Yesterday, President Obama, acting under the authority of the Outer Continental Shelf Lands Act (the “Act”), issued a Presidential Memoranda effectively withdrawing large portions of the Arctic and Atlantic Oceans from new oil and gas drilling. As reflected in several cabinet-level appointments and nominations by President-elect Trump, the new administration likely will have a much friendlier approach to oil and gas operations both on and offshore. Thus, the pertinent question is: what will be the lasting impact of President Obama‘s withdrawal?
Views on this issue differ. As discussed in a Washington Post article by Darryl Fears and Juliet Eilpern, many, including the current administration, believe the withdrawal of federal lands under Section 12-A of the Act cannot be undone by an incoming president. In addition, there is no clear legal precedent for an incoming administration to reverse such an action However, David Rivkin, a former White House counsel, believes that “the power to withdraw entails the power to un-withdraw, especially if you determine the justification for the original withdrawal is no longer valid.”
The new administration will likely face significant pressure from the oil and gas industry to reverse President Obama’s action. The Independent Petroleum Institute of America has decried the withdrawal, stating that, “Instead of building our nation’s position as a global energy leader, today’s unilateral mandate could put America back on a path of energy dependence for decades to come.”
Adding an interesting wrinkle to this political football is the fact that the United States did not act alone in affecting this withdrawal of land. Instead, a parallel action was taken by Canadian Prime Minster Trudeau to ban drilling in large areas of Canada’s Arctic waters. Even if the new administration would like to reverse course and undo President Obama’s withdrawal, would it do so if such an action would undermine relations with the country’s northern neighbor and largest trade partner?