DOI’s Controversial Offshore Drilling Plan Draws Legal Challenges

DOI’s Controversial Offshore Drilling Plan Draws Legal Challenges

The Department of the Interior (DOI) recently unveiled its proposed five-year offshore drilling plan. As drafted, it would open almost the entire offshore area of the United States to oil and gas drilling. Not surprisingly, the 2019-2024 National OCS Offshore Oil and Gas Leasing Program is already facing legal challenges.

The National OCS Program

The Bureau of Ocean Energy Management (BOEM) is tasked with implementing the Outer Continental Shelf Oil and Gas Leasing Program (National OCS Program) for oil and gas development in accordance with the Outer Continental Shelf Lands Act (OCS Lands Act). The National OCS Program establishes a five-year schedule of oil and gas lease sales proposed for the U.S. OCS, which includes all submerged lands lying seaward of state coastal waters (3 miles offshore) under U.S. jurisdiction. The National OCS Program also outlines the size, timing, and location of potential leasing activity that the Secretary of the Interior determines will best meet national energy needs for the five-year period under consideration. 

2019-2024 National OCS Offshore Oil and Gas Leasing Program 

BOEM is working under the existing 2017–2022 Program. In April, President Trump issued Executive Order 13795, which outlines the administration’s “America-First Offshore Energy Strategy.” It states that it is “the policy of the United States to encourage energy exploration and production, including on the Outer Continental Shelf, in order to maintain the Nation’s position as a global energy leader and foster energy security and resilience for the benefit of the American people, while ensuring that any such activity is safe and environmentally responsible.”

The Executive Order specifically directed the Secretary of the Interior to “revise or initiate a new 5-year plan that considers access to areas that the last administration closed down.” Accordingly, the BOEM is initiating a process to develop a new National OCS Program for 2019–2024, which would supersede the 2017–2022 Program. 

The Draft Proposed Program (DPP) would make more than 98 percent of the OCS available to consider for oil and gas leasing during the 2019–2024 period. In support of its proposal, the BOEM states: “Including at this stage nearly the entire OCS for potential oil and gas discovery is consistent with advancing the goal of moving the United States from simply aspiring for energy independence to attaining energy dominance.” 

As initially proposed, the DPP establishes a lease sale schedule of 47 lease sales in all four OCS regions and includes 25 of the 26 planning areas: 19 lease sales in the Alaska Region (3 in the Chukchi Sea, 3 in the Beaufort Sea, 2 in Cook Inlet, and 1 sale each in the 11 other available planning areas in Alaska), 7 lease sales in the Pacific Region (2 each for Northern California, Central California, and Southern California, and 1 for Washington/Oregon), 12 lease sales in the Gulf of Mexico (GOM) Region (10 region wide lease sales for the portions of the Central, Western, and Eastern GOM planning areas that are not currently under moratorium, and 2 sales for the portions of the Central and Eastern GOM planning areas that will no longer be under moratorium in 2022), and 9 lease sales in the Atlantic Region (3 sales each for the Mid- and South Atlantic, 2 for the North Atlantic, and 1 for the Straits of Florida). 

Regulatory Review Process

Under the OCS Lands Act, the offshore drilling plan is subject to a multi-step environmental review process. The Draft Proposed Program is currently subject to a 60-day public comment period, which will expire on March 9, 2018. During this time, BOEM will be conducting a 23-city public meeting tour and will be conducting a virtual meeting, as well as receiving written comments. After considering information provided by the public, BOEM will prepare a Proposed Program, which will be published for a 90-day public comment period, to be followed by a Proposed Final Program (PFP). 

BOEM must also prepare a draft Programmatic Environmental Impact Statement, which will assess any environmental issues implicated by the expanded offshore drilling. The statement will also be subject to public comment. BOEM plans to publish a draft PEIS for public comment concurrently with the Proposed Program and a final PEIS concurrently with the PFP.  

Potential Legal Challenges

Legal challenges are also likely to slow the process, particularly in light of U.S. Interior Secretary Ryan Zinke’s decision to remove the Florida coastline from the proposal due, in large part, to its reliance on tourism. The reversal sparked an outcry from other states that want a similar exclusion from off-shore drilling. Many have pledged to take legal action if Secretary Zinke does not address their concerns.

Democratic lawmakers have also been critical of the proposal. Washington Sen. Maria Cantwell stated that Zinke’s “decision to give a last-minute exemption to Florida while ignoring over 10 other states who followed the proper legal procedures is a waste of taxpayer dollars and may violate the requirements of the Outer Continental Shelf Lands Act.” Sen. Cantwell has requested all correspondence between the DOI and the State of Florida regarding the drilling plan “so we can conduct our oversight responsibilities.”

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Patrick McNamara, at 201-806-3364.