Interior's Authority to Curb Fossil Fuel Leasing

• Date: 01 July 2019

7-2019 NEWS & ANALYSIS 49 ELR 10631

COMMENT

Interior’s Authority to Curb

Fossil Fuel Leasing

by John D. Leshy

John D. Leshy is Emeritus Professor at the University of California, Hastings College of the Law,

and was Solicitor of the U.S. Department of the Interior from 1993 to 2001.

In his recent statements and testimony before the U.S.

Congress, Secretar y of the Interior David Bernhardt

has expressed doubt he has the legal authority to limit

his unrelenting campaign to lease fossil fuels on America’s

public lands. He has supplemented this by oering a rather

bizarre argument that he ha s no such obligation because

carbon emissions are being curbed more in the United

States than in many other countries.1 e U.S. Depart-

ment of the Interior (DOI) reported not long ago that these

emissions account for about one-quarter of total U.S. car-

bon emissions.2

As I discuss in t his Comment, Bernhardt’s position seri-

ously misreads t he applicable law.3

I. Coal Leasing

e Mineral Leasing Act4 of 1920 (as rened by the

Coal Leasing Amendments of 1978) is crystal clear on

this matter. It authorizes, but does not require, the Sec-

retary to oer coal deposits on public lands for leasing

“in his discretion.”5

1. See, e.g., Chris D’Angelo, Interior Chief Blames Congress for His Inaction

on Climate Change, HP, May 7, 2019, at https://www.hupost.

com/entry/david-bernhardt-interior-secretary-climate-change-extinction_

n_5cd1f3c9e4b0a7dcce0468; Juliet Eilperin, Facing Democratic Resis-

tance, Interior Secretary Promotes Oil and Gas Drilling, W. P, May

10, 2019, at https://www.washingtonpost.com/national/health-science/

facing-democratic-resistance-interior-secretary-promotes-oil-and-gas-

drilling/2019/05/09/a9198b0e-7296-11e9-8be0-ca575670e91c_story.

html?utm_term=.af1baa32444e; Cecelia Smith-Schoenwalder, Interior Sec-

retary Unconcerned Over Rising Carbon Dioxide Levels, U.S. N  W

R, May 15, 2019, at https://www.usnews.com/news/national-news/

articles/2019-05-15/interior-head-david-bernhardt-hasnt-lost-any-sleep-

over-rising-carbon-dioxide-levels.

2. Adam Aton, Fossil Fuel Extraction on Public Lands Produces One Quarter of

U.S. Emissions, S. A., Nov. 27, 2018, at https://www.scienticamerican.

com/article/fossil-fuel-extraction-on-public-lands-produces-one-quarter-

of-u-s-emissions/?redirect=1.

3. See also John D. Leshy, Secretary Bernhardt Says He Doesn’t Have a Duty

to Fight Climate Change. He’s Wrong., V E’ (June 19, 2019),

https://www.eli.org/vibrant-environment-blog/secretary-bernhardt-says-he-

doesnt-have-duty-ght-climate-change-hes-wrong.

4. 30 U.S.C. §§181 et seq.

5. Id. §201(a).

In 2016, the Barack Obama Administration insti-

tuted a near-total moratorium on new coal leasing while

it studied the program’s impact on climate change, among

other things. is was not challenged in court. e Don-

ald Trump Administration lifted t he moratorium, and a

court recently ruled that t he Administration could not

resume leasing without rst studying t he eects under the

National Environmental Policy Act (NEPA).6

II. Oil and Gas Leasing

e law applicable to oil and gas is almost as clea r but takes

a little more explaining. e same Minera l Leasing Act pro-

vides that public lands “may” be leased by the Secretary.7

With some limitations, it goes on to provide that “[l]ease

sales shall be held for each State where eligible lands are

available at least quarterly and more frequently if the Sec-

retary of the Interior determines such sales are necessary.”8

is language was added by the Federal Onshore Oil and

Gas Leasing Reform Act of 1987.9 e statement that lease

sales “shall” be held applies only where there are lands “eli-

gible” for leasing.

Existing law has long given the Secretary of the Inte-

rior three distinct ways to declare public lands “ineligi-

ble” for leasing. Nothing in the legislative history of the

1987 Act indicates that Congress intended to change the

prior pract ice.

A. Exercise Executive Discretion Not to Lease

e rst method is to do what the Obama Administra-

tion did with respect to coal, and simply to announce that

it will not entertain furt her oil and gas leasing pending

further study of its eects on climate change. is is sup-

6. Citizens for Clean Energy v. Department of the Interior, No. CV-17-30-

GF-BMM, 49 ELR 20066 (D. Mont., Apr. 18, 2019); 42 U.S.C. §§4321-

4370(h), ELR S. NEPA §§2-209.

7. 30 U.S.C. §226(a).

8. 30 U.S.C. §226(b)(1).

9. H.R. 2851, 100th Cong.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.