March 02, 2020

Leaving it in the ground: Examining recent proposals to ban fossil fuel extraction on America’s public lands

Dustin Charles Elliott

Fossil fuel extraction on federal public lands is responsible for almost a quarter of all greenhouse gas (GHG) emissions in the United States. With an eye toward comprehensive climate policy proposals, several 2020 Democratic presidential hopefuls have pledged to ban new fossil fuel leases offshore and on federal lands. Combined with similar proposals to curtail or ban fracking, rising calls to “leave it in the ground” have sent shockwaves through the energy sector. This article outlines potential implications a ban on fossil fuel leases on federal lands and waters, highlighting potential short- and long-term impacts—including implications for renewable energy development.

Who is proposing what? Answering a growing concern about GHG emissions and climate change impacts, a number of leading presidential candidates have vowed to terminate fossil fuel leases on federal lands and waters in the United States. Senator Elizabeth Warren has committed to “sign an executive order that says no more drilling—a total moratorium on all new fossil fuel leases, including for drilling offshore and on public lands.” Senator Bernie Sanders has pledged to “immediately end all new and existing fossil fuel extraction on federal public lands.” Former Vice President Joe Biden’s climate plan promises to “ban[] new oil and gas permitting on public lands and waters.”

All told, the vast majority of Democratic 2020 presidential candidates have come out in support of a ban on leasing federal lands for fossil fuel extraction.

Likely short- and long-term impacts. The federal government owns roughly 640 million acres of land in the United States—land that includes not only a plethora of ecosystems, flora, and fauna, but also a bounty of natural gas, coal, and oil deposits. Domestic oil and gas production have surged over the past two years of the Trump presidency. With record growth in 2018, the United States is now the world’s leading oil and gas producer and an increasingly significant exporter.

Federal land leases account for nearly 40 percent of the nation’s coal production, 25 percent of its oil production, and 12 percent of its natural gas production. The emissions from the extraction of these resources accounts for about 20 percent of the nation’s total GHG output. A ban on new fossil fuel leasing like the ones proposed by 2020 presidential candidates could thus, according to some estimates, have a huge effect on the role of public lands as a contributor to climate change—slashing carbon dioxide emissions by 280 million tons per year by  2030.

A ban would impact some fossil fuel companies more than others, depending on the size of their federal versus private land lease portfolios. Among those with significant investments in federal lands, smaller fossil fuel companies would be hit particularly hard by a ban, as they would not have the resources and flexibility to move to alternative sources. Larger fossil fuel companies might lean more heavily on international options but could alternatively respond by ramping up their investments in renewables and the clean tech sector, including new investments in electric vehicle charging and carbon removal. Overall, oils majors and larger independents will likely have an easier time transitioning to beyond a focus on oil and gas to a focus on energy writ large.

Legal and political challenges on the horizon. Given the campaign promises noted above, a Democratic president would likely use an executive order to ban new federal fossil fuel leases. Stymying projects on existing leases is another possibility, albeit a more challenging one from a legal perspective. Regardless, either approach would face strong legal and political opposition, in addition to a number of bureaucratic hurdles.

A key component of surviving the inevitable legal challenge of such a ban would be providing a clear, well-supported rationale for implementing a ban on new leases—similar to the Obama administration’s rationale for its moratorium on coal leasing. Once the ban is implemented, any future attempt to reverse it would likely have to assess the environmental impact of the reversal under the National Environmental Policy Act, as a federal district court in Montana recently ruled was the case with regard to the Trump administration’s attempt to reverse the aforementioned coal lease moratorium (see case no. CV-17-30-GF-BMM).

Boon for renewable energy development? At the same time that 2020 presidential candidates are calling for the ban on fossil fuel leasing, several are proposing to refocus the federal land leasing efforts on renewable energy development. Senator Warren’s plan for public lands, for example, proposes to procure 10 percent of the nation’s electricity from solar, wind, or other renewable energy produced offshore or on federally owned land. Public lands, it seems, will not be wholly off limits for energy production.

What to watch for next. The outcome of the 2020 federal presidential election could significantly change the energy landscape of the United States. As outlined above, a Democratic president would likely shift federal land leasing away from fossil fuels and toward renewable energy development, perhaps further souring investor sentiment toward the fossil fuel-centric economy. That said, a shift away from fossil fuels won’t come without its own set of challenges, especially given the United States’ new global leadership role on oil and gas production.

    Dustin Charles Elliott

    Dustin Charles Elliott is an energy and environmental attorney with expertise in renewable energy, climate change, natural resource and public lands management, environmental sustainability, infrastructure development, agriculture, and water rights policy.