Court Ruling on President Biden’s Illegal Ban on Oil & Gas Leasing: A Quick Review
It’s been two weeks since a federal judge ruled that the Biden administration’s ban on oil and natural gas leasing on federal lands (or “pause” as the White House describes it) is illegal, but the Interior Department has still not indicated when leasing will resume.
Now the pressure is building for the department to give some answers. During a House Natural Resources Committee hearing last week, Rep. Garret Graves (R-La.) pressed Interior Secretary Deb Haaland on the timeline for restarting leases. The Hill reported:
“‘Has anything changed within the department from when that judge issued a decision today?’ asked Rep. Garret Graves (R-La.), specifically asking if the department had moved forward with a certain lease sale or published a Federal Register notice on it.
“‘We’re reviewing the judge’s decision,’ Haaland said, adding that the department hadn’t published any notices in the Federal Register.
“‘It’s 44 pages,’ Graves replied. ‘You have a whole legal team. You have a solicitor’s office. You have some very talented people, and it’s 44 pages. … I’m just trying to understand how things have changed.’”
Graves stated the obvious: The court ruling is only 44 pages, so how difficult can it be to read through it? The answer is it’s not.
Energy In Depth reviewed the court ruling from Judge Terry A. Doughty, with the key passages that make it clear that every day the leasing ban is in place is a violation of the law.
In the opening section, Doughty states that the plaintiffs – 13 states led by Louisiana Attorney General Jeff Landry – have made a solid case that the ruling violates the Outer Continental Shelf Leasing Act:
“Similarly, since OCSLA does not grant specific authority to a President to ‘Pause’ offshore oil and gas leases, the power to ‘Pause’ lies solely with Congress. Therefore, Plaintiff States have made a showing that there is a substantial likelihood that President Biden exceeded his powers in Section 208 of Executive Order 14008.” (emphasis added)
Doughty then stated that the plaintiffs have successfully traced the administration’s ban to economic damages in their state:
“The Declaration of Jerome Zeringue, the Declaration of Professor Timothy Considine, and the Declaration of Professor Davie E. Dismukes are sufficient to establish the Pause at issue would result in damages including, funding for the Coastal Master Plan (which funds Louisiana’s coastal restoration and recovery), reduction in State revenues, damages to the economy, loss of jobs, higher oil and gas prices, and reduction in the energy export economy. Therefore, Plaintiff States can prove traceability.” (emphasis added)
Further down, Doughty said the federal government’s argument that losses aren’t occurring now is inaccurate:
“Government Defendants argue that there has been no pause in drilling and permits for ‘existing’ leases because drilling in federal lands is still proceeding at approximately the same rate as the prior four years, and therefore, a favorable ruling for Plaintiff States will not redress their alleged injuries. However, these declarations only address ‘existing leases,’ not ‘new leases.’ Just the cancellation of Lease Sale 257 itself has had immediate impact due to loss of bonus payments and ground rents. Additionally, a Pause for any significant length of time would allegedly result in other losses.” (emphasis added)
The federal government’s argument that the ban isn’t having real world impacts was also rejected:
“Government Defendants argue the challenged decisions are merely interim postponements of lease sales, not decisions to forego the sales entirely for the proposition that interim postponements are not ‘final agency action.’”
“…There is no real question that Plaintiff States have met the second prong of the Bennett test, because the Pause and/or Lease cancellations are actions from which legal consequences will flow. The only real question is whether the Pause and/or lease cancellations mark the consummation of the decision-making process.
Doughty also said that while environmental reviews are justified, the administration can’t break the law by stopping leasing while the review happens:
“The agencies could cancel or suspend a lease sale due to problems with that specific lease, but not as to eligible lands for no reason other than to do a comprehensive review pursuant to Executive Order 14008. Although there is certainly nothing wrong with performing a comprehensive review, there is a problem in ignoring acts of Congress while the review is being completed.” (emphasis added)
Therefore, Doughty ruled that the administration violated two key laws that require the Interior Department to hold lease sales:
“The Pause is in violation of both OCSLA and of [the Mineral Leasing Act]. As previously discussed, both statutes require the Agency Defendants to sell oil and gas leases. OCSLA has a Five-Year Plan in effect, in which requires eligible leases to be sold. As noted in the previously discussed opinions of the Office of the Solicitor, the Agency Defendants have no authority to make significant revisions in OCSLA Five-Year Plan without going through the procedure mandated by Congress. MLA requires the DOI to hold lease sales, where eligible lands are available at lease quarterly. By pausing the leasing, the agencies are in effect amending two Congressional statutes, OCSLA and MLA, which they do not have the authority to do. Neither OCSLA nor MLA gives the Agency Defendants authority to pause lease sales. Those statutes require that they continue to sell eligible oil and gas leases in accordance with the statutes.” (emphasis added)
Finally, Doughty states in plain English that his ruling includes an injunction against the ban:
“The Plaintiff States have satisfied all four elements required for a preliminary injunction to be issued. After considering all factors, this Court has determined that a preliminary injunction should be issued by Plaintiff States against the Government Defendants.” (emphasis added)
The court order is clear that the ban is illegal, and leasing must resume, and yet the Interior Department has spent weeks “reviewing” it, while remaining silent on when leasing will occur and what parcels will be up for sale.
The question now is, how much longer will the Biden administration insist on maintaining an illegal leasing ban?