Air Date: Week of March 22, 2019

Oil wells on Bureau of Land Management public lands. The agency leases tens of millions of acres to oil and gas developers every year. (Photo: BLM, Flickr CC BY 2.0)

A federal judge has found the Bureau of Land Management failed to adequately consider climate impacts when it held lease sales for oil and gas drilling on hundreds of thousands of acres in Wyoming, Colorado and Utah, and has blocked any drilling until the climate risks are reviewed. Vermont Law School Professor Pat Parenteau tells Host Steve Curwood why the judiciary, as “the last line of defense” for environmental law, has increasingly recognized climate change as an issue that must be addressed in proposals for everything from oil and gas leases, to coal leases, to pipelines like Keystone XL. They also discuss the upcoming decision on whether the Juliana, et al v. United States youth climate lawsuit will move forward.

Transcript

CURWOOD: From the Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth. I’m Steve Curwood.

A federal court has blocked the Trump Administration from drilling for gas and oil on almost a half a million acres of public lands in Wyoming, Utah and Colorado, until it accounts for the climate impact. The Wild Earth Guardians and Physicians for Social Responsibility won the temporary ruling from US District Judge Rudolph Contreras in Washington.

In a few moments we’ll get the perspective of Vermont Law school professor Pat Parenteau on that case. But first we turn to him for an update on the Juliana case in Oregon, which was filed in 2015 by about two dozen young people claiming the federal government is depriving them of their constitutional right to a decent life by failing to address climate change.

So far the government has kept this major case from coming to trial, but lawyers for the young people keep fighting. Welcome back to the show, Pat Parenteau, and where’s the Juliana case now?

PARENTEAU: Nice to be back with you, Steve. So the Ninth Circuit panel, a three judge panel, has scheduled an oral argument for June on whether the case should go to trial, or whether it should be dismissed.

CURWOOD: Wait a second -- haven't we heard that before? I mean...

PARENTEAU: [LAUGHS] We've heard that many times, four times to be exact. But this is I think the final curtain on Juliana, and whether it's going to go to trial or not, I think will be decided in June. But in the meantime, the plaintiffs in Juliana have also requested that the Ninth Circuit issue an injunction against a whole raft of these fossil fuel projects, including coal mines, and oil and gas, and pipelines and export terminals, LNG terminals; it's really a massive amount of fossil fuel infrastructure that the plaintiffs and Juliana rightly, of course, believe that if all of these things go forward, you know, at some point, you do reach the point of no return, of not being able to achieve any of the targets for emissions reduction that the scientists are telling us we need to achieve. Now, I don't think the Ninth Circuit is probably ready to issue such an injunction. But that request from the plaintiffs is pending. So we're waiting to hear what happens with that.

CURWOOD: So how significant is this decision that the Bureau of Land Management failed to adequately consider climate change when it leased land for oil and gas drilling?

PARENTEAU: Well, it's significant in terms of scale, this is 460,000 acres of public lands being devoted to oil and gas production, and the amount of oil and gas that could be produced is also very, very significant. It's also significant in terms of it's the latest in a growing line, really, of cases that are slowing down and delaying a lot of this fossil fuel development -- oil and gas, coal mines, gas pipelines -- and the courts are saying, you know, you can't keep building all of this infrastructure that's going to be in place for decades, pushing us further and further towards the climate cliff, without doing a better job of analyzing what those impacts are, quantifying the amount of emissions that you're authorizing, and thinking harder about whether this makes sense. So it's an important decision on a lot of levels.

CURWOOD: So what does the judge say, in this particular case regarding these leases, that the Bureau of Land Management has to do to satisfy him about this thought process?

PARENTEAU: First thing he said is stop making excuses about not being able to quantify the impact of what you're talking about. You've got data, and he pointed to a number of studies that were in the record. He said, You just didn't take the time and effort to actually analyze and compute this data, quantify these emissions. And you also said, Well, we can do it later. And he said, no, that you can't do it later. The leases are the point of no return. Once the federal government has committed to leasing these areas, it's a contract, it's a binding legal contract, the companies bid lots of money to buy these leases. They don't give them away. And so he said, No, this is the time to do this kind of analysis. Yes, it requires some prediction and projection. Yes, there's some uncertainty, you can factor all that in to your analysis. But you can't simply throw up your hands and say, Oh, we just don't know how to do it. That's really not true. He just rejected that out of hand.

CURWOOD: So what does the law tell us, Pat, about the need to put potential greenhouse gas emissions from one particular project into the context of other greenhouse gas emissions?

PARENTEAU: Yeah, that's a key question. So the court also said, you not only have to consider the effects of these immediate leases that you're offering, but you're doing other leases in other parts of the West and other public lands. And you're also doing other kinds of fossil fuel related developments -- coal mining, for example. And he said, you know, you really do have to look at the cumulative effect of the combined efforts of the federal government to produce and sell all of this fossil fuel. And again, he's relating this to the science of climate change, which basically says, the only number that really matters is how much of this carbon is actually getting into the atmosphere. It's the cumulative loading of the atmosphere that's the problem, it's not any one source or another, it's the sum total of all of them. And so the judge is saying you, you have to at least acknowledge that it isn't just these few leases we're talking about. It's a massive energy development push that's underway, and it's pushing us closer and closer to what people call the climate cliff. Now, he's not saying you have to quantify it down to the last digit. But he is saying you've got to bound within some range the amount of leasing and emissions that you're creating, and you've got to link that in some way to what the climate science is telling us is the limit, the carbon budget limit, that we can live with.

CURWOOD: So the judge is not saying, Well, you can't do this, because it's going to release so much greenhouse gas, you're going to destroy livability on the earth. And yet it sounds like with the procedural questions that, he's really throwing a spanner into the works of developing this stuff. I mean, how long would it take for the BLM to comply with what this judge wants to move forward?

PARENTEAU: Yeah, it is going to take them a while because the amount of calculations and projections and margins of error, you know, that's going to require models. They do have some models that they can use, but they've got to input the data, analyze it, and then they've got to justify, if they're not going to hold off on these leases or basically rethink the whole idea of granting these leases. The judge has made it clear, he says, I'm going to want some sufficient explanations from you, once you've done your calculations as to why it makes sense in the public interest to keep moving forward. And on that point, actually, I can't fault the judge here because he did not require what's called a social cost of carbon calculation. He distinguished his decision from some other courts that have required that analysis by saying, well, the Bureau of Land Management isn't claiming large economic benefits as they were in some of these other cases. But we all know that that's the thing that's driving this oil and gas development. So the point here is, in addition to looking at the science of climate and the consequences, there's also an economic cost to developing all this oil and gas and that's not being calculated and included in the decision making process as well.

CURWOOD: So the environmental groups that brought the suit here, to what extent are they hoping that maybe this will stall things enough for the clock to run out and there might be another administration?

PARENTEAU: Yeah, that's really the goal of a lot of these, what we call "whack-a-mole" cases where you're going after individual coal mines, pipelines, oil and gas leases. You're buying time if you're an environmental group, and if you're concerned about climate; you're waiting for 2020, you're hoping to stall the Trump administration's massive push to develop all these resources and allow for the election to replace the leadership in Washington with the hope that there'll be different decisions and different priorities come 2020.

CURWOOD: This approach is happening in a number of cases. I mean, there wasn't any leasing involved in the Keystone XL decision. But kind of the same thing I think I heard from the court, well, you guys haven't worked out the appropriate details vis-a-vis the climate risk here.

PARENTEAU: Yeah, it is. It's very similar, and the same with some of the gas pipeline cases that have been held up by the federal courts. I like to say that the courts are now the last line of defense for the environment, maybe the earth if you want to put it that way. We don't have any leadership in Congress, we obviously have the wrong kind of leadership in the White House. And so it's up to the courts, and they're faced with a difficult decision because they're really not supposed to be making policy decisions. But on the other hand, when they, when they see agencies ramming these kinds of fossil fuel projects through without careful analysis, without what the law calls a hard look, they're stopping them, left and right. I mean, the Trump administration is something like two and 30 in federal court with their roll back initiative. So the courts, they are the third branch and they're holding the line.

CURWOOD: Pat Parenteau is a professor at Vermont Law School and currently a visiting professor at the University of New Mexico Law School in Albuquerque. Pat, thanks so much for taking the time with us today.

PARENTEAU: Thank you, Steve.

 

Links

The Washington Post | “Federal judge demands Trump administration reveal how its drilling plans will fuel climate change”

Federal Judge Rudolph Contreras’ written opinion on the case

Our Children’s Trust is representing the Juliana plaintiffs

About Professor Pat Parenteau