In recent months we have seen a lot of litigation over fossil fuel production and climate change at the national level, (see comment), lease availability stage (resource management plans, see MT/WY), leasing stage (see North Dakota Resource Council) and drilling stage (see NM/WY permit case) (and then there’s the pipeline cases). This does suggest there might be some efficiency to be gained by rethinking their planning/NEPA process for oil and gas, but that may be pointless given the political polarization of this issue. Anyway, here is the latest installment.
Court decision in Citizens for Clean Energy v. USDI (D. Mont.)
On August 12, the United States District Court for the District of Montana ordered the Interior Department to pause the issuing of new coal leases pending compliance with NEPA requirements to consider climate effects. The order reinstates a 2016 freeze on new federal coal lease sales, which the Trump Administration lifted two months after taking office. The court found that a Bureau of Land Management environmental assessment of that order was insufficient. A more comprehensive environmental review of the revocation of the coal leasing moratorium must be completed before the BLM can start coal leasing again. There is a link to the opinion in the press release above, and here is a news article.
Court decision in Louisiana v. Biden (5th Cir.)
On August 17, the U.S. Court of Appeals for the 5th Circuit vacated a district-court injunction decision from last year that could have forced the Biden Administration to proceed with auction of oil and gas drilling rights in federal lands and offshore. The case was remanded to the district court because the court’s order did not “state its terms specifically and describe in reasonable detail the conduct restrained or required.” (The article includes a link to the opinion.)
The appeals court gives the Biden administration a potential path to pause leasing again. However, the recently passed Inflation Reduction Act mandates new oil and gas sales off the coast of Alaska and in the Gulf of Mexico and also tethers the construction of wind and solar facilities to ongoing oil and gas auctions.
Court decision in Western Energy Alliance v. Biden (D. Wyoming)
In another attempt to force the government to drill, on September 2, a judge in the federal district court for Wyoming held that the Department of the Interior legally delayed a federal oil and gas lease sale because, “…postponing the first quarter 2021 lease sales was done to ensure NEPA (National Environmental Policy Act) compliance with several then-recent federal court opinions that negated previously authorized oil and gas lease sales.” The court also rejected challenges to the program-wide “pause” authorized by executive orders (the same issue as in the 5th Circuit appeal above).
“The court reaffirmed that BLM has broad leeway to postpone lease sales in order to make sure that it considers the environmental impacts of leasing,” said Michael Freeman, a senior attorney at Earthjustice’s Rocky Mountain office. According the Western Energy Alliance, the ruling “essentially gives the government a get-out-of-jail-free card when it comes to the environmental analysis required for any lease sales,” adding that if Interior Department says it’s not done, “it doesn’t have to hold sales.” “If the agency never makes the decision, then we have no recourse,” said Ryan McConnaughey, vice president of the Petroleum Association of Wyoming. (These quotes are from this article.)
Plaintiffs don’t interpret it that way, but it is hard to make the government do something, especially if it argues it is required by law to do other things first. (Regarding the idea of mandating leases, it’s also hard to get out of meeting NEPA requirements, even if there is a deadline.)
On September 6, the Bureau of Land Management settled a lawsuit in the Montana federal district court involving previously sold oil and gas leases in Montana and North Dakota which will require it to evaluate potential effects on climate, which is similar to recent agreements for other leases elsewhere. The agency agreed not to approve any more drilling applications on the affected lands until that new leasing decision is made. The agreements don’t include deadlines for new environmental reviews, and they don’t cancel any leases.
2 thoughts on “Fossil Fuels Litigation on Public Lands”
This post from June provides more background on the lawsuits against leases beginning in 2016:
In between was this settlement on August 11 for the BLM’s Umcompahgre District in southwest Colorado. It will prevent new oil and gas leasing until the agency supplements its environmental analysis and releases an amended plan for lands in the area. The agreement requires the Bureau to analyze potential harms to the climate from fossil fuel extraction in the Uncompahgre Field Office planning area and to evaluate at least one alternative that reduces oil and gas leasing. This revision process for the Uncompahgre resource management plan is expected to take two years. https://westernlaw.org/legal-agreement-blocks-oil-gas-leasing-on-2-2-million-acres-in-colorado/