Not So Fast, Mr. President

One of the most outrageous notions to come out of this White House—I know, I know—is to turn our publicly-owned lands and waters into an oil industry playground, in pursuit of “global energy dominance.” Our federal lands represent an intergenerational trust held for all of us, for all time. President Trump and his Interior Secretary are violating that trust, aggressively promoting reckless wholesale drilling that runs squarely against the public interest. 

But a federal judge in Alaska has agreed to review the legality of a key part of that megalomaniac idea.

Now, President Trump, there are ways in which America actually does enjoy global primacy. Consider the magnificent landscapes, recreational lands, wildlife habitat, and pristine offshore waters the public owns and enjoys. When the country was younger, our public lands were liberally handed over to railroads, mining companies, timber barons, and simple homesteaders. Those days ended long ago—and we have operated for decades under a bipartisan consensus that our federal oceans, forests, and plains are public and should be preserved to supply values and uses that private lands, devoted to commercial activity, cannot. Today, no other country has a terrestrial and marine legacy to match ours.

And that is why, before departing office, President Obama permanently barred oil and gas drilling in 98% of our Arctic outer continental shelf—the largest swath of unspoiled ocean left—along with 31 underwater canyons in the Atlantic—vast, mysterious and rich marine areas. In so doing, he expressly noted that the last thing America needed from these treasures was oil.  We have far more fossil fuel already discovered than the world can possibly burn if it is to avoid the worst impacts of climate change—effects on our wildlands and waters as well as to our health, our businesses, investments, coastal communities, our kids’ futures.

Obama’s successor, though, has ignored that cold, hard fact. Instead, for the benefit of a privileged few, he’s making a last-ditch effort to pump up the dirty energy industry we urgently need to wind down. Even putting aside threats to our heritage lands and waters, that’s a terrible idea. We can’t avert the harms of climate change if oil-producing nations flood the market with carbon-polluting energy in pursuit of market share. We have to ramp down production of fossil fuels in tandem with reducing demand for them, so they don’t outcompete the clean fuels and efficiency technologies the world needs to adopt as fast as possible. Obama’s offshore drilling ban stands as the first major example of a national government foregoing development of its oil reserves in part to help usher in vital change to secure our future.

President Trump didn’t just ignore the facts. He also got the law wrong. Last spring, he issued a sweeping executive order aimed at opening virtually all our outer continental shelf to the oil industry. Part of that breathtaking threat to the public interest was the President’s illegal attempt to revoke the offshore drilling ban in the Arctic and Atlantic.

But now he will answer for that in court. The law empowers presidents to remove ocean areas from all future oil and gas leasing. It’s a law with one and only one purpose: protection. It doesn’t confer authority to strip protection. And under our Constitution, without such statutory authority, a President is powerless to undo protections created through congressional grants. (That’s also why revoking or downsizing national monuments is illegal.)

Conservationists and an Alaska Native group promptly sued to enforce the law. But Trump’s lawyers and the oil industry raised a barrage of excuses, arguing that the court should not hear the case at all. Regardless of what the law did or didn’t allow the President to do, they argued, no one could sue the President. He enjoys “sovereign immunity.” Even if some challenge were theoretically possible, these groups couldn’t sue, or couldn’t sue now, or in this court. Or the court couldn’t grant relief. In short, the President’s team argued everything but the kitchen sink.

The judge wasn’t buying. She systematically debunked all of those arguments. Presidents can be sued and held accountable, she ruled, for exceeding their constitutional authority. By groups like these, at times like this, in courts like hers. Long story short: the President cannot just blow through the law with impunity, in a move that would wreck treasured ocean waters, hasten climate change, and impoverish future generations.

Now, with the kitchen sink behind us, we’ll get to the truth of the matter in federal court. 

So, not so fast, Mr. President. Ours is still a Nation of Laws.

About the Authors

Niel Lawrence

Alaska Director and Senior Attorney, Land & Wildlife Program

Join Us

When you sign up you'll become a member of NRDC's Activist Network. We will keep you informed with the latest alerts and progress reports.