Congress could reverse National Monument status for ANWR

President-elect Barack Obama has said he supports offshore oil exploration in areas where it is already allowed, even if oil companies have not yet drilled in those areas. But he opposes exploration in the 1002 area of the Arctic National Wildlife Refuge, which is also referred to as ANWR’s coastal plain.

An article by Jeff Poor of the Business & Media Institute hit the Web on Nov. 11, suggesting that Obama could be developing a plan to “permanently block drilling in the Arctic National Wildlife Refuge.”

According to research by Petroleum News, declaration of a National Monument status is not permanent and drilling could be approved by Congress — an opinion shared by the Clinton administration in 2001.

Poor’s source was Douglas Brinkley, “a noted presidential historian and professor at Rice University in Houston,” who “told viewers of CNN’s Nov. 11 Lou Dobbs Show how Obama could change ANWR’s designation from a National Wildlife Refuge to a National Monument. That power was granted to presidents by the Antiquities Act of 1906, and would not require any approval from Congress,” Brinkley said.

“I wouldn’t be surprised in the coming year if you see someplace like ANWR in Alaska turn from being a wildlife refuge run by U.S. Fish and Wildlife and turn over to becoming a National Monument where you couldn’t drill. So you’re going to be, and that’s because you’re going to have to do some things sort of on the cheap,” Brinkley said.

While he was in office, President Bill Clinton used the Antiquities Act to create 17 new national monuments, and expand four more. There was speculation he would declare ANWR a national monument before he left office.

But in early January 2001, Clinton announced that would not happen. His aides said the president’s decision was based on the fact that having National Monument status would not further protect ANWR from petroleum exploration and development activities, since those activities were already banned in the wildlife refuge. Congressional approval, they said, would be needed to allow drilling.

If ANWR was declared a National Monument, Congress could also vote to reverse the designation or simply to allow drilling in the monument, so Clinton did not see any appreciable difference between the status quo and National Monument status.

In fact, pro-development groups said if Clinton tried to declare ANWR a national monument without Congressional approval, it would be grounds for a lawsuit.

Conservatives cited the 1980 Alaska National Interest Lands Conservation Act, or ANILCA, saying it trumped the Antiquities Act.

In a December 2000 Human Events article John Martin, a lawyer with Patton Boggs in Washington, D.C., who did an analysis of ANILCA for the Alaska State Legislature, was quoted as saying, “ANILCA was targeted at ANWR’s coastal plain. The bill says clearly that there can be no more withdrawals of mineral deposits in Alaska unless by statute. And the President certainly doesn’t have the authority — under the Antiquities Act or anything else — to lock this up for all time.”

The Trustees for Alaska released a legal opinion in August 2000 that essentially said the President did have the right to declare ANWR a National Monument because the “no more” clause in ANILCA placed restrictions only on executive branch withdrawals of public lands from operation, and the 1002 and wilderness areas of ANWR were “already fully withdrawn from operation of the public land laws, including the mining and mineral leasing laws,” so designating the area “the Arctic Wildlife National Monument will not be a withdrawal.”

But the Trustees also agreed that Congress could “undo the designation, or authorize oil and gas development within the monument.” It also noted that “Congress has rarely taken such actions with respect to national monuments,” an opinion shared at the time by Roger Herrera who was working for Arctic Power, a pro-ANWR drilling group, at the time.

“That is not a situation which is irreversible; it can be reversed,” Herrera told Petroleum News. “But it would be very difficult. It would take probably years of effort to reverse that action.”

—Kay Cashman