Draft Proposed 5-year Outer Continental Shelf
Oil and Gas Leasing Program for 2010
Comments on the Comments of The Center for Regulatory Effectiveness
By Stephen Wehrly
Mr. Wehrly is an attorney and lobbyist who in 2008 represented an international environmental advocacy organization in Washington, DC, on offshore drilling and related issues, and, for twelve years, an Indian Tribe in Washington state involved in regional environmental and natural resources issues. For 29 years, Mr. Wehrly lobbied legislative and rulemaking venues in Washington, DC, and Washington State on behalf of business, association, and citizen action clients. This paper presents the views and arguments of Stephen Wehrly alone.
Introduction
The Comments of The Center for Regulatory Effectiveness interpret the “Avoid Harm” provision of Executive Order 13158 and review studies of the effect of seismic operations on whale foraging.
The “Avoid Harm” discussion seeks to vitiate the protections for ecologically or culturally sensitive marine areas which have been added to statute and regulation by all three branches of government over the past 60 years. The seismic operations argument attempts to establish that marine mammals are not harmed by seismic operations. The “Avoid Harm” recommendation is not supported by the cited case or by fifty-six years of legislative and executive policy direction. The broad seismic operations conclusion regarding marine mammals generally cannot be substantiated by criticism of several flawed whale foraging studies, one of which specifically suggests that whale foraging may be affected by seismic air-guns.
Both arguments are attempts to shape the leasing program by inhibiting the discretion of the Secretary to decide in favor of environmental values at the expense of oil and gas leasing activities. The Department should reject any such shaping of the program: the result sought by the CRE Comments does not follow from the arguments either logically or historically.
The discretion of the Secretary of Interior in writing and implementing the 2010-2015 Oil and Gas Leasing Program is purposefully extensive. The policy established by Congress in statute and the President in executive order points to more, not less, consideration of
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environmental and cultural values in marine ecosystems. Economic values of expeditious resource development regardless of environmental and cultural costs have not been the primary emphasis of legislative policy since Teddy Roosevelt was President.
The 1978 amendments to the governing statute, the Outer Continental Shelf Lands Act, clearly instructs the Secretary to consider the environmental and cultural values of marine ecosystems. Executive Order 13158, creating the National System of Marine Protected Areas, clearly states the policy goal: “Avoid Harm”. It is the recommendation and expectation of the environmental community that the Secretary of Interior will diligently carry out the policy legislated by Congress and ordered by the President.
I. The National System of Marine Protected Areas
The purpose of Executive Order 13158 is to:
“(a) strengthen the management, protection, and conservation of existing marine protected areas and establish new or expanded MPAs; (b) develop a scientifically based, comprehensive national system of MPAs representing the diverse U.S. marine ecosystems, and the nations natural and cultural resources; and (c) avoid causing harm to MPAs through federally conducted, approved, or funded activities.” (EO 13158, Section 1.)
The Executive Order gives effect to the purpose in Section 5: “To the extent permitted by law and to the maximum extent practicable, each Federal agency, in taking such actions, shall avoid harm to the natural and cultural resources that are protected by an MPA.” (EO 13158, Section 5.)
The environmental policy regarding marine ecosystems in the U.S. is succinctly stated in the statements above. It is a policy that has taken America from maximum resource development unconstrained by environmental considerations to clear recognition that “the nation’s natural and cultural resources” must be used (and in some places, unused) rationally – that is, taking into account all available information and using that information to make practical decisions that will permit resource utilization decisions that “shall avoid harm” to natural and cultural resources.
It is precisely because Executive Order 13158 has achieved its stated purposes and has worked to rationally restrain resource development that the CRE Comments seek to require the Secretary of the Interior in the Draft Plan to minimize the effect of the “Avoid Harm” language on the 2010-2015 leasing program. The CRE Comments, recognizing EO 1315 as a very important statement of policy, seeks to creates a novel “primary emphasis” policy standard by applying dicta from a case decided per curiam nineteen years prior to the Order. The CRE Comments interpret the policy incorrectly; the CRE Recommendations, based on that mistaken interpretation, should be rejected.
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State of California ex rel. Brown v. Watt
The CRE Comments attempt to find a way around the “avoid harm” language in Section 5 of Executive Order 13158. The Comments create a “balancing of factors” test which insists that speed of development outweighs all environmental factors combined.
Calling into question not only the policies expressed in Executive Order 13158 but also the virtually identical environmental policies expressed in other environmental laws (including the OCSLA statute itself), the CRE Comments follow a convoluted path from the clear statement of policies to be followed in Section 18(a)(2) to find a “primary emphasis” on expeditious development of the OCS. The Court, in language not determinative to the case, said:
“Although section 18(a)(3) does not define the “proper balance” among these elements, some notion of its meaning can be derived from the policy and purposes of the Act. In passing the 1978 Amendments, Congress declared the policy of the United State to be that “the outer Continental Shelf is a vital national resource … which should be made available for orderly and expeditious development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.
“Implicit in this statement of policy is both an end and a means. The end is to develop the oil and natural gas resources of the OCS expeditiously. The means includes an administrative scheme that permits ‘detailed planning’ by the federal government and concerned states ‘to minimize the potential conflicts and adverse impacts of OCS activities.’
“The congressional purposes also reflect this primary emphasis on expeditious development of the OCS, qualified by the recognition of a need for measures to alleviate or minimize its adverse impacts.”
It is submitted that this finding of “primary emphasis on expeditious development” is not a conclusion that can be drawn from the list of considerations in Section 18(a)(2), a list that includes expeditious development as one of eight bases that must be considered. The opinion then moves to discussion of the “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.” In its discussion of “balancing of factors”, the court does not use the term “primary emphasis”, but instead says:
“[T]he Act does not require they [environmental considerations] receive a weight equal to that of potential oil and gas discovery. A balancing of factors is not the same as treating all factors equally. The obligation instead is to look at all factors and then balance the results. The Act does not mandate any particular balance, but vests with the Secretary the discretion to weigh the elements so as to ‘best meet national energy needs.’ The weight of these elements may well shift with changes in technology, in environment, and in the nation’s energy needs, meaning that the proper balance for 1980-85 may differ from the proper balance for some subsequent five year period.”
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The Court then moves on to approve the Secretary’s use of a “cost-benefit analysis” in his deliberations, but concludes that the Secretary failed “to consider and factor in all aspects of section 18(a)(2)” which failure “precluded him from meeting the requirement of section 18(a)(3) to obtain a proper balance to the maximum extent possible.” Thus, the Court, after indirectly but unnecessarily approving Secretary of Interior Watt’s predilection to grant more weight to expeditious development of oil and gas resources, found that the Secretary did not obtain a proper balance in the exercise of his discretion and remanded several issues to the Department for reconsideration.
Nowhere in the case nor in the result does the opinion suggest that “primary emphasis” has a place in either the cost-benefit calculation or the “balancing of factors” analysis. The attempt to impact the discretion of the Secretary with a “primary emphasis” test fails.
Commerce and Interior Interpretive Analysis
The CRE Comments suggest that the Department of Commerce should not “interpret section 5 for other agencies” and that “[t]he Order does not provide any new authority for any federal agency or the MPA Center to review activities of any other federal agency or alter standards for existing review”. “Interpret” and “review” are used here in the regulatory sense: certainly the Secretary of Interior must interpret for himself the effect of all laws and regulations affecting his legal authority and discretion, and only the courts can “review” the Secretary’s conclusions and methodology in the sense of approving or disapproving the Program – and the courts will determine their own “standards for existing review”.
The MPA Center, however, does require accountability by all departments and agencies in their efforts to protect marine protected areas:
“As required under Section 6 Accountability of the Order, ‘[e]ach Federal agency that is required to take actions under the order shall prepare and make public annually a concise description of actions taken by it in the previous year to implement the order, including a description of written comments by any person or organization stating that the agency has not complied with this order and a response to the comments by the agency’. . . .In addition, on a biennial basis, the MPA Center will consolidate agency annual reports into a biennial ‘State of the National System of MPAs’ report. The biennial report will include an assessment of overall progress to develop the National System of MPAs and the effectiveness of meeting its stated goals and objectives, including those related to Section 5 of the Order.”
It seems clear that implementation of EO 13158 envisions all agencies and departments to meet the “stated goals and objectives” of the Order, “including those related to section 5 of the Order.” This statement does not in any way suggest that the goals and objectives of Section 5 of EO 13158 should be sublimated to a “primary emphasis” standard ascribed to oil and gas development.
As if addressing the very point the CRE Comments are attempting to make, the Framework says:
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“Section 5 does, however, require agencies to ensure that their activities avoid harm to the natural and cultural resources as protected by the MPAs included in the national system (to the extent permitted by law and to the maximum extent practicable) when fulfilling their existing requirements for identifying, reviewing and implementing activities.” (Framework, p. 44.)
Then, as if also addressing the CRE Comments contention that the words “to the extent permitted by law” is somehow a restraining condition that requires the Department of Interior to impose a “primary emphasis” gloss on its responsibilities to avoid harm to the environmental and cultural resources of Marine Protected Areas, the Framework states:
“Furthermore, there is no single definition for key terms used to describe the requirements under Section 5, including but not limited to: ‘avoid harm,’ ‘affect,’ or ‘to the extent permitted by law and to the maximum extent practicable.’ Instead the meaning of any of these terms, as applied to an agency’s requirements under Section 5, is dependent on the agency’s interpretation, consistent with any requirements of the legal framework used to protect the resources of the MPA and any other applicable natural or cultural resource review or protection authorities or procedures.” (Emphasis supplied.)
Contrary to the CRE Comments, this statement is “discussion or commentary on the responsibility of the Department of the Interior to ‘avoid harm’ under established interpretation of the OCSLA.” It specifically references “any other applicable natural or cultural resource review or protection authorities or procedures.” And it specifically rejects the suggestion in the CRE Comments that “section 5 of the Executive Order must be interpreted so that the goal of oil and gas development is given “primary emphasis”, with potential environmental impacts given lesser emphasis.”
II. The “Avoid Harm” Provision of EO 13158 and OCSLA
The CRE Comments incorrectly conclude that protection for marine areas under Executive Order 13158 (promulgated by President Clinton in 2000) should be subsidiary to a “primary emphasis on expeditious development of the OCS” under the Outer Continental Shelf Lands Act. The Comment insists that the “balancing” requirement of section 18(a)(3) discussed in State of California ex rel. Brown requires an interpretation that rapid OCS oil and gas development in the OCS be given “primary emphasis” and that potential environmental impacts be given “lesser emphasis”.
As discussed above, the CRE Comments’ position is not supported by the OCSLA or by the cited case, but most importantly, the OCE position is contradicted by the extensive history of legislative and executive actions taken in the fifty-six years since the OCSLA was first enacted, particularly by Executive Order 13158.
While it may be argued that the original enactment of OCSLA in 1953 placed “primary emphasis on expeditious development of the OCA”, everything that has happened since 1953 suggests that weight of elements used in the “balancing of factors” has shifted – just as the Court suggested would happen in State of California ex rel. Brown. The OCE Comments, it seems,
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want the proper balance for the years 2010-2015 to reflect the balance arrived at for the years1980-1985 – or possibly 1953, with the balance being judged by a standard of “primary emphasis”, a standard found neither in statute or in case law.
This terminological substitution simply cannot be a sound basis for “giving lesser emphasis” to environmental impacts than a primary emphasis accorded “expedited development” – especially in view of all Congressional and Executive actions since the 1978 amendments.
For instance, Executive Order 13158 itself specifies that it is issued “in furtherance of the purposes of” thirteen listed Acts, including the National Marine Sanctuaries Act, the Marine Mammal Protection Act, the Clean Water Act, and the Outer Continental Shelf Lands Act. It cannot be that President Clinton intended the environmental and cultural purposes of E.O. 13158 (and the purposes of the eleven other cited acts (including the Outer Continental Shelf Lands Act)) to be overruled by a Circuit Court dictum creating a “primary emphasis” standard not found in any executive order or in the statute.
Following the recommendation of the OCE Comments would concretize “primary emphasis on expeditious development” as controlling the “balancing of factors”. Not only would this recommendation impair the Secretary of the Interior’s broad discretionary authority, it would unjustifiably impair the purposes of both the Executive Order and the OCSLA.
The “Avoid Harm” provision of Section 5 of the Executive Order is an important executive directive applicable by its own terms to the OCSLA. If anything, avoiding harm to marine environments and marine cultures is an important value that must be considered in preparing the 2010-2015 Leasing Program as one of many elements comprising the “balancing” requirement of section 18(a)(3) of OCSLA.
III. Oil and Gas Seismic Operations Do Not Affect Sperm Whale Foraging
The CRE Comments examine several studies on whale foraging, discount the one study that claims to have shown foraging effects on whales from seismic airguns, and conclude that “MMS should recognize that seismic operations do not harm marine mammals as long as the operations are conducted in accordance with long-standing mitigation provisions,” without explaining what those mitigation provisions are and without any reference to observations or studies on non-whale marine mammals.
The conclusion, it is submitted, cannot be derived from either the study results discussed or from the fact that the National Marine Fisheries Service and the Minerals Management Service have not regulated seismic air-gun use.
The CRE Comments dissect an MMS Study on the effects of sounds from seismic air-guns on foraging behavior of sperm whales. The Comments report the conclusions of the Study, starting with a conclusion that more research is needed and additional controlled experiments are necessary, and then the Comments report “the data indicate a significant change in feeding behavior associated with exposure to seismic air-gun sounds. . .” and “Bayesian analyses suggest a 20% decrease in foraging attempts. . . .”
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The CRE Comments proceed to an analysis that questions the two Study conclusions reporting “significant change in feeding behavior” and “a 20% decrease in foraging attempts.” For sake of argument, if we accept the CRE Comments’ contentions that the Study and its conclusions are flawed, we still cannot logically reach a conclusion that “MMS should recognize that seismic operations do not harm marine mammals. . . .”
We can, however, agree with the Reported Study Conclusions that more research is needed and additional controlled experiments are necessary, and it may very well be that the eight “Suggestions for Improvement” provided by the CRE Comments should be followed. But, again, is does not follow that “MMS should recognize that seismic operations do not harm marine mammals….”
Even more important, perhaps, is that the larger question of the effect of oil exploration, drilling, and extraction on marine mammals (and on fish and birds, for that matter) needs to be taken seriously in the OCS Leasing Program for 2010-2015. The day of “drill first, ask questions later” has passed.
IV. Recommendations
1. Do not interpret section 5 of E.O. 13158 or section 18(a)(3) of the OCSLA so that the goal of oil and gas development on the OCS is given “primary emphasis”, with potential environmental impacts given lesser emphasis. Such a result would be contrary to both the law and the lessons of history and science.
2. The Minerals Management Service should recognize that serious potential harm to marine mammals may result from oil and gas development in marine environments, including seismic operations. Potential harm to marine mammals from exploration, drilling, or recovery of oil and gas development should be evaluated fully and scientifically during the preparation of the Leasing Program for 2010-2015.
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