Executive Authority to Keep It in the Ground: An Administrative End to Oil and Gas Leasing on Federal Land

Abstract

The United States maintains a federal program whereby private actors lease access to the federal mineral estate, including vast stores of fossil fuels. Issuing these leases to extractive industries means a considerable amount of otherwise-benign carbon is released into the atmosphere, which contributes significantly to global climate change. Environmental organizations have called on the executive branch to change this policy under a campaign called “Keep It in the Ground.” This article evaluates the executive branch’s authority to end onshore oil and gas leasing administratively, without action by Congress. I conclude that the Department of the Interior can terminate onshore oil and gas leasing under discretionary authority contained in the Mineral Leasing Act and the Federal Land Policy and Management Act. Based on this authority, the President, acting through the Interior Department, could create a national rule or set of rules, similar to the Forest Service’s 2001 Roadless Rule, ending oil and gas leasing nationwide. Only process, not substantive law, would limit the executive branch’s ability to stop the extraction of federal fossil fuels.