The Casper Star-Tribune reported yesterday:
The Biden administration will redo the environmental review of more than 2,000 Wyoming oil and gas leases sold between 2015 and 2020 — including virtually all of the leases issued under former president Donald Trump — in accordance with a trio of settlement agreements approved Wednesday by a federal judge.
None of the leases have been vacated, but their future is uncertain. The Department of the Interior now has to reevaluate and retroactively justify more than two dozen lease sales. If it decides it can’t, or its reasoning doesn’t satisfy the court, the sales could be reversed and any existing permits revoked.
This from the administration that claims it is doing nothing to discourage domestic energy production.
It is true that there are many factors outside Biden’s control that are currently presenting challenges to the energy industry. But as I warned in my magazine piece from March, if Biden gets his way, the next energy crisis will be self-inflicted. Tying up drilling in litigation and regulation is a great example of what that looks like in practice.
Permits on federal land matter a lot for Wyoming because, as of 2018, the federal government owns 47 percent of the land in the sparsely populated state. High percentages of federal land ownership are common in Western states, with Nevada’s federal share at 80 percent, Utah at 63 percent, and Idaho at 62 percent. Some of that land is for national parks and military bases, but the vast majority of it is not. The Department of Defense has actually sold over half the land it held in 1990 and owns less than 2 percent of federal lands today, and the National Park Service owns only 13 percent.
Since the federal government is the landowner, it gets to decide how the land is used. Since the government is not a private entity, market considerations do not always take priority in deciding land use. Under federal environmental laws, pressure groups have lots of power to use litigation to block energy exploration and extraction on federal lands.
Here’s how that process played out in this case:
WildEarth Guardians and several other environmental groups filed three lawsuits against the interior department, in 2016, 2020 and 2021, challenging the climate analysis for a total of nearly 4 million acres leased for oil and gas development across Wyoming, Colorado, Montana, New Mexico and Utah.
Close to 2.5 million of those leased acres — more than 3,500 square miles — are located in Wyoming.
U.S. District Judge Rudolph Contreras ordered the department in 2019 to reassess some of the Wyoming leases. A year and a half later, he declared the agency’s second attempt inadequate.
Energy production at the speed of federal court proceedings is not exactly what the U.S. needs.
In the cases before Contreras, the environmental groups argued, successfully, that the National Environmental Policy Act (NEPA) requires the department to assess the “direct, indirect and cumulative effects” that new leasing would have on the environment and the climate. But the oil and gas industry thinks that’s an inaccurate interpretation of the landmark 1970 legislation, which doesn’t mention climate change.
Of course, it would be a bit strange for a law passed in 1970 to require analysis of climate change. Regardless, as Benjamin Zycher argued at length for Capital Matters last month, canceling or allowing leases would have a negligible effect on climate change, even using the government’s preferred measurements of climate impact. But activist judges are a fact of life, and on federal land you have to play by the federal government’s rules.
But that also means the federal government can change its own rules if it wants to. Congress could pass a better law. The president can make various changes in how existing laws are interpreted through executive action. The Biden administration is not a passive bystander in how federal lands are used. Or rather, if it is a passive bystander, it is so only by its own choosing.
Meanwhile, now that the settlement is finalized — surviving an attempt by the American Petroleum Institute to have the case dismissed over questions about jurisdiction — WildEarth Guardians sees this as the Biden administration’s chance to follow through on its climate commitments.
“I think, to the extent that they decide to uphold prior leasing decisions, they’re going to have their work cut out for them,” [WildEarth Guardians program director Jeremy] Nichols said. “They have a high bar, and we’re going to hold them to that high bar.”
Alternatively, it could be a chance for the Biden administration to stand up to the radical environmentalist movement and tell its members that they don’t get to hold back energy production for an entire country of 330 million people in a time when inflation is reducing their purchasing power and foreign dictators are wreaking havoc on global energy markets. But don’t hold your breath.