Trump’s energy dominance agenda keeps losing in the courts
Despite rhetoric, recent rulings indicate that the Interior Department’s energy free-for-all is on the wrong side of the law
By Hannah Rider and Lucy Livesay
Since the start of the Trump administration, the Department of the Interior has offered more than 17 million acres of public lands for oil and gas development — in critical wildlife habitat, next door to iconic national parks, and throughout archaeologically-rich landscapes. In the rush to spur an energy free-for-all, Interior has neglected basic legal tenets. Now the courts are pushing back, dealing repeated setbacks to President Trump’s energy agenda.
In June 2017, President Trump vowed to usher in a “new era of American energy dominance.” Under the leadership of the former and current Interior secretaries, Ryan Zinke and David Bernhardt, the agency charged with managing America’s public lands for the benefit of future generations has since become an apparatus of unfettered energy development.
According to a 2018 U.S. Geological Survey report, energy development on public lands between 2005 and 2014 was responsible for nearly a quarter of the nation’s carbon dioxide emissions. This does not include coal, oil, and natural gas extracted during the Trump administration. In 2018, the Bureau of Land Management (BLM) offered up 450 percent more public land acres in the West to the oil and gas industry than in the last year of the Obama administration.
When asked whether climate change was an “existential threat” during his 2017 confirmation hearing as Interior’s Deputy Secretary, David Bernhardt fell into line with the administration’s energy dominance agenda: “Here is the reality. We are going to look at the science, whatever it is, but policy decisions, policy decisions are made. This President ran. He won on a particular policy perspective… [W]e are absolutely going to follow the policy perspective of the President.”
But the courts have been paying attention. While the Interior Department has been ramping up energy leasing, it has failed to adequately consider the bedrock environmental laws that steer federal land management policy — like the National Environmental Policy Act and the Federal Land Management Policy Act — and the indirect effects of development on the climate.
Here are four cases that illustrate Interior’s haphazard approach, and how the courts can help set it straight.
Wilderness Workshop, et al. v. BLM, et al.
October 17, 2018
A judge ruled that the BLM’s Colorado River Valley Field Office did not adequately consider climate impacts in a new Resource Management Plan (RMP). RMPs serve as blueprints for BLM field offices, guiding the agency’s multiple use management of natural resources. In creating these plans, the BLM is required by the National Environmental Policy Act (NEPA) to assess the environmental impacts of their plan. The ruling stated that the BLM “failed, in part, to take a hard look at the severity and impacts of [greenhouse gas] pollution. Namely, it failed to take a hard look at the reasonably foreseeable indirect impacts of oil and gas.”
Why does this matter? The judge’s ruling affects the planning process for more than 700,000 acres of public lands, where the BLM forecasts adding 6,640 new wells drilled over the next 20 years. Even in the planning stages, the judge ruled that the BLM must quantify the “indirect effects that emissions resulting from combustion of oil and gas in the plan area may have on [greenhouse gas] emissions.”
WildEarth Guardians, et al. v. Zinke, et al.
March 19, 2019
On March 19, 2019, a federal judge ruled that the “BLM did not sufficiently consider climate change” in its decision to lease 300,000 acres for oil and gas development in Wyoming.
This case “stressed the difference between assessing environmental impacts in isolation and measuring their collective impact.” NEPA requires land management agencies to consider “direct, indirect, and cumulative impacts of [their] proposed projects.” The BLM did not consider the effect of the new leases on the country’s total carbon emissions.
Why does this matter? Although the judge stopped short of canceling the leases in question, he did bar the BLM from authorizing new drilling in Wyoming without satisfying NEPA requirements. Because of the impact of climate change, quantifying greenhouse gas emissions is now necessary to understand total environmental impact as directed by NEPA.
Citizens for a Healthy Community, et al. v. BLM, et al.
March 27, 2019
In this case, the Bureau of Land Management and the U.S. Forest Service “failed to comply with NEPA by not taking a hard look at the reasonably foreseeable indirect impacts of oil and gas” on 440 acres of public land in the Colorado River basin.
The judge found that, even though they completed the required environmental analysis, they did not properly consider the impacts on big game habitat, specifically mule deer and elk. According to Colorado Parks and Wildlife, energy development may continue to impact displaced big game “long after drilling activities have ceased.”
Why does this matter? This case is an example of the BLM being held to the full extent of the requirements under NEPA. In a comment to the Grand Junction Daily Sentinel, Natasha Leger, executive director of Citizens for a Healthy Community, which was the lead plaintiff in the case, stated that “requiring the Bureau of Land Management to clearly and properly analyze all potential direct, indirect, and cumulative impacts of this large-scale industrial oil and gas development project is absolutely critical to protecting the rare and irreplaceable ecosystem of the North Fork Valley and all those who rely on it.”
Citizens for Clean Energy, et al. v. Department of the Interior, et al.
April 19, 2019
During the Obama administration, former Interior Secretary Sally Jewell instituted a moratorium on coal leasing, initiating a thorough review of the environmental and economic impacts of further coal exploration on public lands. In March 2017, former Interior Secretary Ryan Zinke lifted the moratorium on coal leasing — at the direction of an executive order from the president — without completing the required environmental review.
Plaintiffs alleged that the Interior Department erred when “governmental decisionmakers [made] up their minds without having before them an analysis of the likely effects of their decision on the environment.” The judge ruled that without justification indicating that coal leasing would have no significant impact, they could not arbitrarily forego the environmental review process under NEPA.
Why does this matter? This decision makes it clear that the Trump administration’s “energy dominance” agenda is not going unchecked. “The Trump administration’s energy policies appear to be driven by fossil fuel industry’s wish list, rather than facts and science,” said Jenny Harbine, Earthjustice’s lead attorney on the case. “The reason courts time and again have rejected the administration’s actions under NEPA is because at the most basic level, NEPA requires thorough consideration of facts and science.”
Queried on his views on climate change in an interview with the Washington Post, Interior Secretary David Bernhardt said he had virtually no legal obligation to act — even though climate change is already raising global temperatures and Interior scientists warn it is harming key species and ecosystems under the agency’s stewardship.
In response to congressional questions during his confirmation hearing this past March, David Bernhardt reiterated his reticence, writing, “While I agree that the impacts of a changing climate need to be understood and addressed, the Department’s role is to follow the law in carrying out our responsibilities. The laws that govern our resources management actions on public lands and offshore areas generally require us to manage these areas for maximum sustained yield of multiple uses, including energy development.” These court cases, however, contradict this narrow view of the agency’s responsibilities. Under the law, the Interior Department is responsible for considering all environmental impacts, including the indirect and cumulative effects that contribute to climate change and impacts on communities throughout the West.
Bernhardt continued, “I believe when scientific data is evaluated on its merits and used as a basis to make legal and policy decisions that are honest to the science, conflicts will be reduced and those decisions will be reliable and legally sound.” Of course, when the environmental analysis is forced to “follow the policy perspective of the President,” the law may have a thing or two to say about it.
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