Modernizing Management of Offshore Oil and Gas in Federal Waters

• Date: 01 May 2019

49 ELR 10452 ENVIRONMENTAL LAW REPORTER 5-2019

ARTICLES

There have been three major o shore oil disasters

in the United States: the Santa Barbara blowout

in 1969, the Exxon Valdez running aground in

Prince William Sound in 1989, and the Deepwater Horizon

exploding and sinking in the Gulf of Mexico in 2010.  e

Santa Barbara spill encoura ged the burgeoning environ-

mental movement and contributed to the momentum for

seminal national legi slation like the National Environmen-

tal Policy Act (NEPA).1  e Exxon Valdez disaster high-

lighted de ciencies in the design of tankers, the liability

regime, and the frame work for responding to a major spill,

which led the U.S. Congress to pass the Oil Pollution Act

of 1990 (OPA 90).2 In t he wa ke of the l arge st of thes e spi lls ,

the Deepwater Horizon, Con gress took no actio n to add ress

the apparent problems related to government planning,

management, and oversight of Outer Continental Shelf

(OCS) oil and gas activities as well as industry prepared-

ness for cat astrophic spills.

Congress’ failure to act is not due to a lack of needed

updates.  e expert commission created by President Barack

Obama, the Nation al Com mission on the BP Deepwater

Horizon Oil Spill a nd O shore Drilling, recommended

signi cant statutory changes that could help strengthen

management, prevent a disaster like the Deepwater Hori-

zon in the future, and improve preparedness and response.3

 e 111th Congress held hearings and considered a series

of bills, but it ultimately failed to pass reform legi slation in

the aftermath of the Deepwater Horizon.4 Subsequent Con-

gresses have debated a variety of OCS-related bills, includ-

ing those that would have expedited o shore oil and gas

leasing by circumventing existing procedures.5

More recently, o shore drilling has been thr ust

back into the national spotlight by the Donald Trump

Administration’s focus on “energy dominance.” President

Trump’s direction to review existing OCS-related plans

1. 42 U.S.C. §§4321-4370h (as amended by Pub. L. No. 111-8, 123 Stat. 729

(2009)), ELR S. NEPA §§2-209; see also generally Teresa Sabol Spezio,

 e Santa Barbara Oil Spill and Its E ect on United States Environmental

Policy, 10(8) S 2750 (2018), available at https://www.mdpi.

com/2071-1050/10/8/2750.

2. OPA 90, 33 U.S.C. §§2701-2762, ELR S. OPA §§1001-7001.

3. See N C   BP DEEPWATER HORIZON O S

 O D, D W: T G O D  

F  O D 249-91 (2011) [hereinafter N

C] (recommending widespread changes in the wake of the Deep-

water Horizon disaster).

4.  e 111th Congress did pass the Resources and Ecosystems Sustainability,

Tourist Opportunities, and Revived Economies of the Gulf Coast States Act

of 2012 (RESTORE Act), which dealt with the allocation of civil penalties

resulting from the Deepwater Horizon spill. See the RESTORE Act of 2012;

Moving Ahead for Progress in the 21st Century Act, div. A, tit. I, subtit. F,

126 Stat. 588 (2012)).

5. See, e.g., Offshore Energy and Jobs Act, H.R. 2231, 113th Cong.

(2013) (calling for expanding offshore leasing, weakening environmen-

tal protections).

Modernizing

Management of

Offshore Oil and

Gas in Federal

Waters

Michael LeVine and Andrew Hartsig

Michael LeVine is the Senior Arctic Fellow for Ocean

Conservancy. Andrew Hartsig is the Arctic Program

Director for Ocean Conservancy.  ey both live

and work in Alaska, and collectively have published,

spoken, and testi ed extensively on the regulation and

management of o shore oil and gas resources.

Summary

Summary

O shore drilling has been t hrust back into the spot-

light by the Trump Administration’s focus on “energy

dominance.” While it is unlikely that leasing will take

place in all areas included in the Administration’s pro-

posed plan, its enormous scope has raised serious ques-

tions about the government’s capacity to properly plan

for potential activities and evaluate impacts, and it has

again prompted calls to amend the laws governing Outer

Continental Shelf (OCS) oil and gas.  is Article recog-

nizes the need for comprehensive ocean legislation, but

recognizing that systemic change will ta ke time, focuses

on reforms that are generally consistent with the exist-

ing stat utory framework . It provides background on the

statutory scheme governing OCS activities, summarizes

some of the reasons Congress should update and amend

the law, touches on attempts at legislative reform, and

includes speci c recommended changes in four main

categories: (1) overall policy and overarching lega l

structure; (2)planning and leasing; (3)operations and

response; and (4) nancial responsibility and funding.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

5-2019 NEWS & ANALYSIS 49 ELR 10453

and rules6 resulted in release of the 2019-2024 National

Outer Continental Shelf Oil and Gas Lea sing Draft

Proposed Program (DPP), in which the Administration

proposed making virt ually the entire OCS ava ilable for

leasing.7 W hile it is u nlikely t hat leasing wi ll take pl ace in

all areas included in the DPP, the enormous scope of the

proposal raised serious questions about the government’s

capacity to properly plan for potential activities and evalu-

ate impacts on such a scale, and it again prompted calls to

amend the laws that govern o shore oil and gas activities.8

 is call for change is emblematic of the broader need

to transition to renewable sources of energy and to mod-

ernize the governance struct ure for ocean resources in t he

United States.  e grave threats posed by climate change

and ocean acidi cation necessitate systemic change in the

use of fossil fuels in the United States. An overhaul of the

nation’s OCS energy policy must be part of that change.

More broadly, oil and gas extraction is one of many ocean

activities regulated separately under a siloed system of man-

agement. Calls for a single governing law for the ocea ns

go back decades and have substantial merit.9 Part I of this

Article brie y makes the case for comprehensive reform of

energy and ocean governance.

At the same time as we advocate for comprehensive and

bold legislation for the ocean, we recognize t hat systemic

change will take time and that o shore oil and gas activi-

ties will continue until a transition is complete. Accord-

ingly, Congress must also reform and modernize the laws

that govern OCS oil and gas activities. To that end, the

bulk of this Article focuses on reforms that are genera lly

consistent with the existing statutory framework, and

would facilitate better decisionmaking about whether,

when, where, and under what conditions to allow o shore

oil and gas activities.

Part II provides background on the statutory scheme

that governs OCS oil and gas activ ities, brie y summarizes

some of the reasons Congress should update and amend

6. Implementing an America-First O shore Energy Strategy, Exec. Order No.

13795 of April 28, 2017, 82 Fed. Reg. 20815, 20815-18 (May 3, 2017).

7. B  O E M (BOEM), 2019-2024 N

O C S O  G L D P P-

 1 (2018) (“ is Draft Proposed Program (DPP) would make more

than 98 percent of the OCS available to consider for oil and gas leasing

during the 2019-2024 period.”).

8. See, e.g., Clean Ocean and Safe Tourism (COAST) Anti-Drilling Act of

2019; Coastal Economies Protection Act of 2019; California Clean Coast

Act of 2019; New England Coastal Protection Act of 2019; Florida Coastal

Protection Act of 2019; West Coast Ocean Protection Act of 2019; Stop

Arctic Ocean Drilling Act of 2019; Defend Our Coast Act of 2019.

9. See, e.g., P O C, A’ L O: C

 C  S C 102 (2003) (calling on Congress to enact a Na-

tional Ocean Policy Act that, among other things, establishes uni ed prin-

ciples and standards for ocean governance); U.S. C  O

P, A O B   21 C F R 102

(2004) (recommending that Congress enact an ecosystem-based o shore

management regime).

the law, and touches on some attempts at legislative reform.

Part III includes speci c recommended statutory changes

in four main categories: (1) overall policy and overarch ing

legal structure; (2) planning and leasing; (3) operations and

response; and (4)  na ncial responsibility and funding. Pa rt

IV concludes with a recommended path for ward.

I. Comprehensive Reform

Currently, decisions about whether and under what con-

ditions to allow o shore oil and gas activities may be

made without accounting for the clear need to transi-

tion to renewable sources of energy or a holistic view of

activities happening in the ocean.  is part brie y explains

this context and the clear need for fundamental reform

as background to the targeted cha nges we propose in the

remainder of the Article.

Climate change science was nascent in 1978 when

Congress last made signi cant revisions to the Outer

Continental Shelf Lands Act (OCSLA).10 It is, therefore ,

unsurprising that the statute does not recognize t he  nite

nature of fossil fuels, the impact t hat burning them is hav-

ing on the environment, or the need to plan for a transition

away from them. Now, however, the science is clear,11 as is

the imperative to ta ke steps to reduce huma n-caused emis-

sions of greenhouse gases and to help adapt to signi cant,

ongoing changes.

A full description of the science behind climate cha nge

and the impacts it is having on communities, economies,

and ecosystems is beyond the scope of thi s Article.12 In this

context, however, we highlight the potential impacts to the

ocean and coasta l communities:

Rising water temperatu res, ocean ac idi cation, retreat-

ing arctic sea ice , sea level rise, hig h-tide  ooding, coastal

erosion, higher storm surge, and heav ier precipitation

events threaten our oceans and coasts.  ese e ects are

projected to continue, putting ocea n and marine specie s

at risk, decreasing t he productivity of certain  sheries, and

10. See generally Nathaniel Rich, Losing Earth:  e Decade We Almost Stopped

Climate Change, N.Y. T M., Aug. 1, 2018, https://www.nytimes.

com/interactive/2018/08/01/magazine/climate-change-losing-earth.html.

11. Donald J. Wuebbles et al., Executive Summary, in C S S

R: F N C A, V I, at 12 (D.J.

Wuebbles et al. eds., U.S. Global Change Research Program 2017) (“it is

extremely likely that human in uence has been the dominant cause of the

observed warming since the mid-20th century. For the warming over the

last century, there is no convincing alternative explanation supported by the

extent of the observational evidence.”), https://science2017.globalchange.

gov/downloads/CSSR_Executive_Summary.pdf.

12. Such a review was completed in the fall of 2018. See U.S. G R-

 P, I, R,  A   U

S: F N C A, V II (D.R. Re-

idmiller et al. eds., 2018), https://nca2018.globalchange.gov/downloads/

NCA4_2018_FullReport.pdf.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.