Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a different federal law, the Antiquities Act of 1906 (Antiquities Act), to create marine national monuments, providing general protection for areas of rich biodiversity, scientific interest, and cultural heritage. Interestingly, both OCSLA and the Antiquities Act achieve the same end results: offshore energy production is prohibited and the marine environment is protected. The crucial distinction between the two laws, though, is the ability to provide permanent protection. A close study of these laws reveals that only one indeed provides the intended lasting protection that presidents have sought: the Antiquities Act.
This Note probes the theory of executive authority to unilaterally remove America’s submerged lands from leasing disposition. Specifically, it centers on President Barack Obama’s twin December 2017 offshore withdrawals in the Atlantic and Arctic Oceans. President Obama utilized OCSLA to ban offshore energy production, but he framed the withdrawals as a way to permanently protect each area’s unique marine biodiversity, scientific value, and cultural significance to indigenous inhabitants. This Note concludes that a president seeking such lasting protection must use the Antiquities Act in lieu of OCSLA. The Note examines the relevant statutory histories, judicial inquiries, and precedential usage of these laws and argues that OCSLA’s protection falls incredibly short. This Note is particularly relevant given the Trump administration’s effort to roll back the Obama administration’s bans on offshore energy production. President Donald Trump’s recent executive actions will surely test the conclusions of this Note.
Payton A. Wells, Choose Your Laws Carefully: Executive Authority to Unilaterally Withdraw the United States Outer Continental Shelf from Leasing Disposition, 67 Duke L.J. 863 (2018)
Available at: https://scholarship.law.duke.edu/dlj/vol67/iss4/4