DOI RESCINDS CLIMATE CHANGE MITIGATION POLICY DOCUMENTS

On December 22, 2017, the U.S. Department of Interior ("DOI") issued Secretarial Order 3360 ("Order"), rescinding certain climate change and environmental mitigation policy documents that were originally adopted during the Obama Administration. The Order was issued as part of a larger review that the agency is conducting for its existing environmental policies and practices, a process that was initiated by the March 2017 Executive Order signed by President Trump titled "Promoting Energy Independence and Economic Growth."

In connection with approving projects on federal lands, DOI evaluates potential envi- ronmental impacts and, in some cases, can require applicants to carry out mitigation measures to reduce or compensate for any identified impacts. The Order will affect this process by eliminating certain internal guidelines used by DOI staff to evaluate impacts and mitigation options. For example, the Order removes a chapter of DOI's manual that established a "landscape-scale approach," directing staff to consider the impact of projects against a "broader landscape," when appropriate. Under this broad approach, DOI could require project proponents to address climate change impacts and resilience through compensatory mitigation.

In addition, the Order removes the climate change policy chapter of DOI's manual requiring staff to consider the effects of climate change in its policies, planning, and decision-mak- ing. The Order also removes sections of the Bureau of Land Management's ("BLM") manual that offered guidance to staff to determine mitigation requirements for climate change impacts as conditions for authorization on BLM managed lands.

Going forward, the Trump Administration's environmental mitigation policy will likely be reflected in a 2008 instruction memorandum ("IM") that "outlines policy for the use of off- site mitigation for authorizations" issued by BLM. The Order directed DOI to reissue this 2008 IM by January 22, 2018, how- ever DOI has yet to announce the reissuance. The expected reinstatement of the 2008 IM and the rescission of the Obama Administration's mitigation policies may speed up (and reduce the cost of) the approval process at DOI, particularly for oil, gas, or mining projects that could be expected to have associ- ated climate change impacts.

However, the extent to which DOI may continue to require compensatory mitigation for other types of environmental impacts is unclear at this time. The Order acknowledges that "the [DOI] recognizes the appropriateness of compensatory mitigation in certain instances and the role it serves in the legal use and management of public lands under the jurisdic- tion of the [DOI]." It invites more guidance through a congres- sional directive so that its future policies can be "statutorily based." Potential applicants should continue to monitor DOI's implementation of the Order and Executive Order No. 13783.

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