Cross-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 textOn Tuesday, the EPA released its long awaited rule to replace the Bush era Clean Air Interstate Rule, invalidated by the DC Circuit in 2008’s North Carolina v. EPA. There are many things that could have been different or improved, but given the EPA’s need to get a rule out quickly to replace the existing rule, they have done a good job of addressing the flaws of the earlier rule and getting something in place.
The main problem with the previous CAIR was that in allowing full interstate trading of SOx and NOx, it was in violation of the CAA requirements in Section 110, that a state’s State Implementation Plan ensure that no other state’s attainment and maintenance is violated, and Section 126, which requires the EPA and states to control individual sources that cause a violation in another state.
In the new Rule, the EPA allows full intra-state trading of the pollutants, but limits interstate trading in such a way as to ensure that no one state gets stuck with increasingly localized pollutants. This means that states do not have to worry that the trades will end up concentrating the pollution in such a way as to continue to cause their state SIPs to be violated. While we can’t be sure that this rule will be upheld, I believe that it addresses the major flaw in the earlier case. The court has previously allowed the EPA to set control requirements based on marginal cost of control, so that should not be a problem either.
Full textDesperate to move a funding bill for Chesapeake Bay restoration out of the Senate Environment and Public Works Committee, progressive Senator Benjamin Cardin (D-MD) went into the scrum with one of the body’s most conservative members, James Inhofe (R-OK). After a struggle of uncertain intensity and duration, the two emerged, with Inhofe, who openly ridicules the idea of global climate change, firmly in control of the ball.
Cardin agreed to put his name on a dispiriting proposal that misses a crucial opportunity to enforce a central requirement of the Clean Water Act. The Act began cleaning up the nation’s waters by requiring those who discharge pollution into rivers, lakes, and streams to install the “best available control technology” – for example, equipment that removes the pathogens in raw sewage. This primary approach worked well for years, but as the population and industrial development grew exponentially, and U.S. waters became unacceptably dirty, other provisions kicked into action.
The second approach was the application of “water quality standards” that set the maximum level of pollution that could exist in “receiving waters” where the plants emptied their pipes. So, for example, if I run a big sewage treatment plant that discharges into the Potomac River from three pipes, and levels of fecal coliform (that's bacteria from human waste) rise above water quality standards set by the state of Maryland in that section of the river, officials should revise my permit to curtail how much I can discharge in the future until the waters get back to a healthy level.
Full textCross-posted from Legal Planet.
Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA.
At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense Fund filed a complaint on July 1, accusing BP and the Coast Guard of killing endangered and threatened sea turtles in the course of burning off oil slicks in the Gulf. This morning, the Christian Science Monitor reports that BP and the Coast Guard have agreed “to allow wildlife rescuers to pluck sea turtles out of corralled oil patches to keep them from being incinerated alive,” and in return the environmental groups have withdrawn their request to enjoin all controlled burning. The Monitor also reports that due to bad weather controlled burns have been halted until at least Tuesday.
Another suit against BP may be filed in a few weeks. The ESA’s citizen suit provision requires that citizen plaintiffs notify the United States and prospective defendants of their intent to sue at least 60 days before actually filing suit. On May 25, Defenders of Wildlife and the Southern Environmental Law Center sent BP a Notice of Intent to Sue based on “take” of listed species by the Gulf spill.
Full textIn an op-ed in this morning's Raleigh News & Observer, CPR Member Scholar Victor Flatt describes why it is that BP was allowed to drill its Macondo 252 deepwater well -- the one that is now spewing oil into the Gulf -- without conducting a serious analysis of the risks of a blowout, and providing a detailed and realistic plan describing what it would do in such a scenario. Flatt writes:
The National Environmental Policy Act requires that federal agencies analyze the environmental risks before they agree to permit activity under their jurisdiction (like drilling and operating a deepwater oil well). We know that in the Deepwater Horizon case, the MMS [Minerals Management Service] approved the drilling and operating permits without undergoing full NEPA analysis, instead allowing the permitting under a NEPA exception known as a categorical exclusion, an exception to be used only when there are definitively no risks of impacts on the environment.... BP as well as all of other deepwater operators claimed that there was very little risk of a blowout, and that in case of one, they had the necessary tools (the blowout preventer systems) to stop anything bad from happening (which is how they got the categorical exclusion in the first place). And the MMS would have accepted this because it did not have independent resources to verify these analyses....
So how do we prevent this and other things like it from happening again? One easy step would be to make a simple regulatory change to NEPA so that in cases where there is any uncertainty about environmental impacts, the applicant must produce what is known as a "worst-case analysis." Then at least the MMS (and the public) would have understood and realized that if a blowout occurred and the blowout preventer systems failed, that there would likely be deaths, and that we had no way of immediately stopping the gushing of oil from causing severe environmental harm.
A worst-case analysis in the Deepwater Horizon permitting application might have prompted the MMS to examine how likely a blowout would be to occur, and ask for at least some changes based on that likelihood.
For more of what CPR's Member Scholars have been saying about the BP spill on the nation's op-ed pages, go here.
Full textCross-posted from Legal Planet.
The media have paid a lot of attention to the cavalier attitude of the former Minerals Management Service (now called the Bureau of Ocean Energy Management, Regulation, and Enforcement) toward the National Environmental Policy Act (I blogged about it here and here and Dan weighed in here). Less has been said, so far, about the Endangered Species Act. (One conspicuous exception is Keith Rizzardi’s ESA Blawg, which called on May 29 for a review of ESA implementation.)
As more oil nears shore, the impacts of the spill on sea life are becoming more obvious. The most recent report from the federal response team lists a total of 1240 oiled birds collected, 359 of them dead, 113 oiled sea turtles (11 dead), and 5 oiled marine mammals (3 dead). That’s undoubtedly only a small total of the affected wildlife, since many animals which encounter oil at sea will never be found.
And there’s clearly more trouble to come. The Washington Post reports that the Fish and Wildlife Service plans to collect the eggs of the threatened loggerhead sea turtle from nests along the Gulf Coast and move them to Florida’s east coast, a risky operation but one that seems necessary to save the hatchlings from swimming “to their certain doom” (according to David Godfrey, executive director of the Sea Turtle Conservancy) in oiled waters.
Full textSenator Cardin's bill to reauthorize the Chesapeake Bay program passed a committee vote this morning, though not before significant amendments were made (see Baltimore Sun, E&E).
We'll have more on the specifics in the future. But for now it's worth noting that one of the amendments takes away EPA’s authority to write permits for nonpoint sources, a much-needed tool in EPA’s toolbox to bolster accountability if the states fail to address nonpoint source pollution.
It’s too bad that, once again, the agricultural interests who collectively constitute the largest source of nitrogen pollution to the Bay want to avoid accountability.
Full textSenate Bill 3516, introduced by Senators Bingaman and Murkowski in response to the BP oil spill to reform the Outer Continental Shelf Lands Act (OCSLA), proposes many intelligent and much-needed changes (the Energy & Natural Resources Committee will hold a hearing on the bill today). Among these, the legislation would imposea long-overdue mandate for best available technology for oil exploration and extraction, require that proponents of drilling evaluate the possibility of a well blowout and develop a response plan for a blowout, require a review of royalty and bonding requirements, and increase from 30 to 90 days the timeframe for the agency to review exploration plans, with an option for an extension if needed. The legislation would also significantly improve the structure of what was MMS (now the Bureau of Ocean Energy Management, Regulation and Enforcement) to separate incompatible functions, enhance the agency’s enforcement and investigative powers and its capacity to assess the environmental impacts and safety of proposed drilling operations, and build agency expertise in the technology and risks associated with OCS oil drilling through a research program. These are all very positive steps and a responsible response to the immediate crisis and the most patent problems with the OCSLA that this disaster has revealed.
These fixes would not be enough to get the job done, though. Perhaps it’s expecting too much of one bill, but the risk is that once Congress addresses reform of the OCSLA in a comprehensive bill like S.3516, there will almost certainly not be a second chance. That's just how lawmaking in response to disasters works.
The OCSLA was a statute in desperate need of updating and reform. There are fundamental shortcomings that remain untouched by S.3516 and that contributed to the outcome we face today: unprecedented, unimaginable, and incalculable damage to the natural resources in the Gulf of Mexico and the attendant devastating effects on the lives of people who depended on those resources.
Full textToday the Senate Environment and Public Works Committee will discuss Senator Cardin’s Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816), along with a suite of other bills to protect the great waterways of the United States.
Critically, the bill codifies the Bay-wide Total Maximum Daily Load (TMDL), requiring it to be implemented and enforced. To remedy the pervasive lack of accountability in prior Bay restoration agreements, the bill requires states to submit biennial progress reports and to commit to fulfilling biennial milestones and empowers the EPA to withhold funds, develop and administer a federal implementation plan, or require new or expanding dischargers to acquire offsets that result in a net decrease of pollution. The bill makes progress in other significant areas, including: