- - Sunday, January 31, 2016

ANALYSIS/OPINION:

President Obama’s plot to use the National Environmental Policy Act (NEPA) to kill federal coal mining with a thousand paper cuts is not the first time he has used NEPA to try to end energy development. Disturbingly, his scheme is a throwback to President Carter and a decade-long moratorium that ended only when President Reagan took office. Meanwhile millions of Americans, vast regions and the nation’s economy will suffer.

In 2009, the Obama administration settled a “sweetheart lawsuit” by environmental groups by agreeing to a NEPA study on oil and gas drilling in the Allegheny National Forest in northwestern Pennsylvania. The region had seen oil and gas activity since the nation’s first successful oil well there in 1859, but Marcellus Shale gas foretold a boom the groups wanted to kill. Trouble was the settlement was illegal. A federal district court and the U.S. Court of Appeals for the Third Circuit vetoed the deal, ended the moratorium, which was to last years, put thousands of locals back to work and saved a region from economic disaster.

States that mine federal coal may not be so lucky. The Ford administration sought to end the Nixon administration’s coal leasing moratorium, but NEPA, signed by Nixon in 1969, was in its ascendancy, with increased paperwork for federal agencies, suits by environmental groups, and judicial rulings on how much paperwork constitutes the requisite “hard look.” In 1976, the Ford administration won a NEPA case at the Supreme Court of the United States, which sustained its limited view of NEPA’s requirements as it prepared for coal leasing in Montana and Wyoming’s Powder River Basin. In 1977, however, the Carter administration lost a NEPA challenge to its coal leasing program, declined to appeal, and embraced the central planning mandated by a federal judge. In fact, Carter officials while “toy[ing] with the idea of hiring a U.S. specialist in Soviet economic planning to look at the federal [coal] leasing program,” spent the rest of the decade completing the plan.

The Reagan administration, although unhappy with the Carter program, recognized that “[l]ess than 1 percent of federal coal lands were under lease and new leasing had been at a virtual standstill since 1971” and that “35 percent of the coal will come from public lands,” and thus implemented the program. From early 1981 to late 1983, Reagan officials leased 2.5 billion tons of federal coal, which netted $128.6 million in bonuses, including 1.5 billion tons of coal beneath 32,000 acres in Montana and Wyoming.

In 1983, President Reagan agreed with congressional calls for another review of the federal coal program. In late 1985, Reagan officials revealed the new program, which increased flexibility, was orderly and predictable for state and local governments and industry, promoted competition, assured fair market value, ensured adequate data, clarified surface owner consent, and established well-defined standards. Later minor modifications allowed more leasing to ensure continued production from Reagan era leases. Today, Wyoming leads the nation in coal production; its output exceeds that of the next top six coal-producing states combined. Mr. Obama intends to kill mining of all federal coal, and the jobs, communities, and foreign trade payments that go with it, to placate environmental groups that say the United States is not getting “fair market value” for its coal.

Ronald Reagan, to whom Mr. Obama compares himself, faced that issue in 1983. In his own hand, he wrote, “Now voices are being raised on the Hill saying that a moratorium should be put on the leasing of all coal bearing government lands. Totally forgotten is the fact that the American people as customers will end up paying for that coal. Included in the price will be the cost of the lease and even [the royalty paid to the government]. It seems to me [our lease sale] not only protected the government interests, [it showed] consideration for the ultimate consumer — you and me.” Imagine that, a president concerned about “you and me.”

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

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