Updated 3:50 p.m.
President Obama today (Dec. 20) put nearly all U.S. Arctic waters off-limits for future oil and gas drilling. The White House announced the decision in conjunction with a similar statement from the Canadian government covering its Arctic waters.
The President used a rarely deployed power in the Outer Continental Shelf Lands Act to remove areas from leasing consideration for an indefinite period of time. The law includes no way for the next president to reverse his decision.
Since Shell halted its exploratory drilling in the Chukchi Sea last year, no company has seemed close to returning to federal waters in the Arctic. But Alaska officials and industry trade associations have been desperately trying to keep the door open to future activity in the area.
Joshua Kindred, of the Alaska Oil and Gas Association, looked with dismay at the map of the president’s new withdrawals.
“It looks like it’s virtually the entirety of the Chukchi and Beaufort Sea that would be exempt so, yeah, that’s about as absolute of a withdrawal as can be,” Kindred said.
The White House cited the area’s important ecology, subsistence and the health of marine mammals in explaining the decision. The action drew immediate praise from environmental groups. By acting jointly with Canada, supporters say the U.S. isn’t merely pushing development into Canadian Arctic waters. But Kindred said the announcement does nothing to lessen the risks of Russian drilling.
“And by us not having our own energy companies in the region, we are less prepared if there was an incident in the Russian Chukchi Sea, just miles away from U.S. Arctic waters,” Kindred said. “So it is a very sort of reactionary way to approach this.”
President Obama made the withdrawals, just as environmental groups requested, using a provision of the Outer Continental Shelf Lands Act known as 12(a). It does not affect the rights of existing leaseholders.
Obama also left 2.8 million acres of the near-shore Beaufort, close to the existing oilfields and pipelines, outside of his withdrawal.
Though created with the stroke of a presidential pen, the Obama withdrawals could be tough to get rid of.
“12(a) says the president has the power to withdraw these lands. It does not give the president the power to un-withdraw lands previously withdrawn,” University of California-Hastings Law professor John Leshy said. Leshy was the top attorney in the Interior Department under President Bill Clinton.
Leshy said there’s “substantial doubt” President Trump could issue an order undoing the Arctic withdrawal.
“It’s never been done, so we don’t have any judicial test of this,” Leshy said. “But there is related law that basically said when Congress gives the president the authority to do something, and does not give the president authority to undo it, the president doesn’t have the authority to undo it. So it is permanent.”
On the other hand, the law professor said it’s clear Congress can pass a bill to cancel a 12(a) withdrawal.
Alaska Congressman Don Young said he doesn’t buy the argument that the incoming president can’t cancel Obama’s decision.
“If I was the president, I’d just go ahead and tell his secretary of Interior, Mineral Management, to put it up for lease,” Young said. “Let them take it to court.”
Young, in a press release, called Obama’s action a “cowardly move by a lame-duck president.”
“I say he’ll go down as one of the worst presidents we’ve ever had,” Young said.
Young said he thinks the House will move a bill next year to undo this order and lots of other Obama decisions. He says it would easily pass the House but Young declined to speculate on its fate in the Senate.
ORIGINAL POST:
President Obama has issued an order blocking future oil and gas development in the entire Chukchi Sea and nearly all of the Beaufort. Obama deployed a rarely-used provision of the offshore leasing law, known as 12-A. It allows a president to remove ocean areas from leasing consideration. The White House said the withdrawals do not reverse rights of current lease holders. The announcement was made in conjunction with Canada, which today made similar offshore withdraws in its part of the Arctic.
Conservationists argue that 12-a withdrawals are permanent and cannot be undone by a future president. Their durability has not been tested in court. Obama’s action comes over the objections of Alaska’s Congressional delegation, which today asked for an appointment with the president. Legal experts say Congress can reverse 12a withdrawals. Getting such a bill through the Senate next year may be difficult, though, because the Republicans will hold only a slim majority.
Liz Ruskin is the Washington, D.C., correspondent at Alaska Public Media. Reach her at lruskin@alaskapublic.org. Read more about Liz here.
