Biden Administration

Court Blocks Biden Administration "Pause" of Oil & Gas Development on Federal Lands

The Biden Administration suffers a significant setback in its efforts to curb fossil fuel development.

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A federal judge in Louisiana issued a preliminary injunction today against the Biden Administration's "pause" on new oil and gas leasing on federal lands and in offshore waters.  The court's opinion concluded that the adoption of such a "pause" is likely unlawful, at least in the quick manner used. This is the first major legal setback for the Biden Administration's efforts to curtail fossil fuel development and reduce greenhouse gas emissions. And unless Congress enacts supportive legislation, it will not be the last.

On January 27, President Biden issued an Executive Order on Tackling the Climate Crisis at Home and Abroad directing federal agencies to take measures to reduce greenhouse gas emissions. Among other things, this EO directed the Interior Secretary to pause new oil and gas development on federal lands pending a broader review of federal oil and gas leasing. In March, several states sued to challenge this "pause" on leasing, claiming the Biden Administration failed to comply with the Administrative Procedure Act.

One question in the case was whether there was a "pause" at all. Although the Interior Department has not taken any express action to implement this order, the court found that "no new oil and gas leases on federal lands have taken place" since Biden's January E.O., and multiple planned lease sales have been postponed. On this basis, the court concluded that the Biden Administration has, in fact, paused new oil and gas leasing.

On the legal merits, the court concluded that the Biden Administration acted contrary to the applicable federal statutes, and failed to comply with the APA. From the court's opinion:

The Pause is in violation of both OCSLA [Outer Continental Shelf Lands Act]  and of MLA [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. Therefore, the Plaintiff States have a substantial likelihood of success on the merits of this claim. . . .

On the question of APA compliance, the court added:

Neither Executive Order 14008, nor the cancellation of sale of Lease Sale 257, offers any explanation for the Pause (other than to perform a comprehensive review). It also gives no explanation for the postponement of Lease Sale 257, other than reliance on Executive Order 14008. A command in an Executive Order does not exempt an agency from the APA's reasoned decisionmaking requirement. . . .  A decision supported by no reasoning whatsoever in the record cannot be saved merely because it involves an Executive Order. . . .

The court further concluded that the "pause" was not a mere policy statement, but rather a rule subject to the APA's notice-and-comment requirements and that the Interior Department had unlawfully withheld some lease sales in violation of applicable law.

This decision underscores the difficulty of trying to reorient federal environmental policy without congressional cooperation. Agency rulemaking takes time and effort. As Donald Trump discovered early and often in his administration, federal regulatory agencies cannot turn on a dime just because the President says so. Agencies remain bound by legislative mandates and their own preexisting regulations, unless and until such requirements are changed–and changing agency policy can be a laborious, time and resource intensive process–and one that can be checked in the federal courts.

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  1. The victories in the DACA and census administrative-law cases come home to roost.

    1. Which they were warned of at the time. Expect every new cool roadblock they invented to be turned about face.

      I wish I could find that column by a left commentator whining that the right is, gasp, turning our best tricks against us. Us!

  2. The Biden Administration suffers a significant setback in its efforts to curb fossil fuel development domestic economic growth.

    1. Well to be fair, reopening the economy and spending 2 trillion on infrastructure is unlikely to need any energy resources other than for electric vehicles delivering bags of cash.

      1. I’m sure the Biden Administration will approve a pipeline to Russia…

        1. More likely a high-speed rail line to Russia.

        2. They shortly later approved the pipeline from Russia to Germany, though how they had a finger in it I don’t know.

          “Hey, Europe. I know this is vital to your energy needs, but I am denying it because my domestic US support doesn’t like pipelines because it encourages burning fossil fuels. So suffer happy in the knowledge you are aiding in me and my buds in office, for fantastic book deals and other mysterious increases to our wealth, and our children’s as they lie they will give access to us.”

      2. Except to be fair, very little actual infrastructure would be built with all that money being spent. Very little would be spent on roads, but almost a $Billion on the slow Bullet Train to Nowhere. It’s Christmas tree legislation designed to let Dem (and Dem alone) politicians shovel hundreds of $Billions (the graft after actually building stuff with the rest) to their families and cronies.

        And, yes, it will probably help crash the economy. That is because money would be diverted from constructive uses to lining the pockets of those Dem politicians, families, and cronies. Very little useful infrastructure would be built. Just a lot of money would be spent.

  3. “Agency rulemaking takes time and effort”

    It would help without the social corrosion of mainstream media and social networking.

    But! Libertarians hate waiting. So I guess Joe Biden might do…

    1. After a lifetime in the Senate and 8+ years in the Whitehouse, Biden knows this and his experienced team knows this. So why attempt to stop the leases in a manner that would eventually get blocked by a court?

      1) it signals the Administration’s intention to stymie new leases and alters future plans for development of new leases, at least in the next 4-5 years. The market will respond to this in ways Biden may find agreeable.
      2) it signals his intention to keep a promise to part of his base.
      3) it gives him some legal cover if the leases continue, even if at a diminished rate, while this works its way through Congress.

      With Trump, the assumption should be he thought he could declare something and it would happen. With Biden, the assumption should be the oppposite.

      1. Given Biden’s legal credentials (top 90% at a TTT law school), I am skeptical that he personally understood the legal issues. And given who usually staffs a new administration (eager young politicos with poli sci degrees and very little experience), I’m not sure that any informed thought went into this order.

  4. Sauce for the goose

  5. Even if they could be forced to grant leases, they can easily arrange to grant them to shell companies owned by greenie groups, that won’t do anything with them.

    1. Not unless those “greenie groups” outbid everyone else, presumably.

      1. They can be subsidised by the government. Money goes in a loop, nothing happens.

        1. Come to think of it, the subsidy can be a bit bigger than the bid, so as to ensure that a little bit extra sloshes into the right pockets.

          1. Which Congressional budget authorization covers such subsidies?

            1. Greenie group sues federal government over something. Federal government agrees to settle for a sum of money. Money comes from the bottomless appropriation for settling government debts.

              1. I suppose you might try that if you wanted to make sure Republicans had a crystal clear example of sue-and-settle corruption for the next decade.

  6. I’m fascinated that these statutes require the government to sell oil and gas leases. Am I crazy or is that a bit of an unusual arrangement?

    1. My question is what is the remedy if the government just can’t find the time to get it done?

      1. Exactly. it’s a hopeless case.

      2. That is pretty much exactly why bureaucracies are created and funded: To ensure the government has resources to do what it intends to do.

        If they fritter their allocations away on things they’re not supposed to be doing, we have federal (or state, as the case may be) laws that can send them to prison for misspending “public” funds.

        1. When was a federal official last sent to prison for misspending public funds ?

          (Misspending other than spending it on champagne and dancing girls.)

        2. Misspent funds are not the same thing as un-spent funds.

          Misspent funds would be things like diverting military budget to build a wall on the southern border. Unpent funds stay in the bank.

          Who went to prison for diverting military budget to the southern border? No one. When was Trump forced to return the diverted funds? Never; Biden did that after taking office.

    2. Congress is the government; they could just declare such a sale was happening. Going through an agency to do that in a more deliberate fashion that doesn’t seem too strange to me.

      1. I don’t think anybody questions that Congress has power to change the law any way it wants. It could prohibit these leases, impose its own freeze, or give the administration greater discretion.

        But in the meanwhile, courts and administrative agencies have to deal with the law as it is.

        1. Presumably there are things Congress can do that the President can’t veto. Which of those can anyone think of which would cause the lease sales to happen?

    3. Not really an unusual arrangement: Congress wants the oil and gas actually produced, not kept locked up in perpetuity, but didn’t want to handle the details.

      1. Leaving to one side what that approach does to the government’s bargaining position, there are lots of things that Congress is fundamentally in favour of, but that it nonetheless authorises rather than mandates. Hence my surprise.

  7. According to the Bureau of Ocean Energy Management website:

    “The Act empowers the Secretary to grant leases to the highest qualified responsible bidder on the basis of sealed competitive bids and to formulate regulations as necessary to carry out the provisions of the Act.”

    That doesn’t say the agency is REQUIRED to sell the leases just that it’s authorized.

    (And yes, maybe there’s another section that requires the sale.)

    1. Yeah, I looked up “the Act”. (Don’tcha hate scanned pdfs? I think agencies use them just to make searching difficult.)

      Lots of clauses saying, “the Secretary shall [My emphasis.] offer the [area differs from clause to clause] for oil and gas leasing pursuant to the Outer Continental Shelf Lands Act … as soon as practicable…”

      So, yes, the agency actually IS required to sell the leases, the law is quite clear that it isn’t just given permission, but instead a mandate.

  8. Prosecutorial discretion?

    Chevron deference?

    Let me know if any these work for you.

    1. Chevron deference is earned by reasoned decisions of the agency, not abrupt changes in policy.

  9. Cue the Democrat’s charges of MAGA judges making law out of nothing.

    1. I’m a Dem, and this looks like a fine opinion to me under the APA, though I don’t know the other statute at issue at all, so it might be wrong there.

      I think there’s some wiggle room in arguing it’s just deprioritizing a timeline wherein the Admin has discretion, but that’s hardly a slam dunk.

      In general, I don’t mind a bit of consistency in the administration of laws, until you get your ducks in a row to change stuff. As was said above, sauce for the goose…

      1. If you actually are a democrat, then you must view this disaster as an insurrection of judges trying to take over the executive branch.

        1. LOL, I *must*.

          Just because you’re a tool for the right doesn’t mean I’m the same for the left.

        2. He must, or else your strawman will die and you’ll avenge its death?

  10. I think the pendulum of federal government authority and regulation have swung too far to the authoritarian/totalitarian end. What right does the government have to regulate how we (the people) derive energy from the available resources? The entire catastrophic anthropogenic global warming crisis is a narrative built on the flimsiest pseudo-science and scientific fraud. Even after the basic mechanism that’s been asserted as driving this has been disproven, the AGW “industry” pivots, changes data, marches on. And under this auspices they will destroy the energy and transportation infra and industries that have lifted more people out of poverty and enhanced more people’s standard of living than any other phenomenon in human history. Why? To line their pockets.

    I say it’s time to get government out of our energy business.

    (I have similar thoughts about our general economy and monetary system, too.)

    1. Cool. So you’re okay with a) ending all energy subsidies, of which the fossil fuel industry gets the lion’s share, and b) okay with the government denying access to government lands to private companies for energy extraction?

      1. The problem here is those “government lands” existing in the first place. Essentially all the land in the US that wasn’t military bases was supposed to be private and state land, and that generally is the case on the Eastern side of the US.

        Then at some point the US government got land greedy, and stopped handing over all the land when states entered the US. Reaching the point where Nevada, for instance, is 85% federal land. Looks like a big state on the map, but it’s really a small state with a lot of huge holes in it.

        The only reason this is an issue is all that federal land that shouldn’t be owned by the federal government in the first place.

      2. a) generally, yes, but that may take time, as the economy is structured around these. This is not just in energy, but in food, transportation, etc. Subsidies can be useful when they promote the general good. Not so much when they tilt at windmills and try to create fantasy worlds, like a U.S. running on so-called ‘green, clean’ energy. I guess subsidies shouldn’t be entirely speculative in nature.

        b) so-called government land is OUR land, the people’s land. I can see some minor, minimal regulation, but denying access because of some political or philosophical reason, or because of some nonsensical pseudo-science is not right.

  11. A setback for efforts to keep Americans out of high-paying jobs. They’ll have to work a little harder to enrich Iran and Russia at the expense of working Americans. They’ll get it done though.

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