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The Public’s Interest and Durable Management of Energy Development on Public Lands

August 2019

Citation: 49 ELR 10735

Issue: 8

Author: Tommy Beaudreau, Janice Schneider, and Joshua Marnitz

The United States owns, on behalf of all Americans, approximately 30% of the nation’s land, totaling more than 600 million acres. These lands are overseen by the Bureau of Land Management (BLM) in the U.S. Department of the Interior (DOI). DOI's stewardship responsibilities over these lands, and the diverse natural resources they contain, are grounded in its authorizing statutes, such as Federal Land Policy and Management Act (FLPMA), the Mineral Leasing Act (MLA), and the Outer Continental Shelf Lands Act (OCSLA). In light of these statutory directives that DOI’s management of public lands be, broadly speaking, in the public’s interest, Prof. Jayni Foley Hein argues in Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing that DOI must rethink its programs for the leasing of fossil fuels—including coal, oil, and natural gas—on public lands “with the goal of maximizing social welfare.” In sum, Professor Hein advocates a strategy for using existing administrative authorities governing the management of fossil fuel leasing on public lands to advance social welfare by addressing the social costs of greenhouse gas (GHG) emissions related to the eventual combustion of those fuels. While the goals of using federal authorities to advance social welfare are laudable, this Comment argues that absent clearer legislative authority establishing that the public’s interests in managing oil, natural gas, and coal leasing and development on public lands includes GHG emissions reduction and advancing climate goals, administrative policy and even regulatory changes premised on the generalized statements about the nation’s interests and needs are not likely to be durable.

Tommy Beaudreau is a Partner at Latham & Watkins LLP. Janice Schenider is a Partner at Latham & Watkins LLP. Joshua Marnitz is an Associate at Latham & Watkins LLP.

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