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Environmental groups are waging a war of attrition against the Department of the Interior’s oil and gas leasing programs. They’re unleashing an onslaught of court challenges and scoring legal settlements to stop federal mineral leasing in its tracks in an effort to staunch climate change.
Environmentalists have perhaps never before shared as much ideological kinship with a sitting president as they do with Joe Biden, who sees risks associated with climate change as “existential.” Biden’s administration intends for the U.S. power sector to be carbon-free by 2035 and is on record supporting restrictions up to and including an end to federal mineral leasing.
Even so, green groups unhappy with what they view as Biden’s insufficiently restrictive administration of the onshore and offshore leasing programs have carried over their strategy from previous, less “green” presidencies. That includes leveling a host of legal actions against new leases and drilling permits.
In June, green groups
sued
the Bureau of Land Management over its approval of more than 3,500 drilling permits since March 2021 on leases in New Mexico and Wyoming.
The complaint argued the permits threaten to damage ecosystems and threaten “climate-imperiled” species in violation of the Endangered Species Act. It also accused the Bureau of Land Management of violating the National Environmental Policy Act in approving the applications by “[failing] to take a hard look at cumulative GHG emissions.”
The BLM instead “myopically considered the localized impacts of a small subset of [applications for permits to drill], failed to take a hard look at cumulative impacts, ignored the effects that additional greenhouse gas pollution would have on climate-imperiled species, and failed to prevent the unnecessary and undue degradation of public lands, as is the agency’s duty,” the complaint read.
Days later, a cohort of 10 green groups, including two parties to the drilling permitting suit, filed a complaint against the government for holding lease sales covering acreage in eight Western states.
These sales were the first and, to date, only series of onshore oil and gas lease sales offered since Biden took office. They were announced in April and carried out throughout the month of June in compliance with a court ruling that enjoined the Interior Department from pausing new leasing, something Biden ordered during his first week in office.
Plaintiff environmental groups put forward a similar legal theory as that offered in the complaint against the BLM’s permitting approvals. The bureau “continues to recklessly lease large swaths of the western United States to oil and gas development without comprehensively reviewing these connected actions and analyzing the severity of the resulting climate impacts from the addition of thousands of tons of GHG emissions into the atmosphere,” the plaintiffs argued.
More specifically, they argued the BLM’s establishment of distinct environmental assessments for each sale, rather than putting them together in a single, comprehensive environmental impact statement, violated NEPA “by diluting the impacts of these leases in the context of its Leasing Program while also failing to take a hard look at the cumulative climate impacts from these sales.”
Jeremy Nichols of WildEarth Guardians, a Western lands-focused environmental NGO that is participating in both lawsuits, said the group is “trying to drive a higher level of accountability” at Interior and the BLM and to get the agency to more deliberately consider the “climate consequences” of leasing.
“What this all boils down to is the agency is failing to account for the cumulative, big-picture impacts of its oil and gas leasing and drilling permitting program,” Nichols, the climate and energy program director for the group, told the Washington Examiner. “This is not a matter of one well or one lease. It’s a matter of the agency’s collective leasing program and its collective drilling permitting program.”
The recent suits are subplots to a larger and defining storyline of Biden’s tenure, where green constituencies have been holding Interior to account for his campaign promises to restrict new leasing.
Biden made a range of different pledges on the campaign trail concerning mineral extraction on federal lands. His climate change platform provided for “banning new oil and gas permitting on public lands and waters,” implying an end to new rights-of-way and to new applications for permits to drill on existing leases.
Biden also told voters during a 2020 Democratic primary debate he supported “no more drilling on federal lands, no more drilling, including offshore,” while he also pledged to end new leasing of federal lands and waters.
Those pledges set the stage for one of Biden’s first executive actions as president: a “pause” on all new oil and gas leasing. Biden ordered all new leasing to be paused beginning Jan. 27, 2021, pending a comprehensive review of the program.
Industry groups and Republican-led states subsequently filed separate legal challenges against the leasing pause, and U.S. District Judge Terry Doughty, a nominee of former President Donald Trump, awarded the plaintiff states an initial victory in June 2021 by placing a preliminary injunction against the leasing pause.
Interior subsequently moved forward with procedural steps to hold Lease Sale 257 in the Gulf of Mexico, as well as the Western-state onshore lease sales challenged by WildEarth Guardians and the others, in compliance with the injunction.
Interior’s offering Lease Sale 257 sparked what became one of the biggest legal victories for environmentalists of Biden’s tenure. Groups challenged the lease sale in court, accusing the administration of stepping on Biden’s leasing pledges and violating NEPA.
Judge Rudolph Contreras, a nominee of former President Barack Obama, vacated the sale. The Bureau of Ocean Energy Management, a part of the Interior Department that oversees offshore leasing in the Outer Continental Shelf, “acted arbitrarily and capriciously” in excluding foreign consumption from the greenhouse gas emissions calculations put together during the environmental review of the sale.
The Biden administration has been selective in where it appeals leasing-related rulings. It appealed Doughty’s injunction stopping the leasing pause, a decision which the judge recently backed up in August with a permanent injunction. However, it declined to appeal Contreras’s ruling invalidating 257 alongside oil and gas interests, who asked the U.S. Court of Appeals for the District of Columbia Circuit to take a second look.
The selective appeals are one way the Biden administration has been able to align itself with green interests while simultaneously transgressing them by holding lease sales. At the same time, the administration has also been doing a form of penance for Trump-era leasing work, pledging to go back and revisit leasing decisions made during the previous administration.
Environmental plaintiffs finalized a settlement agreement in August with the BLM that will preclude the agency from selling new oil and gas leases on 2.2 million acres of federal land in southwestern Colorado, pending new environmental analysis for the covered areas.
The settlement stems from a lawsuit that Citizens for a Healthy Community, the Sierra Club, and a number of other groups filed in 2020 challenging the BLM’s analysis for leasing acreage under the jurisdiction of its Uncompahgre Field Office. The petitioners argued that the BLM failed to consider adequately how new leasing would contribute to climate change and affect species.
The BLM will have to develop an amended plan for the area to include at least one alternative that reduces oil and gas leasing, and the overall process is expected to take two years, according to the Sierra Club.
Taylor McKinnon of co-petitioner Center for Biological Diversity, in a statement at the time the settlement was announced, urged the Biden administration to end new leasing in the area and said, “Any fossil fuel expansion is flatly incompatible with avoiding climate catastrophes and preserving a livable world.”
Separate settlements finalized in June between the BLM and environmental plaintiffs similarly ensure the review of nearly 4 million acres across Colorado, Montana, New Mexico, Utah, and Wyoming that were leased between 2016 and 2021.
Nichols of WildEarth Guardians said how the BLM addresses deficient environmental reviews of past leasing is the “biggest test” for the bureau and the Biden administration writ large, more so than how they move to comply with new leasing stipulations provided in the Inflation Reduction Act.
“If they disappoint us, if they don’t do it right, then we know we’ll be right back in the courtroom, and we’ll be raring to go,” Nichols said, “but we want to give them a chance to do the right thing.”
Oil and gas industry groups have been broadly critical of environmentalists’ challenges to leasing. They’ve also rebuked the administration for supporting restrictions on leasing, for cutting down on available acreage (as the BLM did for the June onshore sales), and for declining to defend Lease Sale 257 in court.
“The ongoing litigation around the Department of Interior’s federal leasing program creates significant policy and legal uncertainty that jeopardizes the future of American energy leadership and discourages the long-term investments needed to produce on federal lands and waters,” said Cole Ramsey, the vice president of upstream policy at the American Petroleum Institute.
Erik Milito, who is the president of the National Ocean Industries Association, stressed that global oil demand “has no off switch” and talked up the sector’s environmental record, compared to global competitors.
“The attempt to shut down U.S. offshore oil and gas production is misguided, to say the least,” Milito said. “Closing the Gulf of Mexico would stall progress towards climate and emissions goals.”
The Democrats’ Inflation Reduction Act ordered the Interior Department to reinstate 257 and to carry out three offshore lease sales the agency canceled earlier this year. It also linked the development of federal lands for renewable energy to continued and regular leasing of lands for oil and gas.
Green groups, though, are putting pressure on the administration to exercise wide discretion to limit leasing going forward, especially now that U.S. District Court Judge Scott Skavdahl has upheld the administration’s postponement of lease sales pursuant to Biden’s “pause” order.
Tom Delehanty, an attorney for environmental law firm Earthjustice, said Skavdahl’s ruling affirms that Interior has broad discretion to lease or not to lease. It also makes clear that “Interior gets to decide” which federal lands are available for leasing.
“We certainly hope that moving forward, including with its implementation of the Inflation Reduction Act, the Biden administration won’t shy away from exercising its authority to limit oil and gas leasing in order to protect the climate in the environment,” Delehanty said.
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