American Oil and Gas Reporter - December 2019 - 35

human experience. It says this is the
movement that will save you from your
economic malaise and those great recession aftershocks," Book characterized.
"That is an extremely powerful political
message. It may not be an extremely
possible prescription or policy regulation,
but it has elevated the debate and its importance within the political process
today and re-centered that debate on prescriptive standards."
Moreover, he observed, American voters and policymakers expressed insecurity
about energy during decades previous to
this one. And, Book contended, the fact
that U.S. oil production has grown about
7 million barrels a day since 2008 actually
has imperiled the industry politically.
"Scarcity was a very powerful lobbying
platform. The idea that something would
impinge on our energy security terrified
both parties at all levels of government,"
he described. "What does it mean to lose
scarcity? It means Washington thinks differently about its priorities."
Ultimately, Book reasoned, fewer
Americans worry about energy security.
"Oil prices, and therefore pump prices,
have been so obligingly moderate for so
long that most voters don't feel the pain,"
he assessed. "The risk does not seem
imminent, so this becomes a viable campaign platform."
Presidential Power
If an anti-oil-and-gas candidate wins
the presidency, promises of a federal hydraulic fracturing ban will meet a quick
end, Book predicted.
"A fracturing ban would be illegal,"
he stated. "The Safe Drinking Water Act
is the law under which one would regulate
underground injection . . . and banning it
would be illegal under the SDWA."
Nevertheless, he allowed, a determined
president could sow a lot of mischief by
pursuing emergency intervention into disposal wells under the auspices of induced
seismicity risks. Moreover, he held, the
outlook for federal lands leasing would
be bleaker.
"If there is one thing to take seriously,
it is the threat to shut down leasing on
federal lands," Book asserted. "It is a lot
easier to see how it could be done offshore,
based on the legal structures, than onshore,
because the Mineral Leasing Act says
the country must lease available minerals.
Given a couple years to change the land
management and offshore leasing plans,
could it be done? Absolutely."
Meanwhile, he said, an administration
could use its emergency authority to halt
federal leasing at least temporarily. "Emergency authority is limited in scope and
time, so permanent withdrawals would not

A federal ban on hydraulic fracturing
would be illegal, states ClearView Energy
Partners analyst Kevin Book. Nevertheless, he acknowledged, the law provides
a president with considerable latitude
to frustrate industry activity in a number
of ways.

be possible," Book outlined. "But could
you withdraw some lands from leasing
while re-writing the leasing plans? Yeah."
Moreover, he theorized, a president
could declare a climate emergency and
perhaps gain the power to do things such
as halt U.S. crude oil exports. "Declaring
an emergency is a powerful thing that
triggers several laws that give the president
a lot of authority; it is a function of
wanting the president to be there when
the country needs a unitary executive to
move fast," Book detailed. "When Congress lifted the export ban in 2015 . . . it
included language that said if there was
a national emergency, licensing could be
put in place."
While such scenarios are theoretically
possible, he acknowledged, such presidential maneuvers almost certainly would
be tried in court. "There are questions
about whether any of the proposals would
survive judicial tests," Book said. "There
are many judicially conservative federal
judges that will not accommodate a lot
of extreme moves."
Sound Judgement
According to Senator Barasso, the administration and Senate are striving to
fill the federal bench with good judges.
Although the U.S. Supreme Court typically
hears fewer than 100 cases annually, the
Senator noted, federal courts of appeal
rule on 6,000 a year. In many of those
cases, he said, circuit court rulings constitute final judgments.
"One of every four members of U.S.
circuit courts has been appointed by Donald Trump and confirmed by the Republican Senate," he estimated. "These are
young judges in the (Antonin) Scalia

model, who believe the role of a court
and the judge is to apply the law and not
legislate from the bench.
"Some of them will be there for the
next 35 years," Barasso continued. "In
terms of the Trump administration's legacy,
the long-term fact is that there are many
solid young justices who will be there for
a generation. That will make a difference
in our ability to use the resources with
which our country has been blessed."
During his remarks, Barasso also
warned against listening to climate
alarmists who sought drastic, immediate
and unilateral measures that ignored the
reality in China and India. "U.S. (greenhouse gas) emissions have been dropping
while they are rising in China, India and
other places," he observed. "Can we find
a solution through innovation and technology? Absolutely."
Of course, he reasoned, that technology
must be economic or other countries will
ignore it. "I have talked about this with
Bill Gates, for whom this is an issue of
passion as he travels the world," the senator
recounted. "Whatever the United States
does, if it is not something that China and
India use, it will make no difference." ❒

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