‘Un-Designating’ Marine Sanctuaries?: Assessing President Trump’s America-First Offshore Energy Strategy

Abstract

On April 28, 2017, President Donald J. Trump issued an Executive Order to implement his vision of “an America-First Offshore Energy Strategy.” The order is designed to facilitate the Secretary of Interior’s efforts to maximize oil and gas lease sales in parts of the Gulf of Mexico, the Chukchi Sea, Beaufort Sea, Cook Inlet, and in the Mid- and South- Atlantic. It also directs the Secretary of the Interior to review various safety and environmental regulations applicable to oil and gas drilling operations on the outer continental shelf.

A prime focus of the executive order is an attempt to nullify President Barack Obama’s December 20, 2016 withdrawal of approximately 119 million acres of submerged land on the outer continental shelf from oil and gas drilling. Acting pursuant to section 12(a) of the Outer Continental Shelf Lands Act of 1953 (OCSLA), President Obama’s actions were hailed as a momentous step to protect the fragile ecosystems of the Chukchi Sea and parts of the Beaufort Sea in the Arctic, as well as ecosystems along the edge of the continental shelf in the Atlantic Ocean.

But of equal concern is the order’s pronouncement that the Trump administration would “refrain from designating or expanding any National Marine Sanctuary,” absent a “full accounting from the Department of the Interior of any energy or mineral resource potential.” And even more troubling, the order calls for a review of past designations and expansions of National Marine Sanctuaries within the past 10 years.

Congress originally enacted the National Marine Sanctuaries Act (NMSA) as part of the Marine Protection, Research, and Sanctuaries Act of 1972. It now “provide[s] authority for comprehensive and coordinated conservation and management” of “areas of the marine environment which are of special national significance.” The act sets forth a detailed designation process for establishing federally protected marine sanctuaries. But what if a subsequent administration proposes to “un-designate” or modify the terms of an existing sanctuary?

This Article examines this key question. It explores the National Marine Sanctuaries Act, its designation provisions, the applicable regulations, as well as prior sanctuary rulemakings. Next, it delivers a critical analysis assessing whether any such proposal to eliminate or alter a sanctuary would be successful. The Article concludes that, although it would be a fact specific inquiry, the procedural safeguards built into the act would likely doom an attempt to revoke or significant modify an existing sanctuary.

Keywords: Outer Continental Shelf Act, OCSLA, National Marine Sanctuaries Act, NMSA, Marine Sanctuary, Executive Order