On August 16 2010 the White House Council on Environmental Quality issued a report summarising the findings of a 30-day review of the Department of Interior Minerals Management Service's(1) environmental policies for oil and gas exploration and development in the outer continental shelf (for further details please see "White House reviews environmental policies on offshore oil and gas exploration"). The council found that the Minerals Management Service's reliance on the 'tiering' process (where prior programmatic environmental reviews are incorporated into later site-specific analyses) was not transparent and led to confusion and concern regarding whether the service sufficiently evaluated and disclosed environmental impacts. The council stated that in order for information from one level of review to be effectively included in subsequent reviews, assumptions made by the service must be independently tested by other agencies, and site-specific environmental impacts should also be evaluated.

The report presents seven recommendations "to promote robust and transparent implementation of the National Environmental Policy Act (NEPA) practices, procedures, and policies".(2) The Bureau of Ocean Energy Management, Regulation and Enforcement, the successor agency to the Minerals Management Service, has committed to using these recommendations as guideposts to reform its National Environmental Policy Act policies and practice.

The council recommended that the bureau:

  • performs careful and comprehensive National Environmental Policy Act review of individual deepwater exploration, operation, development, production and decommissioning activities, including site-specific information where appropriate;
  • tracks and takes into account all mitigation commitments made in National Environmental Policy Act and decision documents that are relied on in determining the significance of environmental impact, from the initial programmatic environmental impact statement through to site-specific National Environmental Policy Act analyses and decision;
  • ensures that:
    • National Environmental Policy Act analyses fully inform and align with substantive decisions at all relevant decision points;
    • subsequent analyses accurately reflect and carry forward relevant underlying data; and
    • those analyses will be fully available to the public;
  • ensures that National Environmental Policy Act documents provide decision makers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low-probability catastrophic spills for oil and gas activities on the outer continental shelf;
  • reviews the use of categorical exclusions for outer continental shelf oil and gas exploration and development in light of the increasing levels of complexity and risk and the consequent potential environmental impacts associated with deepwater drilling, and determine whether to revise these categorical exclusions;
  • continues to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted exploration plans; and
  • considers supplementing existing National Environmental Policy Act practices, procedures and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP oil spill.

The council also solicited public comments to assist its review of the Minerals Management Service's environmental policies and practices. Among the 30 comments received by the council were the following:

  • Environmental impact statements should be prepared with a greater level of specificity, and individual lease sales should require an environmental impact statement that comprehensively evaluates all stages of outer continental shelf activity.
  • Categorical exclusions have not been applied appropriately, and their use has enabled the Minerals Management Service to avoid further analyses and public participation at every stage of oil and gas development.
  • Procedures for oil and gas development should be published as rules, rather than guidelines, to ensure compliance.

The report details the review process used by the Minerals Management Service before undergoing reform, linking to the environmental documents that the agency relied on in authorising activities in the outer continental shelf. Additionally, it identifies the BP oil spill as significant new information that is likely to require the Minerals Management Service (now the Bureau of Ocean Energy Management, Regulation and Enforcement) to reevaluate the conclusions it reached in prior National Environmental Policy Act reviews, environmental analyses and studies.

Following the release of the report, Secretary of the Interior Ken Salazar and Bureau of Ocean Energy Management, Regulation and Enforcement Director Michael R Bromwich announced that the Department of Interior will undertake a comprehensive review of its National Environmental Policy Act policies and use of categorical exclusions for offshore oil and gas development activities. During this review, the bureau will restrict its use of categorical exclusions to activities involving "limited environmental risk". Development activities that potentially involve significant environmental risk, and which previously fell within a categorical exclusion, will need individual environmental assessments. A notice of this comprehensive review will be published in the Federal Register. The bureau stated that its new approach to the National Environmental Policy Act will take into account the report's recommendations.

For further information on this topic please contact Jessica Steinberg at Sive Paget & Riesel PC by telephone (+1 212 421 2150), by fax (+1 212 421 2035) or by email (jsteinberg@sprlaw.com).

Endnotes

 

(1) The Minerals Management Service is undergoing reform and reorganisation and has been renamed the Bureau of Ocean Energy Management, Regulation and Enforcement.

(2) Council on Environmental Quality report at 4.

 

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