Court action is the likely next step after Donald Trump’s wide-ranging executive order Friday, aimed at reopening 120 million acres of Arctic and Atlantic Ocean waters that President Barack Obama had sought to permanently protect from oil and gas drilling.
“Legally, Trump may be on shaky ground when it comes to overturning Obama’s withdrawal,” InsideClimate News reports. Obama clearly had authority to issue the protection order, so “the more difficult question is whether a subsequent president can alter that withdrawal, or whether it is truly permanent,” said David Uhlmann, director of the Environmental Law and Policy Program at the University of Michigan Law School.
“No prior presidents have ever purported to undo a permanent withdrawal once it’s been put in place,” added Earthjustice attorney Erik Grafe. “It’d be an unprecedented action and, we think, unlawful.”
Under the U.S. Outer Continental Shelf Lands Act (OCSLA), “the President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” The Act doesn’t explicitly permit a president to restore land that has been set aside. For a precedent, ICN turns to a similar piece of federal legislation, the Antiquities Act, under which then-president Franklin Roosevelt tried to strip a national monument in South Carolina of its special designation.
“[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,” then-U.S. attorney general Homer Cummings wrote at the time, in scuttling Roosevelt’s attempt.
A couple of decades later, Congress did what the president could not. And that’s where proponents of the Arctic and Atlantic drilling ban could face the bigger challenge. “Congress could undo what President Obama did with far more lasting effect than President Trump can achieve with an executive order,” Uhlmann told ICN. “I think a lot of people look at Congress as the greater danger zone.”
The ICN report reviews the pathways to a possible Congressional decision. It cites Royal Dutch Shell as a company that at least temporarily gave up on its multi-billion-dollar Arctic exploration program, and Italy’s Eni as a multinational fossil that might continue a program that it abandoned when oil prices crashed.
The executive order also sets Earthjustice and others on a course to fight for Obama-era protections off the U.S. Atlantic and Pacific coasts, The Guardian reports, noting that Obama’s drilling ban also applied to the ocean floor from Virginia to Maine. “Trump is now taking the first steps to undo this, setting up a confrontation with environmentalists and residents concerned about the impact upon wildlife and the potentially ruinous economic consequences of a Deepwater Horizon-level oil spill.”
Coastal communities are ready for the fight.
“The movement against this drilling never died, it just went into a lower gear,” former commercial fisherman Phil Odom, now a Liberty County Commissioner on the Georgia coast, told The Guardian’s Oliver Milman. He described 15 barrier islands and large expanses of untouched marshland along the state’s coast as a “geological marvel” that would be severely endangered by an oil spill.
“Most of the people in the coastal region do not see the necessity of it. They see what’s happened to the coastlines of Louisiana and Texas. We don’t want that,” he said. “There are a whole lot of fishermen, hoteliers, and others who will be speaking up like they did against the last administration. I have no idea if this administration will listen, but we will have to try.”
Earthjustice President Trip Van Noppen added that “Trump’s shortsighted order reverses climate progress and imperils coastal communities, irreplaceable wildlife, and our shared future. It is also against the law. We will go to court to enforce the law and ensure President Obama’s protections remain in place.”