My colleague Michael Jasny and I have blogged recently on the ways in which the Minerals Management Service (MMS) has manipulated and misused the National Environmental Policy Act (NEPA) to avoid public scrutiny of its leasing and permitting decisions.
As much as we had to say to that end – unfortunately, it still gets worse. MMS’ own internal rulemaking is too often shrouded from the public.
Many of the agency’s most critical so-called regulations of the offshore oil industry are merely reflections of industry-developed standards, which themselves undergo zero public review and are not even available to the public unless they want to pay for a copy of them, or trek to MMS Headquarters or the National Archives (where they can be viewed but not obtained without charge).
This is despite the fact that federal regulations are supposed to be available for public notice and comment before they become effective (under the federal Administrative Procedure Act). However, without even the formality of public notice and comment, MMS regularly amends its regulations to reflect updated versions of the industry standards whenever the agency “determine[s] that the revisions to a [referenced] document result in safety improvements, or represent new industry standard technology and do not impose undue cost or burden on the affected parties.” Although this is permitted in some circumstances by the federal Administrative Procedure Act, it keeps the public out of the loop on agency decisions that have proved to be, literally, disastrous.
MMS also issues, without public notice and comment, something it calls “Notices to Lessees and Operators” (NTLs), which the agency describes as “formal documents that provide clarification, description, or interpretation of a regulation or OCS standard; provide guidelines on the implementation of a special lease stipulation or regional requirement; provide a better understanding of the scope and meaning of a regulation by explaining MMS interpretation of a requirement…”
A quick scan of the current NTLs indicates that MMS will sometimes use these as a substitute for actual regulations. In other words, they’re using this process to quietly make new rules that require less scrutiny. In fact – an AP article published on May 5 indicates that MMS used this maneuver in 2008 to grant BP an exemption for the Deepwater Horizon project from specific regulatory requirements to develop a contingency plan for a blowout.
We’ve seen, and are still seeing, how well that worked out.
We can find another example of MMS setting standards without public review when it comes to the enforcement of its “Safety and Environmental Management Program” (SEMP). MMS describes SEMP as “a nontraditional, performance-focused tool for integrating and managing offshore operations. The purpose of SEMP is to enhance the safety and cleanliness of operations by reducing the frequency and severity of accidents.”
In 1991, MMS first considered making mandatory regulations under SEMP to make sure industry adheres to this safety program, but instead allowed the industry to develop a voluntary program and decided not to issue a mandatory rule. As the agency said, "From the MMS perspective, doing [the industry standard] is doing SEMP."
Yet, 15 years later, with those SEMP regulations still nonexistent, the agency again decided there was a “need for performance improvement in the following areas at a minimum: hazards analysis, operating procedures, mechanical integrity, and management of change.”
But it still wasn’t for another three years, in 2009, when MMS finally proposed regulations, explaining that the agency believes it would “reduce the risk and number of accidents, injuries, and spills during Outer Continental Shelf activities.” Of course, BP objected to this action, characterizing it as “extensive, prescriptive regulations” in their public comments, and stating that BP “believe[s] industry's current safety and environmental statistics demonstrate that the voluntary programs continue to be very successful." BP also expounded on that position in Congressional testimony about the proposed rule in November 2009.[13] There are over 100 comments in the rulemaking docket, and no doubt most of them are from industry saying the same thing.
Sure enough, they’ve gotten their way so far – to-date MMS has not yet taken final action on the proposed rule. And the oil in the Gulf is still flowing.
Bottom line: What this sorry history shows is that MMS has a history of doing favors for the oil industry, out of public sight. This can, and should, be stopped right now.
Note: NRDC staffer Larry Levine also contributed to the writing and content of this blog.