HAPPY MONDAY Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@digital-staging.thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@digital-staging.thehill.com or follow her on Twitter: @RachelFrazin.
CLICK HERE to subscribe to our newsletter.
WESTBOUND AND DOWN: A federal judge unraveled the work of former Bureau of Land Management (BLM) acting Director William Perry Pendley, throwing out land management plans in Montana in a case that could jeopardize the agency’s work elsewhere across the country.
The late Friday ruling is a win for the state, with Montana-based District Judge Brian Morris criticizing the Department of the Interior for “novel and last-ditch legal arguments.”
It’s the second major decision in the case after Morris last month determined Pendley had violated federal vacancy laws by “serv[ing] unlawfully … for 424 days” through a series of temporary orders. He gave the Department of the Interior 10 days to justify why it shouldn’t throw out many of the decisions Pendley has made during his tenure.
The decision holds promise for environmental groups, which have a list of at least 30 land management plans overseen by Pendley they’d like to see reversed, many of which limit the scope of national monuments or open up significant portions of federal lands to oil and gas drilling.
Pendley, a controversial figure due to his history of opposing federal ownership of public lands, remains with the agency in a deputy role after his nomination to lead the BLM was withdrawn from the Senate this summer.
He “had not been properly appointed to the position, and instead had exercised authority as acting BLM director through a series of unlawful delegations,” Morris wrote in reference to the maneuvers that kept him in the acting director role for over a year.
“Any exclusive function of the BLM director performed by Pendley is invalid.”
So what’s next? BLM will sue, but so will all the environmental groups who see an opportunity for similar rulings in other states.
BLM said in a statement it will “fight this outrageous decision,” arguing the suit “comes at the expense of the great people of Montana who, for the time being, are subjected to decades old [resource management plans] that limit Montanans’ ability to work, recreate, and conserve our public lands.”
Morris’s decision invalidates three land management plans Pendley supervised in Montana, including one that would open 95 percent of 650,000 acres of BLM land to resource extraction such as mining and drilling.
But he stopped short of applying the ruling to any of Pendley’s other decisions, despite devoting much of the decision to castigating the Interior Department for failing to comply with his order to supply a list of actions that he may have taken illegally.
“Despite Federal Defendants’ disagreement with the exercise and apparent refusal to engage in such a search in good faith, it remains probable that additional actions taken by Pendley that should be set aside as unlawful,” Morris wrote.
Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group, said that Morris “has laid out a very strong case for why everything Pendley has done has been illegal.”
“The Interior Department has done this all over the West. They have opened up everything to oil and gas drilling so now that these illegal actions have been spelled out by the judge, I’d imagine you’re going to see similar lawsuits across the county,” Weiss said.
Pendley’s recent comments that the court decision has had “no impact” on his job were also a feature of the ruling…
Some observers were surprised by Interior’s legal strategy, which has been complicated by a series of interviews Pendley has done with Wyoming media outlets claiming that the decision has had little impact on his role within BLM.
Morris himself felt the need to reiterate that Interior Secretary David Bernhardt is now responsible for leading BLM in light of some of Pendley’s comments that “appear more reticent in their acknowledgement” of the effect of the court order.
“The Trump Administration wants to have it both ways — to get credit from rightwing libertarians that Pendley’s in charge, while telling the court, not true, he’s just a figurehead and the decisions are being made elsewhere. Judges are human, and they don’t like to feel they are being played,” said John D. Leshy, a law professor who served as Interior solicitor under the Clinton administration.
Read more on the ruling here.
ARE YOU THERE, EXXON? IT’S ME, TRUMP: President Trump said Monday that he could out-raise Democratic competitor Joe Biden if he used the power of his position to fundraise with major companies such as Big Oil.
“All I have to do is call up the head of every Wall Street firm, head of every major company, the head of every major energy company, ‘Do me a favor, send me $10 million for my campaign.’ ‘Yes, sir.’ They say the only thing is, ‘Why didn’t you ask for more, sir?’” Trump said at a campaign stop in Arizona, adding that he would not accept the funds “because if I do that I’m totally compromised.”
Trump has trailed Biden in fundraising totals heading toward the final two weeks of the campaign. The former vice president in September shattered previous fundraising totals by bringing in $365 million in a joint effort with the Democratic National Committee. Figures from Open Secrets show Biden having raised $531 million in the August reporting cycle, compared to Trump’s $476 million.
The president went on to say he could be the greatest fundraiser in history, dangling the prospect of getting money from oil companies in need of permits from the federal government.
Federal law prohibits soliciting campaign contributions in exchange for specific policy outcomes or other quid pro quos.
“Don’t forget, I’m not bad at that stuff anyway, and I’m president. So I call some guy, the head of Exxon. I call the head of Exxon. I don’t know,” Trump said before playing out a conversation.
“How are you doing? How’s energy coming? When are you doing the exploration? Oh, you need a couple of permits?” he said. “When I call the head of Exxon I say, ‘You know, I’d love [for you] to send me $25 million for the campaign.’ ‘Absolutely sir.’”
“I will hit a home run every single call. I would raise a billion dollars in one day if I wanted to. I don’t want to do that,” he said.
A WALL ORDER: The Supreme Court on Monday agreed to review a pair of disputes over Trump administration immigration policies, including the president’s diversion of military funds to build a wall along the United States’ southern border and a policy requiring asylum-seekers to remain in Mexico while their cases proceed through American courts.
In both instances, the administration sought Supreme Court review after lower federal courts rebuffed the president’s bids to curb migration into the U.S. from Mexico.
One case involves Trump’s appeal of a June ruling by a federal appeals court in California that his administration’s use of Pentagon funding to build a wall along the U.S.-Mexico border is illegal.
A three-judge panel of the 9th Circuit Court of Appeals ruled 2-1 that Trump’s diversion of defense, military and other funding — billions of dollars that were not originally earmarked for border wall construction — violated the Appropriations Clause of the Constitution, which gives Congress the exclusive power of the purse.
The environment nexus? The case was brought by the Sierra Club.
“The Trump administration has misused military funds for the construction of a wall that has caused lasting harm to the ecosystems and communities of the borderlands, damaged sacred Indigenous lands beyond repair, and destroyed wildlife and habitats along the border,” Sierra Club managing attorney Gloria Smith said in a statement.
“Stopping this wasteful and irreversible damage is long overdue, and we look forward to making our case before the Supreme Court.”
The green group has teamed up with the American Civil Liberties Union to fight a project they’ve called xenophobic.
Several legal challenges arose early last year after Trump declared a national emergency at the southern border to free up additional funding. The president made that move after a congressional spending bill allocated some $1.3 billion for border security, far short of the nearly $5 billion he said was needed to complete his signature project.
Read about Sierra Club v. Trump here.
THE DEBATE DEBATE: The Trump campaign is seeking a change in topics to the final presidential debate Thursday, one of the few debates of the election that has committed in advance to asking questions on climate change.
The campaign didn’t ask to nix any of the topics, but said the debate should focus on foreign policy.
“As is the long-standing custom, and as has been promised by the Commission on Presidential Debates, we had expected that foreign policy would be the central focus,” Trump campaign manager Bill Stepien wrote in a letter to the Commission on Presidential Debates.
Biden’s campaign, however, says that there was a prior agreement that the moderator would select the topics.
The story is here.
EMINENTLY QUOTABLE, PENDLEY EDITION:
– “William Perry Pendley’s unconstitutional tenure at BLM is executive overreach at its worst, and I’m glad the illegal actions he took at the agency are being reversed. No one is above the law — this type of abuse needs to be confronted head on, and every member of the Senate needs to stand up and say so,” Sen. Jon Tester (D-Mont.) said in a statement.
– “The fact that he continues to occupy his office is an affront to the Constitution and the American people. It is long past time that Pendley, along with his extremist anti-public lands agenda and racism against Native Americans, gets shown the door. Pendley must leave the office he has already been fired from by the court of law and public opinion,” Sen. Tom Udall (D-N.M.) said in a statement.
OUTSIDE (AND INSIDE) THE BELTWAY:
‘The ice is dying,’ warns researcher as largest ever Arctic expedition concludes, Reuters reports
Cap and trade-offs: Did California’s landmark legislation help or hurt the state’s most vulnerable? Grist asks
Park Police officers surrender in Fairfax on manslaughter warrants in Bijan Ghaisar slaying, The Washington Post reports
N.J. calls for 100% EVs by 2035, a first for East Coast, E&E News reports