“All of the Above Energy”/ “Energy Dominance”: The Courts Strike Back on Climate Change

Although the Obama and Trump administrations differ markedly on climate change and energy policy, their oil and gas decisions are being similarly faulted by federal courts. President Obama had an “all of the above” energy policy that included the development of oil and gas but took addressing climate change as a serious obligation. President Trump has by executive order (EO 13783), agency policies (Secretarial Order 3360) and rulemakings rejected Obama climate change policies to support an “energy dominance” energy policy.

In March 2019, two federal courts considered two different phases of the Bureau of Land Management’s (BLM) oil and gas process—leasing and development—and found BLM’s National Environmental Policy Act (NEPA) analysis faulty for failing to adequately consider greenhouse gas (GHG) emissions and climate change impacts. WildEarth Guardians v. Zinke (D.D.C., March 13, 2019) (WEG) and Citizens for a Healthy Community v. BLM (D. Colo., March 27, 2019) (Citizens). Oil and gas lease holders in Wyoming and an oil and gas development in Colorado have been stymied as the courts direct BLM to improve its analysis of climate change impacts. The WEG court refused to vacate the leases, but on remand directed BLM to complete a new analysis before allowing development on existing leases or any new leasing. Although the industry has asked the administration to appeal the WEG decision, the administration’s next move is not clear. The Citizens court has asked for additional briefing on a remedy.

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