“Permanent” Ban Unprecedented, But Not Irreversible

December 22, 2016 in Blog

The devastating announcement from President Obama assumes a “permanent” drilling ban for almost all of U.S. Arctic waters. Unfortunately, the President chose politics over people and went ahead with a drilling ban that will shatter the economies of the communities who rely on oil revenue for their livelihoods. Although the ban is bewildering and unprecedented, it is not irreversible. Yesterday’s decision can and should be addressed as soon as the next administration enters the White House.

President Obama utilized section 12(a) of the Outer Continental Shelf Lands Act (OCSLA) to permanently ban drilling in nearly 98 percent of federal Arctic waters. 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.”

In the past, presidents have used provision 12(a) to set aside small parcels of the ocean for a set period of time. The provision has never been used to stop oil and gas exploration in some of the most prolific energy development areas of the U.S. (and possibly, the world), for an “indefinite” period of time. Because there is no precedent for such a massive withdrawal, reversal of this executive overreach may come through a number of paths.

The President justified his decision under authority he interpreted from OCSLA. Section 12(a) been used before by past administrations to restrict offshore oil exploration, but in previous uses, the leasing bans contained expiration dates. You may have noticed the word “permanent” does not exist in Section 12(a), and many experts believe that there is no such thing as a permanent withdrawal.

Many have argued that yesterday’s ban contradicts with OCSLA’s original mission. According to the United States Oil & Gas Association:

“ It can be argued that a permanent withdrawal conflicts with Congress’ stated purpose in creating the Outer Continental Shelf Lands Act (OCSLA) to begin with.  The Act provides that the outer continental shelf be ‘available for expeditious and orderly development.'”

Additionally, OCSLA states that an administration must consult with the Governor of whichever state the restrictions apply to. Alaska Governor Bill Walker indicated time and time again that he is in favor of Arctic OCS leasing. He expressed his disapproval with the decision immediately after it was announced:

“This unprecedented move marginalizes the voices of those who call the Arctic home and have asked for responsible resource development to lower the cost of energy to heat houses and businesses. For centuries, the Arctic has provided food for those in the region. No one is more invested than Alaskans to ensure that the habitats within the Arctic are protected. To lock it up against any further exploration or development activity is akin to saying that the voices of activists who live in Lower 48 cities have a greater stake than those to whom the Arctic is our front yard and our back yard.”

Past presidential actions suggest that any subsequent president has power to undo a 12(a) withdrawal from the previous administration through another executive memorandum. Back in 2008, President George W. Bush removed previous 12(a) withdrawal areas and made all Outer Continental Shelf lands available for leasing (with the exception of marine sanctuaries). This example indicates that the President-elect has the authority to scrap the last-minute ban from President Obama.

Even though OCSLA does not contain explicit language on how to rescind areas that have been permanently withdrawn from offshore leasing, President Bush’s example clearly demonstrates that a ban can be lifted.

If President-elect Trump overturns the ban, it will most likely head to the courts for litigation.  Legal experts around the nation have weighed in on yesterday’s decision. All agree that this is the most aggressive use of section 12(a) since the creation of the 1953 law, and many legal experts infer the withdrawal will not hold up in court.

The withdrawal could also be challenged by Congress. Congress could rework OCSLA Section 12(a) and amend the executive authority portion of the law. Congress can also attempt to use the Congressional Review Act to overrule the permanent ban.

The legality of this administration’s withdrawal of America’s Arctic waters from exploration is still very much in question. No precedent exists that comes close to comparison of the massive scale in which the President used section 12(a). This means that there is no one right way to resolve this terrible wrong. Instead, there are many avenues the next administration can pursue to overturn this egregious decision. The ban is considered permanent by the current administration, but it should not be considered irreversible by the next.