Environmental groups want to use laws protecting fish in California to stop oil production in New Mexico and Wyoming. It is a legal concept some call novel, while critics say it could endanger the entire U.S. fossil fuel industry, and at a time when energy prices are soaring.
Groups including the Center for Biological Diversity and WildEarth Guardians are suing the Biden administration, hoping to block the sale of new drilling leases on federal land. And to do so, they are relying on the Endangered Species Act (ESA).
“It is disturbing that the administration would even consider crippling protections for our most imperiled animals and plants during this unprecedented extinction crisis,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “We sincerely hope the Biden administration will publicly reject this head-in-the-sand approach to the climate emergency and extinction crisis.”
Their argument is oil from a well in Wyoming will add to the carbon dioxide already heating the planet and, therefore, endanger the habitat of every protected species, including bears in the Arctic, birds in the Caribbean, and the delta smelt in San Francisco Bay.
“Every new well takes polar bears and many other species one step closer to extinction,” Hartl continued.
Energy industry experts note that if the argument prevails, more than 3,500 drilling permits issued by the Biden administration could be revoked and future production could become virtually impossible.
“They will not be satisfied until federal oil and natural gas is shut down completely, yet that option is not supported by law,” said Kathleen Sgamma, president of Western Energy Alliance
A court in Philadelphia on Wednesday heard oral arguments in a related case in which the state of Delaware and the city of Hoboken, N.J., among others, want to sue international energy companies over the impact of climate change in their state courts, not in federal court. Those lawyers argue the alleged damage is being felt locally, therefore local courts should hear the cases.
It is another legal theory that could be devastating to the energy industry.
“The arguments that the environmental movement put forward are novel,” Sgamma said of the ESA case. “They are certainly a broad interpretation about various laws that really have not been interpreted really the way that they are trying to get them interpreted.”
That may not be the point, however.
“This is about suing the Biden administration and hopefully settling with it,” says Sgamma.
So-called ‘sue and settle’ efforts are not new. They have been around for years and involve special interest groups that sue a federal agency or branch in hopes of getting an executive branch rule without input from Congress or the legislative branch.
When it comes to the coalition’s lawsuit against Biden, Sgamma says the desire is to get the administration to say, ‘We’re getting pressure on these permits, we have to slow down.’
“That is kind of their worst-case scenario because they (environmental groups) know they can trip up the Biden administration,” says Sgamma. “What they really want to do is get the Biden administration to agree with them and not go through court but just settle with them and redo these permits.”
Either way, Sgamma says environmental groups see it as “kind of a win-win situation.”
But for U.S. consumers, it could be lose-lose.
The price of gasoline has hit multiple record highs in the past two weeks before tapering off in recent days. Utility companies are warning customers may see rate hikes of 50 percent or more in the coming months.
The Biden administration has tried to blame Russian President Vladimir Putin and his invasion of Ukraine for rising energy costs. White House spokespeople often refer to “Putin’s Price Hike.” However, energy prices began climbing long before Putin’s invasion.
“I do not know that there is a real clean and easy way to reduce these frivolous lawsuits because of the way the laws are written, but certainly there are groups that are litigious and that is their business model,” says Sgamma. “They sue the federal government, they raise money from their supporters who believe them when they say they are protecting fuzzy animals and working to address climate change, when all they are really doing is stopping productive activities and most of their work does not benefit the environment all, but it benefits their lawyers on staff.”
Unfortunately, adds Sgamma, “you can always find a judge that you can convince that ‘more analysis could have been done’ or ‘they should have looked at this species this way.’
“They are just notorious laws for having impractical implementation. It is just easy to sue on them, and once you are sued, even if you win, you’ve spent years in court dealing with complex litigation,” she said.
“What we are hoping gets done is that the lawsuit is dismissed fairly quickly because it is so frivolous.”