JIM WATSON/AFP/Getty Images
JIM WATSON/AFP/Getty Images
U.S. President Barack Obama holds a news conference at the conclusion of the G20 Summit in Hangzhou, China September 5, 2016 | REUTERS/Jonathan Ernst
President Obama gave environmental advocates a Christmas present when he announced in late December that he was banning oil and gas drilling in huge swaths of the Arctic and Atlantic oceans. This action “indefinitely” protects almost 120 million acres of ecologically important and highly sensitive marine environments from the risks of oil spills and other industrial impacts.
President Obama acted boldly to conserve important ecological resources and solidify his environmental legacy. But by making creative use of an obscure provision of a 1953 law, Obama ignited a legal and political firestorm.
Republicans and oil industry trade groups are threatening to challenge the ban in court or through legislation. They also contend that the Trump administration can act directly to reverse it. But a close reading of the law suggests that it could be difficult to undo Obama’s sweeping act.
Congress passed the law now known as the Outer Continental Shelf Lands Act in 1953 to assert federal control over submerged lands that lie more then three miles offshore, beyond state coastal waters. Section 12(a) of the law authorizes the president to “withdraw from disposition any of the unleased lands of the outer Continental Shelf.”
Starting in 1960 with the Eisenhower administration, six presidents from both parties have used this power. Most withdrawals were time-limited, but some were long-term. For example, in 1990 President George H. W. Bush permanently banned oil and gas development in California’s Monterey Bay, which later became a national marine sanctuary.
President Obama used section 12(a) in 2014 to protect Alaska’s Bristol Bay, one of the most productive wild salmon fisheries in the world. In 2015 he took the same step for approximately 9.8 million acres in the biologically rich Chukchi and Beaufort seas.
Obama’s latest action bars energy production in 115 million more acres of the Chukchi and Beaufort seas – an area known as the “Arctic Ring of Life” because of its importance to Inupiat Peoples who have lived there for millennia. The order also withdraws 3.8 million acres off the Atlantic Coast from Norfolk, Virginia to Canada, including several unique and largely unexplored coral canyons.
In a Presidential Memorandum on the Arctic withdrawals, Obama provided three reasons for his action. First, he asserted, these areas have irreplaceable value for marine mammals, other wildlife, wildlife habitat, scientific research and Alaska Native subsistence use. Second, they are extremely vulnerable to oil spills. Finally, drilling for oil and responding to spills in Arctic waters poses unique logistical, operational, safety and scientific challenges.
In ordering the Atlantic withdrawals, Obama cited his responsibility to “ensure that the unique resources associated with these canyons remain available for future generations.”
Market forces support Obama’s action. Royal Dutch Shell stopped drilling in the Chukchi Sea in 2015 after spending US$7 billion and drilling in what proved to be a dry hole. Since 2008 the Interior Department has canceled or withdrawn a number of sales in Alaskan waters due to low demand. Shell, ConocoPhillips, Statoil, Chevron, BP and Exxon have all to some degree abandoned offshore Arctic drilling.
Low oil prices coupled with high drilling costs make business success in the region a risky prospect. Lloyd’s of London forecast this scenario in a 2012 report that called offshore drilling in the Arctic “a unique and hard-to-manage risk.”
Critics of President Obama’s action, including the state of Alaska and the U.S. Chamber of Commerce, say they may challenge Obama’s order in court, in hopes that the Trump administration will opt not to defend it. But environmental groups, which hailed Obama’s action, will seek to intervene in any such lawsuit.
Moreover, to demonstrate that they have standing to sue, plaintiffs would have to show that they have suffered or face imminent injury; that this harm was caused by Obama’s action; and that it can be redressed by the court. Market conditions will make this very difficult.
The Energy Information Administration currently projects that crude oil prices, which averaged about $43 per barrel through 2016, will rise to only about $52 per barrel in 2017. Whether these areas will ever be commercially viable is an open question, especially since rapid changes are taking place in the electricity and transportation sectors, and other coastal areas are open for leasing in Alaska’s near-shore waters and the Gulf of Mexico.
Alternatively, Donald Trump could issue his own memorandum in office seeking to cancel Obama’s. However, section 12(a) does not provide any authority for presidents to revoke actions by their predecessors. It delegates authority to presidents to withdraw land unconditionally. Once they take this step, only Congress can undo it.
This issue has never been litigated. Opponents can be expected to argue that Obama’s use of section 12(a) in this manner is unconstitutional because it violates the so-called “nondelegation doctrine,” which basically holds that Congress cannot delegate legislative functions to the executive branch without articulating some “intelligible principles.”
However, one could argue that Obama’s action was based on an articulation of intelligible principles gleaned from the stated policies of the OCSLA, which recognizes that the “the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public.” The law expressly recognizes both the energy and environmental values of the OCS. Thus President Obama’s decision reflects a considered judgment that the national interest is best served by protecting the unique natural resources of these areas, while at the same time weaning the nation from its dangerous dependence on fossil fuels.
The section 12(a) authority is similar in some respects to the authority granted by the Antiquities Act, which authorizes the president to “reserve parcels of land as a part of [a] national monument.” Like the OCSLA, the Antiquities Act does not authorize subsequent presidents to undo the designations of their predecessors. Obama has also used this power extensively – most recently, last week when he designated two new national monuments in Utah and Nevada totaling 1.65 million acres.
Some laws do include language that allows such actions to be revoked. Examples include the Forest Service Organic Administration Act, under which most national forests were established, and the 1976 Federal Land Policy and Management Act, which sets out policies for managing multiple-use public lands. The fact that Congress chose not to include revocation language in the OCSLA indicates that it did not intend to provide such power.
Under Article IV of the Constitution, Congress has plenary authority to dispose of federal property as it sees fit. This would include the authority to open these areas to leasing for energy development. Members of Alaska’s congressional delegation are considering introducing legislation to override Obama’s drilling ban. But Democrats could filibuster to block any such move, and Republicans – who will hold a 52-48 margin in the Senate – would need 60 votes to stop them.
On the other hand, Congress may be content to let President-elect Trump make the first move and see how it goes in court. If Trump attempts to reverse the withdrawal, environmental groups contesting his decision would face some of the same obstacles as an industry challenge to Obama’s action. It could be especially challenging for environmental groups to show that the claim is “ripe” for judicial review, at least until a post-Obama administration acts to actually open up these areas for leasing. That may not occur for some time, given the weak market for the oil in these regions.
In the meantime, this decision is a fitting capstone for a president who has done everything within his power to confront the existential threat of climate change and rationally move the nation and the world onto a safer and more sustainable path.
Featured image via screengrab and Drew Angerer/Getty Images
On Tuesday, Donald Trump once again amped up the stupidity in his latest attack on intelligence agencies — namely the CIA — who have the gall to correctly state that Vladimir Putin spearheaded an effort to influence our election and effectively install a big orange puppet in office through a series of hacks and propaganda campaigns.
“The ‘Intelligence’ briefing on so-called ‘Russian hacking’ was delayed until Friday, perhaps more time needed to build a case,” Trump tweeted. “Very strange!”
The “Intelligence” briefing on so-called “Russian hacking” was delayed until Friday, perhaps more time needed to build a case. Very strange!
— Donald J. Trump (@realDonaldTrump) January 4, 2017
Now, it might seem strange that The Donald is concerned with an intelligence briefing given that he is famous for skipping them, but this one represents an opportunity to further kiss up to Vladimir Putin and attack the CIA (two of Trump’s favorite pastimes lately). On Saturday, Trump said that he knows “things that other people don’t know” about the hacks and that we can’t be sure who actually did it (you know, unless we listen to the CIA and the FBI).
Now, Trump knows a lot about postponing things — like his press conference concerning his numerous conflicts of interest he doesn’t want to address. But just because a delay in Trump world means something nefarious, it is probably just a teensy bit irresponsible of Trump to assume everyone is the same as he.
Naturally, Twitter seized upon the opportunity to once again jam a collective boot up the president-elect’s orifice (pick one):
— The Socialist Party (@OfficialSPGB) January 4, 2017
Your “press conference” on “divesting from conflicts” was postponed a month. Perhaps time needed to refine lies. Strange! @realDonaldTrump
— Freddy Scott (@freddyscott) January 4, 2017
@realDonaldTrump Should they wear a special shirt so you know which team they are on? Because it doesn’t seem like you do.
— pourmecoffee (@pourmecoffee) January 4, 2017
.@realDonaldTrump Right – you’re the next president of the United States, but THIS is what’s strange.
— Shannon Watts (@shannonrwatts) January 4, 2017
@realDonaldTrump What’s “strange” is that you put “intelligence” in quotations…like you don’t understand the word “intelligence”.
— Tony Posnanski (@tonyposnanski) January 4, 2017
@realDonaldTrump should private information about your private intelligence briefings really be tweeted about?
— Jack Slater (@Jack_Slater) January 4, 2017
— Trump’s chins (@TrumpsChinFat) January 4, 2017
@realDonaldTrump How dare they delay! What do they think this is? A press conference about your conflicts of interest?
— Nick Jack Pappas (@Pappiness) January 4, 2017
@realDonaldTrump Doesn’t Putin brief you on hacking when he wakes you up in the morning?
— Tony Posnanski (@tonyposnanski) January 4, 2017
@realDonaldTrump Why don’t you ask them why they need the extra time instead of posting this passive aggressive nonsense?
— Ian Boothby (@IanBoothby) January 4, 2017
— Kristina Wong (@mskristinawong) January 4, 2017
— Geesubay (@geesubay) January 4, 2017
— Mrs. Betty Bowers (@BettyBowers) January 4, 2017
@realDonaldTrump Also “very strange”: word is you’re not speaking tom. on your inside info on hacking- which you said you’d reveal Tues/Wed?
— Not Maureen Dowd (@MaureenDowdTwit) January 4, 2017
Trump has repeatedly denied that Putin or Russia was involved in the hacks (all while praising the Russian dictator repeatedly on Twitter).
“Earlier this week, I met separately with FBI [Director] James Comey and DNI Jim Clapper, and there is strong consensus among us on the scope, nature, and intent of Russian interference in our presidential election,” CIA Director John Brennan said recently. CIA officials say it is “quite clear” that the hacks were intended to install Trump in office.
The Electoral College failed us as the last line of defense against exactly this nightmare scenario. An authoritarian, racist, inept, useless orange lump is about to step into the Oval Office. It is up to us to oppose him every step of the way this year, to stand strong against his agenda of hate and corruption. Remind yourself each morning that “this is not normal” — because we absolutely cannot risk allowing it to become so.
A giant rooster sculpture with a Donald Trump hairstyle, is on display to celebrate the upcoming Year of the Rooster outside a shopping mall in Taiyuan, China, on Dec. 24, 2016
China has hit back at Donald Trump’s claim that Beijing isn’t doing enough to rein in rogue state North Korea, cautioning the U.S. President-elect not to “escalate” an already tense situation on the Korean Peninsula through his liberal use of social media.
On Monday evening, Trump took to Twitter to deny North Korean leader Kim Jong Un’s claim that his nation was in the “final stage” of developing a nuclear-armed ballistic missile capable of hitting the U.S. mainland. Trump then followed up with another tweet to say China wasn’t doing enough to temper the young despot’s belligerence.
“China has been taking out massive amounts of money & wealth from the U.S. in totally one-sided trade, but won’t help with North Korea. Nice!” read the tweet.
China has been taking out massive amounts of money & wealth from the U.S. in totally one-sided trade, but won’t help with North Korea. Nice!
— Donald J. Trump (@realDonaldTrump) January 2, 2017
In response, China’s Foreign Ministry spokesman Geng Shuang told a press briefing on Tuesday that his government’s efforts were “widely recognized,” and that “we hope all sides will avoid remarks and actions to escalate the situation.”
The Korean Peninsula is the latest source of friction between the incoming Trump Administration and China to be aired via the President-elect’s Twitter account.
Last month, Trump revealed he accepted a congratulatory phone call from Taiwan President Tsai Ing-wen in a breach of almost four decades of diplomatic protocol. Beijing still claims sovereignty over the self-governing island despite its effective split from the mainland in 1949 following China’s civil war.
Trump has also frequently used Twitter to accuse China of underhand trade practices like currency manipulation that he claims have forced American jobs oversees. The real estate mogul has nominated at least two hard-line China trade critics — Robert Lighthizer and Peter Navarro — to top posts in his Administration.
Regarding North Korea, Trump has a point: China is Pyongyang’s only friendly nation of note and accounts for 90% of its trade. The continued existence of North Korea is of strategic advantage to Beijing if the alternative is a unified Korean Peninsula administered by Seoul that is a staunch U.S. ally.
However, a belligerent, nuclear-armed North Korea isn’t in Beijing’s interests. This raises the temperature in East Asia and prompted South Korea to accept deployment of American THAAD antimissile batteries. Japan may soon follow.
“China’s relations with North Korea are complex and difficult,” writes Evans J.R. Revere in a report for the Brookings Institution in October. “But Beijing’s bottom line is that it is better to keep a troublesome North Korean ally afloat than to risk what might result if we push Pyongyang too hard.”
Nevertheless, in a bid to temper Kim’s aggression Beijing signed up to unprecedented U.N. sanctions in March following Pyongyang’s fourth nuclear test. North Korean exports of coal and minerals have dropped as a result, though a fifth nuclear and several missile tests still followed.
According to a U.S.-Korea Institute report last year, “China’s cooperation [is] essential but with increasing tensions in the South China Sea, the U.S. rebalance to Asia, and South Korea’s decision to deploy THAAD, this can no longer be taken for granted.”
To truly bridle the Kim regime, the incoming U.S. President will have to work hard to assure Beijing that its strategic interests are not compromised by coming down tougher on North Korea. The question is: Does Trump’s baiting of China on Twitter render a difficult sell now impossible?
When President Obama took office in 2009, the U.S. was in trouble — 50.7 million people were uninsured, the largest number in history. Mortality rates were on the rise, even as health care spending grew faster than the nation’s economy. Obama was always going to address the situation through some type of health care reform, Jason Furman, chairman of the president’s Council of Economic Advisers, said recently. As the number of days left in Obama’s presidency approaches single digits, it’s clear that part of his legacy will be that his administration implemented the biggest health care overhaul since the creation of Medicaid and Medicare. What’s less clear is how those changes will be viewed years from now — and part of that depends on what happens next.
Republicans have tried to repeal the Affordable Care Act dozens of times since the law was pushed through Congress in 2010 without any support from GOP lawmakers. The party has pledged to immediately repeal the law (or, more likely, defund it) as the new session of Congress opens today, though they will likely delay the effects of the repeal and don’t yet have a replacement in place. When they do take action, lawmakers will have to contend with the massive changes the health system has already undergone as a result of Obama’s health care bill.
But understanding what changed in the U.S. under the ACA is no simple feat. We have plenty of numbers, sure, but part of the trouble is that assessing health care policy is a largely ideological affair — there are always winners and losers, and the trade-offs that seem reasonable to one group can look disastrous to another. And how Obama’s signature health legislation is viewed decades down the line will likely be informed as much by what happens next as what has happened so far. Still, a good place to start assessing the program’s likely legacy is by examining three metrics often used to judge health policy: coverage, cost and quality.
The ACA increased insurance coverage everywhere, among every demographic group, but just a quarter of the population knows that the uninsured rate is now at an all-time low. About 20 million people gained insurance as a direct result of the law, according to the Department of Health and Human Services.
But while the country has seen net gains in coverage, it has been a bumpy road for some. The group of people who are newly covered under the ACA includes about 16 million low-income people who gained Medicaid, which was expanded under the law to cover anyone with an income that is less than 138 percent of the federal poverty line. Not everyone in that group is now eligible for Medicaid, however. After a Supreme Court decision determined that states could decide whether to expand the program, 19 states opted not to, creating a deep geographical divide among low-income people. About 2.5 million people fall in this “coverage gap”: They live in a state that didn’t expand Medicaid, and their incomes are too low for them for them to qualify for federal subsidies in the ACA-created insurance marketplaces where people can buy private insurance.
Critics warned that the law, which required large employers to offer insurance to employees who worked a certain number of hours, would be a job-killer. They were also concerned that it would push people off of work-based insurance by leading employers to cut hours below the threshold where offering insurance was mandatory. While those doomsday predictions didn’t come to pass, it does appear that some employers limited the hours of workers who were already part-time.
For those part-timers and others, the process of buying insurance became easier with the advent of the insurance marketplaces, which allow people to compare plans. Still, of the 5 percent of Americans who bought plans outside an employer or a government program before the law passed, millions had their policies canceled, despite the Obama administration’s infamous promise that people who liked their health care plans could keep them. Those losses were partly the result of insurers phasing out plans that didn’t meet the new federal requirements for coverage — requirements that are controversial, because while they mean more comprehensive coverage, they can also mean higher premiums, which can be a turn-off for the young, healthy adults who are needed to balance out insurance pools. The Congressional Budget Office, a nonpartisan analysis arm of Congress, recently explained that at least some of the old, less-comprehensive plans would not count as insurance coverage because they don’t offer sufficient financial protection.
Among those who gained insurance were people with pre-existing health conditions. Before the ACA, insurance companies could choose to deny coverage to people on the private market, and they often did so for people who had diseases that are expensive to treat. The new law banned that practice. The Kaiser Family Foundation, which researches health care policy, recently estimated that 27 percent of adults younger than 65 would be uninsurable and that millions more could be denied coverage for specific health issues under pre-ACA, private-market norms. While many of those people have insurance through an employer or public program, they would previously have been left without options if they were to lose that insurance.
Despite challenges relating to cost and market participation from insurers, the insurance markets set up by the ACA are gaining steam. Approximately 6.4 million people have signed up for 2017 insurance coverage through the federally run marketplaces (even more have signed up on the state-run exchanges; 2017 numbers aren’t yet available, but more than 12.6 million selected a plan during the open enrollment period for 2016). That’s a record number, even as premiums increase by double-digit percentages in many places. About 85 percent of those people will receive federal subsidies that help offset the rising prices, but middle-class buyers can easily pay more than $1,000 per month.
But although the specifics of how people are covered have been shifting, the absolute increase in the percentage of people with health insurance is the blinking red data point that legislators will have to reckon with as they gear up to change, eliminate or replace the ACA under President-elect Donald Trump’s administration. Polls suggest that a growing number of people want to see the law scaled back, not repealed, and however unpopular the ACA is, taking away newly acquired insurance is likely to be controversial. Topher Spiro, vice president of health policy at the liberal think tank Center for American Progress, helped write the law. He said he thinks that because so many people are now insured, expectations regarding access to insurance have changed, which will lead to increased insurance coverage being part of Obama’s legacy, even though the GOP has pledged to repeal or defund the health care bill. “There’s no doubt in my mind that in the long term, there will be many more people insured as a result of the Affordable Care Act,” Spiro said. It’s impossible to know if he’s right, but the trepidation that some Republican legislators have recently expressed about repealing the law without a replacement plan in place suggests that he might be.
Fox News is set to air the first part of an interview Tuesday night between Sean Hannity and Julian Assange, who Hannity has said in the past should be arrested for “waging war” against the United States.
“I believe every word he says,” Hannity told his Fox News colleague Bill Hemmer Tuesday morning, defending the WikiLeaks founder against criticism that he published documents that U.S. intelligence officials say were stolen by Russian-backed hackers in order to benefit President-elect Donald Trump’s presidential campaign.
Hannity flew to London to interview Assange at the Ecuadorian embassy there, where the WikiLeaks founder, facing an outstanding warrant for his arrest in Sweden over rape allegations, has holed up since 2012.
However, in December of 2010, Hannity had criticized the Obama administration on his show for not arresting Assange after WikiLeaks published a quarter of a million confidential U.S. diplomatic cables.
“Assange is apparently not done waging his war against the U.S., at least not yet,” Hannity said at the time.
After WikiLeaks began publishing documents hacked from the servers of the Democratic National Committee this summer, however, Hannity changed his tone.
During a September interview with the WikiLeaks founder, Hannity told Assange: “I do hope you get free one day.”
“In 10 yrs @wikileaks has gotten nothing wrong & no one’s been killed bc of the info released. #freejulianassange #freeinternet for all,” he wrote on Twitter in October.
Hannity addressed the about-face in the interview with Hemmer Tuesday.
“Look, I was a very early critic of him. He’s well aware that I thought he was waging war on the United States. My opinion on it has evolved in large part because of what I have seen that he has done in ten years. Nothing he has published has ever been proven false,” Hannity said. “Nobody’s even questioned the veracity or truthfulness of what he’s doing.”
Jonathan Ernst/ REUTERS