In our last post, we explained how President Biden issued two Presidential Memoranda on January 6th, purporting to permanently ban new offshore drilling in over 625 million acres of U.S. ocean on the Outer Continental Shelf (OCS). President Biden contended that section 12(a) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §1341(a), which provides that the President “may, from time to time, withdraw from disposition” any unleased OCS lands, allows a President to make a withdrawal “for a time period without specific expiration.”
With lightning speed, President Biden’s actions were met with legal challenges. On January 17th, the American Petroleum Institute, the Gulf Energy Alliance and the coastal states of Alabama, Alaska, Georgia, Mississippi and Louisiana filed suit in the Western District of Louisiana to challenge the Biden Administration’s actions as unconstitutional, seeking an immediate injunction as the plaintiffs attempt to get rid of the ban altogether after litigation. And on January 20th, Texas Attorney General Ken Paxton and oil and gas producer W&T Offshore, Inc. filed suit in Texas to have the “Withdrawal Memo” declared ultra vires, or “beyond the powers” that President Biden had the authority to exercise. However, these lawsuits are not the only attacks on President Biden’s final-hour climate actions.
In our previous post, we noted that President Trump indicated he would revoke the ban, but that any such revocation might face its own legal challenges. On Monday, January 20th – President Trump’s first day of his second presidential term – the new President made good on his word: he issued executive orders to revoke both the Biden Administration’s January 6th ban and an earlier action from March 2023 that prevented oil and gas drilling in almost 3 million acres in the Arctic Ocean. So this raises the question: can President Trump undo President Biden’s actions under OCSLA?
OCSLA’s text doesn’t expressly indicate that a subsequent president can undo a previous president’s withdrawal under OCSLA. So the answer to this question is up in the air. The question had arisen only once before – during President Trump’s first term.
In 2017, a group of environmental activist organizations filed suit against President Trump, who had issued a similar executive order revoking a decision under OCSLA by President Obama that had put the Arctic’s Chuki Sea and a significant portion of the Atlantic Ocean off the U.S. East Coast off-limits to new drilling leases. Defending the revocation order of President Obama’s actions, President Trump’s administration relied on the language in section 17(a) OCSLA that a president may “from time to time” withdraw unleased lands to argue that OCSLA also encompassed a president’s authority to revise prior withdrawal decisions.
Two years later, U.S. District Judge Sharon Gleason in Anchorage, Alaska struck down President Trump’s revocation order. Judge Gleason emphasized that “had Congress intended to grant the President revocation authority, it could have done so explicitly, as it had previously done in several (but not all) of its previously enacted upland laws.” Moreover, the court ruled that only Congress held the power to overturn withdrawals of land. President Trump appealed the decision to the Ninth Circuit. But before the appeals court could issue a ruling, President Biden took office and revoked President Trump’s order, making the case moot.
As we know, history tends to repeat itself. In this instance, it repeats itself frequently on a merry-go-round of Presidential power and environmental debate. It is likely that environmentalists will file suit challenging President Trump’s authority to revoke President Biden’s withdrawals under OCSLA. So we may see this statutory question under OCSLA finally answered once and for all. But don’t hold your breath – with President Trump’s administration, the plaintiffs in the two new lawsuits will undoubtedly face a less rigorous defense than they would have under the Biden Administration. A plaintiff’s victory in either case would well moot yet again the question whether a president may revoke a prior president’s withdrawal of unleased OCS lands from oil and gas development.