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OVERNIGHT ENERGY: Court upholds ruling invalidating Dakota Access, but doesn't shut down pipeline | Schumer calls for Biden to declare climate emergency | Biden seeks to bolster consultation with Indian Country

OVERNIGHT ENERGY: Court upholds ruling invalidating Dakota Access, but doesn't shut down pipeline | Schumer calls for Biden to declare climate emergency | Biden seeks to bolster consultation with Indian Country
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HAPPY TUESDAY! Welcome to Overnight Energy, The Hill's roundup of the latest energy and environment news. Please send tips and comments to Rebecca Beitsch at rbeitsch@thehill.com. Follow her on Twitter: @rebeccabeitsch. Reach Rachel Frazin at rfrazin@thehill.com or follow her on Twitter: @RachelFrazin.

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HOW DO YOU LIKE THEM DAPLS:  A federal appeals court on Tuesday declined to shut down the Dakota Access Pipeline even as it upheld a ruling from a lower court throwing out a decision that allowed its construction.

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The three-judge panel ruled that the government should have conducted an environmental impact statement before going forward with the pipeline, and vacated easements granted for its construction to cross federally owned land.

It also ordered the U.S. Army Corps of Engineers (USACE), which had granted the easement allowing for the pipeline's construction to be completed, to conduct the environmental assessment.

But the D.C. federal appeals court did not agree with the D.C. federal district court's decision that the pipeline should be shut down. It left the decision on the pipeline's future to USACE.   

The panel, made up of a Clinton, Obama and Reagan appointee, decided that shutting down the pipeline isn't automatically necessary because the easement was vacated. They argued that saying so would circumvent court precedent requiring a legal test to decide whether to grant such injunctions.

However, the decision left room for both agency action and additional litigation to potentially shut down the pipeline, leaving its future uncertain. 

“It may well be — though we have no occasion to consider the matter here — that the law or the Corps’s regulations oblige the Corps to vindicate its property rights by requiring the pipeline to cease operation,” the ruling stated.

Some of the pipeline's opponents expressed optimism that the Biden administration would shut it down.

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“The court is giving the Biden administration the opportunity to get this right but holding the door open to further court action if they do not,” said Jan Hasselman, an attorney with Earthjustice, who sued over the pipeline on behalf of the Standing Rock Sioux Tribe. 

Meanwhile, Dakota Access supporters cautioned against administrative action. 

"The Army Corps of Engineers should be allowed to proceed as they are without political interference from the Biden Administration. This is not another opportunity to wage war on North Dakota’s energy producers,” said Sen. Kevin CramerKevin John CramerSenate mulls changes to .9 trillion coronavirus bill On The Money: Manhattan DA obtains Trump tax returns | Biden nominee previews post-Trump trade agenda | Biden faces first setback as Tanden teeters OVERNIGHT ENERGY: Senate confirms former Michigan governor Granholm as Energy secretary | GOP bill would codify Trump rule on financing for fossil fuels, guns | Kennedy apologizes for calling Haaland a 'whack job' MORE (R-N.D.) in a statement. 

Read more about the decision here.

I DIDN’T SAY IT, I DECLARED IT: Senate Majority Leader Charles SchumerChuck SchumerFirst Black secretary of Senate sworn in Republican Ohio Senate candidate calls on GOP rep to resign over impeachment vote The bizarre back story of the filibuster MORE (D-N.Y.) said Monday night that President Biden should consider declaring an emergency when it comes to the climate.

"It might be a good idea for President Biden to call a climate emergency," Schumer told MSNBC's Rachel MaddowRachel Anne MaddowJuan Williams: Hypocrisy runs riot in GOP Tim Ryan: Prosecutors reviewing video of Capitol tours given by lawmakers before riot League of Conservation Voters adds racial justice issues to 2020 congressional scorecard MORE.

Schumer appeared to be referencing Biden making a national emergency declaration, with the Senate leader noting that former President TrumpDonald TrumpProsecutors focus Trump Organization probe on company's financial officer: report WHO official says it's 'premature' to think pandemic will be over by end of year Romney released from hospital after fall over the weekend MORE used it for the border wall.

"He can do many, many things under the emergency powers ... that he could do without legislation," Schumer added about what authority Biden would have if he used his emergency powers.

"Trump used this emergency for a stupid wall, which wasn't an emergency. But if there ever was an emergency, climate is one," Schumer added. 

Declaring a national emergency would give Biden more leeway on combating climate change, including being able to direct additional funding.

Schumer's suggestion is what many Republicans feared would happen the next time a Democrat was in the White House after Trump used the emergency declaration to get more funding for the border wall in the face of congressional opposition.

"If today, the national emergency is border security ... tomorrow the national emergency might be climate change," Sen. Marco RubioMarco Antonio RubioGOP senators question Amazon on removal of book about 'transgender moment' CPAC, all-in for Trump, is not what it used to be Watch live: Day 2 at CPAC MORE (R-Fla.) told CNBC in 2019. 

And, on Tuesday, Sen. John BarrassoJohn Anthony BarrassoBiden returns to Obama-era greenhouse gas calculation Indigenous groups post billboards urging senators to confirm Deb Haaland Senate confirms former Michigan governor Granholm as Energy secretary MORE (Wyo.), the top Republican on the Energy and Natural Resources Committee, released a statement criticizing Schumer’s comments. He said:

“By calling on President Biden to declare a climate emergency, he is trying to muzzle Congress...President Biden should work with both parties in Congress, not listen to Chuck SchumerChuck SchumerFirst Black secretary of Senate sworn in Republican Ohio Senate candidate calls on GOP rep to resign over impeachment vote The bizarre back story of the filibuster MORE’s dangerous ideas.”

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Read more here.

LISTEN UP: President Biden on Tuesday signed a memo directing agencies to chart out how they plan to incorporate Native American needs into their decision making, an early move to signal a sharp reversal from the Trump administration.

The order directs each government agency to turn over plans for how they can better consult with the nation’s 574 federally recognized tribes.

“It is a priority of my administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy,” Biden wrote in the memo.

The order isn't a large departure from current federal policy requiring consultation with tribes, but tribal leaders have complained for decades that they’ve been sidelined or silenced by federal agencies.

Those complaints likewise surfaced during the Trump administration, with tribes levying charges that they were ignored in numerous public lands decisions as the agencies sought to reduce the scope of national monuments on lands considered sacred by tribes, including the Bears Ears and Grand Staircase Escalante monuments.

Tribes in Alaska and New Mexico also raised flags when the Department of the Interior staged virtual hearings with Native Americans at the height of the pandemic when weighing efforts to expand drilling. Though designed as a safety precaution, studies have found Native Americans living on reservations to be the least connected to high-speed internet. 

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Read more about the order here.

IT’S ELECTRIC! President Biden on Monday pledged to replace vehicles owned by the federal government with U.S.-made electric ones, doubling down on a similar campaign pledge. 

“The federal government also owns an enormous fleet of vehicles which we're going to replace with clean, electric vehicles made right here in America by American workers,” he said while discussing an executive order aimed at increasing federal procurement of products made in the U.S.

The executive order did not discuss vehicles specifically, but said that the government should get products from “sources that will help American businesses compete” in unspecified “strategic industries.”

The government says that it is the largest consumer in the world, buying more than $550 billion dollars in goods and services each year. 

In fiscal 2019, the federal government had a total of 645,047 vehicles in its inventory. 

Prior to last year’s election, Biden’s campaign said it would use federal procurement to up the demand for “American-made, American-sourced clean vehicles,” and that he would commit to the purchase of these vehicles for federal, state, tribal, postal, and local fleets. 

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Read more about Biden’s comments here.

WHAT WE’RE READING:

New U.S. Strategy Would Quickly Free Billions in Climate Funds, The New York Times reports

Central banks deepen their climate efforts, Axios reports

Feds investigating Pritzker EPA for approving new scrap shredder on Chicago’s heavily polluted Southeast Side, The Chicago Tribune reports

Air pollution linked to higher risk of irreversible sight loss, The Guardian reports

ON TAP TOMORROW:

  • The Senate Energy and Natural Resources Committee will hold a hearing on Granholm’s nomination
  • The Biden administration will devote the day to taking a range of climate actions including an “omnibus” domestic and international climate executive order. 

ICYMI: Stories from Tuesday…

Biden pledges to replace government fleet with electric vehicles

Court upholds ruling invalidating Dakota Access, but doesn't shut down pipeline

Schumer calls for Biden to declare climate emergency

Biden seeks to bolster consultation with Indian Country