Monumental Decisions: One-Way Levers Towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act

43 Pages Posted: 7 Mar 2018 Last revised: 11 Apr 2018

Jayni Hein

NYU School of Law; Institute for Policy Integrity, NYU School of Law

Date Written: August 20, 2017

Abstract

This Article seeks to answer a key question: Do the Congressionally delegated powers of the President of the United States to withdraw offshore areas from mineral leasing and to designate national monuments imply that a President has the power to rescind or diminish such designations made by prior Presidents? It answers in the negative, consistent with the enduring national narrative that public lands should be regulated according to principles of democratic decision making, especially where important public trust interests are at stake. The powers conferred to the President in the Antiquities Act of 1906 and section 12(a) of the Outer Continental Shelf Lands Act (OCSLA) operate in one direction only: towards preservation. Presidents do not have the authority to rescind or diminish national monument designations or to restore permanently withdrawn areas to offshore leasing. Congress retains this authority through its plenary power over public lands set forth in the Property Clause of the U.S. Constitution.

This Article fills a gap in the existing literature by identifying common threads running through OCSLA section 12(a), the Antiquities Act, and the common law public trust doctrine. Longstanding public trust doctrine jurisprudence reflects the principle that important public land decision making should be done by legislatures, through their deliberative and democratic process, or pursuant to explicit legislature authority. The doctrine provides important context for a history of public lands jurisprudence in which courts demand greater justification for actions diminishing public lands than for protecting those same lands. The one-way lever structure of the Antiquities Act and OCSLA section 12(a) is consistent with this historical framework, empowering the President to take unencumbered action to protect natural resources, but leaving the more “monumental” question of whether to remove such public land protections up to Congress, alone. Furthermore, this Article argues that the public trust doctrine should serve as a background principle or canon of interpretation for public land statutes. Where, as here, a statute is silent as to whether the President can diminish public land protections, courts should presume that Congress retained such power exclusively for itself.

Keywords: Monuments, offshore leasing, Antiquities Act, OCSLA section 12(a), public trust doctrine, Property Clause

Suggested Citation

Hein, Jayni, Monumental Decisions: One-Way Levers Towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act (August 20, 2017). 48 Envt'l L. 125 (2018); NYU School of Law, Public Law Research Paper 18-20. Available at SSRN: https://ssrn.com/abstract=3028341

Jayni Hein (Contact Author)

NYU School of Law ( email )

139 MacDougal St.
New York, NY 10012-1099
United States

Institute for Policy Integrity, NYU School of Law ( email )

139 MacDougal St.
New York, NY 10012-1099
United States

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