Case 2:21-cv-00778-TAD-KK Document 139 Filed 06/15/21 Page 1 of 44 PageID #: 2061
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`LAKE CHARLES DIVISION
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`STATE OF LOUISIANA ET AL
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`VERSUS
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`JOSEPH R. BIDEN, JR. ET AL
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`CASE NO. 2:21-CV-00778
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`JUDGE TERRY A. DOUGHTY
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`MAG. JUDGE KATHLEEN KAY
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`MEMORANDUM RULING
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`The issue before this Court is whether the Plaintiff States1 are entitled to a preliminary
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`injunction against the Government Defendants2 as a result of the implementation of a “pause” of
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`new oil and natural gas leases on public lands or in offshore waters (“Pause”) after Executive
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`Order 14008 was signed by President Joseph R. Biden, Jr. (“President Biden”) on January 27,
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`2021.
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`The Plaintiff States alleged the Government Defendants3 violated provisions of the
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`Administrative Procedure Act, (“APA”) entitling Plaintiff States to a preliminary injunction.
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`1 The Plaintiff States consist of the States of Louisiana, Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri,
`Montana, Nebraska, Oklahoma, Texas, Utah, and West Virginia.
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` 2
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` Government Defendants consist of Joseph R. Biden, Jr. in his official capacity as President of the United States;
`Deb Haaland, in her official capacity as Secretary of the Interior; Michael Nedd, in his official capacity as Deputy
`Director of the Bureau of Land Management; Chad Padgett, in his official capacity as Director of the Bureau of
`Land Management Alaska Office; Raymond Suazo, in his official capacity as Director for the Bureau of Land
`Management Arizona Office; Karen Mouristen, in her official capacity as Director for the Bureau of Land
`Management California Office; Jamie Connell, in his official capacity as Director for the Bureau of Land
`Management Colorado Office; Mitchell Leverette, in his official capacity as Director for the Bureau of Land
`Management Eastern States Office; John Ruhs, in his official capacity as Director for the Bureau of Land
`Management Idaho Office; John Mehlhoff, in his official capacity as Director for the Bureau of Land Management
`Montana – Dakotas Office; Jon Raby, in his official capacity as Director for the Bureau of Land Management
`Nevada Office; Steve Wells, in his official capacity as Director for the Bureau of Land Management New Mexico
`Office; Barry Bushue, in his official capacity as Director for the Bureau of Land Management Oregon-Washington
`Office; Greg Sheehan, in his official capacity as Director for the Bureau of Land Management Utah Office; Kim
`Liebhauser, in her official capacity as Director for the Bureau of Land Management Wyoming Office; Amanda
`Lefton, in her official capacity as Director of the Bureau of Ocean Energy Management; Michael Celata, in his
`official capacity as Regional Director of the Bureau of Ocean Energy Management Gulf of Mexico Office; Lars
`Herbst, in his official capacity as Regional Director of Bureau of Safety and Environmental Enforcement Gulf of
`Mexico OCS Office; and Mark Fesmire, in his official capacity as Regional Director of the Bureau of Safety and
`Environmental Enforcement Alaska and Pacific Office.
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` 3
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` With the exception of President Biden, who is not an “agency” under the Administrative Procedures Act.
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` A Motion for Preliminary Injunction [Doc. No. 3] was filed by Plaintiff States on March
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`31, 2021. An Opposition [Doc. No. 120] was filed by Government Defendants on May 19, 2021.
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`A Reply [Doc. No. 126] was filed by Plaintiff States on May 28, 2021.
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`Having considered the pleadings, the record, the applicable laws, evidence, and oral
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`arguments of counsel, for the reasons set forth herein, this Court finds Plaintiff States have
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`satisfied the requirements for a preliminary injunction. Accordingly, Plaintiff States’ Motion for
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`Preliminary Injunction is GRANTED.
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`I.
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`BACKGROUND
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`The factual statements made herein should be considered as findings of fact regardless of
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`any heading or lack thereof. Similarly, the legal conclusions should be taken as conclusions of
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`law regardless of any label or lack thereof.
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`On March 24, 2021, Plaintiff States filed a Complaint [Doc. No. 1] against Government
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`Defendants asking for declaratory and injunctive relief as to Section 208 of Executive Order
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`14008, which ordered the Secretary of the Interior to pause new oil and gas leases on public
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`lands, or in offshore waters pending completion of a comprehensive review. This allegedly
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`resulted in the halting of new oil and gas leases on public lands and offshore waters in violation
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`of the United States Constitution, the APA, the Outer Continental Shelf Lands Act (“OCSLA”),
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`and the Mineral Leasing Act (“MLA”).
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`The Motion for Preliminary Injunction was filed by Plaintiff States on March 31, 2021.
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`Briefs have been filed by Plaintiff States and by Government Defendants. Amici Curiae briefs
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`were filed by the County of Daggett, County of Rio Blanco, County of Uintah and County of
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`Wayne [Doc. No. 116] and by Center for Biological Diversity, Cook Inletkeeper, Defenders of
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`Wildlife, Friends of the Earth, Healthy Gulf, National Resources Defense Council, Oceana,
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`2
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`Sierra Club and Wilderness Society [Doc. No. 123]. Per a status conference held on June 3,
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`2021 [Doc. No. 127], the court set oral arguments on these issues to be heard on June 10, 2021.
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`The oral arguments were heard on that day in Lafayette, Louisiana.
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`1.
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`Executive Order 14008
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`On January 27, 2021, President Biden issued Executive Order 140084, entitled “Tackling
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`the Climate Crisis at Home and Abroad.” At issue in this proceeding is Section 208 of the
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`Executive Order, which reads as follows:
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`Sec. 208. Oil and Natural Gas Development on Public Lands and in Offshore
`Waters. To the extent consistent with applicable law, the Secretary of the
`Interior shall pause new oil and natural gas leases on public lands or in offshore
`waters pending completion of a comprehensive review and reconsideration of
`Federal oil and gas permitting and leasing practices in light of the Secretary of
`the Interior’s broad stewardship responsibilities over the public lands and in
`offshore waters, including potential climate and other impacts associated with
`oil and gas activities on public lands or in offshore waters. The Secretary of the
`Interior shall complete that review in consultation with the Secretary of
`Agriculture, the Secretary of Commerce, through the National Oceanic and
`Atmospheric Administration, and the Secretary of Energy. In conducting this
`analysis, and to the extent consistent with applicable law, the Secretary of the
`Interior shall consider whether to adjust royalties associated with coal, oil, and
`gas resources extracted from public lands and offshore waters, or take other
`appropriate action, to account for corresponding climate costs.
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`Id.
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`The implementation of Section 208 of Executive Order 14008 by the remaining
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`Government Defendants (“Agency Defendants”) is at issue based upon the alleged violation of
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`the APA by the government agencies. 5 USC 551, et seq.
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`A court may review a Presidential Executive Order. A President’s authority to act, as
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`with the exercise of any governmental power, must stem either from an act of Congress, or from
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`the Constitution itself, or a combination of the two. Medellin v. Texas, 552 U.S. 491, 128 S. Ct.
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`4 Tackling the Climate Crisis at Home and Abroad, 86 FR 7619
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`3
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`1346, 170 L. Ed. 2d 190 (2008); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.
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`Ct. 863, 96 L. Ed. 1153 (1952); California v. Trump, 379 F. Supp. 3d 928 (N.D. Cal. 2019),
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`aff'd, 963 F.3d 926 (9th Cir. 2020), cert. granted sub nom. Trump v. Sierra Club, 141 S. Ct. 618,
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`208 L. Ed. 2d 227 (2020); and Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019),
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`aff'd, 963 F.3d 874 (9th Cir. 2020), cert. granted, 141 S. Ct. 618, 208 L. Ed. 2d 227 (2020).
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`Plaintiff States have based their Motion for Preliminary Injunction on violations by the
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`Government Agencies pursuant to the APA. Although President Biden is not an agency subject
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`to the APA, whether Section 208 of the Executive Order 14008 would be consistent with
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`applicable law is at issue. California, 379 F. Supp. 3d 928. In reviewing the lawfulness of the
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`defendants’ conduct, the Court begins each inquiry by determining whether the disputed action
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`exceeds statutory authority. Sierra Club v. Trump, 379 F.Supp. 3d 883 (N.D. Cal. 2019).
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`A President may not transgress constitutional limitations. Courts determine where
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`constitutional boundaries lie. Indigenous Env't Network v. Trump, 428 F. Supp. 3d 296 (D.
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`Mont. 2019).
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`The case of League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013 (D. Alaska
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`2019), vacated and remanded sub nom. League of Conservation Voters v. Biden, 843 F. App'x
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`937 (9th Cir. 2021) involved issues centered on OCSLA, which is one of the acts at issue in this
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`proceeding. President Trump issued an Executive Order, (EO 13795) which purported to revoke
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`previous Executive Orders involving a prior land withdrawal from OCSLA.5 The Court found
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`OCSLA allowed the President to withdraw lands from disposition, but it did not allow a
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`President to revoke a prior withdrawal. The Court held that since OCSLA does not give the
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`President specific authority to revoke a prior withdrawal, the power to revoke a prior withdrawal
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`5 43 U.S.C. 1341(a) allows a President of the United States to withdraw from disposition any of the unleased lands
`of the Outer Continental Shelf.
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`4
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`lies solely with Congress under the Property Clause of the United States Constitution. U.S.
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`Const. art. IV, § 3, cl. 2.
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`Similarly, since OCSLA does not grant specific authority to a President to “Pause”
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`offshore oil and gas leases, the power to “Pause” lies solely with Congress. Therefore, Plaintiff
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`States have made a showing that there is a substantial likelihood that President Biden exceeded
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`his powers in Section 208 of Executive Order 14008.
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`2.
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`Administrative Procedure Act
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`Plaintiff States’ Motion for Preliminary Injunction centers upon alleged violations of the
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`APA by the Agency Defendants, which includes the U.S. Department of the Interior (“DOI”), the
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`U.S. Bureau of Land Management (“BLM”), the U.S. Bureau of Ocean Energy Management
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`(“BOEM”), the U.S. Bureau of Safety and Environmental Enforcement and named officials.
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`The APA allows judicial review of certain agency actions. The Plaintiff States allege that
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`in implementing Section 208 of Executive Order 14008, the Agency Defendants violated the
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`following provisions of the APA:
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`i.
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`ii.
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`Acted contrary to law in violation of 5 USC 706(2)(A) and (C);
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`Acted in an arbitrary and capricious manner in violation of 5 USC
`706(2)(A);
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`iii.
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`Failed to provide notice and comment required by 5 USC 553(a); and
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`iv.
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`Unreasonably withheld and unreasonably delayed agency required activity
`in violation of 5 USC 706(1).
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`Each of these allegations will be discussed in greater detail herein.
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`3.
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`The Outer Continental Shelf Lands Act
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`Congress passed the OCSLA more than 70 years ago. OCSLA declares “the outer
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`Continental Shelf” o be “a vital national resource reserve held by the Federal Government for the
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`5
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`public.” 43 U.S.C. §1332(3). To maximize the benefit of that resource, OCSLA directs the
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`Secretary of the Interior to make the Shelf “available for expeditious and orderly development,
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`subject to environmental safeguards, in a manner which is consistent with the maintenance of
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`competition and other national needs.” Ensco Offshore Co. v. Salazar, 781 F. Supp. 2d 332, 339
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`(E.D. La. 2011) (noting “OCSLA’s overriding policy of expeditious development”).
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`OCSLA facilitates the Shelf’s expeditious development by directing the Secretary to
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`administer a leasing program to sell exploration interests in portions of the Shelf to the highest
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`bidder. 43 U.S.C. §§1334(a), 1337(a)(1). To this end, OCSLA sets out a four-step process in
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`which the Secretary must (1) create a Five-Year Leasing Program, (2) hold lease sales, (3) grant
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`or deny exploration permits and plans, and (4) grant or deny final development and production
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`plans. Hornbeck Offshore Servs., L.L.C. v. Salazar, 696 F. Supp. 2d 627, 632 (E.D. La. 2010)
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`(citing Sec'y of the Interior v. California, 464 U.S. 312, 337, 104 S. Ct. 656, 78 L. Ed. 2d 496
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`(1984)). Each step must follow stringent administrative requirements designed to maximize the
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`chances for the public – including affected states and industry—to provide input on those lease
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`sales.
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`Current lease sales in the Outer Continental Shelf are governed by the 2017-2022 Five-
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`Year Oil and Gas Leasing Program (“Five-Year Program”). The process of creating the Five-
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`Year Program began in 2014 during the Obama Administration. The BOEM published a
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`Request for Information (“RFI”) in the Federal Register and sent a letter to all Governors, Tribes,
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`and interested federal agencies requesting input on the Program. 79 Fed. Reg. 34349 (June 16,
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`2014). BOEM received over 500,000 comments in response to the RFI, allowing it to discharge
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`its obligation under OCSLA to take into account economic, social, and environmental values in
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`making its leasing decisions. 43 U.S.C. § 1344(a); Five-Year Program [Doc. No. 3, Exh 1]. In
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`2015, BOEM published the Draft Proposed Program. That published draft incorporated
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`responses to the RFI comments and set out a draft schedule of potential lease sales. That started
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`a 60-day comment period in which BOEM received over one million comments. 80 Fed. Reg.
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`4941 (Jan. 29, 2015). After considering those comments, BOEM next published the Proposed
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`Program, thereby starting a new 90-day comment period. 81 Fed. Reg. 14881 (Mar. 18, 2016).
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`Again, BOEM received over one million comments, held public meetings, and created
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`environmental impact statements in compliance with the National Environmental Policy Act
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`(NEPA).
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`After that, BOEM published the Proposed Final Program (“PFP”) November 2016. In it,
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`the Secretary determined which areas to include in the lease sales. The PFP schedules ten (10)
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`region-wide lease sales in the areas of the Gulf of Mexico that are not under the Congressional
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`moratorium or otherwise unavailable for leasing. Final Program S-2. The PFP also observed
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`that “[i]n the Gulf of Mexico, infrastructure is mature, industry interest and support from affected
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`states and communities is strong, and there are significant oil and gas resources available.”
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`Thus, “[t]o take advantage of these incentives to OCS activity, the region-wide sale approach
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`makes the entire leasable Gulf of Mexico OCS area available in each lease sale.” Id.
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`On January 17, 2017—60 days after the Final Program was transmitted to President
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`Obama and Congress—the Secretary approved the Final Program, “which schedules 11 potential
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`oil and gas lease sales, one sale in the Cook Inlet (Alaska) Program Area and 10 sales in the
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`GOM Program Areas,” with “one sale in 2017, two each in 2018-2021, and one in 2022.”
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`Record of Decision and Approval of the 2017-2022 Outer Continental Shelf Oil and Gas Leasing
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`Program 3 (Jan. 17, 2017).
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`The Final Program approved and scheduled two lease sales relevant in this proceeding.
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`The first is GOM OCS Oil and Gas Lease Sale 257. Lease Sale 257 would have comprised the
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`Western and Central Planning Areas of the Gulf of Mexico. The second is Lease Sale 258 in
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`Cook Inlet, Alaska.
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`4.
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`The Mineral Leasing Act
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`The Federal Government also holds energy-producing lands onshore. Congress has
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`likewise made those lands available for development. Under the MLA, the Secretary of the
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`Interior is required to hold lease sales “for each State where eligible lands are available at least
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`quarterly.” 30 U.S.C. §226(b)(1)(A). MLA provides that for oil and natural gas leases on
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`federal lands, in States other than Alaska, 50 percent of bonuses, production royalties, and other
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`revenues are granted to the State in which the lease is located, and 40 percent is granted to the
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`Reclamation Fund, which maintains irrigation systems in several Western States. 30 U.S.C.
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`§191(a). For leases in Alaska, 90 percent of revenues are granted to the State. Id.
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`BLM has the authority to lease public lands with oil and gas reserves to private industry
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`for development under MLA, the Federal Land Policy and Management Act, 43 U.S.C. §§1701-
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`1787, and the BLM’s own regulations and plans, see 43 C.F.R. Part 1600 (Planning,
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`Programming, and Budgeting); 43 C.F.R. §§3120 (Competitive Leases) and 3160 (Onshore Oil
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`and Gas Operations). BLM’s regulations also provide for quarterly lease sales, 43 C.F.R.
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`§3120.1-2(a) (“Each proper BLM office shall hold sales at least quarterly if lands are available
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`for competitive leasing.”)
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`II.
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`STANDING
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`At issue in this proceeding is whether the Agency Defendants exceeded their statutory
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`and/or constitutional authority in implementing a pause on new oil and natural gas leases on
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`public lands and in offshore waters. However, this Court must first determine whether it has
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`judicial power to hear the case. The United States Constitution limits exercise of judicial power
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`to certain “cases” and “controversies.” U.S. Constitution Article III Section 2.
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`Under the doctrine of “standing,” a federal court can exercise judicial power only where a
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`plaintiff has demonstrated that it (1) suffered an injury in fact, (2) that is fairly traceable to the
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`challenged conduct of the defendant, and (3) that it is likely to be redressed by a favorable
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`decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
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`(1992). The party invoking federal jurisdiction bears the burden of establishing these elements.
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`Id. at 561.
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`1.
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`Plaintiff States’ Argument
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`The Plaintiffs in this case are thirteen (13) states. States are not normal litigants for
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`purposes of invoking federal jurisdiction. Massachusetts v. E.P.A., 549 U.S. 497, 518, 127 S. Ct.
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`1438, 167 L. Ed. 2d 248 (2007). Rather, a state is afforded “special solicitude” in satisfying its
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`burden to demonstrate the traceability and redressability elements of the traditional standing
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`inquiry whenever its claims and injury meet certain criteria. Id. at 520; Texas v. United States,
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`809 F.3d 134, 151–55 (5th Cir. 2015), as revised (Nov. 25, 2015). Specifically, a state seeking
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`special solicitude standing must allege that a defendant violated a congressionally accorded
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`procedural right that affected the state’s “quasi-sovereign” interests in, for instance, its physical
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`territory or lawmaking function. Massachusetts, 549 U.S. at 520–21; Texas, 809 F.3d at 151–55.
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`Plaintiff States allege they have standing under the normal inquiry, and because they are
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`entitled to special solicitude. Plaintiff States aver they have standing to challenge the Pause
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`because the Government Defendants’ actions harm Plaintiff States’ sovereign, proprietary, and
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`parens patriae interests.
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`Plaintiff States allege the Pause deprives Plaintiff States of a substantial share of the
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`proceeds from leasing sales under OCSLA, the Gulf of Mexico Energy Security Act
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`(“GOMESA”) and MLA. Plaintiff States attach the Declarations of Jerome Zeringue
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`(“Zeringue”) [Doc. No. 3, Exh. 6], Professor David E. Dismukes (“Dismukes”) [Doc. No. 3,
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`Exh. 4], and Professor Timothy J. Considine (“Considine”) [Doc. No. 3, Exh. 2].
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`Declaration of Jerome Zeringue
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`Zeringue is a member of the Louisiana State Legislature representing LaFourche and
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`Terrebonne Parishes. He is Chairman of the Appropriations Committee and was previously a
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`member of the Natural Resources Committee. Zeringue is familiar with the Coastal Master Plan,
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`which is the Louisiana coastal restoration plan. He declared that the Coastal Master Plan is
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`funded primarily by revenue from oil and gas proceeds from the Outer Continental Shelf under
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`OCSLA. The current Coastal Master Plan is based upon $389 million in GOMESA expenditures
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`over the next three years.
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`Zeringue declares that the cancellation of Lease 257 caused an immediate short-term loss
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`for projected funds under OCSLA. He further declares that if the funds vanish or are reduced,
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`Louisiana will essentially be left without a major source of funding for a $50 billion coastal
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`recovery and restoration program.
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`Declaration of David E. Dismukes
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`Dismukes is a Professor, Executive Director, and Director of the Policy Analysis at the
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`Center for Energy Studies at LSU. He is also a Professor in the Department of Environmental
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`Sciences and Director of the Coastal Marine Institute in the College of the Coast and
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`Environment at LSU.
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`He additionally is a Consulting Economist with Acadian Consulting Group, L.L.C., a
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`research and consulting firm that specializes in the analysis of regulatory, economic, financial,
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`accounting, statistical, and public policy issues associated with regulated and energy industries.
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`Dismukes is an expert in the analysis of economic, statistical, and public policy issues in energy
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`and regulated industries. He has testified as an energy expert on energy issues on over 150
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`occasions and has testified as an expert before the U.S. Senate, the U.S. House of
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`Representatives, and several state legislatures.
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`Dismukes gave his opinion as to the harm he believes will occur due to the Pause on new
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`oil and gas leasing and drilling permits. He believed Louisiana would be harmed by the Pause
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`due to the reduction in oil production, economic activity and state revenues resulting from the
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`cancellation of Oil and Gas Lease Sale 257 and from Planned Lease Sales 259 and 261.
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`Dismukes further declared the Pause will cause a reduction in oil production, economic
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`activity and state revenues due to foregone drilling under existing federal oil and gas leases and
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`by reduced production by, and investment in, Louisiana’s refining and chemical manufacturing
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`industries caused by higher oil and gas prices.
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`He further believes the Pause will impact drilling in the Permion Basin, which will
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`directly and immediately harm the States of Texas and Louisiana by resulting in fewer jobs for
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`Louisiana and Texas gas sector workers and lower production of oil and gas, which will result in
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`higher oil and gas prices.
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`Dismukes further declared the Pause would also affect revenues from initial lease
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`payments, royalties, and rentals, which would immediately harm the States of Alabama,
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`Louisiana, Mississippi, and Texas, who receive 37.5% of revenues under GOMESA. In 2020,
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`nearly $95.3 million was dispersed to Texas, $156 million to Louisiana, $50 million to Alabama,
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`and $51.9 million to Mississippi. Dismukes projected that based upon BOEM estimates, the
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`three cancelled or suspended lease sales (257, 259 and 261) will result in a decline in GOMESA
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`funding of more than $1 billion.
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`Dismukes also declared the Pause would result in reduced funding for the Coastal Master
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`Plan, which is used to fund the continuing loss of land mass along Louisiana’s coast.
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`Further Dismukes testified the Pause would result in a substantial number of lost jobs in
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`the oil and gas industry (which accounted for $6.8 billion in wages in 2019). These job losses
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`would result in reduction of Louisiana’s energy export economy, and the loss of 114 jobs for
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`each deep-water well not drilled as a result of the Pause. He additionally noted losses to state
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`and local government revenues as a result of the Pause.
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`Declaration of Timothy J. Considine
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`Considine is a Professor of Energy Economics with the School of Energy Resources and
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`the Department of Economics at the University of Wyoming. He earned a B.A. in Economics
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`from Loyola University in 1975, an M.S. from Purdue University in Agricultural Economics in
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`1977, and a Ph.D. from Cornell University in Natural Resources Economics in 1981. He is an
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`expert in the analysis of economic, statistical, and public policies in energy and regulated
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`industries.
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`Considine gave an opinion in regard to the economic impact a leasing moratorium and a
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`drilling ban would have on the States of Wyoming, New Mexico, Colorado, Utah, North Dakota,
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`Montana, and Alaska. Under a leasing moratorium over the next 5 years (2021-2025), the
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`average annual investment loss to Wyoming would be $2.3 billion; the average annual
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`investment loss to New Mexico would be $2.6 billion; to Colorado $586 million; to Utah $248
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`million; to North Dakota $279 million; to Montana $56 million; and to Alaska $412 million.
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`Considine also opined these States would lose a combined average of 58,676 jobs annually for
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`the years 2021-2025.
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`Considine further estimated costs to said states under a drilling ban, and all would have
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`significant annual investment losses for the years 2021-2025.
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`Considine estimates harm to state revenue for the said states if a leasing moratorium were
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`imposed. Under his estimates, for the years 2021-2025, the annual revenue losses to Wyoming
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`would be $304 million; to New Mexico $946 million; to Colorado $59 million; to Utah $27
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`million; to North Dakota $136 million; to Montana $40 million; and to Alaska $100 million.
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`2.
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`Government Defendants’ Argument
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`In opposition, the Government Defendants attack Plaintiff States standing for its 5
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`U.S.C.A. § 706(2) APA Claims.6 Government Defendants do not attack Plaintiff States’
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`standing with regard to their failure to provide notice and comment, and their unreasonably
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`withheld and unreasonably delayed claims. The Government Defendants object to Plaintiff
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`States’ standing on its APA 706(2) claims on the basis of redressability.
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`Government Defendants argue that setting aside the individual lease sale postponements
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`will not redress Plaintiff States alleged injuries (reduction in income, job losses and overall
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`economic losses) because a favorable decision would not redress those injuries. Government
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`Defendants argue that if the individual sale postponements were set aside, that relief would not
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`compel the agency to hold a lease sale because the agency has discretion to “implement another
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`postponement with a different rationale.” [Doc. No. 120 page 23].
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`In other words, Government Defendants maintain they cannot be compelled to actually
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`sell the lease, instead, the Court can only remand the lease sales back for further consideration in
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`6 Contrary to law and arbitrary and capricious.
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`which the Government Defendants could admittedly “come up with another reason” to postpone
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`the lease sales. The lease sales would never go through, and Government Defendants argue that
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`the Plaintiff States would not receive any proceeds.
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`Additionally, Government Defendants argue the Plaintiff States will not be harmed by the
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`Pause because development activity from exploration through drilling and production has
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`continued at the same levels as the preceding four years and because no existing lease has been
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`cancelled as a result of the Pause. Government Defendants attach the Declaration of Walter D.
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`Cruickshank (“Cruickshank”) [Doc. No. 120-1], the Declaration of Peter Cowan (“Cowan”)
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`[Doc. No. 120-4] and the Declaration of Mustafa Haque (“Haque”) [Doc. No. 120-3].
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`Declaration of Walter D. Cruickshank
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`Cruickshank is a Deputy Director of BOEM in the United States Department of the
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`Interior. He declared that under OCSLA, the DOI is responsible for the administration of energy
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`and mineral exploration and development on the Outer Continental Shelf (“OCS”). Many of the
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`DOI responsibilities for implementing OCSLA have been delegated to BOEM. These delegated
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`responsibilities include conducting oil and gas lease sales, issuing leases on the OCS, and
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`approving exploration and development plans under those leases. As part of his duties,
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`Cruickshank supervises the BOEM Regional Directors.
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`
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`Cruickshank denies that any existing OCS leases have been cancelled as a result of the
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`Pause, or the comprehensive review. He also denies there is a drilling ban in existence. He
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`states Gulf of Mexico development activity from exploration through drilling and production has
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`continued at the same levels as the preceding four years.
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`Cruickshank also denies President Biden has “banned all new domestic oil and gas
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`production by imposing a drilling moratorium.” He declares that BOEM has approved 13
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`exploration plans from January 20, 2021 to March 24, 2021.
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`He further declares the effects of the actions related to Lease Sales 257 and 258 will not
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`have an immediate impact on royalty revenues during the pending litigation. Royalty-generating
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`production on a new lease does not typically begin sooner than five years from the date the lease
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`was issued.
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`
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`Cruickshank further declares that the United States’ interests would be harmed by a
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`preliminary injunction as it would frustrate the DOI’s ongoing process of determining how best
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`to carry out OCS leasing responsibilities and the mandated comprehensive review.
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`Declaration of Peter Cowan
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`Cowan is employed by the U.S. DOI, BLM, in Grand Junction, Colorado, as Senior
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`Mineral Leasing Specialist. In his role, Cowan coordinates and develops leasing policy and
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`guidance, analyzes the effectiveness of leasing oil and gas, and oversees manuals, handbooks,
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`and procedural guidance to implement BLM’s mineral leasing program.
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`Cowan lists several lawsuits against BLM under the NEPA. Due to numerous lawsuits
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`and adverse decisions in several lawsuits, BLM’s NEPA workload has been growing. He
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`declares that because the existing NEPA analysis was found to be inadequate, BLM is obligated
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`to do additional NEPA for at least seven lease sales involving over 200 leases and 200,000 acres
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`of land.
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`Cowan declared that in light of this growing accumulation of NEPA analysis and adverse
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`decisions, BLM postponed lease sales in the first quarter of 2021 to do additional NEPA
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`analysis. He stated that the lease sale deferrals that BLM undertook in the first quarter of 2021
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`were not the first time BLM has deferred sales to perform additional NEPA analysis, as it
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`occurred under the prior administration.
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`Cowan also denied that BLM has implemented a drilling or production moratorium as
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`BLM continues to review and approve drilling permits at rates similar to the prior administration.
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`He further stated BLM has interpreted the statutory phrase “eligible lands are available for
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`leasing” to mean, at a minimum, that “all statutory requirements and reviews, including
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`compliance with NEPA have been met.”
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`Declaration of Mustafa Haque
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`Haque is employed by the U.S. DOI, BLM, Division of Fluid Minerals (“DFM”) in the
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`Headquarters office in Grand Junction, Colorado, as a