Congressional Republicans and their oil industry allies are gearing up to fight President Obama’s new bans on oil drilling in parts of the Arctic and Atlantic oceans.
Two Alaska lawmakers are exploring whether they should propose legislation to overturn Obama’s actions.
Spokesmen for Sen. Dan Sullivan and Rep. Don YoungDonald (Don) Edwin YoungRepublicans are the 21st-century Know-Nothing Party OVERNIGHT ENERGY: Biden suspends Arctic oil leases issued under Trump | Experts warn US needs to better prepare for hurricane season | Progressives set sights on Civilian Climate Corps Overnight Energy: Biden admin backs Trump approval of major Alaska drilling project | Senate Republicans pitch 8 billion for infrastructure | EPA to revise Trump rule limiting state authority to block pipelines MORE, both Alaska Republicans, said the lawmakers would consider proposing legislation to help President-elect Donald Trump overturn the bans if necessary.
The legislation could either authorize the president to undo any prior offshore protections, or simply overturn the specific bans from Obama.
“The Congressman believes this decision can be overturned by the incoming Administration and will be encouraging President TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE to do so. In addition, Congressman Young will also pursue legislation to overturn this decision,” Matt Shuckerow, Young’s spokesman, told The Hill.
With both sides in the fight bracing for the long haul, and for the likelihood that it could end up in the courts, the lawmakers want to make Congress's views clear.
“Ambiguities in the law will create an opportunity for litigation by the very extreme environmental groups that President Obama was pandering to,” said Mike Anderson, Sullivan’s spokesman. “It doesn’t mean their litigation would succeed, but just as with any number of actions the new administration might undertake, Congress can buttress those decisions with statutory support."
Obama declared Tuesday that that most of the United States’s portion of the Arctic Ocean would indefinitely be closed to drilling, along with 31 undersea canyons on the edge of the continental shelf in the Atlantic Ocean.
The actions are a major step further than Obama’s previous efforts to block Arctic and Atlantic drilling. He removed both from the calendar of new drilling lease sales between 2017 and 2022. That action was only temporary though, and one Trump could reverse.
But for the indefinite bans, Obama invoked a measure in a 1953 law, the Outer Continental Shelf Lands Act (OCSLA). Presidents have invoked the so-called 12(a) authority before, but usually to protect smaller areas for a limited period of time.
Obama's more expansive action has both supporters and opponents in uncharted waters and looking for any advantage in the fight ahead.
“It’s pretty much unknown territory right now,” said Deborah Sivas, an environmental law professor at Stanford University Law School who has studied the provision Obama used. “I don’t think anything analogous to this has occurred before. It’s just a black box.”
There'll also be pressure on President-elect Donald Trump to help roll back the ban.
Trump’s transition team did not respond to a request for comment about Obama’s Tuesday decision. But on the campaign trail, he repeatedly made public lands and waters a central piece of his energy platform, vowing to open them up for more oil and natural gas development.
“Rather than continuing the current path to undermine and block America’s fossil fuel producers, the Trump administration will encourage the production of these resources by opening onshore and offshore leasing on federal lands and waters,” his transition website says.
Trump also plans to nominate Montana Rep. Ryan Zinke (R) to lead the Interior Department, which oversees offshore drilling. Zinke also supports additional fossil fuel development on public lands and waters.
No president, though, has previously attempted to reverse an offshore drilling ban from a previous president.
On the legal front, the Obama administration thinks it's on safe footing, and the protections are truly permanent.
“There is no provision on OCSLA which provides for the reversal of a presidential withdrawal under section 12(a),” a senior administration official told reporters.
“We believe there is a strong legal basis that these withdrawals as well as all the prior indefinite withdrawals will go forward and will withstand the test of time.”
Niel Lawrence, the Alaska director for the Natural Resources Defense Council (NRDC), made a similar argument. Lawrence and other officials at environmental groups wrote legal memos earlier this year laying out the case for the protections that Obama instituted. And they argued they could try to sue Trump if he rolls them back.
“This looks like an uncertain legal question, because it hasn’t been litigated. But it’s really pretty simple: presidents can only manage public lands and waters to the extent that Congress gives them that power,” Lawrence said.
“Here, Congress said presidents can protect these areas,” he continued. “But it did not say that they can open them back up. And until Congress says that pretty clearly, we don’t think presidents can do that.”
Lawrence found it unlikely that Congress would actually step in. He said with oil prices so low, the oil industry is not interested in new drilling areas. Furthermore, he said, voters overwhelmingly oppose Arctic and Atlantic drilling.
“It’s hard to see why either the Trump administration or Congress would prioritize rolling back these protections,” he said.
But Erik Milito, upstream director of the American Petroleum Institute, was confident that Obama’s restrictions will not stand.
API could also push Congress to step in if necessary, although Milito said the industry has higher priorities, like changing the lease sale plan to add more auctions.
“There’s a good chance that a reversal by President-elect Trump would withstand legal review,” he said, adding that the industry would likely intervene in court to defend Trump. “I’m not even sure that that could be challenged.”