Comments
By Joëlle Hervic
Joëlle Hervic is a litigation attorney, specializing in environmental law. Ms. Hervic’s experience includes Clean Water Act, CERCLA, water law, global climate change, and human rights law. Ms. Hervic’s focus has been on environmental law as an Associate Attorney with an AmLaw 200 law firm, as a consultant with the World Bank and with Waterkeeper Alliance. As Senior Attorney with Waterkeeper Alliance, Ms. Hervic was responsible for addressing deficiencies in the regulation and enforcement of pollution in the Chesapeake Bay from agricultural sources, in particular from Concentrated Animal Feeding Operations.
Following is a response to CRE’s Working Draft Comments on the Department of the Interior, Minerals Management Service’s (“MMS”)) Draft Proposed 5-Year Outer Continental Shelf Oil and Gas Leasing Program for 2010-2015 (“DPP”). I would like to preface these comments to first give credit to the CRE for providing an accessible forum to the public regarding important issues that concern us all, for encouraging public comments and inviting all points of view.
Introduction
CRE concludes in its Working Draft Comments that the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331-1356, trumps Marine Protected Areas (MPA). This is erroneous and misstates the environmental statutory regime of the OCSLA which the Department of the Interior (DOI) is required to observe. In particular, the Working Draft Comments misinterpret Executive Order 13158 regarding Marine Protected Areas. In addition, CRE’s conclusion that seismic operations associated with oil and gas exploration do not harm marine animals when mitigation measures are applied, is also erroneous for the reasons discussed below.
1. The DPP
The DPP contains a proposal for “a total of 31 OCS lease sales in 12 areas: 4 areas off Alaska, 3 areas off the Atlantic coast, 2 areas off the Pacific coast, and 3 areas in the Gulf of Mexico…Of the 31 sales, 10 sales are in 6 areas that were formerly under executive and/or congressional restrictions.” DPP for 2010-2015, page 3.
2. Marine Protected Areas
OCSLA is the primary federal law governing the development of oil and gas in federal waters. Its primary purpose is stated to be the “expeditious and orderly development [of OCS resources] subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other needs…” 43 U.S.C. §1332(3). In general, MPAs are used to protect natural and/or cultural areas from human impacts and to help sustain important habitats.
The OCSLA requires the DOI to prepare, revise and maintain an oil and gas leasing program. The OCSLA establishes a procedural framework under which DOI may lease areas of the OCS for exploration and development of oil and gas deposits of the OCS’s submerged lands See 432 U.S.C. §§ 1334, 1337. The OCSLA provides for a multi staged DPP comprising a four stage process and triggering different obligations at each stage. The first stage consists of a five year schedule of proposed lease sales. The Leasing Program at issue has completed its first stage only, i.e. preparation of the five year program under Section 18 of OCSLA, 43 U.S.C. § 1344(a).
CRE’s focus on Marine Protected Areas in its Working Draft Comments is curious and begs the question as to why CRE adopts such a focus. The answer may perhaps lie in the fact that Marine Protected Areas are the only areas in which there may be statutory prohibitions against gas and oil leases. They are designated MPAs for good reason: They encompass areas which are especially vulnerable to harm and contain species which are in need of heightened protection. There are approximately 1,700 MPA’s presently. Most, according to NOAA, are multiple use. The National System of MPAs: Snapshot of United States MPAs. Page 1.
CRE’s approach and perspective appears to have as its underlying theme that the DOI should have access to all areas of the Outer Continental Shelf, without restriction, and with minimal regard to environmental concerns. Underlying CRE’s thesis and reasoning is that there is no more important mandate than oil and gas extraction and that this outweighs all other considerations.
By way of background, it is important to note that the area available for oil and gas extraction was recently significantly expanded. President George W. Bush issued an executive memorandum on July 14, 2008 that rescinded the executive memorandum on offshore drilling that had been established by the 1990 order of President George H.W. Bush and which was renewed by President Bill Clinton in 1998. The result of the 2008 memorandum is that only those areas that are designated marine sanctuaries are withdrawn from disposition. That withdrawal date has no sunset clause. Marine sanctuaries are a subset of MPAs.
In focusing on MPAs, CRE neglects to discuss the broader “environmental sensitivity” of areas of the OCS that the Secretary of the Department of the Interior (DOI) is mandated to take into consideration under OCSLA, which includes, but is not limited to, Marine Protected Areas. Under OCSLA’s terms, the Secretary is required to consider “the relative environmental sensitivity of…different areas of the outer Continental Shelf.” 43 U.S.C. § 1344(a)(2)(G).
a) Executive Order 13158 and Marine Protected Areas
Executive Order 13158 (E.O.) defines a Marine Protected Area in Section 2 as “Any area of the marine environment that has been reserved by federal, state, tribal, territorial, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.” Section 5 directs federal agencies, including the DOI, to “avoid harm” to all MPAs “to the maximum extent practicable” “[t]o the extent permitted by law.”
Section 5 of the E.O. provides as follows:
Agency Responsibilities. Each Federal agency whose actions affect the natural or cultural resources that are protected by an MPA shall identify such actions. 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. In implementing this section, each Federal agency shall refer to the MPAs identified under subsection 4(d) of this order.
In examining the meaning of the “avoid harm” language, and in framing the issues, CRE’s underlying premise, albeit, unstated, is that there is a conflict between the provisions of the OCSLA and the E.O., which it resolves in favor of the OCSLA. The stated issue by CRE is presented as follows:
“The issue then is whether E.O. 13158 established a new, higher level of protection for MPAs and their natural and cultural resources that might be affected by OCSLA leasing in stating the agencies must “avoid harm” “to the maximum extent practicable”, or whether the initial qualifier that the “avoid harm” directive applies only “[t]o the extent permitted by law” counterbalances that directive in the case of the OCSLA.” Page 3 Working Draft, July 2009.
CRE’s interpretation undermines and runs contrary to the clear and stated intent of E.O. 13158 and OCSLA’s provisions. The E.O.’s purpose is to “help protect the significant natural and cultural resources within the marine environment for the benefit of present and future generations by strengthening and expanding the Nation’s system of marine protected areas (MPAs).” Section 1, E.O. 13158. Clearly, the E.O. does augment the requirements to be taken into consideration in terms of environmental concerns with regard to MPAs and there is no limiting language. The E.O. requires that the DOI Secretary take into account MPA’s in developing its oil and gas leasing programs.
CRE’s narrow construction of E.O.’s stated and clear terms diminishes the E.O.’s intent and runs counter to the E.O.’s stated purpose: What CRE interprets as a qualification and limiting language on the requirement to “avoid harm”, viz. “[t]o the extent permitted by law” is expansive language, not qualifying.
In accordance with the principles of statutory interpretation, since these words are not a term of art, they are to be accorded their ordinary meaning. The clear meaning of “[t]o the extent permitted by law” is that all legal means are to be employed to ensure that the mandate of avoiding harm is achieved. Any other interpretation would negate the plain meaning of the E.O.’s terms and undermine and thwart its clear and unambiguous intent, which is to protect MPAs from harm.
Moreover, Section 4. requires the DOI to consult with other agencies, including the Environmental Protection Agency and the Department of Commerce to “develop a national system of MPAs” and to “provide guidance to enable and encourage the use of the following in the exercise of each agency’s respective authorities to further enhance and expand protection of existing MPAs and to establish or recommend new MPAs as appropriate: … an assessment of threats and gaps in levels of protection currently afforded to natural and cultural resources, as appropriate.” Section 4.4. E.O. 13158.
CRE sets up the premise in its comments that the “Avoid Harm” provision is secondary to the DOI/ Minerals Management Service’s (MMS) mission of developing oil and gas resources. CRE asserts that this mission is weighted more than other concerns, including those affecting the environment and species, and that the DOI should address this. “The Draft Plan should explain that under State of California ex rel. Brown, Section 5 of the Executive Order must be interpreted so that the goal of oil and gas development on the OCS is given “primary emphasis”, with potential environmental impacts given lesser emphasis.” Page 8, CRE Working Draft Comments.
3) Case Law interpreting Section 18(a)(3) of the OCSLA
CRE relies primarily on State of California ex rel. Brown v. Watt, 668 F.2d 1290 (D.C. Cir. 1981). According to CRE, “although section 18(a)(3) does not define the “proper balance” between oil and gas development and environmental concerns, a correct interpretation could be derived from statements of Congressional purpose and other provisions of the Act.” Page 5, CRE Working Draft Comments. CRE’s central thesis is that “…in order to achieve a “proper balance” under section 18(a)(3), the Secretary must not weigh the factors in section 18(a)(3) “equally”; but rather, must give the greatest weight to the “inherently more important” objective of best meeting national energy needs.” Page 6, CRE Working Draft Comments.
The Court of Appeals in Watt does state that Section 18(a)(3)“does not mandate any particular balance, but vests the Secretary with discretion to weigh the elements so as to “best meet national energy needs”. Watt, Para 154. However, CRE neglects to take into account the Court’s qualification with regard to section 18(a)(3):
“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. It is also relevant, when assessing potential environmental and coastal zone harm, to consider the availability of regulatory measures to alleviate that harm. This does not mean that consideration of environmental damage may be postponed or foregone. But the potential for environmental harm cannot be adequately considered and weighed without a like examination of the potential to mitigate such harm.” Id. Para 170.
Moreover, the Court did not consider Section 18(a)(3) in isolation, but rather, viewed it vis a vis other section 18 requirements in coming to its decision. In particular, and notably, the Court found that while the Secretary’s interpretation of section 18(a)(3) was, in principal correct, the Secretary had not implemented it and had not complied with all the OCSLA’s statutory standards:
First and foremost, of course, is the Secretary’s failure to consider and factor in all aspects of section 18(a)(2). This omission precluded him from meeting the requirement of section 18(a)(3) to obtain a proper balance to the maximum extent practicable.” Para 180. Section 18 establishes a process whereby the DOI Secretary weighs energy potential against environmental and other risks. Section 18(a)(2) contains eight factors which the Secretary is required to consider, including (G) the relative environmental sensitivity and marine productivity of different areas of the outer Continental Shelf…”
The Court of Appeals remanded the program under review to the Secretary for revision in accordance with the Act.
The most recent case in which a DPP was considered is Center for Biological Diversity v. United States Department of the Interior Ctr. for Biological Diversity v. U.S. Dept. of the Interior, 2009 U.S. App. LEXIS 8097 (D.C. Cir. 2009), a case only briefly cited to by the CRE. Like Watt, the Court of Appeals for the District of Columbia on April 17, 2009 remanded the program back the Secretary of the Interior for reconsideration but it went further that Watt by vacating DOI’s 2007 to 2012 Leasing Program.
The Court of Appeals set out the Secretary’s obligations pursuant to OCSLA in toto regarding the maintenance and preparation of a leasing program, in the course of discussing the interaction between these provisions:
The Secretary must prepare and maintain a leasing program consistent with several principles. First, the Secretary must ensure that a leasing program is “conducted in a manner which considers economic, social, and environmental values of the renewable and nonrenewable resources contained in the [OCS], and the potential impact of oil and gas exploration on other resource values of the [OCS] and the marine, coastal, and human environments.” 43 U.S.C. § 1344(a)(1). Second, the Secretary must consider additional factors with respect to the timing and location of exploration, development, and production of oil and gas in particular OCS areas. These factors include, inter alia: a region’s “existing information concerning the geographical, geological, and ecological characteristics”; “an equitable sharing of developmental benefits and environmental risks among the various regions”; “the interest of potential oil and gas producers in the development of oil and gas resources”; “the relative environmental sensitivity and marine productivity of different areas of the [OCS]”; and “relevant environmental and predictive information for different areas of the [OCS].” 43 U.S.C. §§ 1344(a)(2)(A), (B), (E), (G), (H). Next, Interior must ensure, “to the maximum extent practicable,” that the timing and location of leasing occurs 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.” 43 U.S.C. § 1344(a)(3). Finally Interior’s leasing activities must ensure that winning lessees receive “fair market value for the lands leased and the rights conveyed by the Federal Government.” 43 U.S.C. § 1344(a)(4).
The Court explained that the requisites of § 18(a)(2)(G) are conjoined with those of § 18(a)(3), a three-factor environmental evaluation amounting to a “condensation of the 18(a)(2) factors.” The Court of Appeals found that the DOI’s initial approval of the DPP was in violation of Section 18(a)(2)(G) of OCSLA, which as stated above, requires DOI to consider “the relative environmental sensitivity of different areas of the [OCS].” Id. Page 29. In vacating the proposed DPP for 2001-2012, the Court of Appeals found that the DOI’s sole reliance in its assessment on a shoreline environmental sensitivity study by NOAA to be irrational and invalid: The OCS is largely an offshore area. The Court of Appeals found an evaluation of the environmental sensitivity of the OCS areas required more than just a single shoreline study. Since the DOI’s Section18(a)(2) consideration was irrational, the court accordingly found the 18(a)(3) analysis improper.
In commenting on the preceding Watt cases, the Court of Appeals was clear that DOI does not have carte blanche in developing the oil and gas program: “Moreover, though Watt II and Watt I afforded Interior a great deal of leeway in determining how to comply with Section 18(a)(2)(G), they did not give Interior carte blanche to wholly disregard a statutory requirement out of convenience. The law plainly requires that Interior examine and compare the environmental sensitivity of different areas of the OCS.” Emphasis added. Center for Biological Diversity at Page 34.
4) Conclusion re OCLSA requirements
The DOI itself recognizes its extensive obligations under Section 18 in its proposed DPP. It states at page 22, “Section 18(a)(1) provides that in addition to examining oil and gas resources, the Secretary is required to consider the values of other OCS resources and the potential impacts that OCS oil and gas activities could have on those resources and on the marine, coastal, and human environments.” DOI also recognizes in its DPP that there are alternative energy sources to gas and oil: “In addition to the traditional oil and gas resources, the OCS holds the potential for significant alternative energy resources…it is likely that alternative energy resources will begin to contribute significantly to meeting our energy needs in the near future.” DPP at page 11.
As discussed above, in reaching its decision, the Appeals Court in Center for Biological Diversity revisited Watt, and clarified the balancing required by the Secretary in deciding on leasing programs and leasing areas. The Court of Appeals was clear that environmental considerations must be taken into account by the Secretary of the DOI under the OCSLA’s environmental provisions, in addition to other applicable statutes, including the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).
In Watt, the Court of Appeals acknowledged that the Section 18(a)(3) balancing was not static, viz. that “[t]he weight of [the] 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.” The world is a vastly different place to the world of the Watt court and the elements to be weighed have most certainly shifted.
While there continues to be a pressing need for energy, alternatives are under development and the environment has continued to deteriorate: Many marine species are either under threat of extinction or endangered. In addition, there are concerns regarding climate change. As cases decided almost 30 years ago, the Court of Appeals at that time had a more limited inquiry, and notably, did not involve issues relating to climate change. Although finding that the climate change arguments were not yet ripe, the Court of Appeals in Center for Biological Diversity indicated that this was an additional factor now required to be taken into account at a later stage in the program development. In addition, alternative sources of energy were not viable nor on the radar at the time that Watt was decided.
5) Seismic Operations and Harm to Marine Mammals
CRE’s conclusion that seismic operations associated with oil and gas exploration do not harm marine animals when mitigation measures are applied, is erroneous. The species that CRE focuses on, viz., Sperm Whales, are protected by listing under the Endangered Species Act. As we have seen above, it is incumbent upon DOI to ensure that its oil and gas programs do not harm this species and other at risk populations. This includes risks from seismic operations, however, these do not pose the only risk. The risk at issue in Watt was that of an oil spill. The Court of Appeals found that the Secretary’s interpretation of “environmental risks flawed: “[T]he Secretary’s interpretation of “environmental risks” is at odds with the plain meaning of the statutory language. A risk is commonly understood to mean the “exposure to the chance of injury or loss.” The degree of risk is “dependent on an assessment of the area’s environmental sensitivity.” Watt, Para 100.
Also requiring compliance are the Endangered Species Act (“ESA”) and the National Environmental Policy Act (“NEPA”), albeit not in the initial phase of the DPP. The Court of Appeals in Center for Regulatory Effectiveness found that NEPA and ESA obligations apply at the second leasing stage of the program, when resources are “irreversibly and irretrievably” committed. Id. at Page 34. The Court also stipulated that “an agency must consult with NMFS or Fish and Wildlife if the agency concludes that its action “may affect” a listed species or critical habitat. Id. at Page 22 citing 50 C.F.R. §§ 402.13, 402.14.dd
The areas covered by the proposed lease offerings in MMS’ 2010-2015 Program are vast and have a bigger reach than the program struck down by the Court of Appeals this year in Center for Regulatory Effectiveness. The Court of Appeals took pains to describe the species that live in part of the lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. “Each of these seas is home to a number of species of wildlife. For instance, the Beaufort and Chukchi Seas are home to two polar bear populations. The North Pacific right whale, an endangered marine mammal, is known to inhabit the Bering Sea. Bowhead whales are also known to feed and migrate through each of these seas. In addition, a number of other species of whale, seals, the Pacific walrus, and various seabirds are indigenous to these seas.” Id. at Page 4.
In the five year Program that was originally slated for 2007 to 2012, there were a total of 21 proposed potential lease sales in 8 areas off the OCS for oil and gas development. The proposed lease areas were off the coasts of Alaska, Virginia and the Gulf of Mexico. As stated above, the 2010-2015 DPP expands on its predecessor DPP and has a total of 31 proposed OCS lease sales in 12 areas, comprising 4 areas off Alaska, 3 areas off the Atlantic coast, 2 areas off the Pacific coast, and 3 areas in the Gulf of Mexico.
As regards seismic testing risks, much more assessment is needed as to possible harm to cetaceans. John Calambokidis, a Research Biologist and co-founder of Cascadia Research, in the State of Washington, is presently working on a review report on the issue of the effects of air guns. He stated “There certainly is evidence of behavioral reaction to air guns on the part of many species of cetaceans.” He indicated that the acoustic sensitivity of marine mammals is an issue of “great concern.” The research he has done indicates that the effects of seismic testing can disrupt activities including feeding and can be the cause of physical and physiological effects.
CRE’s call, therefore, that DOI “recognize that seismic operations do not harm marine mammals as long as the operations are conducted in accordance with the long-standing mitigation provisions”, would be premature, inadequate and in violation of the terms of the OCSLA, requiring that DOI take into consideration environmental sensitivities and risks of harm, as discussed above.