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Environmentalists are fuming after the Department of the Interior auctioned leases to drill for oil in an 80-million-acre section of the Gulf of Mexico on Wednesday morning. The Bureau of Ocean Energy Management sold 308 tracts covering 1.7 million acres to fossil fuel giants such as Chevron and ExxonMobil.
“This morning was met with extreme disappointment, depleted hope, and shattered trust,” said Hallie Templeton, legal director for Friends of the Earth, in a statement. “The Biden administration has opted to move forward with relinquishing all remaining parcels of the Gulf of Mexico to oil and gas interests. The decision is based on unlawful analysis that ignores climate change and the serious environmental injustice posed to the Gulf’s frontline communities. We are left aghast that the administration has ignored its clear authority to defer the sale and our final hope lies with the federal court to remedy these violations.”
While President Biden has made action to reduce greenhouse gas emissions a centerpiece of his legislative and regulatory agenda and recently proclaimed at the U.N. Climate Change Conference in Glasgow that the United States is a global leader on combating climate change, environmental activists argue that the administration could have refused to move forward with the auction.
The White House contends that it had no choice, due to a court order issued in June. During the 2020 campaign, President Biden pledged to end fossil fuel leasing offshore and on federal lands. This was a major concession to climate activists, who argue that the government shouldn’t let public lands and waters be used to make climate change worse and to risk the other environmental impacts of oil and gas exploration.
At first, Biden did attempt to stop future fossil fuel leasing. In his first week in office, Biden signed an executive order issuing a “temporary pause” on oil and gas lease auctions on federal land and water.
Louisiana and 12 other states took the administration to court, arguing that already-planned lease sales must continue. A Trump-appointed federal district court judge in Louisiana agreed, and he ordered the administration to complete the sale.
“We believe the decision is wrong, and the Justice Department is appealing it,” said Jen Psaki, Biden’s press secretary, when asked about the sale in a press conference on Monday. “So it’s in the courts; it’s in a legal process. We’re required to comply with the injunction. It’s a legal case and legal process, but it’s important for advocates and other people out there who are following this to understand that it’s not aligned with our view, the president’s policies, or the executive order that he signed.”
But some environmental law experts think the administration had more options. On Aug. 31, Earthjustice filed a federal lawsuit in the D.C. Circuit Court, on behalf of Friends of the Earth, the Sierra Club and the Center for Biological Diversity, that would, if successful, force the administration to reverse course before the sales from the auction are formally completed.
“There are three things [the administration] could have done that they have just chosen not to do, that could get them out of” holding the auction, Drew Caputo, a vice president of litigation at Earthjustice, told Yahoo News.
“The first stems from the fact that the court ruling is wrong,” Caputo said. “The court ruling says that if you write a five-year leasing plan and it has a lease sale in it, you have to go forward with the lease sale. … That’s wrong legally because there are plenty of cases out there that recognize that the government has the ability to adapt and has the discretion to delay or cancel lease sales.
“Administrations of both parties have regularly not gone forward with lease sales contained in five-year leasing plans — including most recently the Trump administration, which last year, in 2020, delayed an oil and gas lease sale in the Gulf of Mexico for economic reasons,” Caputo noted.
He argues the Department of Justice could have filed an immediate appeal and sought a stay from the appeals court of the district court order. “They didn’t even try to do that,” Caputo said. “They sat around for two months after the judge ruled, and then they filed an appeal. But they never sought to accelerate or expedite that appeal and instead went all-in on the lease sale.”
The National Environmental Policy Act (NEPA) "requires that they do a full enviro analysis of the consequences of the sale, and among the consequences of the sale they have to consider is the consequences for climate change,” he said. “Their environmental analysis says that it would be worse for climate change to cancel the sale than to proceed with it.”
This conclusion — that producing up to 1 billion barrels of oil would be better for climate change than not doing so — assumes that the oil not produced domestically will all be imported from even dirtier sources. “It ignores basic economic laws of supply and demand, which is that when you decrease the supply of something, something happens to price that could affect demand,” said Caputo. “But, most importantly, two federal courts since last year have considered that exact same climate analysis in connection with two other oil and gas decisions, and rejected it as absurd, under NEPA.”
Lastly, the Outer Continental Shelf Lands Act (OCSLA) gives the president the ability to withdraw offshore areas from oil and gas leasing. In December 2016, then-President Barack Obama used that authority to withdraw most of the Arctic Ocean from oil and gas exploration and development.
“The Biden administration could have used the same withdrawal authority under OCSLA to withdraw some or all of the waters,” Caputo said. “They didn’t do that either.”
Asked about these arguments, the Department of the Interior sent a statement, attributed to spokesperson Melissa Schwartz, that began: “The Department is complying with the U.S. District Court’s decision regarding Sale 257 while the government appeals the decision. At the same time, Interior is conducting a more comprehensive analysis of greenhouse gas impacts from potential oil and gas lease sales than ever before.” Schwartz went on to detail how the Interior Department is doing that, but didn’t respond directly to the arguments Earthjustice has put forth.
That response isn’t going to satisfy critics who say they suspect the administration is reluctant to fight hard against oil drilling at a time when it’s feeling political pressure over the recent rise in gasoline prices and a need to appease centrist Democrats in Congress who hail from fossil fuel-producing states.
“They’re, I think, thinking, ‘Well, we need to give a little' on fossil fuel development,” said Caputo.
The problem, Caputo argued, is that climate change will keep getting worse if the United States keeps extracting fossil fuels in a vain attempt to keep prices from ever rising.
“It’s not like climate change is gonna sit around and wait for the politics to get better,” he said.
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