Trump offshore drilling order unlawful, judge rules

[Zippyjuan]

https://www.bbc.com/news/world-us-canada-47762089


Donald Trump's reversal of an Obama-era environmental protection was "unlawful", a judge has ruled.

During his presidency, Barack Obama brought in a ban on offshore drilling in parts of the Arctic and Atlantic.

Mr Trump attempted to overturn this with an executive order in 2017, promising to allow oil and gas companies back into protected regions.

District Court Judge Sharon Gleason has now ruled that the president violated a federal environmental law.

What was 'unlawful' about what Trump did?

The court heard that Mr Trump fell foul of the federal Outer Continental Shelf Lands Act.

Under that law, presidents are allowed to withdraw areas from the national oil and gas leasing programme, which allows companies to drill in specified areas.

Mr Obama had used this law to protect almost 500,000sq km of the outer continental shelf - including the Arctic's Chukchi Sea, the Beaufort Sea, and a large area of the Atlantic Ocean on the country's east coast.

However, presidents do not have the power to add areas back to the leasing programme - only Congress does.

Judge Gleason told the court that therefore the ban on drilling "will remain in full force and effect unless and until revoked by Congress".

More at link.

[Swordsmyth]

The law in question is unconstitutional.

[Zippyjuan]

The law in question is unconstitutional.

Why? Which part does it violate?

[Swordsmyth]

Why? Which part does it violate?
Enumerated powers.

[Zippyjuan]

Enumerated powers.

Which one (or ones?)

[Swordsmyth]

Which one (or ones?)
That's the point.

[Zippyjuan]

That's the point.

I see. You don't have a clue. Thanks for playing.

[Swordsmyth]

I see. You don't have a clue. Thanks for playing.

You are the one without a clue.

What enumerated power of Congress allows them to ban offshore drilling?

[Anti Federalist]

You are the one without a clue.

What enumerated power of Congress allows them to ban offshore drilling?

Any executive order that restricts the freedom of the American people is legal.

Any executive order that restores the freedom of the American people is illegal.

That's all we have to remember.

[spudea]

The judges argument just doesn't hold water. Obama did not create law to withdraw the lands, it was an administrative action to land management. The act also doesn't spell out how congress would overturn a presidents action on this, because it's implied in their powers, just as it is implied in the executive powers that a new administration can change the decision of a prior administration.

[Swordsmyth]

The judges argument just doesn't hold water. Obama did not create law to withdraw the lands, it was an administrative action to land management. The act also doesn't spell out how congress would overturn a presidents action on this, because it's implied in their powers, just as it is implied in the executive powers that a new administration can change the decision of a prior administration.

Any executive order that restricts the freedom of the American people is legal.

Any executive order that restores the freedom of the American people is illegal.

That's all we have to remember.


...

[TheTexan]

"a judge has ruled"

Was she a supreme court justice? No? Then how is this news.

Next!

[Zippyjuan]

Any executive order that restricts the freedom of the American people is legal.

Any executive order that restores the freedom of the American people is illegal.

That's all we have to remember.

Noting that these are government lands and it is the government deciding what to do with them. They are not telling a private party what they can do on their own lands.

[Dr.3D]

Noting that these are government lands and it is the government deciding what to do with them.
As I recall, the only government land allowed by the constitution, doesn't include that land.

[Superfluous Man]

Why? Which part does it violate?

You have to be kidding.

The Constitution doesn't delegate to the federal government the right to lease out land for drilling, or have any say over where any drilling can take place.

[Superfluous Man]

Noting that these are government lands and it is the government deciding what to do with them. They are not telling a private party what they can do on their own lands.

And where in the Constitution does it give the federal government ownership of that land?

[Zippyjuan]

As I recall, the only government land allowed by the constitution, doesn't include that land.

Link?

[Dr.3D]

Link?

Read the freeking constitution.

[Anti Federalist]

Noting that these are government lands and it is the government deciding what to do with them. They are not telling a private party what they can do on their own lands.

So then who owns those lands...but the American people?

[Swordsmyth]

Noting that these are government lands and it is the government deciding what to do with them. They are not telling a private party what they can do on their own lands.
Noting that they are not legitimate government "lands", they aren't even lands, the sea has always been different.

[Zippyjuan]

And where in the Constitution does it give the federal government ownership of that land?

Article 4 Section 3, clause #2:


The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

https://www.shmoop.com/constitution/article-4-section-3.html

[Zippyjuan]

Noting that they are not legitimate government "lands", they aren't even lands, the sea has always been different.

True, the sea is wetter (except for lakes and rivers which are also part of the US territories).

They are part of "US territory" (see Constitution citing above)

[Superfluous Man]

Article 4 Section 3, clause #2:



https://www.shmoop.com/constitution/article-4-section-3.html

I didn't ask where the Constitution says that Congress can regulate the property the federal government owns. I asked where it says that it owns the land it's leasing out for drilling.

[Swordsmyth]

They are part of "US territory" (see Constitution citing above)
That doesn't make them government property.

[Anti Federalist]

Article 4 Section 3, clause #2:

https://www.shmoop.com/constitution/article-4-section-3.html

Congress abdicated it's authority to governing those lands (or seas) by turning regulatory control over to an executive body.

You can't have it both ways: Either Congress must oversee every aspect of it's regulatory burden that it has imposed on people, OR any fatwa issued by the executive branch can be overturned by a successive executive.

[Zippyjuan]

https://i2i.org/what-does-the-constitution-say-about-federal-land-ownership/


As has happened so often, therefore, I had to begin anew. I studied the Constitution’s text, the records surrounding the Constitution’s adoption, and other materials. From them, I was able to define with a reasonable degree of certainty the scope of the federal government’s power to acquire, retain, manage, and dispose of land. My conclusions were published in Federal Land Retention and the Constitution’s Property Clause: The Original Understanding, 76 U. Colo. L. Rev. 327 (2005). In a nutshell, my findings were:

* Under the Property Clause (Art. IV, Sec. 3, Cl. 2), land titled to the federal government and held outside state boundaries is “Territory.” Federal land held within state boundaries is “other Property.”

* If the host state agrees, the federal government can acquire an “enclave” within the state under the Enclave Clause (I-8-17). This grants governmental jurisdiction to the federal government, but the federal government has to acquire title separately. Washington, D.C. (the most important enclave), for example, is under federal jurisdiction, but much of the land is held by other parties, including individuals.

* The Property Clause gives Congress unconditional power to dispose of property and authority to regulate what is already held. It does not mention a power to acquire.

* Under the Treaty Clause (II-2-2; see also Article VI), the federal government may acquire land outside state boundaries. As long as the area is governed as a territory, the federal government may retain any land it deems best.

* As for acreage (“other Property”) within state boundaries: Under the Necessary and Proper Clause, the federal government may acquire and retain land necessary for carrying out its enumerated powers. This includes parcels for military bases, post offices, buildings to house federal employees undertaking enumerated functions, and the like. It is not necessary to form federal enclaves for these purposes.

* But within state boundaries the Constitution grants no authority to retain acreage for unenumerated purposes, such as land for grazing, mineral development, agriculture, forests, or parks.

* Once a state is created and is thereby no longer a territory, the federal government has a duty to dispose of tracts not used for enumerated purposes.

* In the process of disposal, the federal government must follow the rules of public trust. It would be a breach of fiduciary duty for the feds to simply grant all of its surplus property to state governments. Each tract must be disposed of in accordance with the best interest of the American people. For example, natural wonders and environmentally sensitive areas (such as those now encompassed by the national parks) might be conveyed under strict conditions to state park authorities or (as in Britain) to perpetual environmental trusts. Land useful only for grazing, mining, or agriculture should be sold or homesteaded, with or without restrictions. The restrictions might include environmental protections, public easements, and protection for hunters and anglers.

[Anti Federalist]

under the OCSLA, the Secretary of the Interior is responsible for the administration of mineral exploration and development of the OCS. The OCSLA has been amended several times, most recently as a result of the Energy Policy Act of 2005

Sec of Interior.

Executive branch.

[Swordsmyth]

https://i2i.org/what-does-the-constitution-say-about-federal-land-ownership/

The sea is NOT land.

[Zippyjuan]

The sea is NOT land.

It is "territory". The Constitution does not specify land or water.

[Swordsmyth]

It is "territory". The Constitution does not specify land or water.

It also doesn't say Congress can exercise unlimited powers over US territory, the regulations in question violate the Enumerated Powers.

[Stratovarious]

Noting that these are government lands and it is the government deciding what to do with them. They are not telling a private party what they can do on their own lands.

''Under that law, presidents are allowed to withdraw areas from the national oil and gas leasing programme, which allows companies to drill in specified areas.''

Where in the constitution is there a provision for oil and gas leases to be 'withdrawn' ?

[Zippyjuan]

It also doesn't say Congress can exercise unlimited powers over US territory, the regulations in question violate the Enumerated Powers.

Actually that IS one of the enumerated powers.

[Swordsmyth]

Actually that IS one of the enumerated powers.
No, it isn't, it says that they may use their powers in US territory.

[Zippyjuan]

No, it isn't, it says that they may use their powers in US territory.

Exactly. That is part of US territory. And the powers are enumerated in the Constitution- link already provided.

[Swordsmyth]

Exactly. That is part of US territory. And the powers are enumerated in the Constitution- link already provided.

:facepalming:

They are still limited by the Enumerated Powers about what they may regulate in US territory.
That clause is not a grant of unlimited authority in US territory.

[fedupinmo]

Exactly. That is part of US territory. And the powers are enumerated in the Constitution- link already provided.

And the Constitution grants that power to Congress, which means Congress can't cede that power to the President. Obama's action was unconstitutional in the first place.

[Swordsmyth]

And the Constitution grants that power to Congress, which means Congress can't cede that power to the President. Obama's action was unconstitutional in the first place.
Zippy seemed to think that was the case with Trump's use of emergency money powers even though that is less clear.