Obama Blocked Trump from Drilling the Arctic and Atlantic With This Obscure Law
In a preemptive move, President Obama invoked a little-known law to permanently keep oil and gas drilling out of the Arctic and Atlantic Oceans.
Yesterday, President Obama used his executive power to protect huge portions of the Arctic and Atlantic Oceans from oil and gas exploitation. The White House announced that 98 percent of federally controlled Arctic waters, totaling 115 million acres, along with 3.8 million acres of underwater canyons off the Atlantic coast, would be permanently off-limits to fossil fuel drilling leases.
The outgoing president has noticeably hustled to shield the environment from a less conservation-minded administration, but some worry it's not enough. Earlier this year, President Obama issued a five-year ban on oil and gas leases in the Atlantic Ocean. (He previously supported drilling there.) And while the decision was welcomed by environmental groups, many also feared the offshore drilling blueprint would eventually be undermined by Trump's own, fossil fuel-friendly plan.
Their frustration is understandable; the incoming administration has vowed to undo much of President Obama's climate legacy. After the Department of the Interior considered opening the Arctic and Atlantic Oceans to leasing, which are areas relatively untouched by drilling, it became clear that something must be done.
As such, environmentalists have been urging the president to invoke a little-known law that might permanently safeguard marine areas from Trump's "energy revolution." And now, it appears he's actually done it.
An obscure provision in a law called the Outer Continental Shelf Lands Act of 1953 (OCSLA)—which guides the implementation of offshore drilling leases—allows the president to withdraw parts of the outer continental shelf from mineral leasing, including future oil and gas development. It states the president may, "from time to time, withdraw from disposition any of the unleased lands" under federal marine waters.
Compared to the more frequently used Antiquities Act, by which the president and Congress may designate parcels of land as national monuments, endowing them with certain protections, the OCSLA provision is considered by some to be equal in terms of legislative authority.
Yet, unlike the provision, the Antiquities Act can only be applied to areas surrounding "objects of historic or scientific interest," and to "the smallest area compatible with the proper care and management of the objects to be protected."
"[The provision] is perfectly suited to what the president was trying to get at here. It has no limitation, whatsoever, in terms of size. When you're thinking big, this looks like a good law to use," Niel Lawrence, a senior attorney at the National Resources Defense Council, told me.
President Obama has invoked this Congressional delegation several times throughout his second term, though on much smaller scales.
This month, he declared parts of the Arctic's Northern Bering Sea off-limits to drilling. Last year, he withdrew sections of the Beaufort and Chukchi Seas. And in 2014, he similarly prohibited future leases in Alaska's Bristol Bay and the North Aleutian Basin Planning Area.
But until yesterday, none of these protections have been permanent. Instead, revoking oil and gas rights for a time period "without specific expiration." In his declaration regarding the Arctic and Atlantic Oceans, however, the language is fairly explicit. These areas will be "indefinitely off limits to future oil and gas leasing," the president said in a statement.
Other presidents have wielded the provision in this capacity, but generally with the intent to designate marine sanctuaries or protect wildlife. President Eisenhower used it to permanently protect an area off Key Largo, Florida in 1960, for example. President Nixon used it in 1969 after an oil spill threatened the Santa Barbara coastline in California. And in 1990, President George H. W. Bush did the same for coasts off California, Florida, Washington, Oregon and New England, for a period of 10 years.
"Obama has used [the provision] 12(a) a number of times but has never used it to permanently withdraw areas for leasing," Patrick Parenteau, a professor of environmental law at the University of Vermont, told me in an email.
"He's withdrawn areas like Bristol Bay 'for an indeterminate time' but that's different than permanent withdrawal. That's what's new and untested."
The law's infrequent use and ambiguous language are what give environmentalists hope for its durability. Unlike executive orders, which can often be rescinded by later presidents, the OCSLA provision contains no express language that would permit a president's successors to unwrite it, according to some experts.
Since the law has never been contested in court, any attempt to repeal President Obama's declaration would be legally unprecedented.
In 1938, an attorney general concluded that the Antiquities Act could not be undone by the powers of Congress or another president, according to a National Resources Defense Council briefing. If the same logic is applied to the OCSLA provision, it's possible the Trump Administration would have a difficult time abolishing President Obama's Arctic and Atlantic Ocean protections.
"Congress can definitely challenge this through legislation. Whether they're going to get themselves all tied up with one hundred different challenges over different efforts to undo Obama's plan, I doubt it," Peter Shelley, a senior counsel at the Conservation Law Foundation, told me.
There are advantages to fighting this out in court, however, by trying to establish a precedent. Many experts believe that President Obama acted on authority legally delegated to him by Congress. Unlike challenges to a "vanilla executive order," Shelley added, "anything short of Congressional action will be bogged down in the courts for a long time."
Still, a Republican-led Congress is unlikely to be sympathetic to President Obama's ruling. And Trump could also modify the withdrawal, which has been done before by other presidents. After President Clinton withdrew a total of 300 million acres from the outer continental shelf in 1998, President George W. Bush reinstated 50 million acres in 2007 as part of the Gulf of Mexico Energy Security Act.
"There's no such thing as a permanent ban," Erik Milito, a policy director at the American Petroleum Institute, told CBC News.
The Arctic waters that President Obama protected are renowned for their unique biodiversity. Several endangered species, such as gray whales, beluga, and polar bears, depend on this important fishery for survival. Canada's Prime Minister Justin Trudeau announced a similar ban on drilling in all Arctic waters, but it will be subject to review in five years.
At this year's American Geophysical Union conference, where thousands of scientists examined the threats of climate change, the National Oceanic and Atmospheric Administration gave the Arctic a failing report card in terms of its ecological health.
In the Atlantic, President Obama safeguarded a stretch of underwater canyons from Virginia to the Canadian border.
Earlier this year, the president created the first national monument in the Atlantic Ocean that's roughly the size of Connecticut. Some fishermen have publicly opposed drilling off the coast of New England, fearing catastrophic damages to the nation's most valuable fishery.
"I think after the election, Obama was appropriately asking, 'How can I make the achievements of my administration as durable as possible?' It's what he should have been doing," Lawrence said.
"This law is the only answer."
Get six of our favorite Motherboard stories every day by signing up for our newsletter.