Eye on Washington, November 2020

Dan Sealy, Legislative Analyst


Green New Deal THRIVES! 

The Green New Deal is not dead yet!  The THRIVE Act (H.R.  1102: Transform, Heal, and Renew by Investing in a Vibrant Economy) uses parts of the Green New Deal to tackle current economic issues related to Covid–19 to stabilize a wobbly economy. THRIVE would  create millions of good-paying jobs, through collaboration among  union, clean, green jobs while building a more just, healthy, and stable economy that leaves no one behind. The THRIVE Act outlines a framework built on consensus among labor, racial justice, environmental, Indigenous, and other groups for an economic renewal plan that addresses the economic and social impacts of Covid-19. The last issue of EcoNews included an article about the master’s thesis of recent Harvard Graduate, Saul Levin (EcoNews October 2020, p 7). Saul took lessons from the synchronicity between the environmental and labor movements on the North Coast to protect Redwood National Park  and applied those to current opportunities that arise from the New Green Deal. It is, perhaps, not surprising Saul currently works for U.S. Rep. Deb Haaland (D-NM,).  Rep Haaland said: “Every person in this country should have access to opportunity, but tens of millions of our neighbors, family, and friends are unemployed and our country is facing the interlocking crises of a global pandemic, economic downturn, and climate crisis. …I worked with Senator Markey (D-MA) and a coalition of grassroots organizations and labor groups, so that we are better positioned to lay the groundwork to create millions of good paying, green jobs and address environmental injustice.” 

When is a Director Not a Director?

That question was always murky but this administration has used acting and rotating designations for heads of agencies and departments perhaps more than any previous one.  The U.S. District Court in Montana gave the administration a partial answer when Montana Gov. Steve Bullock recently won his challenge to the legal legitimacy of the acting Director of the Bureau Of Land Management (BLM), William “Perry” Pendley. Pendley was never confirmed by the US Senate but has been making decisions delegated to that position regardless.  U.S. District Judge Brian Morris ruled Pendley had unlawfully held the office for well over a year and must vacate his position. The governor and environmental groups are expected to bring legal challenges to many if not all the decisions Pendley made during that time, which could affect personnel hiring, contracts, as well as policy decisions. 

While Sec. of the Interior, Bernhardt is expected to appeal that decision, yet another prominent acting appointment legal challenge is awaiting a decision regarding the unconfirmed appointment of acting Director of the National Park Service (NPS), Margaret Everson.  Bernhardt designated Everson to “Exercise the Authority of the Director of the NPS”  but the Public Employees for Environmental Review and environmental watchdog group, Western Watersheds, has similarly claimed that Everson’s appointment is unconstitutional.  The groups assert that Everson’s designation violates the Federal Vacancies Reform Act. Appointment for an agency head, such as Director of the NPS requires the  “advice and consent” of the U.S. Senate under the Constitution, and may only be filled on a temporary basis by a qualified official appointed directly by the President, not Secretary Bernhardt. President Trump has shown a deep reluctance to go through the public vetting process of confirmation hearings and has not submitted any nominee for NPS Director to the Senate or to appoint an “acting Director,” which only he can do under the Federal Vacancies Reform Act. That Act was deemed necessary as the use of acting designations increased after President Nixon’s Watergate Scandal. 

Regarding the Pendley decision, Legal Advisor, or Solicitor, for Department of the Interior (DOI) Daniel Jorjani wrote: “The Department of the Interior believes this ruling is erroneous… Nevertheless, the Department will comply with the Court’s Order, while we move forward with an appeal and review all other legal options.” 

Rep. Deb Haaland (D-NM) wrote: “William Perry Pendley was a dangerous choice to serve as the Bureau of Land Management Director and he should have never been in that position in the first place.”

Sustainable Energy – Solar

The Federal Energy Regulatory Commission (FERC) issued an order that reversed 40 years of precedent under the Public Utility Regulatory Policies Act (PURPA) and could stymy solar energy research and implementation.  The Solar Energy Industries Association (SEIA), a lobbying voice for the solar industry, pushed back by demanding that FERC overturn the rule. The rule would limit developers’ ability to sell power to electric utilities.  “This decision reeks of a concerted effort to slam policy through while no one was looking,” said SEIA spokesperson Katherine Gensler. “FERC launched this surprise on the entire stakeholder community, and the decision threatens to upend the status of hundreds of solar projects already delivering clean electricity to the grid.”

Currently, electric utilities are required to purchase energy from small power producers. Forty years ago, FERC capped “small” at a capacity of 80 megawatt. If you are a homeowner who sells power back to your local energy grid and has an 80 megawatt or less capacity — no problem so far. In September FERC denied the “small” status to a Montana company in a numbers game of production.  Dan Whitten, SEIA’s vice president of public affairs said, “It (the rule) seems like another effort to limit the use of PURPA in a way that really kills any competition.”

A solar industry spokesperson, Chip Cannon, agreed saying, “The fact that it came out of the blue and is overturning what has been standard policy for 40 years is pretty striking. It seems like they went out of their way to take a swipe at the renewables sector.” Though this is primarily a concern of mid–larger solar production facilities, the rule could discourage broader, more competitive use of solar to replace the use of fossil fuels as energy companies move from fossil fuels to alternative energy. Until FERC explains the rationale behind the rule, industry holds their legal challenges.  This administration’s actions give the impression it is determined to thwart alternative energy even by industry itself.  Many believe that in larger urban centers, the only way to move to alternative energy sources is through industry vs. small homeowners with solar cells.