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Federal Judge Halts Trump Effort to Open Arctic Waters for Drilling (1)

March 30, 2019, 3:07 PMUpdated: March 31, 2019, 3:41 PM

A federal judge in Alaska struck down an executive order from President Donald Trump that had opened Arctic waters and deep canyon shelves in the Atlantic to oil and gas activity.

The March 29 decision by U.S. District Judge Sharon Gleason restores Obama-era protections for the Chuckchi and Beaufort seas in the Arctic Ocean, as well as waters in the Atlantic. It covers a vast expanse of nearly 130 million acres of federal waters.

“It’s a big decision because it’s the court telling the president that he’s overstepping his authority,” Erik Grafe, an Anchorage-based attorney with Earthjustice who argued the case on behalf of 10 plaintiffs, told Bloomberg Environment.

The ruling halts six near-term lease sales off the coast of Alaska, with some going out to bid later this year, Grafe said.

“This decision closes 98 percent of the Arctic Ocean to leasing, so it throws a wrench in those plans,” he said.

Environmentalists have held that development exposes the Arctic Ocean to too much risk, while oil and gas interests have argued it’s too oil-rich to let sit idle.

Outer Continental Shelf Lands Act

During oral arguments in November in U.S. District Court for the District of Alaska, Steven Rosenbaum, a lawyer for intervenor American Petroleum Institute, told the court federal studies show 9.25 billion barrels of technically and economically producible oil could be submerged below the the Chuckchi Sea, with another 6 billion barrels available in the Beaufort Sea.

The case centered on a section of the Outer Continental Shelf Lands Act that gives the president power, with congressional approval, to bring submerged lands into protection, through a process known as “withdrawals.”

Grafe’s clients argued Trump overstepped his constitutional authority when he reversed three orders by President Barack Obama. Judge Gleason agreed.

In her order she called Section 5 of Executive Order 13795 “unlawful and invalid,” and ruled that “the previous three withdrawals issued on January 27, 2015 and December 20, 2016 will remain in full force and effect unless and until revoked by Congress.”

The Outer Continental Shelf Lands Act grants the president the authority to protect, but doesn’t grant the authority to undo protections, Grafe argued. “That’s because the Constitution in the Property Clause vests Congress with the authority to manage public lands,” he said.

Because Congress remained silent on whether a president may undo protections, Gleason found that Congress had not delegated its authority for such reversals.

Alaska Backed Trump Efforts

During the case, the Justice Department, the American Petroleum Institute and the state of Alaska attempted to persuade Gleason that preventing a president from returning lands previously withdrawn for protection back into play was an overreaching restriction.

“I strongly disagree with this ruling, which asserts that past presidents can bind their successors and only Congress can overturn those decisions,” Sen. Lisa Murkowski, (R-Alaska) said early March 31 in a statement. “That is not the correct interpretation of the Outer Continental Shelf Lands Act and could have catastrophic impacts for offshore development, which creates jobs, generates revenues, and strengthens our national security. I expect this decision to be appealed and ultimately overturned—if not by the Ninth Circuit, then by the Supreme Court.”

A call to Alaska governor Michael Dunleavy’s staff for comment on the decision was not immediately returned.

To contact the reporter: Jill Burke in Anchorage at correspondents@bloomberglaw.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com