D.C. Circuit Remands MMS' 5-Year OCS Plan for Reconsideration of Sensitive Areas Issues
In an opinion dated April 17, 2009, the United States Court of Appeals for the District of Columbia Circuit decided several challenges to the U.S. Minerals Management Services' Outer Continental Shelf oil and gas leasing plan for the period 2007-2012. The challenges focused on issues concerning oil and gas exploration and production in the Beaufort, Bering and Chukchi Seas off the coast of Alaska.
The Court held that MMS' 5-year plan violated Section 18(a)(2)(G) of the Outer Continental Shelf Leasing Act, which requires MMS to consider "the relative environmental sensitivity of
. . . different areas of the outer Continental Shelf." MMS tried to comply with this sensitive areas requirement by ranking the environmental sensitivity of various program areas in terms of only one factor: the "physical characteristics" of the shoreline of those areas. This ranking was based on MMS' use of the Environmental Sensitivity Index, which was developed by the National Oceanic and Atmospheric Administration. This NOAA Index considered the sensitivity of different shoreline areas to oil spills, and ranked them on that basis.
The Court agreed with the petitioners in the case that MMS' sole reliance on this study to measure the environmental sensitivity of the potential OCS leasing areas in the Leasing Program renders the Program is irrational and too narrow. The Court instructed MMS that
"on remand, [MMS] must first conduct a more complete comparative analysis of the environmental sensitivity of different areas 'of the outer Continental Shelf,' 43
U.S.C. § 1344(a)(2)(G) (emphasis added), and 'must at least attempt to identify those areas whose environment and marine productivity are most and least sensitive to OCS activity.' Watt I, 668 F.2d at 1313. Though [MMS] may ultimately conclude
as a result of this additional analysis that the shorelines of the Beaufort, Bering, and Chukchi Seas are the areas that are most sensitive to OCS development, such a conclusion cannot be reached without considering the effects of development on areas
of the OCS in addition to the shoreline. Once [MMS] has conducted its Section 18(a)(2)(G) analysis, [MMS] must then determine whether its reconsideration of the environmental sensitivity analysis warrants the exclusion of any proposed area
in the Leasing Program. See Watt I, 668 F.2d at 1314. Finally, having reconsidered its Section 18(a)(2) analysis, [MMS] must reassess the timing and location of the Leasing Program 'so as to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone,' as required by Section 18(a)(3). 43 U.S.C. § 1344(a)(3)."
Click here to read th D.C. Circuit's 5-year plan opinion