Consistently throughout his presidential campaign, President Biden repeatedly indicated his intention to “ban[] new oil and gas permitting on public lands and waters.”[1] Only one week after taking office, on Jan. 27,  the president issued Executive Order 14008, representing the administration’s first major step toward that goal. Among other provisions, the Executive Order directs the Secretary of the Interior to “pause new oil and natural gas leases on public lands or in offshore waters.”[2] The president did not offer any time limit for this “pause,” providing only that new lease sales are to be suspended “pending the completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices.”[3] Leadership at the Department of the Interior has subsequently confirmed that the administration has set no deadline for completing the review Executive Order 14008 requires.[4]

Consistent with Executive Order 14008’s directive, the Bureau of Land Management has since cancelled all oil and gas lease sales that were scheduled to be conducted in the first two quarters of 2021. Not surprisingly, challenges to these cancellations materialized almost immediately. On the same day the pause was announced, industry groups Western Energy Alliance and the Petroleum Association of Wyoming filed suit in Wyoming federal district court.[5] Eight weeks later, on March 24, 2021, numerous states filed two more lawsuits: (i) the State of Wyoming filed a challenge to the cancellation of onshore lease sales in the District of Wyoming;[6] and (ii) a coalition of 14 states filed a challenge to the cancellation of both onshore and offshore lease sales in the Western District of Louisiana.[7] Among other contentions, each suit alleges that the cancellation of oil and gas lease sales violates a statutory mandate in the Mineral Leasing Act providing that “[l[ease sales shall be held for each State where eligible lands are available at least quarterly.”[8]

While none of the suits are expected to proceed to the merits until at least mid-summer 2021, the petitioners in all three cases recently filed motions seeking immediate injunctive relief in the form of an order reinstating the lease sales that have already been cancelled during the pendency of the litigation. Each of the motions is before a different judge and proceeding on a different schedule, but decisions on the motions are likely to come as early as mid-to-late June 2021.[9] For states whose economies depend on regular revenues from a healthy oil and gas industry – and that have already lost the revenue that would have been generated through the first and second quarter sales in 2021 – a ruling reinstating statutorily mandated lease sales cannot come soon enough. Equally important, the motions’ outcome should reveal a great deal concerning the degree of difficulty the Biden administration will face in its efforts to end, or at least minimize, oil and gas production on federal lands.

[1] Biden-Harris, The Biden Plan for a Clean Energy Revolution & Envtl. Justice, available at: https://joebiden.com/climate-plan/ (last visited May 10, 2021); see also Dan Merica, Biden explains why he doesn’t support a nationwide fracking ban, CNN (Sept. 4, 2019), available at: https://www.cnn.com/politics/live-news/climate-crisis-town-hall-august-2019/h_8fa1928c4729b60d49901ecfd732f1c9 (last visited May 10, 2021) (reporting President Biden’s support for “stopping all ‘oil drilling or gas drilling on federal lands’”).
[2] 86 Fed. Reg. 7619, 7624 (Feb. 1, 2021).
[3] Id.
[4] Full Committee Hr’g on the Dep’t of the Interior’s Onshore Oil & Gas Leasing Program: Hr’g Before the Sen. Comm. on Energy & Nat. Res. (Aug. 27, 2021) (Oral testimony of Nada Culver at 1:53:15-1:53:48) (conceding that BLM could not provide any specific time by which the review called for under Executive Order 14008 would be completed).
[5] W. Energy All. v. Biden, No. 0:21-cv-13 (D. Wyo.). BakerHostetler represents the petitioners in the Western Energy Alliance suit.
[6] Wyoming v. U.S. Dep’t of the Interior, No. 0:21-cv-56 (D. Wyo.).
[7] Louisiana v. Biden, No. 2:21-cv-778 (W.D. La.).
[8] 30 U.S.C. § 226(b).
[9] The first hearing on one of the motions is scheduled for June 10, 2021, in the Louisiana case.