What’s Next, Post Keystone XL? “Keep it in the Ground!”

With the rejection of the Keystone XL pipeline by President Obama as part of the Administration’s “package” of climate change actions to deliver to the UN Conference on Climate Change in December, activists and their political allies have turned to the next battlefield – stopping the leasing of federal minerals. http://goo.gl/mU8qia

On November 4, Senator and presidential candidate Bernie Sanders (I-VT) and Senator Jeff Merkey (D-OR) introduced legislation to stop future federal oil and gas leasing in the Outer Continental Shelf and all federal leasing of onshore coal, oil, tar sands, gas and oil shale. The “Keep it in the Ground Act” also would prohibit the renewal of any “nonproducing” lease and cancel existing leases in federal waters off Alaska. See, S 2238, “To prohibit drilling in Outer Continental Shelf, to prohibit coal leases on federal land and for other purposes.” https://www.congress.gov/bill/114th-congress/senate-bill/2238

The President of the Natural Resources Defense Council ( and former Obama Interior Assistant Secretary) Rhea Suh applauded the legislation, “ Phasing out coal, gas and oil production in our federal lands and waters must be part of our broader strategy to shift from dirty fuels that drive climate change to clean energy.” Suh explained that, “Ending new leases for fossil fuels will prevent the release of 90% of potential emissions from federal fossil fuels. Federal lands and waters should be managed . . . to promote the rapid transition to the clean energy economy by keeping fossil fuels in the ground.” Bill McKibben, 350.org founder and anti-Keystone organizer, told Rolling Stone, “Effective action would require actually keeping most of the carbon the fossil fuel industry would like to burn safely in the soil.” The Center for Biological Diversity has led local “keep it in the ground” protests of BLM oil and gas lease sales in Wyoming and Colorado arguing federal fossil fuels represent 450 billion tons of carbon equivalent that should not be burned.

The movement, an offshoot of the fossil fuel divestment campaign, is informed by two studies that identified the potential GHG emissions from undeveloped fossil fuels. A study published in the journal Nature in January analyzed the question at a global scale and found that 80% of world coal reserves need to stay in the ground to avoid the “tipping point” of an elevation in global temperature of 2 degrees C. In the United States, The Wilderness Society and Center for American Progress retained Stratus Consulting in 2012 and 2014 to analyze the GHG emissions from extracting and burning federal fossil fuels. The 2014 update found that federal lands and waters “could have accounted for 24% of all energy-related GHG emissions in the United States in 2012” and “combustion of coal from federal lands accounts for more than 57% of all emissions from fossil-fuel production on federal lands.” See Center for American Progress (March 19, 2015). https://goo.gl/aPiMwJ .

At the end of September, Sierra Club, WildEarth Guardians, 350.org, EarthWorks among 400 environmental organizations presented a letter to President Obama calling on him to “keep federal fossil fuels in the ground.” The groups, citing the above reports, argue that federal leasing contributes “significantly” to U.S. and global GHG emissions and that under existing laws “you have the clear authority to stop new leases. With the stroke of a pen, you could take the bold action needed to stop new federal leasing of fossil fuels . . . .” An accompanying legal analysis argues that the Mineral Leasing Act, the Surface Mine Control and Reclamation Act, the Outer Continental Shelf Lands Act and the Federal Land Policy and Management Act grant considerable discretion to the Secretary of the Interior on whether to lease and that some of these acts grant the Secretary or the President the authority to withdraw lands from leasing. It is legally doubtful whether these acts would provide the authority to the Executive branch to cease all leasing of federal minerals which under the U.S. Constitution Article IV, Sec. 3 are under the plenary authority of Congress. Moreover in the Mineral Leasing Act (30 U.S.C, § 226(b)(1), Congress has directed quarterly lease sales and in the Mining and Mineral Policy Act of 1970 made clear that, “it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries …” 30 U.S. C. § 21a.

While the “Keep it in the Ground Act” stands no chance of passage in this Congress, and Interior Secretary Jewell has rejected this approach has oversimplifying “a very complex situation to suggest we could simply cut off leasing or drilling on public lands and solve the issues of climate change,” she has embraced a suite of regulatory initiatives that environmentalists and their supporters have argued are part of this initiative. For example, in March in a major policy speech previewing BLM regulatory reforms, Secretary Jewell stated, “[W]e also need to do more to address the causes of climate change. Helping our nation cut carbon pollution should inform our decisions about where we develop, how we develop and what we develop.”

The Wilderness Society argues that a soon-to-be issued BLM rule to reduce venting and flaring and the already published draft revisions to Onshore Orders 3, 4 and 5 (https://goo.gl/2Dckrm and https://goo.gl/idRLrd ) to require the installation of meters on federal wells will help to limit GHG emissions from federal leasing. They also argue, and are joined in this argument by Democratic presidential candidate Hillary Clinton, that Interior should raise the royalty rates for coal and oil and gas to account for “the full costs of carbon pollution.” In June, Clinton called for “additional fees and royalties from fossil fuel extraction [to be used] to protect the environment.” Secretary Jewell announced a proposal to consider raising the royalty rate earlier this year. http://goo.gl/eKbNny And, the recently issued BLM resource management plan amendments for the Greater sage-grouse demonstrate the BLM’s willingness to use its FLPMA authority to withdraw millions of acres of federal minerals and limit the leasing of oil and gas for conservation purposes. Each of these requirements will incrementally “keep” a portion of federal fossil fuels “in the ground” which is the goal of that campaign.

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