A series of recent actions undertaken by President Biden, near the end of his term, and President Trump, in the early days of his presidency, have called into question a key issue under the Outer Continental Shelf Lands Act (“OCSLA”) — whether the President can revoke a previous President’s withdrawal of areas of the United States Outer Continental Shelf (“OCS”) from oil and gas leasing. The answer to this question will likely have significant impacts on offshore oil and gas development in the mid- and long-term, though its short-term impacts are unclear.
In 1953, Congress enacted the OCSLA, which it described as “a vital national resource held by the Federal Government for the public, which should be made available for expeditious and orderly development.” On January 6, 2025, a mere two weeks before the end of his term, President Biden issued two memoranda under Section 12(a) of OCSLA that withdrew historically large areas of the OCS from being considered for oil or natural gas leasing, including for exploration, development, and production. Ample oil and gas reserves exist in many of these withdrawn areas, though the majority of current offshore oil and gas leases are in areas unaffected by these withdrawal memoranda.
On his first day in office, President Trump issued an Executive Order (“EO”) revoking President Biden’s January 6, 2025 memoranda (EO 14148). Then, on February 3, 2025, Secretary of the Interior Doug Burgum, also on his first day in office, signed Secretary’s Order 3420, which directs the Department of the Interior’s (“Department”) immediate compliance with President Trump’s EO.1 Under this secretary’s order, the Department is to take all actions available to expedite oil and gas leasing throughout the OCS. Both President Biden’s and President Trump’s actions with respect to OCSLA have now been challenged in federal district courts, paving the way for the courts to answer the question of whether OCSLA authorizes President Biden’s actions withdrawing portions of the OCS as well as President Trump’s action to revoke those withdrawals. As discussed below, this question hinges on how courts will interpret the fact that OCSLA authorizes the President to withdraw OCS areas from oil and gas leasing “from time to time” but does not expressly address a President’s power to revoke previous OCS withdrawals.
How Significant Are the Areas Withdrawn by President Biden?
President Biden withdrew capacious tracts of the OCS in the Atlantic Ocean, Gulf of America (“Gulf”) (f/k/a Gulf of Mexico), the Pacific Ocean, and the OCS in the Bering Sea off of the coast of Alaska. As the below map shows, these withdrawals comprise significant portions of the OCS and, not surprisingly, constitute the largest ever withdrawal under OCSLA.
On its website, the Department provided maps of these withdrawn areas, which are shown together below:2
One key limitation is that the bans — if left in place — do not impact existing offshore leases located in the withdrawn areas. Such leases were explicitly exempted in the two withdrawal memoranda issued by President Biden. Next, the bans would not impact drilling leases and operations located in state waters, which are outside the OCSLA’s jurisdiction. These state waters typically extend from the coastlines to three nautical miles offshore, as defined by the Submerged Lands Act of 1953.3 Only beyond this outer geographical limit does the OCSLA apply.
President Biden excluded the Western and Central Planning Zones in the Gulf (see green shaded areas near the continental U.S. in the above map) from his ban, which carved out the two zones where the majority of current offshore oil and gas development occurs. These two zones alone account for approximately 2,193 of the total 2,206 leases in the Gulf.4 And nationwide, the Gulf is where 97% of all OCS oil and gas production takes place.5 In comparison, the Eastern Planning Zone (a withdrawn zone) accounts for only 13 leases or a mere 0.6% of all Gulf leases.6 Of course, many of the withdrawn areas, especially off the West Coast and Alaska, hold large amounts of resources that could be developed.7 Therefore, while the short-term impacts of President Biden’s withdrawal memoranda are unclear, as the vast majority of existing leases are in unaffected areas of the Gulf, the longer-term effects of these memoranda could be substantial given the large reserves located in many of the withdrawn areas.
Does the Presidential Authority to Withdraw Properties From Leasing Under the OCSLA Include the Power to Restore Them?
The text of OCSLA provides little guidance on whether the authority to withdraw areas from leasing includes the power to revoke or modify previous withdrawals. OCSLA’s purposes include making all of the OCS “available for expeditious and orderly development, subject to environmental safeguards . . . .”8 In Section 12(a) of OCSLA, Congress provided that the President “may, from time to time, withdraw from disposition any of the unleased lands” of the OCS. President Biden relied on Section 12(a) to withdraw vast areas on the OCS from oil and natural gas leasing, and President Trump relied on the same provision to restore them for consideration.9 The law plainly allows the withdrawal of lands, but reviewing courts must address the lack of explicit reversal authority in the text.
Only one federal court, the United States District Court for the District of Alaska, has addressed the meaning of Section 12(a) regarding the power to “withdraw” lands from leasing. The claims in this 2019 case relate to an EO (EO 13795) that President Trump issued to modify withdrawals from the OCS previously issued by Presidents Obama and George W. Bush. Several parties challenged the action, arguing that only Congress can restore properties to the leasing mechanism after a Section 12(a) withdrawal. The district court agreed, reasoning that Congress was explicit in various other statutes when giving the President authority to modify or revoke federal land withdrawals in other, non-OCS contexts.10 Although the defendants argued that this reading was in tension with OCSLA’s stated purposes to further oil and gas development on OCS lands, the district court thought otherwise. The Ninth Circuit Court of Appeals ultimately vacated and remanded the district court’s opinion, finding that an EO (EO 13990) from President Biden mooted the litigation because it revoked President Trump’s reinstatement of the prior withdrawal. The district court subsequently dismissed this case without prejudice based on the Ninth Circuit’s mandate. Thus, revocation authority under OCSLA is still uncertain.
Did President Biden Have the Authority to Permanently Withdraw Portions of the OCS?
Several lawsuits have been filed with respect to President Biden’s withdrawal memoranda. The State of Texas, alongside a Texas-based oil and natural gas producer, filed suit in the U.S. District Court for the Eastern District of Texas against President Biden in his official capacity on January 20, 2025, arguing that the withdrawal of areas in the eastern Gulf ran counter to OCSLA’s purposes and exceeded the President’s authority under OCSLA, with OCSLA’s framing of presidential authority in terms of “time to time” withdrawals indicating that such withdrawals are not intended to be permanent. These plaintiffs also asserted that President Biden lacked clear Congressional approval to issue his withdrawal memoranda, and that his actions violated the major questions doctrine by permanently resolving a politically important issue and imposing extraordinary regulatory limits on a substantial portion of the U.S. economy.11 Likewise, the State of Louisiana, the American Petroleum Institute, and others filed suit in the U.S. District Court for the Western District of Louisiana challenging both President Biden’s withdrawal memoranda and Section 12(a) of OCSLA. In addition to invoking the major questions doctrine and OCSLA’s purposes, these parties argued that Section 12(a) of OCSLA was an unconstitutional violation of the non-delegation doctrine (because Congress failed to articulate an “intelligible principle” to guide the President in withdrawing OCS lands from oil and gas leasing) and the Property Clause (because OCSLA does not indicate that Congress met the prerequisite of determining it was “needful” to delegate withdrawal power to the President through Section 12(a)).12 Collectively, these cases challenge President Biden’s exercise of withdrawal authority and the fundamental constitutionality of OCSLA Section 12(a) itself.
Assuming President Biden’s Withdraw Was Lawful, Could President Trump Revoke It?
Litigation has also been initiated with regard to President Trump’s revocations of President Biden’s withdrawal memoranda and EO 13990. The Sierra Club, Natural Resources Defense Council, and other environmental non-governmental organizations (“NGOs”) filed suit in the U.S. District Court for the District of Alaska against President Trump, Secretary of the Interior Burgum, and Secretary of Commerce Howard Lutnick, arguing that President Trump acted without statutory authority and in violation of the Constitution by reversing President Biden’s withdrawal memoranda. In particular, these NGOs assert that Congress delegated authority to the President in Section 12(a) of OCSLA to withdraw unleased OCS lands but did not permit the reversal of previous withdrawals, and that President Trump’s actions accordingly violated the separation of powers doctrine (by “intrud[ing] on Congress’s non-delegated” Property Clause power) and were also unlawful under OCSLA.13 Also, many of these same plaintiffs were parties to the original, abovementioned case in the District of Alaska, and they moved the district court to set aside its dismissal of that case as moot and reinstate its order and judgment holding President Trump’s revocation of earlier OCSLA withdrawals through EO 13795 (which returned to effect when President Trump rescinded President Biden’s EO 13990) unlawful. To support their request for the court to reinstate its previous order and judgment, the plaintiffs argued that doing so would “serve justice” and “conserve judicial resources,” and that no “non-moving parties” would be prejudiced by reinstatement, as intervenors and the government could still appeal the district court’s reinstated order.14 Amid these competing lawsuits, the future of President Biden’s and President Trump’s actions on the OCS remains undecided.
Looking Forward
The importance of domestic energy production, such as OCS oil and gas development, to the current Administration is underscored by the recent announcement on February 14, 2025, establishing the National Energy Dominance Council (“NEDC”). The NEDC, which will be chaired by Secretary of the Interior Burgum and vice-chaired by Secretary of Energy Chris Wright, will advise the President on strategies to achieve energy dominance, including strategies to improve permitting, production, and regulatory processes “across all forms of American energy.”15 In establishing the NEDC, President Trump specifically highlighted the importance of utilizing national assets including oil and natural gas.16 Thus, it seems likely that the Administration would seek to reopen these areas for leasing, and the effect of the reversal of the withdrawal will be front and center to that case.
1 See U.S. Dep’t of Interior, Secretary’s Order No. 3420, Announcing President Trump’s Revocation of Former Outer Continental Shelf Withdrawals (Feb. 3, 2025), https://www.doi.gov/sites/default/files/document_secretarys_orders/so-3420-signed.pdf.
2 U.S. Dep’t of Interior, “President Biden Takes Action to Protect America’s Coastlines from Future Oil and Gas Leasing,” news release (Jan. 6, 2025), https://www.doi.gov/pressreleases/president-biden-takes-action-protect-americas-coastlines-future-oil-and-gas-leasing. Please note, the map depicted here is derived from a composite of the maps presented on the Department’s website as of January 21, 2025.
3 43 U.S.C. § 1301 et seq.
4 BOEM Gulf of Mexico OCS Region Blocks and Active Leases by Planning Area January 2, 2025, Bureau of Ocean Energy Mgmt. [“BOEM”], https://www.boem.gov/sites/default/files/documents/oil-gas-energy/leasing/regional-leasing/gulf-mexico-region/GOMR-ActiveLease-Map.pdf (last accessed Jan. 13, 2025).
5 Oil and Gas – Gulf of America Webpage, BOEM, https://www.boem.gov/regions/gulf-mexico-ocs-region/oil-and-gas-gulf-mexico#:~:text=The%20Gulf%20continues%20to%20be,on%20production%2C%20and%20rental%20fees (last accessed Jan. 13, 2025).
6 BOEM, “Gulf of Mexico OCS Region Blocks and Active Leases by Planning Area.”
7 For perspective, in the Pacific OCS Region, a 2023 BOEM Report estimated this region’s remaining “proved reserves” of oil and gas to be 241 million barrels and 0.35 trillion cubic feet, respectively. For the Alaska OCS Region, using data from a 2021 BOEM Report, we estimate the three partially withdrawn Alaskan basins’ “undiscovered technically recoverable resources” of oil and gas at 82 million barrels and 1.5 trillion cubic feet, respectively.
8 43 U.S.C. § 1332(3).
9 Presidents George H.W. Bush, Bill Clinton, and Barack Obama have all withdrawn or extended the withdrawal of certain OCS lands from leasing. President George W. Bush modified previous withdrawals.
10 The district court referred to the Forest Service Organic Administration Act of 1897, the Pickett Act of 1910, and a 1935 act pertaining to the use of the Rio Grande. League of Conservation Voters v. Trump, 363 F. Supp 3d 1013, 1026 (D. Alaska 2019).
11 See Complaint at 2–3, 11–16, Texas v. Biden, Case No. 9:25-cv-10 (E.D. Tex. Jan. 20, 2025).
12 See Complaint at 2–4, 18–23, Louisiana v. Biden, Case No. 2:25-cv-71 (W.D. La. Jan. 17, 2025).
13 See Complaint at 40–43, N. Alaska Env’t Ctr. v. Trump, Case No. 3:25-cv-38 (D. Alaska Feb. 19, 2025).
14 See Plaintiffs’ Rule 60(b)(6) Motion at 1, 7–9, 10, League of Conservation Voters v. Trump, Case No. 3:17-cv-101 (Feb. 19, 2025).
15 The White House, Fact Sheet: President Donald J. Trump Establishes the National Energy Dominance Council (Feb. 14, 2025), https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-establishes-the-national-energy-dominance-council/.
16 See Exec. Order No. 14213, Establishing the National Energy Dominance Council, 90 Fed. Reg. 9,945 (Feb. 20, 2025), available at https://www.whitehouse.gov/presidential-actions/2025/02/establishing-the-national-energy-dominance-council/.