News-Miner opinion: It is welcome news to hear that the Interior Department intends to appeal an Alaska judge’s decision blocking President Donald Trump from rolling back his predecessor’s ban on offshore drilling in vast areas of the Arctic and Atlantic coastal regions.
It’s important that the matter be resolved expeditiously. That’s because uncertainty about the final outcome of the lawsuit brought by a coalition of environmental groups, including the Fairbanks-based Northern Alaska Environmental Center, has caused Interior Secretary David Bernhardt to put on hold the department’s work of the next five-year plan for development of offshore areas in the Arctic and Atlantic oceans.
A delay in implementing the five-year plan does neither the nation nor the state of Alaska any good. There is oil and gas to be had, even as the nation little by little makes advances in other energy sources. We remain a nation powered by oil and gas.
And where there is oil and gas to be had, there are oil and gas jobs to be had. That, of course, is important for Alaska’s economy.
President Trump in April 2017 directed the Interior Department to produce a schedule of oil and gas lease sales that would include, but not be limited to, the Outer Continental Shelf planning areas of the Chukchi Sea, Beaufort Sea, Cook Inlet, the Western Gulf of Mexico, Central Gulf of Mexico, Mid-Atlantic and South Atlantic. President Barack Obama used authority under the Outer Continental Shelf Lands Act of 1953 to remove acreage in those areas from development.
For Alaska, President Obama’s order affected 125 million acres of ocean surface, encompassing the entirety of the Chukchi Sea and a majority of the Beaufort Sea planning areas. The Obama administration described the decision as putting the areas “indefinitely off limits for future oil and gas leasing.”
Alaska’s elected officials complained loudly. State and national oil industry representatives complained. And rightly so. The state of Alaska joined the lawsuit on the side of the Trump administration when environmental groups sued to overturn President Trump’s executive order.
The problem here, as is too often the case, is that the law isn’t explicit.
Anchorage federal Judge Sharon Gleason, an Obama appointee, ruled in favor of the environmental groups in March that the relevant section of the Outer Continental Shelf Lands Act “refers only to the withdrawal of lands; it does not expressly authorize the president to revoke a prior withdrawal. Congress appears to have expressed one concept — withdrawal — and excluded the converse — revocation.”
Congress, in being unclear in the law, unfortunately left it to a judge to sort out.
If the problem with the Outer Continental Shelf Lands Act sounds familiar, it’s because a similar argument arose in 2017 when President Trump was apparently considering revoking some national monument designations. The Antiquities Act of 1906 allows a president to declare a national monument, but it makes no mention of a president’s authority to revoke a monument designation.
A central issue in the latest case is the Property Clause of the U.S. Constitution, which in Article IV Section 3 reserves to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”
Congress granted the executive branch authority under the Outer Continental Shelf Lands Act. The relevant section reads “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the Outer Continental Shelf.”
Whether that can be undone by a presidential executive order, without congressional blessing, is the point of contention.
Ultimately, Congress should consider revising the Outer Continental Shelf Lands Act to allow for reversals of withdrawals by a president after a set period of time and, as is done in some other instances, giving Congress a limited window in which to pass a resolution of disapproval of a reversal. If Congress fails to pass such a resolution, the reversal would be allowed to stand.
President Trump laid out a sound vision for the nation in his April 2017 executive order, writing in part:
“It shall be the policy of the United States to encourage energy exploration and production, including on the Outer Continental Shelf, in order to maintain the nation’s position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is safe and environmentally responsible.”
It is a sound policy and is one that Alaskans, and the rest of the nation, should embrace. Cleaning up the law could reduce the likelihood of lawsuits slowing down the implementation of that much-needed policy.