Interior Secretary Ryan Zinke may have put the Trump administration on shaky legal ground by agreeing to remove Florida’s waters from consideration for offshore drilling.
Zinke announced his decision Tuesday, minutes after meeting with Florida Gov. Rick Scott (R) at Tallahassee’s airport. Florida would be removed from consideration for drilling, Zinke said, due to the importance of tourism to the state.
“I support the governor’s position that Florida is unique and its coasts are heavily reliant on tourism as an economic driver,” Zinke said in a statement late Tuesday.
But after Zinke’s announcement, the leaders from numerous other coastal states quickly chimed in, saying they’re entitled to the same treatment.
“New York doesn’t want drilling off our coast either. Where do we sign up for a waiver @SecretaryZinke?” New York Gov. Andrew Cuomo (D) tweeted.
“We’d like a word in Virginia,” wrote incoming Virginia Gov. Ralph Northam.
Rep. Mark Sanford (R-S.C.), an opponent of offshore drilling, criticized the decision, saying it was likely self-serving on President Trump’s part due to the costal location of his private Mar-a-Lago club.
“I mean, you can’t say ‘I don’t want to see an oil rig from Mar-a-Lago as I look out from the waters of Palm Beach, but it’s OK to look at an oil rig out from Hilton Head of Charleston, S.C.,’ ” he said on “CNN Newsroom” with Brooke Baldwin.
From both a political and a legal perspective, Zinke may have painted himself into a corner. If the Trump administration extends the logic applied to Florida to the rest of the country, its “Energy Dominance” agenda could be in peril.
Zinke, last week, proposed considering offshore oil and natural gas drilling nearly everywhere, including along the Pacific, Atlantic and Gulf of Mexico coasts and in nearly every spot around Alaska, save for Bristol Bay.
The only coastal state governors who have not asked to be excluded from the drilling are in Maine, Georgia and Alaska.
Scott, who is close with Trump and may run for the Senate, denounced Zinke’s consideration of Florida. The governor had been working to bolster his environmental credentials ahead of the potential challenge against Sen. Bill Nelson (D), who has fought to prevent offshore drilling near Florida for decades.
While taking Florida off the list could prove helpful to Scott, the way the decision was made could prove problematic.
Other states and legal experts say Zinke created a new standard that should apply to any state that wants it. Any other action could give opponents legal ammunition in suing the Trump administration over its drilling plan.
While Democratic governors in coastal states have sought to be exempted from offshore drilling, they aren’t alone.
Even Republican allies of Trump, including outgoing New Jersey Gov. Chris Christie and South Carolina Gov. Henry McMaster, have made the same request.
Interior spokeswoman Heather Swift said Zinke is listening to governors, adding that Scott isn’t getting any special favors.
“The secretary has said since day one that he is interested in hearing the local voice,” she said.
“Gov. Scott requested a meeting the day the plan was released. If other governors would like to request meetings with the secretary, they are absolutely welcome to do so.”
Only McMaster and North Carolina Gov. Roy Cooper (D) had requested such a meeting by Wednesday morning, Swift said.
Michael Livermore, a University of Virginia School of Law professor who represented environmentalists in an unsuccessful attempt to block a previous offshore plan, said the Florida decision adds to his view that Zinke is crafting a plan that is arbitrary.
“That’s exactly the kind of thing that can get a program struck down, is a bunch of arbitrary decisions like this,” Livermore said.
Drilling plans, like other major policy decisions by agencies, can be challenged in court once they’re made final. The department’s moves would be judged by their adherence to the Administrative Procedure Act, including a standard that government actions cannot be “arbitrary and capricious.”
“There’s a whole statute that explains how you’re supposed to make these decisions, and because you feel like it, or you like the governor, is not one of the reasons,” Livermore said.
More importantly, judges looking at the plan might view it as politically motivated, Livermore argued.
“They’re not idiots. They know that this is just a political deal,” he said.
After taking comments from stakeholders, Interior must release a new proposed drilling plan, take comments on it and then make it final. Those subsequent steps are usually where various areas would be taken out of the plan.
Rep. Raúl Grijalva (Ariz.), the top Democrat on the House Natural Resources Committee, said Zinke’s actions clearly wouldn’t withstand court challenges.
“This president makes up any rule, at any time, for any reason, whenever it suits him, and congressional Republicans applaud him every step of the way,” Grijalva said in a statement.
The oil industry is also angry with Zinke.
The eastern third of the Gulf of Mexico has long been off-limits for drilling, and the industry sees it as the best expansion prospect offshore.
Randall Luthi, president of the National Ocean Industries Association, called Zinke’s action “disappointing and premature.”
“Removing areas offshore Florida this early in the planning process prematurely curtails dialogue and thorough study of the possibilities for future development of offshore resources that could provide additional energy and jobs for working Floridians,” he said in a statement.
Livermore said that if the oil industry or a company wants to sue Zinke for excluding a certain area, like the eastern Gulf, they might do that.
“Frankly, I hope they have enough backbone to do it. If you are an outfit that wants drill in that area, you have been mistreated,” Livermore said, specifying that he doesn’t think eastern Gulf drilling is a good policy idea.
Updated: 3:55 p.m.