President Barack Obama permanently banned oil and gas drilling in portions of the Arctic and Atlantic oceans on Tuesday in the latest effort to burnish an environmental agenda that has drawn fire from President-elect Donald Trump.
Obama has used his final weeks in office to press for new rules on coal mining pollution, offshore drilling and the venting of planet-warming methane — all of which are likely to be challenged or repealed by the Trump administration and Republicans in Congress, who have complained that the president has targeted fossil fuel companies to push his green policies.
Tuesday’s move prohibits future offshore oil and gas leases in the Chukchi Sea and in all but 2.8 million acres of the Beaufort Sea in an effort to protect a “unique and vibrant Arctic ecosystem which is home to marine mammals and other important ecological resources and marine species, and upon which many Alaska Native communities depend,” the White House said in a statement.
Moreover, it said, “the risks of an oil spill in this region are significant and our ability to clean up from a spill in the region’s harsh conditions is limited.”
In the Atlantic Ocean, Obama designated 31 major underwater canyons as off-limits for drilling, from Heezen Canyon offshore New England to the Norfolk Canyon near the mouth of the Chesapeake Bay.
Obama is turning to section 12(a) of the Outer Continental Shelf Lands Act of 1953 to bar drilling in the offshore areas. Similar to the Antiquities Act, which presidents can use to designate national monuments to permanently protect parcels of land from development, Section 12(a) does not include language that allows future presidents to undo the withdrawal of offshore areas from future leasing.
Offshore drilling backers were quick to criticize the decision. American Petroleum Institute Upstream Director Erik Milito said the proposal “would take us in the wrong direction, … weaken our national security, destroy good-paying jobs, and could make energy less affordable for consumers.”
And Dan Naatz of the Independent Petroleum Association of America criticized Obama for shifting to the left on oil and gas. “With exactly one month left in office, President Obama chose to succumb to environmental extremists demands to keep our nation’s affordable and abundant energy supplies away from those who need it the most by keeping them in the ground,” he said.
In November, the Interior Department removed some offshore parcels in the Arctic from its five-year road map, prompting calls for a follow-up from greens like billionaire Democratic activist Tom Steyer’s NextGen Climate group, which urged the president to permanently block off those areas under the 1953 law. Maryland Sens. Ben Cardin and Barbara Mikulski joined more than a dozen other Democratic senators in October in calling on Obama to use the same law the permanently ban drilling.
But whether Trump would really be powerless to expand drilling in the face of Obama’s move would have to be tested in court.
“There’ll be a large line of voices ready to challenge” Trump in court if he attempts to overturn the ban, said Franz Matzner, director of the Natural Resources Defense Council’s Beyond Oil Initiative.
Fossil fuel advocates are likely to argue that sufficient precedent exists for Trump to reverse the bans. While no president has ended a permanent ban created by a prior executive order under the Outer Continental Shelf Lands Act, they have canceled short-term freezes. President George H.W. Bush in 1990 used Section 12(a) to prevent leases off the coasts of California, Florida, New England, Washington and Oregon for 10 years — which President Bill Clinton extended to 2012. But George W. Bush cut that moratorium short by four years and rescinded it in 2008.
Regardless of whether Tuesday’s ban is left in place, it may at least force the Trump administration to delay any planned rewrite the Interior’s five-year offshore drilling plan until the issue is resolved.
Obama has used the law before, and earlier this month wielded it to prevent drilling on 40,300 square miles offshore of west-central Alaska. In 2014, he made the waters of Alaska’s Bristol Bay indefinitely off-limits to consideration for oil and gas leasing. And in 2015, he made parts of the Beaufort and Chukchi seas off-limits.
Republican lawmakers may try to reverse the protections by reworking the underlying law, attempting to use the Congressional Review Act or forcing changes through the financial reconciliation process. But a Senate Democratic aide, environmentalists and other experts suggested those options are fraught with challenges.
“There’s always saber rattling and hand waiving about the need to untangle laws or change them,” Matzner said. “When people talk about that in the abstract sometimes it plays well to certain audiences, but the bottom line is when you start talking about actual bedrock laws that protect people and decisions that have real tangible and clear impacts on people, all of a sudden you find out that on a case-by-case basis people like protections, they like certainty.”
Using the reconciliation process may be a viable option, but rescinding the offshore drilling ban would be a lower priority than top GOP agenda items like changing Obamacare and instituting tax code changes, which are already threatening to make the package too large to win approval, said a Senate Democratic aide.
House Natural Resources Chairman Rob Bishop (R-Utah) has for some time attempted to revamp the Antiquities Act but has run up against strong opposition from wildlife and national park interest groups. Environmental groups are banking on the same thing happening if anyone attempts to tweak the Outer Continental Shelf Lands Act.
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