By Kimi Narita, Center for Ocean Solutions Legal Intern

Back in early August 2010 Meg Caldwell, Executive Director of the Center for Ocean Solutions (COS), was asked to testify before the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (Commission).  Her testimony would address the statutory and regulatory framework for outer continental shelf (OCS) leasing and would identify potential changes to both minimize the likelihood of another catastrophic oil spill occurring and prepare the nation should another disaster occur.  August was a busy month for the COS staff, particularly myself and Meg Caldwell, as we conducted research, corresponded with other ocean experts, and drafted her testimony.  Caldwell flew to Washington D.C. and presented her testimony to a very appreciative Commission on August 25, 2010, and we assembled her written testimony the following week.  Caldwell’s testimony stressed that the current laws and regulations are written and administered in a way that leads to poor environmental review and minimal inter-agency consultation.   

Oral testimony viewable at http://www.c-spanvideo.org/program/295170-2

The following month we were asked to prepare a white paper for the Commission on the National Environmental Protection Act (NEPA) and MMS’ implementation of NEPA.  (The Minerals Management Service, MMS, was the agency in charge of offshore drilling activities at the time of blowout of the BP Macondo Well and subsequent oil spill.  It is now dissolved and the Bureau of Ocean Energy Management, Regulation and Enforcement, BOEMRE, is in its place.)  Over the next six weeks we worked tirelessly on researching and composing this report all while juggling COS’ main initiatives and law school.  We also sought the expertise of Debbie Siva, Director of the Stanford Environmental Law Clinic.  Professor Sivas is an experienced litigator with a deep understanding of NEPA and the environmental review process.  We submitted that report to the Commission on October 19, 2010.

The Final Report of the Commission was released on January 11, 2011.  The Commission’s analysis of the legal and regulatory framework MMS had been working under is thoughtful and accurate.  And many of the Commission’s recommendations to the President are in line with COS’ recommendations.  While some of COS’ recommendations did not make it into the report (e.g. transparency, public involvement standards, the improved scientific rigor in environmental review documents), the Commission properly identified the areas where the legal and regulatory framework needed the most improvement – inter-agency consultation and environmental review.  A table of how some of COS’ most important recommendations fared in the Final Report is available by clicking here.  

COS’ contribution can also be found in the details.  For instance, in our NEPA white paper we characterized the breakdown of the environmental review process as “systemic,” which is exactly how the Commission describes the problem on page 260. 

• COS: The breakdown of the environmental review process for OCS activities is systemic.
• Commission: The Commission has reviewed the leasing and permitting processes that MMS followed in the Gulf of Mexico before the Deepwater Horizon incident. The results lead the Commission to conclude that the breakdown of the environmental review process for OCS activities was systemic and that Interior’s approach to the application of NEPA requirements in the offshore oil and gas context needs significant revision.

Further, to highlight the lack of rigorous environmental review for the Gulf of Mexico in the environmental review documents, we demonstrated that the bluefin tuna, a critical species in the area was only mentioned briefly.  This appeared at a footnote on page 83. 

• COS: For instance, bluefin tuna are found in the Gulf of Mexico region covered by Lease Sale 206. Bluefin are a commercially vital resource and are biologically significant as top predators, so it would seem reasonable that a meaningful environmental review of the impacts of OCS activities on this species would be warranted. The Programmatic EIS (PEIS), which covers not only the Gulf of Mexico but also Alaska and the Atlantic, includes one sentence on bluefin tuna. The Multi-Sale EIS, which tiers from the PEIS, contains a few sentences on bluefin tuna, but nothing significant on potential impacts of OCS activities. The Lease Sale 206 EA never mentions bluefin. If tiering were done appropriately, the analysis would get more detailed and specific as the environmental reviews honed in on the exact location of OCS activities.

Commission: For instance, bluefin tuna are both commercially vital and biologically significant as predators in the Gulf. But in the relevant Five-Year (2007–2012) Programmatic Environmental Impact Statement on the entire offshore leasing program—covering the entire outer continental shelf of the United States—MMS discusses potential impacts of leasing activities on bluefin tuna in one sentence. Subsequent MMS environmental impact statements for lease sales within the Gulf of Mexico contained no significant or geographically-focused analysis of the potential impacts on bluefin tuna. And, in finally permitting the drilling of the Macondo well, MMS categorically excluded the action from any NEPA review, and thus conducted no analysis of the potential impacts on bluefin tuna. And, in finally permitting the drilling of the Macondo well, MMS categorically excluded the action from any NEPA review, and thus conducted no analysis of the potential impacts of drilling on bluefin tuna, based on the rationale that it had already adequately reviewed environmental impacts in its prior reviews.

 We are very proud to have submitted our work for the Commission’s review and even prouder that much of what we recommended the Commission heeded.  We hope the Final Report will lead to meaningful changes in the legal and regulatory structure of offshore drilling in U.S. waters in the near future.