Rep. Haaland’s Historic Nomination: Diving into the “Department of Everything Else”
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The recent weeks have brought fear and speculation to a largely anonymous and indistinct Department. President Biden nominated Representative Deb Haaland of New Mexico as his pick for Secretary of the Department of Interior. If appointed by the Senate, Haaland would become the first Native American to ever hold this position – an event long overdue, as the Department oversees the Federal government’s trust obligation to Native American nations. Haaland, a citizen of the Pueblo of Laguna, already shares a historic title with Representative Sharice Davids as the first Native American congresswomen. This time, Haaland’s historic moment is met with fierce opposition urging Biden to withdraw the nomination. Although cabinet nominees have been contested in the past, no Secretary of the Interior has ever been rejected by the Senate. The Biden Administration has yet to comment on the opposition to the nomination, but has already taken executive actions aligned with Haaland’s environmental attitude, such as the sixty-day ban on oil and gas leases and drilling permits. While the dates for her confirmation remain up in the air, the growing opposition begs the question: why all the fuss?
The Department of the Interior’s National Role
In 1849, Congress created the Department and transferred oversight of the Nation’s physical internal affairs to the Secretary, its officers, and employees. Referred to as “the Department of Everything Else,” the Department became the primary executive agency responsible for domestic affairs, and “the internal development of the Nation.” Federal public lands, patents, military pensions, Native American relations, the census, and public buildings all fell under the purview of the Department. However, as agency organization developed, many of these important national interests fell away, delegated instead to the Department of Agriculture, the Department of Commerce, and the Department of Education, among others.
Today, many Americans regard the Department of the Interior as the caretaker of National Parks, but the Department manages much more than Yosemite and Yellowstone. There are nine major bureaus that fall under the Department. These nine bureaus cover everything from the safety and regulation of American energy production to “enhanc[ing] conservation stewardship” of federal lands. In addition, the Department is also responsible for maintaining Federal-Tribal relations through the Bureau of Indian Affairs.
Promoting energy production often conflicts with the Department’s duty of honoring treaties with Indigenous people. Recent events in North Dakota evidence the tension. The Department, along with the Environmental Protection Agency and the Army Corp of Engineers, provided permits for the building of the Dakota Access Pipeline. Native American water protectors gathered for prayer and protest of the pipeline and were met with military force. A legal suit followed, resulting in the temporary halt of construction due to an incomplete environmental impact analysis.
Other similar events occurred under Former Secretary of the Interior Ryan Zinke. Following former President Trump’s “energy-forward” agenda, Zinke oversaw the largest reduction in land protected under the Antiquities Act’s National Monuments list. Among those reduced areas was Bears Ears National Monument, which lies at the northern border of the Navajo Nation reservation. Bears Ears holds countless sacred sites with cultural ties to several tribes, including the Navajo Nation, Hopi, and Ute. Zinke’s policies turned a blind eye to conservation efforts, and set off three lawsuits involving tribal nations and conservation groups.
Though many criticize Zinke for his secretarial actions, he was simply carrying out the role that the President and electors expected him to. The Administrative Procedure Act (“APA”) requires all executive agencies, including the DOI, “to aid the President in carrying out the President’s constitutional and statutory responsibilities.” In addition, Congress provides limited powers to agencies through enabling statutes which create agencies and identify their regulatory powers.
Although the idea behind enabling statutes is to delimit agency powers, courts often permit agencies to use these powers with broad discretion. For example, if an enabling act grants an agency the powers to regulate but is silent or ambiguous as to how to carry out regulations, the agency’s actions might receive Chevron deference if litigated. So long as the agency’s action is permissible under the enabling statute’s scope, a court would not interfere. Finally, from time to time, Congress creates statutes that require an agency to take a more direct role in areas that are under the purview of their enabling statutes, like the Clean Water Act and the Environmental Policy Protection Act.
Under the direction of Former President Trump, Zinke carried out policies that, though often challenged, were largely permissible under the Act of March 3, 1849, the Department’s enabling statute, and other congressional acts involving the Department, like the Endangered Species Act.
The Future of the DOI
President Biden’s unapologetic climate action plans cry out for a Secretary that will faithfully carry out his domestic climate policies. Deb Haaland is a natural fit. Not only will she be making history as the first Native American Secretary, but perhaps the most outwardly progressive one as well. Haaland was an original co-sponsor of the Green New Deal and has publicly supported a ban on fracking. Her home state, where she is known as a fossil fuel-independent lawmaker, leads the country with one of the most aggressive climate action plans. The Biden-Harris transition team expect her to use her leadership and experience to “fight for a clean energy future.”
It is no surprise that Haaland’s vision of a renewable energy-focused future placed her in the line of fire shortly after her nomination. Fifteen GOP members, led by Minnesota’s Representative Pete Stauber, have attacked Haaland’s nomination for her political ideologies being at odds with past administrations. In a letter addressed to President Biden, Republican representatives show that they fear that the Green New Deal and its implementation will come at the cost of job and revenue loss from the oil and gas sector. Still, the letter fails to address any imminent or future actions Haaland plans to take in her new role.
As a cabinet member, Secretary of the Interior answers directly to the President. The Secretary’s job description might be vague – to direct and supervise land management and conservation efforts, regulate energy production, and work with tribal communities – but President Biden has already set in motion many projects for the Secretary. For example, President Biden’s climate action plan includes a national net zero goal by 2050. A recent Princeton University study lays out how the President can accomplish this, and the Secretary will play an integral role. If successful, the Department’s energy sector oversight would dramatically shift from coal and oil to wind and solar. First, though, we should expect Haaland to take on the Trump administration’s rollbacks to the National Environmental Policy Act and the Endangered Species Act.
With little delay in President Biden’s climate efforts and confirmation hearing dates yet to be set, we can expect a steady rate of change from the Department of the Interior after confirmation. But, the history of the Department suggests that Haaland will need to strike a balance between the fears and expectations of her critics and the high hopes of her supporters.
About the Author: Emily Harwell is a Mvskoke (Creek) tribal member and a 2L at Cornell Law School. Emily is the President of Cornell’s Native American Law Student Association. In the summer of 2020, Emily clerked at the Native American Rights Fund (“NARF”) where she worked on Native American voting rights litigation. Emily is interested in research topics related to the intersection of Federal Indian Law, federal policy, and civil litigation.
Suggested Citation: Emily Harwell, Rep. Haaland’s Historic Nomination: Diving into the “Department of Everything Else”, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Mar. 12, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/rep-haalands-historic-nomination-diving-into-the-department-of-everything-else/.