What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

by Dan Rohlf

May 19, 2010

As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling.

The Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service (NMFS) when they take or approve actions that may adversely affect species listed as threatened or endangered. Though MMS has acknowledged that oil and gas drilling is likely to adversely affect protected sea turtles, sperm whales, and Alabama sturgeon, the Post and Times reported that the agency failed to consult with NMFS prior to issuing permission for the Deepwater Horizon drilling. The papers also reported that MMS pressured agency biologists to reverse findings that drilling might harm marine mammals and endangered species, and that the agency has issued three huge lease sales and hundreds of approvals for offshore drilling since January 2010 without complying with the ESA.

MMS has also virtually ignored its responsibilities under the National Environmental Policy Act (NEPA), which requires agencies to assess the environmental consequences of their actions prior to going forward. Incredibly, MMS approved the Deepwater Horizon drilling based on a “Categorical Exclusion” under NEPA, a designation given to projects that “do not individually or cumulatively have a significant effect on the human environment” (40 CFR § 1508.4) and thus require no Environmental Impact Statement.

Environmental organizations wasted no time in challenging MMS’ compliance with NEPA; on Monday Defenders of Wildlife filed suit against the agency in federal court, arguing that MMS violated federal law by issuing drilling permits without complying with NEPA. Defenders also contends that the agency’s operating manual itself violates the law by authorizing categorical exclusions from NEPA’s environmental impact analysis requirements for offshore leasing, exploration, and production activities.

Usually operating well out of the public eye, MMS last made national headlines in 2008, when reports surfaced that agency employees were plied with sex and drugs by the oil companies that federal personnel were supposed to regulate. Despite vows of reform at the time from then Secretary of Interior Dirk Kempthorne, the culture of lawless behavior clearly remains ingrained at MMS – but unfortunately we are now painfully aware of the steep environmental consequences that can result when regulators are quite literally in bed with the very industries they are supposed to oversee.

Complying with NEPA and the ESA’s consultation process – both of which MMS skipped in greenlighting Deepwater Horizon – could have dramatically changed the course of events in the Gulf of Mexico. These laws embody a look- before- you-leap approach that Congress termed “the institutionalization of caution.” NEPA requires an analysis of the risks to the environment posed by drilling, as well as provides an opportunity for the public to provide input. Completing ESA consultation would have required both MMS and the National Marine Fisheries Service to consider the best available science regarding the probabilities of a catastrophic oil spill prior to approving the drilling. Moreover, adherence to this ESA requirement would have effectively given NMFS power to modify or even veto the Deepwater Horizon project – which is likely the very reason MMS chose to ignore the consultation process.

The tragic events now unfolding in the Gulf also once again underscore the direct links between protecting the natural world and its imperiled species and looking out for humans’ best interests. Just as better protections for coastal wetlands would likely have mitigated the loss of life and property damage caused by Hurricane Katrina, what may turn out to be the United States’ biggest oil spill may have never taken place if the federal agency responsible for overseeing offshore drilling had simply listened to its own scientists and fully complied with its obligations under NEPA and the Endangered Species Act.

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Daniel Rohlf is a Professor of Law and Of Counsel, Earthrise Law Center at the Lewis and Clark Law School.

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