Will Obama’s offshore drilling ban be Trumped?

Will Obama’s offshore drilling ban be Trumped?

Patrick Parenteau, Vermont Law School

President Obama gave environmental advocates a Christmas present when he announced in late December that he was banning oil and gas drilling in huge swaths of the Arctic and Atlantic oceans. This action “indefinitely” protects almost 120 million acres of ecologically important and highly sensitive marine environments from the risks of oil spills and other industrial impacts.

President Obama acted boldly to conserve important ecological resources and solidify his environmental legacy. But by making creative use of an obscure provision of a 1953 law, Obama ignited a legal and political firestorm.

Republicans and oil industry trade groups are threatening to challenge the ban in court or through legislation. They also contend that the Trump administration can act directly to reverse it. But a close reading of the law suggests that it could be difficult to undo Obama’s sweeping act.

The power to withdraw

Congress passed the law now known as the Outer Continental Shelf Lands Act in 1953 to assert federal control over submerged lands that lie more then three miles offshore, beyond state coastal waters. Section 12(a) of the law authorizes the president to “withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

Starting in 1960 with the Eisenhower administration, six presidents from both parties have used this power. Most withdrawals were time-limited, but some were long-term. For example, in 1990 President George H. W. Bush permanently banned oil and gas development in California’s Monterey Bay, which later became a national marine sanctuary.

Kelp forests in the Monterey Bay National Marine Sanctuary support many marine species.
Chad King, NOAA/Flickr

President Obama used section 12(a) in 2014 to protect Alaska’s Bristol Bay, one of the most productive wild salmon fisheries in the world. In 2015 he took the same step for approximately 9.8 million acres in the biologically rich Chukchi and Beaufort seas.

Obama’s latest action bars energy production in 115 million more acres of the Chukchi and Beaufort seas – an area known as the “Arctic Ring of Life” because of its importance to Inupiat Peoples who have lived there for millennia. The order also withdraws 3.8 million acres off the Atlantic Coast from Norfolk, Virginia to Canada, including several unique and largely unexplored coral canyons.

Why Obama acted

In a Presidential Memorandum on the Arctic withdrawals, Obama provided three reasons for his action. First, he asserted, these areas have irreplaceable value for marine mammals, other wildlife, wildlife habitat, scientific research and Alaska Native subsistence use. Second, they are extremely vulnerable to oil spills. Finally, drilling for oil and responding to spills in Arctic waters poses unique logistical, operational, safety and scientific challenges.

In ordering the Atlantic withdrawals, Obama cited his responsibility to “ensure that the unique resources associated with these canyons remain available for future generations.”

Market forces support Obama’s action. Royal Dutch Shell stopped drilling in the Chukchi Sea in 2015 after spending US$7 billion and drilling in what proved to be a dry hole. Since 2008 the Interior Department has canceled or withdrawn a number of sales in Alaskan waters due to low demand. Shell, ConocoPhillips, Statoil, Chevron, BP and Exxon have all to some degree abandoned offshore Arctic drilling.

The Beaufort and Chukchi seas are zones of the Arctic Ocean off the coast of northern Alaska.
Mohonu/Wikipedia, CC BY-SA

Low oil prices coupled with high drilling costs make business success in the region a risky prospect. Lloyd’s of London forecast this scenario in a 2012 report that called offshore drilling in the Arctic “a unique and hard-to-manage risk.”

What happens next?

Critics of President Obama’s action, including the state of Alaska and the U.S. Chamber of Commerce, say they may challenge Obama’s order in court, in hopes that the Trump administration will opt not to defend it. But environmental groups, which hailed Obama’s action, will seek to intervene in any such lawsuit.

Moreover, to demonstrate that they have standing to sue, plaintiffs would have to show that they have suffered or face imminent injury; that this harm was caused by Obama’s action; and that it can be redressed by the court. Market conditions will make this very difficult.

The Energy Information Administration currently projects that crude oil prices, which averaged about $43 per barrel through 2016, will rise to only about $52 per barrel in 2017. Whether these areas will ever be commercially viable is an open question, especially since rapid changes are taking place in the electricity and transportation sectors, and other coastal areas are open for leasing in Alaska’s near-shore waters and the Gulf of Mexico.

The Royal Dutch Shell drilling rig Kulluk broke loose and ran aground near Kodiak Island in the Gulf of Alaska as it was being towed to Seattle for winter maintenance in December 2012. This Coast Guard overflight video shows the harsh conditions along Alaska’s coast in winter.

Alternatively, Donald Trump could issue his own memorandum in office seeking to cancel Obama’s. However, section 12(a) does not provide any authority for presidents to revoke actions by their predecessors. It delegates authority to presidents to withdraw land unconditionally. Once they take this step, only Congress can undo it.

This issue has never been litigated. Opponents can be expected to argue that Obama’s use of section 12(a) in this manner is unconstitutional because it violates the so-called “nondelegation doctrine,” which basically holds that Congress cannot delegate legislative functions to the executive branch without articulating some “intelligible principles.”

However, one could argue that Obama’s action was based on an articulation of intelligible principles gleaned from the stated policies of the OCSLA, which recognizes that the “the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public.” The law expressly recognizes both the energy and environmental values of the OCS. Thus President Obama’s decision reflects a considered judgment that the national interest is best served by protecting the unique natural resources of these areas, while at the same time weaning the nation from its dangerous dependence on fossil fuels.

Exxon Mobil CEO Rex Tillerson, Donald Trump’s choice for secretary of state, shakes hands with Russian President Vladimir Putin in 2012 after signing an agreement with Russian state-owned oil company Rosneft. The companies’ joint venture to develop energy resources in Russia’s Arctic waters has been blocked by U.S. sanctions on Russia since 2014.
AP Photo/RIA-Novosti, Mikhail Klimentyev, Presidential Press Service

The section 12(a) authority is similar in some respects to the authority granted by the Antiquities Act, which authorizes the president to “reserve parcels of land as a part of [a] national monument.” Like the OCSLA, the Antiquities Act does not authorize subsequent presidents to undo the designations of their predecessors. Obama has also used this power extensively – most recently, last week when he designated two new national monuments in Utah and Nevada totaling 1.65 million acres.

Some laws do include language that allows such actions to be revoked. Examples include the Forest Service Organic Administration Act, under which most national forests were established, and the 1976 Federal Land Policy and Management Act, which sets out policies for managing multiple-use public lands. The fact that Congress chose not to include revocation language in the OCSLA indicates that it did not intend to provide such power.

What can the new Congress do?

Under Article IV of the Constitution, Congress has plenary authority to dispose of federal property as it sees fit. This would include the authority to open these areas to leasing for energy development. Members of Alaska’s congressional delegation are considering introducing legislation to override Obama’s drilling ban. But Democrats could filibuster to block any such move, and Republicans – who will hold a 52-48 margin in the Senate – would need 60 votes to stop them.

On the other hand, Congress may be content to let President-elect Trump make the first move and see how it goes in court. If Trump attempts to reverse the withdrawal, environmental groups contesting his decision would face some of the same obstacles as an industry challenge to Obama’s action. It could be especially challenging for environmental groups to show that the claim is “ripe” for judicial review, at least until a post-Obama administration acts to actually open up these areas for leasing. That may not occur for some time, given the weak market for the oil in these regions.

In the meantime, this decision is a fitting capstone for a president who has done everything within his power to confront the existential threat of climate change and rationally move the nation and the world onto a safer and more sustainable path.

The Conversation

Patrick Parenteau, Professor of Law, Vermont Law School

This article was originally published on The Conversation. Read the original article.

Merry Christmas from President Obama and the First Lady

 

THE WHITE HOUSE
Merry Christmas from President Obama and the First Lady

President Obama and the First Lady just gave their annual holiday message from the White House for the last time. Check it out:

Merry Christmas from the Obamas

THE PRESIDENT: Merry Christmas everybody! One of the best parts of the holiday season is spending time with the special people in your life. And for me, that means getting some help from my best friend for our annual Christmas Weekly Address.

THE FIRST LADY: Given how our first Christmas Weekly Address went, I realized that Barack needed all the help he could get.

THE FIRST LADY: Celebrating the holidays in the White House over these past eight years has been a true privilege. We’ve been able to welcome over half a million guests… our outstanding pastry chefs have baked 200,000 holiday cookies… and Barack has treated the American people to countless dad jokes.

THE PRESIDENT: Although a few got a…Frosty reception.

THE FIRST LADY: This year’s White House holiday theme is “The Gift of the Holidays,” and our decorations reflect some of our greatest gifts as a nation: from our incredible military families, to the life-changing impact of a great education.

THE PRESIDENT: And the greatest gift that Michelle and I have received over the last eight years has been the honor of serving as your President and First Lady. Together, we fought our way back from the worst recession in 80 years, and got unemployment to a nine-year low. We secured health insurance for another twenty million Americans, and new protections for folks who already had insurance. We made America more respected around the world, took on the mantle of leadership in the fight to protect this planet for our kids, and much, much more.

By so many measures, our country is stronger and more prosperous than it was when we first got here. And I’m hopeful we’ll build on the progress we’ve made in the years to come.

Tomorrow, for the final time as the First Family, we will join our fellow Christians around the world to rejoice in the birth of our Savior. And as we retell His story from that Holy Night, we’ll also remember His eternal message, one of boundless love, compassion and hope.

THE FIRST LADY: The idea that we are our brother’s keeper and our sister’s keeper. That we should treat others as we would want to be treated. And that we care for the sick… feed the hungry… and welcome the stranger… no matter where they come from, or how they practice their faith.

THE PRESIDENT: Those are values that help guide not just my family’s Christian faith, but that of Jewish Americans, and Muslim Americans; nonbelievers and Americans of all backgrounds. And no one better embodies that spirit of service than the men and women who wear our country’s uniform and their families.

THE FIRST LADY: As always, many of our troops are far from home this time of year, and their families are serving and sacrificing right along with them. Their courage and dedication allow the rest of us to enjoy this season. That’s why we’ve tried to serve them as well as they’ve served this country. Go to JoiningForces.gov to see how you can honor and support the service members, veterans and military families in your community – not just during the holidays, but all year round.

THE PRESIDENT: So as we look forward to the New Year, let’s resolve to recommit ourselves to the values we share. And on behalf of the all the Obamas – Michelle, Malia, Sasha, Bo, and that troublemaker Sunny – Merry Christmas, everybody.

THE FIRST LADY: And we wish you and your family a happy and healthy 2017… thanks, and God bless.

Merry Christmas from the Obamas 2009

“So as we look forward to the New Year, let’s resolve to recommit ourselves to the values we share. And on behalf of the all the Obamas — Michelle, Malia, Sasha, Bo, and that troublemaker Sunny — Merry Christmas, everybody.”

 

President Obama Awards the Medal of Honor to Lieutenant Colonel Charles Kettles

Obamamedalofhonoropti
President Barack Obama presents the Medal of Honor to retired U.S. Army Lieutenant Colonel Charles Kettles for conspicuous gallantry, in the East Room of the White House, July 18, 2016. Then-Major Kettles distinguished himself in combat operations near Duc Pho, Republic of Vietnam, on May 15, 1967 and is credited with saving the lives of 40 soldiers and four of his own crew members. (Official White House Photo by Chuck Kennedy)

By Melanie Garunay

Today, President Obama awarded the Medal of Honor, the nation’s highest military decoration, to retired Lieutenant Colonel Charles Kettles.

Lt. Colonel Kettles distinguished himself in combat operations near Duc Pho, Republic of Vietnam, on May 15, 1967, where is credited with saving the lives of 40 soldiers and four of his own crew members. President Obama described Lt. Col. Kettles’ heroic acts that day:

“May 15, 1967, started as a hot Monday morning. Soldiers from the 101st Airborne were battling hundreds of heavily armed North Vietnamese in a rural riverbed. Our men were outnumbered. They needed support fast — helicopters to get the wounded out and bring more soldiers into the fight. Chuck Kettles was a helo pilot. And just as he’d volunteered for active duty, on this morning he volunteered his Hueys — even though he knew the danger …

“Around 9 a.m., his company of Hueys approached the landing zone and looked down. They should have seen a stand of green trees; instead, they saw a solid wall of green enemy tracers coming right at them. None of them had ever seen fire that intense. Soldiers in the helos were hit and killed before they could even leap off. But under withering fire, Chuck landed his chopper and kept it there, exposed, so the wounded could get on and so that he could fly them back to base.”

Then-Major Kettles returned to the riverbed in several times to retrieve his fellow soldiers, all while facing intense enemy fire and severe damage to his helicopter.

As President Obama said, Lt. Colonel Kettles’ selfless acts of repeated valor represent not only the highest traditions of our military, but also one of the fundamental values of this nation:

So the Army’s warrior ethos is based on a simple principle: A soldier never leaves his comrades behind. Chuck Kettles honored that creed –- not with a single act of heroism, but over and over and over. And because of that heroism, 44 American soldiers made it out that day — 44 …

And that’s one more reason this story is quintessentially American: Looking out for one another; the belief that nobody should be left behind. This shouldn’t just be a creed for our soldiers –- it should be a creed for all of us. This is a country that’s never finished in its mission to improve, to do better, to learn from our history, to work to form a more perfect union. And at a time when, let’s face it, we’ve had a couple of tough weeks, for us to remember the goodness and decency of the American people, and the way that we can all look out for each other, even when times are tough, even when the odds are against us — what a wonderful inspiration. What a great gift for us to be able to celebrate something like this.

Lt. Colonel Kettles has dedicated his Medal of Honor to the pilots and crew members serving on his team that day.

“I didn’t do it by myself. There were some 74 pilots and crew members involved in this whole mission that day … They did their job, above and beyond. So the Medal is not mine. It’s theirs.”

Lt. Col. (Ret.) Charles Kettles