The 2014 midterm election is finally upon us. It will be the deciding factor in a great many issues, but it also marks a time of change for President Obama: it marks the final two years of his presidency, a point where Presidents, historically, are more ready and willing to make controversial decisions. Obama’s presidency will likely be remembered as controversial as is, so how will our fearless leader cut loose now that he’s past the last significant election of his time in the White House?
Health care has been a major focus for the Obama administration, and in the face of an uncooperative congress this choice came at the detriment of other issues, like environmental policy. But not entirely. During his time in office, Obama has made good use of the Presidential Monument power, which finds its roots in the Antiquities Act of 1906 and allows the president to unilaterally declare areas as national monuments. While preserving areas of historical significance is the power’s intended use, the it certain can be used in other ways—and the President has capitalized on that. As Wayne J. D’Angelo writes on Fracking Insider:
President Obama has, so far, exercised this power thirteen times; President George W. Bush used it five times, and President Clinton used it nineteen. President Obama, however, has used it to designate more than 260 million acres of land and water as national monuments—almost three times more than any other President.
Most recently, the President designated 350,000 acres of the San Gabriels Mountains in California as a national monument. At the ceremony, President Obama announced that he’s “not finished,” and that his administration is “looking at additional opportunities to preserve federal lands and waters.” As President Obama enters into the final two years of his term, he will likely increasingly use his monument authority to designate more lands and waters as national monuments and may also seek to restrict access to oil and gas drilling development and other land use industries as well.
While the power has not yet been applied to protecting public land against natural gas-related development, Obama has already used his monument power for nature conservation. In September, he expanded the Pacific Remote Islands Marine National Monument reserve to about six times its previous size, creating an area of 490,000 square miles where deep sea mining and commercial fishing would be banned. He’s already demonstrated a greater willingness to use his authority since being reelected, with nine of his monuments coming in his second term.
The monument power’s potential influence isn’t limited only to the types of practices—specifically, energy-extraction practices—environmentalists traditionally speak out against. Just yesterday, growing frustrated of Congress refusing to act on the issue, Senator Dianne Feinstein threatened to ask President Obama to create two national monuments in the Mojave Desert to protect the area from, among other things, solar energy development.
Getting back to fracking, though Obama has been supportive of the practice—or natural gas development, as he referred to it in the State of the Union address this year—it remains a controversial topic across the country. Today, voters in Denton, Texas will vote on whether or not to institute a ban on fracking within the city limits. Being the first city in Texas to consider a ban brings its own challenges however, with a suit already being brought against the city. And according to Justin Scott at North America Shale Blog that could only be the beginning:
Beyond the suit by [Charles Chandler] Davis, various energy industry representatives have stated their intention, if the hydraulic fracturing ban passes, to file similar takings suits. At the July 15, 2014, meeting where the Denton City Council voted 5-2 to reject the proposed ban and set up the November 4th vote, Tom Phillips, a former chief justice of the Texas Supreme Court who is currently representing the Texas Oil & Gas Association, stated that “some members of [the Texas Oil and Gas Association] will undoubtedly sue.” Phillips also broadcast his belief that if citizens in Denton wish to ban hydraulic fracturing they should seek to do so at the state-wide, rather than municipal, level. “If they want Texas law to ban hydraulic fracturing, they should take their cause to the Texas Legislature. That is the only governing body in the state with the authority to grant the relief they seek.” Rep. Phil King, R-Weatherford, said the most likely action the legislature would take on the issue would be to outlaw cities from passing bans. “If it passes in Denton, I feel very confident that there will be legislation—in fact, I’ll probably file it myself—to prohibit cities from total bans on fracking,” he said.
It’s a pattern that’s played out in plenty of places. While a mayor in New Jersey has encouraged towns and counties to step in to ban fracking instead of the state, places like West Virginia have overturned fracking bans put in place by voters. A judge in Colorado recently overturned a Fort Collins moratorium on fracking on the similar grounds that it violated the state’s authority on the subject (in this case Colorado Oil and Gas Conservation Act). In fact, all three of Colorado’s fracking bans voted in during late 2013 have been overturned, the other two being Lafayette and Longmont. The debate will likely continue to wage, as long as there’s dispute over the consequences of fracking, but it’s clearly one where the final decision-making power is moving from the voters to the judiciary—with desire from certain lawmakers, beyond just at the state and local level, for it to be regulated at the state-level.
In fact, a year ago the House passed a bill addressing exactly that, one that would let states decide regulations around fracking on federal lands. The bill has not yet made its way through the Senate, but with that chamber expected to be Republican-controlled after the results of today’s elections, it could be assumed that the bill will make its way all the way to the White House. The thing is, Obama has already said he’d veto it, making it clear he’d like some level of oversight over fracking—and with Congress, as mentioned, likely being completely Republican controlled, this monument power may be Obama’s only outlet for stepping in to regulate fraction where he deems it necessary.
Though, his use of it has already drawn the ire of some Republicans who have declared it a sign of “an imperial presidency.” They argue that technically it is an abuse of the monument power, which (though frequently interpreted more widely) was originally intended to allow presidents power to protect Native American artifacts, ruins, and antiquities. Obama’s not the first president, let alone the first elected official, to see this as a workaround to congress in stalemate.
Now that Obama’s in the homestretch of his presidency he could opt to forgo the traditional pardons and instead step into the fracking battle that until now has largely been fought at the lower levels. His track record so far (and the 2015 fiscal year budget put out by the White House) says that he won’t just roll around the country shutting down fracking operations, but now that the gloves are finally coming off we could see him wading into more contentious issues, and environmental protection could be at the top of the list.