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Trump may have difficulties reversing Obama's Arctic offshore drilling ban

U.S. President Donald Trump may face challenges if he tries to unilaterally reverse former president Barack Obama's ban on offshore Arctic drilling says a former Clinton administration official.

Drilling moratorium is based on old law allowing presidents to preserve offshore coast

President Donald Trump shows his signature on a presidential memorandum on the Keystone XL pipeline on Tuesday. (Evan Vucci/Associated Press)

With a signature, U.S President Donald Trump reversed a key plank in former President Barack Obama's climate change policy — signing a presidential memo that paves the way for the revival of Keystone XL pipeline project. 

But it's going to be difficult for him to do the same with Obama's moratorium on offshore drilling in the Arctic, according to a former lawyer with the Bill Clinton administration.

"Obama had clear statutory authority to do what he did," John Leshy said in an interview with CBC News.

"The question for President Trump is whether he can reverse that order. The answer's not clear because it's never been tried."

Leshy is a professor emeritus in real property law at the University of California Hastings and served as the solicitor general in the Department of the Interior during the Bill Clinton administration.  

Obama signed the executive order indefinitely prohibiting drilling in the bulk of U.S-owned waters in the Arctic Ocean in December. Then came similar order from Prime Minister Justin Trudeau banning the issuance of any new offshore leases in the Canadian part of the Arctic Ocean for five years.

Critics saw Barack Obama's push to ban drilling in the Arctic as a last-ditch effort to shore up his legacy on climate change. (Yuri Gripas/Reuters)

That ban was made possible by a provision in a 1953 law that states "the president of the United States may, from time to time, withdraw from disposition any of the unleased lands of the Continental Shelf."

The law has been used before, Leshy said, but most presidents impose time limits that have been tinkered with though never reversed entirely. The few instances that were set without any limits have not been challenged yet.

"Since it's never been tried, we don't know whether the president has the power [to reverse] that decision," Leshy said.

"Ultimately, I suppose the federal courts will decide whether he does."

U.S President Donald Trump could encounter roadblocks reversing former president Barack Obama's ban on drilling in the Arctic Ocean. But it remains to be seen whether the industry is eager to actively drill there. (Daniella Beccaria/Associated Press)
 

The U.S Congress does have the power to overturn the Arctic drilling ban, Leshy said. The question is whether the president can do it on his own.   

"If Trump tries to do it without Congress, just on his own, that would certainly be challenged," he said.

"A court could go either way although there are certainly good arguments in favour of the Obama order's permanence and only being reversible by Congress."

Demand for Arctic oil unclear

When Obama announced the Arctic drilling ban, oil industry officials cried foul.

A spokesman for the Independent Petroleum Association of America said at the time the "unilateral mandate could put America back on a path of energy dependence for decades to come."

But only one company — Royal Dutch Shell PLC — has drilled in those waters in the past decade. It ceased its exploration in the Chukchi and Beaufort seas after spending upward of $7 billion, citing disappointing results from a well drilled in the Chukchi.

"It might be kind of a moot issue," Leshy said.

"The market may have spoken, at least in the short term and say 'What Obama did, at least in the short term, is not a big deal for us since we're not going to be up there anyway.'"

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