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President-elect Donald Trump said that when he takes office he will “immediately” reverse President Joe Biden’s recent executive action making more than 625 million acres of U.S. coastal waters off limits for new offshore drilling. But Trump’s intent to quickly “unban” any future oil and gas drilling in those areas may not be as simple as he suggests.
That’s because Biden issued his ban using authority granted to presidents by the Outer Continental Shelf Lands Act, a 1953 law that allows presidents to protect unleased lands of the outer continental shelf from oil and gas development. In 2019, a federal judge ruled that any such prohibition could be overturned by Congress — but not a future president.
However, after Biden announced the new ban on Jan. 6, the incoming president pledged to undo it.
“I see it just came over that Biden has banned all oil and gas drilling across 625 million acres of U.S. coastal territory,” Trump said in a Jan. 6 interview with conservative radio host Hugh Hewitt. “It’s ridiculous. I’ll unban it immediately. I will unban it. I have the right to unban it immediately.”
The next day, in a press conference from Florida, Trump reiterated his goal.
“President Biden’s actions yesterday on offshore drilling, banning offshore drilling will not stand. I will reverse it immediately. It’ll be done immediately and we will drill, baby, drill,” he said.
Here, we’ll explain what Biden did and how Trump may be able to stop it.
Biden’s Ban on New Offshore Drilling
Biden took executive action on Jan. 6 to protect much of the U.S. coastline from more exploratory drilling. He issued two presidential memorandums that withdrew more than 625 million acres of coastal waters from potentially being leased for new oil and natural gas production.
The areas covered by the actions are the eastern U.S. Atlantic coast; the eastern Gulf of Mexico; the Pacific Coast along California, Oregon and Washington; and portions of the Northern Bering Sea in Alaska.
States have rights to the resources in the area that is three nautical miles, or more in some cases, from their coastlines, according to the Bureau of Ocean Energy Management. But the federal government has jurisdiction over the outer continental shelf, which extends beyond the state jurisdiction.
“President Biden has determined that the environmental and economic risks and harms that would result from drilling in these areas outweigh their limited fossil fuel resource potential,” the White House said in a fact sheet on his actions. “With these withdrawals, President Biden is protecting coastal communities, marine ecosystems, and local economies – including fishing, recreation, and tourism – from oil spills and other impacts of offshore drilling,” the fact sheet said.
The White House said that there is no expiration date for the withdrawals, which “prohibit all future oil and natural gas leasing” in the protected areas. The memorandums also note that nothing in the withdrawals “affects rights under existing leases in the withdrawn areas.”
Biden acted using the authority granted to presidents under section 12(a) of the 1953 Outer Continental Shelf Lands Act, and this is not the first time that he has done so. Biden previously used his authority in January 2021, to protect part of the Northern Bering Sea, and in March 2023, he withdrew nearly 3 million acres of the Beaufort Sea in the U.S. Arctic Ocean from future oil and gas drilling.
In 2020, Trump, citing the same law as Biden, issued his own presidential memorandum making parts of the coasts of Florida, Georgia and South Carolina unavailable to be leased until 2032.
With Biden’s recent actions, the White House said the president has now conserved more than 670 million acres of U.S. federal land and waters.
Can Trump Undo the Ban?
After Biden’s ban was announced this month, Trump said that he would quickly end it. But he may not be able to do so on his own.
Hannah Wiseman, a Penn State law professor and co-director of the university’s Center for Energy Law and Policy, told us in an email that the Outer Continental Shelf Lands Act authorizes presidents to, in the words of the act, “from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” But the law “says nothing about whether a later President may revoke this prior withdrawal,” she said.
In fact, in 2017, Trump was unsuccessful in trying to reverse bans on new drilling in parts of the Arctic Ocean that were implemented by President Barack Obama. Trump issued an executive order to undo Obama’s bans, but in 2019, a federal district judge in Alaska, Sharon Gleason, an Obama appointee, ruled that Trump’s order was “unlawful and invalid” because the Outer Continental Shelf Lands Act does not allow a president to repeal a withdrawal made by another president.
“The court in 2019 reasoned that ‘the statute does not expressly grant to the President the authority to revoke prior withdrawals’ and that the phrase ‘from time to time’ does not suggest that presidential withdrawals of land from leasing must be temporary (subject to revocation),” Wiseman said.
The Trump administration appealed the decision, but a higher court never weighed in before Biden took office in January 2021 and revoked Trump’s executive order. After Biden’s revocation, the U.S. Court of Appeals for the 9th Circuit dismissed the case as moot.
This time, Trump could issue another executive order and hope that it survives a legal challenge.
Andrew Mergen, a professor in environmental law at Harvard Law School, told the Washington Post that he believes the 2019 court ruling could have been overturned if the appeal had proceeded. The Congressional Research Service also wrote in a January “legal sidebar” that a different effort by Trump “to revoke a withdrawal may be interpreted differently by courts.”
Another option is for Trump to work with the Republican-controlled Congress on legislation that would amend Biden’s ban or rescind it. In her email, Wiseman noted that Gleason’s 2019 ruling said that Congress could override a leasing ban “by either revoking the withdrawal itself … or amending Section 12(a) to expressly provide that a future President could also revoke a prior presidential withdrawal.”
Some Republicans have already suggested that they are open to do so. In a Jan. 6 statement he issued responding to Biden’s actions, Rep. Bruce Westerman, chairman of the House Natural Resources Committee, said that congressional Republicans “will use every tool, including reconciliation,” to make the regions that Biden protected accessible for future oil and gas drilling.
The reconciliation process would allow the Senate to pass a bill with a simple majority instead of the 60 votes required to stop a potential filibuster.
We asked Trump’s transition team how he plans to go about reversing Biden’s executive action, but we have not received a response.
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Source: FactCheck