To keep his promise to Alaska, Biden must fast-track meaningful and durable protections

Mar 24, 2023

By Rachael Hamby

The Biden administration recently announced a series of executive actions to protect millions of acres of land and water in Alaska. Now it’s time for the administration to turn these commitments into reality — with meaningful and durable protections that will ensure this irreplaceable landscape and its wildlife can survive and thrive into the future. The administration must fast-track the new rules required to implement these protections if it hopes to avoid having them erased by Congress under a future administration.

Earlier this month, the Interior department announced that it is withdrawing 2.8 million acres in the Beaufort Sea from future oil and gas leasing. When combined with previous protections put in place by the Obama administration, this will put the Arctic Ocean entirely off-limits to new leasing.

The Interior department also announced it is initiating a rulemaking process to protect up to 13 million acres of land in the National Petroleum Reserve-Alaska (NPR-A), the largest contiguous area of public lands in the U.S. The proposed rules, which the department says will be available in the coming months, would limit future oil and gas leasing in designated Special Areas within the NPR-A. Special Areas, such as the Teshekpuk Lake area, have been identified as “containing any significant subsistence, recreational, fish and wildlife, historical, or scenic value.” Wildlife such as caribou, grizzly and polar bears, and migratory birds all rely on these intact and undisturbed habitats which will be impossible to replace if they are disturbed and fragmented by oil and gas development.

The Biden administration must fast-track the rulemaking to implement durable protections. This proposed rule, along with others, such as those to implement reforms to the oil and gas program, must be released by April of this year if the administration hopes to avoid having the final rule potentially overturned by Congress through the Congressional Review Act (CRA).

The CRA gives Congress and the president the ability to overturn any major administrative action (most often a rulemaking) within 60 legislative days of that action being published in the Federal Register. For example, early in the Trump administration, Congress and President Trump used the CRA to erase a number of important Interior Department rules published late in President Obama’s second term, including the BLM “Planning 2.0” rule that would have required the agency to include public participation early in its land use planning process. Once a rule is overturned through the CRA process, an agency cannot write a substantially similar rule, tying the hands of future administrations regardless of political party or control of Congress.

Because the CRA deadline is based on the legislative calendar, the actual cutoff date for a rule to be subject to repeal by a new Congress is a moving target, and the final date is not known until the outgoing Congress adjourns. For the Biden administration, this means the only way to be sure a rule is safe from the CRA, in the event there is a change in administrations, is to publish the final rule by April of 2024.

The federal rulemaking process is, by design, lengthy, and it takes at least a year for any major rule to go from the draft stage to being finalized. Once an agency has drafted a proposed rule, it must be reviewed by the White House Office of Management and Budget (OMB), which can take months, before the proposed rule can be published in the Federal Register. Following publication of the proposed rule, the agency must hold a public comment period of at least 60 days and then respond to all substantive feedback on the rule. Then the revised rule is sent back to OMB, which undertakes a second review process, including meeting with any interested stakeholders. Only then can a final rule be published in the Federal Register and go into effect.

That means if the Biden administration actually intends to achieve the protections for the NPR-A announced earlier this month, it must publish those draft rules by this April at the latest. The same is true for other needed rulemakings such as those necessary to implement the Inflation Reduction Act’s reforms to the oil and gas program. Protecting the largest space of undisturbed public lands in the U.S. and maintaining habitats for threatened wildlife must be a priority and will help set the pace to achieve the Biden administration’s goal of conserving 30 percent of America’s lands and waters by 2030.

Featured image: National Petroleum Reserve-Alaska, Bureau of Land Management