Three Weeks Later, the Oil and Gas Industry Continues to Navigate Biden’s “Climate Day” Actions

Feb 16, 2021

Reading Time : 4 min

This does not mean that DOI paused the issuance of new permits altogether; to the contrary, DOI claims to have been processing over 5,000 drilling permit applications as of February 12, 2021, approximately 250 of which have gone to career leadership for review. It remains to be seen whether DOI slows the actual issuance of new permits between now and when the Order expires in late March. The Department also reportedly issued over 30 new permits in the Gulf of Mexico between January 20 and the end of the month. In any event, the Biden administration may rely on Secretary-to-be Haaland and the other political appointees to replace the Order with a new directive or more stringent guidance to the career officials who typically make those types of permitting decisions.

Regardless of what course of action the administration takes with respect to permitting, one thing is certain: DOI will not issue new leases for the foreseeable future barring an unexpected result in the Western Energy Alliance’s lawsuit seeking to overturn the leasing moratorium. Such a move would be surprising given the relatively wide latitude that DOI enjoys in implementing the federal oil and gas leasing and permitting program.

Other noteworthy updates from the last few weeks include confirmation during a recent White House press conference that pipeline projects will require a review of climate and environmental impacts, (also confirming that the administration is scrutinizing all facets of the oil and gas industry, from exploration to consumption). Accordingly, we do not expect Sen. Joe Manchin’s (D-WV) request for the President to reconsider the Keystone XL pipeline permit revocation to succeed. That said, the administration is expected to support the industry in an upcoming U.S. Supreme Court case that will evaluate the PennEast pipeline company’s authority to exercise eminent domain powers delegated by the Federal Energy Regulatory Commission. The support likely is motivated, at least in part, by the potential to apply similar eminent domain authorities to construct future renewable energy transmission lines.

Another development that impacts the industry is last week’s decision by the Fish and Wildlife Service to delay the date upon which a Trump-era Migratory Bird Treaty Act rule becomes effective. That rule interpreted the Act to prohibit only the intentional killing or injuring of migratory birds (as opposed to accidental, or “incidental,” kills or injuries). The delay will require developers to continue to delay construction and vegetation clearing during migratory bird nesting seasons until the rule becomes effective or, if rescinded, longer.

Meanwhile, the climate conversation continues to heat up on Capitol Hill. While efforts to include environmental or energy provisions in the upcoming COVID-19 relief package stalled, there was a vote to include an amendment in the recent Senate budget resolution that would prohibit the U.S. Environmental Protection Agency and the Council on Environmental Quality from banning fracking. A wider vote eliminated that amendment, but seven Democrats (and all Republicans) voted in its favor, a signal that even the current Democratic-controlled Congress is highly unlikely to enact a nationwide fracking ban. Additionally, Senate Democrats narrowly outvoted another amendment that would have prohibited the federal government from implementing a carbon tax. Although Republican support for a carbon tax is virtually nonexistent, this voting means that there could be appetite among Democrats (even the more moderate ones) to incorporate a carbon tax or other market mechanism into upcoming climate or infrastructure legislation. Moreover, some of the more progressive members of Congress proposed a bill in early February that would require the President to declare a national climate emergency, but we do not expect this proposal to gain the support of moderate Democrats.

Finally, the House Subcommittee on Environment and Climate Change held a hearing last week on “restoring federal climate leadership” that included testimony by union and nonprofit leaders. House Democrats used the hearing to espouse support for an “equitable clean energy future” and to rally around some of the proposals in last year’s draft CLEAN Futures Act, a comprehensive climate package that Democrats proposed in early 2020 to frame climate legislation. Republicans, meanwhile, criticized the Biden administration’s early climate actions as harmful to national security, job growth and vulnerable communities. Some Republicans, like Reps. John Curtis (UT) and Dan Crenshaw (TX), championed natural gas as a key component of the transition to a low-carbon future, suggesting that gas might be an area of compromise if Democrats seek bipartisan support for future climate legislation.

Looking ahead, Michael Regan appears poised to receive a bipartisan Senate confirmation to lead the U.S. Environmental Protection Agency. Once in place, we expect the agency to focus on implementing the Biden administration’s “Build Back Better” plan. On a separate track, the House Subcommittee on Energy holds a hearing this Thursday, February 18, on “pathways to a clean energy future.”

Share This Insight

Previous Entries

Speaking Energy

June 25, 2025

On June 4–5, 2025, the Federal Energy Regulatory Commission (FERC or Commission) hosted a commissioner-led technical conference to discuss resource adequacy challenges facing regional transmission organizations and independent system operators (RTO). The conference is a response to the growing concern that multiple RTO regions across the country may not have sufficient supply available in the coming years to meet demand due to resource retirements, the pace of new generation entry and higher load growth arising from the construction of data centers and reindustrialization.

...

Read More

Speaking Energy

June 12, 2025

We are pleased to share the presentation slide deck and a recording of Akin’s recently presented webinar, “Navigating U.S. Policy Shifts in the Critical Minerals Sector.”

...

Read More

Speaking Energy

June 10, 2025

On June 4, 2025, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced revisions to its procedures for pipeline safety enforcement actions. The changes, outlined in two new policy memoranda from PHMSA’s Office of the Chief Counsel (PHC), aim to enhance due process protections for pipeline operators by clarifying how civil penalties are calculated and expanding the disclosure of agency records in enforcement proceedings.

...

Read More

Speaking Energy

May 22, 2025

On May 19, 2025, the Department of Energy (DOE) finalized its 2024 LNG Export Study: Energy, Economic and Environmental Assessment of U.S. LNG Exports (the 2024 Study) through the release of a Response to Comments on the 2024 Study. The Response to Comments concludes that the 2024 Study, as augmented through public comments submitted on or before March 20, 2025, supporting a finding that liquefied natural gas (LNG) exports serve the public interest. With the comment process complete, DOE will move forward with final orders on pending applications to export LNG to non-free trade agreement (non-FTA) countries.

...

Read More

Speaking Energy

May 20, 2025

On Thursday, May 15, the Senate Commerce, Science & Transportation Subcommittee on Surface Transportation, Freight, Pipelines and Safety held a hearing titled, “Pipeline Safety Reauthorization: Ensuring the Safe and Efficient Movement of American Energy.” The hearing examined legislative priorities for reauthorizing the Pipeline and Hazardous Materials Safety Administration (PHMSA).

...

Read More

Speaking Energy

April 15, 2025

On April 9, 2025, President Trump issued an executive order (EO)1 directing several federal agencies and subagencies that regulate energy, environmental, and conservation matters,2 including the Federal Energy Regulatory Commission (FERC) and the Department of Energy (DOE), to establish conditional sunset dates for “regulations governing energy production.” The stated objective of the EO is to require agencies to periodically reexamine their regulations to ensure that they continue to serve the public good. For FERC, the order covers regulations promulgated under the Federal Power Act (FPA), the Natural Gas Act (NGA) and the Powerplant and Industrial Fuel Use Act (FUA)3, as amended, while DOE must consider regulations promulgated under the Atomic Energy Act (AEA), the National Appliance Energy Conservation Act, the Energy Policy Act of 1992 (EPAct 1992), the Energy Policy Act of 2005 (EPAct 2005) and the Energy Independence and Security Act of 2007 (EISA), as amended (collectively the Covered Regulations).4 To the extent the DOE has been directed to promulgate regulations under various sections of the NGA, FPA and FUA, and FERC has been directed to promulgate regulations specific to the statutes attributed to the DOE in the EO, the EO is silent. The EO expressly does not apply to those “regulatory permitting regimes authorized by statute.”5

...

Read More

Speaking Energy

April 10, 2025

On April 8, 2025, President Trump issued an Executive Order (EO) directing the Department of Energy (DOE) to take steps to expand the use of its emergency authority under Federal Power Act (FPA) Section 202(c) to require the retention of generation resources deemed necessary to maintain resource adequacy within at risk-regions of the bulk power system regulated by the Federal Energy Regulatory Commission (FERC).1 The EO appears to envision a more active role for DOE in overseeing and supporting the resource adequacy of the grid that deviates from the historic use of Section 202(c) and touches on issues at the intersection of state and federal authority over resource planning.

...

Read More

Speaking Energy

March 10, 2025

On March 5, 2025, the United States Department of Energy (DOE) approved Golden Pass LNG Terminal LLC’s (GPLNG) request to extend a deadline to begin exporting liquefied natural gas (LNG) from its terminal facility currently under construction in Sabine Pass, Texas for 18 months, from September 30, 2025, to March 31, 2027 (the Order). The Order amends GPLNG’s two existing long-term orders authorizing the export of domestically produced LNG to countries with which the United States does and does not have free trade agreements (FTA).1  The Order does not amend the authorizations’ end date, which remains December 31, 2050. Under section 3 of the Natural Gas Act (NGA), the DOE may authorize exports to non-FTA countries following completion of a “public interest” review, whereas exports to FTA countries are deemed to be in the public interest and the DOE is directed to issue authorizations without modification or delay.

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.