'Keep it in the ground' sparks legal debate over leasing

Phil Taylor, E&E reporter

In the late 1920s, with the country awash in crude and prices plummeting, President Hoover ordered the Interior Department to cease all oil leasing.

The decision -- aimed at conserving the government's mineral bounty for boom times -- was legal, according to a 1931 Supreme Court ruling that found Interior is under no obligation to lease the federal estate.

That ruling resonates today as environmental groups and liberal politicians call on the Obama administration to again stop the sale of federally owned oil, gas and coal.

And this time, they want the ban to be permanent.

The Keep It in the Ground movement -- led by 350.org, the Center for Biological Diversity and WildEarth Guardians -- has rekindled a vigorous legal debate over whether the government is obligated to sell publicly owned minerals whose burning could intensify global warming.

The question has split legal experts and vexed the Obama administration's top lawyers.

To be sure, Interior officials have made no indication that they are prepared to terminate the agency's nearly century-old leasing program. Secretary Sally Jewell has said fossil fuel leasing cannot be cut off overnight if people want to continue driving cars and living in comfortable homes.

The Bureau of Land Management sold more than 1,000 oil and gas leases last year covering more than 1 million acres, and the Bureau of Ocean Energy Management is floating a controversial proposal to open the Atlantic Ocean to leasing and drilling for the first time in decades.

Yet President Obama has also acknowledged warnings by scientists that some fossil fuels -- roughly 80 percent of the world's coal -- must be kept in the ground to avoid the worst effects of climate change.

Activists say Obama could burnish his climate legacy by ending, or at least greatly phasing out, the sale of new fossil fuel leases.

At the center of the debate is the Mineral Leasing Act, which Congress passed in 1920 to guide the orderly development of federally owned minerals. Climate activists say that despite many amendments, the law still offers clear authority for Interior to lease or not lease its minerals.

MLA says lands "known or believed to contain oil or gas deposits may be leased by the secretary."

"'May' means 'may,'" said John Leshy, who served as Interior's top attorney under the Clinton administration and now teaches at the University of California's Hastings College of the Law. Lands are "available if the secretary makes them available."

The Supreme Court's ruling on the issue was unambiguous, Leshy said. Interior can ban fossil fuel leasing everywhere except for lands with unique statutes such as the National Petroleum Reserve in Alaska (NPR-A).

"A blanket 'no' is politically risky because you invite congressional interference," he said. "But in terms of the legal authority, there's no question."

READ ENTIRE ARTICLE