|
Arctic OCS is out
Judge rules as illegal Trump order canceling Obama leasing withdrawal
Alan Bailey Petroleumnews
In a March 29 order Judge Sharon Gleason from the federal District Court in Alaska ruled as unlawful an April 2017 executive order by President Donald Trump, canceling an order issued in 2016 by President Barack Obama that designated much of the outer continental shelf of the Chukchi and Beaufort seas as indefinitely off limits to oil and gas leasing. Gleason ruled that only an act of Congress can overturn the 2016 order.
Gleason’s ruling is the outcome of a District Court appeal launched by a group of environmental organizations, challenging the validity of Trump’s reversal of the land withdrawal.
Lease sale plans Since that reversal, the Bureau of Ocean Energy Management has been pursuing a plan to conduct oil and gas lease sales in the Beaufort Sea. Currently an environmental impact statement is being prepared for a lease sale this year, potentially spanning the entire Beaufort Sea planning area, with possibilities for taking account of areas of particular environmental sensitivity or of importance for subsistence whaling. Clearly, the reversal of Trump’s order will severely restrict the area that can now be offered for leasing - Obama did not withdraw a 2.8 million acre strip of the Beaufort Sea with relatively high oil and gas potential, immediately north of the coastline, between Smith Bay and the western side of Camden Bay.
The District Court decision may be appealed to the U.S. Court of Appeals for the 9th Circuit, and ultimately to the U.S. Supreme Court.
OCSLA section 12(a) Obama carried out his withdrawal order under the terms of section 12(a) of the Outer Continental Shelf Lands Act, the act that provides the statutory framework for resource development on the outer continental shelf. Section 12(a) of the act states that “the president of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer continental shelf.” Thus, while the act clearly gives the president legal authority to conduct land withdrawals, the wording of the act makes no explicit statement regarding the circumstances, if any, under which a land withdrawal may be reversed.
Judge Gleason, in her court order, commented that the phrase “from time to time” introduces an element of ambiguity into the statute, in that it could be interpreted as meaning that the president could conduct withdrawals at various times, or as meaning that each president could revoke or modify any prior withdrawal. However, the structure of OCSLA supports a view that section 12(a) of the act does not give the president the authority to revoke a previous land withdrawal, Gleason wrote.
Intent of Congress Gleason also supported a view that, had Congress intended that a president should have the authority to revoke a withdrawal, Congress would have explicitly stated this in the act. Moreover, the fact that Congress gave the president authority to withdraw lands from leasing without explicitly giving authority for revoking a withdrawal is consistent with the purpose of OCSLA, Gleason wrote. She also commented that there is insufficient evidence, based on Congress’s inaction over the wording of section 12(a) of the act, to infer any conclusion that would override the court’s interpretation of that section.
Thus, the court has ruled that the presidential order revoking Obama’s 2016 land withdrawal is unlawful, Gleason wrote.
Controversial decision “I am disappointed by this ruling and its implications for the state and national economy,” said Alaska Gov. Mike Dunleavy in response to the court ruling. “Alaska’s potential offshore oil and gas deposits, if given the opportunity to be safely and responsibly developed, can create jobs, revenue and economic opportunity for decades. One president should not have the power to lock up Alaska’s resources in perpetuity. America needs Alaska’s natural resources.”
“I strongly disagree with this ruling, which asserts that past presidents can bind their successors and only Congress can overturn those decisions,” said U.S. Sen. Lisa Murkowski, R-Alaska. “That is not the correct interpretation of the Outer Continental Shelf Lands Act and could have catastrophic impacts for offshore development, which creates jobs, generates revenues, and strengthens our national security. I expect this decision to be appealed and ultimately overturned - if not by the 9th Circuit, then by the Supreme Court.”
“This victory shows that no one, not even Trump, is above the law,” wrote Gene Karpinski, president of the League of Conservation Voters, one of the plaintiffs in the case. “Offshore drilling and the associated threat of devastating oil spills puts coastal economies and ways of life at risk while worsening the consequences of climate change. President Trump wanted to erase all the environmental progress we’ve made, but we fought back and we won.”
|
