Executive Order Pauses Federal Fossil Fuel Leasing, Encourages Renewable Development

Brownstein Hyatt Farber Schreck

Among other broad policy objectives intertwined in President Biden’s “Executive Order on Tackling the Climate Crisis at Home and Abroad” is the direction to the secretary of the interior to “pause new oil and natural gas leases on public lands [and] in offshore waters.” This new indefinite moratorium on new leasing will require the “completion of a comprehensive review and reconsideration of federal oil and gas permitting and leasing practices.”

This action follows last week’s Secretarial Order 3395, issued by Acting Secretary of the Interior Scott de la Vega, that broadly suspended delegated authority to field personnel to “issue any onshore or offshore fossil fuel authorization, including but not limited to a lease, amendment to a lease, affirmative extension of a lease, contract, or other agreement, or permit to drill.” The order also included a suspension of the authorization to issue rights of way and other surface use authorizations. Tribal lands held in trust have since been clarified to be outside the scope of the order. While a “pencils down” type suspension of delegated authority is not unusual during a presidential transition, the breadth of SO 3395 and its focus on “fossil fuel authorizations” is certainly new.

We anticipate that a new secretarial order (SO) implementing the actions of the new executive order (EO) will be issued shortly. It is uncertain whether a new order will supersede SO 3395 and provide additional clarity for how permitting will work during the period in which the comprehensive review is taking place and how existing operations under valid leases will be treated. At present, it appears operators are struggling with how various authorizations covered by SO 3395 will be reviewed and approved. The new administration has been proactive about pointing out the existence of already issued permits and that it is their intent to have permitting continue. A new SO, and likely agency-specific guidance (ex. BLM Information Bulletins and Instructional Memoranda), will ultimately be necessary to instruct field offices how to implement the intent of the actions. Guidance will also be important for operators to have some sense of certainty during the window of time in which the comprehensive review is being conducted.

While the moratorium targets fossil fuels, it simultaneously encourages conservation targets and federal land use for renewable energy—with a goal of doubling offshore wind leasing by 2030. It also contains a lofty goal of at least 30% of public lands and waters being protected by conservation by 2030. The implementing direction here will matter greatly as it will set the baseline for calculating how much acreage is already protected and how much acreage the new administration will seek to remove from potential mineral entry for conservation purposes. As an example, there are millions of acres unavailable for mineral entry due to current federal land use plans that make it inaccessible. However, we would speculate that those acres are not likely to be included in the initial baseline total.

The comprehensive EO also impacts foreign policy, national security, tax policy, financial regulation, federal procurement, infrastructure, agriculture, economic development in energy communities, and environmental justice. It incorporates intersectional issues while addressing greenhouse gas emissions in a broad directive that signals how climate policy will be infused in all federal decision-making. The EO also formally establishes the White House Office of Domestic Climate Policy, a National Climate Task Force, and other interagency working groups and councils to carry out the executive order. It also includes the announcement of an April 22 U.S.-hosted Climate Leaders’ Summit. Two other presidential actions were also unveiled, an additional EO establishing the White House Council of Advisors on Science and Technology and a presidential memorandum addressing scientific integrity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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