08/03/2018 - Regulatory Rollback

Offshore Oil and Gas Drilling Leasing, Rules and Guidance

by Hana Vizcarra

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Following the Deepwater Horizon explosion and oil spill, the Department of the Interior (DOI) underwent a significant reorganization (not discussed in detail here) and issued rules and guidance to fill regulatory gaps in emergency response and operational oversight. Meanwhile, President Obama removed certain areas of the outer continental shelf from oil and gas development, because of i) their proximity to productive fisheries, ii) their ecological value, or iii) their being too remote and rugged to support a proper response to spills and other accidents. (The outer continental shelf or OCS consists of “all submerged lands lying seaward of state coastal waters…under U.S. jurisdiction.”) Rolling back these rules and designations increases risks both to offshore oil worker safety and to the economic value of US oceans and coastal areas unrelated to oil and gas development as well as the ecological well-being of those areas.

Current Status

Trump’s April 28, 2017 Executive Order 13795 directed the Department of Interior to reconsider efforts to limit or regulate offshore oil and gas development. Interior Secretary Zinke’s May 1, 2017 Secretarial Order 3350 instructed its sub-agencies on how to implement the Executive Order. These two orders kick off numerous actions related to leasing, regulatory rollback efforts, and permitting. We have split these actions into three pages covering activities related to the following categories:

  • Review of Marine Natural Resources and Sanctuaries: Information about the Department of Commerce’s review of marine monuments and sanctuaries is contained in our separate post tracking the review of all national monuments and sanctuaries (both marine and onshore).
  • Offshore Leasing Program: This page focuses on the development of the 2019-2024 5-Year Leasing Program in which the Administration has opened up vast new areas to leasing. This has kicked off significant pushback from Atlantic states on the possibility of drilling off their shores and will result in new lease sales in the Arctic. We have also included some information on lease sales under the current 2017-2022 5-year Lease Plan.
  • Regulatory Changes: This covers the activity at BOEM, BSEE, NOAA, and NMFS to rollback various regulatory changes targeted in the Executive and Secretarial orders. So far, these include BSEE’s Offshore Safety Regulation Rule, BSEE’s Blowout Preventer and Well Control Rule, BOEM and NMFS/NOAA’s handling of geological and geophysical permits (particularly involving seismic airgun surveys) and incidental take authorizations, BOEM’s Offshore Air Quality Rule, BOEM’s Notice to Lessees 2016-N01 Requiring Additional Security, and BOEM & BSEE’s Exploratory Arctic Drilling Rule.

The most recent activities described in more detail on the above pages include:

May 28, 2019 Trump administration appeals to the Ninth Circuit a March 29, 2019 decision by a federal judge to reinstate Pres. Obama’s withdrawals of Arctic and Atlantic areas from oil and gas leasing.

June 11, 2019 Environmental groups file suit against the Bureau of Safety and Environmental Enforcement to challenge the rollback of the 2016 Well Control and Blowout Preventer Rule.

Aug. 7, 2019 Environmental groups file a supplemental complaint in a March 13, 2019 lawsuit originally challenging lease sale 252 for oil and gas development in the Gulf of Mexico. The supplemental complaint asks the court to add announced lease sale 253, scheduled for Aug. 21, to the original challenge. The supplemental complaint clarifies that both sales are related because they rely on the same underlying environmental reviews. – Healthy Gulf v. Bernhardt, Case No. 1:19-cv-00707 (D.D.C.).

Aug. 21, 2019 BOEM holds lease sale 253, resulting in bids for 151 tracts in the Gulf of Mexico covering 835,000 acres.

History

Jan. 27, 2015 Pres. Obama withdraws certain areas in the Beaufort and Chukchi Seas off the coast of Alaska from consideration for oil and gas leasing.

April 5, 2016 The Bureau of Ocean and Energy Management (BOEM) / DOI proposes an offshore air quality rule.

April 29, 2016 The Bureau of Safety and Environmental Enforcement (BSEE) / DOI finalizes a rule to enhance blowout preventer and well control requirements, including well design, casing, cementing, and monitoring upgrades.

July 2016 Department of Commerce (“Commerce”) / National Oceanic and Atmospheric Administration (NOAA) / National Marine Fisheries Service (NMFS) finalize guidance on acoustic thresholds for underwater activity, to lessen the impact of offshore development on marine mammals.

July 15, 2016 BSEE / BOEM / DOI finalized a rule to govern exploratory offshore Arctic drilling.

Sep, 7, 2016 BSEE issues a final rule amending and updating offshore oil and gas production safety regulations.

Sep. 12, 2016 BOEM / DOI issues a Notice to Lessees and Operators (NTL No. 2016-N01) on the Outer Continental Shelf (OCS), to consider increasing financial security to meet decommissioning costs.

Dec. 20, 2016 President Obama issues two Presidential Memoranda withdrawing 3.8 million acres of OCS oil and gas development in the Atlantic and 115 million acres in the Arctic. All told, President Obama protects 125 million acres of the Arctic offshore.

Jan. 6, 2017 BOEM denies six pending geophysical and geological permit applications to conduct airgun seismic surveys in the Mid- and South Atlantic because President Obama removed the waters from leasing consideration.

Trump Era

April 28, 2017 President Trump signs Executive Order 13795 to “encourage energy exploration and production” on the OCS. The Executive Order directs numerous actions aimed at reconsidering actions of the prior administration taken to limit or regulate offshore oil and gas development. The Order:

  • Directs Interior to consider lease sales in the Central and Western Gulf of Mexico, Chukchi Sea, Beaufort Sea, Cook Inlet, the Mid-Atlantic, and the South Atlantic, areas not yet open to oil and gas development.
  • Modifies President Obama’s Dec. 20, 2016 withdrawals of areas from oil and gas development to limit them to those areas designated as Marine Sanctuaries as of July 14, 2008.
  • Prohibits Commerce from designating or expanding a National Marine Sanctuary without a full report by Interior about the energy potential of the area. Commerce must review all Marine National Monuments and Sanctuaries designated or expanded since 2007, with a final report in 180 days.
  • Directs Interior and Commerce to take steps to expedite all stages of consideration of Incidental Take Authorization requests (Incidental Harassment Authorizations, Letters of Authorization, and Seismic Survey permit applications) under the Outer Continental Shelf Lands Act and the Marine Mammal Protection Act.
  • Directs DOI to reconsider the April 5, 2016 proposed air rule, the April 29, 2016 well control rule, the July 15, 2016 offshore Arctic drilling rule, and the Sep. 12, 2016 decommissioning notice to lessees along with BOEM’s financial assurance regulatory policy, and directs NOAA to reconsider the July 2016 technical guidance on acoustic thresholds.

May 1, 2017 DOI Secretary Zinke issues Secretarial Order 3350 to direct BOEM and BSEE as to how to implement the president’s Executive Order. Zinke directed BOEM to:

  • Initiate the development of a new Five Year Outer Continental Shelf Oil and Gas Leasing Program.
  • Establish a plan to expedite consideration of Incidental Take Authorization requests needed for seismic survey permits and other OCS activities
  • Streamline permitting for privately funded seismic data research and collection.
  • Expedite consideration of appealed, new, or resubmitted seismic permitting applications for the Atlantic.
  • Promptly complete review of Notice to Lessees No. 2016-N01 and provide a report describing the review and options for revising or rescinding it.
  • Cease all activities to promulgate the offshore air rule proposed on April 5, 2016.
  • Provide a report within 21 days of the Secretarial Order on the progress of these items.

Zinke directs BSEE to review the final Blowout Preventer and Well Control rule and any related guidance, etc. and to provide a report within 21 days with recommendations as to whether to suspend, revise, or rescind the rule.

Zinke directs BSEE and BOEM to jointly review the final rule for exploratory drilling in the Arctic issued on July 15, 2016 and to provide a report within 21 days with recommendations as to whether to suspend, revise, or rescind the rule.

Zinke directs the Counselor to the Secretary for Energy Policy (a position established by Secretarial Order 3351 issued concurrently with 3350) to work with the Department of Commerce to review national marine sanctuary and monument designations.

For information on the specific actions resulting from the presidential and secretarial orders visit the pages below