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OCS land withdrawal dismissed by 9th Circuit; appeal declared moot
Alan Bailey for Petroleum News
In an April 13 order the U.S. Court of Appeals for the 9th Circuit dismissed an appeal against the withdrawal of large areas of the U.S. Arctic offshore from future oil and gas leasing, thus leaving the withdrawal in place. The court said that the appeal was moot, given that in a January executive order President Joe Biden had re-instated the withdrawal, originally put in place by former President Barack Obama in 2016.
The executive orders in question place much of the outer continental shelf of the Chukchi and Beaufort seas indefinitely off limits to oil and gas leasing. However, a 2.8 million acre strip of the Beaufort Sea with relatively high oil and gas potential, immediately north of the coastline, between Smith Bay and the western side of Camden Bay, does remain open for future leasing.
Section 12(a) of the Outer Continental Shelf Lands Act, the act that provides a statutory framework for resource development on the outer continental shelf, gives clear authority to the president to withdraw unleased OCS lands from future leasing. However, the act is silent on the circumstances, if any, under which a land withdrawal may be reversed.
President Trump cancelled order In April 2017 former President Donald Trump issued an order cancelling Obama’s 2016 OCS land withdrawal. A group of environmental organizations subsequently launched an appeal in the federal District Court in Alaska, challenging the validity of Trump’s land withdrawal reversal. In March 2019, in response to the appeal, Judge Sharon Gleason issued an order, declaring Trump’s order to be unlawful, and hence re-instating the land withdrawal. Gleason said that the structure of the OCSLA supports a view that section 12(a) of the act does not give a president the authority to revoke a previous land withdrawal.
The Trump administration subsequently appealed the District Court decision to the 9th Circuit. However, Biden’s January 2021 order, re-instating the land withdrawals, rendered the appeal against the 2016 withdrawal order irrelevant to the continuation of the land withdrawal. Consequently, the 9th Circuit court asked the parties in the appeal against the District Court decision to file supplementary briefs, commenting on the situation. Parties subsequently indicated that they viewed the appeal to be moot, given the Biden executive order.
Case declared moot Commenting that the terms of Trump’s challenged executive order are no longer in effect, given Biden’s executive order, the 9th Circuit, in its April 13 order, declared the appeal against the District Court’s 2019 to be moot. The court vacated the District Court decision, “without prejudice,” presumably leaving the door open for another appeal, should a similar situation arise in the future.
- ALAN BAILEY
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