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This discussion is the continuation of NEPAtown "wall-comments" concerning the role of NEPA in the MMS permitting process for BP's Deepwater Horizon drilling platform that has been the cause of a major oil spill in the Gulf of Mexico off the coast of Lousiana.

Tags: BP, CEQ, Deepwater, Horizon, MMS., NEPA, categorical, exclusion, oil

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Lawsuit against MMS for violation of NEPA

Hi all.

The Southern Environmental Law Center (SELC) has filed suit against MMS for violation of NEPA in the Gulf of Mexico (GOM). The complaint lists the section of MMS NEPA manual where the particular Categorical Exclusion for exploratory wells in the GOM is located. I still have not found a copy of the record of the categorical exclusion.

From the SELC Website:

The MMS 2004 guidance creating a categorical exclusion for exploratory drilling operations in the Gulf of Mexico made clear that the exclusion should not apply to proposed operations in certain areas, including in “relatively untested deep water.” Yet, MMS granted Deepwater Horizon a categorical exclusion from environmental review despite the fact that the exploratory drilling was to take place in almost 5,000 feet of water. Since the Deepwater explosion and spill and with no explanation, MMS authorized over 20 new categorical exclusions for exploratory oil drilling operations in the Gulf, at least eight of which would be at depths deeper than the Deepwater Horizon.

From the complaint (Interesting reading)

Plaintiff Defenders of Wildlife (“Defenders”) seeks a declaration that Defendants MMS,
the Department of the Interior, and Ken Salazar, Secretary of the Interior (collectively hereinafter “MMS”) have acted arbitrarily and capriciously and have violated NEPA and its implementing regulations by granting categorical exclusions to exploratory wells and drilling operations authorized since April 20, 2010. Defenders also seeks a declaration that MMS’s Handbook authorizing categorical exclusions for exploratory wells and drilling operations is arbitrary, capricious, and not in accordance with law. Defenders seeks a vacatur and remand of all categorical exclusions granted to exploratory wells and drilling operations since April 20, 2010, and an injunction barring MMS from issuing any further categorical exclusions for exploratory wells and drilling operations in the Gulf of Mexico given the significant impacts that these operations can have, both individually and cumulatively, on the environment. Finally, Defenders seeks vacatur and remand of the Gulf of Mexico OCS Oil and Gas Lease Sales: 2007-2012 Environmental Impact Statement and an injunction of all future lease sales authorized therein until such time as a Supplemental Environmental Impact Statement has been prepared.

19. On May 27, 2004, MMS issued rules in Interior’s Department Manual (“the Manual”) to govern its internal NEPA process.
20. In the Manual, MMS designated certain permitting and regulatory actions for categorical exclusion from NEPA review, including the “[a]pproval of an offshore lease or unit exploration[,] development/production plan … in the central or western Gulf of Mexico.” Manual at 15.4(C)(10).
21. The Manual explained that MMS would not apply this categorical exclusion: [i]n areas of high seismic risk or seismicity, relatively untested deepwater, or remote areas; or (2) within the boundary of a proposed or established marine sanctuary, and/or within or near the boundary of a proposed or established wildlife refuge or areas of high biological sensitivity; or (3) in areas of hazardous natural bottom conditions; or (4) utilizing new or unusual technology. Id. (emphasis added).
22. In its Notice to Lessees and Operators of Federal Oil, Gas, and Sulphur Leases in the Outer Continental Shelf, Gulf of Mexico OCS Region No. 2008-G04, MMS defined “deepwater” as “those water depths 400 meters (1,312 feet) or greater.” MMS NTL 2008-G04, available at

B. Outer Continental Shelf Lands Act (OCSLA)
23. Pursuant to the Outer Continental Shelf Lands Act (“OCSLA”), the Secretary sells leases to develop oil and gas deposits in the Outer Continental Shelf (“OCS”).
24. Oil and gas exploration in the OCS is governed by a five-step process: (1) the Secretary’s promulgation of a five-year leasing program, 43 U.S.C. § 1344; (2) lease sales, 43 U.S.C. § 1337; (3) exploration, 43 U.S.C. § 1340; (4) development and production, 43 U.S.C. § 1351; and (5) sale of recovered oil and gas, 43 U.S.C. § 1353.
25. Before a lease holder may commence exploratory drilling, that lease holder must submit an exploration plan to MMS for approval. 43 U.S.C. § 1340(c)(1).
26. Pursuant to OCSLA, the Secretary may allow exploration to proceed only if he finds that the lessee’s plan “will not be unduly harmful to aquatic life in the area, result in pollution, create hazardous or unsafe conditions, unreasonably interfere with other uses of the area, or disturb any site, structure, or object of historical or architectural significance.” 43 U.S.C. § 1340(g)(3).
27. NEPA review applies to all stages of the OCSLA five-step process. Vill. of False Pass v. Clark, 733 F.2d 605, 614 (9th Cir. 1984).
C. Administrative Procedure Act (APA)
28. The APA confers a right of judicial review on any person that is adversely affected by agency action. See 5 U.S.C. § 702. The APA provides that the reviewing court “shall … hold unlawful and set aside agency action, findings, and conclusions found to be [] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
29. MMS’s granting of categorical exclusions from NEPA review for the Deepwater Horizon and the twenty-seven other exploratory drilling operations since the explosion at Deepwater Horizon are “agency actions” subject to judicial review under the APA.

Scott Sysum
Hey, I just found out about this at COB Friday:

CEQ, DOI launch joint review of NEPA procedures at MMS (Oil & Gas Journal, 5/14/10)

WASHINGTON, DC, May 14 -- The White House Council on Environmental Quality (CEQ) and US Department of the Interior announced a joint review of the US Minerals Management Service’s National Environmental Policy Act procedures on May 14. The review specifically will examine MMS NEPA procedures for oil and gas development, the two federal entities added.

Notice of Review and Request for Public Comment:
Review of MMS NEPA...

(Federal Register, 5/28/10, for the text-version with active web-links, click here)

So, CEQ wants the public to submit comments ASAP because it wants to issue the finished 30-day review by June 17th (actually, a 30-day deadline would be June 16th so they are giving themselves an extra day).

So, practically speaking, CEQ will shift from the reading of comments to the drafting of the report about a week before the due date, i.e., June 10th. That's my guess for a "functional" due-date for public comments.

And, guess what else? A few weeks ago, I suggested that they check out "NEPAtown" as a place for CEQ to practice "open government" goals of better transparency, participation, and collaboration. And they said that their computers are blocked from using GovLoop! (I had since asked GovLoop's Andy Krzmarzick to check into that, as apparently, this applies to all computers in all parts of the EOP/White House.)

It seems to me that talking about this topic on GovLoop is head-and-shoulders above the historic "drop-box" for sending a public comment. What do you all think?
Deepwater Drilling Ban Lifted

By Laurel Brubaker Calkins and Margaret Cronin Fisk - Jun 23, 2010
A New Orleans federal judge lifted the six-month moratorium on deepwater drilling imposed by President Barack Obama following the largest oil spill in U.S. history. Drilling services shares jumped on the news.
Obama temporarily halted all drilling in waters deeper than 500 feet on May 27 to give a presidential commission time to study improvements in the safety of offshore operations. More than a dozen Louisiana offshore service and supply companies sued U.S. regulators to lift the ban. The U.S. said it will appeal the decision.
“The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium,” Feldman said in his 22-page decision. “The blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”

“The court cannot substitute its judgment for that of the agency, but the agency must ‘cogently explain why it has exercised its discretion in a given manner,’” Feldman said, citing a previous ruling. “It has not done so.”

Scott Sysum


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