'Un-Shelfing' Lands Under the Outer Continental Shelf Lands Act (OCSLA): Can a Prior Executive Withdrawal Under Section 12(a) Be Trumped by a Subsequent President?
26 N.Y.U. Envtl. L.J. 1 (2017)
40 Pages Posted: 17 Apr 2017 Last revised: 23 Mar 2018
Date Written: 2017
On December 20, 2016, President Barack Obama invoked his power under section 12(a) of the Outer Continental Shelf Lands Act of 1953 (OCSLA) to “withdraw” approximately 119 million acres of submerged land on the outer continental shelf. The action prevents these areas from being considered for any future exploration, development, or production of oil or gas. Environmental groups hailed this “11th-hour offshore drilling ban” as a significant victory to protect the fragile ecosystems of the Chukchi Sea and parts of the Beaufort Sea in the Arctic, as well as ecosystems along the edge of the continental shelf in the Atlantic Ocean.
Congress enacted OCSLA to establish a statutory framework to govern the exploration and extraction of oil and gas on the outer continental shelf lands. In section 12(a) of OCSLA, Congress delegated to the president the authority to “from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” Drilling advocates, however, claim that President Trump can rescind President Obama’s withdrawal of these lands. Environmental groups maintain that he cannot.
This Article explores this critical issue by examining the text of OCSLA, unearthing its legislative history, and applying bedrock legal principles such as the separation of powers doctrine. First, the plain language of OCSLA does not provide textual support for a future president to revoke a prior withdrawal. Second, the legislative history demonstrates that Congress was acutely aware of the environmental consequences of mineral development on the shelf. It modeled OCSLA’s executive withdrawal provision after the withdrawal provisions it had already created for non-submerged lands. For these “uplands” Congress granted the executive branch the power to remove lands, but restricted the president’s authority to restore such lands into disposition. Congress intended a similar limitation in section 12(a). Finally, the separation of powers doctrine buttresses the conclusion that a subsequent president cannot revoke a previous withdrawal made under OCSLA section 12(a). A conclusion that a president has implied authority to restore federal lands would effectively allow the executive branch to re-write the statute in violation of the doctrine.
Keywords: Outer Continental Shelf Lands Act, OCSLA, oil and gas drilling, Obama, Trump, ban, Arctic, Alaska, environment, environmental law, natural resources, mineral development, federal lands, submerged lands, statutory construction, withdrawal, reservations, Antiquities Act
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