January 13, 2025

Understanding President Joe Biden's Offshore Drilling Restrictions

Holland & Knight Alert
Jim Noe | Elizabeth Leoty Craddock | Jason A. Hill | Alexandra E. Ward | Kamran Mohiuddin | Maggie P. Pahl

Highlights

  • In his final days in office, President Joe Biden has exercised his executive authority to withdraw more than 625 million acres of federal waters from future oil and gas leasing – the largest withdrawal of its kind in U.S. history.
  • Announced in early 2025, the withdrawal encompasses the entire Atlantic Coast, Eastern Gulf of Mexico and Pacific Outer Continental Shelf (OCS) off of Washington, Oregon and California, as well as portions of Alaska's Northern Bering Sea. However, none of these areas is scheduled for future leasing under the U.S. Department of the Interior's current Five-Year Program, nor do any of these areas have much, if any, current oil and gas development activity.
  • President Biden's most recent withdrawal order promptly drew a swift rebuke from President-Elect Donald Trump, who announced that he will "unban it immediately," but unbanning the withdrawals many not prove to be a simple task.

In his final days in office, President Joe Biden has exercised his executive authority to withdraw more than 625 million acres of federal waters from future oil and gas leasing – the largest withdrawal of its kind in U.S. history. Announced in early 2025, the withdrawal encompasses the entire Atlantic Coast, Eastern Gulf of Mexico and Pacific Outer Continental Shelf (OCS) off of Washington, Oregon and California, as well as portions of Alaska's Northern Bering Sea. However, none of these areas is scheduled for future leasing under the U.S. Department of the Interior's current Five-Year Program, nor do any of these areas have much, if any, current oil and gas development activity. Notwithstanding this, President Biden's most recent withdrawal order promptly drew a swift rebuke from President-Elect Donald Trump, who announced that he will "unban it immediately." However, unbanning the withdrawals many not prove to be a simple task, as the Trump Administration found out during its first term.

Executive Orders Under the Outer Continental Shelf Lands Act

The legal foundation for President Biden's withdrawal action rests in Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA), which states that "[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf." Presidents from both parties have exercised this authority to remove areas from oil and gas leasing. However, as litigation in President-Elect Trump's first term established, it is unclear whether additional congressional action is needed for a president to revoke an earlier withdrawal to allow new leasing in the same area. Given President-Elect Trump's vow to expand domestic energy production, especially offshore oil and gas production, the issue is particularly relevant.

Immediately prior to leaving office in 2016, former President Barack Obama issued Executive Order (E.O.) 13754 – Northern Bering Sea Climate Resilience – withdrawing portions of the Alaskan OCS from further leasing pursuant to Section 12(a). In response, shortly after entering office for his first term, then-President Trump issued E.O. 13795 – Implementing an America-First Offshore Energy Strategy – which, among other things, revoked E.O. 13754 in its entirety, including the Obama Administration's withdrawal from the Alaskan OCS. Environmental groups promptly sued challenging the revocation in 2019. 

U.S. District Court Decision on Presidential Authority

In League of Conservation Voters v. Trump, the U.S. District Court for the District of Alaska provided the most detailed judicial analysis to date of presidential authority under OCSLA Section 12(a). The court invalidated a portion of then-President Trump's E.O. 13795, which had attempted to reverse Obama-era withdrawals of areas in federal waters off Alaska's northern coast from oil and gas leasing. Though the court's decision was ultimately vacated as moot by the U.S. Court of Appeals for the Ninth Circuit  after President Biden reinstated the Obama withdrawals in E.O. 13990, the district court's reasoning – that Section 12(a) explicitly grants presidents the authority to withdraw areas from drilling but does not include the power to revoke prior withdrawals – provides a guide for how the issue may play out again in the future, should President-Elect Trump in his second term attempt to revoke the recent Biden Administration withdrawals, or even those under E.O. 13990 that reinstated the prior Obama Administration withdrawals.

The court's reasoning hinged on several key points. First, it found that the U.S. Congress's silence regarding revocation authority in Section 12(a) was likely purposeful, noting that in previous legislation related to public lands, Congress had explicitly granted revocation authority when it intended to do so. The court pointed to several statutory examples that expressly authorized the president make withdrawals and revoke prior withdrawals. Additionally, the court found significance in historical interpretations of similar withdrawal powers. Opinions from multiple attorneys general dating back to 1938 consistently held that if public lands are reserved by the president under express statutory authority, the president lacks the power to revoke such reservations without congressional authorization. The court noted that Congress has historically used the terms "withdrawal" and "reservation" interchangeably, making these prior interpretations relevant to OCSLA Section 12(a). Ultimately, the court determined that Section 12(a) operated as a one-way ratchet that allowed for the president to only withdraw areas from leasing but never to restore those areas for future leasing once withdrawn.

The question of presidential revocation authority remains technically unresolved, given that the Ninth Circuit never reached the merits of the case before it was rendered moot by subsequent executive action, and the district court's detailed analysis of OCSLA's text, structure and legislative history – while providing a compelling framework for understanding the limits of presidential authority in this area – was ultimately vacated. The ability of a subsequent administration to render challenges to revocations moot before a case can be fully resolved on the merits suggests the potential difficulty of obtaining definitive judicial resolution of this important question of presidential authority absent congressional action to provide clearer direction.

Congressional Actions

However, since the first offshore well was drilled off of Louisiana's coast in 1947, Congress has rarely stepped in to mandate offshore leasing in any particular area, instead more often acting to limit areas of the OCS that could be leased. For the last several decades, the areas available and open to offshore leasing were required to be in the U.S. Department of Interior's Five-Year-Program, mandated by amendments to OCSLA in 1978. In fact, Congress has only acted twice to mandate leasing; first in 2006 under the Gulf of Mexico Energy Security Act, which opened 8.3 million acres in the Central and Eastern Gulf of Mexico Planning Areas, and more recently under the Inflation Reduction Act (IRA), which directed the Interior Department's Bureau of Ocean Energy Management (BOEM) to 1) hold the three remaining lease sales from the 2017-2022 program that President Biden cancelled shortly before allowing that Five-Year Program to expire without any replacement and 2) issue the leases from Lease Sale 257, which had been vacated previously by a judicial decision, thereby ending that appeal. The IRA also tied offshore wind production to conventional leasing through 2032 by only allowing for the issuance of offshore wind leases if an offshore oil and gas lease sale has been held in the prior year and the sum total of acres offered for lease during that year was at least 60 million acres. Though the 119th Congress is poised to enact legislation mandating offshore leasing with Republicans having control of both chambers, given past precedent and political opposition to offshore oil and gas development in many coastal areas, the areas that Congress is expected to open via new legislation would likely focus upon the Western and Central Gulf of Mexico Planning Areas and offshore Alaska.

Regional Impacts

Moreover, the withdrawal itself has varying implications across regions. California has maintained a moratorium on new offshore drilling in state waters since 1969. In addition, the Biden Administration created the 4,543-square-mile Chumash National Marine Sanctuary off of the Central California coast on Nov. 30, 2024, that would further restrict future leasing in many of the areas previously leased and developed on the federal OCS in the Pacific Ocean. Meanwhile, the Eastern Gulf of Mexico has operated under federal restrictions that were set to expire in 2032, absent President Biden's action. This history of regional restrictions reflects a long-standing recognition of the need to balance energy development with environmental and coastal protections. In fact, during his first term, then-President Trump, joined by other Republican lawmakers, issued a memorandum on Sept. 8, 2020, extending the existing moratorium on offshore drilling in the Eastern Gulf of Mexico and expanding it to the Atlantic coasts of Florida, Georgia and South Carolina. The memorandum prohibited leasing for oil and gas in these areas from July 1, 2022, to June 30, 2032, under the authority of the OCSLA. These actions underscore the bipartisan efforts to protect Florida's coastline and other coastal economies.

Operationally, the current offshore oil and gas industry is almost singularly focused on developing the Central and Western Gulf of Mexico, and these areas account for approximately 15 percent of the country's total oil and gas production. Though the areas withdrawn by President Biden are not near-term priorities of the offshore oil and gas industry, the removal of such substantial potentially productive waters reduces the industries' optionality and removes significant spare productive capacity from the country, which could impact President-Elect Trump's leverage in negotiating with international oil and gas producers, including the Organization of the Petroleum Exporting Countries (OPEC). Though President-Elect Trump has vowed to rescind President Biden's withdraw of offshore waters from oil and gas development, the new Congress can avoid a lengthy court battle on whether he does indeed have that "revocation" authority by taking swift action to legislate reopening these areas to effectuate President-Elect Trump's stated policy objectives.

For more information, please contact the authors.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


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