Trump administration officials have removed endangered species and historic preservation reviews from federal orphaned well programs, potentially speeding the cleanup of tens of thousands of abandoned sites.
But the administration’s rationale for why the reviews are not required has puzzled some attorneys, who are skeptical of the legal arguments and say the move could open up litigation threats for states.
The change — which was put in place July 17 — could also indicate a broader shift in what kinds of environmental or historic reviews officials will require for federally funded grant programs. If implemented, that wider change could mean fewer environmental reviews for a range of federal initiatives.
“It’ll be interesting to see if this is a policy that we see played out on a larger scale as the administration continues to effectuate the priority of unleashing American energy,” said Stephanie Sebor, a partner at the Jenner & Block law firm who focuses on environmental topics.
As part of the bipartisan infrastructure law that passed in 2021, Congress outlined nearly $4.7 billion in grants that states could apply for to clean up abandoned wells. As part of the grant process, the Interior Department concluded that the grants were subject to standard aspects of endangered species and historic preservation reviews.
Section 7 of the Endangered Species Act requires that federal actions do not jeopardize the continued existence of listed species. That “applies to all actions federal agencies fund, authorize, permit, or carry out in which there is discretionary federal involvement or control,” according to the Fish and Wildlife Service.
Similarly, Section 106 of the National Historic Preservation Act states that federal activities must be reviewed for their impact on historic resources. The law refers to those activities as “undertakings,” and federal rules have defined them as projects “funded in whole or in part under the direct or indirect jurisdiction of a Federal agency,” including “those carried out with federal financial assistance.”
But the Trump administration has concluded that those reviews do not apply to the orphaned wells program and dropped them from the requirements.
In a document about the orphaned wells program, Interior says the well cleanup is “not subject to” the ESA requirements. It also says they’re not “undertakings” under the National Historic Preservation Act.
The brief explanation does not provide the administration’s legal view of the changes.
The White House referred queries to Interior, which answered questions about grant specifics but did not respond to questions from POLITICO’s E&E News about the overall reason for changes.
“States know their land and their needs best,” Tyler Hassen, who at the time was acting assistant secretary of policy, management and budget, said in a statement accompanying Interior’s July 17 announcement. “By cutting unnecessary barriers, we’re helping them clean up old wells faster, protect communities and support energy development.”
Tens of thousands of abandoned wells exist across the U.S., many of which send methane, a greenhouse gas, into the atmosphere. There are around 120,000 documented orphaned wells nationwide, according to a 2023 release from the U.S. Geological Survey. And USGS said there could be about 1 million orphaned wells that remain undocumented.
‘Reduce red tape’
Attorneys with expertise in endangered species and historic preservation have been digesting potential arguments behind the changes.
“It is not clear on the face of the information that has been released,” said Tom Boer, a partner at the Hogan Lovells law firm who focuses on environmental and natural resource issues.
If federal authorities provide 100 percent of the funding — as is the case with the orphaned wells program — Boer said “it would be hard for me to understand” how they are not subject to the endangered species act reviews.
Sebor with Jenner & Block said Interior may have concluded that, in general, the narrow actions of plugging abandoned wells are unlikely to affect listed species.
She noted that the changes appeared narrow and that unintentional harm to endangered species carried out during well cleanups could still be subject to ESA prosecution.
“I think this is just generally reflective of the administration’s desire to reduce red tape or streamline getting these programs out, given the priority of unleashing American energy,” Sebor said.
While cleaning up abandoned wells faster may be a net benefit for the environment, Boer said, exempting grants from endangered species reviews could make contractors or others carrying out the work vulnerable to legal risks.
With no endangered species review, Interior may not supply contractors with “incidental take” permits that provide some legal protection if listed species are harmed during otherwise lawful activity, Boer said. But if a listed species is harmed during a well cleanup, someone could still sue under the ESA.
“I would be actually concerned if I were a state, because now I am out on my own to make a determination about endangered species and potentially be subject to third-party lawsuits,” Boer said.
Since the orphaned wells program began earlier this decade, officials have not been asked for or issued any incidental take permits, Interior spokesperson Elizabeth Peace said by email.
The prospect of no environmental reviews has alarmed some environmentalists. Hollin Kretzmann, a senior attorney at the Center for Biological Diversity, said the oil and gas sector has been working with environmental reviews for a long time.
“Starting a reckless race to plug oil and gas wells at the expense of endangered species and historic sites only adds insult to injury,” he said. “A better approach is making sure these companies pay to quickly and responsibly clean up the messes they created so Americans don’t get stuck with the bill.”
Some states with large numbers of orphaned wells have applauded the changes.
In Texas, the state Railroad Commission, which regulates oil and gas, plugged 34 percent fewer wells over a year-long period when the federal grants it received began requiring the reviews, according to spokesperson Bryce Dubee. He criticized how reviews were handled by the Biden administration.
Interior’s decision “allows us to quickly work … to protect public safety and the environment by plugging wells without unnecessary hurdles,” Dubee said by email this week. “We have made it abundantly clear that the formula grants include administrative hurdles by the previous administration that are not specified in the [infrastructure law] that significantly delayed plugging projects.”
Texas has received nearly $105 million in federal funds to deal with orphaned wells in recent years.
Brandon Glass, a spokesperson for Pennsylvania’s Department of Environmental Protection, said by email Thursday that the state has its own processes for protecting endangered species and historical sites. The state received $101 million in federal funds between August 2022 and September 2024 for the effort and is reviewing how the new changes will affect the grants, he said.
Sara Bronin, who chaired the Advisory Council on Historic Preservation during the Biden administration and is now a law professor at George Washington University, said she imagined the conclusion that historic preservation reviews are not required may relate to how much authority the federal government has over how states spend the money.
But whether that argument holds up could depend on how a future court interprets the specifics of the grants.
