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Secretary Bernhardt Says He Doesn’t Have a Duty to Fight Climate Change. He’s Wrong.

Wednesday, June 19, 2019

John D. Leshy

Emeritus Professor, University of California, Hastings College of the Law Solicitor, Department of the Interior (1993-2001).

With the help of the U.S. Congress, the U.S. Department of the Interior (DOI) has had a long and proud history of tackling pressing challenges through responsible and inclusive management of America’s public lands. One might expect it would continue that tradition as climate change has become a major challenge confronting the nation.

Not so. In fact, Secretary of the Interior David Bernhardt has been doing more than any of his predecessors to promote fossil fuel development on America’s public lands, all the while dancing around the issue of whether he has an obligation, or even the legal authority, to address climate change. In recent interviews and testimony on Capitol Hill, Bernhardt grudgingly admits that existing law says he must take climate into account in managing public lands. This is hardly a revelation. For some time, the courts have been telling DOI that the National Environmental Policy Act, which applies to all federal agencies and actions, requires it.

More important, there are other laws that apply specifically to DOI. They instruct the Secretary to manage public lands to serve “the long-term needs of future generations” and to “prevent unnecessary or undue degradation,” to “ensure” that the “environmental health” of national wildlife refuges is maintained, and to leave national parks “unimpaired for the enjoyment of future generations.” Bernhardt’s slippery response to such mandates is that he does not see in them a “shall” that lays out specific steps he must take to meet the climate challenge. 

One wonders what people in a decade or two will think when they look back on such sophistry. Surely, more should be expected from our public officials than using fallacious legal interpretations to justify putting their heads in the sand. At a time when companies and communities and governments all over the globe are stepping up to be part of a climate solution, this is nothing less than an abdication of responsibility.

The legal argument for climate-focused management of our public lands is clear. What more pressing problem faces those “future generations” whose needs Congress has directed Secretary Bernhardt to meet in managing public lands? His own Department has shown how important it is for him to take action. A U.S. Geological Survey report just last year details how carbon emissions from fossil fuels extracted from public lands comprise a significant proportion of total U.S. emissions.

Yet, Bernhardt told a House Committee that he is “not losing any sleep” over the climate issue. Instead, he has responded to critics by offering the bizarre argument that because carbon emissions are being curbed more in the United States than elsewhere, he has no obligation to do anything to reduce carbon emissions supplied by America’s public lands. He has also asked Congress to enact legislation to stop him if it doesn’t like the Administration’s policy of “keeping none of it in the ground if you can help it,” a policy that ranked high on the wish list of many of Bernhardt’s former clients when he was in the private sector.

While existing laws may not explicitly require an immediate end to the production of all fossil fuels from the nation’s public lands, they surely create a solemn obligation not to ignore future generations in how those lands are managed.

Secretary Bernhardt may not be losing sleep over climate change, but he is losing something more important—an opportunity to do what Congress has effectively already told him to do; namely, to make public lands part of the climate solution, and not a significant part of the problem.