Government lawyers would rather approve 30 years of Arctic drilling than lose in court.
This article first appeared in The American Prospect. Read it on the original site here.
If we at the Revolving Door Project could exhort the Biden administration to do anything, it would be this: Choose the right enemies—rich, powerful corporations that harm the public, most often with impunity. Sometimes you will lose, but that doesn’t mean you should forfeit the fight. And getting caught trying can inspire the public to rally around a political party and its leaders.
When the Biden administration chose to approve Willow, ConocoPhillips’s massive Arctic oil drilling project, earlier this month, it made enemies out of millions of young climate-concerned voters and the administration’s “green allies,” who have already filed responsive lawsuits. The New York Times framed the decision this way: “Ultimately, the administration made the internal calculation that it did not want to fight ConocoPhillips, the company behind the Willow project.” Why not?
Various news stories have quoted anonymous administration officials stating that refusing to permit the project would lead oil major ConocoPhillips to sue the administration, and that a court might impose fines on the government for denying the permits of “as much as $5 billion.”
If we accept this justification at face value—ignoring the possibility that the decision was more likely a political calculation to please Alaska’s uniformly pro-oil representatives in Congress, one of whom is a Democrat in a tough seat—several questions arise. Firstly, would preventing this drilling project be worth paying $5 billion in fines?
Cost-benefit questions are always tricky, given that many impacts can’t be translated into monetary damages. The Willow Project’s impact on the local environment will degrade the subsistence lifestyle that local Iñupiat people in Nuiqsut have practiced for millennia. Both extracting the oil and its resulting emissions will harm the critical habitat for polar bears and many other threatened species. Fundamentally, the value of a living Arctic cannot be quantified in dollars.
Yet even by the decidedly incomplete metric of the “social cost of carbon,” a tool by which the government attempts to quantify in dollars the cumulative cost of greenhouse gas pollution, the cumulative cost of the Willow Project conservatively more than doubles the feared $5 billion in fines. Using the interim current social cost of carbon first calculated by the Obama administration of $51 per ton of greenhouse gas emissions, the Willow Project’s anticipated 239 million metric tons would cost society over $12 billion in damages. Using the Environmental Protection Agency’s proposed value, based on newer climate modeling, of $190 per ton, the Willow Project’s anticipated toll would exceed $45 billion.
Any argument about taxpayers footing the bill for possible fines to ConocoPhillips should acknowledge that taxpayers—not to mention people around the world and countless other species that have no say—will be footing a far steeper bill for the project’s diffuse costs. Meanwhile, taxpayers already subsidize fossil fuel companies, to the tune of $10 billion to $50 billion a year. President Biden recognized this when he proposed saving $31 billion by “eliminating special tax treatment for oil and gas company investments” in his 2024 budget proposal.
Given the Republican House majority, the president’s budget proposal is more or less dead in the water. But the Willow Project is real and already under construction. If we already pay polluters to pollute, the government’s refusal to consider paying them not to is hardly a moral high ground.
ON MARCH 24, PRESIDENT BIDEN REVEALED in a press conference that his “strong inclination” with the Willow Project was to “disapprove of it across the board. But the advice I got from counsel was that if that were the case, we may very well lose in court—lose that case in court to the oil company—and then not be able to do what I really want to do beyond that, and that is conserve significant amounts of Alaskan sea and land forever.”
This is a different line than the anonymous administration officials have been saying. Biden seems to be suggesting that mollifying ConocoPhillips was crucial for the concurrent protections he announced for the Arctic Ocean, when he withdrew 2.8 million acres of the Beaufort Sea in the National Petroleum Reserve-Alaska as indefinitely off limits for future oil and gas leasing. He did this under the clear authority of Section 12(a) of the Outer Continental Shelf Lands Act, which reads: “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”
Biden’s excuse rings especially hollow given that on Wednesday, the administration held one of the largest-ever lease sales in the Gulf Mexico, making 73.3 million acres of unleased tracts of ocean available for oil and gas extraction. Fossil fuel companies placed high bids on 1.6 million acres. What was that again about conserving significant amounts of sea and land forever?
We ought to approach the administration’s claims of powerlessness with skepticism. Rebecca M. Bratspies, law professor at CUNY School of Law, told me that “the fact that past leasing decisions allowed ConocoPhillips to get to this point does not control what should happen now … particularly since under the [Outer Continental Shelf Lands Act] there is very little discretion at the leasing stage. Virtually all of the DOI’s discretion is at the permitting stage, where we are now.”
“The fact that ConocoPhillips has had these leases for decades actually argues against approval,” Bratspies added. “They had decades in which they could have exploited these leases. Had they done so, we would be having a different conversation. But they did not exploit those leases, they sat on their rights. And the world changed over decades that ConocoPhillips sat on their leases.” The Intergovernmental Panel on Climate Change released a report just last week that was a “final warning” to move precipitously away from fossil fuels.
The Biden administration manifestly did not avoid litigation with this decision. The federal government has already lost one legal battle over Willow, and could very well find itself losing a second. In December 2020, opponents filed a lawsuit over the Department of Interior’s initial approval of Willow based on unlawful, faulty environmental reviews that failed to fully account for climate change impacts and harms to protected species.
“Government officials may want the public to think that their hands are tied here, but we have pointed out viable alternatives time and again, all of which are within the agency’s discretion,” said Hallie Templeton, legal director for Friends of the Earth. “Based on Willow’s significant environmental impacts, officials held untethered authority to say no to this project, or at least limit its footprint.”
UNFORTUNATELY, IT’S NOT AN OUTLIER for the government to avoid picking a fight with a powerful corporation because they might lose; see Jesse Eisinger’s book The Chickenshit Club for many examples. There’s no denying that radically conservative judges and their pet legal theories have destabilized the legal system. But are the courts significantly worse now than they were three years ago, when Biden declared, “No more drilling on federal lands, period”? And does Biden really have so little faith in his own Justice Department, preemptively assuming they would lose their legal battle? Does the DOJ have such little faith in itself?
Using the specter of pro-corporate courts to justify taking pro-corporate actions sets a dangerous precedent of excusing the law’s ongoing degradation. Two lawsuits filed by environmental and indigenous groups within 48 hours of the Willow Project’s approval make several arguments about why the administration did not have to take this path, and indeed assert that the administration violated laws including the National Environmental Policy Act, the Naval Petroleum Reserves Production Act (the “Reserves Act”), and the Endangered Species Act when it did so.
Under the Reserves Act, for instance, the secretary of the interior is charged with protecting the environmental and other values of the reserve, and can set “conditions, restrictions and prohibitions” that the secretary deems “necessary or appropriate to mitigate reasonably foreseeable and significantly adverse effects on the surface resources” of the reserve. This includes the authority to suspend operations and production on any lease or unit, and to disapprove of drilling proposals.
As the right-wing legal agenda continues to gain momentum, it is imperative that executive branch agencies not let the prospect of a hard fight cow them into weakening regulatory and enforcement actions that are their express mandate. That will only advance the deterioration of the already-inadequate regulatory apparatus that so often stands, almost invisibly, between the violent excesses of corporate profit-seeking and communities.
Not all quarters of the executive branch have been daunted by fighting the good fight. Under Lina Khan’s leadership, the Federal Trade Commission has actively fought an uphill battle against corporate giants to help workers and consumers assert more power. In a recent speech, FTC director of policy and Khan’s chief of staff Elizabeth Wilkins made the case for taking on legal risk to fight for the public interest in powerful terms.
“Some of the agency’s greatest successes would have never been realized if the agency took a zero-risk approach,” Wilkins said. “In a ‘win some, lose some’ game, you do lose some of the time. But that’s okay, that’s the inevitable back-and-forth between agencies and the courts that our system created. The risk should not chill us from doing our best. If it did, we’d be acceding to the equivalent of ‘lose all, lose all.’”
There is no better language to encompass the consequences of unmitigated climate change than “lose all, lose all.” It is hard to conceive of a more worthy villain for a government to fight than the companies bent on bargaining a habitable earth for fleeting profit. Forfeiture of this fight will have deadly consequences.
IMAGE: This photograph of the National Petroleum Reserve-Alaska managed by the Bureau of Land Management is licensed under the Creative Commons Attribution 2.0 Generic license.