Court Overturns Trump Administration Efforts to Revoke Withdrawal Status for Outer Continental Shelf Lands


On March 29, 2019, the United States District Court for the District of Alaska issued its ruling in a case challenging a presidential executive order which would have reversed withdrawals of Outer Continental Shelf (OCS) lands from oil and gas leasing under the Outer Continental Shelf Lands Act (OCSLA). In League of Conservation Voters v. Trump, plaintiffs challenged an April 2017 executive order issued by President Trump which purported to reverse President Obama’s withdrawals of OCS lands from oil and gas leasing under OCSLA. No. 3:17-cv-00101 (D. Alaska, Mar. 29, 2019). Under Section 12(a) of OCSLA, the president may “from time to time withdraw from disposition any unleased areas of the [OCS].” 43 U.S.C. § 1341(a). Under this authority, in 2015 and 2016 President Obama issued three memoranda and one executive order withdrawing from leasing portions of the OCS in Alaska’s Beaufort and Chukchi seas and canyon areas in the Atlantic; subsequently, in 2017, President Trump issued Executive Order 13795 revoking those withdrawals.

A consortium of environmental nongovernmental organizations, including the League of Conservation Voters (LCV), successfully challenged President Trump’s revocation of the withdrawals. In its decision, the court applied basic principles of statutory construction in interpreting the language of Section 12(a)—by looking at the plain language, context, purpose, structure and legislative history of the OCSLA—to conclude that Section 12(a) permits a president only to withdraw lands from disposition but does not authorize a president to revoke a prior withdrawal. The court noted that “the President is not ‘the exclusive judge’ of determining the OCS lands subject to leasing; that power ultimately is vested in Congress under the Property Clause.” Slip Op. at 16. The court reasoned that while Congress authorized presidential withdrawals under OCSLA, it did not expressly delegate to the president the authority to revoke a withdrawal. As a result, the court vacated the portions of Executive Order 13795 revoking the previous withdrawals and held that the withdrawals issued in 2015 and 2016 will remain “in full force and effect unless and until revoked by Congress.” Slip Op. at 30. 

This decision will impact the Bureau of Ocean and Energy Management’s (BOEM) plans to hold a lease sale later this year in the Beaufort Sea, as well as the Department of the Interior’s (DOI) plans to open much of the OCS to offshore oil and gas development. Indeed, earlier this year, DOI issued a draft of its proposed plan to open more than 90 percent of the OCS to oil and gas development.1 The LCV decision will preclude leasing in the areas withdrawn by President Obama. 

The decision could also have implications beyond the OCSLA context. For example, plaintiffs have presented similar arguments in cases challenging President Trump’s revocation of monument status from portions of Grand Staircase-Escalante National Monument and Bears Ears National Monument. In those two cases, in which the government’s motions to dismiss are pending before the United States District Court for the District of Columbia, plaintiffs have argued that the President’s revocation actions violated the Antiquities Act and the Constitution. Specifically, plaintiffs alleged that because the Antiquities Act grants the president authority to designate national monuments but does not authorize subsequent presidential revocations of any portion of those designations, President Trump’s attempt to revise the previous monument proclamations was unlawful. 

This is the same theory which plaintiffs successfully argued in LCV v. Trump. Although the statutory language of the Antiquities Act and OCSLA differ, the concept of Congress authorizing the president to take specific actions with respect to federal lands but not granting subsequent presidents the authority to reverse those actions, is arguably similar. Indeed, the LCV court specifically recognized the similarity between the Antiquities Act and OCSLA, noting that “[n]either of these laws explicitly granted revocation authority to the President.” Slip Op. at 22. 

Although the LCV opinion will likely be appealed to the Ninth Circuit, it nonetheless places a marker in the sand regarding presidential authority to reverse actions taken by a prior president with respect to Congressionally authorized dispositions of federal land. Whether the decision will play a decisive role in the challenges to the monument revocations remains to be seen, but the immediate impacts to the OCS leasing program are certain.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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