On January 4, the Department of the Interior (DOI) released its draft proposed program for oil and gas leasing on the Outer Continental Shelf (OCS). The proposed plan would end a broad ban on drilling imposed by President Obama and allow leasing and drilling on over 98 percent of the OCS, including the waters off Florida's Atlantic and Gulf coasts. The Eastern Gulf of Mexico is subject to a congressional moratorium until 2022, but the new plan would commence sales in that region in 2023.
On January 9, after a brief meeting with Florida Governor Rick Scott, Interior Secretary Ryan Zinke announced that, contrary to the proposal, he was removing Florida's coast from any consideration for new "oil and gas platforms." Zinke's reported explanation for his decision referenced the governor, his leadership and trustworthiness, his work with the administration on Everglades restoration, Florida's uniqueness, and its economic reliance on coastal tourism.
One might assume that this announcement meant that Florida was no longer at risk from offshore drilling. But from a legal perspective, Zinke's announcement lacked any legal force or effect. Indeed, in an ironic twist, this announcement made any eventual effort to provide protection for Florida's waters legally vulnerable.
The protection Zinke promised lacks any legal force because it is not an official action taken by the secretary. He is not bound by it. He could tweet a different outcome tomorrow if he chose to. Ten days after the secretary's announcement, Walter Cruickshank, Acting Director of the Bureau of Ocean Energy Management (BOEM), noted that the secretary's statement didn't change the proposed plan, was not a formal action of the agency, and BOEM would continue with the formal process it is required by law to follow. The drilling plan maps the acting director showed members of Congress still included Florida. Indeed, the secretary had apparently not communicated with the staff of the bureau about his intent to exempt Florida. However, according to Cruickshank, Zinke's personal commitment remains, and the acting director said it "stands for itself."
Neither Cruickshank's words nor Scott's apparent trust in Zinke change the fact that the secretary's current position on drilling off the coast of Florida would be highly vulnerable to legal challenge both because of the timing of his comment and the reasons he gave for it.
First, consider the timing. Zinke is required – before approving a final plan – to consider the comments of other states (which are now claiming that they too are unique and dependent on coastal tourism), the oil and gas industry (which vigorously opposes the exclusion of Florida), and the numerous conservation groups that have announced that they will challenge the plan. It's hard for Zinke to consider these comments fairly if he made up his mind five days into the three-month comment period and made a commitment to exclude Florida as "unique." It poses the same problem as the Queen of Hearts' pronouncement, "Sentence first, verdict after," in the Knave's trial in Alice in Wonderland. While the secretary clearly has discretion to balance or prioritize among statutory factors, he is not free to ignore the relevant information that may be submitted during the comment period or to jump to a decision before he has even received such information.
By making his unusual and premature announcement outside the legal process, the one thing Zinke accomplished was to clearly communicate that he has already decided to exclude the waters off Florida from the offshore drilling plan, based entirely on a short meeting with Governor Scott. This provides strong legal arguments for other coastal states, oil and gas industry representatives, and conservation advocates who wish to challenge any final plan that excludes Florida as a violation of required procedures.
The agency may point to the fact that the secretary is required by law to consider and respond to comments from governors and to respond to their requests for modifications of the proposed plan in writing, stating the reasons for the decision. (See the Outer Continental Shelf Lands Act, 43 U.S.C. §1344(c)(2).) But the process envisioned by this section of the law is a deliberative and fact-intensive one, grounded in the relevant considerations set forth in the statute – not a casual and conclusory five-sentence statement and tweet following an airport meeting. Indeed, the law requires that all correspondence between the secretary and governors of the affected states and related information and data must be submitted to Congress along with the final program. The nature of the meeting between the secretary and the governor makes transmission of at least some of the relevant information to Congress virtually impossible.
Equally important, the substance of the secretary's announced decision to exclude Florida is legally vulnerable. Zinke set forth his reasons for the decision to exclude Florida, but these failed to address the factors that the Outer Continental Shelf Lands Act requires him to consider. The statute, at 43 U.S.C. §1344(a)(2), requires that the decision on the timing and location of oil and gas exploration and development consider eight specific factors: geographic, geological, and ecological characteristics of the region; the region's location in relation to the needs of energy markets; environmental sensitivity of the area and marine productivity; goals of the affected states; interests of oil and gas producers; other competing uses of the OCS, including shipping and fisheries; equitable sharing of the developmental benefits and environmental risks among the various regions; and relevant environmental and predictive information.
A question that will be raised in any eventual challenge to a plan that excludes Florida is whether the secretary's decision was based on factors that he is permitted to consider under the statute. The secretary's decision statement referenced the governor's leadership, the governor's work with the secretary on Everglades restoration, the governor's trustworthiness, Florida's uniqueness, and Florida's economic dependence on coastal tourism.
The first three of these in no way align with the eight factors that the agency is required to consider under the statute. They also provide a strong argument for those who would claim that the decision was not reasoned but rather an act of political patronage – a rationale that would be totally at odds with both the fairness and rationality required by courts reviewing agency decisions.
The reference to Florida's uniqueness is a conclusory characterization that is already the fodder for late-night comedians and unlikely to carry much weight with a court. Moreover, Zinke labeled Florida's situation "unique" before hearing from any other governor, rendering the conclusion suspect. Zinke's generic comment that he was charged to consider "the local and state voice" in no way justifies exempting Florida more than any other coastal state that asks for an exemption. Moreover, the requirement that the secretary consider equity among the regions in sharing the environmental risks of oil and gas development argues strongly against granting any one state an exemption before considering the comments of all states in affected coastal regions.
The only relevant factor Zinke referenced is Florida's economic dependence on coastal tourism, which reflects the goals of the state. But the casual and generic nature of the comments hardly suggests the kind of deliberative and data-driven reasoning that courts insist on when reviewing agencies' decisions.
This is not to say that the secretary can't ultimately make a final decision that excludes Florida, and that, with hard work, the department can't build a rationale that supports such a decision, if the record supports it and that is what the secretary decides. But to anyone in the agency's legal department, there is no question that these comments are, at the least, a problem they have to work to overcome.
To defend a final plan that excludes Florida against the inevitable challenges it will face, the agency will have to convince a court that contrary to what Zinke said, he didn't make up his mind on January 9. They will have to demonstrate that he retained an open mind, considered only relevant factors and evidence and no impermissible factors or evidence, and that he came to that decision only after all that required consideration and process. Any final plan that tries to dress up the same decision announced on January 9 in different reasons will have to overcome the taint of the secretary's own avowed statement of his reasons.
A final difficulty posed by the secretary's statement relates to its factual grounding. Before releasing the proposed program on January 4, the secretary presumably considered all the available data on the relevant factors as of that date and concluded that the waters off Florida should be included in the areas open to leasing. The Department of the Interior received over 800,000 comments in response to its initial Request for Information, on which it based the draft proposed plan. The secretary's rapid about-face on Florida raises the question, what new information so added to the weight of the evidence that it changed the secretary's mind?
This question becomes even more significant because Zinke's final plan will be reviewed under the most exacting standard available. In the Outer Continental Shelf Lands Act, 43 U.S.C. §1349(c)(6), Congress provided that the agency's findings must be based on "substantial evidence on the record considered as a whole." If so, they are "conclusive." But the substantial evidence standard is a high bar. So, in addition to scrutinizing the decision to be certain that the agency did not act in an arbitrary or capricious way, the court will scrutinize the factual record assembled before and during the comment period to determine whether the record as a whole offers substantial factual support for the choices the agency has made.
The only new information the secretary appears to have received and considered between the release of the 380-page draft plan on January 4 and his announcement excluding Florida was apparently conveyed in a brief meeting. To the extent it was oral information, it may not even become part of the record on which the agency must base its decision and on which a court will base its review. This is not an insurmountable obstacle. During the comment period, the department will no doubt receive extensive, relevant evidence both in favor of and against excluding Florida. But if the question is whether the secretary's announcement strengthens or weakens the case for the exclusion of Florida, the answer is the latter. The secretary's pre-commitment to a position without substantial new relevant evidence suggests the kind of arbitrary action that is anathema to sound administrative decision-making and which courts are reluctant to validate.
So what can reduce Florida's risk from offshore drilling if Zinke's comments don't accomplish that goal? The most durable protection would be a legislative moratorium on drilling off the state's coasts. Bipartisan legislation (H.R. 2002) introduced by Rep. Kathy Castor of Tampa would make the moratorium in the Eastern Gulf of Mexico permanent and add permanent protection for Florida's Atlantic coast and the Straits of Florida.
Short of that, interested stakeholders can contribute comments to create a robust administrative record to support protection for Florida and other states, addressing the relevant statutory factors and providing evidence of the state's goals, the region's ecological characteristics, the sensitivity of Florida's beaches, the productivity of the marine environment, the many important non-energy uses of Outer Continental Shelf waters, and environmental and predictive information.
Other ongoing initiatives by the Department of the Interior – relaxing much-needed safety standards that were adopted in the wake of the 2010 BP Deepwater Horizon blowout and oil spill and suspension of a National Academies of Sciences, Engineering, and Medicine study on the safety of offshore oil and gas platforms to enhance inspection programs – raise the stakes if drilling is permitted. At present, the congressional moratorium provides temporary protection for Florida's Gulf coast. Without further congressional action, the state remains at risk from drilling off both its coasts once this expires.
The irony is that by making his highly public, premature announcement, Zinke made it harder, not easier, for the agency to exclude Florida from offshore drilling. The secretary's action puts Florida more at risk, not less.