This week, President Obama announced what he called a permanent ban on offshore oil and gas drilling along areas of the Arctic and the Atlantic seaboard.
VPR spoke with Pat Parenteau, a professor of environmental law at Vermont Law School, to learn more about how President Obama was able to enact the ban and how President-elect Donald Trump might react.
VPR: President Obama used a provision of the Outer Continental Shelf Lands Act. What is the provision and what does it allow the president to do?
Parenteau: “The provision is Section 12-A [of the Outer Continental Shelf Lands Act]. Several presidents have used it, including George W. Bush, to withdraw areas from oil and gas leasing in federal waters. Usually those withdrawals, though, were much smaller in scale and time-limited.
“The difference here is this is a massive area … off the coast of Alaska and large trenches off the coast of the Eastern Seaboard in the Atlantic. President Obama's order basically says that this withdrawal is for an indeterminate period of time.”
Could this be read as a permanent ban?
“I think for the foreseeable future it is ... Oil companies like Shell have been backing out of the Arctic both because oil prices are so low and because the risks and costs of doing business in this very harsh environment are simply too high. So one of the reasons I think that President Obama has made this indeterminate is because current circumstances don't even justify offering these leases for sale.
“And the other justification is the Arctic is undergoing these profound changes in response to global warming. Withdrawing these areas from oil and gas development is a climate resilience strategy as well as a sort of economic strategy.”
Why do you hear some oil executives say that they hope President-elect Trump reverses this ban if these are areas that they don't really want to go into anyway?
“I think it's an ideological issue … I think it's a matter of the industry and of course the state of Alaska, which relies so heavily on oil and gas revenues, basically saying, ‘Who is this outgoing president to tell us we can't develop our resources?’
“I think the sort of heightened response from the industry and from the Alaska delegation to Congress has more to do with that. It's a continuation of this battle over who's in charge of our resources and who gets to decide whether areas are open for development or not, and are we really going to take the actions that the scientists are telling us we have to take to stabilize the climate. All of these big political-economic issues are all wrapped up in this decision to withdraw these leases.”
On legal ground here, does it seem likely that a President Trump could just simply strike this down or reverse it?
“I think the odds are he's going to try that. He's going to issue his own memorandum canceling Obama's memorandum. Then he'll be sued by environmental groups [that] might even be joined by some coastal states like California, Maryland [and] Virginia which were calling for the president to do this ... It'll go into federal court [and] be there for years.
“Unless, of course, in the meantime Congress acts — and my hunch is we'll see that. We're going to see a bill amending the Outer Continental Shelf Lands Act to make it clear, which it is not clear right now, that a subsequent president can reverse the decision to withdraw these areas and open them up to development.”
Was this political theater on President Obama's part or are these areas that we're talking about extremely sensitive and vulnerable to oil and gas drilling?
“It's both. It's certainly in keeping with Obama's decision ... that he was going to use the powers of the presidency to do things that he thought needed to be done in the national interest to address climate change [and] to protect sensitive areas.
“He's used the Antiquities Act, another old federal statute, to protect what is now the largest marine sanctuary in the world in the Pacific. So it's in keeping with this president's view that if Congress isn't going to work with him on some of the priorities he has, he'll use his authority.
“But it's also true that that Beaufort and Chuckchi [Seas] are incredibly valuable biological resources. This is the home of the Bowhead Whale, one of the most magnificent species of whales on Earth. [It’s] very much endangered.
“[There are] countless other Arctic species as well, as the Arctic communities that depend not only on the oil and gas, but also on whaling; it's their culture … The same with some of these areas off the Atlantic coast that haven't even been explored and may be a source of biological diversity that we haven't even discovered. In their own right, protecting these areas for their ecological value is justified.
“In addition to that is the overarching problem of climate change. If we are serious about meeting the commitments we've made to the international community, we have to stop developing oil and gas at some point. And the Arctic is a very good place to begin that process.”