Executive Order Pausing Oil & Gas Leasing on Federal Lands Is Enjoined

On June 15th, 2021, federal district judge Terry A. Doughty from the Western District of Louisiana granted an injunction sought by several states to block the implementation of Executive Order 14008 issued by President Biden in his first week of office in an effort to pause new oil and gas leasing on public lands and offshore waters (E.O. 14008). [i]  The States based their Motion for Preliminary Injunction on violations of the Administrative Procedure Act (APA).

Prior to considering the States’ Motion for Preliminary Injunction, the Court analyzed three procedural issues: (1) whether the States had standing, (2) whether E.O. 14008 was a final agency action reviewable by the Court, and (3) whether there was an actual “pause” in issuance of oil and gas leases.

On the issue of standing, the Court ruled that the States had standing because: (1) the States have alleged “loss of proceeds… from bonuses, land rents, royalties, and other income” and “loss of jobs and economic damage as a direct result of the Pause,” (2) the States provided declarations from experts attesting to how the pause would result in damages, and (3) an injunction could serve to redress the injuries the States would suffer since “a Pause for any significant length of time would allegedly result in other losses.”

Next, the Court held that the pause on new oil and gas leases on federal lands and in federal waters, the cancellation and cessation of Lease Sale 257 (Western and Central planning areas of the Gulf of Mexico) and Lease Sale 258 (Cook Intel, Alaska), and the cancellation or postponement of “eligible lands’ under the Mineral Leasing Act (MLA), were, under the APA, final agency actions reviewable by the Court.  The Court similarly concluded that these actions give rise to “a substantial likelihood for success on the merits on proving the Agency Defendants have implemented the Executive Order Pause to both on-land sales under MLA and to offshore sales under OCSLA.”

On the merits of the Motion for Preliminary Injunction, the Court determined that the States had a substantial likelihood of success on the merits for four reasons.  First, the Court ruled that E.O. 14008 was outside the scope of executive authority as the pause was contrary to two statutes, the Outer Continental Shelf Lands Act (OCSLA) and the MLA. The Court concluded that both OCSLA and MLA require ongoing oil and gas lease sales: “OCSLA has a Five-Year Plan in effect that requires eligible leases to be sold” and the “MLA requires the Department of the Interior to hold lease sale.”  Next, the Court ruled that the omission of rational explanations for the cancelling of lease sales in E.O. 14008 demonstrated arbitrary and capricious behavior on the part of the President.  Third, the Court ruled that E.O. 14008 was subject to notice and comment, and that no notice or comment was provided.  Finally, the Court ruled that agencies implementing the order were unreasonably withholding and delaying the lease sales of Lease Sale 257, Lease Sale 258, and the “eligible land” under the MLA.

The Court then turned to the next element for injunctive relief, irreparable injury. The Court ruled that the States demonstrated a substantial threat of irreparable injury because sovereign immunity makes it nearly impossible for the States to recover damages from the federal government.  Lastly, the Court addressed the final two elements of preliminary injunction, the balance of equities and the public interest.  The Court ruled that the implementation of E.O. 14008 substantially impacts the States, whereas the federal government would not be harmed if it was enjoined from implementing the pause.  The Court also added that “public interest is served when the law is followed.”  Thus, the Court held that the states satisfied all four elements for preliminary injunction and granted the States’ Motion for Preliminary Injunction and made the injunction apply nationwide.

Carlos R. Romo is an attorney in Williams Weese Pepple & Ferguson’s Natural Resources and Federal Lands group.  Dawit Woldu is a Summer Clerk.

[i]  The Plaintiff States involved are the States of Louisiana, Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Texas, Utah, and West Virginia. They are herein referred to as “the states”

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