On Oil, No Backsies!

By Kevin D. Williamson

Thursday, December 22, 2016

Barack Obama, utilizing the hitherto unknown “No-Backsies!” provision of Article II, has unilaterally declared an “indefinite” ban on oil exploration in certain parts of the Atlantic and Arctic.

The president is relying on a novel — and imaginary, and dishonest — interpretation of the 1953 Outer Continental Shelf Lands Act, which he says empowers him to make, by unilateral executive fiat, new drilling rules that cannot be undone by any successor president. Legally speaking this is, as Professor Patrick Parenteau of Vermont Law School wryly put it, “uncharted waters.”

The New York Times, acknowledging that President Obama is interpreting his powers in a way that is not obviously legal and is at the very least at odds with prior practice, concedes: “The declaration’s fate will almost certainly be decided by the federal courts.”

We might hazard a guess about how that will happen, based on the example of the Obama administration.

President Obama thinks highly of the legal expertise of Elena Kagan, so highly that he installed her on the Supreme Court. Prior to that, she insisted, during her confirmation hearings, that there is no constitutional right to same-sex marriage. But President Obama was willing to set such counsel aside when his administration refused to defend the Defense of Marriage Act, signed into law in 1996 by President Bill Clinton, on the grounds that he believed it to be unconstitutional. (Madison et al. were really sneaky about the gay stuff in the Constitution.) Kagan, once safely ensconced in her lifetime Supreme Court tenure, also turned her back on Kagan’s counsel and joined in the opinion that overturned DOMA and created a federal right to same-sex marriage.

There isn’t anything that says the administration has to defend a law it doesn’t like. The Obama administration got its way by simply getting out of the way, creating an interesting precedent. If a president doesn’t like a law, he can simply find an ally willing to sue to have it overturned — and then refuse to defend it.

Neat trick.

That seemed like a good idea at the time to Democrats, just as creating a hyper-politicized process for confirming Supreme Court nominees sounded like a good idea to them back in 1987 (Merrick Garland, who has returned to his day job, is not so sure), and just as the wanton use of the filibuster seemed like a good idea to Democrats when they were in the minority and limiting the filibuster seemed like a good idea to them when they were in the majority, just as using the reconciliation process to circumvent ordinary legislative procedures sounded like a good idea back in 2009, that “pen and phone” rule by presidential decree was a good idea before the election of Donald Trump, etc. In 20 years, when some future Republican stages a successful Electoral College challenge and supplants a Democrat who thought he had won the presidential election, we’ll remind them that they thought that was a good idea back in 2016.

The Obama administration is a mess on the question of process here. But it also is in error on the question of substance.

Preventing U.S. firms from drilling in certain Arctic and Atlantic waters is a bad idea for any number of reasons, but the first and most obvious is that this will not prevent drilling in those waters per se, only drilling by firms under U.S. jurisdiction.

But oil doesn’t care about national boundaries. Foreign firms operating in international waters or in waters under the legal jurisdiction of other countries — in the case of the Arctic waters off the Alaskan coast, Russia is significant — will not be constrained at all. As an environmental question, this ought to be understood as a net loss, inasmuch as American firms generally operate under higher environmental standards than most of their foreign competitors, a consequence of the fact that outside of the United States the oil business is dominated by state-owned firms, and states (particularly states with the character of Russia) do not regulate themselves very well.

For another thing, oil drilling has changed a great deal in the past several decades. Environmental and safety standards already were high, but there have been improvements since then, in everything from seismic modeling to ordinary daily management practices. The Obama administration and its allies used to understand this, which is why the White House worked to open up Atlantic waters off the southeastern United States to drilling, or at least tried, or at least pretended to try. Mother Jones once was so despondent over President Obama’s oil policy that its editors dubbed him “The Oil President.”

We ought to be honest about all this: There is no environmentally clean way to produce energy, period. Oil, gas, and coal all have obvious and well-documented environmental costs, but so do solar, wind, and other so-called renewable sources. The question isn’t good methods vs. bad methods, but better methods vs. worse ones. And the experience of the natural-gas industry suggests that it is easier to effectively regulate a booming industry than a waning one, because the costs at the margin are less noticeable the fatter those margins are. This is one reason why gas drillers so often go well beyond their formal regulatory requirements.

That this can be reversed — in spite of the Obama administration’s insistence that the High and Mighty Barack Obama, First of His Name, can make legal pronouncements that are not only unilateral but eternal — seems obvious.

That it should be reversed is obvious, too.