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Judges Increasingly Demand Climate Analysis in Drilling Decisions

WASHINGTON — A judge’s decision this week to invalidate the largest offshore oil and gas lease sale in the nation’s history, on grounds that the government had failed to take climate change into consideration, shows that regulatory decisions that disregard global warming are increasingly vulnerable to legal challenges, analysts said Friday.

Judge Rudolph Contreras of the United States District Court for the District of Columbia ruled on Thursday that the Biden administration had acted “arbitrarily and capriciously” when it conducted an auction of more than 80 million acres in the Gulf of Mexico. The Interior Department failed to fully analyze the climate effects of the burning of the oil and gas that would be developed from the leases, the judge said.

The ruling is one of a handful over the past year in which a court has required the government to conduct a more robust study of climate change effects before approving fossil fuel development. Analysts said that, cumulatively, the decisions would ensure that future administrations are no longer able to disregard or downplay global warming.

“This would not have been true 10 years ago for climate analysis,” said Richard Lazarus, a professor of environmental law at Harvard University. He said it is “a big win” that courts are forcing government agencies to include “a very robust and holistic analysis of climate” as part of the decision-making when it comes to whether or not to drill on public lands and waters.

Emissions from fossil fuel extraction on public lands and in federal waters account for about 25 percent of the country’s greenhouse gases.

Shell, BP, Chevron and Exxon Mobil offered $192 million for the rights to drill in about 1.7 million acres in the area offered by the government in the Nov. 17 lease sale. The leases have not yet been issued.

Judge Contreras said the government had relied upon an outdated and flawed analysis from the Trump administration, which argued that not holding the lease sale would result in higher greenhouse gas emissions because oil companies overseas would increase their production to fill a vacuum in the market.

He called reliance on that analysis a “serious failing” and ordered a new study under the National Environmental Policy Act, or NEPA, which says the government must consider ecological damage when deciding whether to permit drilling and construction projects.

The judge reached the same conclusion as judges for both the United States Court of Appeals for the 9th Circuit and the District Court for the District of Alaska in cases within the past two years concerning lease sales based on a similar analysis.

“This is continuing to set an established precedent that NEPA requires a greenhouse gas analysis,” said Collin O’Mara, the president of the National Wildlife Foundation. “This just continues to show the damage that we’re doing by allowing federal leasing to go on.”

Keith Hall, director of the energy law center at Louisiana State University, cautioned that having to show the impacts of climate change does not necessarily mean fossil fuel development will come to a standstill.

A future administration could show the full impacts of climate change in a lease sale decision and still legally decide that economic benefits outweigh the climate dangers.

“An administration more friendly to the fossil fuel industry could still go forward,” Mr. Hall said. “Weighing the pros and cons is ultimately a policy decision.”

The Biden administration is now in an awkward position of deciding whether to appeal the ruling.

As a candidate, Mr. Biden promised to stop issuing new leases for drilling on public lands and in federal waters. Shortly after taking office, he signed an executive order to pause the issuing of new leases. But after Republican attorneys general from 13 states sued, a federal judge in Louisiana blocked that order, and also ruled that the administration must hold lease sales in the Gulf that had already been scheduled by the Trump administration.

The Biden administration went forward with the sale in November, despite arguments by environmental activists that the Interior Department could have done more to prevent or reduce the size of the lease sale.

In a statement Melissa Schwartz, a spokeswoman for the Interior Department, said the agency was reviewing the decision.

“We have documented serious deficiencies in the federal oil and gas program,” Ms. Schwartz said. “Especially in the face of the climate crisis, we need to take the time to make significant and long overdue programmatic reforms.”

Analysts said they expected the Biden administration to let the ruling stand.

“They’re not spilling a lot of tears over this one, since it’s a big lease sale done by Trump that they obviously wanted to pause,” Mr. Lazarus said.

That opens up a question of whether the oil companies that purchased leases, the trade groups representing them, or the Republican states suing the Biden administration’s effort to block new leases, could appeal.

Mr. Hall said he believed they could.

“The defendants are impacted enough that they would have standing to appeal,” he said.

In a statement, the Louisiana solicitor general, Elizabeth Murrill, said the state was “exploring potential legal remedies” to the court decision.

Read More: Judges Increasingly Demand Climate Analysis in Drilling Decisions

2022-01-28 17:08:15

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