Trump’s Order to Open Arctic Waters to Oil Drilling Was Unlawful, Federal Judge Finds

By Coral Davenport

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WASHINGTON — In a major legal blow to President Trump’s push to expand offshore oil and gas development, a federal judge ruled that an executive order by Mr. Trump that lifted an Obama-era ban on oil and gas drilling in the Arctic Ocean and parts of the North Atlantic coast was unlawful.

The decision, by Judge Sharon L. Gleason of the United States District Court for the District of Alaska, concluded late Friday that President Barack Obama’s 2015 and 2016 withdrawal from drilling of about 120 million acres of Arctic Ocean and about 3.8 million acres in the Atlantic “will remain in full force and effect unless and until revoked by Congress.” She wrote that an April 2017 executive order by Mr. Trump revoking the drilling ban “is unlawful, as it exceeded the president’s authority.”

The decision, which is expected to be appealed in the Ninth Circuit Court of Appeals, immediately reinstates the drilling ban on most of the Arctic Ocean off the coast of Alaska, a pristine region home to endangered species including polar bears and bowhead whales where oil companies have long sought to drill. Along the Atlantic coast, it blocks drilling around a series of coral canyons that run from Norfolk, Va., to the Canadian border which are home to unique deepwater corals and rare fish species.

In addition, Friday’s ruling by the judge, an Obama appointee, has broader implications for Mr. Trump’s effort to push drilling across the American coastline and on public lands.

Specifically, the Arctic Ocean drilling case could give legal ammunition to opponents of Mr. Trump’s efforts to roll back protections for two million acres of national monuments created by Mr. Obama and President Bill Clinton.

The case adds to a growing roster of legal losses for Mr. Trump’s efforts to undo Mr. Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.

Most immediately, the decision will force the Interior Department to withdraw the waters of the Arctic Ocean from its forthcoming plan detailing where the federal government intends to lease federal waters to oil companies for offshore drilling. A draft of that plan published last year called for drilling off the entire United States coastline.

The White House referred questions on the matter to the Interior Department, where a spokeswoman declined to comment.

And although Friday’s court decision relates specifically to a law on offshore drilling, it could also hamstring Mr. Trump’s efforts to erase or reduce the creation of large protected areas of public lands by previous presidents.

“The statutes and the Supreme Court have been silent on the authority of a president to modify or reduce a predecessor’s protections of these public lands, waters and monuments,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. “But these decisions are showing that if a president wants to reverse a predecessor’s environmental policy, they have to give a cogent reason why. Just saying ‘energy dominance’ is not enough. Saying ‘I won the election’ is not enough.”

Professor Parenteau predicted that the case was likely to reach the Supreme Court, though probably not for several years.

Both Mr. Obama’s efforts to use his executive authority to ban drilling in the Arctic Ocean, and Mr. Trump’s efforts to undo that ban, are legally unprecedented.

In using his executive authority to permanently ban drilling in most of the Arctic Ocean, Mr. Obama relied on an obscure provision of a 1953 law, the Outer Continental Shelf Lands Act, which governs how the executive branch uses federal waters for offshore energy exploration.

The law includes a provision that lets presidents put those waters off limits to oil and gas drilling. Presidents Dwight D. Eisenhower, Richard M. Nixon and Mr. Clinton used the law to protect sections of the Atlantic, Pacific and Arctic Oceans, but those protections came with time limits, usually one to two decades.

In late 2016, as he sought to legally cement environmental protections before Mr. Trump, then the president-elect, took office, Mr. Obama used what both supporters and critics called a creative and unusual interpretation of that law to set a permanent ban on drilling in most of the Arctic Ocean. 

Three months after taking office, Mr. Trump issued an executive order rescinding the ban. That made him the first president to seek to revoke a decision by his predecessor to use the law to protect federal waters.

Environmental groups promptly sued the administration over the move. They welcomed Friday’s court decision.

“Since coming into office, Trump has been on an one-man campaign to undo the work of his predecessor,” said Niel Lawrence, a lawyer with the Natural Resources Defense Council, who took part in the oral arguments in the Alaska case. “What this opinion confirms is that there are constitutional limits to that.”

Erik Milito, a spokesman for the American Petroleum Institute, which lobbies for the oil industry and which joined the Trump administration’s case, said, “While we disagree with the decision, our nation still has a significant opportunity before us in the development of the next offshore leasing plan to truly embrace our nation’s energy potential and ensure American consumers and businesses continue to benefit from U.S. energy leadership.”

Experts said that Judge Gleason’s decision could affect the legal outcome of Mr. Trump’s efforts to roll back certain protections created by his predecessors on public lands.

Just as presidents have used the 1953 offshore-drilling law to protect federal waters, they have used a different law, the 1906 Antiquities Act, put in place by President Theodore Roosevelt, to designate and protect millions of acres of lands as permanent public monuments. Presidents throughout the past century have created such monuments. 

While at least two presidents have used their authority to shrink the size of monuments created by their predecessors, Mr. Trump has done so at a more drastic scale. In December 2017, Mr. Trump cut about two million acres from two national monuments in Utah: the Bears Ears monument, created by Mr. Obama, and the Grand Staircase-Escalante monument, created by Mr. Clinton. At the time it was the largest rollback of federal land protection in the nation’s history.

Already, lawsuits on the issue are making their way through federal courts. Professor Parenteau and others predicted that Judge Gleason’s decision could possibly have a bearing on those cases. 

That is because, in the language of both laws, Congress gave the president the right to occasionally designate public lands and waters for protection. However, each of the laws is silent on whether a successor can reduce or revoke those protections.

If Mr. Trump’s challengers win in court, the decision could affirm future presidents’ right to set bans of offshore drilling that could be undone only by Congress (as opposed to a later president) and similarly could set a precedent that presidential decisions to expand protections of public land could be revised or reversed only by Congress.

If Mr. Trump prevails in court, future presidents could potentially use an executive order to shrink any of the dozens of monuments created by their predecessors or similarly revoke presidential decisions to protect federal waters.

Correction: March 30, 2019

An earlier version of this article misstated the year that a draft of an Interior Department plan for leasing federal waters was published. It was last year, not 2017.

Robert Mueller May Not Have Found Evidence of Collusion, But His Report Proves the System Worked

James Risen

Brian Frosh is no Robert Mueller.

The little-known Maryland state attorney general lacks Mueller’s resume and gravitas. But Frosh is one of a legion of government officials, both in Washington and around the country, who are prepared to continue the fight against Donald Trump as Mueller’s special counsel probe comes to an end.
On Sunday, William Barr, Trump’s new attorney general, issued a summary of the findings of Mueller’s investigation, saying that the special counsel ultimately found no evidence that the Trump campaign had colluded with Russia to win the 2016 presidential election.

While Trump predictably declared himself exonerated, the most important fact was that Mueller was able to complete his investigation. That the special counsel conducted a comprehensive inquiry and followed it through to its natural end is an important sign that the U.S. system of checks and balances is bouncing back, and that the slide into a Trump autocracy has been halted.
That was not always a sure thing. Early in his presidency, Trump appeared eager to bulldoze the traditions, norms, and checks and balances that regulate the U.S. government and limit presidential power. And it looked like he might just get away with it. Trump fired FBI director James Comey to try to get rid of the Trump-Russia investigation, and then considered firing Mueller after he was named special counsel.

Eventually, Trump realized that would cause a firestorm of protest, and he backed down.

In hindsight, that seems to have been a watershed moment in the Trump presidency. Mueller was able to hang on by his fingernails and went on to investigate some of the most troubling questions ever raised about a president, including whether Trump had conspired with a foreign power to gain the White House.

While he ultimately concluded that there was no collusion between the Trump campaign and Russia, Mueller’s investigation still led to a series of guilty pleas and convictions of a number of high-profile people in Trump’s orbit.
Yet Mueller’s most important legacy may be that he helped keep the system of checks and balances from dying just long enough for others to take up the mantle.

That leaves plenty of room for officials like Frosh, who, along with the attorney general of the District of Columbia, has filed a lawsuit against Trump, arguing that the president’s continued business dealings – specifically, the operation of Trump’s hotel in Washington – violate the Constitution by enabling the president to receive “emoluments,” or payments, from foreign governments and states. Frosh and DC Attorney General Karl Racine argue that even as president, Trump has continued to have a financial interest in the hotel, which has become a cesspool of lobbyists and other favor seekers, including foreign officials who stay there when they are visiting Trump.

“I got a quick education in emoluments after Trump got elected,” Frosh told The Intercept. “It is very clear. The framers of the Constitution were very concerned that the president would be for sale, both to foreign governments and to others. These are bright lines, and no other President has tested these lines. Trump just blew through them.”

Frosh’s lawsuit has received a mixed reception in the courts, but it is just one of a growing number of signs that Trump is being curbed.

Mueller’s full report has not been made public, but in his letter to congressional leaders summarizing the special counsel’s findings, Barr wrote that Mueller found that the Russians did try to intervene in the 2016 election through two main avenues. The Internet Research Agency, a Russian organization, conducted a social media disinformation campaign to interfere in the election, while the Russian government conducted computer hacking operations against the Democrats and then leaked Democratic emails through intermediaries, including WikiLeaks.

However, Barr wrote, “the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Barr also said that Mueller didn’t decide whether Trump should be prosecuted for obstruction of justice as part of the inquiry. He said that Mueller laid out the evidence but “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction.” Mueller didn’t conclude that Trump had committed a crime, but also did not exonerate him, Barr wrote. Since Mueller didn’t make a decision, Barr noted, he and Deputy Attorney General Rod Rosenstein concluded that there is not enough evidence to charge Trump with obstruction of justice.

One factor in their decision was Mueller’s conclusion that the evidence didn’t show that Trump was guilty of an underlying crime related to Russian meddling in the election, Barr wrote. His letter provided very few other details about Mueller’s findings.

Trump supporters will see the special counsel’s report as a vindication of the president, but its completion can also be read another way. Trump now faces a whole series of other inquiries, some of which stemmed from Mueller’s original investigation. Those other investigations likely include inquiries resulting from the case against Trump’s former lawyer Michael Cohen, as well as a probe of Trump’s inaugural committee.

Even as federal prosecutors have continued those inquiries, state officials have also joined the fray. In addition to Frosh from Maryland and Racine from the District of Columbia, other Democratic law enforcement officials, including Letitia James, New York’s newly-elected attorney general, have vowed to aggressively confront Trump. Earlier this month, meanwhile, the Manhattan District Attorney indicted former Trump campaign manager Paul Manafort on charges related to mortgage fraud, after Manafort had already been convicted in Mueller’s investigation.

Of course, one critical reason that the system of checks and balances is recovering is that the Democrats regained control of the House of Representatives in the 2018 mid-term election. Democratic control of the House means there can be aggressive congressional investigations into Trump for the first time. For the first two years of Trump’s presidency, the Republican-controlled Congress enabled Trump, and Republican leaders allowed themselves to become Trump’s lackeys. But now the House Intelligence Committee, Oversight, and Judiciary committees are all ready to pick up where Mueller left off.

“I think Congress is roaring back to life,” observed Kim Wehle, a law professor at the University of Baltimore.

Of course, Trump still has lots of advantages as he faces the next round of prosecutorial investigations and congressional inquiries. The Justice Department’s longstanding legal opinion is that a sitting president cannot be indicted in a federal criminal case, and any federal prosecutor who seeks to charge Trump will have to overcome that legal advice. (State prosecutors, however, would not face the same obstacle.) In addition, the Republicans still control the Senate, which makes impeachment virtually impossible, even if prosecutors find evidence of serious wrongdoing by Trump.

And hanging over everything is the 2020 presidential election. If Trump wins, he may be emboldened once again to try to destroy the nation’s system of checks and balances.

James Comey: What I Want From the Mueller Report

By James Comey

Mr. Comey is a former director of the Federal Bureau of Investigation.

The country is eagerly awaiting the special counsel Robert Mueller’s report. Many people know what they want it to say — what they feel it simply must say — namely, that Donald Trump is a criminal who should be removed from office. Or that he is completely innocent of all wrongdoing.

But not everyone knows what it “must” say. Even though I believe Mr. Trump is morally unfit to be president of the United States, I’m not rooting for Mr. Mueller to demonstrate that he is a criminal. I’m also not rooting for Mr. Mueller to “clear” the president. I’m not rooting for anything at all, except that the special counsel be permitted to finish his work, charge whatever cases warrant charging and report on his work.

President Trump’s constant attacks on the special counsel, the Federal Bureau of Investigation and the Justice Department over the past two years raised the prospect that he would interfere to stop the special counsel’s work. It is deeply concerning that the president of the United States would try to protect himself by torching the institutions of justice. But he hasn’t used his authority to end Mr. Mueller’s work. (That would have been a crisis of a different order — shutting down the investigation, rather than just trying to undermine its credibility.) So we are in a position to wonder and hope about the report’s content.

 Wondering is fine. But hoping for a particular answer is not. The rule of law depends upon fair administration of justice, which is rooted in complete and unbiased investigation. We are best served when an investigation finds all relevant facts and illuminates the fullest possible view of the truth.

I have no idea whether the special counsel will conclude that Mr. Trump knowingly conspired with the Russians in connection with the 2016 election or that he obstructed justice with the required corrupt intent. I also don’t care. I care only that the work be done, well and completely. If it is, justice will have prevailed and core American values will have been protected at a time when so much of our national leadership has abandoned its commitment to truth and the rule of law.

I am rooting for a demonstration to the world — and maybe most of all to our president and his enablers — that the United States has a justice system that works because there are people who believe in it and rise above personal interest and tribalism. That system may reach conclusions they like or it may not, but the apolitical administration of justice is the beating heart of this country. I hope we all get to see that.

The interests of justice will also be best served by maximum transparency about the special counsel’s work. I don’t know all the considerations that will go into deciding precisely what to say about the completion of that work and when to say it. But because the Department of Justice is guided first and always by the public interest, it should provide details about finished investigations when the public needs to know them, as it traditionally has.

I do have one hope that I should confess. I hope that Mr. Trump is not impeached and removed from office before the end of his term. I don’t mean that Congress shouldn’t move ahead with the process of impeachment governed by our Constitution, if Congress thinks the provable facts are there. I just hope it doesn’t. Because if Mr. Trump were removed from office by Congress, a significant portion of this country would see this as a coup, and it would drive those people farther from the common center of American life, more deeply fracturing our country.

Critics of Mr. Trump should hope for something much harder to distort, or to nurse as a grievance, than an impeachment. We need a resounding election result in 2020, where Americans of all stripes, divided as they may be about important policy issues — immigration, guns, abortion, climate change, regulation, taxes — take a moment from their busy lives to show that they are united by something even more important: the belief that the president of the United States cannot be a chronic liar who repeatedly attacks the rule of law. Then we can get back to policy disagreements.

I just hope we are up to it.

How Did the F.A.A. Allow the Boeing 737 Max to Fly?

By John Cassidy

With virtually every day that has passed since the crash of Ethiopian Airlines Flight 302, which killed a hundred and fifty-seven people, more disturbing news has emerged. On Sunday, a spokesperson for Ethiopia’s ministry of transport said that the black box that was recovered from the wreckage of Flight 302 indicated that “clear similarities were noted between Ethiopian Airlines Flight 302 and Indonesian Lion Air Flight 610,” which crashed last October, killing a hundred and eighty-nine people.

The plane involved in the Lion Air tragedy was also a Boeing 737 Max 8, and investigators suspect that the cause of that crash was a malfunctioning automated-flight-control feature, which caused the aircraft’s nose to dip repeatedly during its initial ascent out of the airport in Jakarta. The automated-flight-control feature on the 737 Max, which is called a Maneuvering Characteristics Augmentation System (MCAS), was designed to prevent a high-speed stall. It works by tilting part of the horizontal stabilizer in the tail of the plane, and investigators at the Ethiopian crash site have found physical evidence that this part of the plane was, indeed, configured to dive.

Radar data has indicated that both planes jerked up and down in erratic fashion after takeoff. The captain of the Ethiopian Airlines flight reported a “flight control” problem to the air-traffic control tower. Data from the black box of the Lion Air plane showed that its pilots repeatedly pulled back on the control yoke to try to disengage the MCAS and level the flight path of the plane. “The pilots fought continuously until the end of the flight,” an official from the Indonesian National Transportation Safety Committee said in November, after the plane’s black box was recovered.

This is all frightening enough, and it raises serious questions about why Boeing didn’t tell airlines and pilots much more about the MCAS—in particular, how to disengage it in an emergency—before the 737 Max was put into service in 2017. Boeing has delivered three hundred and seventy-six of these planes to airlines around the world. Practically all of them have now been grounded out of safety concerns.

Boeing has promised a software fix to address some of the potential problems created by the MCAS. That’s too little, too late, of course, and it doesn’t address the even larger issue of how the 737 Max was allowed to fly in the first place. On Sunday, the Seattle Times, the home-town newspaper of Boeing’s commercial division, published the results of a lengthy investigation into the federal certification of the 737 Max. It found that the F.A.A. outsourced key elements of the certification process to Boeing itself, and that Boeing’s safety analysis of the new plane contained some serious flaws, including several relating to the MCAS.

The Boeing analysis “understated the power of the new flight control system,” the Seattle Times article said. “When the planes later entered service, MCAS was capable of moving the tail more than four times farther than was stated in the initial safety analysis document.” The Boeing analysis also “failed to account for how the system could reset itself each time a pilot responded, thereby missing the potential impact of the system repeatedly pushing the airplane’s nose downward.”

In the case of the Lion Air flight, investigators suspect the MCAS was reacting to faulty data gathered from a single flight sensor mounted on the fuselage. According to the Seattle Times article, the Boeing analysis assessed the failure of the MCAS system as “as one level below ‘catastrophic.’ But even that ‘hazardous’ danger level should have precluded activation of the system based on input from a single sensor—and yet that’s how it was designed.”

How can a manufacturer of something as complex and potentially dangerous as a passenger jet be allowed to play such a large role in deciding whether its product is safe? It turns out that the F.A.A., with congressional approval, has “over the years delegated increasing authority to Boeing to take on more of the work of certifying the safety of its own airplanes,” the Seattle Times said. In the case of the 737 Max, which is a longer and more fuel-efficient version of previous 737s, Boeing was particularly eager to get the plane into service quickly, so it could compete with Airbus’s new A320neo.

Early on, employees of the F.A.A. and Boeing decided how to divide up the certification work. But halfway through the process “we were asked by management to re-evaluate what would be delegated,” a former F.A.A. safety engineer told the Seattle Times. “Management thought we had retained too much at the FAA:”

“There was constant pressure to re-evaluate our initial decisions,” the former engineer said. “And even after we had reassessed it … there was continued discussion by management about delegating even more items down to the Boeing Company.”

Even the work that was retained, such as reviewing technical documents provided by Boeing, was sometimes curtailed.

“There wasn’t a complete and proper review of the documents,” the former engineer added. “Review was rushed to reach certain certification dates.
The new revelations don’t stop there. “Federal prosecutors and Department of Transportation officials are scrutinizing the development of Boeing Co.’s 737 MAX jetliners,” the Wall Street Journal reported on Monday. “A grand jury in Washington, D.C., issued a broad subpoena dated March 11 to at least one person involved in the 737 MAX’s development, seeking related documents, including correspondence, emails and other messages,” a source told the paper. (The Justice Department and Department of Transportation declined to comment on the Journal’s reporting.)

The criminal investigation began well before the crash of the Ethiopian Airlines Flight. It’s not clear yet whether it is focussing on the MCAS system, the report in the Journal said. But, that article added, “In the U.S., it is highly unusual for federal prosecutors to investigate details of regulatory approval of commercial aircraft designs, or to use a criminal probe to delve into dealings between the FAA and the largest aircraft manufacturer the agency oversees. Probes of airliner programs or alleged lapses in federal safety oversight typically are handled as civil cases, often by the DOT inspector general.”

In a statement to the Seattle Times, Boeing said that the F.A.A. “considered the final configuration and operating parameters of MCAS during MAX certification, and concluded that it met all certification and regulatory requirements.” The F.A.A., in a statement issued on Sunday, said that the “737 MAX certification program followed the FAA’s standard certification process.”

Given that two brand-new 737 Maxes have plunged to earth, befuddling their pilots and costing three hundred and forty-six people their lives, these statements are hardly reassuring. We need to know a lot more about how the FAA allowed this plane to take to the air.