Source: Environmental Law Institute – Regulatory Reform
in the Trump Era
ACTORS: President, Congress
Presidents have statutory authority to set aside federal lands and waters to create national monuments or otherwise protect environmental, cultural, and other resources. These actions may be challenged or affected by subsequent actions of a president or by congressional legislation.
National Monuments. Sixteen presidents, including Presidents Barack Obama and George W. Bush, have used their authority under the Antiquities Act of 1906 to create national monuments by “public proclamation.” 54 U.S.C. § 320301. These proclamations set aside federal lands and waters that contain “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,” and protect these resources from incompatible activities such as mining, leasing, logging, grazing, collecting, commercial fishing, and other uses. Under the Act, these monument reservations are to be the “smallest area compatible with the proper care and management of the objects to be protected,” which courts nonetheless have recognized can include huge acreages.
Leasing Withdrawals. In addition, Section 12(a) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1341(a), grants the president authority “from time to time, to withdraw from disposition any of the unleased lands” of the outer continental shelf. This authority has been used by six presidents to establish and maintain temporary oil and gas leasing moratoria as well as to create permanent protected areas. President Obama recently withdrew certain areas of the OCS, including large portions of the U.S. Arctic and the underwater canyon complexes off the Atlantic Coast, from leasing for exploration, development or production “for a time period without specific expiration.” Section 12(a) does not provide explicit criteria for the exercise of this withdrawal power.
Process. Actions by the President. The Antiquities Act provides no express authority for a president to revoke a monument proclamation.1 No president has ever attempted to abolish a national monument by executive action, so there is no case law addressing a revocation. A 1938 Opinion of the Attorney General concluded that the president lacks legal authority to abolish a national monument, finding that the establishment of the monument in accordance with the Act is the one-way creation of a trust over the resources (“the President thereafter was without power to revoke…the reservation”).
On occasion, a president has diminished the size of an existing monument or changed the regulations governing uses on a monument, although this authority is in dispute. Unlike certain other statutes, the Antiquities Act does not expressly include a power to modify. The last diminution of an existing monument by executive action occurred in 1960 under President Eisenhower. In general, presidential authority to diminish the area protected by a previous monument proclamation has been grounded on assertions that the area is no longer, per the Act, the “smallest area” compatible with protection of the
monument’s objectives. The 1938 Attorney General opinion observed that the president can diminish the area of an existing national monument; however, the rationale for this part of the opinion has been questioned in view of several changes in the laws and recedents it relied on.2
Opportunities For Public Engagement. Interested stakeholders may advocate to the White House and Congress in relation to possible presidential or congressional action to revoke these protections. One would expect such appeals to focus on the values being protected, the question of precedent for an exercise of executive authority of this kind, and the business case for continued protection of these areas, including economic benefits from prior designations, as well as modeling potential oil and gas impacts/spills in OCSLA withdrawal areas.
Interested parties may also have litigation options, provided they can demonstrate injury resulting from any revocations or modifications, with special attention to issues of standing and ripeness (immediacy of the injury). Note the National Environmental Policy Act (NEPA) does not apply to acts of the President or to Congress, and itself provides no basis for challenging these actions. However, NEPA (and other laws) will apply to agency adoption of management plans and decisions implementing these proclamations.
Stakeholders may also wish to focus attention on the question of funding for the monuments and withdrawal areas through the Congressional appropriation process, as most conservation actions that were once under attack (national parks, marine sanctuaries) eventually became supported by congressional endorsement or budget action.
1 Congressional Research Service, National Monuments and the Antiquities Act (Sept. 7, 2016).
2 See M. Squillace, The Monumental Legacy of the Antiquities Act of 1906, Georgia L. Rev. (2003); Congressional Research Service, Authority of a President to Modify or Eliminate a National Monument (Aug. 3, 2000).