Harry Truman was famous for the simple instruction, “Say what you mean, mean what you say.” He was talking about personal communication, not differing interpretations of law. In his day, the law was generally clear about what was legal and what was not, and Congressional bills were not thousands of pages long.
Today’s bloated legislation is not only unwieldy, but also subject to varying interpretations. That allows for mischief, and sometimes outright disregard for existing law by federal officials, perhaps hoping legislators, and the public, won’t notice because of that complexity. We are conditioned to accept new “interpretations” by new administrations, even when they represent 180-degree reversals of long-standing policy.
That fact was brought into sharp focus by a federal judge’s June 15 ruling in the public lands leasing case. It was an unusual – and refreshing – reminder that we still live in a country where policy is made by law, not by the everyday whims of current office holders.
On his first day in office, President Biden signed an “executive order” indefinitely suspending all oil and gas leasing, on both offshore and onshore public lands. In a lawsuit brought by thirteen states, the judge effectively said, “not so fast – we have laws in this country.”
It has been seven years since President Obama issued his now-famous warning, threatening to bypass Congress and use executive orders to reinterpret federal laws. “I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders, and take executive actions and administrative actions that move the ball forward.” Like many other presidents, he got away with that for one reason only – Congress did nothing to stand in his way.
Previous administrations have changed the amount of oil and gas leasing on public lands. One previous administration declared a “moratorium” on new leases, whereas Biden called it a “pause.” However, there is a technical problem with that. Oil and gas leasing is authorized by the Mineral Leasing Act (MLA) on public lands, and offshore by the Outer Continental Shelf Lands Act (OCSLA).
Leases are issued only after a carefully defined public process, and in accordance with agency plans, adopted through a similar public process. That involves voluminous studies of environmental and economic impacts, public comments, other agency consultation, public hearings, and an appeal process – all of which must be published, including every excruciating detail of the rules, location maps, and operations. Leases are then available for bids, and auctioned under proscribed guidelines. All of that is dictated by laws, duly passed by Congress and signed by presidents – the MLA in 1920 and the OCSLA in 1953, both amended several times since.
Presidents can, of course, change the plans, going through that public process and altering the availability of lands, either to increase or decrease energy production. But as this ruling clarified, presidents cannot simply set aside leases already planned and agreed upon, nor decide without any public process to stop all such leasing. The judge granted a preliminary injunction in favor of the state plaintiffs, saying the “pause” violated both the MLA and the OCSLA, because such a dramatic change requires a public process, not an “executive order.”
The judge wrote that Administration officials “are in effect amending two congressional statutes, OCSLA and MLA, which they do not have the authority to do.”
The stakes are high. An analysis prepared for the American Petroleum Institute by the expert firm, OnLocation, using the same software used for the government’s Annual Energy Outlook, found that a ban on energy production on public lands would cost the U.S. 68 percent of its natural gas production, 44 percent of its oil development, and cause a $700 billion decline in the gross domestic product. The Gulf Coast could lose 200,000 jobs, and the Rocky Mountain States tens of thousands more. Colorado, Wyoming, and New Mexico account for 88 percent of all production of natural gas on federal lands.
Equally worrisome, the leasing ban has contributed to a dramatic increase in our dependence on Russian and Middle Eastern oil. The Energy Department revealed that two oil tankers from Iran arrived in the U.S. in the last nine months. Additionally, imports of Russian oil are at a ten-year high.
But this isn’t just about jobs or geopolitical consequences, important though they are. This case illustrates something far more fundamental, that public policy in America is made by elected representatives, through the legislative process. However well-meaning, presidents cannot change the law with the stroke of a pen.
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