Courts derail Trump’s march to ‘energy dominance’

By Pamela King | 04/29/2019 07:34 AM EDT

Federal judges across the country are throwing up roadblocks to the Trump administration’s energy agenda, from offshore drilling to coal leasing. Will industry groups backing the president succeed in fighting the courts?

The Interior Department's efforts to expand development of federal oil, gas and coal have suffered some recent courtroom setbacks.

The Interior Department's efforts to expand development of federal oil, gas and coal have suffered some recent courtroom setbacks. skeeze/Pixabay (pumpjack); Pamela King/E&E News (Interior Department); West Cumbria Mining (coal)

Bit by bit, federal judges across the country have begun to chip away at the foundation of the Trump administration’s energy agenda.

A crop of recent district court rulings rebuffed President Trump’s efforts to amp up energy development on public lands and waters: the end of a coal leasing ban, the repeal of a key royalties regulation, the reversal of an offshore moratorium and the leasing of large Western tracts for oil and gas development.

All the decisions knock down or delay elements of the Trump administration’s "energy dominance" agenda — a directive largely shouldered by the Interior Department, which manages federal and tribal lands.


"The administration clearly wants to hitch its wagon to the fossil fuels industry, but so many of our environmental laws and decades’ worth of precedent make it clear that agencies have to analyze and account for environmental effects," said Jayni Hein, natural resources director at the Institute for Policy Integrity at New York University.

"Even if the administration as a whole wants to shift away from climate analysis, it really can’t."

In each of the recent rulings, many of which came down on Friday nights, judges found that the Trump administration had fallen short of its requirements under the National Environmental Policy Act or Administrative Procedure Act.

One case, in which an Alaska court reinstated Obama-era oil and gas leasing bans in the Arctic and Atlantic oceans, offered an unusual direct rebuke of an exercise of executive power.

Newly confirmed Interior Secretary David Bernhardt last week announced that the ruling had indefinitely paused the department’s plans to expand offshore oil and gas production (E&E News PM, April 25).

The bevy of rulings, issued by district courts from Alaska to the District of Columbia, have dismayed industry groups that saw President Trump’s election as a key to unlock access to federal oil, gas and coal. Some have been quick to blame the judicial branch.

"There’s definitely an issue of activist judges trying to go for policy outcomes," Western Energy Alliance President Kathleen Sgamma said.

The oil and gas trade group is an intervenor in one of the leasing cases, in which a D.C. court called on Interior’s Bureau of Land Management to conduct additional NEPA analysis (Energywire, March 20).

The Western Energy Alliance also has a hand in defending Interior’s energy policies in several pending challenges (see sidebar).

It’s unclear whether Interior will appeal any of the recent rulings, but Sgamma and other industry advocates will be pressing for circuit court challenges.

"A lot of these rulings need to be appealed, and Interior and the Justice Department are just passive," she said. "These decisions are bad precedent. They’re contrary to law."

Interior does not comment on pending litigation.

If the Trump administration escalates the disputes, many of the cases would land in the 9th U.S. Circuit Court of Appeals.

President Trump has openly criticized the West Coast appellate court for striking down many of his administration’s policies.

Environmental challengers said they were encouraged to see courts backing green groups’ cries that the government’s energy push flouts federal law.

"I don’t see a path to success," said Jeremy Nichols, climate and energy program director for WildEarth Guardians, which is party to several lawsuits challenging Interior energy policies.

"Their agenda is dead on arrival."

Here’s a look at what’s next in each of the recent court rulings on Interior’s energy policies:

Western leasing

What’s next: BLM could quickly turn around climate reviews, as it did in one case. If the courts strike those down, the government could appeal.

Jurisdiction for potential appeals: D.C. Circuit and 10th Circuit

A pair of federal judges last month ordered BLM to try again on climate analyses for oil and gas leasing decisions in Wyoming and Colorado.

BLM made quick work of its NEPA review in Wyoming, handing back a supplemental environmental assessment less than one month after Rudolph Contreras, an Obama appointee on the U.S. District Court for the District of Columbia, issued his ruling.

Environmental challengers used their 10-day comment period to draft a scathing reply.

"With its rushed Supplemental EA, the agency has not stepped back to take the hard look demanded by NEPA in order to ensure a reasoned and informed decision," WildEarth Guardians and other groups wrote in a comment last week.

"Instead, BLM treats the Court’s decision and NEPA itself as a meaningless paper exercise."

BLM could request voluntary remand of its environmental reviews supporting leases in Colorado and Utah, which were also included in the Wyoming challenge but were broken into separate litigating schedules, said Nichols of WildEarth Guardians.

U.S. District Court for the District of Colorado Senior Judge Lewis Babcock, a Reagan pick, last month also ordered a more robust climate analysis for leases in the Centennial State’s treasured North Fork Valley (Energywire, March 28).

The parties are still weighing next steps in that case.

Reversing offshore withdrawals

What’s next: In light of an Alaska court’s ruling on Arctic and Atlantic waters, Interior officials last week pumped the brakes on their efforts to expand offshore oil and gas leasing. An appeal is still possible.

Jurisdiction for potential appeals: 9th Circuit

A federal judge in Alaska dashed the Trump administration’s hopes of developing energy in previously closed offshore tracts.

Trump did not have the authority to reopen Alaskan seas and Atlantic canyon areas after President Obama prohibited leasing in those regions, Sharon Gleason, an Obama appointee to the U.S. District Court for the District of Alaska, ruled last month (Energywire, April 1).

Her ruling has also stifled — for now — plans to open more than 90 percent of federal waters to oil and gas leasing. Former Interior Secretary Ryan Zinke’s unveiling of an updated five-year plan for offshore development, followed by attempts to excuse Florida from the proposal, whipped up bipartisan backlash along the Atlantic and Pacific coasts.

Bernhardt, Zinke’s former No. 2, yesterday iced the five-year plan until the department can fully assess the implications of Gleason’s decision.

The new secretary’s announcement could also disrupt a separate lawsuit over a set of permits to test the Atlantic Ocean’s potential for oil and gas development (Greenwire, Dec. 11, 2018).

Valuation rule repeal

What’s next: Interior has said it will propose a replacement rule. The department could also launch an appeal.

Jurisdiction for potential appeals: 9th Circuit

With the stroke of a pen, a federal judge in California this month reinstated long-dormant Obama-era requirements for valuing fossil fuels produced on public lands.

Senior Judge Saundra Brown Armstrong, a George W. Bush appointee on the U.S. District Court for the Northern District of California, found Trump’s Interior had not offered a "reasoned explanation" for repealing the 2016 rule (Energywire, April 15).

Department officials have said they could offer a proposed replacement regulation later this year. The rule affects what royalties companies pay on federal fossil fuels they extract.

Plans for a fresh regulation have puzzled regulatory experts who say the Obama program, which blocked mining companies from selling coal to affiliates at artificially low prices, was the result of long discussions between government, industry and environmentalists.

"I’m not sure what the replacement rule would be," said Hein of NYU’s Institute for Policy Integrity.

Lifting the coal leasing moratorium

What’s next: A Montana court instructed BLM to prepare some form of NEPA review. Once the court determines the appropriate remedy, Interior could file an appeal.

Jurisdiction for potential appeals: 9th Circuit

The Trump administration must work up a NEPA analysis for its decision to thaw a freeze on federal coal leasing, a Montana district court ruled this month.

Zinke’s move to reverse the previous administration’s coal moratorium constituted a "major federal action" subject to NEPA review, said Judge Brian Morris, an Obama appointee on the U.S. District Court for the District of Montana (Energywire, April 22).

Morris is the same judge who last year blocked construction on the Keystone XL oil pipeline, a key project in Trump’s energy plan.

When Zinke ended the leasing moratorium, coal companies had applied to lease about 2.8 billion tons of federal coal.

That total now stands at about 1.8 billion tons, and BLM has listed many recently leased minerals as exempt from the ban (Energywire, April 23).

Coal industry groups called for consistency in federal planning.

"Companies begin planning mining investments 10 years out and need to have leases laid out well in advance," said Conor Bernstein, a spokesman for the National Mining Association.

"Certainty is particularly important for this planning horizon."

Parties in the lawsuit will soon make their arguments for appropriate next steps on the NEPA review.