Executive authority to keep it in the ground: an administrative end to oil and gas leasing on federal land.

Author:Delehanty, Thomas R.
 
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  1. INTRODUCTION II. BACKGROUND A. The Mineral Leasing Act (MLA) B. The Federal Land and Policy Management Act (FLPMA) 1. History 2. Resource Management Plans 3. Withdrawals 4. Exclusions III. No New Leases: discretionary Authority under the MLA A. Discretion over individual leases B. Aggregated decisions could constitute challengeable policy 1. The MLA's Overarching Purpose 2. De facto Withdrawals and FLPMA IV. MAKE LAND UNAVAILABLE: PLANNING AND WITHDRAWALS A. Land Planning and RMPs B. Withdrawals 1. Authority to Withdraw 2. Procedural Hurdles 3. Duty to Promote Mineral Development V. ADMINISTRATIVE POLICY-MAKING AND THE ROADLESS RULE A. Roadless Rule Background B. Legal Issues 1. Range of Alternatives Required 2. Site-specific Analysis a. Cumulative impacts analysis under NEPA b. De facto wilderness c. Multiple Use C. Roadless Rule summary VI. CONCLUSION I.

INTRODUCTION

Atmospheric carbon dioxide holds primary responsibility for our planet's ongoing warming, yet the United States keeps the tap open on an immense source of carbon emissions: fossil fuels extracted from federal land. Federal law permits private industry to lease access to the federal mineral estate and extract carbon-rich fossil fuels, transforming benign underground carbon stores into drivers of global climate change. Between 2003 and 2014, approximately a quarter of the United States' fossil fuel greenhouse gas emissions were attributable to federal fossil fuel production. (1) Vast stores of federally owned fossil fuels remain undeveloped. A recent report found that between 349 and 492 gigatons of potential carbon dioxide emissions are contained within the federal fossil fuel estate, which represents 46 to 50 percent of all remaining fossil fuels in the United States. (2) This means "about half of all remaining U.S. potential greenhouse gas emissions from fossil fuels--450 billion tons--are federally controlled and publicly owned and have not yet been leased to private industry." (3)

Recognizing that extracting and burning fossil fuels is incompatible with meaningful carbon emission quotas, (4) several environmental organizations have rallied behind the "Keep It in the Ground" campaign, which seeks to "keep our publicly owned fossil fuels in the ground [and] out of the atmosphere." (5) Congress has been remarkably reticent to pass climate change legislation, (6) so these organizations have understandably focused on the executive branch as the avenue for stopping the flow of carbon into the atmosphere. President Obama responded. In January of 2016, Interior Secretary Sally Jewell, acting under President Obama's direction, issued Secretarial Order No. 3338, which imposed a temporary moratorium on coal development so that the Department of the Interior (also referred to as the Interior Department) could conduct a discretionary Programmatic Environmental Impact Statement and "[m]odernize" the federal coal program. (7)

Organizations affiliated with the Keep It in the Ground campaign have called for further action. In July of 2016, the Center for Biological Diversity, on behalf of itself and 264 other organizations, submitted a petition to the Interior Department calling for a moratorium on the new leasing of all fossil fuels underlying federal onshore land. (8) The petition points to international carbon reduction goals created at the 2015 United Nations Framework Convention on Climate Change Conference of the Parties in Paris, France and requests that the Secretary of the Interior issue an order "imposing an immediate moratorium on the new leasing of all federal public land fossil fuels." (9) In its petition to the Interior Department, and in an earlier report, (10) the Center argues that the executive branch has authority to "immediately stop new federal fossil fuel leasing in the United States," which would keep the immense remaining reserve of federal fossil fuels in the ground. (11)

This article evaluates the Center's claim: Does the executive branch, acting administratively through the Interior Department, have authority to end oil and gas leasing on federal land, without any action by Congress? I conclude that it does.

The question centers on the Secretary of the Interior's authority and discretion under the Mineral Leasing Act (MLA), (12) and under the Federal Land Policy and Management Act (FLPMA). (13) I address three major actions the Department of the Interior could carry out under these statutes. First, the Secretary of the Interior can simply cease issuing leases, even in areas technically open to leasing, without any formalized changes to broader planning policies. Second, the Bureau of Land Management (BLM), which the Interior Department controls, can alter its land management plans to exclude oil and gas activity. Finally, the Secretary can formally withdraw federal land from generally applicable land use laws, including those authorizing oil and gas leasing.

The Interior Department has well-established legal discretion and authority to make use of each of these actions on an individual basis, but the outer limits of this authority have not been fully tested. This article supports the Secretary's ability to exercise his authority broadly, for all federal onshore land, including some form of administratively created national policy similar to the Forest Service's 2001 Roadless Rule. (14) I find that existing legislation allows, but does not require, mineral development; there are essentially no substantive legal limitations on the Secretary's power to stop leasing land for fossil fuel extraction. Thus, as long as appropriate procedure were followed--including what would be undoubtedly complex National Environmental Policy Act (NEPA) analyses--the Secretary of the Interior could leverage existing law to initiate a national policy keeping federal oil and gas in the ground, as the Center for Biological Diversity and others have formally requested.

Part I of this article provides a background of the laws guiding the current leasing process. In Part II, I examine the Secretary's discretion not to issue oil and gas leases under the MLA and show that a wholesale cessation of issuing leases does not violate the law. Part III discusses the BLM's authority and discretion to make land unavailable for leasing through land use planning, and I show that extensive discretion allows BLM to exclude oil and gas development from its land plans. Part III also considers formal land withdrawals under FLPMA Section 204, and I demonstrate that nothing more than process limits the Secretary's authority to withdraw land, including the Interior Department's mineral estate that lies under Forest Service-managed land, from generally applicable oil and gas laws. Finally, Part IV illustrates how a national administrative land use policy can be executed and defended against legal challenges by comparing a hypothetical formalized executive policy of ending oil and gas leasing to the well-known Roadless Rule.

II.

BACKGROUND

An interconnected set of laws directs federal mineral disposal. These laws can be broken down into two broad categories. First, disposal statutes authorize federal minerals to be sold to or appropriated by private parties. Second, land planning statutes dictate what kind of activity is allowed on a given tract of federal land, meaning the disposal statutes operate only where planning decisions allow. This article focuses on the major statutes in each category relevant to onshore oil and gas leasing. First, the Mineral Leasing Act (MLA), (15) as substantially amended by the Federal Onshore Oil and Gas Leasing Reform Act (FOOGLRA), (16) authorizes the Department of the Interior to dispose of federally owned minerals, including oil and gas. The MLA and FOOGLRA enable mineral extraction on federal land by authorizing the Interior Department to lease the right to explore for and extract valuable minerals in exchange for royalties paid to the federal government. The Federal Land Policy Management Act (FLPMA) (17) provides the overarching management regime for the BLM, the agency that administers all onshore oil and gas leasing. (18) Thus, broadly speaking, the Department of the Interior exercises its planning responsibilities under FLPMA to dictate which public lands are "available" for leasing, and it exercises discretionary authority under the MLA to issue oil and gas leases on the land that FLPMA makes available. Importantly, the Interior Department administers the federal mineral estate regardless of surface ownership or management, meaning the Interior Department is responsible for issuing oil and gas leases even on land it does not directly manage. This includes land managed by the Forest Service, an agency within the Department of Agriculture. (19)

This Part briefly describes how and why the MLA and FLPMA came into their current forms and lays out the existing land management and leasing processes relevant to oil and gas development on federal onshore land.

  1. The Mineral Leasing Act (MLA)

    Congress enacted the MLA in 1920 to facilitate the development of valuable, federally owned minerals through a leasing process administered by the Interior Department. (20) The MLA grants to the Secretary of the Interior general authority to lease public domain land (21) for mineral development and authorizes the Secretary to promulgate necessary regulations. (22) Leases granted under the MLA are issued with a statutorily mandated minimum rent for the land and minimum royalty for the produced minerals. (23) Leases are issued for a set term, (24) but they continue indefinitely after the term as long as oil or gas is produced in "paying quantities." (25) The MLA is the exclusive authority governing disposal of the minerals it enumerates. (26)

    Originally, the MLA distinguished between land with a "known geologic structure" (KGS) (27) of a producing oil or gas field and land without a KGS. (28) Most land was leased noncompetitively under a...

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