Obama blocks oil drilling in Arctic, part of Atlantic oceans

This photograph of a polar bear, one of the wildlife species that may benefit from President Barack Obama’s decision, was taken by Terry DeBruhn. Image courtesy U.S. Fish & Wildlife Service.

Relying on a statute from the 1950s, President Barack Obama moved Tuesday to permanently shut off the Arctic and a significant portion of the Atlantic oceans along the nation’s coasts to oil and gas exploration.

The White House announced that Obama invoked authority granted by the Outer Continental Shelf Lands Act to withdraw the Chukchi Sea Planning Area, most of the Beaufort Sea Planning Area, and 5,990 square miles of canyons in the Atlantic Ocean between New England and the Chesapeake Bay from fossil fuel activities.

Obama said in a statement that his decision was motivated by a desire to “protect a sensitive and unique ecosystem that is unlike any other region on earth.”

“They reflect the scientific assessment that, even with the high safety standards that both our countries have put in place, the risks of an oil spill in this region are significant and our ability to clean up from a spill in the region’s harsh conditions is limited,” Obama explained. “By contrast, it would take decades to fully develop the production infrastructure necessary for any large-scale oil and gas leasing production in the region – at a time when we need to continue to move decisively away from fossil fuels.”

Map courtesy U.S. Bureau of Ocean Energy Management

The OCLA was enacted in 1953. Section 12(a) of OCLA, 43 U.S.C. § 1341(a), provides that “[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

The statute imposes no constraints on the President’s authority to order such a withdrawal. In that way it is similar to the American Antiquities Act of 1906, which gives Presidents the power to declare national monuments.

In both cases, Congress delegated its power over federal property to the President, but the grant could well be interpreted by a federal court as a “one-way ratchet” that does not permit a later President to reverse a predecessor’s decision to withdraw OCSLA areas from energy exploration activities.

The reach of section 12(a) has not been tested in litigation.

John D. Leshy, a professor of law at Hastings College of the Law in San Francisco and a former solicitor of the Department of Interior, told Atlantic Monthly that he believes Obama’s decision should be upheld in federal court if it is challenged by fossil fuel advocates.

“I think it was quite a realistic thing that Obama did, and it should be upheld—but who knows,” he said.

Congress could, of course, pass a bill reversing Obama’s move, but that legislation would have to clear a likely filibuster by U.S. Senate Democrats on the way to Trump’s desk.

Map courtesy U.S. Bureau of Ocean Energy Management

Presidents also have authority under OCLA to craft five-year exploration plans. Obama has used that tool, too, as a way of reducing the American fossil fuel footprint in sensitive marine areas.

On Nov. 18 the administration issued the final five-year OCLA lease program that covers the years 2017-2022. It proposes one sale in waters off Alaska, in Cook Inlet, and none in the Atlantic or Pacific Oceans. The 2017-2022 lease program anticipates 10 sales of exploration rights in the Gulf of Mexico.

Canada also undertook action to ban future fossil fuel exploration in the Arctic on Dec. 20. Prime Minister Justin Trudeau announced that his country would impose the prohibition for five years.

“Canada is designating all Arctic Canadian waters as indefinitely off limits to future offshore Arctic oil and gas licensing, to be reviewed every 5 years through a climate and marine science-based life-cycle assessment,” Trudeau said in a joint statement by Canada and the U.S.

No Canadian oil and gas activity in the Arctic has occurred since 2006.

Alaska and other states retain authority to authorize oil drilling in the first three miles of ocean beyond their shores as management of those areas of the continental shelf are entrusted to them and is not subject to federal control.

Obama administration releases revised draft environmental study on Arctic drilling

The federal agency that oversees hydrocarbon exploration in waters off America’s coasts released Friday a new study of the impacts of drilling in the Chukchi sea.

Coming about ten months after a federal appeals court rejected a prior effort by the U.S. Department of Interior’s Bureau of Ocean Energy Management, the draft supplemental environmental impact statement concludes that there is a high likelihood of a large oil spill in the fragile Arctic region if development of exploration leases proceeds.

Environmental advocacy group leaders used the occasion to sharply criticize the Obama administration’s ongoing commitment to consider allowing Royal Dutch Shell PLC and other oil companies to hunt for fossil fuels in the far north.

“Companies are not prepared to operate in unforgiving Arctic waters,” Susan Murray, a senior vice president at Oceana, said in a statement. “There is no proven way to respond to an oil spill in icy conditions and almost no infrastructure from which to launch a response to any kind of accident.”

One significant worry for the environmental community is the impact drilling would have on the region’s wildlife. The Chukchi sea provides habitat for several imperiled species, including the polar bear, walrus, and bowhead whales.

“Whether it will be from an almost inevitable oil spill, or from the unavoidable noises from seismic surveys, vessel and platform stabilization, underwater acoustic communications, seafloor hydrocarbon processing, and re-injection well compressors; we know that oil and gas operations will disrupt the habitat for Arctic marine life which we know so little about – and upon which we may very well depend,” Michael Stocker, Ocean Conservation Research’s director, said.

The U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled in January that a prior environmental impact statement failed to consider all of the possible impacts of drilling in the region.The prior EIS assumed that only about 1 billion barrels of oil would be extracted from beneath the roiling waves in the Chukchi; the new draft EIS considers that production will total about 4.3 billion barrels.

Shell experienced numerous difficulties in a 2012 attempt to prepare for exploration activities, including the grounding of a drilling vessel.

The new EIS will be published in the Federal Register on Nov. 7. A 45-day comment period will occur before BOEM can make a final decision about whether to permit exploration activity to commence in 2015.

The $2.7 billion lease at issue was finalized in Feb. 2008.

Shell again asks Interior to allow Arctic oil drilling

Bowhead whales inhabit the shallow Chukchi Sea. An endangered species, Balaena mysticetus can grow to 40 feet in length and weigh up to 100 tons. Walruses, ringed seals, a variety of whale species, and polar bears also inhabit the Chukchi Sea, as do millions of sea birds of many species. Photo courtesy National Oceanic & Atmospheric Administration, photo by Dave Rugh.

Oil giant Royal Dutch Shell PLC has decided to again seek U.S. government permission to drill for oil in the Arctic.

The company filed an exploration plan with the Department of Interior’s Bureau of Ocean Energy Management on Thursday, according to a report in Financial Times.

An earlier effort to obtain approval for drilling in the fragile Chukchi Sea was blocked by the federal appeals court in San Francisco, which ruled that BOEM’s environmental impact statement on $2 billion worth of leases sold to Shell did not comply with federal law. The decision in Native Village of Point Hope v. Jewell pushed Shell’s nearly decade long effort to extract hydrocarbons from some of the most environmentally sensitive marine areas on Earth back to the drawing boards.

Shell has also experienced a series of machinery disasters in the Arctic, including the grounding of a vessel off the coast of Sitkalidak Island, Alaska in 2012. A Coast Guard report on that incident released last April concluded that “inadequate assessment and management of risks” was a principal cause of it.

Within U.S. terrritorial waters, the federal government owns the sea and seabed beyond 5.6 kilometers past the shoreline. Two statutes that date back to the 1950s – the Submerged Lands Act and the Outer Continental Shelf Lands Act – together authorize the secretary of the interior to lease submerged oil and gas deposits. However, that authority is subject to a variety of constraints imposed by broadly applicable environmental laws, including the National Environmental Policy Act. NEPA requires federal agencies to study the environmental impact of “major federal actions” before moving forward with them.

The drilling rig Kulluk ran aground near Alaska on Dec. 31, 2012. This image shows the distressed vessel on Jan. 1, 2013. Image courtesy Wikimedia.