The tug of war over one drilling lease in the Gulf of Mexico involving the president, Congress and the courts illustrates the limits of executive power.
Tens of thousands of climate protesters who filled Midtown Manhattan last week directed their anger at President Biden, who has done more to combat climate change than any of his predecessors.
But in their view, he has failed in one important way: Mr. Biden has not stopped oil and gas drilling on public lands and in federal waters, as he pledged as a candidate in 2020.
Mr. Biden’s promise of “no new drilling, period,” began to dissolve just months after he took office as he confronted a hard reality: The executive may oversee millions of acres of federal property but Congress and the courts can have the final say.
“There’s a delicate dance here,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “There’s a gap between what some advocates want the president to do, and what he can actually do, especially given a conservative Supreme Court, a hostile House of Representatives and a divided Senate.”
Look no further than the tortured history of Lease 261, a 73 million acre tract of water in the Gulf of Mexico that is slated to be leased to oil companies next month.
The area was initially offered to the oil industry by the Obama administration, and then again by President Donald J. Trump, who encouraged fossil fuel companies to drill in nearly every inch of federal waters but who never actually finalized that lease sale before his term ended.
Soon after he took office, Mr. Biden called climate change an existential threat and paused all federal oil and gas lease sales, including Lease 261, saying he wanted to first consider their impact on global warming.
Emissions from burning fossil fuels extracted from federal lands and waters account for almost 25 percent of the country’s greenhouse gas emissions, pollution that is dangerously heating the planet and that Mr. Biden has pledged to cut in half by 2030.
Thirteen states and the oil industry challenged Mr. Biden’s decision to pause leasing, and a federal judge in Louisiana agreed, saying only Congress could stop lease sales.
After that loss, the administration moved ahead with a different lease sale in the Gulf, which did not include Lease 261. This time, environmental groups sued and a federal judge in Washington, D.C., blocked the sale, saying the Biden administration had not adequately considered its effect on global warming.
That gave the administration an opening and, in the spring of 2022, the Interior Department canceled the sale of Lease 261, citing conflicting court rulings.
And that’s when Congress stepped in. During negotiations over the 2022 Inflation Reduction Act, Senator Joe Manchin III, a West Virginia Democrat and a crucial swing vote on the bill, inserted language requiring the sale of gas and oil leases, specifically Lease 261. The sale would take place by Sept. 30, 2023.
But the tug of war did not end there.
In a federal court in Maryland, the Sierra Club was suing the Biden administration, arguing the government was not doing enough to protect the endangered Rice’s whale in the Gulf of Mexico. The administration negotiated a deal in July in which it agreed to limit the location of lease sales in the Gulf to better protect the whales.
And it would start with Lease 261, by reducing the lease area by six million acres.
The state of Louisiana, Chevron and the American Petroleum Institute, a trade group, swiftly sued, arguing that the alteration violated the Inflation Reduction Act. Last week, a federal judge in Louisiana ruled in favor of the oil industry.
“It’s like a zombie lease sale, it won’t die,” said Valerie Cleland, an ocean policy expert at the Natural Resources Defense Council, an environmental group.
The administration has appealed but so far has succeeded only in delaying the sale, which is now scheduled for Nov. 7.
Ryan Meyers, the senior vice president and general counsel at the American Petroleum Institute, said the Biden administration’s attempts to hem in drilling jeopardized the country’s energy security. “It should not take a court order or an act of Congress for Interior to carry out its responsibility to meet the energy needs of the American people,” he said.
The administration is expected to continue leasing areas for new drilling because the Inflation Reduction Act requires the government to permit oil and gas leasing as a condition for allowing solar and wind farms on federal land and waters, which are a priority of the president.
Federal law also requires the administration to publish a five-year plan for offshore drilling, a schedule for oil and natural gas lease sales in federal waters. The Interior Department is expected to issue that plan on Friday, according to Tommy Beaudreau, the deputy secretary.
The five-year plan “sets industry expectations and they are very used to getting their way,” said Steve Mashuda, an attorney with Earthjustice, one of the environmental groups that has sued to stop oil and gas lease sales. “The law is clear, the government cannot hold a lease sale unless it’s in the plan. They can do less than what’s in the program, but they can never do more.”
Young activists, already angry at the president for approving the enormous Willow oil development project in Alaska and the Mountain Valley Pipeline in West Virginia and Virginia, warned Mr. Biden last week that he risked losing their support.
“We have really had enough of Biden approving new fossil fuel projects and putting our future at stake for his own political means,” Emma Buretta, 17, of New York City, said as she joined protests in Bryant Park.
“What Biden is showing us is that he’s scared,” she said. “He’s scared of fossil fuel companies. But instead, what we’re saying is, he should be scared of us, because we’re the ones voting.”
Mr. Trump, the front-runner for the Republican nomination for 2024, has made a strong showing against Mr. Biden in some recent polls. That makes it all the more important for Mr. Biden that young climate voters, who helped him win in 2020, turn out for him again.
For all the determination on the part of climate activists to stop drilling, the oil and gas industry is equally resolved to keep it going.
Rene Santos, an oil analyst S&P Global Platts said the battle over Lease 261 was emblematic of the tensions that will play out for years as countries pivot to clean energy.
“Everybody knows the train has left the station and we’re moving toward a transition to renewables and less hydrocarbons,” Mr. Santos said. Fossil fuel companies are scrambling to drill while demand for oil and gas remains strong. Crude oil production in the United States is projected to reach a record high this year, according to the United States Energy Information Administration.
“A lot of people would prefer to get that oil out as soon as possible,” Mr. Santos said. “We have the transition coming over time, and you don’t want to be stuck with billions of investments.”
Somini Sengupta contributed reporting from New York.