Using a provision of a decades-old law, President Obama has issued what he says is a permanent ban on offshore oil and gas drilling in vast areas of the Arctic and the Atlantic Seaboard. It is a creative move on an urgent issue — one that will be up to the courts to protect after Inauguration Day.
The New York Times reports that President Obama, in an effort to enshrine new environmental protections before he leaves office next month, has used a little-known act from the 1950s to issue a unilateral ban on certain offshore drilling:
Mr. Obama invoked an obscure provision of a 1953 law, the Outer Continental Shelf Lands Act, which he said gives him the authority to act unilaterally. While some presidents have used that law to temporarily protect smaller portions of federal waters, Mr. Obama’s declaration of a permanent drilling ban from Virginia to Maine on the Atlantic and along much of Alaska’s coast is breaking new ground. The declaration’s fate will almost certainly be decided by the federal courts.
‘It’s never been done before,’ said Patrick Parenteau, a professor of environmental law at the University of Vermont. ‘There is no case law on this. It’s uncharted waters.’
The move — considered creative by supporters and abusive by opponents — is one of many efforts by Mr. Obama to protect the environmental policies he can from a successor who has vowed to roll them back. The president, in concert with United Nations leaders, rushed countries to ratify the Paris Agreement on climate change, putting the multinational accord into force in record time, before [Donald] Trump’s inauguration.
Obama’s concerns about Trump’s likely actions — or lack thereof, in some cases — on the environment are valid and serious, considering Trump’s own comments questioning the existence of climate change and his dreadful choice of a longtime Environmental Protection Agency antagonist to head the department.
And Obama is not going it alone on this path:
— President Obama (@POTUS44) December 20, 2016
Today, we join the US in announcing measures to ensure a strong, sustainable & viable Arctic economy and ecosystem: https://t.co/TC7Y5PRIBq
— Justin Trudeau (@JustinTrudeau) December 20, 2016
While oil company lobbyists may be adamant that Trump will immediately find a way to undo this bold step, the National Resources Defense Council released a brief detailing why it may not be as easy as anti-environmentalists may wish.
The brief states, in part:
While the text of Section 12(a) delegates to Presidents the power to create protected areas, like the Antiquities Act it does not authorize them to undo those designations. A legal opinion from the U.S. Attorney General found that such congressional delegations operate in one direction only: they do not imply a power to undo. ‘[I]f public lands are reserved by the President for a particular purpose under express authority of an act of Congress, the President is thereafter without authority to abolish such reservation.’ The opinion explained that ‘the reservation made by the President under the discretion vested in him by the statute was in effect a reservation by the Congress itself,’ and that, except where Congress expressly provided, ‘the President thereafter was without power to revoke or rescind the reservation.’
However, as the Times notes, “The declaration’s fate will almost certainly be decided by the federal courts.” And those federal courts, under a Trump administration and a Republican-controlled Congress, will in turn almost certainly be shaped over time to defend the interests of the oil and gas lobby. This will be one more issue on which Democrats will need to prepare for a protracted, but important, fight.