Interior secretary Jewell dismisses call to end federal fossil fuel leasing, disappoints environmentalists

The Obama administration’s chief public land and continental shelf manager did not have any encouraging words Wednesday about a proposal to end federal oil and coal leasing.

Responding informally to a letter from more than 400 organizations and individuals concerned about anthropogenic climate change that was delivered Tuesday to the White House, secretary of the interior Sally Jewell rejected the idea of eliminating fossil fuel production on the federal estate because the country “continues to be dependent on fossil fuels.”

“Right now, we are sitting under lights that are most likely powered by coal, in the East,” she said, according to The Hill newspaper. “Maybe some of you walked here, but most of you probably burned some fossil fuels in one way or another to get here. There are millions of jobs in this country that are dependent on these industries, and you can’t just cut it off overnight and expect to have an economy that is, in fact, the leader in the world.”

Environmental group leaders roundly criticized Jewell’s comments.

“This is a straw man, and Secretary Jewell knows it,” May Boeve, the executive director at said in a statement. “Absolutely no one is suggesting that we can end society’s reliance on fossil fuel use tomorrow, but that’s no excuse for failing to do our part today.”

Taylor McKinnon, a spokesperson for the Center for Biological Diversity, explained that current leasing plans account for “decades’ worth” of oil and coal, “more than can ever be safely burned.”

“The fact that society uses fossil fuels doesn’t obviate the need to quickly de-carbonize and stop digging them up,” McKinnon said. “Sixty-seven million acres of public land and ocean are already leased to industry. Those contain 43 billion tons of greenhouse gas pollution. And this is atop 42 million more acres proposed by her agency on Friday.”

McKinnon was referring to two oil and gas exploration leases in the Gulf of Mexico that were proposed Sept. 11 by the Department of Interior’s Bureau of Ocean Energy Management.

If approved, those leases could result in the production of at least 531 million barrels of oil and more than two trillion cubic feet of natural gas. They would cover more than 40 million acres off the coasts of Louisiana, Mississippi, and Alabama.

A report released last month by Eco-Shift Consulting on behalf of the Center for Biological Diversity and Friends of the Earth concluded that combustion of the remaining fossil fuels available on the federal estate would result in the equivalent as much as 450 billion tons of carbon dioxide being discharged to the atmosphere.

“This is equivalent to 13 times global carbon emissions in 2014 or annual emissions from 118,000 coal-fired power plants,” the report said.

President Barack Obama probably does have the authority to terminate future fossil fuel leases, both on the public lands and offshore. The Outer Continental Shelf Lands Act of 1953 gives the President essentially unilateral authority to remove areas of the OCS from oil and gas exploration and extraction activities, while the Federal Land Policy and Management Act of 1976 requires only some reporting and analysis requirements as a prerequisite to executive authority to remove Bureau of Land Management acreage from energy leasing.

The Federal Onshore Oil and Gas Leasing Reform Act of 1987 grants to BLM and the Department of Agriculture’s Forest Service discretion to decide whether to permit oil and gas leasing. Similarly, the Mineral Leasing Act, as amended by the Surface Mining Control and Reclamation Act of 1977, affords both the secretaries of Interior and Agriculture wide latitude on the question whether to allow coal mining on BLM and USDA Forest Service land:

“The secretary of the interior is authorized to divide any lands subject to this Act which have been classified for coal leasing into leasing tracts of such size as the secretary finds appropriate and in the public interests and which will permit the mining of all coal that can be economically extracted in such tract and thereafter the secretary shall, in his or her discretion, upon the request of any qualified applicant or on his or her own motion, from time to time, offer such lands for leasing and shall award leases thereon by competitive bidding.”

The federal public lands comprise about 650 million acres, while the continental shelf exceeds 1.7 billion acres. The amount of federal public land leased for oil, gas, and coal extraction is about 55 times as large as Grand Canyon National Park.

The Sept. 15 letter to Obama by the coalition writing under the name “Keep It in the Ground” argued that Washington will not be able to meet any meaningful international commitments to reduce greenhouse gas emissions if federal fossil fuel leasing is not terminated.

“The science is clear that, to maintain a good chance of avoiding catastrophic levels of warming, the world must keep the vast majority of its remaining fossil fuels in the ground,” the letter said. “Federal fossil fuels — those that you control — are the natural place to begin. Each new federal fossil fuel lease opens new deposits for development that should be deemed unburnable. By placing those deposits off limits, stopping new leasing would help align your administration’s energy policy with a safer climate future and global carbon budgets.”

EPA proposes carbon dioxide limits for new power plants

The Obama administration made clear Friday that it will move forward with a regulatory agenda aimed at slowing climate change as the Environmental Protection Agency announced a proposed regulation that would limit carbon dioxide emissions from new power plants.

The proposed Carbon Pollution Standard for New Power Plants was announced at the National Press Club by EPA administrator Gina McCarthy.

The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences of climate change,” McCarthy said, according to prepared remarks. “We know this is not just about melting glaciers. Climate change – caused by carbon pollution – is one of the most significant public health threats of our time. That’s why EPA has been called to action.”

In 2007 the U.S. Supreme Court heldthat EPA must regulate emissions of carbon dioxide to the atmosphere because it is a pollutant that can harm public health and the environment. EPA issued the required “endangerment” findingin Dec. 2009, a decision that was upheldby the federal appeals court in Washington, DC in June 2012.

The endangerment finding relating to carbon dioxide prevents EPA from leaving carbon dioxide pollution of the atmosphere unregulated.

EPA has no choice but to adopt these regulations,” Patrick A. Parenteau, a professor of law at Vermont Law School, said. “What’s in the regulations is a subject of controversy and discussion. But they don’t have the ability to say ‘no, we won’t do it.’”

The rules announced Friday would, if finalized, distinguish between natural gas-fired power plants and coal-fired electricity generation facilities.

For large natural gas plants, a limit of 1,000 pounds of carbon dioxide per megawatt hour would be imposed; for smaller natural gas power plants, the cap would be 1,100 pounds of CO2 per megawatt hour.

Coal plants would not be allowed to emit more than 1,100 pounds of CO2 per megawatt hour. The regulation provides an avenue for coal plant operators to have some additional flexibility as to the limit by allowing them to average emissions over several years, but only if a coal plant operator agreed to accept a more stringent emissions cap.

The core of the rules, and an aspect that may serve as the prop for an expected legal attack by the affected industries, is a requirement that coal-fired power plants capture and store the carbon dioxide they now emit to the atmosphere.

Widespread adoption of the technology has been resisted by the industry on grounds that it may cause an increase in the cost of producing electricity and consume a large proportion of the energy produced by a power plant.

The environmental community generally welcomed Friday’s announcement, lauding the administration’s action as an important step toward a functional national system of greenhouse gas emission controls.

The standard makes clear that tomorrow’s power plants won’t be built at the expense of our children’s future,” Natural Resources Defense Council president Francis Beineke said in a statement. “It signals that we’re moving, as a country, to the clean energy solutions we need. And it will help safeguard the most vulnerable among us—our children and elderly people—from smog worsened by climate change.”

Environmental Defense Fund president Fred Krupp emphasized the potential mitigation of extreme weather events that might be provided by the proposed new source performance standard.

“As communities across our country struggle with terrible floods, droughts, and wildfires, these standards will finally put a limit on the carbon pollution that new power plants emit into our skies,” he said in a statement. “Cleaner power generation will protect our children from dangerous smog, extreme weather, and other serious climate impacts, and ensure that America leads the world in the race to develop cleaner, safer power technologies.”

The coal and electric utility industries, meanwhile, wasted little time before expressing its displeasure.

“We intend to  make all the arguments we can against the EPA’s proposed regulation because taking away the option to build efficient new coal-fueled power plants is bad policy,” Robert M. Duncan, the president and chief executive officer of the American Coalition for Clean Coal Electricity, said in a statement.

ACCCE is a coalition of electric utility and coal interests.

Duncan also suggested that litigation challenging the proposed rules is likely.  

Parenteau said that any litigation challenging the new rules would succeed only if it convinces a panel of federal appeals court judges that an equally effective, less expensive pollution control technology is available to power plant operators.

That legal obstacle is daunting. A decision of the U.S. Court of Appeals for the District of Columbia Circuit in 1973 held that a technology-forcing rule “may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants.”

That decision, in a case called Portland Cement Association v. Ruckelshaus, does constrain EPA’s discretion to some extent, as it imposes a “reasonableness” standard on the agency. A technology-forcing rule, the court said, “cannot be based on a ‘crystal ball’ inquiry.”

The proposed rule argues that CCS technology has been implemented around the nation, though several of the examples mentioned in it involve electricity generation facilities. However, none of those have actually sequestered carbon dioxide emissions.

The financial costs of compliance may prove less likely to supply a winning argument for industry. A 1999 decisionof the D.C. Circuit held that EPA’s choice of a technology mandate “will be sustained unless the environmental or economic costs of using the technology are exorbitant.”

Other cases have provided some clarity to that definition, holding that a maximum achievable control technology requirement included in an emissions regulation will not be rejected unless the costs imposed by the requirement are so high as to threaten the existence of the industry.

These legal arguments will be relevant only if the Supreme Court does not re-visit its Massachusetts v. Environmental Protection Agency ruling. The justices are expected to decide, early in the new court term, whether to grant review of an appeals court decision that upheld EPA’s endangerment finding.

It’s very unlikely that the Supreme Court would grant review,” Parenteau said. “If for some reason they ruled that the EPA endangerment finding is flawed, then the house of cards falls down. That’s the foundational finding for all these rules. Everything depends on that endangerment finding.”

Parenteau explained that he thought the odds of a reversal of Massachusetts v. EPA were quite low.

“I think it’s less than a one percent chance that the Supreme Court would get five votes to challenge EPA on that,” he said.

“If the industry wants to challenge, sure, it’s going to be expensive, but what’s going to be better?” Parenteau said. “They’re going to have come forward with a better technology.”

Some members of Congress, especially those who represent coal-producing states, are staking out a backstop in case litigation proves unable to stop EPA’s effort to regulate the CO2 emissions of new power plants.

Sen. Joe Manchin, D-W.Va., issued a blistering statement accusing the Obama administration of being an “adversary” of the coal industry.

“Today’s announcement of the EPA’s new source performance standard is direct evidence that this Administration is trying to hold the coal industry to impossible standards,” he said.

Sen. Mitch McConnell, a Kentucky Republican and the chamber’s minority leader, said Friday that he would invoke a rarely-used legislative procedure in an effort to block the rules.

“I will file a resolution of disapproval under the Congressional Review Act to ensure a vote to stop this devastating EPA rule,” he said in a statement.

Assuming that a CRA resolution could get passed by the Democratic-controlled Senate, it is not likely that it would be signed into law by the president. President Barack Obama signaled his commitment to an effort to rein in power plant greenhouse gas emissions when he announced a comprehensive climate change policy earlier in the year.

EPA is also working on greenhouse gas emission standards for existing electricity generation facilities.

“[W]e are committed to act on existing plants, too,” McCarthy said Friday. “However, those proposed standards are on a longer timeline. We plan to release a proposal for public comment in June of next year.”

Photo courtesy Wikimedia. 

NOTE: This article also appears at

Bush Seeks to Legalize Mountaintop Stripping

The Bush Adminisration’s Environmental Protection Agency has approved a proposed rule that would allow the practice of stripping off mountain tops to find coal, and then dumping the debris into streams, to resume, according to a report in the McClatchy Newspapers.

A 1983 regulation prohibits the dumping of such mining debris, which often results from a common mining practice in the coal regions of Appalachia. The government in recent years has declined to enforce this rule.

Government figures show that about 535 miles of streams were buried or diverted between 2001 and 2005, about half of them in Appalachia.

The Department of Interior intends to finalize the rule this month, according to a report in the McLatchy Newspapers, and it will go into effect before President-elect Barack Obama takes office.

The Obama-Biden transition office has not commented on its plans for seeking the reversal of this and other recent changes to federal regulations.