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To Do, and Not to Undo: The Issue of Presidential Authority Under the Outer Continental Shelf Lands Act

Wednesday, November 29, 2017
Tim Briscoe

Tim Briscoe

Law Clerk

In December 2016, President Barack Obama issued a presidential Memorandum withdrawing about 128 million acres of federally owned underwater land in the Arctic and Atlantic Oceans from disposition for oil and gas leasing. Obama invoked a presidential power granted by Congress in the Outer Continental Shelf Lands Act (OCSLA).

Section 12(a) of OCSLA allows the president to indefinitely “withdraw from disposition any of the unleased lands of the outer Continental Shelf.” In areas so withdrawn, federal agencies are prohibited from granting oil and gas leases to private energy developers. Combined with past presidential withdrawals, Obama’s action effectively protected about 98 percent of the Arctic Outer Continental Shelf and 26 massive underwater canyons along the Atlantic coast.

Oil platforms off of the coast of Alaska (Photo: BSEE).

In April 2017, President Donald Trump issued an Executive Order reversing Obama’s withdrawals. Within days of the Order, 10 Alaskan and environmental groups (Environmentalists) filed a complaint against the Trump Administration in federal district court in Alaska. The Environmentalists argue that OCSLA does not authorize the president to reverse a prior withdrawal. In late June, the Administration filed its response, asking the court to dismiss the lawsuit. Oil and gas interests represented by the American Petroleum Institute (API) then intervened to support the government’s position, joining the lawsuit as a defendant.

The case, League of Conservation Voters v. Trump, No. 3:17-cv-0010 (D. Alaska, filed May 3, 2017), involves potentially huge economic and environmental stakes. By U.S. Department of the Interior estimates, the Alaska and Atlantic Outer Continental Shelves contain about 40 percent of the undiscovered but recoverable petroleum resources of all the shelves controlled by the United States. The Environmentalists contend that Trump’s Order violates both the terms of OCLSA and the constitutional principle of the separation of powers (here between Congress and the executive). The government and its API supporters argue that the injuries alleged by the Environmentalists are too remote and speculative because Trump’s Order makes no decisions on the propriety of any specific oil or gas lease.

The narrow legal issue of presidential authority under OCSLA is straightforward: whether the president may reverse withdrawals. But the case also presents some thorny issues of constitutional law. Foremost is the standing doctrine derived from Article III, Section 2, Clause 1 of the Constitution, which is intended to prevent courts from wading into abstract issues of public policy by limiting access to the courts to only those parties who have a close connection to the controversy. To establish standing in this case, the Environmentalists must show that they (or one of their organizational members) have suffered an “injury-in-fact” that is “fairly traceable” to Trump’s allegedly illegal Order.

The Environmentalists argue that they have standing because their organizational members would be injured by gas and oil production in the Arctic and Atlantic. For example, the Complaint states that one of the plaintiffs, Resisting Environmental Destruction on Indigenous Lands, includes residents of Arctic Ocean coastal communities who oppose and have worked for years to stop the expansion of offshore oil drilling. Among other alleged impacts, the Environmentalists argue that the noise associated with seismic surveying harms marine mammals in which the Environmentalists have judicially cognizable resource and environmental interests.

The government and API respond that the Environmentalists lack standing and the Alaska district court lacks jurisdiction. The government argues that the injuries alleged by the Environmentalists are not sufficiently “concrete” (lacking specific geographic or temporal characteristics) or “imminent” (since the Order itself makes no determinations about particular federal leases) to grant them standing. API’s Motion to Dismiss further argues that a section of OCSLA permits the Environmentalists’ claims to be filed only in the U.S. Court of Appeals for the D.C. Circuit. If true, this would compel the district court in Alaska to dismiss the action for lack of jurisdiction.

At this stage in the litigation, the court in Alaska is considering how to rule on the Defendants’ Motions to Dismiss. If the court does not dismiss the case, the parties will move on to perform more fact-finding in the discovery stage. Because of the case’s broad implications for environmental governance in the Arctic and Atlantic, the Environmental Law Institute’s Oceans Program will continue monitoring League of Conservation Voters v. Trump through its ultimate resolution.