Gravel2Gavel Construction & Real Estate Law Blog
On March 29, the U.S. District Court for the District of Alaska issued two separate rulings that reversed and set aside energy and environmental decisions made by the current administration, which had revoked decisions made in these same matters by the prior administration. The cases are League of Conservation Voters, et al., v. Trump (concerning the development of oil and gas leases on the Outer Continental Shelf (OCS)) and Friends of Alaska National Wildlife Refuges, et al., v. Bernhardt, Acting Secretary of the U.S. Department of the Interior (which concerns a Land Exchange that would facilitate the construction of a road between two remote Alaska communities when that road would traverse parts of a designated national wilderness).
In the League of Conservation Voters matter, the District Court held that the President’s Executive Order 13795 (released on April 28, 2017), which purported to revoke President Obama’s decisions to withdraw certain OCS tracts from oil and gas exploration and development, was unlawful because it was not authorized by Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA). In 2015 and 2016, President Obama issued Presidential Memorandums and an Executive Order withdrawing these particular tracts.
Section 12 (a) of the OCSLA states that: “The President of the United States may, from time to time, withdraw from any disposition any of the unleased lands of the Outer Continental Shelf.” However, there is no provision in the OCSLA that mentions revoking an earlier withdrawal. The District Court believed the language to be clear on its face, but since there may be some ambiguity in the law because of the use of the phrase, “from time to time,” the District Court reviewed other laws, rulings made by the Attorney General over the years, and the Act’s legislative history, and concluded that the President was without authority to revoke these earlier Presidential actions., which perforce, “will remain in full force and effect unless and until revoked by Congress.”
The District Court also rejected the Government’s argument that the plaintiff environmental organizations lacked standing because there was no imminent harm to the plaintiffs because many administrative steps had to be taken before any new leases were issued. According to the District Court , the fact that Executive Order 13795 was issued, and the oil industry’s “eagerness” to obtain seismic surveying permits persuaded the court that the harm was sufficiently imminent to warrant standing.
On the same day, in the Friends of Alaska National Wildlife Refuges matter, the District Court held that a proposed “land exchange” to facilitate the construction of a road between the small and remote Alaska communities of King Cove and Cold Bay—which has an all-weather airport—must be vacated because the land exchange agreement violates the Administrative Procedure Act (APA). The Secretary of the Interior’s 2018 agreement with the King Cove Corporation to build this road subject to a number of conditions involving lands controlled by King Cove within the boundaries of the Izembek National Wildlife Refuge failed to adequately explain why this action amounted to a change in government policy, which the APA requires be reasonably explained.
The national wildlife refuge was created in 1980 as part of the Alaska National Interest Lands Conservation Act (ANILCA). Meanwhile, for several years, the communities of King Cove and Cold Bay have advocated for the construction of a road that would link their communities, especially when the weather presents especially difficult problems for the residents. However, parts of the road would pass through the federal wildlife refuge, and several environmental studies determined that the construction of the road would result in adverse environmental and ecological consequences.
In response to their plight, the Congress directed the Secretary to determine whether a land exchange and resulting road construction would be in the public interest. A study was performed by the U.S. Department of the Interior (Department) in 2016, which again concluded, in an Environmental Impact Statement (EIS), that the results would be undesirable, and a petition for reconsideration of this decision was denied. The new Presidential administration agreed to take another look at this problem, and determined in January 2018, that a land exchange under certain conditions would be appropriate, thus facilitating the construction of this road.
The plaintiffs filed a lawsuit to stop this action, and alleged that the land exchange agreement, insofar as it inexplicably contravenes recent Departmental policy, violated the APA. The District Court, after determining that the plaintiffs had standing, applied two seminal Supreme Court APA precedents: Motor Vehicle Manufacturers Ass’n of the U.S., Inc., v. State Farm Automobile Ins. Co., and FCC v. Fox Television Stations, Inc., and determined that the failure of the Department to sufficiently explain its shift in policy, and indeed it failed to recognize that its policy has changed, contravened the APA, and must be set aside.