In issuing its order, the Obama administration cited provision 12(a) of the Outer Continental Shelf Lands Act, which states, "The President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf."
That provision does not explicitly allow future executives to reverse their predecessors' action. The Obama administration essentially made a bet that a judge would determine Trump can't override its effort to permanently withdraw the areas from lease auctions.
As expected, Trump pushed back last Friday, signing an executive order aimed at making available for lease more of the U.S. Outer Continental Shelf, the parts of the ocean and seabed under federal jurisdiction. Among other things, it rescinded Obama's December order.
Now, environmental groups are asking the U.S. District Court of Alaska to prevent Interior Secretary Ryan Zinke and Commerce Secretary Wilbur Ross, also named as defendants in the suit, from executing the part of Trump's order that takes aim at Obama's offshore ban.
"We're aware of the complaint and reviewing it. We have no further comment," a Department of Justice spokesperson told CNBC.
The suit essentially takes the baton from the Obama administration, arguing Trump's order "exceeds his constitutional authority and his statutory authority under OCSLA, and is therefore ... unlawful"
"Until Trump, no president has ever tried to reverse a permanent withdrawal made under OCSLA, which does not authorize such a reversal," the conservation groups said in a statement.
That is technically true, but it also obscures the unprecedented nature of Obama's action. Past presidents, Democrats and Republicans alike, have temporarily removed parts of the Outer Continental Shelf from lease consideration, but the Obama administration was the first to use provision 12(a) in a bid to block drilling in federal waters indefinitely.
This novel interpretation has not been tested in the courts. Wednesday's action by the conservation groups — which includes the League of Conservation Voters, Natural Resources Defense Council and Sierra Club — tees up that test.
Opponents of Obama's ban counter that Trump's authority is likely implicit: By giving the president authority to withdraw blocks of land, the Outer Continental Shelf Lands Act likely allows another executive to put them back on the table.
The Republican-controlled Congress could also change the Outer Continental Shelf Lands Act to give the president explicit authority to override his predecessors' withdrawals.
In response to the lawsuit, the pro-drilling Arctic Energy Center argued there is no precedent for a president to issue a permanent ban. It also claims Obama's action was in conflict with a directive in the law to make the Outer Continental Shelf "available for expeditious and orderly development."
"We believe that President Trump's order is lawful and will play a critical role in catalyzing the creation of a thriving, self-sustaining economy in America's Arctic," center spokesperson Oliver Williams said in a statement.
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