- - Thursday, October 2, 2014

ANALYSIS/OPINION:

There has been much in the national news about the “lawlessness” of the Obama administration, including this testimony of a self-proclaimed liberal law professor: “We are in the midst of a constitutional crisis with sweeping implications for our system of government [which] threatens the stability and functionality of our tripartite system. We are now at the constitutional tipping point .” Unaddressed, however, is the manner in which the president’s disdain for the other co-equal branches is evident far from Washington.

President Obama’s “anti-constitutional excesses” — as Republican Rep. Tom Cotton of Arkansas characterized them — extend deep into the bureaucracy and into the most prosaic of cases. This became evident recently in a lawsuit filed by the holder of a Reagan-era federal oil and gas lease in Montana who seeks simply the right to explore for energy on his property.

In June 1982, the Bureau of Land Management issued Sidney M. Longwell of Baton Rouge, La., a 6,247-acre oil and gas lease in the Badger-Two Medicine Area of the Lewis and Clark National Forest in northwestern Montana’s Glacier County. The next year, Mr. Longwell assigned the lease to America Petrofina Co. of Texas, which later became Fina Oil and Chemical Co. In October 1983, Fina submitted an application for permit to drill to evaluate the natural-gas potential of that part of the Overthrust Belt.

After extensive review in accordance with the National Environmental Policy Act, 76 separate appeals and a ruling by the Interior Board of Land Appeals and the Bureau of Land Management, in consultation with the U.S. Forest Service; the Montana Department of Fish, Wildlife and Parks; and the U.S. Fish and Wildlife Service approved the permit to drill in 1985, then again in 1987, once again in 1991, and finally in January 1993.

In April 1993, seven environmental groups filed a lawsuit challenging the approved permit. Then-Sen. Max Baucus, Montana Democrat, introduced legislation to bar any and all surface disturbances on oil and gas leases in the area and to evaluate the area for wilderness designation; he also demanded that President Clinton’s secretary of the interior, Bruce Babbitt, impose a moratorium on oil and gas drilling there. In 1997, the lawsuit filed by the various environmental groups was terminated.

Meanwhile, in June 1993, Mr. Babbitt suspended activity on the lease, purportedly awaiting congressional action. In 1994 and 1995, he extended the suspension for the same reason. In 1996, he continued the suspension, asserting it was necessary to comply with the National Historic Preservation Act. In 1997, Mr. Babbitt extended the suspension and finally, in 1998, he continued it indefinitely.

In 1999, in the face of the interminable delay, Fina assigned its lease and drilling rights back to Mr. Longwell. In July 2004, Mr. Longwell assigned the rights to his company Solenex LLC, which in May 2013 asked that the suspension be lifted and that he be allowed to drill. That request was denied. In June 2013, Mr. Longwell sued Secretary of the Interior Sally Jewell and others.

Days ago, Obama administration lawyers told a federal district court that the suit must be dismissed because an interior secretary may suspend oil and gas leases indefinitely, and federal judges cannot do anything about it. Besides, argued the lawyers, the 20-year delay is not “unreasonable” because the federal agencies have been working “hard” generating study after study, at taxpayer expense, of the proposed exploratory well.

Such contempt for the Constitution concerns more than just the law professors called to testify before Congress. The Obama administration’s refusal to develop energy on the third of the country owned by the federal government and open to that activity has real-life costs. During the past five years, as oil and gas production on state and private lands has increased by 61 percent and 33 percent, respectively, production on federal lands has fallen by 6 percent and 24 percent.

William Perry Pendley is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).

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