Sue, Baby, Sue: Trump Plan To 'Un-Ban' The Biden Drilling Order Could Prove Difficult

Authored by Jonathan Turley,

After a presidential campaign where both President Joe Biden and Vice President Kamala Harris pushed back on claims that they were trying to shut down much of the fossil fuel industry, Biden waited until the final days of his administration to ban oil and gas drilling over 670 million acres of America’s coastline.

President-elect Donald Trump responded that “It’s ridiculous.I’ll un-ban it immediately. I have the right to un-ban it immediately.”

It will likely be more difficult than a simple “un-ban” order.

Environmental groups will likely push a “sue, baby, sue” campaign to counter Trump’s “drill, baby, drill.”

In his statement, Biden justified the move to counter the “climate crisis.”

A White House announcement stated that “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.”

The question is whether the order can handcuff Trump in pursuing one of the main parts of his campaign platform to unleash America’s fossil fuel resources.

This is all familiar ground.

Biden acted under Section 12(a) of the 1953 Outer Continental Shelf Lands Act (OCSLA), which states that the president “may, from time to time, withdraw from disposition any of the unleased lands of the Outer Continental Shelf.”

As noted in a Congressional Research Service report there is an ongoing debate over whether presidents can reverse the withdrawals of prior presidents. Trump faced that question in 2017 when he sought to overturn a ban by President Barack Obama in order to open up Alaska’s Beaufort and Chukchi seas and some parts of the Atlantic to oil and gas exploration. Two years later, a judge on the U.S. District Court for the District of Alaska struck down Trump’s order. While acknowledging that the law is ambiguous, it did not find express authority for such reversals.

Litigation ran out the clock and Biden later overturned Trump’s executive order.

So, there are grounds to assert this authority of reversal, but it will take years in court.

The alternative and preferred route would be Congress.

This is an issue that should ultimately rest with Congress. This ambiguous law is unfortunately common in poorly crafted provisions giving presidents sweeping authority.

Sen. Mike Lee (R., Utah), chair of the Senate Energy and Natural Resources Committee, has already pledged to “push back using every tool at our disposal.”