One of President-elect Donald Trump's primary energy policy promises that he campaigned for will be more difficult to fulfill thanks to a move by President Obama during his final days in the Oval Office.
Under Section 12 (a) of the act, the President is authorized to withdraw the submerged lands:
"The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf."
The president banned oil and gas drilling in 115 million acres of federal waters off Alaska and 3.8 million acres of the Atlantic Ocean, from New England to Chesapeake Bay.
Not only does the the ban directly oppose Trump's plans to open federal onshore and offshore leasing on federal lands, but it's something that Trump will have a difficult time overturning.
"It's very clear that President Obama has the authority to withdraw the acreage from the provisions," says Ann Carlson, a professor of environmental law at UCLA. However, Carlson notes that there is no corresponding statue granting the president the authority to put areas that have been withdrawn from disposition back into those available for leasing. "As a result, there is a strong legal argument that a president cannot do so," Carlson says.
That leaves President-elect Trump with a challenging path to undo the ban.
Theoretically, the simplest way to reverse the ban is to pass a law, which is what some experts believe Trump will try to do. "I believe he will try, at least with respect to the Arctic," says Victor Flatts, University of North Carolina's Thomas F. and Elizabeth Taft Distinguished Professor in Environmental Law.
However, Flatt says that would make the issue much more of a public battle, and "more people would rather not have drilling in the Arctic."
In fact, Carlson suggests that even trying to amend the statute through Congress is a "much more difficult route," especially given the chance the Senate Democrats could filibuster any attempts to change President Obama's ban.
"If Congress wanted to grant a President authority to put lands that have been withdrawn back into the inventory, the argument goes, it would have said so explicitly in the statute just as Congress did in granting the authority to withdraw land," Carlson says.
Instead, Trump could take the case to court because as Flatts says, it is "possible that courts would be amenable" to a different reading of the statute. That being said, a court battle could wind up be a long and tedious process. Flatts notes that if the case were to go to the Supreme Court, it could take up to four years to be argued, meaning Trump could be out of Oval Office by that time.
There is another way Trump could get his way: An executive order. However, there would likely be many groups, like the Sierra Club, that would oppose such an action, so the issue could still wind up in court.
Given the hurdles involved, it's possible that the President-elect will let the matter drop. The fact is, it's not likely many companies would jump at the chance to drill in the Arctic. Break-even costs for Arctic crude oil is estimated to be around $80, according to The Oxford Institute for Energy Studies, which cited the consulting firm Rystad Energy. In fact, several oil companies recently left the region after finding the area economically unfriendly for oil and gas drilling.
"It's so fragile and so difficult there," says Flatts, adding that President Obama gave Royal Dutch Shell (RDS.A) an opportunity in the region by approving a permit for Arctic drilling —a venture the company abandoned in September 2015 after discovering insufficient oil to warrant development.
The same story goes for fellow oil major ConocoPhillips (COP) - Get Report , which also exited its Arctic offshore project and relinquished it remaining 61 leases to the Bureau of Ocean Energy Management (BOEM).
Even Norwegian oil giant Statoil ASA (STO) , which was first to get a permit to enter the region in 2008, has left the Arctic, saying in a statement that the leases in the Chukchi Sea "are no longer considered competitive."
"Even if the lands are reinstated, with the price of oil as low as it is, the government won't get any bidders," Flatt says.
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