‘Permanent’ Offshore Drilling Ban in Uncharted Waters

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By Alan Kovski

President-elect Donald Trump will soon be able to test the question of whether a president can successfully rescind or modify a previous president’s ban on offshore oil and gas drilling.

It will be a step into the unknown if he tries it. Presidents have terminated or modified offshore drilling bans in the past, but have never faced a court challenge over a president’s authority to do so.

President Barack Obama used a Dec. 20 memorandum to put all of the Chukchi Sea and almost all of the Beaufort Sea off limits to oil and gas drilling, excepting only rights under existing leases. Another Obama memorandum the same day put 26 Atlantic underwater canyon areas off-limits to drilling.

The withdrawals of areas from offshore leasing plans were to be “for a time period without specific expiration,” the presidential memorandums said.

“Fortunately, there is no such thing as a permanent ban,” Erik Milito, American Petroleum Institute upstream director, said in a statement released in response to Obama’s decisions. “We are hopeful the incoming administration will reverse this decision.”

But a presidential reversal and a legal challenge to such a reversal are both in legal gray areas.

Permanent or Temporary

“Under the language of the Outer Continental Shelf Lands Act, an expressly permanent withdrawal is just that—permanent,” said Michael Saul, a Denver-based senior attorney at the Center for Biological Diversity, an environmental advocacy group.

The idea of a permanent withdrawal is not what the writers of the act had in mind, because it contradicts the express purpose of the act to allow for the orderly development of offshore resources, said Peter Schaumberg, a Beveridge & Diamond P.C. attorney who worked in the Interior Department solicitor’s office for 25 years.

The act’s Section 12(a), codified as 43 U.S.C. 1341(a), allows for a president to withdraw areas from leasing. It does not address the question of whether another president can reverse the withdrawal. It does not explicitly say a withdrawal can be permanent, Schaumberg noted.

“I think the better argument, really, is that this is just a temporary withdrawal,” Schaumberg said.

Citizen Suits Possible

If Trump chooses to issue a memorandum terminating the withdrawal decisions, a citizen suit may be possible, Saul and Schaumberg both told Bloomberg BNA. The lack of court precedent left them cautious about hypothetical prospects for such a lawsuit.

The Outer Continental Shelf Lands Act, at 43 U.S.C. 1349(a)(1), says “any person having a valid legal interest which is or may be adversely affected may commence a civil action” for any alleged violation of any provision of the 1953 law.

Saul suggested a valid legal interest might be held, for example, by a citizen living along an Arctic or Atlantic coast whose coastal region lost the protection of a drilling ban.

“I think there’s a very good chance that the citizen could establish standing,” he said, referring to legal standing to challenge an action in court.

When Does Harm Occur?

A court would have to consider the question of “what is the legally cognizable harm,” Schaumberg said.

The presidential termination of a drilling ban would not, in itself, involve drilling, though it could open the way to future leasing and drilling. That raised at least the possibility that a citizen would have to wait for an exploration lease sale or, even later, the filing of a request for a drilling permit, Schaumberg said.

Schaumberg noted that a five-year plan for leasing on the Outer Continental Shelf, which would be written by the Bureau of Ocean Energy Management, is another regulatory stage that does not involve drilling, though it advances the possibility of leasing and drilling.

There is court precedent for saying a five-year leasing plan does not create a risk of harm, Schaumberg said.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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