Court tosses out fight over Arctic offshore leasing

A federal court ruled Apr. 13 that an executive order by President Biden has made a legal fight over Arctic offshore oil and gas leasing moot.

The US Court of Appeals for the Ninth Circuit decided that because Biden has reinstated barriers to leasing for parts of the Beaufort and Chukchi seas north of Alaska, there is no justification for continuing an appeal of a district court ruling in the matter.

President Obama used his authority under the Outer Continental Shelf Lands Act (OCSLA) in December 2016 to withdraw most of the Beaufort Sea and all of the Chukchi Sea from federal leasing activity. On the same day, he used his OCSLA authority to withdraw 26 canyon areas off the Atlantic Coast for leasing.

President Trump issued an executive order in 2017 terminating Obama’s withdrawal decisions for the Beaufort and Chukchi seas and the 26 Atlantic areas. On his first day in office, Jan. 20, Biden issued Executive Order 13990 to countermand the Trump order.

An environmental activist group, the League of Conservation Voters, challenged Trump’s executive order and won at the US district court level, after which the Trump administration, joined by Alaska and the American Petroleum Institute, appealed.

“Because the terms of the challenged executive order are no longer in effect, the relevant areas of the OCS in the Chukchi Sea, Beaufort Sea, and Atlantic Ocean will be withdrawn from exploration and development activities regardless of the outcome of these appeals,” the appellate court ruled.

“Accordingly, we vacate the judgment of the district court and remand with instructions to dismiss the case without prejudice,” the court said.

Unresolved legal question

The legal issue, before Biden’s executive order, hinged on the fact that OCSLA gives the president authority to withdraw specified areas in the federal offshore from leasing, but does not explicitly say a subsequent president can terminate that withdrawal. This time around, the courts will not resolve that issue.

In the Arctic, all federal waters of the Chukchi Sea and most federal waters of the Beaufort Sea will remain off limits for oil and gas leasing. Some near-shore parts of the Beaufort Sea remain available for leasing. A handful of Beaufort Sea fields have been producing oil for many years from state and federal waters.

The 26 canyon areas in the federal Atlantic offshore were included in the legal fight because Trump included them in his 2017 order, although leasing in those areas was only a theoretical possibility, not a definite plan.

Trump’s first Interior secretary, Ryan Zinke, proposed opening up most Atlantic, Pacific, and Arctic federal waters to oil and gas leasing, but that tentative proposal was a debate-starting device rather than a determination to press ahead. Zinke spent much time in 2018 assuring members of Congress that offshore areas near their states were unlikely to be included in the final version of a 5-year offshore leasing plan.