Trump’s new offshore drilling order is even worse than environmentalists expected

“Responsible development.”

CREDIT: DOI
CREDIT: DOI

President Donald Trump signed an executive order Friday that seeks to increase offshore oil drilling in federal waters in the Gulf of Mexico, the Arctic Ocean, and the Atlantic Ocean. The order leaves out the Pacific Ocean and Eastern Gulf regions.

During the signing ceremony on Friday, Trump emphasized that the order will open the Arctic for drilling.

“It reverses the previous administration’s Arctic leasing ban,” the president said. “So hear that: It reverses the previous administration’s Arctic leasing ban, and directs Secretary Zinke to allow responsible development of offshore areas that will bring revenue to our Treasury and jobs to our workers.”

President Barack Obama protected 98 percent of the Arctic Ocean from oil leasing in December 2016, under Section 12(a) of the Outer Continental Shelf Lands Act. The new order directs all areas protected as of July 2008 to be preserved, but anything else — including broad swaths of the Atlantic and Arctic — has been reopened.

The move is expected to be met with immediate legal challenges. Environmentalists were, by and large, horrified when the details of the order emerged Friday, calling it “tragic” and “worse than we thought.” A preview of the order, given Thursday by Secretary of the Interior Ryan Zinke, focused almost entirely on reviewing the Bureau of Ocean Energy Management’s five-year plan for leasing for offshore drilling.

Reopening the Arctic and marine sanctuaries is considered much more aggressive.

“No matter how much money it spends or how many lobbyists it places inside the Trump administration, Big Oil can never nor will never drown out the voices of millions of Americans across the country who speak out against dangerous offshore drilling,” Michael Brune, executive director of the Sierra Club, said in a statement. Brune noted that the order comes just a day before hundreds of thousands of people are expected to participate in the People’s Climate March on Washington and in other cities across the country.

“We will continue to speak out against offshore drilling and to protect our marine monuments from coast to coast, and this will only make our call louder on Saturday,” Brune said.

Legal experts at the Natural Resources Defense Council are adamant that Trump cannot trump Obama’s move in the Arctic.

“No matter how hard you look at Section 12(a), it only authorizes protection,” NRDC’s Alaska director and senior attorney Niel Lawrence told ThinkProgress. “Wishing that it said something else is not going to change that.”

There is scant legal precedent for Trump’s order. The only opinion that touches on the issue is from a 1938 guidance by the attorney general, not a court. At the time, the attorney general found that “[I]f public lands are reserved by the president for a particular purpose under express authority of an act of Congress, the president is thereafter without authority to abolish such reservation.”

But not everyone is quite so sure.

A background document posted on the website of the House Western Caucus says that “a permanent withdrawal would be entirely contrary to Congress’ stated purpose in creating OCSLA, which was to make the [outer continental shelf] ‘available for expeditious and orderly development.’”

It’s worth noting that the document posted by the caucus was provided “courtesy of the American Petroleum Institute.” But other legal scholars have also suggested that a close reading of 12(a) would suggest Trump can, in fact, undo Obama’s “permanent” protection of the Arctic, by modifying or reducing the designation. President George W. Bush, for instance, reduced a temporary designation that had been put in place by his father and renewed by President Bill Clinton. In Obama’s case, he intended to protect the Arctic in perpetuity, and NRDC lawyers have pointed out that no designation that was not already temporary has been reversed.

Ironically, the likely legal battle may be all for naught. Environmentalists have argued for years that the Arctic is too dangerous and unpredictable for drilling. The last company with an Arctic leasehold, Shell, pulled out of the region in 2015, and it’s unclear there will be continued appetite for drilling in the Arctic, particularly with the drop in oil prices.

The original withdrawal of the region was announced in conjunction with Canadian Prime Minister Justin Trudeau, who pledged that his government would withdraw all of its oil and gas leases in Canadian-controlled Arctic waters. The two countries also pledged to work toward banning Heavy Fuel Oil (HFO) in the region. It’s unclear how America’s northern neighbor will react to Trump’s rethinking of international Arctic policy.

Under Friday’s order, the Department of the Interior will review the current BOEM five-year plan and review regulations and permitting for seismic testing, including for the Atlantic. The order also instructs the Department of Commerce not to dedicate any more monuments or marine sanctuaries and to review dedications in the last 10 years.

A proposal to open the Atlantic is sure to kick off a firestorm of opposition.

Southeastern coastal communities were galvanized under the Obama administration, when a draft five-year plan included potential drilling off the Atlantic coast.

Zinke told reporters on Thursday that the order would not remove “any of the stringent environmental safeguards that are currently in place.” In fact, the order directs Zinke to review a rule that covers exploratory drilling on the Arctic Outer Continental Shelf, a rule that seeks to prevent well blow-outs, and a rule that seeks to limit air pollution from offshore drilling. It also expedites permit review for how damaging seismic testing might be.