JURIST Guest Columnist Victor B. Flatt of Universtiy of North Carolina School of Law discusses the recent withdrawal of arctic lands from drilling by President Obama…

On Dec. 20, 2016, President Obama withdrew all of the northern Atlantic Ocean and most of the Arctic Ocean under federal jurisdiction from oil exploration and production. The President used the Outer Continental Shelf Lands Act (OCSLA), where section 12 gives the President the power to “withdraw from disposition any of the unleased lands of the outer Continental Shelf.” This section of the Act has been used previously by presidents, including President Clinton, to temporarily withdraw continental shelf lands from leasing, or permanently withdraw very small tracts from leasing. This is the first time that a President has invoked this section to ostensibly withdraw a large part of the Continental Shelf from disposition with no time expiration.

The major legal question this presents is whether a future president, in this case President-elect Trump, can “un-withdraw” said lands and make them available again for oil exploration and production. Unlike a statute governing onshore federal lands, the language of OCSLA specifically says a President can from “time to time, withdraw” federal lands from leasing but does not have any parallel language about putting federal lands “back in” to availability. The answer to the legal question is really unknowable at this time. Laws are to be construed to give effect to the intent of Congress in the law’s passage. There are many canons of statutory construction to assist with this determination, the most direct of which is to look at the specific language of the statute. Under that rubric, it would seem that a new President does not have the authority to reinstate withdrawn lands. On the other hand, past practice, which allowed temporary withdrawal, might suggest otherwise.

What is more interesting, however, is that regardless of whether the land can be reinstated by a new President or whether Republicans will risk political capital to amend the law, accomplishing the same thing, is that these offshore lands will likely never see any commercial oil exploration or production.

First of all, OCSLA has a very specific procedure which requires “opening” of land in five year blocks before any auction can occur. The lands “withdrawn” by President Obama were not part of the available lands in the 2017-2022 five year block. No subsequent President can change that short of having a new law passed. Moreover, the political situation in the Atlantic and the economic situation in the Arctic are not conducive to these lands ever being put into production. The offshore Atlantic area has been “temporarily” unavailable for leasing since OCSLA was passed because the mid-Atlantic and Northeastern states have strong opposition to any leasing of the area. While the state of Alaska supports offshore federal leasing because of the importance of the oil services industry to the state’s economy, the technical and environmental difficulties do not allow for any economical extraction. After a ten year, 7 billion dollar debacle, Shell became the last major oil company to withdraw from offshore Arctic drilling in 2015, with no success at even drilling an exploratory well.

Why then did Obama take this step, and why are people advising President Trump or the Republican Congressional majority to reverse it? I can only assume it is to send political messages. Donald Trump and the Congressional Republicans can send the signal that they intend to strongly support the oil and gas industry as promised. The Obama decision, on the other hand, seems more calculated. Until his re-election in 2012, the Obama administration assiduously pursued an “all of the above” energy strategy, that felt spectacularly wrong after the Macondo Well explosion (on the same day that Obama announced the opening of parts the Atlantic Ocean for exploration). Withdrawing these federal lands from oil and gas exploration provides a retro-activism (along with the decision on the Keystone XL pipeline and the more recent Dakota Access pipeline) that may influence future historians to view his presidency as one that was environmentally protective.

While more calculated, the changing Obama positions make sense from a practical point of view. When the economy needed recovery and oil was expensive, President Obama encouraged American oil production. At this point in time the situation has changed. Oil’s price has plummeted and unless Saudi Arabia significantly cuts its production, American production on marginal sites makes no economic sense. The Republicans would argue otherwise – that more domestic oil production is necessary for the country, when in fact it would be uneconomical and present severe ecological risks.

So, while it is possible that we will spend years in a legal battle to determine exactly what the word “withdraw” means in this section of the Outer Continental Shelf Lands Act, as is often the case, this really isn’t a legal issue but a political issues dressed as a legal one.

Victor B. Flatt is the Tom & Elizabeth Taft Distinguished Professor in Environmental Law at the University of North Carolina among many other honors. He has been published in multiple law journals on environmental topics and most recently focused on the regulatory and legislative tools needed to address climate change.

Suggested citation: Victor B. Flatt, Presidential Power and Arctic Drilling: A Political Fight, JURIST – Forum, Jan. 7, 2017, https://www.jurist.org/forum/2017/01/Victor-Flatt-arctic-drilling.php.