It’s official. The Biden Administration will conduct no lease sales this quarter or in the 2021 fiscal year that ends September 30th. August 15th marked the 45-day deadline to announce a lease sale before the end of the quarter as required by the Mineral Leasing Act. It also marked 60 days since Judge Terry Doughty in the Western District of Louisiana issued a preliminary injunction overturning the leasing ban.
As anticipated, the Interior Department announced the appeal to the Fifth Circuit on the last possible day. The justification of course started with climate change, which we all know is practically irrelevant as federal production would simply be displaced to nonfederal lands or overseas. Hence President Biden’s plea to Russia and OPEC just the week before to increase production.
What’s more interesting to me is the arm-waving litany of other excuses: “…past operation of the program did not adequately reflect the breadth of the Interior Secretary’s stewardship responsibilities, including conserving wildlife habitat, protecting historic and cultural resources, ensuring that public lands are available for multiple uses…” and “…inadequately account[ed] for environmental harms to lands, waters, and other resources…”Anyone who has ever operated on federal lands and has had to perform countless environmental protection steps knows how untrue that is.
The statement goes on to offer the excuse that the federal oil and natural gas program has been the subject of numerous critical reports over decades and has been on the Government Accountability Office’s “high risk list” for more than a decade. The implication is that the administration has no choice but to stop leasing. In effect the department is asserting it doesn’t have to follow the law or comply with a federal judge’s order because the same department hasn’t been conducting its obligations to a satisfactory standard.
I like this novel approach. Imagine if anywhere we found an inefficient government agency we could just force it to stop operations until it cleaned up its act. Maybe then Americans would have the high-quality Veteran’s Affairs hospitals and postal service that we deserve. Maybe then the Securities and Exchange Commission and EPA would be up to the task of rationally and efficiently regulating our entire financial system and could ensure that chemicals handling was safe. Maybe then we wouldn’t be paying hundreds of dollars for toilet seats at the Pentagon.
That’s right. All these government programs and more are on the same GAO high risk list that the federal oil and natural gas program is. Suffice it to say that the appellate court judges are unlikely to be swayed by these arguments. The plain language of the Mineral Leasing Act, the Outer Continental Shelf Lands Act (OCSLA) and other laws speak very clearly.
That’s why we’re glad the thirteen states that achieved the preliminary injunction against the leasing ban will be there defending the district court judge’s ruling. They were joined by API and several trade associations, who just filed their own case in Louisiana. We’re working with the State of Wyoming on expediting our case in the Wyoming District Court and getting to a full ruling on the merits this fall. The no-nonsense Wyoming judge is not going to be impressed by the Interior Secretary stating that the department is complying with the Louisiana judge’s order even as it refuses to hold lease sales. And he’s not likely to be swayed by the argument that inefficient government agencies can decide not to meet their statutory obligations because they are inefficient and ineffective.
He’s not going to be impressed that the Interior Department has been slow to release the plan for conducting the comprehensive review of the federal oil and gas program ordered by the president. He’ll understand that the six months since the start of the leasing ban have been completely futile, as no progress has been made on the analysis that was the ostensible reason for the ban in the first place. And he’s not going to take kindly to disadvantaging Wyoming producers to the benefit of Russian and Saudi ones.
We are truly looking forward to making all these points when we file our brief in the very near future.