Upon the election last November of Joseph Robinette Biden, Jr., as the 46th president of the United States, I felt an overwhelming sense of relief for the environment, the body politic, and the republic. Upon taking the oath of office in August 1974, President Gerald Ford told us “our long national nightmare is over.” In perspective, the presidency of Richard Nixon was not our longest or worst national nightmare. Brace yourself for final unprecedented eruptions of Trumpian behaviors before high noon on the Potomac on Wednesday, January 20. (For the record I first drafted this line before the recent insurrection.)
The election of two Democrats from Georgia to the United States Senate will allow Vice President Kamala Harris to cast the tie-breaking vote to organize the Senate in the 117th Congress. Senator Mitch McConnell (R-KY, Figure 1) will be replaced by Senator Chuck Schumer (D-NY, Figure 4) as the leader of the Senate. I feel not just relief but also hope—not hope with abandon, but qualified hope.
Choosing which bills are voted on (and in what form) is the prerogative of the majority party in the House of Representatives and the Senate. During the 116th Congress, bills passed by the Democrat-controlled House and sent over to the Senate promptly died. If a majority of senators (twenty-seven) in the Republican Caucus didn’t want to vote on a bill, it didn’t happen, because the Republican Caucus held the majority of Senate seats (fifty-three out of one hundred). Many such bills would have received a majority of votes in the Senate (sometimes even the supermajority of sixty necessitated by the filibuster) as enough Republicans would have joined most, if not all, of the Democrats to pass the bill.
With both houses of Congress controlled by the same party, a lot more votes on bills—bills favored by a bipartisan majority—will take place. Unfortunately, I fear that the environmental/conservation movement will not rise to the occasion. Let’s examine the possibilities and possible pitfalls for nature and the climate in the coming two to four years.
The Twin Related Crises to Be Faced by Biden as President
(Yes, I acknowledge other crises facing our nation and its governments—wealth inequality, health care, systemic racism, et al.—but they are not in my wheelhouse and will not be addressed here.)
We have far too much carbon dioxide in the atmosphere. We need to stop adding to it and also take measures to move excess CO2 out of the atmosphere and back into the biosphere. The science tells us we are running out of time and that dramatic and rapid action is necessary.
We are in the sixth mass species extinction event. Unlike in the first five, human misbehavior is the cause. The science tells us we are running out of time and that dramatic and rapid action is necessary.
Joe Biden wasn’t my first choice to be president. However, to paraphrase Donald Rumsfeld, you save the earth with the president (and Congress) you have, not the president (and Congress) you might want or wish to have at a later time.
I am heartened that Biden has endorsed “30x30,” the vital goal to conserve 30 percent of America’s lands and waters by 2030. For the record, the science calls for 50x50 (aka Half Earth), so 30x30 is an interim goal. Biden has the power, previously granted by Congress, to achieve 30x30.
Biden is also stepping up to address the climate crisis. His rhetoric has improved since the campaign and he’s making excellent top-level appointments (including, but not limited to, John Kerry as climate envoy).
It has become a political maxim that a crisis is a terrible thing to waste, meaning it affords great opportunities for reform. Biden has been handed at least two existential crises, so let’s hope he doesn’t drop the ball.
Rolling Back the Rollbacks: Necessary but Not Sufficient
Fortunately, the Trump administration was generally so grossly incompetent at governing that most of the Trumpian rollbacks were, are being, or can be overturned through a combination of executive, judicial, and congressional actions.
A scorecard kept by the Institute for Policy Integrity (IPI) of major Trump administration rule changes has the administration losing 142 challenges in court while winning 32 (an 82 percent loss rate). On “environmental, energy, and natural resources rules,” the IPI counts the administration losing 83 and winning 22 cases (a 79 percent loss rate). Earthjustice’s scorecard touts 44 wins for nature out of 53 cases (batting .830). The Center for Biological Diversity claims wins (favorable rulings or settlements) in 90 percent of their 259 lawsuits against the Trump administration.
In an address to the British House of Commons after Dunkirk, Winston Churchill noted that “wars are not won by evacuations.” Nor are environmental wars won by rolling back rollbacks.
The status quo when Barack Obama gave the keys to Trump was not great. Merely undoing the bad things Trump did is not adequate. Biden understands this, hence his campaign slogan, “Build Back Better.” Building back, no; building back better, yes. It is not sufficient to merely recapture a sinking ship.
For example, the Trump administration gutted the long-standing regulations of the Council on Environmental Quality (CEQ) that implemented the National Environmental Policy Act (NEPA), but simply restoring these regulations is not enough. In fact, it would be a tragedy to return to the status quo ante. Although too many conservation organizations consider the Nixon-to-Obama-era CEQ NEPA regulations to be a combination of the 11th Commandment and the 28th Amendment, they are not.
The Nixon-to-Obama-era NEPA regulations merely require the federal agencies to disclose how they harm the environment. Even an improved process (for example, having to expressly account for carbon pollution) will not carry the day. Mere information, if in conflict with the desires of the agency, does not change agency decisions. The Biden NEPA regulations should include substantive requirements for agencies to actually protect the environment. See my Public Lands Blog post “Half of the National Environmental Policy Act Is a Dead Letter.”
Beware the Congressional Review Act
Some of my conservation colleagues are enamored with using the Congressional Review Act (CRA), a fiendishly diabolical statute that was the spawn of Newt Gingrich (R-6th-GA) when he was House speaker. (Permit me to observe that Democrat Lucy McBath now represents the Georgia 6th.) The CRA sets up an expedited procedure for an act of Congress that specifically makes null and void a specific “rule” (most government actions). The CRA has mostly been used to make bad trouble, but the political stars now align for acts of Congress (signed by the president) to knock out some Trumpian disasters.
While the political deliciousness of turning this Newtonian law against those slimy newts (actually I love newts—and they are not slimy—but I couldn’t resist; see Figure 2), using the CRA is dangerous, especially when the rollbacks can be rolled back (and leapt forward while they are at it) in the same manner by the Biden administration. The potential salting-the-earth provision of the CRA is that once a federal action has been CRAed, the same rule—or “a new rule that is substantially the same” as the null-and-voided rule—can never be issued again.
Figure 2. Wasson Lake, where one can witness in the springtime a fantastically massive congregation of rough-skinned newts (not to be confused with the thin-skinned newts that congregate in Washington, DC), all looking for sex. The lake is easy to get to and full of wild cutthroat trout and is now safely within the Devils Staircase Wilderness and Wasson Creek Wild and Scenic River area. Source: George Wuerthner (first appeared in Oregon Wild: Endangered Forest Wilderness).
The result could be that a new rule, even a good one, would not be allowed as it is “substantially the same” subject area. I would someday like a better roadless rule, a better BLM planning rule, better NEPA regulations, and many other better federal actions and don’t want to be limited by the CRA.
We don’t need to go there. It will take a bit longer, but undoing bad rules the old-fashioned way (pursuant to the Administrative Procedure Act of 1946) is far safer and gives us options. The only exception might be that mythical 11th-28th combo, which I’m still looking for.
The Fiendish Filibuster
Even if the Senate actually gets to consider good legislation, it could well still be thwarted by the filibuster, a Senate rule that effectively requires sixty votes, not fifty-one, out of one hundred to pass a bill. Unless the filibuster is eliminated for legislation (as it has been for the approval of executive and judicial appointments), democracy cannot flourish in the Senate.
I am not compelled by the argument that the filibuster gives a voice to the minority. Rather it gives a veto to the minority. The filibuster delayed the Civil Rights Act of 1964 and the Voting Rights Act of 1965 by at least two decades. We could have a better and stronger Endangered Species Act today were it not for the filibuster. Might bad things happen without the filibuster when the forces of darkness (FODs) are in the majority? Most certainly. The filibuster allows the FODs to have their way and not pay any political price at the polls for doing so.
The filibuster could be abolished by a simple majority vote when the Senate operating rules are adopted. However, at least one Democratic senator, Joe Manchin (D-WV), has made clear he won’t be the fiftieth vote to end the filibuster (with the vice president breaking the tie). Manchin, an aberration representing severely Republican West Virginia, fancies himself (along a few arguably not 100-percent-bat-shit-crazy Republicans) as kingmaker for grand bipartisan deals. Unfortunately, in these political times, being in the middle of the road only doubles one’s chances of being killed by oncoming traffic.
With the current Senate makeup there are fifty-one Democratic votes for many pieces of legislation. Finding nine Republican to reach the sixty-vote filibuster-proof majority will be impossible. Members don’t smoothly align across the political spectrum. Getting that fifty-fifth, fifty-six, fifty-seventh, fifty-eighth, fifty-ninth, or sixtieth, Republican vote would mean watering down the bill so much that one might lose some very liberal Democrats, thereby not making 60 votes anyway.
Perhaps the Senate should increase the cost of using a filibuster. Back in the day, the business of the Senate came to a halt as the filibustering senator had to hold the floor and not yield it. But forget what you learned watching Mr. Smith Goes to Washington, because today’s filibusters are phoned in. Merely announcing one’s intent to filibuster (placing a “hold” on a bill) is enough to stop the bill in its tracks. The work of the Senate continues, save for “held” bills, which turns out to be most of them. Making senators suit up with a double layer of Attends™ and hold forth on CSPAN-2 by quoting Shakespeare, Dr. Seuss, and/or the telephone book (I think they still make those) until they drop would effectively limit the filibuster to defending deeply held principles rather than making cheap no-cost political points for their political base.
A Public Lands Agenda
Here’s my wish list for the 117th Congress and the Biden White House (please tell me what I’ve missed). Keep in mind, this my short-term (two-to-four-year) agenda.
For Congress:
• Create much more wilderness.
• Designate many more wild and scenic rivers.
• Make many more national what-have-you (parks, monuments, conservation, recreation, etc.) areas.
• Reform the 1872 Mining Law.
• Include BLM Areas of Critical Environmental Concern in the National Landscape Conservation System.
• Reform the National Forest Management Act.
• Reform the Federal Land Policy and Management Act.
Figure 3. Waldo Lake. This gem should become part of the North Fork Willamette Wild and Scenic River. Source: Sandy Lonsdale (first appeared in Oregon Wild: Endangered Forest Wilderness).
For President Biden:
• Create more, larger, and better national monuments.
• Create more, larger, and better national wildlife refuges.
• Establish a Federal Land Carbon Reserve System.
• Strengthen NEPA regulations procedurally.
• Strengthen NEPA regulations substantively.
• Strengthen Forest Service roadless rules (small roadless areas, no ORVs, no logging).
• Protect BLM lands with wilderness characteristics.
• Designate more and better BLM Areas of Critical Environmental Concern.
• Keep it (fossil fuels) in the ground, both onshore and offshore.
• Keep it (trees) in the forest.
• Strengthen and increase Forest Service Special Interest Areas.
• Establish and fulfill a comprehensive system of research natural areas.
• Protect more waterfowl production areas (mini-national wildlife refuges).
• Establish national wildlife reserves on eastern national forests.
• Facilitate grazing retirement through regulations.
• Reform grazing through regulations.
• Prioritize multiple use to deemphasize commodities and emphasize carbon and nature.
• Dump the Obama Forest Service 2012 planning rule and revert to the Reagan 1982 rule.
• Deemphasize wind and solar energy on public lands while emphasizing such on private lands.
Going Straight for the Capillary
There are a thousand hacking at the branches of evil to one who is striking at the root.
—Henry David Thoreau (Walden, 1854)
I’m sorry to say that several national conservation organizations with a strong interest in federal public lands didn’t come out for ending fossil fuel leasing until well after every Democratic presidential candidate did and it was in the Democratic Party platform. They were to the right of Biden and have been off screwing around with reform on the edges (more royalties, less methane leaks, etc.).
I’m even more sorry to say that some of these same groups are now negotiating with themselves and cooking up half measures when the climate needs, and the nation is ready for, full measures. They worry about fiscal and political consequences to federal fossil fuel revenue–addicted states like Montana, Colorado and New Mexico (but not so much Wyoming and Utah; perhaps because of the political affiliations of senators from said states). I can only say that if we had waited for the Pacific Coast states to come up with alternative sources of government revenue before going for judicial injunctions against the logging of old-growth forests, we would still be waiting, but it wouldn’t matter as there would be no such forests left.
By the way, defending the Northwest Forest Plan of 1995 from attack is the wrong course. Rather, it is time to go on the attack and achieve enduring statutory and regulatory conservation that is not subject to the whims of a generally hostile land management agency.
Time to Rise to the Occasion
The circumstances of the Trump years—and also the Obama years (Republicans held Congress most of the time), not to mention the Bush 43 and Bush 41 regimes, but really starting with Ronald Reagan in 1981—have put the conservation lobby in Washington DC mostly on the defensive. Professional conservation careers have been made where conservationists are judged not by the good they achieved but merely the bad they prevented.
Few lobbyists are alive who helped shepherd into law the Wilderness Act of 1964, the Wild and Scenic Rivers Act of 1968, the National Environmental Policy Act of 1969, the Endangered Species Act of 1973, the National Forest Management Act (NFMA) of 1976, and/or the Federal Land Policy and Management Act (FLPMA) of 1976. I was only peripherally engaged on the NFMA and the FLPMA in 1976 but personally knew or knew of many of the conservation lobbyists who helped enact these epic conservation measures into law. Generally, they were a much different lot of people from those doing conservation lobbying now. How many of these differences are due to character and philosophies of change and how many are molded by the times, I cannot be sure.
I can say that the times have changed for a couple of vital reasons:
• the unavoidable need to address the climate disruption and species extinction crises; and
• the opportunities (I won’t say unprecedented because they have happened before, but rarely) to advance statutory and regulatory reforms afforded by the present political circumstance.
I hope my conservation colleagues will rise to the occasion. If COVID-19 has taught us anything, it is that one must change and adapt with the circumstances. Now is not the time for retrenchment but for trenchment—but only in a new trench way behind where the enemy trench is now. Now is not the time for moderation but for vision and boldness. Now is the time to redouble our efforts.
If you are a conservationist seeking a job in the Biden administration, to be ethical you should resign your conservation post now lest you sandbag yourself, your organization, your movement, and/or your Earth by seeking to appear reasonable to get a reasonable job in the new administration. The climate, nature, the economy, and society cannot afford timidity—especially when driven by personal self-interest.
This is going to be fun.
If you have built castles in the air, your work need not be lost; that is where they should be. Now put the foundations under them.
—Henry David Thoreau (Walden, 1854)
Figure 4. Hello, Senate Majority Leader Chuck Schumer (D-NY). Source: Wikipedia.