Given that one Biden campaign promise was to ‘end fossil fuel,’ no one should be surprised to see sue-and-settle tactics quietly working toward that end.
'Sue-and-settle' tactics under the National Environmental Policy Act have allowed the Biden administration to essentially halt federal oil and gas leases.
P resident Joe Biden says he’ll “work like the devil” to lower energy prices. What’s devilish, however, isn’t his work ethic, but his duplicitousness. While trotting out sullen spokespeople to commiserate with Americans being squeezed, haranguing energy companies for profiteering, and coining terms like “the Putin price hike,” the Biden administration is acting at cross purposes by, among other things, putting a tacit kibosh on the federal oil-and-gas leasing program.
Though President Biden’s initial leasing “pause” was ruled out of step with the Mineral Leasing Act and Outer Continental Shelf Lands Act in 2021, the administration has refined its anti-leasing strategy, putting it on the right side of the law while maintaining the same effect, according to legal analysts. In May, the administration announced it would cancel scheduled lease sales off the Alaskan coast and in the Gulf of Mexico because of “conflicting court rulings” on environmental impact studies.
Deploying a tactic known as “sue-and-settle,” the Biden Interior Department has now found another means to its end. On June 1, Interior reached an agreement with an anti-energy pressure group to conduct additional, costly environmental analyses for 28 leasing decisions that Interior finalized between 2016 and 2020. While the May announcement canceled future sales, the June settlement will upend existing leases. The parcels now set for re-evaluation total more than 4 million acres and span the states of Colorado, Montana, New Mexico, Utah, and Wyoming.
Sue-and-settle is among the swampiest, if littlest known, practices in Washington. It begins, nominally, when a private party — in this case WildEarth Guardians — sues federal regulators for failing to uphold their duties. On its face, there is nothing objectionable, and, indeed, there is something noble, about a system in which groups of concerned citizens can sue big government.
The problem arises when, as is the case here, the plaintiff and the defendant share a goal that is contrary to America’s affordable energy interests and yet have the backing of the courts. Case precedent surrounding the National Environmental Policy Act (NEPA) grants the administration the latitude it needs to freeze leases. Though the environmental effects of any given lease will be de minimis, the NEPA’s scope is so broad that virtually any federal action pertaining to energy development can be slowed or stopped in the absence of genuinely adversarial proceedings.
The NEPA’s open-endedness has allowed the president’s Council on Environmental Quality (CEQ) to expand regulatory frontiers almost at will. The CEQ’s April 2022 final rule directs agencies like Interior’s Bureau of Land Management to take into account effects that are “caused by the action and occur at the same time and place,” “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable,” and “effects on the environment that result from the incremental effects of the action when added to the effects of other past, present, and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Given that what are deemed effects include “ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative,” it is difficult to deny that climate-warming gases related to fossil fuel development should be scrutinized. As Diane Katz of the Heritage Foundation wrote in 2018, “This overly broad mandate provides virtually endless opportunities for bureaucratic wrangling and legal challenge.”
While overregulation is a valid charge against numerous Biden agenda items, the oil-and-gas leasing dilemma arising from the NEPA is perhaps better described as underlegislation. The Congress, and the Congress alone, has the power to establish clear, enforceable, and lasting environmental guardrails. Instead, it has ceded environmental decision-making to the executive and subjected the American people to quadrennial turns of fortune as a result. A sensible framework on energy and the environment — regardless of how one defines that — should come from Capitol Hill.
The Biden administration is culpable, in part, for the economic stress high energy prices are causing Americans. The recent Interior settlement with WildEarth Guardians and the administration’s broader antipathy to oil and gas leasing are contributors. But it should be assumed that any administration will use the tools at its disposal to enact its priorities. Given that one Biden campaign promise was to “end fossil fuel,” no one should be surprised to see sue-and-settle tactics quietly working toward that end. Point the finger at the Biden administration for putting the oil-and-gas leasing program on ice, but remember that congressional dereliction is ultimately to blame.