President Obama today used his pen to withdraw hundreds of millions of acres of federally owned land in the Arctic and Atlantic Ocean from new offshore oil and gas drilling. Obama acted pursuant to something called the Outer Continental Shelf Lands Act. It includes a sentence saying the president may “from time to time, withdraw” from consideration any currently unleased lands in federal offshore waters.
The White House described its prohibition on future oil and gas exploration and drilling as indefinite, and it claimed that the ban cannot be undone by an incoming president. “There is a precedent of more than half a century of this authority being utilized by presidents of both parties,” a White House aide said. “There is no authority for subsequent presidents to un-withdraw.”
I have no view on the merits of Obama’s withdrawal of the offshore waters from consideration for drilling. However, the claim that Trump can’t reverse this strikes me as questionable. David Rivkin argues, plausibly, that the power to withdraw entails the power to un-withdraw, especially if circumstances change.
Rivkin says it’s not clear why Congress would give a president tremendous authority operating only in one direction. Unless the legislative history supplies an explanation, we should perhaps conclude that Congress didn’t.
If the withdrawal can’t be reversed by Trump, Congress could pass legislation reversing it. But this would probably require 60 votes in the Senate.
Right now, there seems to be little impetus for drilling in the waters in question. According to the Wall Street Journal:
The announcement carries symbolic significance but little immediate impact, since no commercial drilling is currently taking place in U.S. federal waters of either the Atlantic off the East Coast or the Arctic north of Alaska.
Persistently low oil prices have depressed the oil industry’s appetite to make big investments in new offshore projects, and any production would take the better part of a decade to come online.
However, Obama’s ban is of indefinite duration. Thus, as Tyler Durden of ZeroHedge says, we can expect the oil and gas industry to push for a reversal, and shouldn’t be surprised if Trump attempts one.