Federal law allows presidents to protect coastal areas by withdrawing unleased lands on the outer continental shelf from development and sale. Acting under that authority, President Obama protected vast areas along the Arctic and Atlantic Oceans from oil and gas development. Although the relevant law does not authorize presidents to undo prior withdrawals of land, President Trump issued an executive order in 2017 purporting to rescind this federal protection. His order threatens harm to marine mammals and other wildlife meant to be protected by President Obama’s withdrawals, including beluga whales, ringed seals, and a range of fish and shellfish on which local businesses depend. Several environmental organizations filed suit, alleging that President Trump’s order exceeds his constitutional and statutory authority. A federal district court in Alaska agreed, and the administration appealed.

In February 2020, CAC filed an amici curiae brief on behalf of federal courts scholars in the Ninth Circuit. Our brief rebuts several arguments that the Trump administration is making in support of its request that this case be dismissed on procedural grounds.

The administration claims that environmental groups cannot challenge President Trump’s order in court because no statute gives them a “cause of action,” that is, legal authority to sue. As our brief explains, however, federal courts have always had the power to issue injunctions ordering government officials to stop engaging in unauthorized conduct that is injuring a plaintiff, regardless of whether any statute gives that plaintiff a cause of action. This form of “equitable” review reflects a long history in our legal tradition of judicially reviewing the legality of executive action. In arguing that a statutory cause of action is required, the Trump administration confuses this traditional type of judicial review with something entirely different—situations in which individuals claim that a statute gives them new rights or protections that they may enforce in court.

As our brief further explains, none of the administration’s other objections to the relief sought in this case withstands scrutiny. Among other things, the administration claims that sovereign immunity bars this suit and that the district court unconstitutionally issued an order directly enjoining the President. Our brief explains why these and other claims have no merit, which means that the court should proceed to determine whether President Trump’s executive order is unlawful.