How-To Guide: Permanent Protection for U.S. Marine Waters

President Obama has made excellent use of a time-honored tool for protecting vulnerable public seas from development. Like his predecessors dating back to Dwight D. Eisenhower, he has barred oil and gas leasing and all mineral extraction in specially sensitive marine waters owned by the American public.

The administration’s wise move preserves these areas for the good of all of us. It ensures our kids will enjoy them as we do, avoids the devastating risks of a major oil spill, and helps steer American investment away from fossil fuels and into renewables.

I’ve heard concerns, though, that what one President can do, another can undo. So maybe the incoming administration, hostile to conservation and hell bent for leather to promote dirty energy, will roll back some or all of the signature achievements—of Obama and even perhaps earlier executives.

That would very likely be a waste of time. Ordinary executive orders can often be reversed without much ado. Typically, they amount to directives to agencies and other executive branch employees, who work for the President, about how to do their job.

This is different. The Constitution assigns authority over federal lands and waters to Congress. Presidents can only control them to the extent Congress delegates that power to them.

Congress can show it wants to delegate authority over offshore leasing in three ways. It can do so explicitly, in the language of the law. It can reveal its intent in the dialogue it engages in when passing a law. Or, if Presidents have long interpreted their delegated authority in a certain way and Congress has never objected, then Congress may be deemed to have acquiesced in that view.

As far as express delegation goes, the law allowing presidential withdrawal of ocean areas says nothing about undoing such protections, about making withdrawn waters subject once again to offshore leasing. The law reads: “The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” “Disposition” refers to transfer of an interest in property. So it clearly gives the President the power to “withdraw” areas, but says nothing about this or any future executive returning these areas to offshore leasing.

Congress actually debated whether to give Presidents withdrawal authority—first omitting it from the underlying bill in the early 1950s, and then putting it back in. But nothing in the history of the law’s passage indicates that Congress ever intended to empower Presidents to overrule prior withdrawals.

And as for whether Congress has let executives have this power—knowingly acquiesced—there’s simply no there there. No President has ever tried to undo a permanent withdrawal of an ocean area from leasing eligibility. So there is not even one example, let alone a long history of them, for Congress to agree to by acquiescence.

Given this backdrop, Presidents can’t reverse their predecessors’ decisions to bar drilling in parts of the outer continental shelf. Congress has total authority in this area and has not conveyed that power to Presidents.

For the more technically inclined, here is a briefer explaining this from a legal perspective.

This blog and the linked briefer provide general information, not legal advice. If you need legal help, please consult a lawyer in your state.