HAPPY THURSDAY! Welcome to Overnight Energy, The Hill’s roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at [email protected] Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at [email protected] or follow her on Twitter: @RachelFrazin.

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BIRD WATCHING AND WAITING: The Biden administration has put a one-month delay on the Trump administration’s rollback of protections to migratory birds and is opening the rule back up for public comment. 

The Interior Department said Thursday that it would delay the effective date of the rule, which removed penalties for companies that accidentally or incidentally killed migratory birds and was slated to go into effect on Feb. 8.  

The department is working to determine what additional steps it can take and the Fish and Wildlife Service will give the public 20 days to comment on the rule to allow for “additional engagement.” The Biden administration also expects “further opportunities to engage” on the rule. 

Interior Department spokesperson Melissa Schwartz said in a statement Thursday that the Trump administration’s action “sought to overturn decades of bipartisan and international precedent in order to protect corporate polluters.”

“At President Biden’s direction, Interior is delaying and reviewing the Trump administration’s rollback of the MBTA to ensure continued progress toward common-sense standards that protect wildlife and their habitats,” Schwartz said, referring to the Migratory Bird Treaty Act. 

The Trump administration had argued that it was unfair to punish companies when they accidentally caused bird deaths, including in a 2017 legal opinion that stated that applying the rule to incidental or accidental harm “hangs the sword of Damocles over a host of otherwise lawful and productive actions” and “inhibits otherwise lawful conduct.”

That opinion was struck down in court last year. U.S. District Judge Valerie Caproni wrote that the “opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

In a statement supporting the rule, then-Interior Secretary David Bernhardt pointed to a 2015 court decision that has supported the administration’s interpretation.

“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” he said in a statement when it was finalized. 

In an assessment of the rule‘s environmental impacts, the department last year acknowledged that relaxing the protections may cause companies not to carry out best practices that limit incidental bird deaths.

Read more about the delay here. 


Seeking refuge for the refuge: Lawmakers are seeking to block further drilling in the Arctic National Wildlife Refuge (ANWR) by designating its coastal plain as wilderness.

The legislation comes as a last-minute lease sale held by the Trump administration raised just $14.4 million dollars, well below the billion dollars a 2017 bill projected the government would earn alongside a second sale. 

“After a recent failed set of lease sales, it’s clear that Republicans’ promises of a major fiscal windfall from development on the coastal plain were really a major fiscal flop,” Sen. Ed MarkeyEd MarkeyHouse Democrats press Biden over vaccine distribution for people of color Communities of color getting left behind in vaccine rollout Facebook hires first chief compliance officer amid regulatory scrutiny MORE (D-Mass.), one of the sponsors, said in a statement.

“The Arctic National Wildlife Refuge is worthy of protection, with deep value to Arctic communities and to the nation as a whole,” he said. “In tandem with efforts to safeguard the Refuge from harm, we encourage meaningful consultation with Indigenous peoples regarding the use, management, and conservation of the coastal plain.”

President Biden signed an executive order on his first day in office placing a temporary moratorium on oil and gas activity in ANWR, but the new legislation would block the mandated second lease sale required under the 2017 law.

Read more about their efforts here. 

A clean electric standard? Sen. Tina SmithTina Flint SmithWhat the shift in Senate control means for marijuana policy reform Hawley files ethics counter-complaint against seven Democratic senators Senate Democrats file ethics complaint against Hawley, Cruz over Capitol attack MORE (D-Minn.) on Thursday pushed for the adoption of a clean electricity standard, and for potentially using budget rules that sidestep the filibuster to get it done.

“We have to understand that this transition will happen and we can either choose to lead in this clean energy transition, or we can follow,” Smith told reporters Thursday. 

“The clean electricity standard is a powerful tool for realizing this positive transition,” she added. 

Smith praised a report that would have all U.S. electricity standards come from clean sources by 2035, calling it “excellent.”

She made the remarks during a press conference on the release of the report from the group Evergreen and the progressive pollster Data for Progress. 

President Biden also pledged to make the country’s power sector carbon-free by 2035 while he was campaigning. 

The report argues that budget reconciliation rules could be used to adopt the standard.

Under those rules, a package of proposals can be moved through the Senate and can not be filibustered, as long as it meets certain requirements.

“I am open to all of the tools that we might have available to us to get a clean electricity standard passed as part of a significant infrastructure bill,” Smith said when asked about reconciliation. 

Read more about the proposal here. 

To declare or not to declare, that is the question: Sen. Bernie SandersBernie SandersFormer Sanders press secretary: Lowering income threshold for stimulus checks would undermine Biden administration’s COVID-19 response Biden sitting down for pre-Super Bowl CBS interview Coronavirus relief poses early test of Democratic unity MORE (I-Vt.) and Reps. Alexandria Ocasio-CortezAlexandria Ocasio-CortezOmar slams GOP ‘whitewashing,’ false equivalency with Greene Progressives target Manchin, Sinema with new PAC Chip Roy ‘saddened’ by Ocasio-Cortez’s experience of sexual assault, but remains firm on calling for her apology MORE (D-N.Y.) and Earl BlumenauerEarl BlumenauerSenate Democrats say consideration of cannabis reforms will be a priority Hillicon Valley: Robinhood restricts trading of companies targeted by Reddit users | Facebook reverses some decisions on removed posts | Lawmakers introduce bill to massively increase mail-in voting Lawmakers introduce legislation to massively expand mail-in voting MORE (D-Ore.) introduced legislation on Thursday that would require the president to declare a national emergency on climate change.

Declaring a national emergency would give President Biden more power to combat climate change, including the ability to direct extra funding to the issue. 

The long-shot resolution follows a statement from Senate Majority Leader Charles SchumerChuck SchumerSenate names first Black secretary of the Senate OVERNIGHT ENERGY: Senate committee advances Granholm nomination to lead Energy | EPA nominee Regan pledges ‘urgency’ on climate change at confirmation hearing | Omar calls on Biden to block pipeline being built in Minnesota Biden approval stands at 49 percent in new Quinnipiac poll MORE (D-N.Y.) suggesting that Biden could declare a climate emergency to be able to take additional actions using emergency powers. 

However, it would face an uphill battle to cross the 60-vote threshold to become filibuster-proof and could also face opposition from moderate Democrats. 

The legislation says that in response to the national emergency, Biden should invest in major resiliency projects that will help prepare the country’s infrastructure for climate change’s impacts and make investments in clean energy that are socially and racially just. 

Read more about the bill here.

An investigation: A congressional investigation found “dangerously high” levels of heavy metals in some baby foods.

A staff report from the House Oversight and Reform Subcommittee on Economic and Consumer Policy released Thursday found that some internal company standards “permit dangerously high levels of toxic heavy metals.”

The panel said Nurture Inc., which sells baby food under the brand HappyBABY, Beech-Nut Nutrition Company, Hain Celestial and Gerber responded to its requests for internal documents and test results, noting that arsenic, lead and cadmium was present in baby foods made by all of the companies.

The report also criticized the Trump administration for ignoring “a secret industry presentation to federal regulators revealing increased risks of toxic heavy metals in baby foods.”

Investigators found that the Food and Drug Administration (FDA) received a secret slide presentation from Hain that said its corporate policy to test only ingredients and not final products under-represents the level of heavy metals in baby foods. The agency reportedly took no action in response.

In a statement to The Hill, Hain said it was “disappointed that the Subcommittee report examined outdated data and does not reflect our current practices,” adding that the report “inaccurately characterized a meeting with the FDA.” 

Read more about the report here.


One year since Australia’s devastating wildfires, anger grows at climate change ‘inaction,’ NBC News reports

Court rejects Montana coal mine expansion, The Billings Gazette reports

Ohio unused gas well spews what’s suspected to be frack waste, killing fish, The Allegheny Front reports

ICYMI:Stories from Thursday…

Democrats seek to block further Arctic drilling

Democratic senator pushes for clean electricity standard

Biden administration delays Trump rollback of migratory bird protections

Congressional investigators find ‘dangerously high’ levels of heavy metals in some baby food

Sanders, Ocasio-Cortez, Blumenauer aim to require Biden to declare climate emergency


Ending fossil fuel subsidies: A climate solution to get behind, writes Matt Casale, U.S. Public Interest Research Group environment campaigns director.

Biden’s climate plan can work if it’s sea to shining sea, writes David Helvarg,  executive director of ocean conservation group Blue Frontier and  Jason Scorse, director of the Center for the Blue Economy at the Middlebury Institute of International Studies.  

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