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Clutching to fossil fuels, and losing, in the era of climate change

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The Trump administration recently held an event in Louisiana to announce its weakening of offshore drilling safety rules created after the Deepwater Horizon disaster. The announcement was greeted by applause from the fossil fuel industry.

The Trump administration long ago hitched its wagon to the fossil fuel energy of the past, and it continues to heedlessly promote fossil fuel extraction as the core of its so-called “energy dominance” agenda. But the science of climate change is directly at odds with this approach. Burning fossil fuels for energy leads to climate change, which inflicts mounting damages to the economy, environment, and public health.

{mosads}Fortunately, prioritizing fossil fuel revenue over all other factors does not meet the requirements of existing federal laws. In recent months, advocates have successfully convinced courts to strike down nearly all of the administration’s policy changes with respect to natural resource extraction and public lands, preserving critical environmental protections.  Together, these decisions amount to a stunning defeat of the “energy dominance” agenda and reveal that the administration cannot operate outside the bounds of the law. 

The Department of the Interior, which manages federal lands, has attempted to promulgate a series of far-reaching reforms in the name of energy dominance. Among other actions, Interior:

  • lifted a moratorium on coal leasing
  • eliminated offshore drilling moratoria
  • rolled back regulations designed to capture the full share of fossil fuel royalties owed to the public
  • weakened standards governing planet-warming methane released from oil and gas wells

Many of these actions would subject the public to greater environmental harms, and result in the transfer of hundreds of millions of dollars of benefits from the public to the fossil fuel industry.

In the most recent high-profile loss for Interior, a federal court held that the agency violated federal law when it lifted a federal moratorium and resumed coal leasing without conducting any environmental review. The Obama administration had promulgated a leasing moratorium while it embarked upon a compressive review process that would examine the federal coal program’s climate change effects.

Upon taking office, the Trump administration ended the moratorium without complying with one of the nation’s earliest environmental laws, the National Environmental Policy Act. The court noted that Interior’s actions “failed to reach even the minimum level of environmental analysis” required by law. 

In another recent setback to the administration’s energy dominance agenda, in March, a federal court held that Trump could not reverse former President Obama’s permanent withdrawal of offshore areas from oil and gas leasing, including regions in the Arctic and Atlantic. The court found that the Trump had no authority to reverse Obama’s offshore protected designation, as Congress did not confer that power to the president in the Outer Continental Shelf Lands Act.

The expected effect of this ruling is that Interior will not proceed with its aggressive plan to expand offshore drilling until an appeal is decided, or even after the 2020 election. Due to similarities in the structure of the laws governing offshore leasing withdrawals and national monuments, the decision may also have persuasive power in ongoing litigation where federal courts will decide whether an acting president can downsize existing national monument boundaries, as Trump did to Bears Ears and Grand Staircase Escalante national monuments in order to allow for mining. 

In a third case, a court held that Interior’s repeal of a rule governing fossil fuel royalties violated the Administrative Procedure Act because it failed to provide a “reasoned explanation” for a major change in policy that would transfer millions of dollars per year from the government to industry. In its race to capitulate to the fossil fuel industry, Interior made “conclusory assertions” about the need for change and failed to provide “any data or analysis” to support it.

{mossecondads}Finally, a federal judge held that Interior could not delay implementing methane capture regulations while it sought to finalize new, weaker standards for oil and gas wells.  The court ruled in favor of California, New Mexico, and a coalition of environmental groups, citing the “irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.”

These cases add to a growing list of court losses — at the hands of both Democratic and Republican-appointed judges — on the administration’s rocky road towards deregulation. Time and again, the administration has overlooked legal guidelines when seeking to implement its agenda, leaving it with few policy successes. In its irrational push backward to a “drill baby drill” era, the Trump administration has been effectively thwarted by states and environmental advocates.

Jayni Hein is the natural resources director at the Institute for Policy Integrity at NYU School of Law, where she also teaches natural resources law and policy.

Tags Energy Environment Fossil fuels Jayni Hein Offshore drilling White House

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