An executive order, secretarial order, and lawsuit challenging said secretarial order, all in the span of less than 36 hours and all concerning federal coal leasing. The Trump administration on Wednesday reversed a 2016 Obama administration moratorium on federal coal leasing, and environmental organizations have already filed suit challenging this change of direction. While the effect on coal mining from this Trump administration reversal is uncertain, the now-defunct moratorium likely had a relatively small practical effect on federal coal leasing.
By way of background, in January 2016 then Secretary of the Interior Sally Jewell issued Secretarial Order No. 3338. This order directed the Bureau of Land Management (BLM) to (i) prepare a Programmatic Environmental Impact Statement (PEIS) under the National Environmental Policy Act (NEPA) to review the federal government’s coal leasing program, and (ii) imposed a “pause” on federal coal leasing while the PEIS was prepared. As a result, the BLM would neither process new applications for coal leases nor conduct lease sales for pending applications until the PEIS was complete. However, Secretary Jewell’s order exempted five categories of coal leasing decisions from the moratorium (e.g., when the NEPA process had already been completed and a record of decision had already been issued by either the BLM or the applicable federal surface management agency). Yesterday, current Secretary of the Interior Ryan Zinke implemented President Trump’s Energy Independence Executive Order by revoking Secretary Jewell’s order through his own Secretarial Order No. 3348. (The executive order was not focused just on federal coal leasing. Here is an analysis of its potential impact on the broader energy industry, and here is an analysis of its rescission of President Obama’s 2015 natural resource mitigation memorandum.)
Did the Obama administration’s yearlong moratorium have much practical effect on federal coal leasing? Probably not. First, the exemptions meant that federal coal leasing activities were not entirely frozen. For example, in early January 2017, the BLM auctioned a 6,000+ acre lease in Utah. In fact, of the 44 federal coal lease applications pending when Secretary Jewell imposed the moratorium, the BLM initially believed that just 14 were exempt. However, the most recent BLM list (from late February 2017) indicates that 10 more pending applications, plus part of one other application, either had been determined to be exempt or may have qualified for an exemption. In other words, over half of the pending applications may have fallen outside the moratorium. Second, the moratorium did not preclude pending, non-exempt lease applications from continuing through the lease application process. Applicants could request that the BLM continue the lease application process, including NEPA review, which takes many years to complete. For example, it took nearly seven years to produce an environmental assessment for a small 160-acre federal coal lease. The most recent BLM list indicates that the processing of just two lease applications (plus part of a third) was suspended in connection with Secretary Jewell’s order. As a result, the processing of most pending, non-exempt applications was not delayed by the moratorium. Third, that same BLM list indicates that only one application was withdrawn during the moratorium. Taken together, the moratorium appears to have had a relatively small practical effect on pending federal coal lease applications.
Of course, the moratorium did prevent new applications from being filed for one year. However, given the long lead time needed for federal coal leases and the other challenges facing the coal industry, it seems unlikely that this delay had material practical impacts on federal coal leasing.