Chapter 6B The Federal Oil and Gas Program Under the Biden Administration: "Comprehensive Review" or the Same Old Song?

• Jurisdiction: United States

Chapter 6B The Federal Oil and Gas Program Under the Biden Administration: "Comprehensive Review" or the Same Old Song?
Melissa A. Hornbein Western Environmental Law Center Helena, MT

MELISSA HORNBEIN is a Senior Attorney with the Western Environmental Law Center, where her practice centers on climate and energy development issues on federal public lands. In particular, her docket involves issues relating to the Federal Government's planning, leasing, and approval of fossil-fuel development projects under the National Environmental Policy Act, Federal Land Policy and Management Act, and other environmental statutes. Her docket also includes state law constitutional climate litigation, utility regulatory proceedings, and federal fossil-fuel policy issues. Before joining WELC, Melissa worked in both state and federal government, first with the Montana Department of Natural Resources and Conservation and the Montana Reserved Water Rights Compact Commission, where she negotiated on behalf of the State to resolve federal and tribal reserved water rights claims, and later for the Department of Justice as an Assistant United States Attorney for the District of Montana. Melissa earned undergraduate degrees in Botany and Anthropology from the University of Washington. She developed her interest in climate change through post-graduate work as a botanist in Glacier National Park, and later pursued that interest through a Master's Degree in Environmental Studies from the University of Montana, and a J.D. from the University of California, Hastings College of the Law.

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On January 27, 2021, President Biden issued Executive Order 14008, acknowledging that "the United States and the world face a profound climate crisis" and recognizing "a narrow moment to pursue action at home and abroad in order to avoid the most catastrophic impacts of that crisis and to seize the opportunity that tackling climate change presents."¹ Section 208 of the Order explicitly addressed the federal oil and gas program, directing the Secretary to:

[P]ause new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior's broad stewardship responsibilities over the public lands and in offshore waters, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.²

A number consequences have followed the issuance of EO 14008 over the past fifteen months, resulting in a state of unprecedented uncertainty and confusion about Interior's intentions and legal obligations with regard to fluid mineral planning, leasing, and permitting. Those confounding events have included five legal challenges to the leasing "pause" in three jurisdictions, the release of the Bureau of Land Management's (BLM's) first-ever programmatic analysis of greenhouse gas emissions,³ and the late November release of the Department of Interior's long-awaited report summarizing the results of its "comprehensive review" undertaken pursuant to EO 14008.⁴

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This paper provides an overview of those events and highlights the pertinent legal questions to be answered in the coming months. The paper also critiques Interior's Report and makes a case that the Department possesses the statutory authority, as well as a practical and legal obligation, to conduct a truly comprehensive review of the federal oil and gas leasing program that incorporates a detailed analysis of climate change science, risk, and mitigation measures, to better serve and inform all stakeholders—including the government, industry and the public at large.

I. The Legal Landscape Before and After January 2021

Legal developments over the past decade have resulted in an evolving articulation of government agencies' responsibility to address climate change under the National Environmental Policy Act ("NEPA").⁵ In the context of the federal oil and gas program, many of the challenges to recent planning, leasing, and permitting decisions have centered on BLM's duty to adequately analyze the impacts of its resource management decisions on greenhouse gas emissions, and by extension climate change.⁶ The constantly accruing body of climate science has contributed to rapidly evolving legal theories and judicial precedent. BLM's analytical obligations under NEPA have likewise evolved considerably over the past decade, and continue to do so at what seems an ever-increasing pace. This section contains a brief outline of the statutory backdrop for the oil and gas program, a discussion of relevant caselaw that shaped BLM's planning, leasing, and permitting processes prior to January of 2021, and finally, a discussion of legal developments since the issuance of Executive Order 14008.

a. Statutory Background

i. The Mineral Leasing Act

The Mineral Leasing Act ("MLA"),⁷ as amended, vests the Secretary of the Interior with management and oversight of mineral development on public lands. The Act provides that "lease sales shall be held for each State where eligible lands are available at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary."⁸ The Secretary is responsible not only for the

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development of mineral resources, but also for "safeguarding of the public welfare."⁹ Within statutory bounds, the Secretary possesses the discretion to determine where, when, and under what terms and conditions mineral development may occur.¹⁰ The grant of rights in a federal mineral lease is subject to a number of reservations, including the ability to impose reasonable restrictions on the timing, place, and scale of development after a lease has been issued.¹¹ Recent litigation¹² has centered on the Secretary's—and by delegation the BLM's—discretion over the timing and extent of sales under § 226(b)(1)(A) and the meaning of "public welfare" under § 187, and these are likely to be recurring issues in future cases.

ii. The National Environmental Policy Act

In 1970, NEPA was enacted "to help public officials make decisions that are based on [an] understanding of environmental consequences, and take actions that protect, restore, and enhance the environment."¹³ "The policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies."¹⁴ Agencies must comply with NEPA before making "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."¹⁵ Recognizing that "each person should enjoy a healthful environment," NEPA ensures that the federal government uses all practicable means to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings," and to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," among other policies.¹⁶

To accomplish its stated purpose, NEPA requires that federal agencies prepare a "detailed statement" regarding all "major federal actions significantly affecting the quality of the human environment."¹⁷ This environmental impact statement must, among other things, describe the "environmental impact of the proposed action," and evaluate "alternatives to the proposal."¹⁸ An agency's duty to consider "alternatives to the proposed action" is the "heart" of the NEPA process.¹⁹ The EIS must rigorously

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explore and objectively evaluate all reasonable alternatives, analyze all direct, indirect, and cumulative environmental effects, and include a discussion of the means to mitigate adverse environmental impacts.²⁰

Direct effects include those that "are caused by the action and occur at the same time and place."²¹ Indirect effects include effects that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."²² Cumulative effects are "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions."²³

iii. The Federal Land Policy and Management Act

The Federal Land Policy and Management Act ("FLPMA"), provides that public lands be managed "on the basis of multiple use and sustained yield."²⁴ "Multiple use" means:

[A] combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.²⁵

The non-impairment requirement within the multiple use definition is unique among statutes allowing for multiple use of resources and reflects FLPMA's underlying Congressional declaration of policy, which requires that:

[T]he public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will

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provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.²⁶

The term "sustained yield" means the achievement and maintenance in perpetuity of a...