On Friday, a federal judge in Alaska ruled that an executive order signed in April 2017 that would have allowed oil and gas drilling in the Arctic Ocean and an area of underwater canyons off the Atlantic coast is “unlawful, as it exceeded the President’s authority.” Only congress, United States District Court Judge Sharon Gleason wrote, has the power to reverse such bans on oil drilling.
The ruling reinstates restrictions placed on Arctic drilling by the Obama administration in 2015 and 2016. The bans applied to about 98 percent of the Arctic coastal shelf in northern Alaska, or roughly 125 million acres. In the Atlantic, the ban has been reinstated on 5,937 square miles of underwater canyon complexes stretching from Virginia to the Canadian border, reports Kevin Bohn at CNN.
The ruling comes after ten environmental groups, including the Sierra Club, Greenpeace and League of Conservation Voters, joined a lawsuit challenging the executive order. Defenders of President Donald Trump’s 2017 executive order included the current administration, the state of Alaska and the American Petroleum Institute.
The ruling hinges on the wording of the Outer Continental Shelf Lands Act, originally passed in 1953, which provides guidelines for leasing in the coastal areas where energy drilling takes place under U.S. Department of the Interior jurisdiction. That statute gives the president the authority to protect land from energy development or leasing. However, it does not include provisions for reversing existing protections. The environmental groups argued that based on the statute, an act of Congress—not a presidential executive order—is required to remove protections from a coastal drilling site.
Thiessen reports that the Trump administration argued the statute was intended to be more flexible and that the plaintiffs interpretation “is one-way ratchet that broadly authorizes any one President to limit the national potential for leasing, exploration, and development in the OCS for all time while simultaneously tying the hands of that same President and all future presidents, even if those limits prove unwise or contrary to the critical national priorities that OCSLA advances, including energy development and national security.”
Gleason’s interpretation of the law was a win for environmental groups. “The wording of President Obama's 2015 and 2016 withdrawals indicates that he intended them to extend indefinitely, and therefore be revocable only by an act of Congress,” she said.
It’s likely the ruling will be appealed to the Ninth Circuit Court of Appeals. Until then, Thiessen reports the ruling could impact a lease sale for areas in the Beaufort Sea tentatively scheduled for this year.
The decision may have a bearing on other cases currently in front of the courts. In late 2017, the administration announced it was cutting the size of 1.3 million acre Bears Ears National Monument by 85 percent and trimming half of 1.9 million acre Grand Staircase-Escalante National monument. Since then, a legal challenge to the executive order has been making its way through the courts. Similar to the Outer Continental Shelf Lands Act, the Antiquities Act has provisions allowing presidents to establish national monuments. However, it does not set out a method for rescinding declarations made by previous presidents.
Patrick Parenteau at Vermont Law School tells Coral Davenport at The New York Times that the courts are still working out how to interpret and implement these laws.
“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,” Parenteau says. “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.”
This is not the only controversy over energy development in Alaska. The 2017 tax bill passed by Congress authorized the Interior Department to sell drilling leases in parts of the Arctic National Wildlife Refuge, a project that conservationists and energy developers have battled over for decades.