Public Lands and Just Energy Transitions

This post is part of a series related to the March 12 Conference on Public Lands and Energy Transitions that was hosted by the George Washington University Law School's Environment and Energy Law Program.

Our vast public lands and waters are both a major contributor to the global climate crisis and a potential solution to the problem. The extraction and use of oil and gas resources from public lands and waters produce 20 percent of U.S. greenhouse gas (GHG) emissions. If the public lands were its own nation, it would be the fifth largest global emitter of GHGs.

The scale of this problem has been exacerbated by the current administration. Since the start of the Trump administration, the U.S. Department of the Interior – the primary federal agency charged by Congress with managing the use of public lands and waters – has used its statutory authority to open up a record number of acres for new fossil fuel development and to roll back Obama-era regulations designed to reduce methane emissions and other pollution associated with existing fossil fuel development. The current administration has thus used the public lands to boost the profits of major oil and gas companies at the expense of our health and environment.

At the same time, our public lands also represent one of the nation's most powerful tools to support a clean energy transition. Currently, nearly 10 percent of our electricity mix comes from wind and solar energy (up from only 4 percent in 2010), and that percentage is growing rapidly. But virtually all of the nation's installed capacity of wind and solar energy is located on private lands, not public lands. Of the 100,000 megawatts (MW) of installed wind energy capacity in the United States, only 3,000 MW is located on public lands. Likewise, of the 71,000 MW of installed solar capacity in the United States, only 6,000 MW is located on public lands. Thus, while our public lands play host to an ever-increasing amount of fossil fuel development, the same cannot be said for renewable energy.

This is despite the fact that the 640 million acres that make up the federal public estate host some of the nation's best wind and solar power potential, and offshore wind in the Outer Continental Shelf (OCS) could power the nation on its own many times over. But even under prior presidential administrations, development of these needed projects was extremely slow due to opposition from some environmental groups, as well as needed permits, rights-of-way, and the various requirements of the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and other longstanding environmental laws.

For good reason, environmental groups are wary of development on public lands, concerned about the potential for adverse impacts on open space, plant and animal species, and other natural resources. For its part, the Trump administration has made matters worse by dismantling land use planning processes put in place during the Obama administration that were designed to facilitate the siting and approval of renewable energy projects. But the need to ramp up renewables is critical, and I think my friends in the environmental movement will soon need to come to grips with the reality that solar and wind power generation on public lands and waters must viewed through a different lens. It's not simply another form of private industrial development that will enrich private corporations at the expense of precious natural resources. It's an effort to replace forms of electricity generation that are gradually choking the planet with ones that we can sustain, addressing the most significant environmental threat civilization has ever faced.

In addition to those factors, the Interior Department under President Trump has deliberately slow-walked permitting processes for renewable energy projects while accelerating those processes for fossil fuel projects.

Despite all that, there are ways to move forward. As a nation, we should not only limit and ultimately eliminate the use of public lands for fossil fuel development, but also focus on the public lands as a primary means to lead the way to a clean energy future. A path forward could rely on the following building blocks:

• Phase out the use of public lands and waters for some or all fossil fuel production. This could be accomplished with potential revisions to existing federal laws, like the Federal Land Policy and Management Act (FLPMA), to disallow some or all fossil fuel development on public lands or replace the existing "multiple-use" management mandate governing the Bureau of Land Management (BLM) with a mandate that disfavors fossil fuel development and/or imposes a social cost of carbon on land use decisions. This phase-out could also be accomplished by executive order, such as bringing back the Obama-era moratorium on new coal leases on public lands, withdrawing waters in the OCS from oil and gas leasing using existing authority under the Outer Continental Shelf Lands Act, or limiting or prohibiting hydraulic fracturing on public lands.
  

• Create a declining carbon budget for public lands and waters. In December 2019, the U.S. House of Representatives introduced the American Public Lands and Water Climate Solutions Act with a goal of making U.S. public lands and waters a net-zero source of GHG emissions by 2040. The proposed legislation includes: (1) a one-year moratorium on new fossil fuel leasing during which time the Interior Department will create a strategic plan for reducing carbon emissions from public lands; (2) carbon budgets for public lands that ratchet down each year (i.e., 35 percent reduction by 2025, 60 percent reduction by 2030, 80 percent reduction by 2035, net zero by 2040); (3) restoration of public lands to create new carbon sinks; (4) addressing the needs of environmental justice communities on or near public lands and creating a just transition for all communities hurt by the loss of jobs and revenues associated with fossil fuel development on public lands; (5) increased leasing fees and royalties for any continued fossil fuel development on public lands, with those increased revenues directed to a "just transition fund," as well as to states impacted by revenue losses; and (6) increased use of carbon capture and sequestration on public lands.
  

• Continue to file lawsuits challenging new fossil fuel leases and the rollback of Obama-era regulations. Environmental groups to date have been effective in slowing the Trump administration's efforts to turn over our public lands and waters to private oil and gas development through lawsuits relying on traditional environmental laws such as NEPA, the ESA, the Coastal Zone Management Act, FLPMA, the Antiquities Act, and others. For instance, federal courts have invalidated the administration's efforts to repeal the Obama administration's moratorium on coal leasing without complying with NEPA, as well as the failure to evaluate the downstream GHG emissions associated with new oil and gas leasing on public lands. See Citizens for Clean Energy v. U.S. Dep't of the Interior, 384 F. Supp. 3d 1264 (D. Mont. 2019); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41 (D.D.C. 2019). So long as President Trump remains in office, these efforts should continue in full force.
  

• Use the nation's public lands and waters to aggressively develop renewable energy projects. This proposal will undoubtedly create controversy among some environmental groups but is necessary for the nation to fully implement a clean energy transition. Tools to accomplish this task can include new legislation and regulations (some of which were enacted during the Obama administration) designed to expedite project review for onshore and offshore wind projects and onshore solar projects on public lands. Such laws and regulations can build upon existing Obama-era programs such as the Western Solar Plan and the Desert Renewable Energy Conservation Plan, but more is needed. Renewable energy development often comes into conflict with longstanding laws used to protect public lands such as NEPA, the ESA, and other flagship environmental statutes. Environmental groups have often been wary of renewable energy projects. Renewable energy developers and their financial backers are often more risk-averse than their counterparts in the fossil fuel industry, abandoning promising projects in the face of sustained opposition. Notably, the American Wind Energy Association has publically supported the Trump administration's proposed revisions to the Council on Environmental Quality's NEPA regulations, reflecting how application of that statute has in many cases created barriers to wind energy development on public lands. Difficult choices may need to be made, and environmental groups must consider what compromises they might accept to allow public lands to be a showcase for a clean energy transition, rather than areas to be avoided completely.