A federal judge issued an order Tuesday allowing a case filed by South Carolina against the Trump administration over seismic testing for offshore oil exploration to proceed. Judge Richard Gergel dismissed several of South Carolina’s legal arguments but allowed the case to proceed under their claim that Trump’s executive order authorizing the exploration exceeded his authority under the Outer Continental Shelf Lands Act.
“South Carolina argues that what it alleges to be an unlawful Executive Order ‘served as the genesis’ for a variety of actions by various federal agencies, including the seismic testing surveys under challenge,” Gergel wrote. The federal government moved to dismiss the complaint on the grounds that South Carolina’s assertions were “not credible” and “implausible.” But Gergel disagreed: “Without presuming to reach the merits of this argument at this stage of the litigation, there is certainly ample evidence that this is a sufficiently serious claim that a federal district judge has vacated Executive Order 13,795.”
Gergel’s reasoning relied in part on a March 2019 case in which the Alaska District Court held parts of the same executive order invalid. In response to that ruling, Interior Secretary David Bernhardt had stated that the government would be pausing its oil and gas leasing efforts while the issue was on appeal; the Alaska case is still before the Ninth Circuit. In his Tuesday decision, Gergel noted that the government’s brief requesting dismissal of the complaint “quite strikingly” failed to acknowledge the earlier ruling and the context in which oil and gas leasing was paused.
South Carolina also challenged the administration’s move with state common law theories of nuisance and trespass, as well as a claim under admiralty law. The judge dismissed these arguments on Tuesday, however. He noted that federal law sufficiently controlled the subject matter such that state law claims were impermissible. And South Carolina’s admiralty theory was an insufficiently developed and “extremely abbreviated” alternative, the judge said.
Nonetheless, the case will proceed in assessing the lawfulness of the executive order that led to authorizing the seismic testing. South Carolina Attorney General Alan Wilson stated gratitude for the decision, and said that “[t]his case is vital to South Carolina and its beautiful coastline and natural resources.”