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The Narrow Reinterpretation

The Oil and Gas Industry’s Retreat from the Broad Federal Permitting Authority It Long Embraced

What's the function of oil and gas permitting agencies? Despite broad statutory grants to federal agencies, oil and gas companies increasingly argue that the role of those agencies is to promote development regardless of whether it is socially desirable.

But this “Narrow Reinterpretation,” in addition to lacking textual support, is at odds with longstanding practice. Historically, federal permitting agencies have often considered broad energy and environmental policy goals, exploring whether the public interest calls for developing oil and gas versus another potential energy source. That analysis has traditionally favored oil and gas because they are cleaner-burning than coal.

What changed? Not the governing statutes, at least not in pertinent part. But the energy sector has: renewable sources have replaced coal as the primary competitors to oil and gas. Thus, whereas environmental policy considerations may have once supported oil and gas, they no longer do. Given this shifting landscape, oil and gas proponents now assert that permitting agencies lack the broad authority from which these industries have long benefitted.

This article will be published in the Harvard Environmental Law Review Online Journal.