Unbounded Lawlessness: Obama’s War on Energy from Federal Lands

by William Perry Pendley 

On energy, the Obama administration ends the way it began, with lawless placating of environmental extremists by warring against energy from federal lands.  Obama’s officials’ first efforts in 2009 in northwestern Pennsylvania failed; nonetheless, in their waning days, their mischief spreads to Colorado and Montana.  Whether they get away with it depends, not just on the incoming Trump administration, but on a federal district court in Washington, D.C.

Days ago, President Obama’s Secretary of the Interior Sally Jewell skittered excitedly across America doing what made his administration infamous:  unilaterally plundering the rule of law.  In Denver she voided twenty-five contracts—all issued by the federal government to permit private lessees to search for, discover, and develop oil and gas from Colorado’s economically depressed western slope—that had incurred the wrath of “leave it [American energy] in the ground” radical groups.  The region is not a pristine wilderness, but the site of decades of drilling; it sits astride the geologically significant, energy-rich “Overthrust Belt.”  Alongside the cancelled leases are twenty-four producing leases Secretary Jewell affirmed and thirteen she subjected to confiscatory rules; all are atop trillion of cubic feet of natural gas.  “Imprudent,” “illogical,” and “arbitrary and capricious” spring to mind to describe Secretary Jewell’s decree, but most on point is “lawless.”

The fate that awaits the lessees, the energy they plan to produce, and the men and women of the region who yearn for high paying oil patch jobs is uncertain.  Their future may turn largely on what happens to an elderly Louisiana man who, like them, fell victim to one of Secretary Jewell’s edicts.  Sidney Longwell won an energy lease on federal land in Montana in 1982, and after ten years, four National Environmental Policy Act (NEPA) studies, and four National Historic Preservation Act (NHPA) reviews, obtained the right to drill on the lease (an application for permit to drill—APD).  Unfortunately, the Clinton administration suspended the lease and there it sat until 2013 when he sued demanding that federal officials allow him to exercise his property rights, pursuant to his government-issued contract.  On hearing of his forlorn plight, a federal judge called it “Kafkaesque” and ordered a prompt decision.  At long last, on March 17, 2016, the Obama administration ruled but instead of allowing him to do what he contracted for and was permitted to do, it cancelled his lease and voided his APD.       

At the end of this year, after months of legal filings and briefings, including numerous exhibits and lengthy appendices, the matter will be ready for a ruling by the judge following as yet unscheduled arguments in Washington, D.C.  To call Secretary Jewell’s decision—like so many other actions by President Obama—unprecedented is an understatement.  At no time in the history of the Mineral Leasing Act of 1920—through which Congress authorized Secretaries to issue and oversee oil and gas leases, including the one held by Mr. Longwell, and which has been amended and updated over the decades—has an energy lease been cancelled, unilaterally, let alone one issued more than three decades earlier and subjected to a decade of intense, thorough, and painstaking review.  Stunningly, however, Secretary Jewell concedes that her cancellation of the 33-year-old lease is not based upon any express delegation of authority from Congress.  Instead, she argues she has an amorphous “inherent authority” under the Constitution’s Property Clause.  The argument takes one’s breath away.

The Property Clause reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….”  It may be arguable, chiefly by westerners, whether that power is “without limitation,” however, one thing is clear:  the power over all federal lands belongs solely to Congress.  The Property Clause grants no authority, express or implied, to the Secretary.

Restoration of the rule of law, preferably by a court of law, cannot come soon enough.

William Perry Pendley is  president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of "Sagebrush Rebel: Reagan's Battle with Environmental Extremists and Why It Matters Today."

MSLF