Needed: An Energy Bill that Stands Up to the Lawsuits

By September 17, 2008Briefly Legal, Energy

Rep. John Shadegg (R-AZ) has raised an important point about any legislation to open up new areas of the Outer Continental Shelf for oil and natural gas development: Enact a law and you still face scores of environmental groups eager to block exploration and development through legal action.

In an op-ed in today’s Wall Street Journal, Shadegg notes that that Earthjustice, a green lobby group that employs more than 150 people, has filed hundreds of lawsuis. Earthjustice boasts: “Because lawsuits can be so effective, we have a team of policy experts in Washington, D.C. that work hand-in-hand with our attorneys to stop legislative backlash . . .”

Shadegg’s office has compiled a summary of the anti-energy lawsuits, and he comments further in today’s op-ed.

In February 2008, the administration issued 487 leases in Alaska’s Chukchi Sea, which holds an estimated 15 billion barrels of oil and 76 trillion cubic feet of natural gas. The Sierra Club, the Center for Biological Diversity, and other groups used the National Environmental Policy Act and the Endangered Species Act to challenge and delay progress on all 487 leases. In a separate lawsuit, they challenged the entire national outer continental shelf (OCS) leasing program, seeking to block all future leases.

Even if a lease makes it through these challenges, it isn’t clear sailing. Right now, there are 748 leases in the Chukchi and Beaufort Seas. Exploration activities in every single one were challenged in May of this year by EarthJustice in conjunction with others.

The Alaskan OCS contains 26 billion barrels of oil and 132 trillion cubic feet of natural gas. Not one offshore lease has escaped litigation.

Shadegg’s solution? Citing political and legal precedent — construction of the Trans-Alaska pipeline, for one — he argues for legislative provisions that would limit abusive lawsuits through waivers of environmental laws. On the House floor yesterday, he said, “We can allow lawsuits. But they don’t have to be dilatory. They don’t have to be such that no oil will ever be produced.” (Floor statement here.)

Puzzled by the sudden prominence of such a significant point, we asked the NAM’s energy policy expert about the litigation issue. Why now? Well, it’s because all these Outer Continental Shelf areas had been locked up legislatively, so the environmenal litigators didn’t have to sue. But if development is actually possible, bring out the briefs!

Earlier this month, Shadegg introduced H.R. 6887, to authorize the President or a designee of the President to waive any legal requirement under any provision of Federal law otherwise applicable to a covered energy project as the President or such designee determines necessary to ensure expeditious conduct of such project. (Statement here.) Any realistic, substantive, actually energy-focused “energy bill” will need language of this sort.


Leave a Reply