Legal, administrative, and legislative alternatives to the largest-ever offshore oil and gas lease auction
Eighty million acres. That’s approximately the size of New Mexico. That also happens to be the amount of federal land under direct management by the National Park Service. And it’s the size of the oil and gas leases in Gulf of Mexico that the Biden administration’s Bureau of Ocean Energy Management (BOEM) put up for auction last week. Lease Sale 257 is the largest offshore lease sale in American history, and it could release up to 723 metric tons of CO2 into the atmosphere—the carbon equivalent of driving 157 million cars for a year. Once sold to fossil fuel companies, the sites are theirs to develop, locking in up to 50 years of fossil fuel production.
This sale is a “carbon bomb” that we cannot afford to detonate. Scientific consensus tells us that we must keep global warming below 1.5 degrees Celsius, should we hope to preserve a habitable planet. Given that governments around the world already plan to produce more than twice the amount of fossil fuels in 2030 than 1.5-degree scenarios allow, there is no room left in our global carbon budget for new fossil fuel production. Even the International Energy Association (IEA) recognizes this truth—and the IEA was created in the 1970s to help industrialized nations secure their oil supplies.
The Biden administration has also set 2030 emissions reductions goals that will be nearly impossible to meet if it continues to lease federal land for fossil fuel development. When pressed on the hypocrisy of the Lease Sale 257, White House Press Secretary Jen Psaki maintained that the Biden administration was legally “required” to hold the sale, despite the fact that “it’s not aligned with… the President’s policies.” Though this statement is accurate, it is misleading because the Biden administration did not pursue viable alternatives.
To understand the alternatives, we must go back to 2017 when then-President Trump signed an executive order outlining a five-year offshore oil and gas drilling plan that included Lease Sale 257. As soon as President Biden took office in 2021, he signed an executive order pausing all future oil and gas leasing and permitting on federal lands and waters while the Department of the Interior critically reviewed the sale process. Thirteen oil and gas-producing states quickly challenged the executive order in court, and a federal judge in Louisiana issued a preliminary injunction in June 2021. He ruled that under the Mineral Leasing Act of 1920, the Biden administration must continue to hold quarterly lease sales and could not pause sales without the permission of Congress. The Biden administration’s Department of Justice quickly appealed the decision to the 5th Circuit, but the appeal is yet to be heard.
However, the Biden administration failed to pursue two alternatives. First, the Department of Justice could have sought a stay from the 5th Circuit Court of Appeals. Had the stay been awarded, BOEM would not have had to comply with the Louisiana District Court’s injunction until their appeal could be heard and decided. In other words, the lease sales could remain paused.
In a second alternative, the Department of the Interior could have instructed BOEM to conduct and publish supplemental Environmental Impact Statements (EISes) on the environmental impacts of Lease Sale 257. In fact, several environmental organizations have sued Interior and BOEM for failing to conduct these supplemental EISes, arguing that the National Environmental Policy Act (NEPA) requires them.
Of course, both alternative courses of action are only temporary. The best possible outcome of either is to delay any sales by a few months or years until the executive order works its way through the courts. Moreover, even if the 5th Circuit or the Supreme Court should find the executive order legal, it would still only temporarily pause oil and gas leasing, because the Mineral Leasing Act of 1920 requires that the government sell leases for fossil fuel development. To achieve a durable solution, Congress must either amend or legislate over this provision.
One such piece of legislation is called the Keep it in the Ground Act, which would prohibit all new oil, gas, and coal exploration and development on federal lands and offshore. Our congressmembers need to hear from us on this. Call your Members of Congress at 202-224-3121. Tell them you’re alarmed by Lease Sale 257, and you understand that passing the Keep it in the Ground Act would put an end to fossil fuel development on federal land. Take a deep breath and pick up the phone—if not you, then who?
