During a Senate Energy Committee hearing last week, Sen. Martin Heinrich (D-NM) spoke about the Trump administration's freezing of congressionally appropriated funds.
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00:00Senator Heinrich. Thanks, Chairman. Mr. Dorfenmeyer, the office of the solicitor is responsible for making sure that the department follows the law. However, right now, the department continues to violate court orders with respect to frozen funds. And at some point, the excuse that these funds are, quote, under review begins to not hold water.
00:23If confirmed, will you ensure that appropriated funds are obligated and dispersed in a timely manner, in accordance with the law, and in accordance with the Impoundment Control Act?
00:37Thank you, Senator Heinrich. I have not started working at the Department of Interior yet, so I'm not familiar with what appropriated funds have or have not been spent.
00:48But as the solicitor, my job will be to review the facts and review the law and provide my clear advice on what the law requires.
00:57And the Impoundment Control Act and other legal requirements, you know, say that Congress controls the purse strings.
01:05And I will analyze them and give the advice that if the law requires that the funds be obligated and spent, then the funds will be obligated and spent.
01:13Last month, a senior advisor to the secretary exercising the power of the solicitor outside of the Vacancies Reform Act reinstated a legal opinion that had been vacated by a federal district court.
01:29The district court vacated the prior solicitor's opinion because the solicitor had misinterpreted the Migratory Bird Treaty Act.
01:38Notably, the Justice Department did not press an appeal to that court's decision.
01:45Yet the senior advisor's opinion purports to reinstate the vacated opinion in 93 of the nation's 94 judicial districts.
01:54So I'm curious, do you believe that a solicitor or even an advisor exercising the solicitor's authority can overrule the decision of a federal district judge?
02:06Thank you, Senator Heinrich.
02:10The short answer is no.
02:12I do not believe that the solicitor can overrule a federal district judge.
02:18M opinions, what you're referring to, is something that's unique to the Department of Interior.
02:22It's something that I've learned a little about and I look forward to learning a lot more about.
02:26But they're the highest level legal interpretation by the solicitor and they are binding, those opinions are binding on the Department of Interior.
02:33My past, as you heard, in addition to the Easter Bunny and the RAF Guide and other things, I was a litigator for 12 years.
02:42I've since gone on to the private sector, but when I first learned about them opinions and took, you know, turned through a few of them,
02:48I thought, wow, this is really going to harken back to my litigation days.
02:52They are very long, reasoned opinions.
02:55They look a lot like court opinions.
02:56And I look forward to exercising some of those skills that I learned in order to analyze the law and the facts
03:03and, you know, provide them opinions that are sound and durable and will stand up in court.
03:08I want to go back for just a minute to something that the chairman asked you about, which is complying with NEPA with both environmental impact statements
03:23and environmental assessments in these 14- and 28-day timelines.
03:28And if you can do that and meet all the requirements of the law, I'm all for it.
03:33I think what you've seen in this committee has been a bipartisan commitment to permitting reform, to getting to yes or no faster for projects.
03:43However, if you get to the end of 28 days and you haven't been able to meet all the legal requirements for an EIS,
03:53if at that point you publish an EIS that does not meet those requirements, it creates litigation risk.
04:01That's the opposite of shovels in the ground that you – so talk to me about how you're going to balance that.
04:09If you can get to a high-quality legal product that does not create litigation risk for the proponents in 28 days, I'm all for that.
04:18But if you haven't checked all those boxes at the end of 28 days, are you going to continue forward
04:23and make sure that those products actually will withstand legal challenge?
04:29Yeah, thank you. That's a great question.
04:31And I do want to first say thank you very much to you and the members of this committee for the work that you've done on permitting reform.
04:37The Fiscal Responsibility Act with the time limits for NEPA, as well as the work for the permitting reform bill that didn't quite pass last year,
04:46were both very, very welcome news to the industry.
04:49When it comes to –
04:51We can still pass that law, I would just mention to all my colleagues.
04:55I think that would be a good idea.
04:57But the short answer to your question is – well, I don't know if there is a short answer.
05:02What I will say is it would do no good and would be counterproductive to publish a final EIS and a record of decision
05:10that did not, you know, entail the necessary hard look in what's required by the statute.
05:15You know, you can get a permit in 28 days, but if two years' worth of litigation results in a remand
05:21that's going to require six months of a new analysis, that's not doing anyone good.
05:25That's not getting shovels in the ground.
05:26So we are completely aligned on that, Senator Heinrich.
05:29Thank you. I appreciate it.
05:31Senator Hovind.
05:32Senator Justice.