New Constitutional Questions: Trump’s Executive Order and Offshore Drilling in the Arctic

Written by Andrea Chong

Trump is the first president in history to attempt to reverse a permanent presidential withdrawal under the Outer Continental Shelf Lands Act during the Obama administration. In his executive order to implement “an America-First Offshore Energy Strategy”, President Trump attempted to nullify Obama’s prohibition on oil and gas drilling in almost 119 million acres of submerged land. Trump further directed that the Secretary of Commerce refrain from designating or expanding any National Marine Sanctuary without a “full accounting from the Department of the Interior of any energy or mineral resource potential”.

This short piece outlines the effect of the Outer Continental Shelf Lands Act (“the Act”) and the unfettered power it gives a sitting president to protect certain areas from oil and gas drilling. It then explains what Trump is attempting to undo and asks whether Trump is constitutionally allowed to reverse the decision made under a power given by Congress through an executive order, instead of through an Act of Congress. Beyond the constitutional issues, it seeks to highlight how legal frameworks such as the Act discussed here are necessary to protect certain natural lands. Trump’s wish to withdraw such protection should be regarded as a trulyworrying step in the wrong direction.

Outer Continental Shelf Lands Act 1953

In 1953, Congress adopted the Outer Continental Shelf Lands Act. Under that law, the president could sell leases for the right to mine federal oil reserves in the “outer continental shelf”. Usually these were given in ‘five-year plans’ that also stipulated the conditions under which the  lease could be renewed. However, a lesser known provision, Section 12(a) of the Act, gives the President power to withdraw from disposition any of the unleased lands of the outer Continental Shelf.

Section 12(a) states:

“The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

During his term as President, Obama unilaterally and indefinitely blocked oil drilling in most parts of the Arctic Ocean controlled by America and parts of the Atlantic Ocean. This ban prevented areas from being considered for any future exploration, development, or production of oil or gas. This second power has been rarely invoked by presidents, and before Obama, Eisenhower had used the same provision to permanently block drilling in Florida Keys. Eisenhower’s ban still stands today and has never been challenged in court.1

The relevant question here is whether Obama’s order, made under the unilateral power given by this Act, can only be overturned by an act of Congress or may be overturned by a sitting President. Congress has delegated to the President some of its constitutionally granted legislative powers to manage public land. Consequently, it is argued, only Congress can undo the powers exercised on its behalf.

Constitutional questions in the era of Trump

Can Trump, by executive order, legitimately undo Obama’s ban on offshore drilling? If the authority and power of a President to invoke a ban on drilling came from Congress, it is logical that only an Act of Congress is sufficient to undo the power that is given. This is buttressed by the fact that the power conferred by the Act allows a President to conserve water bodies or land but is silent as to whether a President to may undo what he has done.

Earlier this year Trump signed Executive Order 13795, titled “Implementing an America-First Offshore Energy Strategy”. This was done with the goal of expanding offshore drilling in parts of the Arctic and Atlantic, and directing a review of the locations available for offshore oil and gas exploration. Section 5 of the executive order purports to immediately revoke President Obama’s prohibition on leasing offshore Arctic and Atlantic areas. Among considerations to revise the leasing schedule and review new operating requirements on current leases, Section 4 also directed the Secretary of Commerce to refrain from expanding or designating any new National Marine Sanctuaries without an account of the area’s energy or mineral resource potential.  

It has also been mentioned on CNBC2 that since Congress has the ability to open offshore waters for auction outside the ambit of the Act, Trump could work with Congress to promote offshore drilling in this alternative way. However despite Republican control of Congress, such a move is likely to be very unpopular with local communities who depend on fishing and tourism as their livelihood. Further, as it is done outside the scope of the Act, other states will have the opportunity to negotiate revenue and terms of the lease, a prospect that is less attractive than a lease granted under the Act.

While Trump’s executive order has never been challenged in court, Obama is also the first to use Section 12(a) to attempt to indefinitely block drilling in federal waters. Some withdrawals are time-limited instead of permanent and President Bush did bring forward the ‘expiry date’ on a time-limited withdrawal of President Clinton’s. However, even President Bush left in place the portions of the withdrawals that were not time-limited.3 Obama’s move while novel, is uncontroversial within the meaning of the Act. Trump’s executive order attracts not only public criticism, but also legal problems if it were to be validly enforced to the extent of disregarding the withdrawal under the Obama administration. This is the case for several reasons.

First, it is clear the Act makes no provision for a future president, such as Trump, to revoke a prior withdrawal made under the Act by a previous president. Trump thus cannot rely on any express provision in the Act itself. Second, the legislative history of the Act indicates that Congress was aware of the need make provision for conservation of the shelf, and only gave the president power to remove the lands from disposition but not the power to restore previously removed lands to disposition. Most importantly, any outcome that would allow Trump to defy the plain meaning of the Act would be in violation of the separation of powers doctrine. This is because it would allow an executive to disregard Acts of Congress.4

Further, academics such as Craig5 have compared the continental-shelf provision to a similar provision in the Antiquities Act 1906 that allows the president to permanently set aside federally owned lands as a conservation-protected ‘federal monument’.6 In cases involving the Antiquities Act, the U.S. Supreme Court has upheld the power of the president. Further, it similarly does not authorize presidents to undo the designations made.

Conclusion

Beyond the constitutional questions Trump’s executive order raises, the substance of the change Trump is attempting to bring about with his executive order is worrying on a much larger scale. Offshore drilling has severe environmental impacts such as the risk of oil spills that would be exacerbated by low temperatures in the Arctic that limit the frequency and ability to respond to such incidents. Drilling releases nearly 16 billion tons of carbon dioxide into the atmosphere from burning oil and gas,7 drastically contributing to climate change. Further, marine ecosystems and biodiversity critical to fisheries and the protection of endangered species (such as the bowhead whale, fin whale, Pacific walrus, polar bear) are put at risk. Obama’s ban in December 2016 was a significant move to protect fragile ecosystems along the edge of the continental shelf in the Atlantic Ocean and Arctic, such as those of the Chukchi Sea, the Beaufort Sea, Cook Inlet and many more areas. It is tragic to see such attempts to undo progress in conservation.

On the further issue of Trump restricting the designation and expansion of new National Marine Sanctuaries, it is unlikely that what has already been protected as a National Marine Sanctuary will be undone. The National Marine Sanctuaries Act serves as an additional statutory safeguard against the further drastic environmental damage that might be brought about if protection of these areas were to be removed.8 Given the potential for long term detrimental effects if offshore drilling on withdrawn lands is allowed, this remains a topic that the general public – and not simply lawyers and law student – should be concerned about.

 

  1. See list of past presidential withdrawals under OCSLA section 12(a) in the NRDC Briefer on Presidential Withdrawal under OCSLA sec. 12(a), https://www.nrdc.org/sites/default/files/briefer-on-ocsla-withdrawal-authority_20161121_0.pdf.
  2. CNBC, Trump aims to lift Obama’s offshore drilling limits. This is how he could do it., 26 April 2017, https://www.cnbc.com/2017/04/26/trump-aims-to-lift-offshore-drilling-limits-heres-how-he-can-do-it.html?view=story&%24DEVICE%24=native-android-mobile.
  3. Bush, G.W., Memorandum on Modification of the Withdrawal of the Areas of the United States Outer Continental Shelf from Leasing Disposition (44 Weekly Comp. Pres. Docs. 986) (July 14, 2008).
  4. Leske, Kevin O., ‘Un-Shelfing’ Lands Under the Outer Continental Shelf Lands Act (OCSLA): Can a Prior Executive Withdrawal Under Section 12(a) Be Trumped by a Subsequent President? (2017). 26 N.Y.U. Envtl. L.J. __ (2017). Available at SSRN: https://ssrn.com/abstract=2953400.
  5. Robin Kundis Craig, professor of law at University of Utah, leading expert in modern water law.
  6. 54 U.S.C. § 320301(b). Section 2 of the Antiquities Act specifies that the President “may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”.
  7. EcoWatch, Trump Administration Approves Exploratory Drilling in Arctic Ocean, 13 July 2017, https://perma.cc/Y42U-QBDD.
  8. See an analysis by Kevin O. Leske on how the procedural safeguards contained within the National Marine Sanctuaries Act is likely able to protect any existing sanctuary from revocation or modification. Leske, Kevin O., ‘Un-Designating’ Marine Sanctuaries?: Assessing President Trump’s America-First Offshore Energy Strategy (May 1, 2017). William & Mary Environmental Law and Policy Review, Vol. 48, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=2961265.