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Cross-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 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 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.
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(Cross-posted from Legal Planet.)
In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now issued a draft Pesticides General Permit which it expects to become effective in April 2011 and a detailed fact sheet explaining the basis for the terms of the draft permit. The permit will only apply in those areas of the country where EPA is responsible for NPDES implementation. States with NPDES authority will develop their own pesticide permit requirements, as some have already done. It seems likely that many will follow EPA’s approach.
The use of a general permit means that each pesticide applicator does not need to apply for an individual permit. Coverage under the general permit will not be available for application to waters impaired by pesticides or their residues or to outstanding national resource waters. Notice must be provided to EPA ten days before spraying if the area treated exceeds thresholds specified in the draft general permit (640 acres for mosquito or forest canopy pest control, 20 acres for aquatic pest control, 20 linear miles for water’s edge treatment).
The general permit mandates “best management practices” instead of setting numeric discharge standards, which EPA found would be infeasible. Permittees must minimize pesticide discharge by using the lowest effective dose and “optimum frequency” of application. Those whose pesticide use exceeds the thresholds requiring pre-spraying notice must also implement integrated pest management and develop a pesticide discharge management plan. That plan need not be submitted to EPA for approval, but it must be available for review by EPA and state authorities. Members of the public can request plans through EPA, which will scrub them of confidential business information before passing them along.
EPA is still consulting with the US Fish and Wildlife Service and National Marine Fisheries Service about how the general permit should deal with potential harm to endangered or threatened species. EPA has scheduled three public meetings [the first today, June 14, in Albuquerque], a hearing in Washington D.C., and a webcast about the permit.
Full textCross-posted from Legal Planet.
As oil drifts on and offshore in the Gulf of Mexico, forcing the closure of wildlife refuges and more fishing grounds, Interior Secretary Ken Salazar has called a temporarily halt to new offshore drilling while his staff prepare a report on the disaster and even Republicans in Congress are calling for new investigation of the troubled Minerals Management Service.
Clearly, things didn’t go as planned on the Deepwater Horizon. Notwithstanding Rush Limbaugh’s wild accusations of environmentalist sabotage, no one has seriously suggested that the fire, the sinking of the rig, and the failure of the blowout preventer were anything but accidental. But that’s far from the end of the story. Accidents are not always unforeseeable or unpreventable. BP, its contractors, the Minerals Management Service, and the Coast Guard could have and should have foreseen the possibility of a blowout, but in typical human fashion they preferred a more rosy outlook.
From an environmental law perspective, perhaps the most depressing aspect of this disaster is the extent to which it seemed to catch everyone by surprise. We’ve long had regulations in place under the National Environmental Policy Act that are intended to force a more careful advance look. But that didn’t happen. Dan Farber is right to see this disaster as a call for better risk assessment for offshore drilling. But (as I know Dan is well aware), simply mandating worst case analysis or better risk assessment won’t make it happen. The Gulf oil spill highlights the slippage between the law and the reality of environmental analysis for offshore drilling. It is a story of institutional failure as much as of equipment failure, and the postmortem should include exploration of how the institutions might be improved.
The lesson to be drawn is not that NEPA review is useless. But environmental review as practiced in the US does have some important limits, and even where it could perform well it needs better implementation and oversight. I offer these tentative thoughts about lessons from the Deepwater Horizon for the law and practice of environmental review.
NEPA can’t catalyze some of the thinking we should want, because that thinking needs a larger forum. NEPA sets up a project-by-project approach to environmental review. It’s hard to see the cumulative effects of a variety of actions from that perspective, as the Council on Environmental Quality recognizes. More than that, NEPA is an awkward tool for comparing a proposed action with very different approaches to achieving the same goal. One goal of offshore drilling in the Gulf, for example, is to reduce dependence on foreign oil. That’s a laudable goal with environmental as well as national security implications since, as Melinda Taylor recently pointed out, “the transportation of crude in tankers from the Middle East and elsewhere is responsible for 45 percent of the oceans’ oil pollution.” But its a goal that is just as well served by any method of conserving or generating energy.
Full textCross-posted from Legal Planet.
The National Environmental Policy Act (NEPA) is the nation’s look-before-you-leap environmental law, intended to make sure that we understand what environmental problems we might result before we act. To that end, federal agencies must prepare an environmental impact statement (EIS) before they take, authorize, or provide funding for actions that may have significant adverse environmental impacts. Useful as NEPA analysis is, the Deepwater Horizon disaster vividly illustrates the need to fix one of its shortcomings.
The White House’s Council on Environmental Quality (CEQ) oversees NEPA compliance. It has issued regulations prescribing how agencies should prepare EISs and what should be in those documents. The regulations are almost unchanged since they were originally issued during Jimmy Carter’s presidency, with one conspicuous exception. Where the impacts are uncertain or unknown, the regulations used to require that the EIS “include a worst case analysis and an indication of the probability or improbability of its occurrence.” Sensible as it sounds, that requirement was renounced in the Reagan administration in favor of a vague call to evaluate “reasonably foreseeable” environmental impacts, including low-probability but potentially catastrophic impacts, “provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.”
Full textCross-posted from Legal Planet.
Last week, I reported on EPA’s proposed veto of a Clean Water Act section 404 permit for a major mountaintop removal coal mining project in West Virginia. My view at the time was something along the lines of two-and-a-half cheers. I wrote that it was very good news, but didn’t articulate principals for distinguishing between acceptable and unacceptable mountaintop removal. Setting the proposed veto next to approval of the Hobet 45 project in January, EPA had not exactly ended confusion about the review of mountaintop removal projects, as Council on Environmental Quality chief Nancy Sutley had promised last summer when the administration unveiled a coordinated review procedure.
I spoke too soon. EPA has now issued detailed guidance for its review of Appalachian surface coal mining operations, and its a doozy. Actually, it shouldn’t be remarkable; its a straightforward and careful implementation of the Clean Water Act. But in light of the long history of allowing mountaintop removal without much regard to the law, this new guidance is a real attention-getter.
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Guest Blogger: Liz Borkowski