Judge Blocks Trump’s Approval of Arctic Offshore Drilling

April 1, 2019 Updated: April 1, 2019

An activist federal judge in Alaska dealt a significant blow March 29 to the Trump administration’s plans for expanding oil drilling on the U.S. coasts, by invalidating President Donald Trump’s executive order removing President Barack Obama’s bans on oil and natural gas exploration in the Arctic Ocean and on the North Atlantic coast.

The Trump administration is expected to appeal the decision to the often-reversed Ninth Circuit Court of Appeals. The order, at least in the near-term, will probably force the government to remove Arctic waters from its upcoming plan to open federal waters along the entirety of U.S. coastlines to offshore drilling. This court decision is just one in a series of energy policy setbacks the Trump administration has experienced at the hands of the nation’s judiciary.

Environmentalists celebrated the judicial victory that reinstates Obama’s ban on drilling in most of Alaska’s Arctic coast. The court order also prevents drilling near coral reefs extending from Virginia to the border with Canada that are home to rare species of aquatic life.

“Since coming into office, Trump has been on a one-man campaign to undo the work of his predecessor,” attorney Niel Lawrence, a lawyer with the Natural Resources Defense Council who participated in the Alaska case, told The New York Times. “What this opinion confirms is that there are constitutional limits to that.”

In League of Conservation Voters v. Trump, Judge Sharon L. Gleason, appointed in 2011 by Obama, found that Trump violated the Outer Continental Shelf Lands Act (OCSLA) of 1953.

OCSLA defines the Outer Continental Shelf as “all submerged lands lying seaward of state coastal waters (three miles offshore) which are under U.S. jurisdiction,” according to the Bureau of Ocean Energy Management. The statute gives the Secretary of the Interior the authority “to grant leases to the highest qualified responsible bidder on the basis of sealed competitive bids and to formulate regulations as necessary to carry out the provisions of the Act.”

Section 12(a) of the Act, Gleason wrote in her order, says, “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

In 2015 and 2016, Obama issued three memoranda and one executive order withdrawing certain areas of the Outer Continental Shelf from leasing and development. On April 28, 2017, Trump issued Executive Order 13795, which revoked the 2015 and 2016 off-limits orders signed by Obama. It was reportedly the first time a president rescinded a decision by a previous president to use the law to ban energy development in federal waters.

Although Gleason admitted in her written decision that Section 12(a) of OCSLA was worded ambiguously and was silent on the question of whether a president could revoke another president’s anti-development determinations under the statute, she went to some lengths in the order explaining why she had to side with the anti-energy environmentalists and the president who appointed her to the bench.

In the end, Gleason ruled that the section of Executive Order 13795 working the revocation of Obama’s orders was “unlawful, as it exceeded the President’s authority under Section 12(a)” of OCSLA “[i]n light of the text and context” of that section.

“The statutes and the Supreme Court have been silent on the authority of a president to modify or reduce a predecessor’s protections of these public lands, waters, and monuments,” Vermont Law School professor Patrick Parenteau told The New York Times.

“But these decisions are showing that if a president wants to reverse a predecessor’s environmental policy, they have to give a cogent reason why. Just saying ‘energy dominance’ is not enough. Saying ‘I won the election’ is not enough.”

According to The New York Times, “experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.”

Environmentalists characterized a March 19 ruling by another Obama-appointed judge, Rudolph Contreras of the U.S. District Court for the District of Columbia, that the Interior Department’s Bureau of Land Management “did not sufficiently consider climate change” when authorizing oil and gas leasing on federal land in Wyoming, as the “Holy Grail” ruling they need to cripple the nation’s oil and natural gas industries. In WildEarth Guardians v. Zinke, Contreras issued a temporary injunction blocking drilling projects on more than 300,000 acres of public land in Wyoming.

If that ruling, which requires the Trump administration to reconsider the leases taking into account climate change, remains in place, the Trump administration’s energy agenda that depends on increasing fossil-fuel production to reduce reliance on foreign energy could be in trouble.

 

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