Legal quagmire of US offshore oil & gas drilling: Trump’s ban reversal vow clashes with ‘uphill battle’ pledges

Since time is running out for the Biden-Harris administration and the green agenda it has been pushing forward for the sake of climate change mitigation, President Joe Biden has played his climate action trump card to tie the incoming administration’s hands on drilling by imposing an offshore drilling ban over a large chunk of America’s waters. In response to the move, U.S. President-elect Donald Trump has vowed to undo the offshore drilling ban, sparking a backlash from climate activists, who threaten to take the new Trump administration to court if it attempts to unravel these ocean protections.

Main takeaways:

• Ban imposed in areas with ‘limited’ hydrocarbons
• Undoing offshore drilling ban: Piece of cake or Herculean task?
• Legal action threats loom on the oil & gas horizon

As the final two-week countdown to Trump’s inauguration began, Biden took a harder stance on offshore drilling by putting a ban in place on January 6 across the East and West coasts, the eastern Gulf of Mexico, and Alaska’s Northern Bering Sea to protect 625 million acres of federal waters from oil and gas drilling activities and its repercussions such as oil spills. The ban does not cover the western Gulf of Mexico, where most of the offshore oil extraction takes place.

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Rep. Frank Pallone (D-NJ-06) underlined in his statement: “President Biden’s action ensures that our coasts are permanently off-limits to ‘drill baby, drill’ exploitation. This is a commonsense win for everyone who relies on clean, thriving oceans. Protecting our coastal waters from oil drilling safeguards our fishing and tourism economy and critically-endangered North Atlantic right whales.

“By taking this bold move, President Biden is showing the world that the United States can lead in combating the climate and wildlife extinction crises. This decision prioritizes clean, safe energy over the outdated and dangerous practices of fossil fuel extraction. It reflects the hard work and values of coastal communities like ours that have never stopped fighting for a better, cleaner future.”

The White House justified the ban by claiming that Biden made the move after determining the environmental and economic risks and harms from drilling activities in these areas outweigh their “limited” fossil fuel resource potential. In addition, it highlighted that the U.S. President conserved more acreage than any other president in U.S. history.

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Drew Caputo, Vice President of Litigation for Lands, Wildlife, and Oceans at Earthjustice, underscored: “These protective policies will ensure safer conditions and more room for prosperity for millions of people living along American coasts, for thousands of businesses that rely on undisturbed oceans, and for vulnerable wildlife.

“Our work ahead is clear: we’ll continue the fight to ensure that Gulf communities in Texas, Louisiana, Mississippi, and Alabamacan alsoincreasingly live without the threat from offshore drilling on their front doorstep.”

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The protected Atlantic and Pacific coasts areas encompass 334 million acres in the Atlantic Ocean from Canada to Florida down to the Eastern Gulf; 250 million acres off the West Coast in the Pacific Ocean; and 44 million acres of water on Alaska’s western coast, alongside over 8 million acres of ultra-deepwater in the Central and Eastern Gulf of Mexico, said to have been affected by the 2010 Deepwater Horizon disaster. This oil spill from the BP-operated asset reportedly came with a price tag of $17.2 billion.

Martha Collins, Healthy Gulf Executive Director, pointed out: “We are grateful President Biden has taken action to protect the eastern Gulf of Mexico, preserving this vital region from the harms of drilling. This decision reflects the strong opposition of Floridians and others to industrializing and polluting our waters. Still, much remains to be done to shield the entire Gulf from offshore drilling and bring about a just transition to clean energy.”

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Don Boesch, Ocean Scientist and UMCES President Emeritus, stressed: “As I expected, the ban would not affect oil leasing in the Central and Western Gulf where essentially all drilling takes place or is likely to take place over next 4 years. Thus, won’t reduce environmental impacts or GHG emissions.”

The ban, invoked under the Outer Continental Shelf Lands Act (OCSLA), which enables U.S. presidents to ban oil and gas development in certain federal waters, has no expiration date. Since 1973, eight American presidents have used the OCSLA card, which is 70 years old, to withdraw certain areas in federal waters, including Trump, Obama, and George W. Bush.

Ben Jealous, Executive Director of Sierra Club, emphasized: “This critical action is a major win for coastal communities, marine wildlife, and our collective future. In using the power of the presidency, the same authority used by his three immediate predecessors, President Biden is acting to safeguard the public health of coastal communities from the dangers of offshore drilling along with the marine wildlife that live in these waters. There will never be a safe way to desecrate our waters. As long as it is allowed to continue, offshore drilling and the pollution it causes will continue to present a threat to coastal communities, economies, and environments.

“We must continue to work to achieve a clean energy transition that ends our reliance on fossil fuels, grows the strong economy it has already built with family-sustaining jobs and preserves our clean water and clean air. The Sierra Club applauds President Biden for his leadership and further cementing his historic legacy of prioritizing our health, our collective future, and public lands and waters.”

The U.S. energy industry records indicate that only 20% of the 12 million offshore acres that oil and gas players are in possession of in the Gulf are currently producing oil and gas, which in terms of the size of the black gold output is seen as the highest amount of oil produced than anywhere else in history.

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Commenting on Bident’s offshore drilling ban, Rep. Jared Huffman (D-CA-02) said in a statement: “Since day one of his administration, President Biden has understood that facing the climate crisis and protecting Americans demands visionary leadership and bold action. I’m grateful for the historic progress this administration has made both today and over the past four years.

“Importantly, today’s action is Trump-proof; the courts have already defended the 12(a) authority against previous attacks. We know the President-elect will do everything in his power to enact his ‘drill baby drill’ agenda, but fortunately for us all, handing our oceans over to Big Oil billionaires will be off the table.”

Environmental activists, climate-protection devoted groups, and non-government organizations, like Earthjustice, point out that the offshore drilling ban mostly covers undeveloped areas, thus, their withdrawal is not anticipated to negatively impact the U.S. energy supply.

Lori Lodes, Executive Director of Climate Power, remarked: “While Americans strongly support protections for our air and water and keeping our public lands pristine, Donald Trump has a record of putting the profits of oil and gas executives ahead of our public health. President Biden has delivered on his promises to protect our public land and water for future generations; Donald Trump should do the same.”

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Dr. Chad Nelsen, CEO of Surfrider Foundation, said: “Offshore drilling is a dirty and damaging practice that harms our environment, communities, and businesses, while worsening climate change. The President’s historic action is a key step towards ending oil and gas drilling in U.S. waters. We call on our federal leaders to take further steps to ensure that all U.S. coasts are protected from this harmful industry.”

Biden’s parting shot that took the form of the offshore oil and gas drilling ban is a bitter pill to swallow for the upcoming Trump administration and the Big Oil lobby, which are ardent supporters of fossil fuels. As a result, Republicans, various oil and gas organizations, and trade associations have urged lawmakers and Congress to swiftly reverse the ban to unleash American energy dominance.

The blame game for the offshore drilling ban mostly revolves around criticism of the left-wing political spectrum, with Karoline Leavitt, Trump’s spokesperson, labeling them as “radical left environmental extremist[s]” while interpreting the ban as “political revenge” on Trump voters to hinder the President-elect’s “drill, baby, drill” mandate, which represents his Golden Age of America vision for the energy sector.

For his part, Trump, who has already promised to repeal Biden’s Inflation Reduction Act (IRA), representing the largest climate bill in U.S. history, and other climate policies, vowed: “President Biden’s actions yesterday on offshore drilling, banning offshore drilling will not stand. I will reverse it immediately.

“It will be done immediately, and we will drill, baby drill and we are going to be drilling in a lot of other locations and the energy costs are going to come way down. They will be brought down to a very low level and that is going to bring everything else down.”

Energy experts and analysts agree that a full reversal of the IRA is not likely to be in store, but tweaking non-finalized tax credit provisions that are still ongoing may be on the cards. During a press conference at Mar-a-Lago, Trump stated that Biden’s offshore drilling ban would cost the U.S. at least $50 trillion, without explaining how he calculated such a high sum, as there is no oil and gas drilling in the withdrawn areas.

After contemplating the size of the offshore acreage covered by the ban, Trump said: “It feels like the whole ocean. Nobody else does that. I’m going to have it revoke on Day One.” The U.S. President-elect is adamant that America is rich in “oil and gas at a level that nobody else has and we are going to take advantage of it. It is really our greatest economic asset.”

However, things are not as simple as they may seem, since lawmakers and connoisseurs of the U.S. policies and rules appear to be certain that the reversal of the ban will not go as smoothly as some may think because the Outer Continental Shelf Lands Act does not give presidents the legal authority to overturn prior bans, only to set new ones.

This view is based on the interpretation of the 2019 court ruling related to a similar attempt Trump’s previous administration undertook to overturn and invalidate an Obama-era ban related to almost all of the Arctic Ocean and parts of the Atlantic. A federal judge blocked the move, concluding in the ruling that the reversal of Obama’s offshore drilling restrictions was under the jurisdiction of Congress.

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Therefore, only Congress can do something about the offshore drilling ban. Currently, Republicans hold the majority in Congress but the proposal to undo the ban may run into opposition from coastal lawmakers who do not want to see further drilling off their home states’ shores while divisions within the party itself could derail such an attempt further.

In light of this, the upcoming U.S. President may run into obstacles that will make it hard to accomplish a swift withdrawal of the offshore drilling ban, as such a reversal is likely to require an act of Congress. Despite the potential pitfalls along the way, Trump seems determined to continue with his plans and even take the matter to court if necessary.

The Republican leader is keen on bringing his vision of American “energy dominance” to life around the world while bolstering domestic oil and gas drilling and moving away from the Biden administration’s fixation on clean energy and focus on climate change, which Trump has often referred to as a ‘hoax.’

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Ben Sheppard, PBPA President, noted: “With Biden out the door he is attempting to shut that door on oil and gas operations across the United States. While the ban on offshore drilling is not a direct attack on the Permian Basin oil and gas industry, it is consistent with the anti-oil and gas actions that we have seen from this administration from the outset. Those actions, we believe, are part of the reason why the voters sent him packing.

“A robust American energy sector must allow for the development of all natural resources that are economic in order to create jobs, promote affordable, abundant domestic energy and assist in providing fuel to homes in this winter season. The action is unfortunate and short-sighted. We support President-elect Trump’s and Congressman Pfluger’s efforts to increase energy production from every source and viable location in the United States for the betterment of our nation and our partners around the world.”

While referring to the ban as being “patently political,” Erik Milito, President of National Ocean Industries Association (NOIA), elaborated: “With global demand continuing to rise, there’s always uncertainty about where the supply is going to continue to come from. You don’t want to take options off the table where it could bolster our economic and national security.

“It is about making sure we have a well thought-out, long term energy policy that gives us the flexibility to adjust when the demand scenario requires it. The ban would not affect the offshore wind industry, which the Biden administration has strongly supported.”

Analysts dismiss the possibility of Republicans undoing the ban with the Congressional Review Act, as its powers enable lawmakers to nullify federal agencies’ administrative actions, but one option to tackle the ban is still on the table. This refers to a budget reconciliation process, which gives Republicans the ability to pass legislation with a majority vote.

Rep. Bruce Westerman (R-Arkansas), Chairman of the House Natural Resources Committee, said: “While the federal deficit grows, President Biden’s decision to lock away 625 million acres of future energy potential undermines one of our nation’s greatest revenue streams — energy receipts, second only to income taxes. In the 119th Congress, we will use every tool, including reconciliation, to restore and unleash these revenues.”

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Milito added: “The U.S. needs a national energy policy that promotes our economic, energy, and national security interests. This decision by Biden does none of the above. The U.S. offshore shines as one of the best regions globally to secure the energy that fuels our economy and supports our allies. Otherwise the world relies more on Russia and Iran for its energy, where the environmental standards are weaker and the emissions are higher.”

Moreover, Trump plans to step up oil and gas developments in the Arctic but has expressed no interest in continuing to boost the offshore wind sector’s growth as Biden has. On the contrary, the U.S. President-elect has never been a lover of the wind industry regardless of its location, which he confirmed when he disclosed his intention to block new wind projects by saying: “We are going to try and have a policy where no windmills are being built.”

Congressman August Pfluger, Republican representing Permian Basin in the 11th Congressional District in Washington, D.C. remarked: “In a last-ditch effort to shut down the American energy industry President Biden banned almost all new U.S. offshore drilling projects. This decision will eliminate good-paying jobs for energy workers, move production overseas and threaten the funding of coastal revitalization projects. As the world grows hungry for more energy, we cannot produce less of it. Republicans in Congress will work with President Trump on Day One to unleash American energy production.”

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While criticizing the Biden administration’s spending on climate and clean energy technologies, Trump outlined: “They are giving out trillions of dollars in nonsense and Green New Deal crap that is not worth a damn thing,” and also said how the administration was “putting windmills all over the place.”

The Republican leader did not stop there, as he also stated: “It is so sad when you fly over the country and you see all these horrible-looking structures, half of them are closed down, rusted and rotted. Their life is over. You know, they last a very limited period of time, and then everybody just leaves them. They are just destroying the beauty of our country. It’s hard to believe environmentalists like windmills.”

Earthjustice, which filed over 200 cases in response to the previous Trump administration’s policies and won 85% of the decisions, emphasized that future presidents cannot revoke bans on offshore oil drilling under OCSLA. As Trump tried to undo Obama-era bans on offshore oil drilling during his first term, the nonprofit public interest environmental law organization challenged the move in court.

After arguing that the president had exceeded his executive authority, Earthjustice won the case, and the Ninth Circuit Court of Appeals affirmed that these areas of the Arctic and Atlantic oceans are completely off-limits for oil and gas leasing.

“If Trump tries to undo the new offshore drilling ban, he will face an uphill battle,” vowed Earthjustice while explaining: “Whenever and wherever the first Trump administration threatened our air, water, precious habitats, and climate, Earthjustice attorneys took them to court. We prevailed 85% of the time. We’re ready to do it again.”

While many continue to urge Congress and the incoming Trump administration to make use of all available tools at its disposal to overturn the ban, those like Earthjustice promise to fight back, with precedent on its side to preserve its climate future.

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Anna-Marie Laura, Senior Director of Climate Policy at Ocean Conservancy, noted: “We are one step closer to securing a clean ocean energy future and we thank President Biden for taking this critical action to protect areas of our ocean from oil and gas drilling and exploration. Oil and gas development has wreaked havoc on our ocean through daily leaks, massive spills and extreme air and water pollution.

“We must, and can, end offshore oil and gas production and move toward responsible, renewable energy sources – like offshore wind – to protect our ocean, while remaining aligned with our goals for American energy security and independence.” 

Meanwhile, Hugh Daigle, Associate Professor at the Petroleum and Geosystems Engineering Department of UT Austin, points out that Biden’s offshore drilling ban is a political move, and reversing it would also be the same, which would require support from Congress as well.

Many experts and analysts of the global energy supply and demand dynamics are adamant that an all-of-the-above energy strategy is required to power the world for the time being. This means that oil, gas, and LNG have a place alongside renewables and other clean and low-emission sources in the energy mix.

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