Judges Now Deciding US Energy Policy

Petroleum Engineer or Federal Judge?

A previous post World Energy Policies A Minefield  reported on mistaken climate policies and their threat to our energy system.  Adding to the danger are actions by courts meddling in energy affairs on behalf of anti-fossil fuel activists.  Nicholas Kusnetz writes at alarmist website Inside Climate News U.S. Suspends More Oil and Gas Leases Over What Could Be a Widespread Problem. Excerpts in italics with my bolds.

Fossil Fuel leases totaling hundreds of thousands of acres have been suspended as courts rule against the BLM for ignoring climate impact. 

The federal Bureau of Land Management’s (BLM) Utah office in September voluntarily suspended 130 oil and gas leases after advocacy groups sued, arguing that BLM hadn’t adequately assessed the greenhouse gas emissions associated with drilling and extraction on those leases as required by law.

Nearly a quarter of the nation’s carbon dioxide emissions come from fossil fuels developed on federal lands, according to a government report. Credit: Bureau of Land Management.

The move was unusual because BLM suspended the leases on its own, without waiting for a court to rule.

Some environmental advocates say it could indicate a larger problem for the bureau.

“It is potentially a BLM-wide issue,” said Jayni Hein, natural resources director at the Institute for Policy Integrity at NYU School of Law, which has been involved in similar litigation in other states. “It could have the effect of suspending even more leases across the West, and not just for oil and gas, for coal as well.”

Officials in Utah had already pulled back several other lease sales earlier this year. In effect, BLM appears to be trying to get ahead of potential court rulings, advocates say.

A series of court rulings have established that BLM must conduct a thorough analysis of the climate impacts of drilling before it allows development in order to comply with the National Environmental Policy Act (NEPA).

In the latest ruling, a federal district court in Washington, D.C., in March ordered the bureau to redo its environmental analysis for a slate of leases in Wyoming to better assess climate impacts. In response, BLM suspended the Wyoming leases, as well as leases in Utah and Colorado that were included in the lawsuit but not directly addressed by the ruling.

The new Utah suspensions cover a different set of leases, including many sold last year. In letters sent in September to energy companies that had bought the leases, BLM said it was suspending them “based on the parallels” between the lawsuit over them and the case that resulted in the March ruling in Washington, D.C.

All told, nearly 1 million acres may now be suspended across the West, said Rebecca Fischer, an attorney with WildEarth Guardians, which filed the lawsuit in the Washington, D.C., circuit, including more than 460,000 acres covered by that lawsuit and some 300,000 acres that Utah’s BLM office has suspended since the March ruling.

Environmental advocates say the Trump administration is unlikely to cancel the leases. In Wyoming, BLM issued a new analysis soon after the Washington, D.C., court’s decision in March, arguing that there were no significant climate impacts. Fischer’s group has challenged that new assessment, saying that it too fails to meet the legal requirements. The court has yet to rule on the latest challenge.

Fischer said the lawsuits are part of a larger strategy by advocacy groups to try to block fossil fuel development that they say is incompatible with the need to rapidly cut greenhouse gas emissions to slow climate change. They say the bureau has the authority to deny leases based on their climate impacts, and those climate impacts would become apparent if it conducted a thorough analysis.

“That is our ultimate goal,” she said. “That we can start to keep these oil and gas leases in the ground and start to transition away from dirty fossil fuels.”

FootnoteAttorney General William Barr addressed the intrusion of judges upon Presidential authority as part of his recent speech on the Constitution’s approach to executive power. (here). Some pertinent excerpts in italics with my bolds.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority. . .Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. checks-and-balances

Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. One way courts have effectively done this is by expanding both the scope and the intensity of judicial review.

In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process. They require what we used to call prudential judgment. They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the “precautionary principle.” This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry.

It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. This outlook now seems to have gone by the boards. Courts are now willing, under the banner of judicial review, to substitute their judgment for the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit.

IT is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda.

4 comments

  1. oiltranslator · November 17, 2019

    Don’t come crying to me. I voted to disband that bureau and most others, to abolish the communist income tax, to deregulate access to energy, to decriminalize everything that was legal before 1906, to strike down all prohibition and birth control laws and use government for the defense of individual rights alone. Every vote of mine has the law changing clout of 16 to 10,000 of anyone else’s cowardly kowtowing to the kleptocracy. I vote Libertarian and couldn’t be happier!

    Like

    • Ron Clutz · November 17, 2019

      For the last time oil, Stop the political proselytizing. How you vote is your business, and no one is crying to you.

      Like

  2. oiltranslator · November 17, 2019

    Pick a judge at random and I’ll bet cash money the guy cannot define energy or state the dimensions of its units of measure.

    Like

Leave a Reply to oiltranslator Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s