When President Donald Trump signed an executive order to review and potentially abolish at least two-dozen national monuments on Wednesday, he promised an “end to another egregious abuse of federal power.”
“Today, we’re putting the states back in charge,” Trump said. But tellingly, Interior Secretary Ryan Zinke, who will lead the review, said, “We’re not afraid of getting sued.”
That’s probably good, because like a lot of Trump’s executive actions of the past 100 days, this one will face stiff challenges in the courts, challenges that experts agree Trump will likely lose.
“Usually, presidents are mutually respectful of prior executive designations despite ideological disagreements — until now,” said Hillary Hoffmann, a professor at Vermont Law School, adding that Trump signed the order “without legal authority.”
The review could rescind every monument established from presidents Bill Clinton to Barack Obama that spans at least 100,000 acres. In total, the lands and waters during these 20 years add up to tens of millions of acres and include a portion of the Sequoia National Forest in California, and Parashant National Monument in Arizona’s Grand Canyon.
The language of the order takes aim at the Antiquities Act, a law that delegates a small slice of power from Congress to the president to decide and approve national monuments. President Theodore Roosevelt signed the Antiquities Act into law in 1906 to prevent looting of Native American artifacts from archeological sites. Throughout his presidency, he designated 18 U.S. monuments, which include the Grand Canyon and Olympic National Park in Washington, spanning over a million acres in total.
Since the creation of the Antiquities Act, 15 presidents from both parties have used its power to provide protections for natural and cultural conservation on federal territories. Obama, for example, invoked the authority 34 times for over 553 million acres of water and land during his administration, more than any other president. Back in December, his designation of the 1.35 million-acre Bears Ears National Monument in Utah ignited strong opposition from Republicans, who claimed the unilateral approach ignored state and local interests. Many of these critics lobbied Trump to undo the action shortly after his election.
But legal scholars say it’s unlikely the president will be able to follow through on his promises, in part due to prior judicial interpretations of the Antiquities Act. Back in 1938, when President Roosevelt tried to abolish the Castle-Pinckney National Monument in South Carolina, Attorney General Homer Cummings wrote an opinion now considered precedent. “The statute does not in terms authorize the president to abolish national monuments, and no other statute containing such authority has been suggested,” he wrote.
Since then, the courts have upheld monument decisions, including cases concerning Clinton-era monuments defended by the Bush administration’s Justice Department, often citing the 1938 Cummings opinion.
“When an attorney general does such an expert-focused interpretation of a statute, it’s not going to be easy for Mr. Trump to de-designate,” said Zygmunt Plater, a professor at the Boston College Law School.
“Based on 50 years of consistent judicial respect for the attorney general’s opinion, it’s pretty clear that this is a one-way street. The president can designate, but only Congress can de-designate,” Plater said. “It will require an act of Congress to make it a two-way street, and I don’t think they’re going to do that.”
Numerous groups, including Sierra Club, Earthjustice, and the Natural Resources Defense Council are gearing up their legal challenges.
“This review is a first step towards monument rollbacks, which we will fight all the way. The president does not have the authority to reverse monument designations, and the public supports protection of public lands,” said Rhea Suh, president of the Natural Resources Defense Council, in a statement.
While Trump didn’t specify how the Interior Department will implement the review, Zinke said during the briefing that the review of the first monument, Bears Ears, will be based on discussions with lawmakers and local stakeholders and will create a plan for reviewing all other monuments on the docket. That’s due to Trump in 120 days.
During the briefing Wednesday, Zinke denied claims that the lands under review would open up to drilling. But the text of the executive order explicitly states that monument designations may “create barriers to achieving energy independence.” As a result, many opposition groups already see the action as a veiled attempt to expand domestic energy production both on water and land.
In fact, Trump is set to issue yet another executive order on Friday opening up areas available for offshore drilling.