February 12, 2018
Ms. Kelly Hammerle, Chief
National Oil and Gas Leasing Program Development and Coordination Branch
Leasing Division, Office of Strategic Resources
Bureau of Ocean Energy Management (VAM-LD)
45600 Woodland Road
Sterling, VA 20166-9216
Subject: 2019-2024 Draft Proposed Outer Continental Shelf Oil and Gas Leasing Program
Dear Ms. Hammerle:
I am writing to you on behalf of over 1,400 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed entirely of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System (System). As a group, we collectively represent more than 35,000 years of experience managing and protecting America’s most precious and important natural and historic places.
Management of America’s offshore oil and gas resources is governed by the Outer Continental Shelf Lands Act (OCSLA), 43 U.S. Code [U.S.C.] 1331 et seq., which sets forth procedures for leasing, exploration, development, and production of those resources. Section 18 of the OCSLA (43 U.S.C. 1344) calls for the preparation of a nationwide OCS oil and gas leasing program, setting forth a five-year schedule of lease sales designed to best meet the Nation’s energy needs. The Bureau of Ocean Energy Management (BOEM) within the U.S. Department of the Interior (USDOI) is responsible for implementing the requirements of the OCSLA related to preparing the leasing program.
On July 3, 2017, BOEM published in the Federal Register a Request for Information (RFI), which is the first step in the preparation of a new National OCS Program (82 FR 30886). The new program would replace the existing 2017-2022 OCS Oil and Gas Leasing Program, which was approved on January 17, 2017. On January 8, 2018, BOEM published a Notice in the Federal Register (FR) announcing the availability of, and requested comments on, a Draft Proposed Program (DPP) for the 2019-2024 Outer Continental Shelf Oil and Gas Leasing Program. In the same Notice, BOEM also announced its decision to prepare a Programmatic Environmental Impact Statement (PEIS) for the 2019-2024 Program and the initiation of the formal scoping process.
Despite longstanding federal oversight under OCSLA, disastrous oil spills have occurred from time to time off our nation’s coasts; and some have severely damaged the resources of units (“parks”) of the National Park System. Such events include Santa Barbara Channel (1969), Exxon Valdez (1989), and Deepwater Horizon (2010). Members of the Coalition, during their NPS careers, worked on clean-up of the Exxon Valdez spill in Alaska and the Deepwater Horizon spill along the Gulf Coast; and we can speak from first-hand experience about the devastating effects of such oil spills on coastal parks, resources, communities, and economies.
In March 1989, the Exxon Valdez ran aground in Prince William Sound, spilling nearly 11 million gallons of oil along the Alaskan coastline, including national park sites such as Kenai Fjords, Katmai, Aniakchak, and Lake Clark. Recreation and tourism declined dramatically and resource managers were forced to limit hunting and fishing access because of the damage. Despite extensive cleanup efforts, oil remains on national park beaches to this day.
The 2010 Deepwater Horizon “catastrophic discharge event” leaked more than 210 million gallons of oil into the Gulf of Mexico, contaminating miles of beaches, wetlands and ocean waters, and causing an estimated $37 billion in damages. Gulf Islands National Seashore was severely harmed, and the park is still recovering from the effects of the spill on plants, wildlife and archaeological resources. Thousands of birds, mammals, and sea turtles were plastered with leaked oil. In addition to the overwhelming resource impacts, the Deepwater Horizon spill caused many billions of dollars in economic losses and damages, affecting many of the industries upon which Gulf Coast residents depended.
Following Deepwater Horizon, President Obama created the National Commission on the British Petroleum (BP) Deepwater Horizon Oil Spill and Offshore Drilling (Commission) as an independent, nonpartisan entity directed to provide a thorough analysis and impartial judgment about the 2010 spill. The Commission’s final report, issued in January 2011, referred to the Deepwater Horizon spill as “the worst environmental disaster America has ever faced” and attributed the spill to a lack of regulatory oversight by the government and negligence and time-saving shortcuts on the part of BP and its partners. Among its findings, the Commission reported the “absence of adequate safety culture in the offshore U.S. oil and gas industry” (pp. 224).
In addition to the three major spills mentioned in the section above, the report listed 79 other “loss of well control” incidents occurring in the Gulf of Mexico between 1999 and 2009 (pp. 226-227). In essence, this list demonstrates that oil spills and other “accidents” related to offshore oil and gas operations are NOT rare occurrences and more spills and accidents are likely to occur in the future.
The report concluded (p. 293) that “the BP Deepwater Horizon disaster undermined public faith in the oil and gas industry, in government regulators, and even in America’s ability to respond to crises. The disaster raised serious questions about our nation’s ability to manage and protect for current and future generations the invaluable natural resources of the outer continental shelf and the multiple uses they sustain.” The report also made an important point about the Interior Department’s responsibility for ensuring proper management of OCS resources: “The oil and gas industry does not own the valuable energy resources located on the outer continental shelf, which belong to the American people and are managed by the federal government on their behalf” (p.239).
Not surprisingly, numerous changes in federal management of the OCS oil and gas program occurred after the Deepwater Horizon incident. For example, in 2011 Congress created, within the Department of the Interior, the Bureau of Safety and Environmental Enforcement (BSEE) “to promote safety, protect the environment, and conserve resources offshore through vigorous regulatory oversight and enforcement.” And BSEE subsequently promulgated several important new OCS oil and gas safety regulations found in 30 CFR Part 250: the OCS Production Safety Systems rule; and the OCS Blowout Preventer Systems and Well Control rule.
Keeping in mind the important findings of the Commission, we offer the following comments about the DPP and PEIS.
COMMENTS ON THE DPP
1) The massive scale of the all-inclusive proposed program is irresponsible and very threatening: The DPP would make more than 98 percent of the OCS resources available to consider for oil and gas leasing during the 2019-2024 period. It proposes to hold 47 lease sales in all four OCS regions and includes 25 of the 26 planning areas. In essence, the proposal would open ALL of the OCS of the Atlantic, Gulf of Mexico, and the Pacific, and most of the OCS of Alaska to leasing.
The all-inclusive nature of the proposed program is particularly surprising given BOEM’s mission of environmental stewardship of OCS resources. According to the DPP, the scale of the proposal is “unprecedented.” We agree, but can think of other words to describe the proposed action. Two that come to mind are “RECKLESS” and “IRRESPONSIBLE,” particularly in light of the findings of the Deepwater Horizon Commission.
If fully implemented as proposed, the action would expose up to 93,000 miles of U.S. shoreline to the potentially devastating impacts of oil spills, threaten a vast and diverse array of marine and estuarine resources, and jeopardize well-established and sustainable coastal economies that depend upon healthy oceans and estuaries and pristine beaches. The National Ocean Economics Program at the Middlebury Institute of International Studies at Monterey estimates the combined economic impact in 2014 of the ocean economies across the United States (excluding Hawaii) to be: 2.9 Million jobs; $118 Billion in wages; and $344 Billion in contribution to the gross domestic product (GDP). The diversity and collective value of natural resources and economic activities put at risk under the DPP are astounding!
As a national parks advocacy group, we are particularly concerned with potential impacts to units (parks) of the National Park System. There are 67 parks along the coasts of the Atlantic, Gulf of Mexico, Pacific, and Alaska. Collectively, these parks preserve over 10,000 miles of shoreline and nearly 2 million acres of marine waters. In 2016, these parks received over 85 million visitors whose $4.5 billion in spending supported 65,000 jobs in adjacent coastal communities.
2) The DPP includes planning areas that should be excluded based on low production potential or high environmental cost: As stated in the DPP (p. 8-8): “The burden of environmental risk is borne primarily by the marine and coastal areas adjacent to and within which oil and gas activities occur.” The analysis in the DPP documents that a number of the planning areas have relatively limited production potential or relatively high environmental and social costs; yet ALL such areas are proposed for leasing. For example, Chapter 5 Figure 5-10 shows the relative ranking of the planning areas based on the estimates of Unleased Undiscovered Economically Recoverable Resources (UERR). The areas with by far the greatest potential for production are the Central Gulf of Mexico (GOM), Chukchi Sea (AK), Western GOM, and Beaufort Sea (AK). All other planning areas listed in the figure offer increasingly lower potential. Of the highest production potential areas, Central GOM and Western GOM are currently the most extensively leased, with over 50,000 wells drilled (DPP Sections 4.3.1 and 4.3.2). We believe that BOEM should exclude areas with lower production potential in order to “balance” benefits with costs.
While we could understand a focus on high production potential/low environmental cost areas for proposed leasing, BOEM’s failure to exclude from further consideration low potential/high cost areas is not explained. “Responsible stewardship” demands that BOEM have the ability and judgment to make such determinations. At the very least, BOEM’s should explain its rationale for NOT prioritizing areas for leasing based on such analysis.
3) Options to Be Analyzed in the Proposed Program (DPP pp. 10-11): The “range” of options described is very limited and will not meet the requirements of National Environmental Policy Act (NEPA). The Council on Environmental Quality (CEQ) NEPA implementing regulations at §1502.14 requires the lead agency (in this case BOEM) to (among other things); (a) Rigorously explore and objectively evaluate all reasonable alternatives(emphasis added), and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated; and (f) Include appropriate mitigation measures not already included (emphasis added) in the proposed action or alternatives.
To be frank, it appears that BOEM is purposefully proposing a few lease sales in as many different planning areas as possible to “break the ice” and establish the precedent that every area has or will have active leases. Such a strategy is inappropriate, arguably cynical, and unsupported by the information provided. It does not represent good stewardship. As mentioned in comment # 2 above, some of the planning areas clearly have relatively low production potential and relatively high environmental or social costs (e.g., Washington/Oregon, the South Atlantic, many of the planning areas south or west of Alaska). These areas would not meet the Section 18 “balancing requirements” of OCSLA (see next comment); and therefore are not appropriate for leasing. A reasonable range of options should include an alternative that excludes ALL planning areas where, based on BEOM’s analysis, production potential is relatively low and/or environmental and social costs are relatively high.
4) Mitigation Measures Should be Added to the Alternatives: Some of the options described on pp. 10-11 include “coastal buffer(s) to accommodate concerns such as military use, fish and marine mammal migration, and other near-shore uses.” While we support the identification of such buffers, where appropriate, we believe these should be more broadly applied (e.g., applied universally to ALL planning areas with populated shorelines). In addition, a variety of other mitigation measures may be appropriate and should be considered. These include, but are not limited to: avoidance of OCS activities in ALL environmentally important areas (EIAs); temporal closures or restrictions to avoid conflicts with fish and wildlife during nesting/birthing/young rearing periods and migrations; and restrictions on the use of seismic air guns at certain times and in certain locations to protect marine mammals. As part of the alternative(s), there should also be a suite of mitigation measures considered and identified for each leasing area. The lack of mitigation measures in the current “options” raises serious concerns about BOEM’s intent to manage the leasing in an environmentally responsible manner.
5) The proposal fails to comply with the balancing requirements of Section 18(a)(3) of OCSLA: Section 18(a)(3) requires the Secretary to render decisions on the timing and location of OCS leasing that strike a balance between the potential for environmental damage, the potential for discovery of oil and gas, and the adverse impact on the coastal zone. The sheer magnitude of the proposed leasing (potentially affecting up to 98% of the coastal U.S.) relative to the diverse resources and economic values at risk, clearly fails this requirement. BOEM’s failure to exclude low potential/high environmental cost areas, and the potential for significant cumulative adverse impacts in the coastal zone, in no way constitutes a “proper balance.” To ensure the adequate oversight necessary to limit potential environmental damage and adverse impacts on the coastal zone, BOEM should limit new leasing to offshore areas that currently have active leases; that have some level of support from the adjacent state and local governments; and have known or anticipated hydrocarbon presence.
6) The proposal is not responsive to State concerns: Section 19(c) of OCSLA states: “The Secretary shall accept (emphasis added) recommendations of the Governor and may accept recommendations of the executive of any affected local government if he determines, after having provided the opportunity for consultation, that they provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State.” Both Table 9-2 and Appendix A summarize RFI comments received from governors and State and local government agencies. It is obvious that many of the affected States (i.e., governors and State and local governments) strongly OPPOSE oil and gas leasing off their respective coasts; while a lesser number of States support the proposed leasing off their coasts.
By any reasonable interpretation of the statute, BOEM should, in fact, accept each State’s request for an exclusion; and then focus proposed leasing in areas with existing leases that have their respective State’s support. The process and precedent for BOEM making such exclusion decisions is well established and has been upheld by the courts. In Natural Resources Defense Council, et al. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988), the court found that such exclusion decisions must be reasoned and the basis for making them identified, but there did not need to be a “formula” for such decisions. The court cited California (at 1321–22) to explain that the Secretary’s duty as to the exclusion decisions is “simply to identify his legal or factual basis and to exp1ain why he acted as he did.” Also once an area is excluded from availability for leasing, “[t]he Secretary need not perform a Section 18 analysis” on that area (California II at 608).
In addition to the OCSLA requirement to solicit and consider comments from the governor of each affected state, the proposal also triggers the consistency review requirement under Section 307 (16 U.S.C. § 1456) of the Coastal Zone Management Act (CZMA), which states, in part: “Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.” It is not clear if BOEM has complied with this requirement or not.
7) The DPP downplays the level of safety and environmental risk posed by the proposed OCS program: DPP Section 18.104.22.168, Technology (p. 1-9), states, in part:
“Offshore, technological advancements in the oil and natural gas industry over the past several decades have greatly expanded the resources available for production…Additionally, regulatory changes, improvements in industry practices, and enhanced Bureau of Safety and Environmental Enforcement (BSEE) inspection capabilities have made OCS exploration and development safer and more environmentally sound (emphasis added to underlined sections). Companies can explore for, and develop, previously inaccessible resources.”
In reflecting on the findings of the Deepwater Horizon Commission described previously in our comments, BOEM’s confidence in the OCS industry’s safety and environmental protection capabilities is surprising. It is true that, as a result of the Commission’s recommendations, several offshore safety regulations were revised in order to increase safety requirements. These include the OCS Productions Safety Systems Rule and the Blowout Preventer Systems and Well Control Rule. So, in a sense, regulatory oversight of OCS operations did improve as stated in the DPP. However, BOEM’s sister agency BSEE is in the process of revising those rules, in effect weakening them, which leads to our next concern.
8) BOEM fails to disclose other Interior Department actions that could decrease OCS production safety and increase the level of risk: While the regulations mentioned above were clear improvements in safety and environmental requirements related to OCS oil and gas operations, BOEM fails to disclose that BSEE is in the process of revising (easing) key “third-party certification” requirements in the Production Safety Systems Rule. In addition, the Interior Department’s Semiannual Regulatory Agenda, published in the FR on January 12, 2018, indicates that BSEE also plans to revise the Blowout Preventer Systems and Well Control Rule and the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf.
Simply put, the proposed program, along with simultaneous proposals to incrementally decrease OCS safety and environmental requirements, decreases the public’s trust in BOEM’s commitment to responsible environmental stewardship of OCS resources. Because of the far reaching nature of the proposed leasing, this is a complicated issue with many moving parts that can have interacting effects that alter the level of risks and potential impacts. It is critical, moving forward in the planning process, that BOEM be fully transparent about the potential cumulative effects of ALL related actions, including proposed changes in regulatory oversight.
SCOPING COMMENTS ON THE PEIS
We submit the following scoping comments regarding the PEIS:
1) Chapter 1 – Introduction should include the following sections:
- Background – As historical context for the proposed action, this section should include a description of the Deepwater Horizon incident; a summary of key findings of the National Commission; and a summary of key changes in federal oversight of and safety requirements for OCS oil and gas exploration and development.
- Scope of the PEIS – As proposed in the DPP, the scope/scale of the proposal is overly broad. This merits a clear explanation of BOEM’s decision to consider leasing 25 of 26 planning areas despite the fact that BOEM’s DPP analysis identifies a number of low production potential areas.
- Resources and Other Environmental Conditions to Be Evaluated in the PEIS – This should include ALL of the following: Air Quality; Water Quality; Marine Benthic Communities; Coastal and Estuarine Habitats; Pelagic Communities; Marine Mammals; Sea Turtles; Birds; Fish and Essential Fish Habitat; Arctic Terrestrial Wildlife and Habitat; Archeological and Historical Resources; Population, Employment, and Income; Land Use and Infrastructure; Commercial and Recreational Fisheries; Tourism and Recreation; Socio-cultural Systems; Environmental Justice; Climate Change; and Human Health
- Landscape-scale analysis and identification of mitigation strategies – Mitigation should include measures to limits impacts in areas where lease activities occur, as well as exclusion of areas from leasing activities.
- Environmentally Important Areas (EIAs) – EIAs and other special resources within each planning area should be identified.
2) Chapter 2 – Alternatives should include:
- A greater range of alternatives than is described on p. 10 of the DPP. This should include not only the Proposed Action and a No Action alternative, but also an alternative or alternatives that prioritize leasing of relatively high production potential/low environmental and social cost areas over leasing of areas with lower production potential or higher environmental risk.
- At least one alternative should include exclusion (no new leasing) or mitigation of EIAs in ALL applicable planning areas where EIAs exist.
- We ask that a separate alternative describe and evaluate a scaled down (or reduced) version of the Proposed Action based on whatever factors BOEM deems appropriate.
- We are particularly concerned about the use of seismic air guns for oil and gas exploration and surveys, yet there is little mention of it in the DPP. Air guns are known to disturb, injure, or kill marine mammals and other marine life. The impacts of air guns should be analyzed and alternatives to air gun use should be considered; and/or mitigation measures (such as temporal avoidance of air gun use during migration periods) should be included.
- Lastly, there should be a section describing planning area-specific Programmatic Mitigation Measures
3) Chapter 4 – Affected Environment and Impact Assessment:
- Similar to PEIS’s for previous/recent BOEM OCS leasing programs (e.g., the PEIS for the 2017-2022 program), Chapter 4 for the 2019-2024 program should have a section and analysis on “Issues of Programmatic Concern” that includes: Climate Change; Contribution from the Proposed Action; Lifecycle Contribution; Estimated Offshore Emissions; Human Health Effects; Potential Human Health Effects of Catastrophic Discharge Event; Health Status of Arctic Inupiat; and Potential Health Effects in each OCS Region.
- The “Affected Environment” section should evaluate impacts for each planning area on the following impact topics: Air Quality; Water Quality; Marine Benthic Communities; Coastal and Estuarine Habitats; Pelagic Communities; Marine Mammals; Sea Turtles; Birds; Fish and Essential Fish Habitat; Arctic Terrestrial Wildlife and Habitat; Archeological and Historical Resources; Population, Employment, and Income (i.e., socioeconomic impacts); Commercial and Recreational Fisheries; Tourism and Recreation; Socio-cultural Systems; and Environmental Justice.
- There should be a “Programmatic Mitigation” section that addresses Environmentally Important Areas.
- Because of the massive scale of the proposal (25 of 26 planning areas would be affected), we have serious concerns about the potential cumulative impacts of the proposal. The “Cumulative Impacts” section should assess cumulative effects of the proposal within each planning area. The analysis should also consider how leasing in so many different areas may interact with or compound incremental impacts occurring within the same or adjacent areas. We are particularly concerned about the possibility of accidental spills in one or more planning areas impacting a broad section of coastline or multiple coastlines.
- The Cumulative Impacts section should also include discussion of all relevant regulatory changes that have been proposed coincidental to the DPP that would affect federal oversight of OCS oil and gas exploration and development.
4) Opposition by Governors and States: There has been extensive and much publicized opposition to the proposed leasing by numerous governors, States, and local governments. Because of this, the PEIS (e.g., either in the “Coordination and Consultation” chapter or in the “Comment – Response” appendix) should provide detailed explanation(s) of how and why BOEM has made decisions (e.g., to exclude or not exclude each planning area) in response to the governors’ requests. Whatever BOEM decides will likely be challenged by litigation; consistent application of decision criteria and effective explanation(s) of decisions made will most likely make or break BOEM’s defense of its decisions.
In the context of the hard lessons learned from the Deepwater Horizon disaster, BOEM’s aggressive proposal to open up to 98% of the U.S. coast, excluding Hawaii, to OCS oil and gas leasing is both imprudent and irresponsible. Rather than making a cautious, well-reasoned proposal that would help restore public trust in the Interior Department’s ability to manage OCS resources in an environmentally appropriate manner, BOEM has grievously erred on the side of OCS industry interests rather than on the side of the best interests of the American people and, more importantly, conservation of irreplaceable resource values.
As so clearly stated by the Deepwater Horizon Commission (report p. 293), “The disaster raised serious questions about our nation’s ability to manage and protect for current and future generations the invaluable natural resources of the outer continental shelf and the multiple uses they sustain – the patrimony of all Americans.” Sadly, BOEM’s questionable proposal only raises more doubts about the Agency’s ability (and intent) to responsibly manage and protect the OCS for the benefit of ALL Americans.
We appreciate the opportunity to comment on this important issue.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks