservation corps of volunteers.

All of that, Burke said, just may be too much to expect in a four-year presidential term. “Four years is not a lot of time,” she said, noting that midterm elections and a possible reelection campaign to divert an administration’s attention might cut the time for significant change to “more like two years.”

Leah Vasarhelyi, a CU Law School third-year student who serves as editor in chief of the Colorado Natural Resources, Energy & Environmental Law Review, said she thought Burke presented “compelling arguments about the shifting winds regarding climate change and energy development.” That, in turn, seemed to Vasarhelyi to be cause for optimism that the nation might follow through on a significant commitment to an economically practical and socially responsive transition away from reliance on coal, natural gas, and oil as principal fuel sources. “Her comments on the administration’s increased focus on a just transition for communities that have previously relied on fossil fuel jobs makes me hopeful that efforts of the administration will be met with greater community support,” she said. “This just transition focus, as well as the market realities of fossil fuels and the state of the economy post-pandemic, seem likely to increase support for investments in renewable infrastructure among the American people.”

Burke’s lecture was the latest Ruth Wright Distinguished Lecture in Natural Resources, named for the longtime state legislator, former state House of Representatives minority leader, and CU Law School alumnus also known as the “mother of open space” for her efforts to spearhead Boulder’s land preservation program.

Among the previous lecturers have been former Secretary of the Interior and Arizona governor Bruce Babbitt, Obama administration Deputy Secretary of the Interior Michael Connor, Grand Canyon Trust executive director Bill Hedden, Georgetown University Law Center professor and former EPA associate administrator Lisa Heinzerling, former Department of Interior solicitor and University of California-Hastings law professor John Leshy and University of Oregon law professor Mary Wood.

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