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Briefs filed in OCS suit; issueTrump reversal of withdrawals
A lawsuit in which a group of environmental organizations have challenged President Donald Trump’s April 28 order cancelling President Barack Obama’s withdrawal of much of the Beaufort Sea and Chukchi Sea outer continental shelves from oil and gas leasing is rumbling its way through the federal District Court in Alaska. The federal administration, supported by the American Petroleum Institute and the state of Alaska, are defending Trump’s order. Briefs and responses to briefs have now been filed in the case.
Much of the case revolves around whether Trump had the constitutional right to cancel Obama’s order. The API is also questioning whether the case should be heard in the U.S. Court of Appeals for the District of Columbia.
No one disputes the legal basis for Obama’s order. The withdrawal was carried out under the terms of section 1341(a) of the Outer Continental Shelf Lands Act. This section of the act states that “the president of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer continental shelf.” Unfortunately, however, the act makes no statement regarding under what circumstances, if any, a land withdrawal of this type may be reversed.
Permanent withdrawal? Citing examples of offshore land withdrawals by several presidents, dating back to President Dwight Eisenhower’s withdrawal of regions off the Florida Keys, the environmental groups have characterized Obama’s action as a permanent withdrawal. On that basis, Trump’s order “purporting to remove these permanent protections in the Arctic and Atlantic Oceans” violate the separation of powers enshrined in the U.S. constitution, the environmental groups argue.
“Until now, no president has ever attempted to reverse such a permanent withdrawal, and there is no statutory or constitutional authority for doing so,” the groups told the court.
The federal administration, on the other hand, in responding to the challenge to Trump’s order claims that the president’s action was fully consistent with prior presidential decisions under the Outer Continental Shelf Lands Act and was a valid exercise of presidential authority. The administration makes several arguments in support of this statement, including a claim that the court does not have the authority to make a determination regarding a potential violation of the separation of powers.
The API argues that the wording of the Outer Continental Shelf Lands Act does not preclude a president from reversing an earlier land withdrawal under section 1341(a) of the act.
Other arguments in the case revolve around issues such as whether the challenge to Trump’s order is premature, given the lack of imminent plans for oil and gas exploration activities in the withdrawn lands.
- ALAN BAILEY
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