Outer Continental Shelf Lands Act Research Articles

The Rocky Road to Energy Dominance: The Executive Branch’s Limited Authority to Modify and Revoke Withdrawals of Federal Lands from Mineral Production

The Trump Administration’s implementation of its America First Energy Plan, whose goal is achieving U.S. “energy dominance,” has relied heavily upon public mineral development. Mineral development on federal lands is largely governed by statute. The statutory legal mechanisms by which the Executive Branch can “open” or “close” an area of federal lands to mineral development, whether onshore or offshore, are withdrawal, modification, and revocation. The Federal Land Policy and Management Act (FLPMA) and the Outer Continental Shelf Lands Act (OCSLA) are the primary statutes that govern onshore and offshore mineral development on over 2 billion acres of federal lands. Both FLPMA and OCSLA authorize withdrawals, which the Executive can use to place federal lands off limits to mineral development. FLPMA also authorizes modifications and revocations, which can remove constraints on such development. The Trump Administration has relied on both statutes in its quest to expand the areas that are available for private mineral disposition through modification or revocation of withdrawals by prior administrations. The authority provided by FLPMA and OCSLA to determine the availability of federal lands for mineral development is subject to a series of substantive and procedural constraints. Because it regards those constraints as undesirable shackles on the implementation of its mineral development policies, and consistent with its expansive view of Executive Branch power in almost all contexts, the Administration has not been content to rely on statutory authorization to modify and revoke development-precluding withdrawals. Instead, it has also invoked non-statutory, implied or inherent authority to open vast areas of federal lands to oil and gas, coal, and other mineral development. The paucity of judicial precedent governing the parameters of statutory and non-statutory Executive Branch authority to reopen lands previously placed off limits to mineral development raises significant questions about the legality of the Administration’s efforts to alter the status of protected lands and resources. Although the Administration apparently regards downsizing or revocation of withdrawals by previous administrations as a quick and effective way to open up vast new acreage to mineral development, the legal basis for its actions is tenuous at best. This Article examines both statutory and non-statutory mechanisms for determining the availability of federal onshore and offshore lands for uses such as mineral exploration and development. It identifies the constraints that FLPMA and OCSLA impose on revocation or modification of previous withdrawals. It also explores the parameters of non-statutory Executive mineral disposition authority and assesses the legality of the significant Trump Administration withdrawal modification and revocation efforts to date. It concludes that Congress has eliminated any implied or inherent withdrawal, revocation, or modification authority that may once have existed. It also finds that the most prominent and controversial of the Trump withdrawal modifications and revocations exceeded the authority the Executive Branch retains under FLPMA and OCSLA. As a result, that the Trump Administration’s unauthorized pursuit of energy dominance should result in judicial invalidation.

The Macondo Well Blowout: Taking the Outer Continental Shelf Lands Act Seriously

Four elements are necessary to constitute the BP Macondo well blowout an admiralty tort engaging admiralty jurisdiction: 1. The Deepwater Horizon must be a vessel.2. The movement of the oil from the OCS subsoil into superadjacent waters must, of itself, transform an Outer Continental Shelf Lands Act (OCSLA) event into an admiralty event.3. OCS drilling operations must be substantially related to a traditional maritime activity under the Executive Jet/Grubart U.S. Supreme Court principle.4. OCSLA Sec. 1333(a)(1)'s coverage of devices must lack substantive force, i.e., fail to overcome the characterization of the Deepwater Horizon as falling within non-OCSLA supervening admiralty jurisdiction.This paper argues that it is more likely than not, despite the contrary August 29, 2011 position of Judge Barbier the Macondo Multi-District litigation (E.D. La.), that the Macondo blowout satisfies none of these conditions. The paper is premised principally upon an in-depth examination of OCSLA as originally passed 1953, and as subsequently amended 1978 and 1990. It argues that order to protect and expand its admiralty jurisdiction as home to the nation's largest port (New Orleans), the Fifth Circuit has consistently defined these boundaries as they bear on OCS events a manner hostile to Congressional intent and to the Supreme Court's interpretation of that intent, to OCSLA's text and to the Court's line of authority from Executive Jet to Grubart requiring a substantIal relationship between the activity underlying the tort's occurrence and traditional maritime activity.As to the four elements:1. The Deepwater Horizon's status is governed by federal statute which OCSLA and the Oil Pollution Act of 1990 (OPA) do not designate the Deepwater Horizon as a vessel, but as a mobile offshore drilling unit (MODU), which when serving in the capacity of an offshore facility (as it was the Macondo incident) is not a vessel. The statutes (as well as federal agency regulations that similarly reject equating a MODU temporarily attached to the OCS seabed with a vessel) override the general maritime law concept of a vessel which is premised solely on the mobility of the drilling or dredge barge as Grubart.2. Under Kleppe v. New Mexico and Minnesota v. Block, Congress may regulate areas offsite of its public lands (like the OCS) if necessary to protect its interest those lands. Consequently, OCSLA's jurisdiction extends to superadjacent waters as a basis for protecting the federal proprietary interest the OCS seabed and its resources. As amended 1978, OCSLA became an environmentally protective statute designed to offset littoral states' political pressures for drilling moratoria and other obstructions to the federal government's leasing of OCS blocks and the attendant receipt of national revenues (second only to federal taxes as a source of these revenues). Hence, an event blowout commencing on an OCS situs remains under OCSLA's coverage for such resource protective activities as clean-ups, the imposition of civil liability via OPA, and similar regulatory purposes.3. OCS drilling is not substantially related to a traditional maritime activity because both Congress and the Supreme Court have for a half century rejected this characterization of the supposed relationship.4. The claim that OCSLA Sec. 1333(a)(1) lacks substantive force while Sec. 1333(a)(2)(a) [the provision that Fifth Circuit jurisprudence situates admiralty law as OCS default law enjoys substantive force] is untenable as a matter both of OCSLA's legislative history, its text and of pertinent Supreme Court jurisprudence.

Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in a responsible and timely fashion. But the problems run much deeper than a single risk-taking company and a single dysfunctional regulatory agency. This report sketches out widespread regulatory failure, touching several agencies of the federal government and affecting several critical environmental statutes. Prepared by Member Scholars of the Center for Progressive Reform (CPR), it has two goals: (1) to identify how and why the regulatory system failed to protect the public and environment and prevent the BP disaster, and (2) to recommend the priority reforms that are essential to correct these regulatory deficiencies. The report begins by laying out the shortcomings in the primary statute under which deepwater oil drilling is regulated – the Outer Continental Shelf Lands Act (OCSLA) – and outlines key reforms needed to provide the authority necessary to protect the public interest. It then turns to systemic problems within the agency charged with regulation of deepwater oil drilling under the OCSLA – the Mineral Management Service (MMS), renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) in the wake of the disaster. These include problems of agency capture and inadequate funding. The third topic addressed in the report is the role of the National Environmental Policy Act (NEPA) – how and why this landmark statute was disabled from performing its critical role in the case of the BP well, and what regulatory changes can ensure that it functions effectively in the future. The report next details the problems that surrounded the implementation and enforcement of the Endangered Species Act (ESA) as it applied to oil drilling and recommends several key reforms. The report then discusses a systemic problem that is a theme in each prior section and that specific statutory reforms cannot fully remedy: obstacles to making sound regulatory decisions in the face of uncertain, low probability risks of potentially catastrophic or irreversible harm. This section highlights a common sense solution: adoption of a precautionary stance. A precautionary approach would replace the current widely-adopted presumption that regulation must await a high – and often unattainable – degree of certainty, even when the potential costs are irreversible or catastrophic. In the last sections of the report, we step back to look at the regulatory system from a broader perspective. We consider first how the regulatory system and its failures in this case were caused in part by the absence of coherent policies on energy and climate change. Our current policy provides vast incentives for risky oil and gas development like deepwater drilling and few for low-carbon alternative energy sources. In the wake of yet another painful lesson on the cost of our current incoherent approach, it is time to focus political attention on the difficult but necessary task of debating and adopting a coherent and sound energy policy. In the final section, we step back geographically to suggest why another lesson of this disaster is that the United States should undertake to learn more from the experience abroad, offering the example of the North Sea. Had we been paying closer attention, the investigations and reforms in the wake of the infamous Piper Alpha spill or the Bravo platform blowout might have offered insights to help us avoid this disaster.

<em>California Coastal Commission v. Norton</em>: A Coastal State Victory in the Seaweed Rebellion

I. INTRODUCTION There has been a great deal of federal-state conflict regarding outer continental shelf (OCS) energy development, which is known as the Seaweed Rebellion. (2) California, which has experienced eleven OCS lease sales off its coast since 1961, (3) has been a leader of the Seaweed Rebellion. California has been involved in litigation regarding the tidelands controversy, (4) the disposition of section 8(g) revenues under the Outer Continental Shelf Lands Act (OCSLA), (5) and the development of the Department of Interior's (Interior's) five-year OCS leasing programs pursuant section 18 of the OCSLA. (6) This article examines California's utilization of the Coastal Zone Management Act (CZMA) influence OCS energy development. A brief history of the conflicts between California and the federal government regarding OCS energy development is set forth. The Ninth Circuit's decision in the latest battle, California Coastal Commission v. Norton, (7) is analyzed. The article concludes that the Ninth Circuit was correct in holding that the suspension of thirty-six OCS leases off California are subject state consistency review pursuant section 307(c)(1) of the CZMA. Furthermore, the Ninth Circuit properly determined that Interior should not have categorically excluded the OCS lease suspensions from National Environmental Policy Act (NEPA) analysis because the suspensions constituted extraordinary circumstances. Finally, the current Bush administration and congressional efforts regarding OCS energy development and the California leases are examined. II. OCS CONFLICTS OFF CALIFORNIA'S COAST REGARDING THE CZMA The CZMA of 1972 establishes a policy ... preserve, protect, develop, and where possible, restore or enhance the resources of the Nation's coastal (8) Coastal states are encouraged assume planning and regulatory functions over their coastal zones. The CZMA accomplishes this in two ways. First, the coastal states receive grants develop and administer coastal zone management (9) Second, federal activities that affect the coastal zone must be conducted in a manner that is consistent to the maximum extent practicable with state coastal zone management programs. (10) The California Coastal Commission (Commission), which was established by the California Coastal Act in 1972, (11) regulates activities along the California coast. The Commission developed the California Coastal Management Program (CCMP) that was submitted the National Oceanic and Atmospheric Administration (NOAA) for approval. (12) In September 1977, several petroleum groups and companies brought suit, challenging NOAA's approval of the CCMP. The petroleum industry alleged that the program lacked specificity and did not adequately consider the national interest in energy facility siting. The federal district court upheld NOAA's approval, declaring that the program did not have include detailed criteria establishing a sufficiently high degree of predictability enable a private user of the coastal zone say with certainty that a given project must be deemed 'consistent' therewith. (13) The industry's contention that the affirmative accommodation of energy facilities was made a quid pro quo for program approval was rejected. (14) The Ninth Circuit affirmed. (15) The controversy regarding state consistency review of OCS lease sales began in 1979. (16) The Commission requested a consistency determination for lease sale forty-eight, asserting that the Final Notice of Sale (FNOS) affected the California coastal zone by conclusively establishing the size of the lease sale, the location of the tracts be leased, the timing of the lease sale, and lease stipulations. (17) Interior refused, arguing that federal pre-leasing activities did not directly affect the coastal zone. The dispute was referred the Department of Justice (DOJ), which concluded that the issue is a factual question be decided on a case-by-case basis. …

Use of Federal Sand for Beach Nourishment and Shore Protection Projects

Coastal shoreline protection and beach nourishment are significant issues for coastal states along the Atlantic and Gulf coasts. In some areas, there is a critical need to identify suitable sources of sand for possible use in public works projects for coastal protection. The continental shelf contains large resources of sand and gravel that could be used to support such projects. The U.S. Department of the Interior's (DOI) Minerals Management Service (MMS) provides policy direction and guidance for development of the resources located on the federal portion of the continental shelf. This article highlights the MMS's Sand Program, focusing on its cooperative resource and environmental studies with several coastal states, significant milestones and accomplishments, and anticipated activities in 1998 and beyond. Management of sand resources on the federal portion of the continental shelf has been made easier by a federal state partnership concept. Using this cooperative concept, joint projects are being conducted to investigate offshore sand resources, potential sites, extraction methods, and related environmental conditions. The MMS has procedures for negotiating sand agreements under the Outer Continental Shelf Lands Act (OCSLA) and ensuring that the resources are developed in an environ mentally sound manner. The authority to negotiate with project sponsors, an important recent change in the OCSLA, also resides with the MMS. This 1992 change in OCSLA facilitates the use of Outer Continental Shelf (OCS)resources for public projects. Further, the MMS is authorized to assess a fee based on the value of the resource and the public interest served. The MMS has worked with local sponsors and authorized the use of OCS sand for two projects. However, additional resource and environmental projects, as well as negotiated agreements, are anticipated within the near future with states and local governments along the Atlantic and Gulf coasts.

Federal‐state revenue sharing and resource management under outer continental shelf lands act section 8(g)

Abstract Section 8(g) was added to the Outer Continental Shelf Lands Act (OCSLA) in 1978. It mandated sharing of the revenues from tracts that included oil and gas pools underlying the federal‐state boundary 3 miles offshore. Revenues were to be split based on agreements negotiated by the secretary of Interior and the relevant coastal state governor or “fair and equitable”; divisions made by the federal district courts. Only one agreement was concluded. Texas and Louisiana sued to force distribution of their shares of $6.1 billion in 8(g) funds held in escrow. In 1986 Congress divided the escrowed 8(g) revenues approximately 27 percent to the adjacent states and 73 percent to the federal government and legislated the same split for all future 8(g) revenues. This article examines the complex issues that section 8(g), as amended, raises for the management of federal and state submerged lands. Cooperative federal‐state approaches to implementing amended section 8(g) are reviewed. Section 8(g)'s broader implications as the only federal‐state ocean resource, revenue‐sharing mechanism currently in place also are addressed.