As his administration drew to a close, President Obama invoked his executive authority to set aside large swaths of the Western US and the Atlantic and Arctic Oceans from future development. On December 28, 2016, President Obama established the Bears Ears and Gold Butte National Monuments in Utah and Nevada, respectively, setting aside nearly 1.5 million acres under the Antiquities Act of 1906. During his presidency, President Obama invoked the Antiquities Act 29 times—more than any other president—to expand or create national monuments. President Obama also protected the largest area of any president, with designations totaling 266.5 million acres—more than double any prior president.
In addition, on December 20, 2016, President Obama withdrew about 115 million acres of the US portion of the Arctic Ocean and about 3.8 million acres of the US portion of the Atlantic Ocean from mineral leasing under the Outer Continental Shelf Lands Act. The drilling ban does not affect existing federal leases and also does not apply to a 2.8 million-acre area of the Beaufort Sea near the Alaskan coast next to existing oil and gas infrastructure. Nevertheless, the ban represents the first time any president has used the Outer Continental Shelf Lands Act, which was passed in 1953, to indefinitely withdraw such a large coastal area from mineral leasing.
Republicans and industry trade groups have already threatened to challenge President Obama’s use of the Antiquities Act of 1906 and the Outer Continental Shelf Lands Act. However, any effort to undo the recent designations will likely require the help of Congress. While both the Antiquities Act of 1906 and the Outer Continental Shelf Lands Act expressly delegate to the president authority to withdraw public lands and coastal areas, neither statute delegates to the president authority to undo the withdrawals of a prior administration.
The Antiquities Act of 1906 provides that “[t]he President may, in the President’s discretion, . . . reserve parcels of land” as national monuments. Similarly, Section 12(a) of the Outer Continental Shelf Lands Act states that “[t]he President . . . may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.” Neither statute includes a provision delegating to the president authority to dispose of lands that have previously been withdrawn. It is therefore unlikely that President Trump could unilaterally overturn President Obama’s designations.
The Trump Administration could also seek to overturn or limit President Obama’s designations in court. However, such efforts may not be successful. The Outer Continental Shelf Lands Act appears to provide the president with fairly broad authority, although no withdrawal under the statute has ever been challenged in court. Also, the president’s authority under the Antiquities Act has generally been upheld by the courts, but the statute does present some room to challenge the scope of a national monument designation. 54 U.S.C. Section 320301(b) provides that the boundaries of a national monument “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”
If the Trump Administration cannot overturn President Obama’s designations unilaterally or through litigation, Congress could always act to reverse the withdrawals or to amend the statutes to explicitly allow presidents to reverse the designations of their predecessors. However, any such act of Congress would require a 60-vote Senate majority to clear the filibuster procedural hurdle (under current filibuster rules). Republicans currently control 52 seats in the Senate. Squire Patton Boggs will continue to monitor the next administration’s efforts to overturn or limit public land withdrawals and drilling bans put in place by President Obama.