A Look at Recent Executive Orders

02/02/2021 4:53 PM | ACRAsphere Blog Team

President Biden has been busy issuing Executive Orders (EOs) during his first weeks in office. Yesterday's Your Congress in Action briefly looked at the EOs that potentially affect CRM, and now we want to take a deeper dive into them.

So, let’s discuss exactly what an EO is. An EO is a means of issuing federal directives that the President, and only the President, can use to manage operations of Executive branch departments and agencies, such as the National Park Service, the Bureau of Indian Affairs, the Environmental Protection Agency, and the military. Article Two of the Constitution is the primary legal basis for EOs as it gives the President broad executive and enforcement authority to use his or her discretion to determine how to enforce laws or otherwise manage the resources and staff of Executive Branch departments and agencies.

Like legislative statutes and regulations, EOs are subject to judicial review and can be overturned if the orders lack support by statute or the Constitution while others may require approval by the legislative branch. Although they do not have the force of law or regulations, EOs have significant influence over the internal affairs of the Executive Branch as they generally address how and to what degree legislation will be enforced and generally fine-tune the implementation of broad statutes.

Presidential executive orders, once issued, remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their terms. An example is EO 11593--Protection and enhancement of the cultural environment, which was issued by Nixon in 1971. The president can revoke, modify, or make exceptions from any EO at any time, whether the order was made by the current President or a predecessor, as Biden is doing. Typically, a new President reviews in-force executive orders in the first few weeks in office.

The Biden administration appears to be focusing on climate change, environmental protection, and renewable energy. One of the first EOs he signed on January 20 was agreeing to rejoin the Paris Climate Accord. The following are the EOs that will potentially affect or may be of interest to the cultural resource community:

  • Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis addresses several specific environmental actions that the Trump administration undertook. The EO directs agencies to review and reverse more than 100 Trump actions on the environment. More specifically, the EO suspends construction of the Keystone Pipeline EO, requires a review of the boundaries of Bears Ears and Grand Staircase-Escalante National Monuments, along with Northeast Canyons and Seamounts Marine National Monument, that Trump reduced to determine if the original boundaries should be reestablished. The Utah delegation strongly opposes reestablishment. View the full order.
  • Modernizing Regulatory Review requires departments and agencies, as soon as practicable, to begin a process with the goal of producing a set of recommendations for improving and modernizing regulatory review. The emphasis is on promoting public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations with the intention of improving the responsiveness of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and making it more proactive. View the full order.
  • Regulatory Freeze Pending Review states that any regulations that were approved by OMB before Jan. 20 but not yet published in the Federal Register need to go back to OMB (i.e. Biden’s OMB) for review; for regulations that were published in the Register but are not set to take effect for 60 days, agencies are asked to delay implementation so they can also be reviewed. Regulatory freezes at the start of a new administration have become commonplace when the WH changes parties. Freezes are a way of stopping regulations that were finalized at the end of the Trump presidency but have not yet taken effect. View the full order.
  • Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government revoked Trump’s Advisory 1776 Commission. Trump set off this commission in response to the 1619 Project, spearheaded by the New York Times Magazine, which …"aims to reframe the country's history by placing the consequences of slavery and the contributions of black Americans at the very center of the United States' national narrative". Most historians opposed the Commission’s report, claiming that it distorts U.S. history and takes a paternalistic, white-centric view. View the full order.
  • Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships reaffirms EO13175-Consultation and Coordination With Indian Tribal Governments, passed in 2000 under President Bush – reaffirms tribal sovereignty and the government-to-government relationship. Requires departments and agencies to consult with tribes when developing policies that may potentially affect tribes. Each department and agency is to identify point of contact. View the full memorandum.
  • Executive Order on Tackling the Climate Crisis at Home and Abroad addresses a broad range of issues. Sections 207, 208, and 209 address oil & gas drilling and mining on federal lands. Extends Secretary of the Interior Order 3395, which placed a moratorium on oil & gas drilling for 60 days but exempts existing permits. The EO exempts drilling on tribal lands. Establishes a committee to review siting and permitting processes and revenues from drilling and fossil fuel development. Section 216 specifies that the Secretary of the Interior, in consultations with other Secretaries is to recommend steps that the United States should take, working with State, local, Tribal, and territorial governments, agricultural and forest landowners, fishermen, and other key stakeholders, to achieve the goal of conserving at least 30 percent of our lands and waters by 2030. View the full order.
  • Secretarial Order 3395 Temporary Suspension of Delegated Authority, issued by the Acting Secretary of the Interior, places a moratorium on oil & gas drilling on federal lands for 60 days. The moratorium will not affect existing leases and oil companies stockpiled enough drilling permits in Trump’s final months to allow them to keep pumping oil and gas for years. Tribes, such as the Ute and the Mandan, Hidatsa, and Arikara Nation which have a lot of oil reserves, are asking to exempt drilling on tribal lands. About 22 percent of U.S. oil production and 12 percent of natural gas production takes place on federal land and water. View the full order.

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