Cross-posted from Legal Planet.
You may remember Judge Martin Feldman from his decisions last summer enjoining enforcement of Interior’s first effort at a deepwater drilling moratorium, and more recently declaring that the Department must pay the legal fees of the plaintiffs in that case because it was in contempt of the injunction order. (For my take on those decisions see here and here.)
No doubt the Department wished it could just slink out of the Gulf and never have to face Judge Feldman again. But all good things come in threes, right? And on Thursday Interior reached three of kind; three big losses in Judge Feldman’s courtroom that is.
This latest ruling orders BOEMRE (the Interior bureau in charge of offshore drilling) to act on five pending applications for permission to drill in the Gulf within 30 days. As I understand the ruling, all of these applications are for wells for which there is an approved exploration plan. Even after that approval the OCSLA allows, and Interior regulations require, an additional approval step before drilling. Whereas the statute sets up a 30-day deadline for review of the exploration plan, it does not specify a deadline for review of the application for a permit to drill. Nor do the regulations. Last month, Judge Feldman refused to set a deadline. But after additional briefing, he’s now reversed that decision.
Full textCross-posted from Legal Planet.
Here’s some of what’s going on in the ocean policy world:
Cross-posted from Legal Planet.
Conservative media and bloggers are making much of a ruling last week by Judge Martin Feldman of the Eastern District of Louisiana that the Department of Interior was in contempt of his June 2010 order enjoining enforcement of the May moratorium on new deepwater exploratory drilling for oil. The Washington Times, for example, accused the administration of “tempt[ing] a constitutional confrontation.” Not so fast. Judge Feldman’s latest decision says more about the contempt of some conservative judges for the law than it does about the administration. Can you say “activist judge”?
Judge Feldman, who was appointed to the federal bench by Ronald Reagan, is a staunch friend of the Gulf energy industry. Until recently, he was also an investor. In 2008, he owned stock in Transocean (the owner of the Deepwater Horizon and other drilling rigs) and several other energy companies. He sold his Exxon stock the very day he enjoined the moratorium last June, prompting six Democratic Senators to call for an investigation by the Senate’s Judiciary Committee.
Opinion seems to be divided on whether Judge Feldman was required to recuse himself by the Code of Judicial Conduct for U.S. Judges, which says that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities,” or by 28 U.S.C. 455, which requires that federal judges disqualify themselves “in any proceeding in which [their] impartiality might reasonably be questioned” and specifically if they have “a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” (Compare this take with this one and this one.)
Full textCross-posted from Legal Planet.
If EPA is afraid of the new Congress, you wouldn’t know it from today’s news. Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit had been issued. It blocks “valley fills” — the use of streams and tributaries for disposal of the rock and dirt removed in surface coal mining — at Mingo Logan’s Spruce No. 1 Mine in Logan County West Virginia.
The proposed Spruce No. 1 project is enormous:
If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury approximately 7.48 miles of streams beneath 110 million cubic yards of excess spoil. This is among the largest individual surface mines ever authorized in West Virginia.
EPA has allowed a small part of the project, which is already underway, to go ahead. But it decided that the burial of 6.6 stream and tributary miles which “represent some of the last remaining least-disturbed, high quality stream and riparian resources” in the area would have unacceptable impacts on wildlife and ecosystem functions, both directly and downstream. The US Fish and Wildlife Service backed EPA’s view. Furthermore, EPA found that the proposal failed to consider less damaging alternatives or include compensatory mitigation, as required by regulations implementing section 404.
Full textCross-posted from Legal Planet.
The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start.
NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of the human environment, or an Environmental Assessment if it’s not clear whether an EIS is required.
Categorical exclusions minimize needless paperwork by allowing agencies to identify in advance actions that, individually and collectively, do not have significant environmental impacts and therefore do not require either an EA or an EIS. But it’s important that categorical exclusions accurately identify actions that don’t have significant environmental impacts, because the adoption of a categorical exclusion means those actions won’t get more than a cursory individual look. The shortcomings of current categorical exclusion practice were brought home by the Deepwater Horizon disaster; the ill-fated Macondo well and hundreds of others in the Gulf of Mexico were approved without detailed environmental analysis under a categorical exclusion established 30 years ago.
Full textCross-posted from Legal Planet.
The Minerals Management Service within the Department of Interior was responsible for overseeing offshore oil development in federal waters from its creation in 1982 until its demise earlier this year. MMS was always a troubled agency, to put it mildly, dogged by scandals and a revolving door with the industry it regulates. After the Deepwater Horizon incident made its failings obvious, Interior Secretary Ken Salazar reorganized MMS out of existence, promising that the new management structure would “improve the management, oversight, and accountability of activities on the Outer Continental Shelf.”
Salazar replaced MMS with the new Bureau of Ocean Energy Management, Regulation, and Enforcement (an awkward name that produces the even more awkward acronym BOEM or BOEMRE, which I’m told people in the Gulf have already taken to pronouncing as “bummer”). In order to try to reduce perceived conflicts of interest, BOEMRE is divided into three parts: a revenue branch housed in the Department’s office of Policy, Management, and Budget; a safety and environmental enforcement office dedicated to making sure that offshore operators follow applicable regulations; and an ocean energy management office responsible for planning and leasing decisions.
At the time, Eric Biber and I argued in an LA Times op-ed that although splitting MMS was a good idea it wouldn’t be enough to solve the agency’s many problems, notably including routinely shoddy environmental reviews. Looks like we got that one absolutely right, unfortunately.
Full textCross-posted from Legal Planet.
On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations.
The report offers a detailed look at the chaotic and uncoordinated NEPA procedures that were apparently routine at the old MMS. The major outlines of the story were already well known: MMS did a cursory, over-optimistic oil spill analysis at the 5-year program and lease sale stages, then applied a categorical exemption to applications for exploration plans. Separately from that environmental analysis, BP prepared an oil spill response plan which considered the possibility of a much larger catastrophic spill, but assured regulators that the company would be able to quickly and effectively clean up such a spill. There was never a thorough, realistic, transparent analysis of the probability and potential impacts of a blowout.
Full textCross-posted from Legal Planet.
Last year, I noted that the interim report of the Interagency Ocean Task Force appointed by President Obama marked a promising step toward a national ocean policy. Now the Task Force has issued its final recommendations, which the President promptly began implementing.
A national ocean policy has been a long time coming. Back in 2003, the Pew Oceans Commission called for a new “unified national ocean policy based on protecting ecosystem health.” A year later, the U.S. Commission on Ocean Policy echoed many of the Pew Commission’s recommendations. But the Bush administration sat on those recommendations. President Bush did create an executive-branch Committee on Ocean Policy, but failed to give it any substantive mandate.
President Obama has filled that gap. On Monday, he issued an Executive Order (as yet unnumbered) replacing the Committee on Ocean Policy with a National Ocean Council jointly chaired by the Council on Environmental Quality and the Office of Science and Technology Policy. That’s important because it means that the Council will have a strong voice in the White House.
Full textCross-posted from Legal Planet.
As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week.
As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if they were right, however, this new one should pass muster.
The new decision calls a halt to exploratory drilling by rigs using subsurface blow-out preventers (the kind that failed on the Deepwater Horizon) or surface blow-out preventers on floating rigs, and to issuance of new permits for that kind of drilling. Like the first moratorium, it does not restrict production from existing wells. It will last until November 30, 2010, but could be lifted earlier if circumstances warrant.
The new decision squarely addresses the key concern of the District Court, which was that the first moratorium did not clearly explain the boundary line it drew (suspending exploratory drilling in more than 500 feet of water) or its conclusion that deepwater drilling threatened serious damage. The first time around, Secretary Salazar issued only a one-page memorandum. This time, he explains his reasoning in a detailed 30-page document, which in turn refers to a number of reports and other analyses since the Deepwater Horizon explosion.
Full textCross-posted from Legal Planet.
A three-judge panel of the Fifth Circuit heard arguments Thursday on the Obama administration’s request that it stay the District Court’s injunction of the 6-month deepwater oil development moratorium, and by a 2-1 vote quickly rejected the request.
The moratorium halted any new drilling, and the granting of any new permits for drilling, in depths beyond 500 feet based on the Secretary of Interior’s finding that “deepwater drilling poses an unacceptable threat of serious and irreparable harm or damage to wildlife and the marine, coastal and human environment.” The District Court overturned the moratorium, finding that the Secretary had not adequately justified the breadth of the suspension.
The District Court’s decision to block the moratorium seems clearly wrong. Surely the Deepwater Horizon blowout, which the oil industry claims was entirely unexpected, together with the company’s inability to stem the flow for more than 80 days, is compelling evidence that deepwater drilling poses a “threat of serious, irreparable, or immediate harm or damage” to people and the environment, the relevant legal standard for suspending leases under the Outer Continental Shelf Land Act.
Full text