The most recent government shutdown, which lasted from December 22, 2018 to January 25, 2019, halted a variety of government functions, affecting agencies from the IRS to the EPA.[1]At the outset, oil and gas leasing and permitting through the Department of the Interior was also halted. However, as early as January 11, two weeks before the rest of the government was reopened, the Department’s Bureau of Land Management opened offices in New Mexico, recalling employees in order to approve new oil and gas drilling applications.[2]Dozens of Bureau of Ocean Energy Management (“BOEM”) employees were recalled to the country’s coastline for the same purpose soon after.[3]The Department of the Interior resumed much of its oil and gas leasing and permitting activities, eventually approving forty permits for new drilling operations and 15 new leases for oil and gas development on public lands during the shutdown.[4]

This mid-shutdown move by the administration raises three open legal questions which this article will summarize: (1) is administrative action without authority from Congress and spending federal money that was not yet appropriated a violation of separation of powers, (2) was the classification of government functions as “essential” during a shutdown appropriate, and (3) were the administration’s actions in compliance with public participation regulations?

The administration’s move was not approved by Congress and has been widely criticized in both houses, particularly by Democratic members.  Before the shutdown ended, Democratic lawmakers on the House Natural Resources Committee questioned the administration’s decision in a hearing organized to examine “blatant favoritism toward the oil and gas industry during the government shutdown.”[5]Fourteen Senate Democrats, led by Bob Menendez of New Jersey and Ed Markey of Massachusetts, also criticized the agency in a letter to Interior Department officials asking for information about the legal and budgetary justifications for resuming oil and gas leasing and permitting.[6]Rep. Betty McCollum, D-Minn, leads the subcommittee in charge of appropriations for Interior and has requested testimony from the U.S. Government Accountability Office on Interior Department spending decisions during the shutdown to determine whether “Trump administration actions constitute a misuse of taxpayer dollars.”[7]Although the House and Senate appear to be taking preliminary action, any resulting legislation would likely face opposition both from the GOP and from the President.

Arguments that Interior Department spending constituted a misuse of taxpayer funds stem from the Anti-Deficiency Act of 1870, which prohibits expenditures exceeding appropriations and allows for voluntary services by federal workers only for “emergencies involving the safety of human life of the protection of property.”[8]Past administrations have interpreted this provision to prohibit all but “essential” government activities, which include, among others, national security, law enforcement, emergency assistance, and preservation of the money and banking system of the United States.[9]Oil and gas permitting by Department of Interior may not be an “essential” government activity and has not typically been undertaken during government shutdowns. For example, in a 2013 shutdown during the Obama administration, only oil and gas safety inspectors and enforcers were required to continue working.[10]BOEM changed its classification of offshore oil and gas permitting functions between December 2018 and January 2019 publications of a Bureau FY 2019 Contingency Plan to require employees who had been furloughed for the beginning of the shutdown to return to work.[11]Such an abrupt change in interpretation required to support a mid-shutdown shift in the administration’s definition of “essential” may suggest that the interpretation is not legally justified.

Oil and gas leasing and permitting during the shutdown also may not have followed existing agency requirements for public participation. Various environmental advocacy groups[12]submitted a letter to BLM offices on January 17, 2019, to object to processing of oil and gas permits during a period in which usual government functions were not undertaken because this interfered with opportunity for public participation.[13]According to the letter, BLM likely violated agency and NEPA regulations which require that the BLM post applications “for public inspection at least 30 days before action to approve”[14]and “encourage and facilitate public involvement in the decisions which affect the quality of the human environment.”[15]

Left unchallenged, the reclassification of these governmental functions as “essential” is likely to significantly expand government functions during future shutdowns especially in those areas preferred by the administration. In order to force the administration to reverse course, environmentalists will need to advocate for meaningful changes by the other branches and achieve either new legislation by Congress or a clear decision from the courts that removes the administration’s ability to use this new broad interpretation.

[1]Nicholas Fandos, SherylGay Stolberg & Peter Baker, Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat From Wall, NYTimes, Jan. 25, 2019. https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html.

[2]Alan Neuhauser, No Park Rangers or Food Inspection – But Government Reopens for Oil and Gas, U.S. News, Jan. 11, 2019. https://www.usnews.com/news/national-news/articles/2019-01-11/no-park-rangers-or-food-inspections-but-government-reopens-for-oil-and-gas

[3]Katie Rogers & Alan Rappeport, White House Redefines Who is Essential to Get Parts of Government Moving Again, NYTimes, Jan. 16, 2019. https://www.nytimes.com/2019/01/16/us/politics/white-house-essential-shutdown.html

[4]Jesse Prentice-Dunn, Government Shutdown: Oil and Gas Permitting Tracker, Westwise, Jan. 17, 2019. https://medium.com/westwise/government-shutdown-oil-and-gas-permitting-tracker-69f25dfa4dc0

[5]Alan Neuhauser, Lawmaker to Scrutinize Trump’s Greenlight for Oil and Gas During Shutdown, U.S. News, Jan. 24, 2019, available at https://www.usnews.com/news/national-news/articles/2019-01-24/lawmakers-to-scrutinize-trumps-greenlight-for-oil-and-gas-during-shutdown.

[6]Jennifer A. Dlouhy, Democrats Probe Trump ‘Favoritism’ of Oil Industry in Shutdown, Bloomberg, Jan. 24, 2019, available at  https://www.bloomberg.com/news/articles/2019-01-24/democrats-probe-trump-favoritism-of-oil-industry-in-shutdown.

See Nichola Groom, Senate Democrats Question Offshore Drilling Work Amid Shutdown, Reuters, Jan. 23, 2019, available athttps://www.reuters.com/article/us-usa-shutdown-drilling/senate-democrats-question-offshore-drilling-work-amid-shutdown-idUSKCN1PH2RT;see also Letter from Senator Bob Menendez, et al. to David Bernhardt, Acting Secretary, Department of the Interior and Walter Cruickshank, Acting Director, Bureau of Ocean Energy Management (Jan. 22, 2019) available at https://www.menendez.senate.gov/imo/media/doc/Senate%20BOEM% 20Shutdown%20Letter.pdf.

[7]Press Release, U.S. Rep. Betty McCollum, As New Chair of Interior-Environment Appropriations Subcommittee, McCollum Seeks Oversight of Potential Abuses During Shutdown(Jan. 23, 2019) available at https://mccollum. house.gov/media/press-releases/new-chair-interior-environment-appropriations-subcommittee-mccollum-seeks.

[8]31 U.S.C. §§ 1341-42 (1990).

[9]Stephen Reader, What’s an “Essential” Government Service?, It’s A Free Country,Feb. 28, 2011, available at https://www.wnyc.org/story/116427-whats-essential-government-service/.

[10]Alan Neuhauser, Oil and Gas ‘Essential’ in Shutdown, U.S. News, Jan. 16, 2019, available at https://www.usnews.com/news/national-news/articles/2019-01-16/oil-and-gas-deemed-essential-in-shutdown.

[11]Letter from Senator Bob Menendez et al., supranote 6.

[12]WildEarth Guardians, Western Watersheds Project and the Center for Biological Diversity

[13]Letter from WildEarth Guardians, Western Watershed Project, and Center for Biological Diversity to U.S. Bureau of Land Management State Offices (Jan. 17, 2019) available at https://www.biologicaldiversity.org/programs/public_lands/energy/dirty_energy_development/oil_and_gas/pdfs/2019-01-17-BLM-letter.pdf.

[14]Id., citing43 C.F.R. § 3162.3-1(g).

[15]Id., citing 40 C.F.R. § 1500.2(d).