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49 Envtl. L. Rep. News & Analysis 10631 (2019)
Interior's Authority to Curb Fossil Fuel Leasing

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                           COMM ENT

Interior's Authority to Curb

               Fossil Fuel Leasing

                                by John D. Leshy

 John D. Leshy is Emeritus Professor at the University of California, Hastings College of the Law,
          and was Solicitor of the U.S. Department of the Interior from 1993 to 2001.

In his recent statements and testimony before the U.S.
    Congress, Secretary of the Interior David Bernhardt
    has expressed doubt he has the legal authority to limit
his unrelenting campaign to lease fossil fuels on America's
public lands. He has supplemented this by offering a rather
bizarre argument that he has no such obligation because
carbon emissions are being curbed more in the United
States than in many other countries.1 The U.S. Depart-
ment of the Interior (DOI) reported not long ago that these
emissions account for about one-quarter of total U.S. car-
bon emissions.2
   As I discuss in this Comment, Bernhardt's position seri-
ously misreads the applicable law.'

I.    Coal Leasing

The Mineral Leasing Act4 of 1920 (as refined by the
Coal Leasing Amendments of 1978) is crystal clear on
this matter. It authorizes, but does not require, the Sec-
retary to offer coal deposits on public lands for leasing
in his discretion.15

1.  See, e.g., Chris D'Angelo, Interior Chief Blames Congress for His Inaction
    on Climate Change, HUFFPOST, May 7, 2019, at https://www.huffpost.
    n_5cdlf3c9e4b0a7dffcce0468; Juliet Eilperin, Facing Democratic Resis-
    tance, Interior Secretary Promotes Oil and Gas Drilling, WASH. POST, May
    10, 2019, at https://www.washingtonpost.com/national/health-science/
    drilling/2019/05/09/a9198b0e-7296-11e9-8be0-ca575670e91c story.
    htmlutm term-.aflbaa32444e; Cecelia Smith-Schoenwalder, Interior Sec-
    retary Unconcerned Over Rising Carbon Dioxide Levels, U.S. NEWS & WORLD
    REPORT, May 15, 2019, at https://www.usnews.com/news/national-news/
2.  Adam Aton, Fossil Fuel Extraction on Public Lands Produces One Quarter of
    U.S. Emissions, Scl. AM., Nov. 27, 2018, at https://www.scientificamerican.
    of-u-s-emissions/?redirect- 1.
3.  See also John D. Leshy, Secretary Bernhardt Says He Doesn t Have a Duty
    to Fight Climate Change. Hes Wrong., VIBRANT ENVT (June 19, 2019),
4.  30 U.S.C. §§181 et seq.
5.  Id. §201(a).

   In 2016, the Barack Obama Administration insti-
tuted a near-total moratorium on new coal leasing while
it studied the program's impact on climate change, among
other things. This was not challenged in court. The Don-
ald Trump Administration lifted the moratorium, and a
court recently ruled that the Administration could not
resume leasing without first studying the effects under the
National Environmental Policy Act (NEPA).6

II.   Oil and Gas Leasing

The law applicable to oil and gas is almost as clear but takes
a little more explaining. The same Mineral Leasing Act pro-
vides that public lands may be leased by the Secretary.7
With some limitations, it goes on to provide that [1]ease
sales shall be held for each State where eligible lands are
available at least quarterly and more frequently if the Sec-
retary of the Interior determines such sales are necessary.'
This language was added by the Federal Onshore Oil and
Gas Leasing Reform Act of 1987.9 The statement that lease
sales shall be held applies only where there are lands eli-
gible for leasing.
   Existing law has long given the Secretary of the Inte-
rior three distinct ways to declare public lands ineligi-
ble for leasing. Nothing in the legislative history of the
1987 Act indicates that Congress intended to change the
prior practice.

A.    Exercise Executive Discretion Not to Lease

The first method is to do what the Obama Administra-
tion did with respect to coal, and simply to announce that
it will not entertain further oil and gas leasing pending
further study of its effects on climate change. This is sup-

6. Citizens for Clean Energy v. Department of the Interior, No. CV-17-30-
    GF-BMM, 49 ELR 20066 (D. Mont., Apr. 18, 2019); 42 U.S.C. §§4321-
    4370(h), ELR STAT. NEPA §§2-209.
7. 30 U.S.C. §226(a).
8. 30 U.S.C. §226(b)(1).
9. H.R. 2851, 100th Cong.



49 ELR 10631

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