Trump Vow to Restore Offshore Leasing Raises Unsettled Questions

President-elect Donald Trump’s pledge to undo President Joe Biden’s Monday memorandum blocking offshore oil and gas leasing is largely untested in court and will face similar legal challenges to Trump’s vow to abolish or shrink national monuments.

Biden on Monday used Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA) to withdraw areas of the Bering Sea in Alaska, the eastern Gulf of Mexico, and the East and West Coasts of the US from oil and gas leasing. Trump said Monday he’ll reverse the withdrawals once he takes office.

Blocking offshore oil and gas leasing is Biden’s way of shoring-up his climate legacy before he hands power to Trump, who has vowed to roll back Biden’s conservation efforts and promote fossil fuels. The outcome of challenges to those rollbacks will determine the power presidents have to unilaterally protect or develop lands and waters without Congressional approval.

The president’s legal right to block offshore leasing is similar to his or her legal right to block onshore development by creating national monuments under the Antiquities Act, but there is no legal precedent establishing the president’s ability to reverse those moves.

It’s an open question whether a president has a right to roll back a predecessor’s offshore oil and gas leasing withdrawals under OCSLA because it has not been tested in court, said Sarah Bordelon, partner at Holland & Hart LLP in Reno, Nev.

Trump in his first term tried to reverse similar withdrawals made by former President Barack Obama, and environmentalists sued. In League of Conservation Voters v. Trump, the US District Court for the District of Alaska struck down Trump’s reversal because it violated OCSLA.

But that ruling was vacated in 2021 when the US Court of Appeals for the Ninth Circuit said Trump’s withdrawals were rendered moot when Biden reinstated Obama’s withdrawals, leaving the question open again.

“The Antiquities Act is the analogue” to OCSLA, Bordelon said.

Reversal Rights Not Explicit

The legal argument against reversing a previous administration’s withdrawals under OCSLA is the same as the argument against abolishing or shrinking national monuments, said Melinda Taylor, a senior lecturer focusing on energy and environmental law at the University of Texas at Austin School of Law.

OCSLA says that the president may “withdraw from disposition any of the unleased lands” of the Outer Continental Shelf. But like the Antiquities Act, OCSLA only authorizes the president to protect lands without granting explicit authority to undo those protections.

“The plain language of the statute authorizes a president to withdraw land under both statutes, but does not authorize a president to reverse or undo a prior withdrawal,” Taylor said. “There will be legal challenges, because OCSLA does not explicitly give a president the power to undo a withdrawal.”

Trump during his first term shrank Utah’s Bears Ears and Grand Staircase-Escalante national monuments, which were created under the Antiquities Act by previous presidents to block oil and gas development and mining. Legal challenges to that move never reached the merits stage in court before Biden took office and re-expanded the monuments, which Trump again vows to shrink or abolish.

A Time Element

Under OCSLA, any withdrawal not intended to be permanent should include explicit language limiting its duration, said Hillary Hoffman, a former law professor at Vermont Law School who is now co-director of the Bears Ears Inter-Tribal Coalition.

The key difference between OCSLA and the Antiquities Act is that OCSLA has been subject to judicial review, but the Antiquities Act hasn’t yet, Hoffman said.

The US Court of Appeals for the Tenth Circuit is set to rule on the judicial review question soon in Garfield County v. Biden. In that case, two Utah counties and the state of Utah are challenging Biden’s use of the Antiquities Act to create sprawling national monuments that protect more than just a single historic object. The US District Court for the District of Utah ruled that presidential actions under the act are not subject to judicial review.

The district court ruled in League of Conservation Voters that Congress gave presidents only the right to withdraw offshore waters from leasing without granting them the right to reverse such a move, and it would be up to Congress to reopen those waters to leasing, Hoffman said.

It’s unclear how the GOP-controlled Congress with a thin majority in the House of Representatives would approach offshore leasing.

Congress might look to the Federal Lands Policy and Management Act, or FLPMA, as a model to put limits on offshore leasing restrictions, Bordelon, of Holland & Hart LLP, said.

FLPMA, which governs federal lands under the Bureau of Land Management’s control, allows for temporary leasing withdrawals but requires any long-term withdrawals to be made by Congress, Bordelon said.

Trump in 2020 withdrew waters off the southeast coast from oil and gas leasing after residents in Florida and South Carolina and elsewhere expressed concern about drilling’s impact on tourism.

“As this shows, not many Republicans who are very plentiful in Florida and neighboring states want drilling rigs in their backyards,” said John Leshy, a professor at University of California Law San Francisco who served as Interior solicitor during the Clinton administration.