Biden Continues to Attack Oil and Gas on the Way Out. Will Trump Be Able to Reverse It?

Guest Post from the Institute for Energy Research.

[Editor’s Note: The following article was written in anticipation of the shameful action Biden took yesterday to ban the development of millions of acres of oil and gas.]

President Joe Biden is reportedly preparing an executive order to permanently ban new oil and natural gas leasing in parts of the outer continental shelf using a 72-year-old law that would exclude areas from any exploration or possible development. In the 1953 Outer Continental Shelf Lands Act (OCSLA), which governs offshore oil and gas development, Congress included a provision giving presidents wide discretion to exclude specific waters from leasing permanently.

According to supporters of the action, it did not explicitly grant the authority for a future president to undo those designations. Biden has already taken actions against offshore oil and gas drilling, producing a 5-year lease plan with only three scheduled lease sales—the fewest in history—and even considering the option of no lease sales. The three sales announced are the minimum required by law. Biden has been leasing fewer federal acres for oil and gas than any president since World War II, before the OCSLA was enacted.

Biden’s ban is expected to include waters anti-fossil fuel groups claim are critical to coastal resilience across 625 million acres of U.S. coastal territory, ruling out the sale of drilling rights in Atlantic and Pacific waters and the eastern Gulf of Mexico. Congressional Democrats and many environmental groups urged Biden to make a sweeping declaration. Still, most recent talks focused on parts of the Pacific Ocean near California and the eastern Gulf of Mexico waters by Florida.

The declaration is not expected to affect drilling and other activity on existing leases as those would represent takings requiring compensation. The ban will not have an immediate effect on U.S. production since it typically takes 6-8 years for these offshore projects to come online. It will, however, deny Americans access to future energy supplies and the huge revenues they generate for the treasury while forcing U.S. explorers to foreign shores where environmental and safety standards do not meet those of the United States.

President-elect Donald Trump is expected to immediately reverse the protections as he has indicated his energy agenda would involve more oil and gas drilling alongside new leasing. However, during his first term, Trump sought to revoke former President Obama’s order to lock up more than 125 million acres of the Arctic and Atlantic Oceans. However, he was rejected by a federal district court in 2019. The judge ruled only Congress would be able to revoke the ban. Trump has used the same statute in 2020 to block oil and gas leasing in waters near Florida and along the Southeast United States.

Other presidents have also used this statute to protect critical marine areas, including walrus feeding grounds, U.S. Arctic waters, and marine ecosystems. In 1960, President Dwight Eisenhower established the Key Largo Coral Reef Preserve, which remains under protection today. Similarly, President George H.W. Bush invoked the same provision to block oil leasing off the West Coast, in the Northeast, and around southern Florida for a period of ten years.

Despite decades of heavy investments and mandates promoting renewable energy, the world still derives about 80% of its energy from fossil fuels. The United States, rich in oil and gas resources, is a leader in producing these energy sources with higher environmental standards than many other nations. Nearly a century after its first exploration, the Gulf of Mexico remains a vital source of U.S. oil and gas, supplying roughly 14% of domestic production—placing it among the world’s top 12 oil-producing regions.

Conclusion

President Biden plans to permanently ban new oil and gas drilling in large sections of the Atlantic and Pacific oceans and other federal waters through executive action using a 72-year-old law.

President-elect Donald Trump will reverse the ban, but similar actions by his predecessor during his first term were blocked by a federal district court. Biden has been actively blocking more U.S. lands and waters from energy development than any other president, despite legislation that indicates that U.S. land is to be used for multiple purposes to benefit the country’s citizens.

The Biden administration has recently rushed to finalize billions of dollars in funding for clean energy and renewable projects and billions more for green public interest groups with which it is politically aligned.

Furthermore, Biden has issued final guidelines for green tax credits and applied to withdraw 264,000 acres of federal lands in northeastern Nevada’s Ruby Mountainsfrom oil, gas, and geothermal leasing for 20 years.

Considering the enormous amount of land that has been set aside unilaterally by presidents using the 72-year-old OCSLA and little judicial review except a judge stipulating that only Congress can overturn it, the time may be ripe for Congress to consider this as a revenue-raising provision in the upcoming Budget Reconciliation package, which must be accomplished this year.

Also, an appeal could be sought for the judge’s decision since the OCSLA provision anticipated presidential authority to be specific and targeted rather than regional and comprehensive, as was the case for the Obama withdrawals.

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