Louisiana et al v Biden et al

Filing 219

MEMORANDUM RULING granting in part and denying in part 199 MOTION for Summary Judgment and 209 Cross MOTION for Summary Judgment. Signed by Judge Terry A Doughty on 8/18/2022. (crt,Miletello, A)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

STATE OF LOUISIANA ET AL

CASE NO. 2:21-CV-00778

VERSUS

JUDGE TERRY A. DOUGHTY

JOSEPH R BIDEN JR ET AL

MAG. JUDGE KATHLEEN KAY
MEMORANDUM RULING

On January 27, 2021, President Joseph R. Biden, Jr. (“President Biden”) signed
Executive Order 140081 entitled “Tackling the Climate Crisis at Home and Abroad.” (hereinafter
“Executive Order 14008”). Section 208 of Executive Order 14008, in pertinent part, states:
Oil and Natural Gas Development on Public Lands and in Offshore
Waters. To the extent consistent with applicable law, the Secretary of the
Interior shall pause new oil and natural gas leases on public lands or in
offshore waters pending completion of a comprehensive review and
reconsideration of Federal oil and gas permitting and leasing practices in
light of the Secretary of the Interior’s broad stewardship responsibilities
over the public lands and in offshore waters, including potential climate
and other impacts associated with oil and gas activities on public lands or
in offshore waters.
At issue in this proceeding is whether President Biden had the authority to order a stop on
oil and gas activities in light of the Outer Continental Shelf Lands Act2 (“OCSLA”) and the
Mineral Leasing Act3 (“MLA”). Also at issue is whether the various Government Defendant
agencies’ implementation of Section 208 of Executive Order 14008 violated the Administrative
Procedures Act4 (“APA”).

1

86 Fed. Reg. 7619
43 U.S.C. § 1332, et seq.
3
30 U.S.C. § 226, et seq.
4
5 U.S.C. § 551, et seq.
2

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Pending before the Court is a Motion for Summary Judgment [Doc. No. 199] filed by
Plaintiff States5 and a Cross Motion for Summary Judgment [Doc. No. 209] filed by Government
Defendants.6 Oppositions [Doc. Nos. 208 and 217] have been filed by Government Defendants
and Plaintiff States. Replies [Doc. No. 215 and 218] have been filed by Government Defendants
and Plaintiff States.
Additionally, Amici Curiae Memoranda [Doc. Nos. 213 and 214] have been filed by
Conservation Groups7 in opposition to Plaintiff States’ Motion for Summary Judgment and in
support of Government Defendants’ Cross Motion for Summary Judgment.
For the reasons set forth herein, Plaintiff States’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART, and Government Defendants’ Cross Motion for
Summary Judgment is GRANTED IN PART and DENIED IN PART.

5

The Plaintiff States consist of the States of Louisiana, Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri,
Montana, Nebraska, Oklahoma, Texas, Utah, and West Virginia.
6

Government Defendants consist of Joseph R. Biden, Jr. in his official capacity as President of the United States;
Deb Haaland, in her official capacity as Secretary of the Interior; Michael Nedd, in his official capacity as Deputy
Director of the Bureau of Land Management; Chad Padgett, in his official capacity as Director of the Bureau of
Land Management Alaska Office; Raymond Suazo, in his official capacity as Director for the Bureau of Land
Management Arizona Office; Karen Mouristen, in her official capacity as Director for the Bureau of Land
Management California Office; Jamie Connell, in his official capacity as Director for the Bureau of Land
Management Colorado Office; Mitchell Leverette, in his official capacity as Director for the Bureau of Land
Management Eastern States Office; John Ruhs, in his official capacity as Director for the Bureau of Land
Management Idaho Office; John Mehlhoff, in his official capacity as Director for the Bureau of Land Management
Montana – Dakotas Office; Jon Raby, in his official capacity as Director for the Bureau of Land Management
Nevada Office; Steve Wells, in his official capacity as Director for the Bureau of Land Management New Mexico
Office; Barry Bushue, in his official capacity as Director for the Bureau of Land Management Oregon-Washington
Office; Greg Sheehan, in his official capacity as Director for the Bureau of Land Management Utah Office; Kim
Liebhauser, in her official capacity as Director for the Bureau of Land Management Wyoming Office; Amanda
Lefton, in her official capacity as Director of the Bureau of Ocean Energy Management; Michael Celata, in his
official capacity as Regional Director of the Bureau of Ocean Energy Management Gulf of Mexico Office; Lars
Herbst, in his official capacity as Regional Director of Bureau of Safety and Environmental Enforcement Gulf of
Mexico OCS Office; and Mark Fesmire, in his official capacity as Regional Director of the Bureau of Safety and
Environmental Enforcement Alaska and Pacific Office.
7

Conservation Groups consist of Healthy Gulf, Center for Biological Diversity, Cook Inletkeeper, Defenders of
Wildlife, Friends of the Earth, Natural Resources Defense Council, Oceana, Sierra Club and The Wilderness
Society.

2

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I.

BACKGROUND
President Biden signed Executive Order 14008 on January 27, 2021. Section 208 of

Executive Order 14008 “to the extent consistent with applicable law,” ordered the Secretary of
the Department of the Interior to “pause” new oil and gas leases on public lands or in offshore
waters pending the completion of a comprehensive review of Federal oil and gas permitting and
leasing practices.
The offshore oil and gas leases are governed by the OCSLA. The offshore oil and gas
leases are further governed by the 2017-2022 Five-Year Oil and Gas Leasing Program. The
process of creating the current 2017-2022 OCSLA program began in 2014, during the Obama
Administration. The Bureau of Ocean Energy Management (“BOEM”) published a request for
information (“RFI”) in the Federal Register, 79 Fed. Reg. 34349, and sent a letter to all
governors, tribes and interested federal agencies.8
A Draft Proposed Program9 was published in 2015. The publication of the program
started a sixty-day comment period in which BOEM received over one million comments.
Thereafter, BOEM published the Proposed Final Program in November 2016. The Final
Program was approved on January 17, 2017. The Final Program scheduled ten (10) lease sales in
the Gulf of Mexico and one (1) lease sale in Alaska in the Cook Inlet. The lease sales were
scheduled with one sale in 2017, two sales in 2018, two sales in 2019, two sales in 2020, two
sales in 2021, and one sale in 2022.10 Of particular significance herein is Lease Sale number 257
in the Gulf of Mexico, and Lease Sale number 258 in the Alaskan Cook Inlet.

8

BOEM received over 500,000 comments in a response to the RFI.
[Doc. No. 199 Exh. 11 pp. 1-2 ]
10
[Doc. No. 199 Exh 3, p. 18]
9

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A. The Outer Continental Shelf Lands Act
Congress passed the OCSLA more than seventy years ago.11 The policy behind the act
was to declare that “the subsoil and seabed of the outer Continental Shelf” (“the Shelf”) are
subject to the jurisdiction, control, and power of disposition of the United States. 43 U.S.C. §
1332(1). The OCSLA establishes the Shelf as “a vital national resource reserve held by the
Federal Government for the public.” Id. at § 1332(3). It mandates the Secretary of the Interior
(“the Secretary”) to make this national resource reserve subject to expeditious, orderly
development, and environmental safeguards. Id. This is known as the expeditious development
policy.12
To facilitate this expeditious development of the Shelf, the OCSLA contains a four-step
process that the Secretary must follow in order to administer a leasing program that sells
exploration interests in portions of the Shelf to the highest bidder. 1 43 U.S.C. §§ 1334(a);
1337(a)(1). The Secretary must (1) create a Five-Year Leasing Program, (2) hold lease sales, (3)
grant or deny exploration permits and plans, and (4) grant or deny final development and
production plans. Hornbeck Offshore Servs., L.L.C. v. Salazar, 696 F. Supp. 2d 632 (E.D. La.
2010).13 The Five-Year Leasing Program is subject to procedural requirements, and the
“requirements of the National Environmental Policy Act (“NEPA”) and Endangered Species Act
(“ESA”) must be met before a lease sale can be held.” 43 U.S.C. §§ 1344(c)-(d); 1337; Sec’y of
the Interior v. California, 464 U.S. 312, 338 (1984).
The Secretary is responsible for regulating any lease issued under the OCSLA, and he
may regulate provisions for suspension or prohibition of any operation on the Shelf, cancellation

11

[Doc. No. 3-1 p. 6].
[Doc. No. 3-1 p. 6].
13
[Doc. No. 3-1 p. 6].
12

4

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of leases, assignments of leases, subsurface storage of oil and gas, drilling, prompt and efficient
exploration, etc. 43 U.S.C. § 1334(a). Issuance and continuation of leases will be determined by
compliance with the Secretary’s regulations. Id. at § 1334(b). The specific leases that are granted
to the highest bidder include: “any oil and gas lease on the submerged lands of” the Shelf,
sulphur leases, and other mineral leases. Id. at §§ 1337(a), (i), (k). The biddings on an oil and gas
lease will be sealed and can be based on one of several options laid out within the statute. Id. at
§§ 1337(a)(1)(A)-(I). Once an oil and gas lease is issued, it must meet certain requirements
dictated within the statute, including covering an “area not exceeding 5,760 acres,” being for an
initial period of five years, absent a specific need, and entitling “the lessee to explore, develop,
and produce the oil and gas contained within the lease area.” Id. at § 1337(b).
Under the OCSLA, any United States agency or person authorized by the Secretary may
conduct geological and geophysical explorations of the Shelf as long as it does not interfere with
operations under an OCSLA lease, or harm aquatic life. Id. at § 1340(a)(1). To conduct oil and
gas exploration, the lessee must submit an exploration plan for approval, and the Secretary must
approve the plan within thirty days of submission, absent any reason for cancelling the lease. Id.
at § 1340(c). The exploration plan must include a schedule of the anticipated exploration
activities, a description of the equipment to be used, the location of each well, and other pertinent
information. Id. at § 1340(c)(3).
An oil and gas lessee must submit a development and production plan for approval prior
to any development or production under said lease. Id. at § 1351(a)(1). The plan must describe
the specific work to be done, a description of all facilities and operations to be related to the
development, the environmental safeguards to be implemented, all safety standards to be met, an
expected schedule of production, and other relevant information. Id. at § 1351(c). There must

5

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also be a detailed statement describing all facilities and operations to be constructed or used in
the development or production of oil and gas from the lease. Id. at § 1351(a)(2). After receipt of
this plan, the Secretary must make the plan public within ten days,14 receive comments and
recommendations,15 and approve or disprove the plan within sixty days.16 The Secretary may
disapprove a plan or require modifications for several reasons, but the lessee may reapply.17
The Secretary must follow strict regulations for the Shelf Five-Year leasing program. Id.
at § 1344. After submission of the original leasing program, the Secretary must maintain an oil
and gas leasing program that contains a schedule of proposed lease sales and the size, timing, and
location of leasing activity for the next five-year period. Id. at § 1344(a). The Secretary must
review the program every year to consider possible revisions. Id. at § 1344(e). He must also
maintain the program in compliance with certain statutory principles and revise accordingly. Id.
at §§ 1344(a)-(b). The Secretary must consider suggestions from governors of affected states and
interested federal agencies and submit the program to Congress. Id. at §§ 1344(c)-(d).
Any OCSLA lease holder must maintain compliance with occupational safety and health
standards and environmental regulations. Id. at § 1348(b). The Secretary will enforce safety and
environmental regulations and conduct onsite inspections to maintain compliance. Id. at §
1348(c). The lease holders must maintain all places of employment or areas covered by the
leases in compliance with regulations, maintain all operations in compliance with regulations,
and allow prompt access to any inspector. Id. at § 1348(b). The OCSLA lease holders must also
comply with regulations regarding the access to oil and gas information. Id. at § 1352. The

14

Id. at § 1351(a)(3).
Id. at § 1351(g).
16
Id. at § 1351(h).
17
Id.
15

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required information and data collected by a lessee’s activities are to be properly transmitted and
provided to the Secretary.18
If there is any violation of an OCSLA provision, a civil action may be instituted to
enforce the appropriate penalty. Id. at. § 1350. These can include a restraining order or injunction
against the offender. Id. at § 1350(a).
1. Lease Sale 257
Lease Sale 257 was to comprise the Western and Central Planning Areas of the Gulf of
Mexico and a portion of the Eastern Planning Area not subject to congressional moratorium.19
BOEM published a Proposed Notice of Sale for Lease 257 in November 2021. 85 Fed. Reg.
73508. BOEM sent the Proposed Notice to governors of the affected States and opened it for
public comment. Lease Sale 257 was approved by the Secretary of the Interior in a Record of
Decision (“ROD”) 20 (86 Fed. Reg. 6365), and he scheduled Lease Sale 257 for March 17, 2021.
On February 18, 2021, Michael Celata, Regional Director of BOEM’s Gulf of Mexico
office, issued a Notice to Rescind the prior Lease Sale 257 ROD. 86 Fed. Reg. 10132. The only
stated rationale for rescinding the prior ROD was “to comply with Executive Order 14008.” The
Rescission Notice further stated that BOEM may reevaluate Lease Sale 257 and publish an
appropriate ROD in the Federal Register.
This Court issued a Preliminary Injunction on June 15, 2021.21 The Injunction enjoined
agency executive branch officials from implementing the pause of new oil and gas leases on
public lands or in offshore waters, as set forth in Section 208 of Executive Order 14008.22 After

18

Id.
[Doc. No. 199-1, p 11].
20
[Doc. No. 199-6, p. 2]
21
[Doc. No. 140]
22
Id.
19

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no lease sale was rescheduled, on August 8, 2021, Plaintiff States filed a Motion for Order to
Show Cause and Motion to Compel.23 Government Defendants opposed the motion and revealed
in their brief that Lease Sale 257’s ROD would be reissued.24 The new ROD rescheduled Lease
Sale 257 to November 17, 2021.
Bids for Lease Sale 257 were received on November 17, 2021. Thereafter,
environmental advocacy organizations filed another suit against the Department of the Interior
and BOEM in the United States District Court, District of Columbia. Friends of the Earth, et al
v. Haaland, 2022 WL 254526 (D.D.C. Jan. 27, 2022). The suit alleged a violation of the National
Environmental Policy Act (“NEPA”). On January 27, 2022, Judge Rudolph Contreras vacated
the November 17, 2021, lease sale finding a violation of NEPA. The decision has been appealed
by Louisiana, but Government Defendants did not appeal the decision. Therefore, no lease has
been issued by Government Defendants as to Lease Sale 257.
2. Lease Sale 258
Lease Sale 258 involves property in the Cook Inlet of Alaska. In September 2020,
BOEM began the process of preparing the lease sale. BOEM released a Call for Information and
Nomination in the Federal Register to allow industry parties to indicate interest in parcels of the
sale area. 85 Fed. Reg. 55861. BOEM also released a Notice of Intent to Prepare an
Environmental Impact Statement (“EIS”), which provided the public with an opportunity to
comment on the scope of the lease sale. Id. In January 2021, after accounting for comments,
BOEM published a Notice of Availability25 indicating the area proposed for the sale and
proposed a draft environmental impact statement.26 Fed. Reg. 86 4116; 86 Fed. Reg. 4117.

23

[Doc. No. 149]
[Doc. No. 155]
25
[Doc. No. 199-7 p. 2].
26
[Doc. No. 199-8, p. 2].
24

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In February 2021, after Executive Order 14008, BOEM published a press release on its
website cancelling both the public comment period on the draft EIS, and public meetings about
Lease Sale 258. 86 Fed. Reg. 10,132-01. The press release gave no justification for the
cancellations except for Executive Order 14008. On February 23, 2021, the information in
BOEM’s press release was later published in the Federal Register. 86 Fed. Reg. 10994. It also
relied solely on Executive Order 14008 for the cancellations. BOEM also indicated it would
publish a subsequent notice in the Federal Record if it decided to resume its NEPA evaluation
following the comprehensive review.27
On October 29, 2021, BOEM published in the Federal Register a notice of availability for
a draft EIS analyzing the potential environmental impacts of Lease Sale 258. 86 Fed. Reg.
60068. BOEM indicated it did not receive any nominations or direct indications of interest from
potential bidders and BOEM decided not to proceed with Lease Sale 258.28
B. The Mineral Leasing Act
The MLA governs the energy-producing lands the Federal Government holds onshore
and onshore lease sales of public land. 30 U.S.C. § 226(b)(1)(A). Land is “available” to be leased
if statutory requirements are met and if it is in the public interest to approve the lease.29 To be
eligible for an oil and gas lease under the MLA, an applicant must establish that valuable
deposits of oil or gas have been discovered within the limits of the land to be governed by a
permit. 30 U.S.C. § 223. After establishing discovery of oil and gas, the permittee is entitled to a
lease for one-fourth of the land governed by the permit, and the lease shall extend up to twenty
years.30 Any land leased under the MLA is subject to the condition that the lessee “use all

27

Id.
U.S. Dept. of Interior, Sale 258 Status Update
29
[Doc. No. 209-1, pp. 9-10].
30
Id.
28

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reasonable precautions to prevent waste of oil or gas developed in the land, or the entrance of
water through wells drilled by him to the oil sands or oil-bearing strata, to the destruction or
injury of the oil deposits.” Id. at § 225. Any violation of the MLA will be grounds to forfeit the
lease.31
The Secretary is responsible for leasing lands under the MLA, and he is required to hold
lease sales “for each State where eligible lands are available at least quarterly” and award the
lease to the highest bidder. Id. at §§ 226(a)-(b). The winning bid must be for at least the national
minimum acceptable bid, which is established by regulation from the Secretary, to avoid
rejection. Id. at § 226(b)(1)(A). The lease will be issued within sixty days of the payment by the
highest bidder of the remainder of the bonus bid and the first year’s annual rent.32 Land meeting
certain criteria will be subject to other statutory regulations for leasing,33 and certain federal
lands are excluded from being leased. Id. at §§ 226(b)(2), (3); § 226-3.
The Secretary will regulate all “surface-disturbing activities conducted pursuant to any
lease issued” under the MLA. Id. at § 226(g). No permit to drill will be issued without the
Secretary receiving and approving a plan of operations that describes the proposed surfacedisturbing activities within the leased area.34 The Secretary is further authorized to approve
“operating, drilling, or development contracts” when either the conservation of natural products,
the public convenience or necessity, or the United States’ interests may be best served.35
The MLA provides that, for oil and gas leases on federal lands, in States other than
Alaska, fifty percent of bonuses, production royalties, and other revenues are granted to the State

31

Id.
Id.
33
These statutes dictate special tar sand areas and lands that the United States had a vested future interest in.
34
Id.
35
Id.
32

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in which the lease is located, and forty percent is granted to the Reclamation Fund, which
maintains irrigation systems in several Western States.36 30 U.S.C. §191(a). For leases in Alaska,
ninety percent of revenues are granted to the State.37
C. Post-Executive Order MLA Lease Sales
After the signing of Executive Order 14008, BLM offices halted all pending quarterly lease
sales through an issuance of a BLM Fact Sheet.38 The BLM Fact Sheet relied on the Executive
Order directing the Department of the Interior to “pause” new oil and gas leasing on public lands
and offshore waters for the halt.
BLM postponed a Nevada lease sale on March 9, 2021, and there was no reason provided
for the postponement.39 On February 17, 2021, a March 25, 2021, Colorado sale was postponed,
and, again, there was no reason provided for the postponement.40 On February 12, 2021, lease
sales in Colorado, Montana, Wyoming, and Utah were postponed, with project sites listed as
“paused.”41 The reason listed was to confirm the adequacy of underlying environmental
analyses.42
On February 12, 2021, a Utah oil and gas lease sale scheduled for March 30, 2021, was
postponed. The reason listed was to determine whether additional NEPA needed to be
conducted to determine if parcels were suitable to be offered.43 On January 27, 2021, the DOI,
BLM published Errata #1 with regard to an internet-based competitive oil and gas lease in

36

[Doc. No. 3-1, p. 10]
Id.
38
BLM Fact Sheet, Hitting Pause on New Oil and Gas Leasing, biden-take-action-uphold-committment-restorebalance-public-lease-lands
39
[Doc. No. 120-5 p. 2]
40
[Doc. No. 120-5 p. 3]
41
[Doc. No. 120-5 p. 4]
42
[Doc. No. 120-5 p. 6]
43
[Doc. No. 120-6 p. 1]
37

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Nevada, which consisted of seventeen parcels containing approximately 73,600 acres. The
Notice stated the March 9, 2021, sale had been postponed, with no additional reasons given.44
On February 12, 2021, a Memorandum45 from Travis Annatoyn to Laura Daniel-Davis
stated it was Annatoyn’s opinion that lease sales set in Colorado or Montana and the Dakotas be
postponed because of a lack of analysis on greenhouse gas emissions due to a 2020 lawsuit. The
Memorandum also recommended cancelling lease sales scheduled in Utah and Wyoming due to
lack of an environmental analysis.
On February 12, 2021,46 Mitchell Leverette sent a Memorandum to Michael D. Nedd of
BLM. The memorandum recommended postponing the scheduled March 18, 2021, lease sales in
Alabama and Mississippi (14 parcels, 5439 acres) and rescheduling the sale for June 17, 2021.
The reason given was to complete additional air quality analysis to comply with the WildEarth
Guardians opinion. On February 11, 2021, a Memorandum to Michael Nedd by Gregory
Sheehan recommended postponing a March 30, 2021, competitive lease sale in order to
reevaluate the parcels to comply with the opinion in the Rocky Mountain Wild case.47
On March 1, 2021, in an email from Laura Daniel-Davis to Michael Nedd,48 DanielDavis told Nedd that Department officials were postponing further consideration of Quarter Two
Sales pending decisions on how the Department would implement Executive Order 14008 with
regard to onshore sales. Daniel-Davis told Nedd to post on the relevant website that “[t]he oil
and gas lease scheduled for April 2021 has been postponed.”

44

[Doc. No. 120-6 p. 2]
[Doc. No. 120-6 pp. 3-4]
46
[Doc. No. 120-6, pp. 5-6 ]
47
[Doc. No. 120-6, pp. 7-8]
48
[Doc. No. 120-6 p. 10]
45

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Government Defendants filed Notices of Competitive Lease Sale Activity on April 22,
2022.49 The Notices showed that competitive lease sales were scheduled in Utah, Nevada, New
Mexico, Colorado, Wyoming, and Montana.50
Government Defendants maintain work began on the “comprehensive review” mentioned
in Executive Order 14008 on January 6, 2021, and was completed on October 12, 2021.51
Government Defendants indicated they relied on that comprehensive review to prepare a new
NEPA approach in drafting NEPA analyses for Q1 2022 lease sales. However, due to a court
decision which enjoined some of the NEPA changes in the comprehensive review, Government
Defendants maintain this decision prevented BLM from proceeding with Q1 2022 lease sales.52
The State of Louisiana, et al v. Joseph R. Biden, Jr., et al, Case No. 2:21-1074, W.D. of
Louisiana.
Therefore, after the United States Court of Appeals for the Fifth Circuit Stayed that
injunction,53 Government Defendants state they have rescheduled Q2 2022 lease sales for June
2022.54 There is nothing in the record for the Court to determine whether the June 2022, onshore
lease sales took place. Government Defendants have not provided any evidence showing even
one onshore or offshore lease sale has taken place since Executive Order 14008 was signed on
January 27, 2021.

49

[Doc. No. 198]
Id.
51
[Doc. No. 208-1 p 32 ¶33] [Doc. No. 209-1 p. 14]
52
[Doc. No. 209-1 p. 14] and Declaration of Peter Cowan, [Doc. No. 191-2]
53
[Doc. No. 198-7].
54
[Doc. No. 198-1-6, Exhibits. A-F]
50

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II.

LAW AND ANALYSIS
A. What is a Pause?
Prior to addressing jurisdictional arguments, Government Defendants question what a

“Pause” is. They argue that neither Plaintiff States nor the Court has defined Pause in a manner
that Government Defendants can understand. Additionally, Government Defendants maintain
the word is too ambiguous to meet the specificity requirements of FED. R. CIV. P. 65. The Fifth
Circuit also believed the term was too vague to meet the specificity requirements of FRCP 65.55
This Court has previously used the noun “Pause” to describe the action referred to by
President Biden in Section 208 of Executive Order 14008.56 “Pause” is defined as “a temporary
stop.”57 In this case, the use of the term “Pause” referred to the temporary stop ordered by
President Biden in Section 208 of Executive Order 14008, the one addressed by Michael Celata
in the Notice to Rescind Lease Sale 257,58 the one addressed by BOEM in its February 2021,
press release and Federal Register publication,59 the one addressed by the BLM Fact Sheet,
HITTING PAUSE ON NEW OIL AND GAS LEASING, and the one addressed by Laura
Daniel-Davis in her March 1, 2021, email to Michael Nedd.60
The word “Pause” was used because that is the word used in President Biden’s Executive
Order and thereafter by Government Defendant agencies. However, the Court finds that, in this
case, the most appropriate word to use would be “stop.” This is because the offshore and onshore
Federal leasing process was completely stopped as to eligible lands in all scenarios mentioned
herein. This “stop” was enacted by Executive Order 14008 one week into President Biden’s term

55

United States Court of Appeals for the 5th Cir., Case No. 21-30505, August 17, 2022
“To the extent consistent with applicable law, the Secretary of the Interior shall pause new oil and gas leases on
public lands, or in offshore waters pending completion of a comprehensive review…” (emphasis added)
57
“Pause,” Merriam-Webster, https://www.merriam-webster.com/dictionary/pause.
58
86 Fed. Reg. 10132
59
86 Fed. Reg. 10994
60
[Doc. No. 120-6 p. 10 PR 86]
56

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after a campaign promise to stop oil and gas leasing on federal lands.61 Based upon the previous
campaign promise and the lack of lease sales on federal lands since the Executive Order was
issued nineteen months ago, the Court finds there was an unwritten policy to “stop” the onshore
and offshore leasing process by calling the stopping a “pause.” In the nineteen months after
Executive Order 14008 was issued, the only onshore or offshore lease sale that took place was
the sale of Lease Sale 257. That would not have occurred if not for this lawsuit, the preliminary
injunction, and Motion for Contempt62 filed by Plaintiff States. In other words, Government
Defendants called it a “Pause,” but it was really a complete “Stop” of the federal leasing process.
The word “stop” is defined as “a cessation of movement or operation.”63 As it relates to this
case, the Court refers to the Stop as the cessation of the leasing process of eligible federal lands.
B. Jurisdiction
In their argument that Plaintiff States have no jurisdiction, Government Defendants assert
that Plaintiff States do not have standing, that there is no jurisdiction over agency actions that
occurred after the suit was filed, that there is no jurisdiction over an agency “Pause” (Stop)
because it is a programmatic challenge, because no “Pause” (Stop) exists, and because Plaintiff
States’ requested relief is time barred under 28 U.S.C. § 2401(a).64
The Court will analyze the question of jurisdiction below.
1. Standing
The United States Constitution limits the exercise of judicial power to certain “cases and
controversies.” U.S. Constitution Article III Section 2. Under the doctrine of “standing,” a

61

[Doc. No. 3-1 p.5]
[Do. No. 149]
63
“Stop,” Merriam-Webster, https://www.merriam-webster.com/dictionary/stop.
64
The Court only uses the word Pause here as it relates to Government Defendants’ arguments; the Court finds that
the word Pause does not appropriately or accurately address what the Executive Order did here, but it does find that
the word Stop more accurately reflects the results of EO 14008. The Court will, hereafter, only use the word Pause if
it is referring to Government Defendant’s arguments.
62

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federal court can exercise judicial power only where a plaintiff has demonstrated that it (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that it is likely to be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). The party invoking federal
jurisdiction bears the burden of establishing these elements. Id. at 561.
The Plaintiffs in this case are thirteen (13) States. States are not normal litigants for
purposes of invoking federal jurisdiction. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007).
Rather, a State is afforded “special solicitude” in satisfying its burden to demonstrate the
traceability and redressability elements of the traditional standing inquiry, whenever its claims
and inquiry meet certain criteria. Id. at 520. Specifically, a state seeking special solicitude
standing must allege that a defendant violated a congressionally accorded procedural right that
affects the state’s “quasi-sovereign” interests in, for instance, its physical territory or lawmaking
function. Id. at 520-21.
In Massachusetts v. E.P.A., the United States Supreme Court found the State of
Massachusetts had standing to review an EPA order refusing to regulate greenhouse gas
emissions from motor vehicles under the Clean Air Act. The Court found Massachusetts’
alleged rise in sea levels was “actual and imminent” as “injury in fact.” Id at 521. Additionally,
the Court found Massachusetts had parens patriae standing because the alleged order affected
Massachusetts’ “quasi-sovereign” interests. Id at 520. In determining whether a state’s “quasisovereign” interests are affected, the Court stated that one helpful indication is whether the injury
is one that the state, if it could, would likely attempt to address through its sovereign lawmaking
powers. Id.

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Plaintiff States allege the Stop and/or individual sales postponed cost Plaintiff States a
substantial share of proceeds from lease sales under the OCSLA, the Gulf of Mexico Energy
Security Act, the MLA, and would result in loss of jobs for Plaintiff States’ residents, along with
tax revenue.
a. Injury in Fact
A plaintiff seeking to establish injury in fact must show that it suffered “an invasion of a
legally protected interest” that is “concrete,” “particularized,” and “actual or imminent, not
conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548, 194 L. Ed. 2d 635
(2016), as revised (May 24, 2016). For an injury to be “particularized,” it “must affect the
plaintiff in a personal and individual way.” Id. at 1548. A “concrete” injury must be “de facto,”
that is, it must “actually exist.” “Concrete” is not, however, necessarily synonymous with
“tangible.” Intangible injuries can nevertheless be “concrete.” Id. at 1548-49.
The Court finds Plaintiff States’ alleged injuries are both particularized and concrete.
They have alleged loss of proceeds as a result of the Stop of new oil and gas leases on federal
lands and waters, from bonuses, land rents, royalties, and other income. Plaintiff States have
also alleged loss of jobs and economic damage as a direct result of the Stop. These alleged
damages are concrete, particularized, and imminent.
b. Traceability
Plaintiff States must now show a “fairly traceable” link between their alleged injuries and
the Stop of new oil and gas leases on federal lands and in federal waters. As a general matter,
the causation required for standing purposes can be established with “no more than de facto
causality.” Dep't of Com. v. New York, 139 S. Ct. 2551, 2556, 204 L. Ed. 2d 978 (2019). The

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plaintiff need not demonstrate that the defendant’s actions are “the very last step in the chain of
causation.” Bennett v. Spear, 520 U.S. 154, 169–70, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997).
The Court finds that Plaintiff States have established that the Stop would result in the
damages they allege. The Declaration of Jerome Zeringue,65 the Declaration of Professor
Timothy J. Considine66 and the Declaration of Professor Davie E. Dismukes67 are sufficient to
establish the Stop at issue would result in damages, including funding for the Coastal Master
Plan (which funds Louisiana’s coastal restoration and recovery), reduction in State revenues,
damages to the economy, loss of jobs, higher oil and gas prices, and reduction in the energy
export economy.
Plaintiff States have proved traceability.
c. Redressability
The redressability element of standing to sue requires a plaintiff to demonstrate “a
substantial likelihood that the requested relief will remedy the alleged injury in fact.” El Paso
Cnty., Texas v. Trump, 982 F.3d 332, 341 (5th Cir. 2020).
Government Defendants argue that there has been no “Pause” (Stop) in drilling and
permits for “existing” leases because drilling in federal lands is still proceeding at approximately
the same rate as the prior four years, and, therefore, a favorable ruling for Plaintiff States will not
redress their alleged injuries. However, these declarations only address “existing leases” and not
“new leases.” The cancellation of Lease Sale 257 itself has had immediate impacts on Plaintiff
States due to loss of bonus payments and ground rents. A stop for any significant length of time
would likely result in other losses.

65

[Doc. No. 3-6]
[Doc. No. 120-2]
67
[Doc. No. 3- 4]
66

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The Court finds that Plaintiff States have also satisfied the redressability element.
2. Special Solicitude
Although the Court finds that Plaintiff States have proven standing through the normal
inquiry, they also can establish standing as a result of special solicitude. Plaintiff States have
special solicitude because they assert a congressionally bestowed procedural right (the APA),
and the government action at issue affects the Plaintiff States’ quasi-sovereign interests (damage
to economics, loss of jobs, coastal erosion funding, funding for state and local governments).
See Massachusetts, 549 U.S. at 519–20.
Therefore, any infirmities that may exist in Plaintiff States’ demonstration of traceability
or redressability are remedied by Plaintiff States’ special solicitude.
3. Post-Suit Agency Actions
Government Defendants maintain the Court does not have jurisdiction over any agency
actions which occurred after this suit was filed on March 24, 2021. The Court agrees. Subject
matter jurisdiction is determined at the onset of the suit. The action cannot be a final agency
action under the APA before it occurs. Mobile Oil Corp. v. Kelley, 493 F.2d 784 (5th Cir. 1974);
Palmer v. Sun Coast Contracting Servs., LLC, 2015 WL 5823938 (S.D. Miss. Oct. 6, 2015);
Veldhoen v. United States Coast Guard, 35 F.3d 222 (5th Cir. 1994). Therefore, the Court does
not have jurisdiction to review any pause/stop of lease sales which occurred after March 24,
2021.
4. Programmatic Challenge
Government Defendants argue Plaintiff States’ attack of the “Pause” (Stop) is a
nonjusticiable programmatic challenge, rather than a justiciable challenge to a discrete and final

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agency action. Therefore, Government Defendants argue the Court has no jurisdiction to review
a programmatic challenge.
In Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000), the plaintiffs made an argument
that the Forest Service’s “on-the-ground” management of the Texas forests was unlawful. The
Fifth Circuit reversed the district court’s ruling that gave broad relief, which barred almost all
timber harvesting in the Texas forests. The Fifth Circuit explained that courts can challenge
specific and identifiable agency actions to general management practices but cannot challenge
the agency’s general administration.
Plaintiff States challenge to the Stop is not a programmatic challenge to the agency’s
general administration. It is a challenge to specific things— the Government Defendants’
agencies’ cancellation and/or postponement of eligible onshore and offshore oil and gas leases
because of Section 208 of Executive Order 14008.
5. Non-Plaintiff States
Government Defendants further argue that lease sales in the non-plaintiff states of
Colorado, Wyoming, Nevada, and New Mexico are not subject to the Court’s jurisdiction
because they are not plaintiffs in this lawsuit. The Court agrees. Because Plaintiff States argue
lost revenue, and a parens patria standard on the basis of their citizens, the Court agrees that
Plaintiff States do not have standing to challenge alleged final agency actions involving the nonplaintiff states of Colorado, Wyoming, Nevada, and New Mexico.
However, this would not prohibit Government Defendants from using evidence of these
states’ cancellation/postponement of lease sales in determining whether a pause/stop existed.

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6. Does a Pause Exist?
Government Defendants continue to argue that the Court has no jurisdiction over the
Pause because, in addition to not knowing what a Pause is, an alleged Pause does not exist.68 As
discussed, the Court finds a Stop took place, which was disguised as a Pause in the federal
leasing process. Executive Order 14008, Section 208, instructed the Secretary of the Interior that
“[t]he Secretary of the Interior shall pause new oil and gas leases on public lands or in offshore
waters pending completion of a comprehensive review” (emphasis added). Nothing in the AR
suggests any of the defendant agencies ever questioned whether the Pause in President Biden’s
Executive Order complied with applicable law. The defendant agencies implemented the
Executive Order. Lease Sale 257’s ROD was immediately rescinded, and Lease Sale 258’s Draft
EIS and public meeting were immediately cancelled. 86 Fed. Reg. 10132; 86 Fed. Reg. 10994.
The justification for both was Executive Order 14008.
For the MLA lease sales, after the signing of Executive Order 14008, BLM offices halted
all pending quarterly lease sales.69 In addition to specifically calling it a Pause,70 the only reason
given for those halts was Executive Order 14008. A March 9, 2021, Nevada lease sale was
postponed with no reason given.71 On February 17, 2021, a March 25, 2021, Colorado sale was
postponed with no reason given.72 On January 27, 2021, the DOI, BLM published Errata #1 with
regard to an internet-band competitive oil and gas lease in Nevada, which consisted of seventeen
(17) parcels containing approximately 73,600 acres. The Notice stated the March 9, 2021, sale
had been postponed with no additional reasons given.73 And, on March 1, 2021, in an email from

68

This Court is unclear how Government Defendants know the Pause does not exist if they do not know what a
Pause is.
69
BLM Fact Sheet. See Footnote 33
70
“Hitting Pause on New Oil and Gas Leasing”
71
[Doc. No. 120-5 p. 2]
72
[Doc. No. 120-5 p. 3]
73
[Doc. No. 120-6 p. 2]

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Laura Daniel-Davis to Michael Nedd,74 Daniel-Davis told Nedd to post on the relevant website:
“The oil and gas lease sales scheduled for April 2021, have been postponed.” BLM additionally
cancelled/postponed a number of lease sales for other reasons.75
The reason President Biden gave for pausing federal oil and gas drilling in Executive
Order 14008 was that a comprehensive review and reconsideration of federal oil and gas
permitting and leasing practices needed to occur. According to Government Defendants’
evidence, the comprehensive review mentioned in Executive Order 14008 began January 6,
2021, and was completed on October 12, 2021.76
The DOI states it had not adopted a blanket policy either pausing or stopping oil and gas
leasing, but the evidence does not support that statement. 77 Although the Court does not have
jurisdiction over the lease sales that took place after the suit was filed, the other cancelled or
postponed lease sales are relevant to a determination of whether a Stop took place. Despite
Government Defendants’ argument that no “Pause” (Stop) occurred, not even one onshore or
offshore scheduled lease sale has been conducted since Executive order 14008 was signed on
January 27, 2021.
III.

ULTRA VIRES CLAIM
Government Defendants maintain the Court cannot review Executive Order 14008.

Government Defendants are correct that Executive Order 14008 cannot be reviewed under the
APA because the President is not an agency. Dalton v. Specter 511 U.S. 462 (1994). However,
an Executive Order can be challenged as ultra vires.78 Therefore, reviewing an Executive Order

74

[Doc. No. 120-6 p. 10]
[Doc. No. 120-6 p. 3]
76
Id.
77
BLM IDB 2421
78
Ultra vires is a Latin phrase that means “beyond the powers.”
75

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as to whether it was ultra vires is appropriate to determine whether the President has violated the
Constitution, the statute under which the challenged action was taken violated the Constitution or
conflicted with other statutes, or whether there was no statutory authority to take a particular
action. Ancient Coin Collector’s Guild v. U.S. Customs & Border Protection, 801 F. Supp. 2d
383, 406 (D. Md 2011); Mountain State Legal Foundation v. Bush, 306 F.3d 1132, 1136 (D. C.
Cir. 2002).
A President’s authority to act, as with the exercise of any governmental power, must stem
either from an act of Congress, the Constitution itself, or a combination of the two. Medellin v.
Texas, 552 U.S. 491 (2008). In reviewing the lawfulness of the defendant’s conduct, the Court
begins each inquiry by determining whether the disputed action exceeds statutory authority.
Sierra Club v. Trump, 397 F. Supp 3d 883 (N.D. Cal. 2019). A President may not transgress
constitutional limitations. Indiganas Envit Network v. Trump, 428 F. Supp. 3d 296 (D. Mont.
2019).
In League of Conservative Voters v. Trump, 363 F. Supp. 3d 1013 (D. Ala. 2019),
vacated and remanded sub. Norm, 843 F. App’x 937 (9th Cir. 2021), issues centered around
whether the President had the authority to issue an Executive Order withdrawing a prior
Executive Order under the OCSLA. Title 43 U.S.C. § 1341(a) of OCSLA allows a President of
the United States to withdraw from disposition any of the unleased lands of the Outer
Continental Shelf. President Trump issued an Executive Order (EO 13795) which purported to
revoke previous Executive Orders involving a prior land withdrawal from the OCSLA. The
Court found that although the OCSLA allowed the President to withdraw lands from disposition,
it did not allow a president to revoke a prior withdrawal by an Executive Order.

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Under the United States Constitution, Congress has the sole authority under the Property
Clause to regulate property. 1 U. S. Constitution Art. IV, Section 3, Cl. 2. Generally, the OCSLA
does not grant authority to the President to make revisions to the OCSLA with the exception of
43 U.S.C. § 1341(a). Title 43 U.S.C. § 1344(e) only allows the Secretary to make “insignificant”
changes. Any “significant” changes are required to be in the same manner the plan was
originally developed – by the OCSLA’s four-step process. Therefore, any “significant change”
under the OCSLA that is made without going through the OCSLA’s formal process violates the
OCSLA.
There is no dispute that the Secretary of the Interior did not go through the OCSLA’s
four-step process in implementing Executive Order 14008. Rather than doing a comprehensive
review while the scheduled oil and gas lease sales took place, the Secretary “put the cart before
the horse.” The facts clearly show that the Secretary went about the process in the exact opposite
way as the OCSLA four-step process. Instead of first performing the comprehensive review, the
Secretary instituted a pause to drilling on federal land onshore and offshore and then went on to a
review. This is erroneous.
The Stop was a “significant” revision of the 2017-2022 Five-Year Plan that violated the
OCSLA. There is no statutory authority that authorizes the Executive Branch to Pause the
OCSLA Five Year Plan. Additionally, there is no authority under the MLA for the Executive
Branch to completely Stop the process. The power to pause and/or stop the federal leasing
process lies solely with Congress.
Because Government Defendants cite no authority giving the President the power to
“Pause” (Stop) the process under the OCSLA or the MLA, Government Defendants look to the
“savings clause” of Executive Order 14008 to escape review. Government Defendants are using

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this as an umbrella term to justify the fact that the President lacked any authority to implement
the Pause in such a manner. The savings clause of Executive Order 14008 states:
To the extent consistent with applicable law, the Secretary of the
Interior shall pause new oil and natural gas leases on public lands or in
offshore waters pending completion of a comprehensive review and
reconsideration of Federal oil and gas permitting and leasing practices in
light of the Secretary of the Interior’s broad stewardship responsibilities
over the public lands and in offshore waters, including potential climate
and other impacts associated with oil and gas activities on public lands or
in offshore waters.
(emphasis added).
Government Defendants argue the savings clause allows the Executive Order to escape
judicial review because it informs the relevant agencies not to follow the Executive Order if is it
inconsistent with applicable law. In City & Cty. Of San Francisco v. Trump, 897 F. 3d 1225,
1239 (9th Cir. 2018), the court found similar savings clause language in an Executive Order was
of no consequence and could not be used as an escape from judicial review when the Executive
Order cannot be applied in a manner consistent with those laws. Savings clauses must be read in
context and cannot avoid judicial review when the agencies would have to override clear and
specific language in an Executive Order.
If a “consistent with law” savings clause precludes a court from examining whether the
Executive Order is consistent with law, judicial review would be a meaningless exercise,
precluding resolution of critical legal issues. Hias, Inc. v. Trump 985 F.3d 309, 325 (4th Cir.
2021). The text of Executive Order 14008 is clear— “[t]he Secretary of the Interior shall pause
new oil and natural gas leases in public lands or in offshore water pending completion of a
comprehensive review [.]” Section 208 of Executive Order 14008 cannot be applied in a manner
consistent with applicable law. The Executive Branch does not have the authority to stop the
process under the MLA or the OCSLA while a review is taking place.
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Therefore, the Court finds Section 208 of Executive Order 14008 is ultra vires, beyond
the authority of the President of the United States, and in violation of the OCSLA and the MLA.
Even the President cannot make significant changes to the OCSLA and/or the MLA that
Congress did not delegate.
IV.

APA CLAIMS
The Court must additionally examine whether Plaintiff States’ APA claims are

reviewable. To determine whether the claims are reviewable under the APA, the Court must
determine the meaning of the provisions within the statute that create the causes of action. The
Court applies the traditional principles of statutory interpretation to determine whether Congress
did in fact authorize the causes of action alleged by Plaintiff States. Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 128, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014).
Plaintiff States’ Complaint sets forth ten Claims for Relief. Counts I, II, III, IV, V, VI,
VII, and VIII are claims under the APA for unreasonable delay pursuant to 5 U.S.C. § 706
(Counts I and VI), failure to employ notice and comment in violation of 5 U.S.C. § 706 (Counts
II and VIII), for acting contrary to law in violation of 5 U.S.C. § 706 (Counts III and V) , and for
acting in an arbitrary and capricious manner pursuant to 5 U.S.C. § 706 (Counts IV and VII).
Count IX is a citizen suit under the OCSLA pursuant to 43 U.S.C. § 1349, and Count X is
an ultra vires claim which alleges that the President and the applicable agencies violated the
United States Constitution and statutory authority and/or did not have authority to enact or
implement a Stop of new oil and gas leases on federal land and in federal waters.
Eight of Plaintiff States’ claims are under the APA. These claims only apply to the
defendant agencies and employees. They do not apply to President Biden because the President
is not an agency. The APA imposes four requirements that must be satisfied before a federal

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court can review agency action. First, the plaintiffs must demonstrate that the agency action at
issue in their claim is within the “zone of interests,” and that the statute was intended to protect
from the type of agency action taken by the defendants. Second, no statute may preclude judicial
review. Third, the Stop must constitute a “final agency action.” And fourth, the Stop must not
be “committed to agency discretion by law.” Texas v. United States, 524 F.Supp.3d 598 (S.D.
Tex. 2021).
Government Defendants maintain that the “Pause”(Stop) is not a “final agency action”
and that the “Pause” (Stop) is “committed to agency discretion by law” under the OCSLA and
under the MLA.
A. Zone of Interests
Congress, through the APA, has provided a cause of action for plaintiffs seeking redress
against the federal government for violating federal laws. 5 U.S.C. §§ 702, 706. Congress has
limited the availability of an APA cause of action to plaintiffs who allege an injury that is
“arguably” within the “zone of interests” to be protected or regulated by the relevant statute.
Collins v. Mnuchin, 938 F.3d 553, 573–74 (5th Cir. 2019), cert. granted, 141 S. Ct. 193, 207 L.
Ed. 2d 1118 (2020), and cert. granted, 141 S. Ct. 193, 207 L. Ed. 2d 1118 (2020). The benefit of
any doubt goes to the plaintiff. The test is not “especially demanding,” and the test forecloses
suit only when the plaintiff’s interests are so marginally related to or inconsistent with the
purposes implicit in the statute, that it cannot be reasonably assumed that Congress authorized
that plaintiff to sue. Id., at 573.
This element does not need extended discussion. Clearly, all of the Plaintiff States’
causes of action against Government Defendants are within the “zone of interests” under the
APA.

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B. Statutory Preclusion to Judicial Review
Title 5 U.S.C.§ 701(a)(1) excepts the application of the APA to the extent that statutes
preclude judicial review. Government Defendants have cited no statutes which preclude judicial
review of Plaintiff States’ claims. This Court has found no statutes which preclude review of
Plaintiff States’ APA claims. Therefore, the Court concludes there is no statutory preclusion to
judicial review of Plaintiff States’ claims.
C. Final Agency Action
Title 5 U.S.C. § 704 provides that “final agency actions” for which there is no other
adequate remedy in a court are subject to judicial review. Government Defendants argue that the
“Pause” (Stop) and/or the lease cancellations/postponements are not “final agency actions.”
To determine whether an agency action is final, two conditions are required to be
satisfied. First, the action must mark the consummation of the agency’s decision-making process
and must not be merely tentative or interlocutory in nature. Second, the action must be one by
which rights or obligations have been determined, or from which legal consequences will flow.
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813, 195 L. Ed. 2d 77 (2016);
Bennett, 520 U.S. at 177–78.
Government Defendants argue the challenged decisions are merely interim
postponements of lease sales, not decisions to forego the sales entirely. In support, they cite Am.
Petroleum Inst. v. U.S. E.P.A., 216 F.3d 50 (D.C. Cir. 2000) and Shawny Trail Conservancy v.
Nicholas, 343 F.Supp.2d (S.D. Ill. 2004) for the proposition that interim postponements are not
“final agency action.”
In American Petroleum Institute, the court stated that a decision to defer taking action is
not a final action reviewable by the courts. The court went on to say the announcement of an

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agency’s intent to establish law and policy in the future is not the actual promulgation of a final
regulation. In Shawnee Trail Conservancy, the court held that the Forest Service’s decision
about how and when to conduct an all-terrain vehicles and off-highway motorcycles use review
was not a final agency action.
Plaintiff States maintain that the Stop itself, as well as each cancellation and
postponement, constitute final agency action. Government Defendants’ use of the label “Pause”
is not dispositive of whether the agency action is final. State of La. v. Dep't of Energy, 507 F.
Supp. 1365, 1371 (W.D. La. 1981), aff'd sub nom. Dep't of Energy v. State of Louisiana, 690
F.2d 180 (Temp. Emer. Ct. App. 1982). As long as an agency has completed its decision-making
on a challenged rule—even one interim in nature—the rule satisfies the first prong of the finality
test. Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 79–80 (D.C. Cir. 2020).
There is no real question that Plaintiff States have met the second prong of the Bennett
test because the Stop and/or lease cancellations are actions from which legal consequences will
flow. The only real question is whether the Stop and/or lease cancellations mark the
consummation of the decision-making process.
Numerous analogous cases support Plaintiff States’ position: Texas v. United States, No.
6:21-CV-00003, 2021 WL 723856, at *32 (S.D. Tex. Feb. 23, 2021), opinion amended and
superseded, No. 6:21-CV-00003, 2021 WL 2096669 (S.D. Tex. Feb. 23, 2021), (a 100 day pause
of deportations was final agency action); Ensco Offshore Co., 781 F. Supp. 2d at 334–36, (a
blanket moratorium on deep-water drilling in the Gulf of Mexico was a final agency action);
Env't Def. Ctr. v. Bureau of Ocean Energy Mgmt., No. CV168418PSGFFMX, 2018 WL
5919096, at *5 (C.D. Cal. Nov. 9, 2018), (a document that effectively lifted a moratorium
constituted final agency action); Dunn-McCampbell Royalty Int., Inc. v. Nat'l Park Serv., No.

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CIV.A.V 06 59, 2007 WL 1032346, at *5 (S.D. Tex. Mar. 31, 2007), (a plan that effectively
closed an area to drilling operations was final agency action); Nat. Res. Def. Council, Inc. v.
Hodel, 865 F.2d 288 (D.C. Cir. 1988), (portions of the Five-Year Plan under OCSLA could be
reviewed so a decision to “Pause” the five-year plan should also be able to be reviewed.); Texas,
809 F.3d 134, (a DACA memo which made millions more persons eligible for the DAPA
program and extended the employment authorization for three years, instead of two, was a final
agency action); Wilbur v. U.S. ex rel. Barton, 46 F.2d 217 (D.C. Cir. 1930), aff'd sub nom. U.S.
ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S. Ct. 502, 75 L. Ed. 1148 (1931) (the temporary
withdrawal of public lands by the Secretary of the DOI was found to be a final agency action);
Al Otro Lado, Inc. v. McAleenan, 394 F. Supp 3d 1168 (S.D. Cal. 2019), (an unwritten policy of
limiting asylum seekers at ports of entry from accessing the asylum process by based on false
claims of capacity restraints was final agency action); Amadei v. Nielsen, 348 F. Supp. 3d 145
(E.D.N.Y. 2018), (an unwritten policy of searching travelers for identification documents after
disembarking from domestic flights was a final agency action); BNSF Ry. Co. v. Equal Emp.
Opportunity Comm'n, 385 F. Supp. 3d 512 (N.D. Tex. 2018); (the issuance by EEOC of a right
to sue letter was a final agency action); Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017),
(a decision to stay, pending reconsideration, of the implementation of a final rule was a final
agency action); Velesaca v. Decker, 458 F. Supp. 3d 224 (S.D.N.Y. 2020), appeal withdrawn sub
nom. Velesaca v. Wolf, No. 20-2153, 2020 WL 7973940 (2d Cir. Oct. 13, 2020), (a no-release
policy was found to be a final agency action); Gomez v. Trump, 485 F. Supp. 3d 145 (D.D.C.),
amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v.
Biden, No. 20-CV-01419 (APM), 2021 WL 1037866 (D.D.C. Feb. 19, 2021) (State
Department’s Policy suspending VISA processing and adjudication due to COVID-19 was a

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final agency action); Natural Resources Defense Council, 955 F.3d 68, (EPA’s rule suspending
a prior rule was a final agency action); Becerra v. United States Dep't of Interior, 276 F. Supp.
3d 953 (N.D. Cal. 2017), (the postponing of the application of a rule was final agency action);
and W. Energy All. v. Jewell, No. 1:16-CV-00912-WJ-KBM, 2017 WL 3600740 (D.N.M. Jan.
13, 2017), (BLM’s practice of cancelling or deferring lease auction sales less frequently than
quarterly, for reasons other than lack of eligible parcels under MLA, was a final agency action).
These cases show that a “final agency action” does not have to be defined as permanent
to be considered final. Additionally, there is a strong presumption of judicial review.
Establishing un-reviewability is a heavy burden. Texas, 809 F.3d at 163–64.
The Court finds that the Stop in new oil and gas leases on federal lands and waters, the
cancelling of Lease Sale 257, the stopping of Lease Sale 258, and the cancelling or postponing of
“eligible lands” under the MLA that were cancelled before March 24, 2021, and involved
Plaintiff States, are final agency actions that are reviewable under the APA.
D. Committed to Agency Discretion by Law
Under 5 U.S.C. § 701(a)(2), a court is unable to review an agency decision that is
committed to agency discretion by law. Government Defendants argue that the decision to stop
new oil and gas leases under the MLA or under the OCSLA are within its discretion.
Government Defendants cite several statutes in which the agency is granted discretion.
Additionally, Government Defendants argue that they have the discretion to reconsider a
decision.
The discretion to stop the lease process for eligible lands is not within the discretion of
the agencies by law under either the OCSLA or the MLA. The OCSLA directs the Secretary of
the DOI to make the OSC available for expeditious development. Ensco Offshore Co., 781 F.

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Supp. 2d at 339. The OCSLA also directs the Secretary of the DOI to administer a leasing
program to sell exploration interests in portions of the OSC to the highest bidder. 43 U.S.C. §§
1334(a) and 1337(a)(1).
The OCSLA sets up a four-step process to set up a Five-Year Program. Currently, the
Five-Year Program in effect is from 2017-2022. At least one (Lease Sale 257) of the lease sales
to be sold in the Five-Year Program has been cancelled due to the Stop. The Stop also halted
Lease Sale 258 at the selling stage. The Five-Year Program currently in effect went through a
substantial vetting process, which included millions of comments, approval from affected
governors, publishing of a Final Program that was sent to the President and Congress, and final
approval by the Secretary of the DOI.
Congress, through the MLA, has also made energy-producing lands onshore available for
development. Under the MLA, the Secretary of DOI is required to hold lease sales for each state
where eligible lands are available at least quarterly. 30 U.S.C. § 226(b)(1)(A).
In Western Energy Alliance, 2017 WL 3600740, the court held a BLM policy was a final
agency action that violated the APA. There, the BLM policy in question cancelled or deferred
eligible lands and did not have the lease sales quarterly. The court denied defendant’s motion to
dismiss the plaintiff’s claims that BLM was required to hold lease sales for eligible lands
quarterly and did not have the discretion to do less, so long as there were eligible lands. In other
words, the plaintiffs had a cause of action based on these allegations. Here, because there were
admittedly “eligible lands” available for leasing under both the OCSLA and the MLA,
Government Defendants do not have the authority to stop the process.
The fact that a statute grants broad discretion to an agency does not render the agency’s
decisions completely unreviewable unless the statutory scheme, taken together with other

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relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.
Texas, 809 F.3d at 168. That is not the case here. Both the MLA and the OCSLA set forth
requirements to hold lease sales of eligible lands and sets forth how it is to be conducted.
The agencies could cancel or suspend a lease sale due to problems with that specific
lease, but not as to “eligible” lands for no reason other than to do a comprehensive review
pursuant to Executive Order 14008. Although there is certainly nothing wrong with performing
a comprehensive review, there is a problem in ignoring acts of Congress and stopping the
process while the review is being completed.
Two previous rulings from the Office of the Solicitor on February 12, 199679, and on
January 5, 1981,80 confirm that any significant revisions of an existing Five-Year OCSLA Plan
would require the Secretary of the Interior to revise it “in the same manner that it was originally
developed.” The Secretary of the DOI cannot make any significant changes to the Five-Year
Plan without going through the same procedure by which the Five-Year Plan was developed.
The Stop itself and/or cancellation of one of the Lease Sales set out in the Five-Year Plan is
subject to review.
The Court finds the agency actions at issue are not barred from APA review as actions
committed to agency discretion by law. The APA claims of Plaintiff States are reviewable by
this Court.
E. Contrary to Law 5 U.S.C. § 706 (2)(A) and (C)
Title 5 U.S.C. § 706 (2)(A) and (C) authorizes courts to hold unlawful and set aside
agency actions not in accordance with law or in excess of statutory authority. Plaintiff States
assert that the Stop of new oil and gas leases on federal land and in federal waters pending a

79
80

[Doc. No. 121-1, p. 61]
[Doc. No. 121, p. 56]

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comprehensive review is not in accordance with law and exceeds the agencies authority under
both the OCSLA and the MLA.
The Court finds the Stop is in violation of both the OCSLA and the MLA. Both statutes
require Government Defendants’ agencies to sell oil and gas leases. The OCSLA has a FiveYear Plan in effect that requires eligible leases to be sold. Government Defendants’ agencies
have no authority to make significant revisions in the OCSLA Five-Year Plan without going
through the procedure mandated by Congress. The MLA requires the DOI to hold lease sales,
where eligible lands are available at lease quarterly.
By stopping the process, the agencies are in effect amending two Congressional statutes.
Neither the OCSLA nor the MLA gives the Government Defendants’ agencies the authority to
implement a Stop of lease sales. Those statutes require eligible oil and gas leases to continue to
be sold in accordance with the statutes. The Court finds that the stopping of leasing of eligible
lands and waters is contrary to law.
F. Arbitrary and Capricious 5 U.S.C. § 706(2)(A)
Federal administrative agencies are required to engage in reasoned decision-making.
Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 374, 118 S. Ct. 818, 139 L. Ed. 2d
797 (1998). Plaintiff States allege the Pause is arbitrary and capricious under 5 U.S.C. §
706(2)(A) as to both the MLA and the OCSLA claim.
If an administrative agency does not engage in reasoned decision-making, a court, under
the APA, shall hold unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. §
706(2)(A). The grounds upon which an administrative order must be judged are those upon
which the record discloses that its action was based. Sec. & Exch. Comm'n v. Chenery Corp., 318

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U.S. 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943). Other than a reference to Executive Order
14008, no reasons or explanations were given by the agencies for stopping the oil and gas leasing
process.
A command in an Executive Order does not exempt an agency from the APA’s reasoned
decision-making requirement. California v. Bernhardt, 472 F. Supp. 3d 573, 600–01 (N.D. Cal.
2020). A decision supported by no reasoning whatsoever in the record cannot be saved merely
because it involves an Executive Order. Texas, 2021 WL 2096669, at *39–41. The recission of
Lease Sale 257 and the Executive Order itself (86 Fed. Reg. 7624-25) provides no rationale for
departing from the OCSLA or the MLA requirements. As to Lease Sale 258, BOEM cancelled
both the public comment and public meetings. No explanation was given, other than an
adherence Executive Order 14008. 86 Fed. Reg. 10994.
BLM did not publish a formal notice in the Federal Register halting BLM quarterly land
sales, but it did publish a Fact Sheet, which noted the President’s Executive Order. No
explanation (other than the Executive Order) was given for stopping the lease sales. After that,
the regional BLM offices began posting postponement or cancellation notices for the March and
April 2021, lease sales without explanation.
Because no rational explanation was given, the Court finds that the cancellation of the
leases and enactment of the Stop were arbitrary and capricious actions under the APA.
G. Failure to Provide Notice and Comment 5 U.S.C. § 553
Plaintiff States also claim they are entitled to injunctive relief under the APA because the
Stop and lease cancellations are substantive rules that require notice and comment pursuant to 5
U.S.C. § 553. Section 553 was enacted to allow the public an opportunity to participate in the
rule-making process. U.S. Dep't of Lab. v. Kast Metals Corp., 744 F.2d 1145, 1153 n.17 (5th Cir.

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1984). The APA requires rules to undergo notice and comment unless the rule is exempt. 5
U.S.C. § 553(a)(b). The two exceptions set forth in 5 U.S.C. § 553 are (1) interpretive rules,
general statements of policy, or rules of agency organization, procedure, and practices, and (2)
when the agency for good cause finds (and incorporates the finding and a brief statement of
reasons in the rule issued) that notice and public procedure are impracticable, unnecessary, or
contrary to the public interest. These exceptions are to be narrowly construed, and the only
exception which conceivably could apply here is the first. Texas, 809 F.3d at 171.
In analyzing whether an agency pronouncement is a statement of policy or a substantive
rule, the starting point is the agency’s characterization of the rule. Pros. & Patients for
Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995). As to the offshore leases, there is
no characterization, just reference to Executive Order 14008. As to the land leases, Government
Defendants deny there is any “Pause” (Stop) at all. In reading Section 208 of Executive Order
14008, there is no characterization. Executive Order 14008 states: “To the extent consistent with
applicable law, the Secretary of the Interior shall Pause new oil and natural gas leases on public
lands or in offshore waters pending completion of a comprehensive review[.]”
When distinguishing policy statements from substantive rules, the Fifth Circuit instructs
district courts to determine whether the rule imposes any rights and obligations, and whether it
genuinely leaves the agency and its decisionmakers free to exercise discretion. Texas, 809 F.3d
at 171.
Executive Order 14008 imposes rights and obligations and does not leave the agency and
its decisionmakers room to exercise discretion. The Executive Order effectively commands that
the DOI stop performing its obligations under the OCSLA and the MLA to sell oil and natural
gas leases. That impact is legal in nature and effectively stopped the scheduled sale of Lease Sale

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257, put the brakes on Lease Sale 258, and stopped the quarterly lease sales under the MLA. The
Executive Order also leaves the agency and its decisionmakers with no true discretion. Although
the Order contains the savings clause, Executive Order 14008 also uses the wording “shall
pause.” That wording eliminates the agency’s discretion because exercising discretion would be
disobeying a Presidential Executive Order.
The Stop, or “Pause” as referred to in Executive Order 14008, is a substantive rule as
implemented by the DOI and BLM, and the exceptions to 5 U.S.C. § 553 do not apply. The order
is not procedural because it modifies substantive rights and interests under the “substantial
impact test.” Texas, 809 F.3d at 176. The exceptions in 5 U.S.C. § 553 do not apply, and notice
and comment was required under 5 U.S.C. § 553(b) and (c).
It is uncontested that no notice and comment was conducted by Government Defendant
agencies pursuant to 5 U.S.C. § 553. The actions taken were substantive in nature, and the
agency did not have good cause to forego the notice and comment requirement. Accordingly,
the actions of the Government Defendants violate the APA’s notice and comment procedure.
H. Unreasonably Withheld and Unreasonably Delayed 5 U.S.C. § 706(1)
Title 5 U.S.C. § 706(1) provides that the reviewing court under the APA shall compel
agency action unlawfully withheld or unreasonably delayed.
Because the Court finds Government Defendants violated the APA because their actions
were contrary to law, arbitrary and capricious, and failed to provide notice and comment, it is
unnecessary to determine whether Government Defendants’ actions were unreasonably withheld
and unreasonably delayed.

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V. CITIZEN’S SUIT
Count IX of Plaintiff States’ Complaint alleges a citizen’s suit pursuant to 43 U.S.C. §
1349. Plaintiff States have not pursued and/or briefed this claim. Additionally, the citizen suit
provision was not intended to operate as a means of obtaining “umbrella” review for a series of
agency decisions that were or will be subject to judicial review under the APA. OXY USA, Inc. v.
Babbitt, 122 F.3d 251, 258 (5th Cir. 1997).
Therefore, Government Defendants’ Cross-Motion for Summary Judgment is
GRANTED as to the Plaintiff States’ citizen suit claim.
VI.

PERMANENT INJUNCTION
A permanent injunction is an extraordinary remedy never awarded of right. Benisek v.

Lamone, 138 S. Ct. 1942, 1943, 201 L. Ed. 2d 398 (2018). In each case, the courts must balance
the competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.
Ct. 365, 172 L. Ed. 2d 249 (2008).
The standard for a permanent injunction requires a movant to show (1) the substantial
likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence
of an injunction, (3) that the balance of equities tips in his favor, and (4) that an injunction is in
the public interest. Benisek, 138 S. Ct. at 1944. The party seeking relief must satisfy a
cumulative burden of proving each of the four elements enumerated before an injunction can be
granted. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). None of the four prerequisites has
a quantitative value. State of Tex. v. Seatrain Int'l, S. A., 518 F.2d 175, 180 (5th Cir. 1975).

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A. Success on the Merits
For the reasons set forth herein, Plaintiff States have been successful on their eight claims
under the APA (Counts I, II, III, IV, V, VI, VII and VIII) and on the ultra vires claim (Count X).
Plaintiff States have not been successful on their citizens suit claim (Count IX). Therefore,
Plaintiff States have met the first factor on Counts I-VIII and on Count X.
B. Irreparable Injury
Plaintiff States must demonstrate “a substantial threat of irreparable injury” if the
injunction is not issued. Texas, 809 F.3d at 150. For the threat to be sufficiently “substantial,”
plaintiffs must show they are likely to suffer irreparable harm in the absence of preliminary
relief. Winter, 555 U.S. at 20. For the injury to be sufficiently “irreparable,” plaintiffs need only
show they “cannot be undone through monetary remedies.” Burgess v. Fed. Deposit Ins. Corp.,
871 F.3d 297, 304 (5th Cir. 2017).
Plaintiff States are alleging they would sustain damages due to reduced funding for
bonuses, ground rent, royalties, and rentals as a result of the Stop of new oil and gas leases in
federal waters or on federal land. Additionally, Louisiana is also claiming damage for reduced
funding to the Coastal Master Plan, which would reduce proceeds that are used in Louisiana’s
coastal recovery and restoration program. Plaintiff States are also claiming damages through
loss of jobs in the oil and gas sector, higher gas prices, losses by local municipalities and
governments, as well as damage to Plaintiff States’ economy. Additionally, Plaintiff States
argue that they will not be able to recover money damages against Government Defendants due
to sovereign immunity. Texas, 809 F.3d at 186 and Texas, 2021 WL 2096669, at *47.
Government Defendants maintain that drilling and the issuing of drilling permits is
continuing at the same level as it did prior to the Pause. However, just with the loss of proceeds

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from Lease Sale 257, which would have been already completed, Plaintiff States would have
been entitled to ground rents and bonuses that they will not receive. Plaintiff States have alleged
substantial damages from Government Defendants, which would be difficult, if not impossible,
to recover due to sovereign immunity. Even though existing leases are proceeding, the fact that
new oil and gas leases on federal lands and in federal waters are paused will ultimately result in
losses to Plaintiff States from which they will likely not be able to recover.
Accordingly, this Court finds Plaintiff States have demonstrated a substantial threat of
irreparable injury.
C. The Balance of Equities and the Public Interest
The final two elements Plaintiff States must satisfy for a permanent injunction to be
issued are that the threatened harm outweighs any harm that may result to Government
Defendants, and, that the injunction will not undermine the public interest. Valley v. Rapides
Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997). These two factors overlap considerably.
Texas, 809 F.3d at 187. In weighing equities, a court must balance the competing claims of
injury and must consider the effect on each party of the granting or withholding of the requested
relief. Winter, 555 U.S. at 24. The public interest factor requires the court to consider what
public interests may be served by granting or denying an injunction. Sierra Club v. U.S. Army
Corps of Engineers, 645 F.3d 978, 997–98 (8th Cir. 2011).
Both sides argue equity and public interest in their own favor. The Court finds both
factors weigh in favor of Plaintiff States. If the Stop were enjoined, Government Defendants
would simply be doing what they are statutorily required to do under the OCSLA and the MLA.
Government Defendants even maintain there is no “Pause” (Stop) with regard to MLA, so there

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would be no harm in enjoining Government Defendants from implementing something that they
deny even exists.
Plaintiff States’ claims are substantial. Millions and possibly billions of dollars are at
stake. Local government funding, jobs for Plaintiff States’ workers, and funds for the restoration
of Louisiana’s Coastline are at stake. Plaintiff States have a reliance interest in the proceeds
derived from offshore and onshore oil and gas lease sales.
Additionally, the public interest is served when the law is followed.81 The public will be
served if Government Defendants are enjoined from taking actions contrary to law. In a time of
high gas and oil prices, draining of the Strategic Petroleum Reserve, and looking to other nations
to supply the United States’ oil and gas needs, the public interest would be served by a
permanent injunction.
Therefore, the Court finds that Plaintiff States have satisfied all four elements required
for a permanent injunction to be issued.
Specifically, the Court finds Government Defendants are enjoined and restrained from
imposing a Stop, referred to in Executive Order 14008 as a Pause, of federal oil and gas leases as
to eligible lands, or by pretext, to make eligible lands ineligible. This order will not apply to
lease sales cancelled after March 24, 2021, and will not apply to lease sales in states other than in
Plaintiff States. This order specifically includes the following lease sales: Lease Sale 258;
Quarter 2 onland lease sales scheduled for April 2021, in Utah and Montana that were cancelled
on March 1, 2021; any of the following lease sales cancelled prior to March 24, 2021, due to
Section 208 of Executive Order 14008; and any lease sale involving Plaintiff States that was

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Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013).

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cancelled prior to March 24, 2021 for reasons other than Executive Order 14008, that are
determined to be pretextual.
VII.

CONCLUSION
For the reasons set forth herein, the Court finds Plaintiff States Motion for Summary

Judgment [Doc. No. 199] is GRANTED with regard to its APA claims and its ultra vires claim.
It is DENIED with regard to its citizen suit claims. It is also DENIED with regard to any Lease
Sales cancelled or postponed after March 24, 2021, and as to any lease sales involving nonplaintiff states.
Government Defendants’ Cross-Motion for Summary Judgment is DENIED with regard
to the eight APA claims and the ultra vires claim. It is GRANTED as to the citizen suit claim,
any lease sales cancelled or postponed after March 24, 2021, and any lease sales involving nonplaintiff states.
The Court further issues a permanent injunction against Government Defendants, and
they are ENJOINED from implementing a Stop, referred to in Executive Order 14008 as a
Pause, on new oil and gas leases on public lands and in offshore waters, as set forth in Section
208 of Executive Order 14008, as to all “eligible” lands both onshore and offshore.
The geographic scope of the permanent injunction shall be limited to the thirteen Plaintiff
States of Louisiana, Alabama, Alaska, Arkansas, Georgia, Mississippi, Missouri, Montana,
Nebraska, Oklahoma, Texas, Utah, and West Virginia. The previous nationwide injunction82 is
lifted except to the thirteen Plaintiff States.
The Court will not require security to be posted for the Plaintiff States under FED. R. CIV.
P. 65.

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This permanent injunction shall remain in effect until there are further orders from this
Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme
Court.
MONROE, LOUISIANA, this 18th day of August 2022.

__________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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