Federal Judge Blocks Obama Move Against Oil and Gas Leases
At the Washington Examiner, Mark Tapscott reports that "one of President Obama's earliest policy moves on the energy and environment front has been shut down by a federal judge."
U.S. District Judge Dee Benson ruled Thursday that Ken Salazar, Obama's Secretary of the Interior, exceeded his lawful authority in March 2009 when he suspended 77 oil and gas leases on western federal lands that had been awarded to high bidders. [...] "'the secretary exceeded his statutory authority by withdrawing leases after determining which parcels were to be leased and after holding a competitive lease during which the BLM named the plaintiffs high responsible bidders," said Benson' [...].
This case is more important as a political precedent than as a legal one, for it indicates that at least one judge has decided to enforce the letter of the law in a case that involves oil and gas leases on federal lands. The issue here is of massive importance because the United States owns huge chunks of western lands over which it has well-nigh complete discretion to lease, or not to lease (to paraphrase Hamlet) these lands. But the decision to lease, once the auction is complete is binding on the government just as it would be on any other lessor. That principle reduces the level of government discretion to that which is enjoyed by private parties, which is always a welcome state. the last sentence in this entry refers to the fact that the plaintiffs waited (for reasons unknown) to bring that law suit, which is why they were time barred by a very short 90 day statute of limitations, which does give the government a leg up over private parties who normally face longer statutes. But even this is not so troublesome so long as private parties can write shorter limitation periods into their contracts. So on both points the case looks pretty solid, and mercifully uneventful.
The larger question remains on how the government should exercise the high level of discretion that it has over public lands. Ideally there should be no giveaways of these assets, which the competitive bidding process prevents. (Elsewhere I have called this the reverse takings clause: nor shall public property be given to private use, without just compensation.) But by the same token the government should not be willing to so tie up the land that it never reaches the competitive bidding process at all. Getting the right balance between environmental concerns and economic ones is never easy. But here is one indication of why the current policies are too restrictive. In general, by contract the government can indicate what restrictions it likes, and should in this regard with sensitive lands follow the usual practices of, say, the Audubon society, which has just this problem in running its bird sanctuaries. And it should rely more on injunctions and damages after evidence that some thing has, or is about to go, wrong than its elaborate permit system. Calibration is always tricky, but right now too much weight is given to the precautionary principle.
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Aug '10
Re: Federal Judge Blocks Obama Move Against Oil and Gas Leases
Hallelujah and Saints be praised. The Obamites meet a brick wall just as an avalanche of negative poll numbers and sour Hopey-Changey activists wake up the morning after. Canceling the oil leases is like grounding every airliner after a crash. Salazar did more damage to the Gulf economy that BP's bad rig.
Jun '10
Re: Federal Judge Blocks Obama Move Against Oil and Gas Leases
I read Mr. Epstein's discussion to be about western Federal land, not the Gulf. My guess is the legal stuff is probably different, but the effort by this administration to cripple our ability to utilize our own God given energy is consistant. It matters not whether it is oil, natural gas, or coal, the left is determined to deny the U.S.A. and us, its citizens (and per se the owners of that energy) our rightful access. We have the equivalent of 2-3 trillion bbls of oil, comprised of coal, natural gas, liquid, and shale oil in known reserves in this country. That is without the Pacific and Atlantic off shore potential, which hasn't been seriously explored for 30 years. Seventy-five percent of those reserves are in Federal lands. At $50 per barrel we are talking 150 trillion dollars worth of energy. This country is not broke. We have tremendous assets and we must liquidate some of them to pay our debts. This will keep our dollar and our lifestyles strong. At the same time we must pull back our entitlements and balance our budgets. The left must be overcome to save this country.
May '10
Re: Federal Judge Blocks Obama Move Against Oil and Gas Leases
"This case is more important as a political precedent than as a legal one, for it indicates that at least one judge has decided to enforce the letter of the law in case that involves oil and gas leases on federal lands."
After a bankruptcy court rolled over to allow the property interests of GM bondholders to be wiped out in favor of an unsecured creditor (the UAW), I'd interpret the "political precedent" of Judge Benson's ruling more broadly. Better late than never, we're finally getting some constitutional push-back against an overbearing if not (in some areas) lawless Executive from a coordinate branch of the federal government. Next up will be Congress, after the 2010 elections.