Energy Transitions in Sub-Saharan Africa and other forthcoming publications
Updated: Aug 27, 2020
EMERGING TRENDS IN RESOURCE-RICH SUB-SAHARAN AFRICA AND A SPOTLIGHT ON THE NIGERIAN TRANSITIONAL ENERGY MARKET
Tulane Journal of International and Comparative Law, Vol 29 (2020-2021) forthcoming
Before COVID-19 struck, several countries in Sub-Saharan Africa (SSA) were grappling with the demands of managing rapid urbanization and economic development, reducing poverty, raising standards of living, and economic diversification to mitigate the impact of the boom and bust price cycles of exported resources (especially oil) in the international markets. Arguably, a key factor in the medium to the long-term realization of various economic and development aspirations will be the degree of access to affordable and reliable modern energy services.
On a general note, there is no gainsaying that energy enables growth in both developing and developed economy contexts. The innovations that lead to (i) the roll-out of long-distance energy networks operated by vertically-integrated utilities as a means of delivering affordable and reliable energy, and (ii) viable wholesale markets for large-scale demand points such as steel and manufacturing industries; has been key in enabling industrialization and modern standards of living over the past century. In several jurisdictions, the traditional energy supply systems gradually gave way to the paradigm of creating competitive wholesale markets complemented by open access to those networks and now more recently an increasing array of distributed energy resources and/or variable renewable energy systems as part of the drive towards decarbonization and sustainability.
Notably, some African countries are adopting such paradigms and approaches to energy, even though there are still considerable institutional developments and investments required to achieve the desired objectives of secure, reliable, and affordable energy access for all. From the late 1990s and 2000s to date, countries such as Nigeria, South Africa, Kenya, etc. facilitated the participation of privately-owned Independent Power Producers (IPP) to operate along-side state-owned utilities. Others such as Senegal and Ghana as discussed in this paper are likewise designing and implementing reforms to their traditional utility model for electricity supply and seeking to develop institutions such as independent system operators to carry out responsibilities for least-cost generation planning, power procurement, system operation, and power dispatch, and transmission and distribution planning.
In the unfolding drive towards universal energy access and a more sustainable path to support rapid economic development and growth; the legal framework and regulatory institutions have a pivotal role to play. It is important to have a coherent, clear and efficient framework comprising- well-equipped and resourceful independent institution(s) for economic regulation, creating an equitable and rules-based playing field for energy utilities, consumers, and private operators; and cost-reflective tariffs for utilities, while still ensuring the obligation to serve and provide reliable and affordable energy. Given the growing inclination for decentralized systems using natural gas and distributed renewable energy sources as a means of reaching the areas underserved by the traditional grid-based networks, such a legal framework would among other things provide a basis for (i) supporting community-based financing; (ii) construction and operation of micro-grids and independent distribution networks; (iii) for third-party generators and operators seeking market access; (iv) clarifying facility siting requirements; (v) guaranteeing the parameters for ensuring affordability and reliability; and (vi) establishing energy efficiency standards; (vii) establishing energy conservation and demand response measures; (viii) the creation and management of cross-border interconnectors, and (ix) ensure that civil society has the opportunity to participate in the energy decision-making process.
This paper aims to briefly highlight the emerging trends and outlook for energy sector transformation and reforms in some selected countries across the Sub-Saharan Africa region in Part II. Specifically, it exemplifies relevant developments in South Africa, Senegal, Ghana, and Kenya. It then focuses on the recent legal and regulatory developments in Nigeria’s transitional energy market as a signpost to plausible challenges, solutions, and opportunities that others may face in Part III. Undeniably, all countries, especially in Africa have their own peculiar social, political, and economic attributes, however, there are some common elements in the region as energy markets and sectoral reforms take shape such as:
abundant local primary energy resources such as gas and solar but considerable requirements for local market structures and delivery networks;
reliance on traditional sources in the rural areas, while urban areas tend to rely on inadequate grid-based energy or standalone systems and back-up generators fueled by oil and diesel;
under-investment in transmission and distribution networks, although from the 2000s there has been growing attention to energy policy reforms, private sector participation, and liberalization; and
the affordability and network constraints for grid-based supply.
Nigeria typically takes the lead in several fronts, including the size of domestic oil and gas resources, the biggest economy, and population as well as in the process of market liberalization and reform efforts. Notwithstanding, the emphasis on emerging trends in Nigeria discussed in Part III shows among other things that sectoral reforms or announcing a scheme of energy-related master plans are not ‘ends’ in themselves but a ‘means’ to one or more ends which includes ensuring reliable and affordable energy supply to support growing social and economic development. A major determinant to realizing the ends is often the extent to which the local market structures, capacities, and institutions are supported by law and good quality regulation. The paper goes on to examine the regulatory framework governing the Nigerian Electricity Supply Industry (NESI) with particular emphasis on the evolution of the on-grid and off-grid electricity systems and the increasing role of renewable energy in a developing economy that is equally rich in hydrocarbons and thus relies considerably on natural gas for electricity generation. It discusses the challenges with the on-grid electricity supply and the increasing role of off-grid power supply in ensuring reliable access to the electricity supply.
...................................................................................................................................................  African Development Bank (AfDB), African Economic Outlook, 206, 1-35 (January 2020). For instance, Nigeria was implementing an Economic Recovery and Growth Plan (2017–20), South Africa, Ghana, Kenya and Senegal all had some form of ongoing economic and/or energy sector reforms. See also AFDB, West Africa Economic Outlook 2020 - Coping with the COVID-19 Pandemic, July 2020. Nine countries reportedly saw growth of at least 5.0 percent in 2017 and 2018, and five have been growing at that rate since 2014–16. Prior to the outbreak of the COVID-19 pandemic, West Africa region was poised to expand by 4.0 percent in 2020.  The African Development Bank (AFDB), Regional Economic Outlook 2019 - West Africa, April 2019 https://www.afdb.org/en/documents/document/regional-economic-outlook-2019-west-africa-108624.  African Development Bank (AfDB), Revisiting Reforms in the Power Sector in Africa, (September 2019), https://www.afdb.org/en/documents/revisiting-reforms-power-sector-africa; Anton Eberhard, Katharine Gratwick and Laban Kariukid, Kenya's Lessons from Two Decades of Experience with Independent Power Producers, 52 Utilities Policy 37-49 (June 2018). Hugh Corder1and Terhemen Andzenge, Regulation as a Catalyst for the Electrification of Africa, in Ending Africa’s Energy Deficit AND THE Law: Achieving Sustainable Energy FOR ALL IN Africa, Yinka Omorogbe and Ada Okoye Ordor eds., (Oxford University Press, 2018). The countries with more extensive record of sectoral reforms pertaining to- regulatory frameworks, allowing private sector participation, encouraging competition in generation and retail, and restructuring the traditional state-owned utility; includes Kenya, Nigeria, Ghana, South Africa and Uganda. They appear to be making more progress in terms of their legal and regulatory approaches to developing viable energy systems and markets.  Id. See also pages 66-84 on “Principles and Rationales for Competitive and Secure Gas Markets” in Tade Oyewunmi, Regulating Gas Supply to Power Markets: Transnational Approaches to Competitiveness and Security of Supply (Wolters Kluwer, 2018).  Yinka Omorogbe, Universal Access to Modern Energy Services: The Centrality of the Law, in Ending Africa’s Energy Deficit AND THE Law: Achieving Sustainable Energy FOR ALL IN Africa, Yinka Omorogbe and Ada Okoye Ordor eds., (Oxford University Press, 2018).  Tade Oyewunmi, International Petroleum Transactions and the Development of Gas-to-Power Markets in West Africa, Oil, Gas & Energy Law Intelligence (OGEL) Journal (2019), available at www.ogel.org/article.asp?key=3805; Rahmat Poudineh and Tade Oyewunmi, Natural Gas in Nigeria and Tanzania: Can it Turn on Lights? In Oxford Energy Forum- Electrifying Africa Issue 115 Oxford Institute for Energy Studies, (2018]).  Sam Amadi, Improving Electricity Access through Policy Reform: A Theoretical Statement on Legal Reform in Nigeria’s Power Sector in Ending Africa’s Energy Deficit AND THE Law: Achieving Sustainable Energy FOR ALL IN Africa, Yinka Omorogbe and Ada Okoye Ordor eds., (Oxford University Press, 2018).  Oyewunmi supra note 4, pp. 111-178.
The following commentary provides an outline of my forthcoming paper addressing the issue of regulating greenhouse gas and methane emissions in the US Gas Supply Industry...
Natural Gas in a Carbon-Constrained World: Examining the Role of Institutions in Curbing Methane and Other Fugitive Emissions
LSU Journal of Energy Law and Resources, (Vol IX, 2020) Forthcoming
This paper examines how misalignments in political and economic interests amongst the stakeholders in the gas supply industry impacts on the quality and effectiveness of regulation and the pursuit of underlying energy policy objectives. Such misalignments more or less hinder the development of innovative solutions that could help in curbing the trend of fugitive GHG emissions, especially methane in the gas context. The paper highlights the concept of an ‘energy trilemma’ as a key feature of energy law and policy and builds on the premise that- the objectives of (i) ensuring reasonable and affordable prices through viable energy markets or systems, (ii) security and reliability of supply, and (iii) sustainability and environmental protection in the production and delivery of energy, are not mutually exclusive. In other words, the need to ensure that producers or suppliers can earn cost-reflective rates or reasonable returns on investments and consumers assured of affordable prices; while ensuring energy supply is reliable and secure are all essential dimensions of energy policy which an instrumentally effective regulatory and legal framework should strive to achieve. However, it is equally important to pursue those objectives in a sustainable manner and control or prevent environmental harm as the regulatory framework allows in the interest of all stakeholders. This is especially true due to the ‘public-interestedness’ and inherent welfare and economic implications of securing reliable and sustainable energy systems. For instance, a decision to ‘kill’ an energy supply project (as weird as it sounds) by its main sponsors, which was the recent fate of the Atlantic Coast Pipeline (discussed briefly in Part II below), would most likely not have arisen if the regulatory system was not seemingly maneuvered to create bottlenecks and uncertainties by some interest groups without due regard for whether the sponsors or institutions involved can or could take the ‘hard’ and ‘rational’ look to ameliorate any plausible environmental impact in a collaborative and innovative manner.
There is no gainsaying that energy underpins almost all facets (economic, social, etc) of modern standards of living. In a carbon-constrained world, the parallel quest for realizing these objectives is complex and usually counteracting, even-though they should be counterbalancing dimensions of energy policy. It is noted here that ‘over-regulation’ is just as bad as ‘under-regulation’ or a trend of engineering legal and regulatory gaps to foster political and private economic opportunism. The tendency to ‘over-regulate’ or otherwise ‘under-regulate’ at the expense of accountability and innovation or when it is reasonably appropriate simply because of political inclinations hinders progress towards the three important dimensions of energy law and policy. In most cases, gas flaring and venting ‘understandably’ arise due to inadequate transmission pipelines or gas gathering capacity or unfavorable downstream gas prices. But such actions lead to the release of environmentally harmful climate-change-forcing carbon dioxide (CO2), methane, or other harmful air pollutants. The resulting ‘environmental’ or ‘climatic’ harm is often not internalized in the cost and sales price of produced gas for some equally understandable reasons such as commercial and operational expediency issues or the dilemma of determining the just and reasonable extent of passing down such costs to unassuming consumers. Thus, the regulator(s) should be in a position to make an informed decision without political interference as to when the environmental costs imposed by such activities are impermissible or technically unavoidable rather than just a question of commercial feasibility. In addition, there should also be mechanisms and incentives to enable rational solutions such as capturing, storing, and utilizing fugitive emissions that would otherwise be released into the atmosphere.
The former US federal government administration (i.e. the ‘Obama-led’ government) in 2013 initiated the Climate Action Plan (CAP). The program inspired agencies to develop new rules and regulations such as the Environmental Protection Agency’s 2012 and 2016 New Source Performance Standards (NSPS) aimed at curtailing emission of methane and VOCs from Oil and Gas operations. In a similar vein, the 2016 Bureau of Land Management’s (BLM) rule aimed at regulating the waste of natural gas through venting, flaring, and leaks from oil and gas activities on onshore Federal and Indian (other than Osage Tribe) leases. Those regulatory actions aimed at bringing the environmental protection and sustainability dimension of energy policy to the front burner and accord the same priority which the US gives energy security and market development objectives. The approach reflects a multipronged evaluation of economic, social, and cost-benefit analysis of such decisions and rules. However, a few days after the current Trump-led administration took office, and in-line with campaign promises, the government issued Executive Order 13783 of March 28, 2017. The new administrations EO 13783 tagged ‘Promoting Energy Independence and Economic Growth’ aimed inter alia at the removal of what it refers to as regulatory ‘burdens’ that unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources. The executive actions that followed became quite intriguing and mostly depicting contentions that are rooted in polarized dispositions of the various political and economic interest groups. The ensuing trend created policy flip-flops and conflicts between the very prescriptive approach to regulating GHGs and methane emissions by the EPA and the BLM under the Obama administration compared to the current government’s deregulatory approach, followed by agitation and contentions from interested groups that are often unmindful of the counter-productive implications of the hullabaloo from an energy policy standpoint. Some of the disputes can be seen from issues leading to and arising from cases such as the Clean Air Council v. Pruitt (2017) and Wyoming v. U.S. Dep’t of Interior (2018) discussed later in Part III below.
In a similar Obama-era vs Trump-era rules and regulation contest(s) the case of Wyoming v. Zinke, is worth mentioning. In Zinke, some environmental groups and the BLM appealed a Wyoming federal judge’s decision striking down a 2015 Obama-era federal rule that tightened the regulation of hydraulic fracturing on Federal and Native American lands. The rule had been initially challenged by some states and industry groups. The Tenth Circuit Court of Appeals dismissed the suit challenging the 2015 Rule based on the Trump administration’s comments and the BLMs July 2017 proposal to officially rescind the Obama-era 2015 Rule. In a similar vein, there were several cases and quasi-judicial contests between industry groups, states, and local governments on the one hand and environmental groups on the other hand, in the build-up towards the NSPS 2012 and 2016 and recent attempts to review and revise these rules. The BLM 2016 rule aimed at curbing waste through flaring and venting of gas by imposing a cost (i.e. royalties) on practices considered to be avoidable. It created an obligation to capture and utilize such avoidable waste. Despite the good intentions of the rules’ sponsors it also faced significant challenges from political and economic interest groups on the one hand and vehement support by environmental groups and other stakeholders.
It is understandable that government administrations as well as the political or economic paradigms they expound change overtime. A newly elected president is fully entitled to pursue campaign promises that imply a revision or rejection of a prior president's policies. However, it is important to keep the tenets of a good quality regulatory and institutional set-up in order to foster the three dimensions of effective energy policy. The dictates of regulatory independence and accountability suggest that institutions should be apolitical enough not to just “simply discard prior factual findings without a reasoned explanation.” This paper seeks to highlight this normative claim by discussing the challenge of curbing methane and fugitive GHG emissions from gas supply systems. It explores the role(s) of regulatory institutions in this regard and considers the framework for regulating operations subject to private ownership and transactional issues on the one hand; and those pertaining to publicly owned resources and operations subject to the oversight functions of federal agencies such as the BLM pertaining to operations on Federal land on the other hand. It draws relevant inferences from international developments involving the need to curb practices such as routine gas flaring and venting, fugitive emissions, etc. in jurisdictions like Nigeria. It is noted that the bulk of oil and gas resources and operations in the US takes place under private ownership and leasing framework. However, there is a considerable portion of resources and operations taking place under federal ‘public’ land and resource ownership, the oversight and regulation for which falls under the purview of federal institutions such as the BLM and the US Bureau of Ocean Energy Management (BOEM). The US federal licensing and regulatory framework is also akin to the domanial paradigms of resource ownership and management found in other international contexts outside the US in which government/state ownership of resources in situ prevails.
Part I explores the facts and figures pertaining to energy-related greenhouse gas emissions, in particular, methane emissions as a potent GHG. It considers the implications of gas flaring and venting which potentially increases the release of other unwanted externalities and air pollutants. Part II discusses the typical gas supply value chain, focusing on the strains that environmental and climate change-related regulation places on relevant operators. It discusses the legal, policy, and regulatory dynamics of gas production and supply operations and matters arising in a carbon-constrained context. Part III goes further in examining the institutions and regulatory approaches to gas supply and energy, the production boom and interconnections with electricity supply, the challenge of controlling CO2, VOCs, and Methane Emissions in this regard while attempting to pursue the three dimensions of energy policy i.e. ensuring cost-efficient and viable operations and affordable supply, security and reliability as well as sustainability and environmental protection from the negative externalities arising from emissions. It rounds up by examining the undue influences faced by regulatory institutions that appear to be mostly based on political inclinations and the drive to protect economic interests’ vs public-interests concerns. The conclusion points out that these interests can and should be aligned in order to secure a framework that is effective in enhancing the required innovative solutions to the challenge of GHG emissions in the oil and gas context.
 For the purpose of this paper, there are two broad classifications of stakeholders in the gas supply industry i.e. (1) the regulatory institutions comprising of the government and administrative agencies and lawmakers; and (2) the regulated comprising of upstream operators, producers and energy utilities and pipeline companies as well as social or environmental groups that participate in or are affected by the decisions and rules made by the regulatory institutions. Some of the key tenets of good quality regulation and institutional frameworks which are also instrumental to the realization of energy policy objectives such as competitiveness, the security of supply and environmental protection include: (a) independence of regulatory institutions from undue political influence and capture; (b) clarity of roles and curtailing information asymmetry between the regulator and the regulated; (c) accountability and transparency; (d) regular stakeholder engagement and regular assessments and performance evaluations. See Tade Oyewunmi, Regulating Gas Supply to Power Markets: Transnational Approaches to Competitiveness and Security of Supply, 360, 9-14, 78-84 (2018); Robert Baldwin Et Al., in Understanding Regulation: Theory, Strategy, and Practice (1st Edition, 2012)  See the US Environmental Protection Agency (EPA), Recommended Technologies to Reduce Methane Emissions under the Natural Gas Star Programme available at <https://www.epa.gov/natural-gas-star-program/recommended-technologies-reduce-methane-emissions> accessed 23.03.2019; Heather D. Dziedzic and Tade Oyewunmi, Decarbonization and the Integration of Renewables in Transitional Energy Markets: Examining the Power to Gas Option in the United States, Oil, Gas & Energy Law Intelligence (OGEL) Journal (2019), available at www.ogel.org/journal-advance-publication-article.asp?key=622.  Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews, 77 Fed. Reg. 49,490 (Aug. 16, 2012) (the “NSPS 2012”); the 0il and Natural Gas Sector: Emission Standards for New and Modified Sources, 81 Fed. Reg. 35,824 (June 3, 2016) (amending 40 C.F.R. pt. 60, subpt. 0000 and proposing new standards at subpt. OOOOa) (“NSPS 2016”).  The BLM’s Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83,008, 83013 (Nov. 18, 2016) (codified at 43 C.F.R. pts. 3100, 3160, & 3170) (“BLM 2016 Rule”). The regulations also clarify when produced gas lost through venting, flaring, or leaks is subject to royalties, and when oil and gas production may be used royalty-free on-site. These regulations replace the existing provisions related to venting, flaring, and royalty-free use of gas contained in the 1979 Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (NTL-4A), which are over 3 decades old.  See Executive Order (E.O.) 76 FR 3821, 13563 of Jan 18, 2011- Improving Regulation and Regulatory Review which provides among other things that the general principles of regulation require a regulatory system that protects public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. The regulatory system must be based on the best available science, allowing for public participation and open exchange of ideas, promoting predictability and reduce uncertainty, while identifying and adopting the most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements. Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as the provision of information to the public in a form that is clear and intelligible.  Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017). A case in which the D.C. Circuit vacated Trump-EPA’s administrative stay of implementing portions of the methane regulations in the NSPS 2016 rule issued by the Obama-era EPA. The EPA sought to stay further judicial review and issued a temporary stay of the prior rule pending the agency’s reconsideration of those methane regulations. The court held, however, that EPA failed to comply with the requirements for reconsideration and stay contained in Clean Air Act § 307(d)(7)(B) and therefore that the agency’s action was invalid.  Wyoming v. U.S. Dep’t of Interior, 2:16-CV-0285-SWS (D. Wyo.) (April 4, 2018). See also Northern Alaska Environmental Center & others v. U.S. Dep’t of Interior & Others, No. 19-35008 (US Court of Appeals, 9th Circuit) opinion delivered on July 9, 2020, per Judge Milan D. Smith, Jr., upholding a district court’s judgment in favor of the BLM and the intervenor ConocoPhillips Alaska, Inc. in National Environmental Policy Act (“NEPA”) action brought by environmental groups challenging the BLM’s 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska. It was held that BLM’s issuance of the 2012 Environmental Impact Statement (EIS) under NEPA and integrated activity plan meant that it had met its statutory obligations for the 2017 lease sale of preparing at least an initial EIS, while the action was actually also time-barred.  No. 16-8068, 2017 WL 4173619 (10th Cir. Sept. 21, 2017).  Ultimately, the split three-judge panel dismissed the appeals and the lower court case as “prudentially unripe” because BLM has commenced rescinding the regulation. There is some uncertainty about the current status of the 2015 Rule because the effective deadlines for implementation have passed.  See Legislative Attorney (Congressional Research Service), U.S. Climate Change Regulation and Litigation: Selected Legal Issues 2-39 (R44807, April 3, 2017); Clean Air Council et al., Petition for Reconsideration, In the Matter of Final Rule Published at 77 FR 49490 (Aug. 16, 2012) (petitions by environmental groups asking EPA to reconsider 2012 NSPSs to address methane emissions, leading to further reviews and eventual issuance of the NSPS 2016); several states including Texas, Louisiana and Oklahoma, and some state agencies, industry and natural gas associations such as the American Petroleum Institute and Interstate Natural Gas Association of America filed petitions for a review of the NSPS 2016 final rule; while nine and Chicago filed statements to support the EPA’s final NSPS 2016 rule. Notably, several environmental advocacy groups filed counter motions to intervene in the case, thus, all petitions were consolidated with the lead case i.e. North Dakota v. EPA, No. 16-1242 (D.C. Cir. July 15, 2016). In a related development after the EPA issued an Information Collection Request (ICR) pursuant to the NSPS 2016 rule to oil and natural gas companies seeking information on their existing oil and gas sources as a first step to regulating their methane, the EPA under the current administration withdrew the ICR to assess the need for this information and to reduce the burden it places on operators. The withdrawal was made following a letter by nine state attorneys general and two governors asking that the ICR be suspended and withdrawn. See the Proposed Information Collection Request; Comment Request; Information Collection Effort for Oil and Gas Facilities, 81 Fed. Reg. 35,763 (June 3, 2016); Notice Regarding Withdrawal of Obligation To Submit Information, 82 Fed. Reg. 12,817 (Mar. 7, 2017).  See Blake A. Watson, Nullify, Postpone, Suspend, Stay, and Replace: The Trump Administration and the Methane Waste Prevention Rule, 44 University of Dayton Law Review 363-398 (Summer 2019); Arnold W. Jr. Reitze, The Control of Methane and VOC Emissions from Oil and Gas Operations in the Western United States, 54 Idaho Law Review 213-264 (2018); Bradley N. Kershaw, Flames, Fixes, and the Road Forward: The Waste Prevention Rule and BLM Authority to Regulate Natural Gas Flaring and Venting, 29 Colorado Natural Resources, Energy & Environmental Law Review 115-164 (Winter 2018).  In F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), Scalia, J. opines that agencies may reconsider past decisions and, with a reasoned explanation, to revise, replace or repeal a decision that is within their discretion. Thus, agencies cannot run from underlying facts, contested issues, or past statutory interpretations and associated reasoning explaining past policy choices for the sake of dancing to the tunes of one interest group against the other, simply because the favored interest group supported or supports the government. See Watson, supra note 6; Jody Freeman, The 2017 Roscoe Pound Lecture, The Limits of Executive Power: The Obama-Trump Transition, 96 Nebraska Law Review 545, 567 (2018);