As Biden urges global warming action, courts shape climate policy at home

Source: By Dino Grandoni and Steven Mufson, Washington Post • Posted: Sunday, August 22, 2021

Legal battles are keeping fossil fuels underground in some places but allowing extraction elsewhere

Emissions rise from a coal-fired power plant in Arden, N.C., in 2018. (Charles Mostoller/Bloomberg News)

At a time when President Biden is urging international leaders to address global warming quickly, court actions this week make it clear that the U.S. judiciary is shaping the United States’ climate trajectory as much as the White House.

On Monday, the Interior Department said it would heed a Louisiana federal judge and resume federal oil and gas leasing, which will drive up carbon emissions. On Wednesday, however, another federal judge blocked a controversial oil project planned for Alaska’s North Slope, effectively keeping fossil fuels in the ground. And on Thursday, the administration said it would conduct a comprehensive review of coal leasing on federal lands — but keep holding auctions in the meantime.

With just weeks left before international negotiators meet in Glasgow to chart a meaningful climate deal, this lurching process has raised questions about the United States’ ability to deliver on its president’s bold environmental rhetoric. The raft of legal decisions arrive days after a body of United Nations scientists warned of worsening climate impacts without major global cuts in greenhouse gas pollution, and as wildfires ragethroughout the American West.

“Because we’ve had such gridlock in Congress, the courts have been much more important in all matters of environmental law lately,” said Robert Percival, director of the environmental law program at the University of Maryland. “And that trend is likely to continue.”

For now, the drilling and mining on federal lands and waters — which account for nearly a quarter of U.S. carbon dioxide emissions — remain largely on course. If they continue, it will be nearly impossible for Biden to meet his pledge to cut U.S. greenhouse gas emissions at least in half by the end of the decade, compared with 2005 levels.

“The Biden administration can’t claim to care about the climate emergency and land conservation while auctioning off more public land for filthy fossil fuels,” said Taylor McKinnon, a senior campaigner at the Center for Biological Diversity, an advocacy group.

But domestically, Biden must comply with the law and maintain the support of several lawmakers from coal states, including Sens. Joe Manchin III (D-W.Va.) and Jon Tester (D-Mont.), as well as the backing of trade unions.

“Politically, the administration is looking to keep moderate Democrats from coal states” on its side, said Scott Segal, a partner at the law and lobbying firm Bracewell LLP. “Further, organized labor has expressed a preference for supporting clean energy rather than simply putting fossil fuels off limits. So you can see why the administration would tread carefully.”

Thursday’s announcement from the Interior Department’s Bureau of Land Management calls for a 30-day public comment period on a forthcoming review of the environmental, social and cultural impact of the coal-leasing program, with an eye toward assessing its contribution to climate change.

About 42 percent of U.S. coal production comes from federal lands, mostly from the Powder River Basin in Montana and Wyoming. Altogether, a tenth of U.S. greenhouse gas emissions comes from coal produced on federal lands.

Some companies still appear to be interested in mining opportunities, and coal prices have climbed to 10-year highs. While previous reviews of the federal coal program under Presidents Barack Obama, Ronald Reagan and Richard M. Nixon resulted in pauses on leasing, the Biden administration will continue to hold coal auctions and issue permits.

“There’s a false narrative that is out there that the market will take care of coal, and all we need to do is focus on oil and gas,” said Jenny Harbine, a senior attorney for Earthjustice. “Coal will not take care of itself on the time frame that’s needed to address our climate crisis.”

Earthjustice, the Northern Cheyenne Tribe, several conservation groups and four states — California, New York, New Mexico and Washington — filed suit in Montana in 2017 to reinstate the moratorium on new coal leases. They have agreed to a six-month stay while the Biden administration does its review.

The law puts the administration in a bind. Several statutes, including the century-old Mineral Leasing Act, call for regular fossil fuel auctions.

Louisiana and a dozen other states that rely on oil and gas royalties pointed to those laws to convince a federal district court in June to lift Biden’sJan. 27 executive order pausing new leases while evaluating the federal oil and gas program. The administration said this week it will resume oil and gas leasing to comply with the court order while appealing the preliminary injunction. The White House is also expected to issue a separate report on possible changes to the oil and gas program soon.

At the same time, the federal government is also legally obligated to protect resources such as air, water, wildlife and climate, and to obtain an adequate financial return on mineral leases.

“Interior can’t lease without first considering those legal requirements, so the question becomes how to balance these competing mandates — which lands should be offered for lease, and what requirements should apply to those leases?” said John Ruple, a professor specializing in land resources and the environment at the S.J. Quinney College of Law at the University of Utah. “Going slow to get it right makes sense and will likely result in better and more defensible leasing decisions.”

Legally, it is much more difficult to deny a company the right to drill on areas it has already leased. In fact, the Biden administration has issued more than 2,500 onshore drilling permits since Jan. 20, according to the Center for Biological Diversity, a rate that outpaces the last three fiscal years under President Donald Trump.

In the 2020 presidential race, the United States appeared to be at a crossroads.

Trump favored open drilling season on federal lands, while Biden said he would halt new federal leasing and permitting to cut carbon emissions.

Today neither side of the debate is satisfied, as many of Biden’s supporters feel let down, and his critics say his policies have hurt communities that depend on fossil fuels.

“The arguments industry is making are flat wrong,” said Mike Freeman, an Earthjustice staff attorney. “Federal statutes don’t mandate that our federal lands be managed for the sole benefit of the oil and gas industry.” Instead, he said, “the government has broad authority to manage land with oil and minerals in the public interest.”

But fossil fuel industries feel that the president is dragging his feet. On Monday, the American Petroleum Institute and 11 other oil industry groups sued in Louisiana to say that the administration, reluctant to end its “pause” in drilling, had stalled for months.

“Although the department now says they will resume lease sales pending their appeal, they have provided no assurances about when those sales might occur or what they would entail,” Paul Afonso, API’s senior vice president and chief legal officer, said in an email. “This indefinite leasing pause continues to create uncertainty for U.S. energy production that provides enormous economic, national security and environmental benefits.”

In Alaska, however, the Biden administration and industry are actually on the same side — and just got slapped back in court.

Both the Trump and Biden administrations had defended ConocoPhillips’s Willow project, despite a host of concerns that environmentalists and others raised about how the large operation might affect wildlife and Indigenous communities.

On Wednesday, U.S. District Judge Sharon Gleason — an Obama appointee — ruled that the Bureau of Land Management and the U.S. Fish and Wildlife Service incorrectly approved the project because they failed to adequately analyze its climate impact and other possible development plans, and didn’t specify how polar bears would be protected.

The decision is a major blow to the project, which has been touted by Alaska’s congressional delegation and industry as an important source of jobs for the state. The project, located west of Prudhoe Bay in the Alaskan Arctic, could produce up to 160,000 barrels of oil per day.

“We and our clients are just celebrating that there’s not going to be any Willow construction this winter,” said Bridget Psarianos, a staff attorney with Trustees of Alaska, which represented six clients in the case, including the group Sovereign Inupiat for a Living Arctic. “The project can’t move forward without a significant amount of redoing.”

ConocoPhillips’s drilling plan entailed building multiple drilling sites, a processing facility, a gravel mine and hundreds of miles of roads and pipelines in the National Petroleum Reserve-Alaska, the largest single piece of public land in the country.

Both the Interior Department and ConocoPhillips say they are reviewing the decision.

Despite the recent court rulings, the University of Maryland’s Percival said the president “has such substantial powers” that he and his deputies should be able to curtail drilling and mining on public lands and waters.

“But then again, a new president could come in, like Trump, and reverse them.”

Joshua Partlow contributed to this report.