This week President Biden traveled to Western states to sound the alarm on climate action. But his administration has so far failed to deliver on one of its signature campaign promises: stopping drilling and fracking on public lands.
During the campaign, Biden made it clear where he stood: “No more drilling on federal lands, period.” From a climate perspective, Biden’s pledge was prudent and necessary; fossil fuel development on federal lands accounts for almost a quarter of the country’s total greenhouse gas emissions.
Since taking office, however, the Biden administration has approved thousands of new oil and gas drilling permits, while simultaneously pursuing a public lands strategy vulnerable to legal challenges. Food & Water Watch has been comprehensively tracking the many pro-fossil fuels statements and decisions made since the start of the administration.
The administration has clear legal authority to immediately halt new drilling and fracking on federal lands. The fact that it continues to offer new leases (and approve new drilling/fracking permits on existing leases) is an intentional choice – one that blatantly defies Biden’s campaign pledges.
Solid Legal Basis for Drilling and Fracking Ban
Shortly after taking office, the Biden administration announced a pause on new oil and gas lease sales while it reviewed the federal program. As Food & Water Watch noted in comments to the Interior Department filed in April, the statutes that give the Interior Department and the Bureau of Land Management the authority to conduct oil and gas leases also grant them ample discretion in whether or not to block fossil fuel leasing and drilling.
The Mineral Leasing Act of 1920 stipulates that lands “may be leased by the Interior Secretary,” but that is a discretionary policy, not a requirement. The Federal Land Policy Management Act (FLPMA) requires that public lands “be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” It also stipulates that the Secretary of the Interior “shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” And the Outer Continental Shelf Lands Act specifies that offshore drilling “subject to environmental safeguards” and must be done “in a manner which is consistent with… other national needs.”
Simply put, there are a variety of legal arguments the administration could make to justify stopping new oil and gas drilling on public lands – if it truly wanted to.
Biden Crumbles to Industry Pushback
The industry fought back in court against the White House leasing pause. In a June decision, US District Court Judge Terry A. Doughty — a Trump appointee — issued a temporary injunction that essentially blocked Biden’s executive order temporarily pausing new leases. But instead of aggressively defending its initial, modest attempt to temporarily halt new leasing (while new permits for existing leases were still being aggressively approved), the White House rolled over at the first signs of industry pushback.
While the administration could have sought a stay of the injunction when it appealed that decision, it chose not to. The Interior Secretary also could have issued an evidence-based finding at any time over the past nine months declaring continued oil and gas expansion as being detrimental to the multiple use and sustained yield requirements of FLPMA; however, no such finding was issued. Furthermore, while pending appeal, Judge Doughty’s decision is only legally binding within the Western District of Louisiana. The administration could have chosen to constrain lease sales only to that area; instead it reintroduced sales nationwide.
Just days after Hurricane Ida wreaked devastation from the Gulf Coast to New York City, the administration announced a massive new lease sale of 90 million acres (nearly all the remaining leasable land) in the Gulf of Mexico. The administration downplayed the climate risks, even refusing to revise the Trump administration’s environmental analysis of this awful scheme.
There is a clear path for the administration to halt new fossil fuel drilling and fracking on public lands – in a way that complies with relevant statutes and the Administrative Procedure Act. Unfortunately, every indication thus far is that the White House has no actual desire to do so. An administration that took office promising to end fracking on our public lands has approved thousands of drilling permits, is paving the way for thousands more, and shows no sign of even wanting to fight to win one of its most important climate policies.
Contact: Seth Gladstone – [email protected]