Quiet Advocacy For Big Changes

Some of the things that NRDC does get a lot of media attention; many get none.  I want to tell you about something we just did that is likely to fall into the “none” category. 

There is a little-known agency in the White House called the Council on Environmental Quality, or CEQ.  A primary job of CEQ is to tell federal agencies how to implement NEPA, the National Environmental Policy Act.  NEPA, the foundational environmental statute, requires that government activities be reviewed for their environmental impact.  The current head of CEQ is Nancy Sutley, a former Deputy Mayor in Los Angeles with whom NRDC worked on some projects at the Port of Los Angeles. 

While the Obama Administration has been taking some heat for its response to the BP Deepwater Horizon blowout, its positive actions have often been overlooked.  One very positive thing that the White House has done -- that has received very little publicity -- is to ask CEQ to conduct a top-to-bottom review of how the Minerals Management Service (MMS) has been complying with NEPA. 

By way of context, MMS’s compliance with NEPA has been shockingly bad.  

You can see that CEQ has a tough job to reform MMS.  Thankfully, CEQ has asked for public comments on how to do this.  NRDC filed our highly technical written comments with CEQ on June 2, 2010.  Here is a summary of our view of the specific problems that CEQ should address (warning:  this is very wonky):  

First, MMS has all too frequently given oil activities only the most cursory review by misusing its discretion under the law.  Specifically, NEPA allows projects to get different levels of scrutiny depending on how much environmental damage they threaten.  MMS misinterpreted this tiered process under the Outer Continental Shelf Lands Act (OCSLA) as allowing it to prepare environmental impact statements (EIS) at a high level of generality at the planning stages of oil activities and to then provide only minimal NEPA review for the individual lease sales and exploration and production plans that followed.  This problem was compounded by federal court interpretations of when MMS’ reviews were subject to judicial oversight.  Technically, the courts have often ruled under  OCSLA that cases are not “ripe” for review until late in the planning process, after all the damaging broad guidelines for drilling and other activities have been laid out.     

Second, MMS has a history of gross non-compliance with related federal statutes, including the Marine Mammal Protection Act and Endangered Species Act, notwithstanding the requirement (40 C.F.R. § 1502.25) that agencies integrate their NEPA analyses with their duties under other laws to the fullest extent possible.  

And third, MMS has historically been plagued by a conflict of interest between its mission to promote development and its obligation to carry out its environmental review functions.  Secretary Salazar’s proposal to abolish the agency and replace it with three separate entities attempts to get at this, but does not go far enough. 

And here are our top-line recommendations to fix these problems: 

Recommendations for Improving the Tiered NEPA Review Process 

(1)         Recommend that Congress repeal the present 30-day statutory deadline under OCSLA for approval or denial of exploration and development/production plans.  The Administration has also made this recommendation. 

(2)         Specify that EISs are generally required for exploration and development/production plans in frontier areas (i.e., parts of the outer continental shelf (OCS) not already subject to active exploration and development), as well as for plans that rely on new or unconventional techniques; and that environmental assessments (the level of review one step below an EIS), at a minimum, should initially be prepared in other cases.  

(3)         Specify that individual lease sales require an EIS that comprehensively evaluates all stages of OCS activity – exploration, development and production – that may occur as a result of the lease sale. 

(4)         Allow judicial review to occur earlier in the planning process by making a clear finding that the advantages of judicial review of NEPA compliance at the planning and leasing stages outweigh any disadvantages to the action agency; and recommend that Congress allow citizen suits to push for judicial review of NEPA compliance at all stages of OCS development. 

Recommendations for Analysis of Particular Substantive Issues 

(5)         Require that MMS include a detailed analysis of oil spill risk at each tier of the NEPA process, with realistic data on trajectory duration, spill magnitude, and potential long-term environmental impacts based on what’s being learned from  the Gulf disaster. 

(6)         Require that MMS include a peer-reviewed oil spill containment and cleanup plan in each mandated EIS. 

(7)         Require that MMS prepare programmatic and project-specific NEPA reviews on the acoustic impacts of OCS activities on marine wildlife, to consider a “worse-case” scenario for acoustic impacts on wildlife populations, and to consult with the National Oceanic and Atmospheric Administration (NOAA), which has the environmental expertise in this area, on both its impact methodology and alternatives analysis.  

(8)         Require that MMS include, in its programmatic EISs, an independent expert analysis that compiles seismic survey applications into a regional survey plan for purposes of eliminating duplication of survey effort, particularly at the pre-leasing stage. 

Recommendations for Strengthening Participation of Other Federal Agencies 

(9)         Provide funds to NOAA to obtain adequate baseline biological and oceanographic information in the OCS regions; and require, consistent with 42 C.F.R. § 1502.22, that such information be produced before new areas are opened for seismic exploration and drilling. 

(10)     Strengthen NOAA’s role in EIS preparation beyond the status of a cooperating agency, such as by adopting regulations requiring MMS to justify, in the Federal Register, its derogation from any recommendations made by its sister agency; and suggest that Congress amend OCSLA to accord NOAA further deference, particularly at the planning and leasing stages of OCS review.     

 (11)     Set forth specific requirements (described below) that more effectively integrate MMS’ NEPA analyses with the consultation and permitting processes mandated under related statutes, including the Marine Mammal Protection Act, Endangered Species Act, Magnuson-Stevens Act, Clean Air Act, and Clean Water Act.

 Recommendations for Public Participation and Transparency

 (12)     Ensure clear and appropriate guidelines exist for implementing NEPA by having the Interior Department promulgate MMS-specific regulations for NEPA implementation and, more generally, publish MMS-specific procedures as rules rather than as guidelines.

 (13)     Immediately make funding available for important pending activities related to agency and public participation in NEPA review of OCS activities, and account for these ongoing needs in its future budget proposals to Congress.

 Not very exciting reading, is it?  But the upshot of these recommendations, if implemented, would be a transformation of MMS from the lapdog of the oil industry to an agency that truly serves the public good.  And that would be newsworthy.