Millions of Acres of Existing Federal Oil and Gas Leases Are Being Reviewed For Their Impact on Climate Change
Sue-and-settle agreements are being used to rewrite Federal regulations in spite of a recent Supreme Court ruling banning the practice
President Biden was clear while campaigning about his intention to eliminate fossil fuels in the United States. In the presidential debate sponsored by CNN on July 31, 2019, he was asked: “Would there be any place for fossil fuels, including coal and fracking, in a Biden Administration? His answer was “No. We would work it out; and would make sure it is eliminated and no more subsidies for either one of those; for any fossil fuels.”
He was clear about his position on fossil fuels and hit the ground running after the election to keep his promises.
On the first day of his presidency, January 20, 2021, Biden issued an executive order halting the construction of the Keystone XL Pipeline, issued a moratorium on oil and gas lease activities in the Arctic National Wildlife Refuge, and withdrew offshore areas in Arctic water and the Bering Sea from oil and gas drilling.
In his second week in office, he signed another executive order to “pause” new oil and gas leasing on federal lands and offshore waters, which violated Congressional statutes by halting all offshore and onshore national oil and gas lease sales.
His assault on fossil fuels has continued to this day. President Biden and his administration are hell-bent on destroying the oil and gas industry to make oil and gas prices soar to make overpriced and underperforming green energy look attractive, force Americans to buy EVs, and force utilities to generate more unreliable wind and solar-powered electricity.
Some of these efforts are in the open, but some are in below-the-radar. A recent example of a below-the-radar tactic occurred on September 6, 2022, when the U.S. Bureau of Land Management entered into a “settlement agreement” with a group of well-funded NGOs that sued the Bureau of Land Management. The Plaintiffs are Wildearth Guardians, Montana Environmental Information Center, Center for Biological Diversity, Sierra Club, and Waterkeeper Alliance, Inc. These groups are often called environmental activists. Still, the truth is the environment is only a tagline for these groups, so they are, in reality, well-funded non-governmental organizations or NGOs (shoutout to Robert Bryce in his Power Hungry Podcast interview with Michael Shellenberger for his definition of NGOs).
The “settlement agreement” says that the Bureau of Land Management will review federal oil and gas leases in Montana and North Dakota on 4 million acres of federal land, approved during the Trump administration in 2019 and 2020, to determine if their impact on climate change was properly addressed. If it is determined that climate change was not adequately addressed, the leases will be canceled. I put the probability at 100% that the leases will not pass the test and the leases will be nullified.
You can tell that this was a big win for the NGOs because they crow about it on their websites: “This is a big win for the climate and a real test to see if the Biden administration is going to get serious about confronting the climate impacts of selling public lands for fracking,” said Jeremy Nichols, Climate and Energy Program director for WildEarth Guardians. “With the oil and gas industry bent on despoiling America’s public lands and fueling the climate crisis, this is a critical opportunity for the Biden administration to chart a new path toward clean energy and independence from fossil fuels.”
This agreement is a classic example of “sue-and-settle” when a federal agency declines to defend itself in court against a lawsuit and negotiates a “settlement,” meaning the federal agency gives the NGOs what they want. Since there is a revolving door between the NGOs and government agencies, many sue-and-settle agreements are written by former NGO employees who are now employed by the agency being sued.
The next step after the “settlement” is that it is used as the pretext to create new rules and regulations outside the normal rule-making process. Call it a “wink-wink” approach to federal rule-making. No public notices, no hearings, just POOF: new rules and regulations that are the law of the land that Congress did not authorize. The Obama administration used this technique to write over 100 new regulations, including the Clean Power Plan, which allowed the EPA to regulate CO2 emissions from power plants, a power that has never been granted to the EPA by Congress.
On June 20 this year, in WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL., the Supreme Court ruled that such rule-making without Congressional approval is unconstitutional. The Biden administration is ignoring this Supreme Court ruling. When this “settlement agreement” is later used as the pretext to write new regulations, lawsuits against the rules will be filed, and these lawsuits will take years to work their way through the court system to get to the Supreme Court so they can rule that the Bureau of Land Management acted illegally. In the meantime, the new rules will be enforced, leases will be canceled, and significant economic and energy security damage will have been done.
Companies that successfully bid for and received leases on federal land in 2019 or 2020 and have expended millions of dollars to do seismic and other exploratory development work, including drilling and building pipelines, face the possibility that their leases will be revoked and their investments rendered valueless. This playbook could easily be replicated to review all federal oil and gas leases and negate them. You can bet that is the grand plan for these NGOs.
We will have to wait and see what new rules will be written and how those rules will be used to shut down oil and gas production on other federal lands onshore and offshore. It is all part of President Biden’s promise to stop fossil fuel development in the United States.
It is possible that the human suffering this winter due to a lack of heat and food in Europe and other parts of the world will cause a rethinking of eliminating fossil fuels without viable replacements. This rethinking may have already started in Europe with Germany reopening shuttered coal plants, France and Japan scrambling to restart nuclear facilities, and Sri Lankan citizens revolting due to impending starvation caused by a ban on chemical fertilizers, which are primarily synthetic nitrogen fertilizers manufactured with natural gas using the Haber-Bosch process.
Reality can be cruel, but it can help clear minds and open eyes.