Felicia Ellsworth: Welcome to In the Public Interest, a podcast from WilmerHale. I’m Felicia Ellsworth.
Michael Dawson: And I’m Michael Dawson. Felicia and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology and business.
Felicia Ellsworth: Today’s episode will be the final episode of season 4 of In the Public Interest. From talking to Ambassador Robert Kimmitt about his storied career, learning about the future of AI and its impact on the practice of law, and getting the inside scoop on some of the most consequential Supreme Court decisions this term, we’ve had many great discussions this season. And today’s episode is no exception.
Felicia Ellsworth: Many lawyers pride themselves on their ability to clean up messy problems, but our guest today has cleaned up actual messes—some of the biggest. Tommy Beaudreau is a partner in our Washington, D.C. office and co-chair of WilmerHale’s Energy, Environment, and Natural Resources and Native American Law practices. Tommy’s breadth of experience in energy development and environmental conservation spans nearly a decade of public service across two presidential administrations. During the Obama administration, Tommy held various posts in the Department of the Interior, including as the first director of the Bureau of Ocean Energy Management, acting Assistant Secretary for Land and Minerals Management and Chief of Staff of the Department. After some time in private practice and an impressive 88-9 bipartisan confirmation, he returned as Deputy Secretary of the Interior in the Biden Administration under Secretary Deb Haaland. Throughout his tenure in the public sector, Tommy worked on a range of issues in natural resource conservation, energy and environmental regulation, and tribal matters, including coordination of the federal government’s response to the Deepwater Horizon oil spill and protection of the Colorado River. We invited Tommy on the podcast to discuss his extensive experience in public service and how it informs his practice today.
Felicia Ellsworth: Tommy, it’s great to speak with you. Thanks so much for joining us today.
Tommy Beaudreau: Felicia, thank you for having me on the podcast today.
Felicia Ellsworth: So you’ve had a very distinguished tenure in government beginning in 2010 in the Department of Interior and spending nearly 10 years there. Can you describe the role of the Department of Interior and its overall mission?
Tommy Beaudreau: I like to think of the Interior Department as the “Department of the Literal America,” the literal landmass. So, among the missions of the Interior Department, they are the land manager for public lands. That includes all of the National Park system, one of the most popular agencies in all of federal government. It’s how many Americans, and many people around the world experience the United States as part of family adventures and personal adventures in the outdoors. The Department also manages public lands through the Bureau of Land Management and the National Wildlife Refuge System. It is the water delivery system for much of the American West, supporting agriculture and electricity development through the Bureau of Reclamation. And it’s also the key federal agency responsible for fulfilling our trust and treaty obligations to tribes and Alaska natives. And one area that folks don’t often understand about the Interior Department is that it oversees our relationship with the insular areas and the territories in the Pacific—places like Samoa that we have important relationships with and special responsibilities for coming out of World War II.
Felicia Ellsworth: Well, it’s a pretty broad remit there and some of what you said certainly resonates with my own experience with the Interior and the National Parks. Maybe you can tell us a little bit about what aspect of the mission of the Department of Interior resonated with you. Why did you choose to join the Department when you did?
Tommy Beaudreau: The Interior Department is where a lot of the most critical issues facing the United States come into focus. That includes energy transition, public land support, a lot of energy development—whether that is oil and gas and coal and conventional energy, but also renewable energy, wind and solar and hydroelectrical power. And so DOI is always a focal point for that debate about where the United States needs to be in terms of its energy mix and addressing the climate crisis. And that is one of the most compelling set of issues that I’ve always found about the Interior Department and part of the reason why I returned to it during the Biden Administration. The other really compelling set of issues that again have always drawn me to the Interior Department is continuing to advance our relationship and improvements in our relationship with Indian country and tribal nations. Respect for self-determination, respect for tribal sovereignty and appreciation in better fulfilling our trust and treaty obligations to tribes. And so I’ve worked for three interior secretaries, and in the current administration in working for Secretary Haaland, who has put those tribal issues front and center as a lens through which all of the work of the Interior Department was being done, was eye opening for me and a really powerful experience.
Felicia Ellsworth: Let’s go back in time for a little bit and talk about your first tour at the Department because you had a number of different positions—Director of the Bureau of Ocean Energy Management and Acting Assistant Secretary for Land and Minerals, Chief of Staff. It would be interesting to hear a bit more about your journey through all of the different sectors of the Department and how that helped inform your experience and your perspective on these issues.
Tommy Beaudreau: My original experience and perspective on the Interior Department came from my upbringing. I was raised in Alaska, spent a lot of time in the outdoors, including in places like Denali National Park, a lot of time hunting and fishing and skiing and doing what Alaskans do in terms of enjoying what is a truly unique and wonderful and beautiful part of the world. My father worked in the oil and gas industry. It’s the reason why we moved to Alaska. He got a job after the Trans-Alaska Pipeline came online in the late ’70s, working on the North Slope. When I was a junior in high school, the Exxon-Valdez spill happened, which was a searing experience for all Alaskans. There’s honestly easier places to live, but Alaskans choose to live there because of how they feel about the place. It’s also a resource dependent state, and particularly in oil and gas, and so the Exxon-Valdez spill was a traumatic event for all Alaskans because it brought to a head the tensions between being a resource state and being a place where people could enjoy and value the natural wonders of the state. Fast forward, I was a young law firm partner in 2010 and the Gulf of Mexico oil spill happened with the Deepwater Horizon blowout, and it brought back all of those painful memories from the Exxon-Valdez tragedy. And I felt like many of us, including President Obama, extremely frustrated at the situation in the Gulf of Mexico and the time it was taking to respond to the environmental calamity. And so I was called in to service to join the Interior Department, leave my law practice at the time to help with the federal response to the Gulf of Mexico incident, including trying to raise standards practices from the offshore oil and gas industry to minimize the risk of a reoccurrence of something like that, but also to look inwardly at the Interior Department’s effectiveness and credibility as an offshore oil and gas regulator. And so that’s what I originally joined the Department to do. It was supposed to be a six-month assignment. That’s what I told my spouse—that I was going to go in, do my duty and then return to my law practice and I ended up staying at the Department for nearly seven years.
Felicia Ellsworth: That’s a long six months.
Tommy Beaudreau: But worth it.
Felicia Ellsworth: So you mentioned serving under Secretary Haaland, the first Native American to serve as a Cabinet secretary ever. And I wondered if you could share a little bit about the experience that you had under her leadership and the perspective that Secretary Haaland brings to the Department.
Tommy Beaudreau: So as fascinated and inspired by the Interior Department as I am, not necessarily every American thinks of DOI or has it top of mind, and I think Secretary Haaland has in an important and powerful way brought our relationship with Indian country and with Native Americans, Alaska Natives and Native Hawaiians, and all indigenous people front of mind. She is an incredibly charismatic and politically compelling figure. And to have, as you said, a Native American at the head of a Department whose genesis in the early 19th century was about westward expansion, and the consequences that that had for Native Americans in this country. The oldest bureau in the Interior Department—it predates the Department itself—was the Bureau of Indian Affairs, and under President Jackson, it was housed in the War Department, which tells you something about how the United States at the time viewed its relationship with tribes. And so she is an incredibly powerful symbol for the progress that we’ve made but she’s also a visionary leader in my experience of thinking through the process and the progress that remains ahead of us to repair those relationships and truly live up to our values of respecting indigenous people and their lands and their cultural practices.
Felicia Ellsworth: You mentioned so many of the different responsibilities of the Department of Interior. One example of a pretty high-profile matter that you helped to lead as Deputy Secretary under Secretary Haaland, was the Colorado River stabilization, which my understanding is required coordinating all of these areas, right? Different states, tribal nations, as well as this important question of water security. So maybe you could describe a little bit about that project and the coordination effort that was required to get it done.
Tommy Beaudreau: The Colorado River system is a system that 40 million people across seven states and 30 tribes rely on for basic services, including drinking water, agriculture, power generation and a host of other things that we rely on in our everyday lives. It’s also an incredibly important system for recreation and environmental benefits. It is the Colorado River that carved the Grand Canyon and is the centerpiece of places like Grand Canyon National Park. I think part of the reason why the Colorado River became as crystallizing for so many people as it has in the last few years is climate change is a difficult concept for many people to access. We’ve all experienced in our lives the changes that are being driven by climate change, but at the same time, on a day-to-day basis you don’t necessarily notice it. But when you go to Lake Mead and you look at a reservoir that is a quarter of its capacity and the bathtub rings marking how far water levels have decreased over the last 20 plus years of drought, it really drives home the challenges that we’re facing and how rapidly the world has changed because of climate driven drought. The most pithy summary of the challenge that I ever heard came from the water manager for Nevada, who said the basic problem with the Colorado River is you’ve got 19th century law, 20th century infrastructure and 21st century climate, and those things don’t work well together. And so the effort that I led was, within that framework and those tensions, negotiating among the seven basin states and 30 tribes necessary water conservation to ensure that the system didn’t crash while we continued to negotiate a sustainable operating plan for the Colorado River Basin.
Felicia Ellsworth: Tell us a little bit about what some of those negotiations and coordination entailed as you tried to solve this difficult problem.
Tommy Beaudreau: The fundamental challenge, and this goes to the 19th century law point, is there’s a lot of established legal water rights to volumes of water from the Colorado River. Most senior rights rest at the end of the system, with agriculture in Southern California. Further up the system, it’s how places like Phoenix get all of their water, a community that is rapidly growing. Further up the basin, agriculture above Lake Mead is done, and so the negotiations are fundamentally driven by scarcity by a system that historically has been overallocated and where you have that overallocation and decreased water supply due to the drought. How do you have that conversation between those who would assert senior legal rights, who would say, “OK, less water, but we’re entitled to certain volumes, we ought to get ours first and then others can sort it out” versus the reality of the situation, which is everybody in that system has needs, including tribes who were not at the table 100 years ago when these deals were originally struck and new communities that have sprouted up over time and grown based fundamentally on their ability to access the Colorado River. And so there’s a legal framework with all of it that can’t be ignored. But at the same time, they become a very practical and pragmatic set of conversations of “how do we, in an increasingly arid place, do with less?” And those are tough conversations to have.
Felicia Ellsworth: What would the result have been had you and the Department and the many other people that worked very hard on this not been able to navigate these issues?
Tommy Beaudreau: So the crisis that came about within the last couple years was water levels at Lake Mead, which feeds into the Hoover Dam, diminishing to the point where water would not be able to move through Hoover Dam. If that occurred, Hoover Dam would become a stopper because the turbines are at a certain elevation and the water wouldn’t reach them with sufficient pressure to move through the system. And so Hoover Dam would become a plug and everything downstream would be stopped. And that includes power generation into Las Vegas and other communities in Nevada, that includes Ag and Southern California and includes the water supply through the Central Arizona project into places like Phoenix. And so it would have been catastrophic. Suffice it to say, as the manager and operator of those systems and the federal government, we were never going to allow that to happen. And so the question became alright, what sort of cuts to the allocations would be necessary in order to prevent that from happening? Or could we enter into an agreement to voluntarily conserve water such that those more draconian cuts would not need to be made? And that’s ultimately the agreement that we reached. The lower basin states, Arizona and Nevada, and California reached consensus to voluntarily conserve 3 million acre-feet over the next two and a half years in order to ensure that the system could continue to operate while new guidelines further out continue to be negotiated. That was a major triumph and was a reflection that while those conversations could be extremely contentious, Americans still have the capacity to pull together and do what’s necessary to support each other in their communities, regardless of what legal arguments could be put on the table. So as arduous as it was, it was also affirming that in these days, where we all feel a lot of political polarization, we could still overcome challenging politics and come up with solutions that were in the interests of millions of people.
Felicia Ellsworth: That’s a great success story, to be sure. I wanted to ask about another project that I know you were heavily involved in, the Native American Graves Protection and Repatriation Act, or NAGPRA. Can you just describe what that program is?
Tommy Beaudreau: NAGPRA is a statute that was passed in 1990. It requires museums and federal agencies and federally funded institutions to do what I think makes a lot of sense to most Americans, which is return Native American human remains, grave goods and objects that have significant cultural patrimony and are sacred to the lineal descendants of the people. So in concept, NAGPRA was a major step forward in respecting indigenous people and fundamental issues about human rights and human dignity. In practice, it had proven to be a very challenging statute to implement, and so the original regulations, which are administered by the National Park Service of all agencies, ended up having a lot of loopholes in them. Despite implementations since the ’90s, only about half of those remains had gone through a process that established the cultural association with a tribe. And so under Secretary Haaland’s leadership, the Interior Department, National Park Service, Bureau of Indian Affairs worked for months and months and months with tribes, with museums and with a host of stakeholders to design a better system to fulfill sacred responsibilities and how we treat human remains and sacred objects associated with First Americans.
Felicia Ellsworth: I wanted to ask based on your two tours of duty at the Department, whether you’ve seen overall changes in the manner in which the Department thinks about its relationship with tribal nations.
Tommy Beaudreau: I think there has been substantial progress. That said, the legacy of colonialization, of westward expansion, of displacement, of assimilation of tribes is one that has been 400 years in the making and is still very much a legacy that encumbers Indian country and the nation as a whole. There are parts of Indian country where it’s still the poorest of the poor. Taking Navajo as an example, a third of households don’t have running water and electricity, and that’s American communities. And so as much as there has been progress and as significant and impactful as federal leadership over the last 20 years has been, it still has an incredible legacy to have to overcome and do right by. One example is the boarding school system that was American policy and American law to take Indian children from their homes and put them in boarding schools, cut the boys’ hair, put dresses on the girls, forbid them to speak their language in order to “take the Indian out of the child” and make them Americans and turn them into farmers and tradespeople. Secretary Haaland commissioned a review of the history of boarding schools and documented for the first time what has happened through the boarding school system, including the loss of many children, deaths as well as rampant abuse and cultural annihilation. And so, as you would imagine, lifting the hood on that very painful experience was not easy. The Secretary herself led what she called the “Road to Healing,” which was a series of meetings across the country with tribes to talk about individuals’ experience. Some of those conversations even involved going out to where boarding schools were located and saying we know children are buried here and graves that weren’t marked, talking about brothers and sisters and siblings who went off and weren’t seen again, and it is part of the process of healing. It is part of the process of reconciling ourselves with our history and appreciating better why values like respect and sovereignty and self-determination and the cultural underpinnings of laws like NAGPRA actually are really important and really important to people.
Felicia Ellsworth: I think the awareness raising that Secretary Haaland’s leadership had of that dark chapter, was incredibly powerful and as you say, a step in the right direction towards healing some of that history. So let me switch gears. You’re now back in private practice here at WilmerHale, and maybe you can talk a little bit about how your experiences in the Interior Department have translated into some of the work that you’re doing today as the co-chair of our Energy, Environment and Natural Resources Practice as well as our Native American Law Practice.
Tommy Beaudreau: I couldn’t be happier than to be here at WilmerHale for a number of reasons. One, I think everybody has a role to play across the energy mix and at the end of the day, as big of a believer as I am in policy and regulation and the ability of government to move things in the right direction, these issues are really only going to be addressed through the private sector. It’s gratifying for me to be at a firm that I can work with clients to advance all of those issues and think through them in a durable way. The other major reason why I’m so happy to have found a home at this firm is the value system at Wilmer. There’s obviously, like any community, a broad range of political views, of policy views, of judicial philosophy, but what binds everyone together is a sense of community, of working in good faith and genuine belief that at the end of the day, there’s a lot of common ground that we can work from to solve problems.
Felicia Ellsworth: How does your time in service help inform the way that you help clients solve some of these very difficult problems?
Tommy Beaudreau: There are a number of fundamental principles that I draw from in my time in public service, including in crises like Deepwater Horizon, that have informed the way I provide advice and counsel companies either going through crises of their own or just trying to think through, “OK what is the best way to get something done?” Some of those principles include transparency, and the hard work of community engagement cannot be substituted for. So whether you’re undergoing a crisis that has impacted local communities or you’re trying to get a transmission line or offshore wind farm built, where the durability and success comes from is an incredible way engaging with the diversity of opinions and perspectives that are going to be relevant to moving that situation forward. And then having worked in federal agencies and experienced the bureaucracy from lots of different perspectives, understanding how agencies actually work and what their drivers are and what leadership, as well as career staff, in federal agencies have to do and have to be concerned about is incredibly valuable in providing advice on how to navigate those issues.
Felicia Ellsworth: Well, thank you, Tommy. The name of our podcast, as you know, is “In the Public Interest” and listening to you talk about your time in public service and the passion that you brought to that work and that so many of your colleagues did at the Department of Interior really does help reaffirm some of what we think is so important about the legal work that we do. So, thank you for joining us today and for sharing some of your experiences and wisdom with the listeners of the podcast.
Tommy Beaudreau: It was a lot of fun. Thank you for doing this, Felicia.
Felicia Ellsworth: And thank you, everyone listening, for tuning in to season 4 of In the Public Interest. Stay tuned for season five, coming in 2025! If you enjoyed this podcast, please take a minute to share with a friend, and subscribe, rate and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please email them to us at [email protected].
Michael Dawson: For our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in government, the nonprofit space, academia, other firms, and leadership positions in corporations around the world. If you haven’t already, please join our recently launched alumni center, at alumni.wilmerhale.com, so we can stay better connected.
Michael Dawson: Our show today was produced by Arpi Youssoufian and Matt O’Malley, sound engineering and editing by Bryan Benenati, marketing by Emily Freeman and her team, all under the leadership of Executive Producers Sydney Warren and Jake Brownell. Thank you for listening.
Felicia Ellsworth: See you next time on In the Public Interest.
