A Trump Administration proposal to speed federal review of offshore energy projects would make it harder for states to protect their coastlines and vulnerable marine habitats, Natural Resources Defense Council argued in comments we filed last month with the National Oceanic and Atmospheric Administration (NOAA).
The proposed changes to the Coastal Zone Management Act (CZMA) Federal Consistency Process are still in preliminary form. But if adopted, they would weaken the voice of states and coastal communities in decisions on offshore leasing, resource exploration and development. The Trump administration has proposed a plan to increase offshore oil and gas drilling—moves that coastal states and environmental organizations have greeted with alarm.
“[C]oastal states must be able to fully utilize their consistency review authority under the CZMA in order to effectively protect their coasts, coastal communities, and coastal economies in the face of proposals to speed up and greatly expand Outer Continental Shelf (OCS) offshore oil and gas activities” NRDC and the coalition of environmental groups wrote in our comments filed with NOAA.
The CZMA Gives Coastal States an Important Say in What Happens on Their Coasts
At issue is whether energy projects proposed in federal waters conflict with the economic and environmental interests of coastal states. Since 1972, when the Coastal Zone Management Act first became law, the federal government has formally recognized the legal right of coastal states, Great Lake states and United States territories and commonwealths to restrict activities along their coastlines and in coastal waters that pose a risk to the health and safety of their populations and the preservation of their natural resources.
The law recognizes that resource exploration and extraction on the Outer Continental Shelf (OCS), such as offshore drilling, could despoil beaches, wetlands and estuaries, harm wildlife and hurt lucrative tourism and other industries on which state economies depend. Counties directly on the coast are home to 39 percent of people living in the U.S.
Under the law, new offshore energy projects, including OCS oil and gas lease sales, exploration, development and production plans that have reasonably foreseeable impacts on a state’s coastal zone must be consistent with the enforceable policies of coastal management plans that states have developed, and NOAA has approved. States have the right to raise objections if they determine that offshore energy plans put forward by federal agencies or energy companies, applicants for federal permits or recipients of federal funds are inconsistent with their management plans. If the state objects to an offshore energy activity requiring a federal license, permit or approval, that activity may not go forward unless an appeal is taken to the Secretary of Commerce and the Secretary overrides the state’s objection. If the activity is a federally conducted activity, such as an OCS lease sale, according to NOAA’s current rules, the activity may proceed, but the state can pursue its objection and challenge the activity in court.
Currently, 34 of 35 eligible states and territories have federally approved coastal zone management plans in place. Alaska is the sole exception.
By and large, the law has worked. Of the more than 10,600 offshore exploration plans and 6,000 offshore development and production plans approved since 1978, industry has only appealed an objection by a state 18 times. In 7 of the appeals, the Secretary overrode the state objection, and in 7 of the appeals, the Secretary upheld the state objection. (The 4 other appeals were withdrawn because of settlement negotiations or agreements.) There have been no industry appeals regarding OCS energy plans since 1999.
The Trump Administration is Putting Speed Over Substance to Favor Industry
But the new proposal, backed by the oil and gas industry, ignores that track record. NOAA is considering giving states less time to defend their consistency determinations on appeal and limiting the scope of information they could submit on appeal. The agency is also considering treating the Secretary’s override of a state’s objection to an OCS exploration plan as setting a precedent for its override of state objections to the later development and production stages, even though the impacts of these later stages and the rationale for state objection could be very different. Currently, appeals at each stage are given full review.
NOAA asserts the changes would make the process speedier, more efficient and more “predictable” for industry.
But NRDC, along with the other environmental groups and the attorneys general of nine states, contend there is no justification to amend the federal regulations.
In their comments filed with NOAA, the attorneys general of New York, California, Maryland, Massachusetts, New Jersey, North Carolina, Oregon, Rhode Island and Washington wrote that the proposed changes threaten the right of states to participate in decisions affecting their shores.
“NOAA should not, under the guise of enhancing predictability and without any demonstrated justification, simply shift the balance of authority away from the States,” the attorneys general wrote. “...The consistency review process should be left as is, if not strengthened, rather than further streamlined.”
Indeed, the appeals process timeline is already tight and limits public hearings. Reducing the scope of information for review would fail to account for the different environmental dangers posed by energy projects at various stages of development.
The dangers posed by exploration of potential oil and gas deposits differ vastly, for example, from those presented by production for long periods of time.
“It is essential that the Secretary of Commerce give an appeal at each stage of the OCS process a full review and not be bound by prior decisions,” NRDC wrote. “...In the context of both climate change and coastal population growth, our coasts are becoming increasingly vulnerable...a major oil spill has the potential to devastate coastal communities and coastal economies.”
NOAA, as part of the US Department of Commerce, is currently reviewing the comments from environmental advocates, lawmakers and industry groups. NRDC will continue to push against changes that would weaken this important process.