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Alaska Lawmakers Want to Block Obama’s Drilling Ban

Alaska Lawmakers Want to Block Obama’s Drilling Ban

On Tuesday, President Barack Obama invoked a provision of the Outer Continental Shelf Lands act, a law from 1953, that allowed him to place “a permanent drilling ban on portions of the ocean floor from Virginia to Maine and along much of Alaska’s coast.” Overall, it adds up to almost 120 million acres! No other president has used this provision to protect such a large part of federal waters before and he promised not even President-elect Donald Trump could undo this declaration.

But Alaska lawmakers Sen. Dan Sullivan, Sen. Lisa Murkowski, and Rep. Dan Young said they want to find a way to draft legislation to overturn Obama’s actions:

“The sweeping withdrawal disrespects the Alaskan people, is not based on sound science, and contradicts the administration’s own conclusions about Arctic development,” Sen. Lisa Murkowski, Sen. Dan Sullivan and Rep. Don Young said late Tuesday. “It will have lasting consequences for Alaska’s economy, state finances, and the security and competitiveness of the nation. In making the decision, President Obama yet again sided with extreme environmentalists, while betraying his utter lack of commitment to improving the lives of the people who actually live in the Arctic.”

The Hill reported:

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 Trump to do so. In addition, Congressman Young will also pursue legislation to overturn this decision,” said 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.”

Slight catch, though. The ban “does not affect existing leases and would not affect a nearshore area of the Beaufort Sea, totaling about 2.8 million acres, that has high oil and gas potential and is adjacent to existing state oil and gas activity and infrastructure, according to the Department of the Interior.
A new president has never tried to undo a previous president’s drilling ban.”

Like I said, Obama’s team believes Trump cannot touch his ban:

“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.”

President Bill Clinton did the exact same thing before he left office, used this “law to withdraw 300 million acres from oil and gas drilling from an area that had already been designated as a marine sanctuary.” While President George W. Bush did not fully overturn that ban, he “cut that moratorium short by four years and rescinded it in 2008.”

There is a way the GOP can stop it:

Experts say that there could be one avenue for Republicans to undo the ban: Congress could go back and amend the 1953 law, explicitly allowing presidents to reverse the drilling bans of their predecessors. However, that would require a 60-vote Senate majority to clear procedural hurdles, a challenge in a Senate with 52 Republicans.

“They’ll be arguing about this for years in the courts,” said Mr. [Patrick] Paranteau, the Vermont law professor. “It would be surprising if the Republican Congress didn’t do anything about it in the meantime.”

The administration’s wording could also help Trump turn this around:

“It is pretty clear that this is a hollow 11th hour action,” Christopher Guith, a senior vice president at the U.S. Chamber of Commerce, told The Daily Caller News Foundation. “In spite of the narrative that extreme interest groups who pushed the White House to do this, there’s nothing about this that’s permanent. The White House itself didn’t use the phrase permanent, they said it was ‘indefinite.’”


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Civil. Disobedience.

Screw ’em. Drill, baby, drill!

    Milhouse in reply to Ragspierre. | December 23, 2016 at 4:00 am

    Um, who should drill? The land hasn’t been leased yet, which is why Obama was able to withdraw it from the stock of land available for leasing. Trump would have to release it, and then wait for someone to apply for a lease, and put the application through the usual wringers (impact statements, consultation with the adjoining state, etc.) before approving it, and only then could anyone drill.

…While President George W. Bush did not fully overturn that ban, he “cut that moratorium short by four years and rescinded it in 2008.”

The answer is clear. Precedent has been set. Cut the ban down to one year and rescind it in 2018.

If a seated president makes a decision under such a law and later determines it was a mistake, can he undo his own decision as “an error in judgment” or for any other reason? Giving a president authority over such decisions by itself implies the president has the authority to reverse himself. If he can make a decision in one direction on an issue, reversing a decision (and returning to the previous status) is no different from never taking the action! Because every president is just another president, with the same powers and authority, why can’t a succeeding president reverse a decision made by a predecessor on the grounds that they are co-equals, and indistinguishable as individuals before the law?

    Milhouse in reply to DaveGinOly. | December 23, 2016 at 3:57 am

    There’s no question that if a president can reverse his own decision then so can any future president. Nobody disputes that. The question is whether this decision is one that a president (whether this one or the next) can reverse. Not all decisions can be. If the president pardons someone, and then wakes up the next morning and decides it was all a bad mistake, too late. The guy is free, and cannot be rearrested. Or, closer to this topic, if a president in a fit of madness proclaims all of NYC a national monument, when he comes to his senses he can’t reverse it; he’d have to ask Congress to do it for him.

“he promised not even President-elect Donald Trump could undo this declaration.”

LOL, more proof that Obumbles doesn’t actually have a damn clue what he is doing. Unless you get it passed through congress then the next president can change it.

    Milhouse in reply to Gremlin1974. | December 23, 2016 at 3:54 am

    Not necessarily. In this case I agree he probably can change it, but there are many things a president can do that are one-way ratchets. The most obvious is pardons, but in this context the first to come to mind is declarations of national monuments. A president can proclaim a national monument, but he cannot dissolve one. Once he’s done it it’s done, and only Congress can reverse it. Because that’s the way Congress wrote the law in the first place.

Alaskans can receive a royalty check on a good year. But no drilling means no check. We could see native Inuit people protesting in favor of drilling.

JustShootMeNow | December 22, 2016 at 7:46 pm

0 Ragspierre had the right idea. Let them drill and them hamstring the enformance agencies. Obama did it several times. Like Pot and illegal aliens, still illegal, but not enforced. Make the maximum penalty a dollar a day…

Just DRILL. Laws mean little until January 20th, 2017. Hopefully.

Fight it in federal court. By the time the court even hears the case, Trump will be President and the question will be moot.

    Milhouse in reply to clintack. | December 23, 2016 at 3:51 am

    There’s nothing to fight until Trump becomes president. There’s no doubt that Obama’s declaration is valid. The only question is whether Trump can reverse it; my opinion is yes, he can, but I can see how one might read it differently, especially in poor lighting conditions such as often prevail in the Arctic.

      clintack in reply to Milhouse. | December 23, 2016 at 8:44 am

      You’re saying highly paid lawyers can’t think of something to argue about?

      This is my skeptical face.

        Milhouse in reply to clintack. | December 23, 2016 at 10:18 am

        Until Trump tries to release these lands, there is literally nothing to argue about. The land is not available, because the president says so, end of story. If someone applies for a lease it will be ignored. So what could there be to argue about? The earliest that any court case could possibly happen is after Trump releases the land, and someone is granted a lease, and then someone with standing (I don’t know who that might be) challenges the lease.

” he “cut that moratorium short by four years and rescinded it in 2008.””

So, it has, in fact, been reversed by prior Presidents.

Trump should simply reverse it on day 1, in its entirety, and let the environmentalists sue.

Meanwhile, get Congress to amend – or better yet abolish – the old law.

This little outrage isn’t analogous to Billy Jeff and his National Monument which scotched mining leases. Fighting that one would have entailed bad optics—President Bush Hates Trees!!! That hardly applies here—nobody aside from the True Believers is going to get excited at the cry that President Trump doesn’t like remote stretches of salt water.

As for actually fighting this bit of sabotage by ex-President Jug-Ears, there are all sorts of approaches. No need to choose one; all the new government needs to pursue them all is manpower, and lawyers are hardly a scarce commodity.

Trump can pull a Barry and just ignore restrictions. Not an approach I favor, but when dealing with Shipwreck Obama, a few extraordinary measures may be justified … as long as they don’t become a habit.

Either Congress or the Executive can hobble enforcement. Congress controls the money tap, and the Executive has a phone and a pen.

Congress can modify the old law—what monsters a previous Congress can unleash, a later Congress can tame, especially if the guy in the Oval Office is going to sign the bills.

I don’t see that an energetic Congress or President would have much trouble clearing this bit of rubble. While I don’t expect Congress to suddenly become energetic, President Trump I imagine may be a different matter.

    Milhouse in reply to tom swift. | December 23, 2016 at 3:48 am

    The main difference is that the law authorizing the president to declare national monuments clearly does not also authorize him to dissolve them. Once a monument is declared it’s too late, and only Congress can reverse it. The language here is very different, and as I read it I think it very likely does allow a president to release land previously withdrawn, whether by himself or a predecessor.

To me, the language “from time to time”, and “withdraw” rather than “remove”, strongly imply that this is reversible. And the Bush action which went unchallenged sets the precedent. I’m not 100% certain that the courts would agree, but if I were in Trump’s position I’d be willing to take that chance. Just announce that the land withdrawn has now been released, and invite bids. I don’t know who would have standing to challenge it, but if someone did then argue against an injunction, and fight it. If it looks like the court is taking the complainant’s argument seriously then ask Congress to change the law, and time it for shortly before the 2018 midterms, when many D senators have to defend their seats.

As noted people are comparing this action to what Bill Clinton did with the coal bearing lands in Utah, when he used the Antiquities Act to establish the Grand Staircase-Escalante national Monument. But, it is not the same thing. All that Obama did was to place an indefinite stay on the issuance of oil leases on portions of the Continental Shelf. There is no language in the OCSLA which makes this irreversible by a subsequent President and certainly not by the Congress. So, all Trump has to do is to order that leases be issued for this land, in accordance with existing law and let those who wish to contest that file suit and obtain an injunction.

    Milhouse in reply to Mac45. | December 23, 2016 at 3:58 pm

    Yes, probably. The law doesn’t explicitly say that the withdrawal is temporary and reversible. I think it’s a fair inference, and if I were Trump I’d act on that assumption, but it is possible that a court might disagree, in which case Congress would have to act, and the D senators could filibuster.

As has been pointed out elsewhere, Obama set the precedent for disposing of laws he didn’t like. All he had to do was find a shill to challenge the law in court, and then decline to have the DOJ defend it. He did this very effectively with DOMA. Trump can do the same thing with this order.

Unknown3rdParty | December 23, 2016 at 5:48 pm

Folks, it’s simpler than that: Obama has ZERO legislative authority. Any “legislating” done by Obama–or any president, for that matter–regardless of historical precedent is wholly unconstitutional and therefore invalid. All Congress needs to do is to grow a pair and reinforce the president’s lack of authority to make law and EVERY LAST EXECUTIVE ORDER goes up in a puff of smoke. And they don’t need to make a new law or amend an old one.

When has the law or constitution stopped Tyrant Obama the Liar? Trump should issue an executive order.