by Kevin Killough
Unlike many of Biden’s anti-fossil fuel actions, the permanent ban on offshore drilling isn’t by way of an executive order, and that may make it more difficult for Trump to simply overturn Biden’s "green" directive.
With only two weeks left in his presidency, President Joe Biden on Monday enacted a ban on oil and gas drilling for 670 million acres of America’s coastline. President-elect Donald Trump immediately vowed to overturn the measure. “It’s ridiculous. I’ll un-ban it immediately. I have the right to un-ban it immediately,” Trump said on Hugh Hewitt’s podcast Monday morning.
The oil and gas industry was quick to condemn Biden's action.
“As is typical of most regimes who are kicked out of office, now that they looted the Treasury, they intend to salt the earth on their way out the door. The same unelected and unaccountable apparatchiks which just shoveled billions of taxpayer dollars to their friends in the waning days of this administration also took action to cost the U.S. government billions in future royalties,” Tim Stewart, president of the U.S. Oil and Gas Association, told Just the News.
Unlike many of Biden’s anti-fossil fuel actions, the permanent ban on offshore drilling isn’t by way of an executive order, and this may make it more difficult for Trump to simply overturn Biden’s ban.
Political purposes
Biden said in a statement Monday that the goal of the ban was to address what he called the “climate crisis.” The ban effectively applies to all of the country's East and West coastlines, the eastern part of the Gulf of Mexico and Alaska's Northern Bering Sea.
“President Biden has determined that the environmental and economic risks and harms that would result from drilling in these areas outweigh their limited fossil fuel resource potential,” a White House announcement stated.
To enact the ban, Biden intends to use Section 12(a) of the 1953 Outer Continental Shelf Lands Act (OCSLA). The OCSLA law grants federal jurisdiction over coastal lands and authorizes the Secretary of the Interior to lease the lands for federal development. Section 12(a) states that the president “may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”
In 2020, hoping to shore up more votes in his unsuccessful 2020 campaign, Trump used the law to block drilling off the coast of Florida, the eastern Gulf of Mexico, Georgia, South Carolina, North Carolina and Virginia. Trump’s moratorium set a time limit of 10 years on his ban, whereas Biden’s ban has no end date.
David Blackmon, an energy analyst who publishes his work on his “Energy Absurdities” Substack, told Just the News that the text of Section 12 concerns national emergencies. “Biden cites none of that in his order, nor did Trump in his order. It was all done for political purposes,” Blackmon said.
Lawfare coming up
A 2018 Congressional Research Service report noted that although presidents have reversed withdrawals in the past, it is not clear whether the law always permits them to do so. In 2017, then-President Trump opened up Alaska's Beaufort and Chukchi seas and some parts of the Atlantic to oil and gas exploration, overturning former President Barack Obama’s ban. Obama had withdrawn the areas using the OCSLA, and Trump attempted to overturn it via executive order. Not surprisingly, the matter ended up in federal court.
A coalition of environmentalists sued the Trump administration, arguing that Trump exceeded his constitutional authority, as well as the authority granted under the OCSLA, which they said doesn’t authorize presidents to re-open lands that have been withdrawn under the rule. In 2019, U.S. District Court for the District of Alaska struck down Trump’s order. In the ruling, the court agreed that the law is ambiguous, but it does not expressly grant the power to revoke prior withdrawals. After Biden overturned Trump’s executive order, the Ninth Circuit rendered the case moot, effectively ending appeals.
Blackmon said that Trump can indeed overturn Biden’s permanent ban, but it will attract a swarm of litigants. This time, the issue may have to go all the way to the Supreme Court to get resolved, but that challenge could outlast the second Trump administration and again become moot before it’s resolved.
“It’s all a lawfare strategy, basically. Environmental groups will file lawsuits and tie it up in the courts for the duration of the Trump administration. Whether Trump and his people can come up with any effective response to that, I don't know. But that's the game that's being played here,” Blackmon said.
Stewart with the U.S. Oil and Gas Association said the industry may try to litigate certain lease areas that are impacted by the ban and have the courts make the determination if withdrawals can be rescinded.
Congressional action could also be another avenue to overturn Biden’s ban. Sen. Mike Lee, R-Utah, who now chairs the Senate Energy and Natural Resources Committee, told The Washington Post that he and other Senate Republicans will “push back using every tool at our disposal.”
Ultimate impacts
Over the past four years, the oil and gas industry has been the target of numerous actions by Biden and the Democrats, which have made it harder to produce a product the world’s population willingly consumes in ever increasing quantities every year. The global demand for oil and gas kept prices high enough that the industry remained profitable and produced record high amounts of fossil fuels despite the difficult regulatory environment. Experts say that that production has seen its peak and may even decline as a result of global markets next year.
Offshore production, like all production on public lands, operates under the restrictive federal government, and as such, it’s not seen the increases that the overall industry has seen, much of which operates on private and state lands. Biden’s ban on offshore drilling, for however long it may last, won’t likely have much of an impact.
Robert Rapier, a chemical engineer and editor in chief of Shale Magazine, told Just the News that it was largely symbolic, and could, ironically, benefit the Trump administration.
“Trump will immediately undo this. It will be undone before it could have had a realistic impact on production. But it does give Trump some cover if oil production does happen to dip this year. He can always say it's because of Biden's actions before he left office,” Rapier said.
Stewart said that the ban impacts an area that is unprecedented in size and scope, which is part of the “performance art” of the maneuver. Many of the areas don’t have a large amount of oil that can be developed economically with current technology. However, Stewart said, that could change.
“Keep in mind, 25 years ago we didn’t know how to unlock the vast oil shale resources either. We may think that some of these areas do not have economically viable resources, but technology changes so rapidly that we are likely wrong,” Stewart said.
Blackmon said the real impacts will be felt years down the road. Unlike an onshore shale fracking operation, offshore drilling takes seven to 10 years under the best circumstances for planning and permitting. That’s on top of billions of dollars in upfront investments for the infrastructure. Should the resources that are there be needed at some point in the future, there will be a long lead time before production can happen.
“It’s not something you can just turn on with a switch,” he said.
One impact of Biden’s ban is for certain — the symbolic nature of the action coming at the end of years of anti-fossil fuel rhetoric and regulations has made the industry all the more eager for Trump’s return.
“When it comes to energy policy, President Trump has a heavy lift ahead to repair the lasting damage that has been done by the most forgettable president in modern times,” Stewart said.
Kevin Killough
Source: https://justthenews.com/politics-policy/energy/trump-vows-un-ban-bidens-ridiculous-ban-offshore-oil-drilling-which-may
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