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Offshore Oil and Gas Development: Legal Framework

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Offshore Oil and Gas Development: Legal Framework Adam Vann Legislative Attorney September 20, 2010May 2, 2011 Congressional Research Service 7-5700 www.crs.gov RL33404 CRS Report for Congress Prepared for Members and Committees of Congress Offshore Oil and Gas Development: Legal Framework Summary The development of offshore oil, gas, and other mineral resources in the United States is impacted by a number of interrelated legal regimes, including international, federal, and state laws. International law provides a framework for establishing national ownership or control of offshore areas, and domestic federal law mirrors and supplements these standards. Governance of offshore minerals and regulation of development activities are bifurcated between state and federal law. Generally, states have primary authority in the three-geographical-mile area extending from their coasts. The federal government and its comprehensive regulatory regime govern those minerals located under federal waters, which extend from the states’ offshore boundaries out to at least 200 nautical miles from the shore. The basis for most federal regulation is the Outer Continental Shelf Lands Act (OCSLA), which provides a system for offshore oil and gas exploration, leasing, and ultimate development. Regulations run the gamut from health, safety, resource conservation, and environmental standards to requirements for production based royalties and, in some cases, royalty relief and other development incentives. In 2008, both the President and the 110th Congress removed previously existing moratoria on offshore leasing on mostmany areas of the outer continental shelf. As of the date of this report, the 111th Congress has not reinstated the appropriations-based moratoria that were not renewed by the 110th Congress, and the President has advocated moving forward with oil and natural gas exploration and production in some areas previously under moratoria. However, in response to the recent Deepwater Horizon oil spill, the Secretary of the Interior has suspended some exploration and production activities in the Gulf of Mexico. Despite the Deepwater Horizon incident and subsequent suspension of some exploration and production activities, other. Other recent legislative and regulatory activity suggests an increased willingness to allow offshore drilling in the U.S. Outer Continental Shelf. In 2006, Congress passed a measure that would allow new offshore drilling in the Gulf of Mexico. Areas of the North Aleutian Basin off the coast of Alaska have also been recently made available for leasing by executive order. The five-year plan for offshore leasing for 2007-2012 adopted by the Minerals Management Service (MMS, now the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOE Enforcement (BOEMRE)) in December of 2007 proposed further expansion of offshore leasing. At the same time, the role of the coastal states in deciding whether to lease in areas adjacent to their shores has also received recent attentionIn the 112th Congress, legislation has been introduced that could accelerate the leasing and permitting process for offshore oil and gas exploration and production. H.R. 1229 would create new deadlines for review of certain permits for exploration and production; while H.R. 1230 would require BOEMRE to lease certain offshore areas for oil and natural gas exploration and production on an accelerated timeline. In addition to these legislative and regulatory efforts, there has also been significant litigation related to offshore oil and gas development. Cases handed down over a number of years have clarified the extent of the Secretary of the Interior’s discretion in deciding how leasing and development are to be conducted. Congressional Research Service Offshore Oil and Gas Development: Legal Framework Contents Ocean Resource Jurisdiction .......................................................................................................1 Federal Jurisdiction...............................................................................................................2 State Jurisdiction...................................................................................................................2 Coastal State Regulation .......................................................................................................3 Federal Resources .......................................................................................................................3 Moratoria..............................................................................................................................4 Leasing and Development .....................................................................................................5 The Five-Year Plan .........................................................................................................6 Leasing ...........................................................................................................................9 10 Exploration ................................................................................................................... 1011 Development and Production ........................................................................................ 1112 Lease Suspension and Cancellation ............................................................................... 12 Suspensions Following the Deepwater Horizon Oil Spill ............................................... 13 Legal Challenges to Offshore Leasing ................................................................................. 1514 Suits Under the Outer Continental Shelf Lands Act ....................................................... 1615 Suits Under the National Environmental Policy Act....................................................... 1918 Figures Figure 1. Atlantic, Gulf of Mexico, and Pacific Strategies as of April 6December 1, 2010 ..............................8 Figure 2. Alaska Strategy as of April 6, 2010........December 1, 2010 .......................................................................89 Tables Table A-1. State Laws That Ban or Regulate Offshore Resource Development: Policy and Statutes .................................................................................................................................. 2120 Appendixes Appendix. State Laws That Ban or Regulate Offshore Resource Development........................... 2120 Contacts Author Contact Information ...................................................................................................... 2322 Congressional Research Service Offshore Oil and Gas Development: Legal Framework T he development of offshore oil, gas, and other mineral resources in the United States is impacted by a number of interrelated legal regimes, including international, federal, and state laws. International law provides a framework for establishing national ownership or control of offshore areas, and U.S. domestic law has, in substance, adopted these internationally recognized principles. U.S. domestic law further defines U.S. ocean resource jurisdiction and ownership of offshore minerals, dividing regulatory authority and ownership between the states and the federal government based on the resource’s proximity to the shore. This report explains the nature of U.S. authority over offshore areas pursuant to international and domestic law. It also describes the laws, at both the state and federal levels, governing the development of offshore oil and gas and the litigation that has flowed from development under these legal regimes. Also included is an outline of therecent changes to the authorities regulating offshore development wrought by the Energy Policy Act of 2005 and subsequent legislation and executive action, as , as well as a discussion of recent executive action and legislative proposals concerning offshore oil and natural gas exploration and production. Ocean Resource Jurisdiction Under the United Nations Convention on the Law of the Sea,1 coastal nations are entitled to exercise varying levels of authority over a series of adjacent offshore zones. Nations may claim a 12-nautical-mile territorial sea, over which they may exercise rights comparable to, in most significant respects, sovereignty. An additional area, termed the contiguous zone and extending 24 nautical miles from the coast (or baseline), may also be claimed. In this area, coastal nations may regulate, as necessary, to protect the territorial sea and to enforce their customs, fiscal, immigration, and sanitary laws. Further, in the contiguous zone and an additional area, the exclusive economic zone (EEZ), coastal nations have sovereign rights to explore, exploit, conserve, and manage marine resources and assert jurisdiction over: i. the establishment and use of artificial islands, installations and structures; ii. marine scientific research; and iii. the protection and preservation of the marine environment.2 The EEZ extends 200 nautical miles from a nation’s recognized coastline. This area overlaps the baseline from which a nation’s territorial sea is measured (usually near the coastline). This area overlaps substantially with another offshore area designation, the continental shelf. International law defines a nation’s continental shelf as the seabed and subsoil of the submarine areas that extend beyond either “the natural prolongation of [a coastal nation’s] land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”3 In general, however, under UNCLOS, a nation’s continental shelf cannot extend beyond 350 nautical miles from its recognized coastline regardless of submarine geology.4 In this area, as in the EEZ, a 1 United Nations Convention on the Law of the Sea III (entered into force November 16, 1994) (hereinafter UNCLOS). Id. at Art. 56.1. 3 Id. at Art. 76.1. 4 Id. at Art. 76.4-76.7. 2 Congressional Research Service 1 Offshore Oil and Gas Development: Legal Framework geology.4 In this area, as in the EEZ, a coastal nation may claim “sovereign rights” for the purpose of exploring and exploiting the natural resources of its continental shelf. 5 Federal Jurisdiction While a signatory to UNCLOS, the United States has not ratified the treaty. Regardless, many of its provisions are now generally accepted principles of customary international law and, through a series of Executive Orders, the United States has claimed offshore zones that are virtually identical to those described in the treaty. 6 In a series of related cases long before UNCLOS, the , the U.S. Supreme Court confirmed federal control of these offshore areas.7 Federal statutes also refer to these areas and, in some instances, define them as well. Of particular relevance, the primary federal law governing offshore oil and gas development indicates that it applies to the “outer Continental Shelf,” which it defines as “all submerged lands lying seaward and outside of the areas ... [under state control] and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control....”8 Thus, the U.S. Outer Continental Shelf (OCS) would appear to comprise an area extending at least 200 nautical miles from the official U.S. coastline and possibly farther where the geological continental shelf extends beyond that point. The federal government’s legal authority to provide for and to regulate offshore oil and gas development development therefore applies to all areas under U.S. control except where U.S. waters have been placed under the primary jurisdiction of the states. State Jurisdiction In accordance with the federal Submerged Lands Act of 1953 (SLA),9 coastal states are generally entitled to an area extending three geographical miles10 from their officially recognized coast (or baseline). 11 In order to accommodate the claims of certain states, the SLA provides for an extended three-marine-league12 seaward boundary in the Gulf of Mexico if a state can show such a boundary was provided for by the state’s “constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.”13 After 4 Id. at Art. 76.4-76.7. Id. at Art. 77.1. 6 enactment of the SLA, the Supreme Court of the United States held that the Gulf coast boundaries 5 Id. at Art. 77.1. Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Proclamation No. 2667, 10 Fed. Reg. 12,303 (September 28, 1945); Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 48 Fed. Reg. 10,605 (March 14, 1983); Territorial Sea of the United States of America, Proclamation No. 5928, 54 Fed. Reg. 777 (December 27, 1988); Contiguous Zone of the United States, Proclamation No. 7219, 64 Fed. Reg. 48,701 (August 2, 1999). 7 See United States v. Texas, 339 U.S. 707 (1950); United States v. Louisiana, 339 U.S. 699 (1950); United States v. California, 332 U.S. 19 (1947). In accordance with the Submerged Lands Act, states generally own an offshore area extending three geographical miles from the shore. Florida (Gulf coast) and Texas, by virtue of their offshore boundaries prior to admission to the Union, have an extended, three-marine-league offshore boundary. See United States v. Louisiana, 363 U.S. 1, 36-64 (1960); United States v. Florida, 363 U.S. 121, 121-129 (1960). 8 43 U.S.C. § 1331(a). 9 43 U.S.C. §§ 1301 et seq. 10 A geographical or nautical mile is equal to 6,080.20 feet, as opposed to the typicala statute mile, which is equal to 5,280 feet. 11 43 U.S.C. § 1301(b). 12 A marine league is equal to 18,228.3 feet. 13 43 U.S.C. §§ 1312, 1301(b). 56 Congressional Research Service 2 Offshore Oil and Gas Development: Legal Framework enactment of the SLA, the Supreme Court of the United States held that the Gulf coast boundaries of Florida and Texas do extend to the three-marine-league limit; other Gulf coast states were unsuccessful in their challenges.14 Within their offshore boundaries, coastal states have “(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective states, and (2) the right and power to manage, administer, lease, develop and use the said lands and natural resources....”15 Accordingly, coastal states have the option of developing offshore oil and gas within their waters; if they choose to develop, they may regulate that development. Coastal State Regulation State laws governing oil and gas development in state waters vary significantly from jurisdiction to jurisdiction. Some state laws are limited to a single paragraph and do not differentiate between onshore and offshore state resources; other states do not distinguish between oil and gas and other types of minerals. In addition to regulation aimed specifically at oil and gas development, it should be noted that a variety of other laws could impact offshore development, such as environmental and wildlife protection laws and coastal zone management regulation. Finally, in states that authorize offshore oil and gas leasing, the states decide which offshore areas under their jurisdiction will be opened for development. The Appendix of this report contains a table of state laws regulating and sometimes banning offshore mineral development. The table indicates which state agency is primarily responsible for authorizing oil and gas development and if state oil and gas leasing is limited to specific areas by statute. Federal Resources The primary federal law governing development of oil and gas in federal waters is the Outer Continental Shelf Lands Act (OCSLA).16 As stated above, the OCSLA codifies federal control of the OCS, declaring that the submerged lands seaward of the state’s offshore boundaries appertain to the U.S. federal government. More than simply declaring federal control, the OCSLA has as its primary purpose “expeditious and orderly development [of OCS resources], subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs....”17 To effectuate this purpose, the OCSLA extends application of federal laws to certain structures and devices located on the OCS;18 provides that the law of adjacent states will apply to the OCS when it does not conflict with federal law; 19 and, significantly, provides a comprehensive leasing process for certain OCS mineral resources and a 14 United States v. Louisiana, 363 U.S. 1, 66 (1960) (“[P]ursuant to the Annexation Resolution of 1845, Texas’ maritime maritime boundary was established at three leagues from its coast for domestic purposes.... Accordingly, Texas is entitled to a grant of three leagues from her coast under the Submerged Lands Act.”); United States v. Florida, 363 U.S. 121, 129 (1960) (“We hold that the Submerged Lands Act grants Florida a three-marine-league belt of land under the Gulf, seaward from its coastline, as described in Florida’s 1868 Constitution.”). 15 43 U.S.C. § 1311. 16 43 U.S.C. §§ 1331-1356. 17 43 U.S.C. § 1332(3). 18 43 U.S.C. § 1333. The provision also expressly makes the Longshore and Harbor Workers’ Compensation Act, the National Labor Relations Act, and the Rivers and Harbors Act applicable on the OCS, although application is limited in some instances. 19 Id. Congressional Research Service 3 Offshore Oil and Gas Development: Legal Framework significantly, provides a comprehensive leasing process for certain OCS mineral resources and a system for collecting and distributing royalties from the sale of these federal mineral resources.20 The OCSLA thus provides comprehensive regulation of the development of OCS oil and gas resources. Moratoria In general, the OCSLA requires the federal government to prepare, revise, and maintain an oil and gas leasing program. Until recently, however, many offshore areas were withdrawn from disposition under the OCSLA pursuant to two broad categories of moratoria applicable to OCS oil and gas leasing: those imposed by the President under authority granted by the OCSLA, 21 and those imposed directly by Congress, which have most often taken the form of limitations on the use of appropriated funds.22 Appropriations-based congressional moratoria first appeared in the appropriations legislation for FY1982. The language of the appropriations legislation barred the expenditure of funds by the Department of the Interior (DOI) for leasing and related activities in certain areas in the OCS.23 Similar language appeared in every DOI appropriations bill through FY2008. However, starting with FY2009, Congress has not included this language in appropriations legislation. As a result, the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEBOEMRE), the agency within the Department of the Interior that administers the OCS exploration and production program, is free to use appropriated funds to fund all leasing, preleasing, and related activities in most OCS areas (where such activities are not prohibited by other legislation). 24 Language used in the legislation that funds DOI in the future will determine whether, and in what form, budgetbased restrictions on OCS leasing might return. In addition to the congressional moratoria, for most of the last 20 years there have been moratoria issued by the executive branch on offshore drilling in many areas. The first of these was issued by President George H. W. Bush on June 26, 1990.25 This memorandum, issued pursuant to the authority vested in the President under Section 12(a) of the OCSLA, placed under presidential moratoria those areas already under an appropriations-based moratorium pursuant to P.L. 105-83, the Interior Appropriations legislation in place at that time. That appropriations-based moratorium prohibited “leasing and related activities” in the areas off the coast of California, Oregon, and Washington, and the North Atlantic and certain portions of the eastern Gulf of Mexico. The legislation further prohibited leasing, preleasing, and related activities in the North Aleutian basin, other areas of the eastern Gulf of Mexico, and the Mid- and South Atlantic. The Presidentialpresidential moratorium was extended by President Bill Clinton by memorandum dated June 12, 1998.26 20 43 U.S.C. §§ 1331(a), 1332, 1333(a)(1). 43 U.S.C. § 1341(a). 22 See, e.g., P.L. 108-447, §§ 107-109. 23 P.L. 97-100, § 109. 24 BOEBOEMRE was formerly called the Minerals Management Service. It was renamed pursuant to Secretarial Order 3302, issued on June 18, 2010. 25 Statement on Outer Continental Shelf Oil and Gas Development, 26 Weekly Comp. Pres. Doc. 1006 (June 26, 1990). 26 Memorandum on Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing Disposition, 34 Weekly Comp. Pres. Doc. 1111 (June 12, 1998). 21 Congressional Research Service 4 Offshore Oil and Gas Development: Legal Framework On July 14, 2008, President George W. Bush issued an executive memorandum that rescinded the executive moratorium on offshore drilling created by the 1990 order of President George H. W. Bush and renewed by President Bill Clinton in 1998.27 The memorandum revised the language of the previous memorandum so that only areas designated as marine sanctuaries are withdrawn from disposition. The withdrawal has no expiration date. The July 14, 2008, memorandum, taken together with the expiration of the congressional moratorium, has the effect of opening up areas of the OCS for consideration for exploration and production where such activities had not previously been allowed. OCS acreage not protected by other statutory measures can now be considered by BOEBOEMRE for leasing, as described infra. However, it is important to note that other prohibitions and moratoria on development on exploration and production in certain areas of the OCS exist. For example, the Gulf of Mexico Energy Security Act of 2006, enacted as part of H.R. 6111, the Omnibus Tax Relief and Health Care Act of 2006,28 created a new congressional moratorium over leasing in portions of the OCS that do not depend on annual renewal in appropriations legislation. The 2006 legislation explicitly permits oil and gas leasing in areas of the Gulf of Mexico, 29 but also established a new moratorium on preleasing, leasing, and related activity in the eastern Gulf of Mexico through June 30, 2022.30 This moratorium is independent of any appropriations-based congressional moratorium, and thus would continue even if Congress reinstated the annual appropriations-based moratorium. On March 31, 2010, President Barack Obama issued an executive memorandum pursuant to his authority under section 12(a) of the OCSLA creating a new moratorium on oil and natural gas leasing in the Bristol Bay area of the North Aleutian Basin of Alaska.31 This withdrawal runs through June 30, 2017. No other offshore areas are affected by this memorandum. In May and July of 2010, the Secretary of the Interior directed the suspension of certain exploration and production operations in the Gulf of Mexico in response to the Deepwater Horizon Oil Spill. The memoranda directing these suspensions have been referred to as “moratoria” in some circles. These suspensions, and the legal challenges to them, are discussed below in the section entitled “Suspensions Following the Deepwater Horizon Oil Spill.” Leasing and Development In 1978, the OCSLA was significantly amended so as to increase the role of the affected coastal states in the leasing process.32 The amendments also revised the bidding process and leasing procedures, set stricter criteria to guide the environmental review process, and established new safety and environmental standards to govern drilling operations. 27 moratorium. Leasing and Development In 1978, the OCSLA was significantly amended so as to increase the role of the affected coastal states in the leasing process.31 The amendments also revised the bidding process and leasing procedures, set stricter criteria to guide the environmental review process, and established new safety and environmental standards to govern drilling operations. The OCS leasing process consists of four distinct stages: (1) the five-year planning program; 32 (2) preleasing activity and the lease sale;33 (3) exploration;34 and (4) development and production.35 This process has been garnering significant attention in the 112th Congress, where legislation has been introduced that could accelerate the leasing and permitting process for offshore oil and gas exploration and production. H.R. 1229, introduced on March 20, 2011, would create new deadlines for review of certain permits for exploration and production, while H.R. 1230, introduced the same day, would require BOEMRE to lease certain offshore areas for oil and natural gas exploration and production on an accelerated timeline. Given the interest in offshore 27 Memorandum on Modification of the Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing Disposition, 44 Weekly Comp. Pres. Doc. 986 (July 14, 2008). 28 P.L. 109-432. 29 Id. at § 103. 30 P.L. 109-432, § 104(a). 31 Memorandum on the Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing Disposition (March 31, 2010). 32 P.L. 95-372. Congressional Research Service 5 Offshore Oil and Gas Development: Legal Framework The OCS leasing process consists of four distinct stages: (1) the five-year planning program; 33 (2) preleasing activity and the lease sale;34 (3) exploration;35 and (4) development and production. 36P.L. 95-372. 32 43 U.S.C. § 1344. 33 43 U.S.C. §§ 1337, 1345. 34 43 U.S.C. § 1340. 35 43 U.S.C. § 1351. Congressional Research Service 5 Offshore Oil and Gas Development: Legal Framework leasing and permitting in the current Congress, it is worthwhile to explore the details of the process. The Five-Year Plan The Secretary of the Interior is required to prepare a five-year leasing plan, subject to annual revisions, that governs any offshore leasing that takes place during the period of plan coverage. 3736 Each five-year plan establishes a schedule of proposed lease sales, providing the timing, size, and general location of the leasing activities. This plan is to be based on multiple considerations, including the Secretary’s determination as to what will best meet national energy needs for the five-year period and the extent of potential economic, social, and environmental impacts associated with development. 3837 During the development of the plan, the Secretary must solicit and consider comments from the governors of affected states, and at least 60 days prior to publication of the plan in the Federal Register, the plan is to be submitted to the governor of each affected state for further comments.3938 After publication, the Attorney General is also authorized to submit comments regarding potential effects on competition.4039 Subsequently, at least 60 days prior to its approval, the plan is to be submitted to Congress and the President, along with any received comments and an explanation for the rejection of any comment.4140 Once the leasing plan is approved, areas included in the plan are to be available for leasing, consistent with the terms of the plan. 42 33 43 U.S.C. § 1344. 43 U.S.C. §§ 1337, 1345. 35 43 U.S.C. § 1340. 36 43 U.S.C. § 1351. 37 43 U.S.C. § 1344(a), (e). 38 Id. 3941 The development of the five-year plan is considered a major federal action significantly affecting the quality of the human environment and as such requires preparation of an environmental 36 43 U.S.C. § 1344(a), (e). Id. 38 “Affected state” is defined in the act as any state: (1) the laws of which are declared, pursuant to section 1333(a)(2) of this title, to be the law of the United States for the portion of the outer Continental Shelf on which such activity is, or is proposed to be, conducted; (2) which is, or is proposed to be, directly connected by transportation facilities to any artificial island or structure referred to in section 1333(a)(1) of this title; (3) which is receiving, or in accordance with the proposed activity will receive, oil for processing, refining, or transshipment which was extracted from the outer Continental Shelf and transported directly to such State by means of vessels or by a combination of means including vessels; (4) which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment, or a State in which there will be significant changes in the social, governmental, or economic infrastructure, resulting from the exploration, development, and production of oil and gas anywhere on the outer Continental Shelf; or (5) in which the Secretary finds that because of such activity there is, or will be, a significant risk of serious damage, due to factors such as prevailing winds and currents, to the marine or coastal environment in the event of any oil spill, blowout, or release of oil or gas from vessels, pipelines, or other transshipment facilities.... 43 U.S.C. § 1331(f). 4039 43 U.S.C. § 1344(d). 4140 Id.; see also 30 C.F.R. §§ 256.16-256.17. 4241 43 U.S.C. § 1344(d). 3437 Congressional Research Service 6 Offshore Oil and Gas Development: Legal Framework The development of the five-year plan is considered a major federal action significantly affecting the quality of the human environment and as such requires preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA).4342 Thus, the NEPA review process complements and informs the preparation of a five-year plan under the OCSLA.4443 The current Five-Year Plan took effect on July 1, 2007.4544 The Plan contemplated leasing in areas off the coast of Alaska and in the Central and Western Gulf of Mexico, as well as the possibility of leasing in the mid-Atlantic Ocean Planning Area off the coast of Virginia. In response to calls to expand offshore exploration and production leasing, in July of 2008 MMS took the unprecedented step of initiating a new Five-Year Plan that is expected to commence before the expiration of the previous plan. BOEBOEMRE published notice and a request for comments in the Federal Federal Register regarding a proposed new Five-Year Plan for mid-2010 to mid-2015 that would have have replaced the existing Plan. 4645 The notice sought “comments on areas that ... were removed from from Presidential Withdrawal on July 14, 2008.”4746 However, those efforts appear to have stalled. Instead, the current Administration is focusing on expanding offshore exploration and production efforts under the Five-Year Plan that will cover mid-2012 to mid-2017. According to plans publicized by the Obama Administration, theThe initial scoping evaluation for the 201220172012-2017 Five-Year Plan will includeincluded eight different OCS areas, some of which are not currently available for leasing for purposes of oil and natural gas exploration and production. 48 These areas are located47 This included areas in the Beaufort Sea, Chukchi Sea, and Cook Inlet in Alaska, the Western, Central and Eastern Gulf of Mexico, and the South Atlantic and Mid-Atlantic Ocean. 49 While the full extent of the 2012-2017 Five-Year Plan will not be known for some time, this likely will represent an expansion of current OCS leasing activities into areas not previously leased for purposes of oil and natural gas exploration and production. The scope of the initial evaluation of the 2012-2017 Five-Year Plan, as well as President Obama’s moratorium on oil and natural gas exploration and production in Bristol Bay and the decision to move forward with leasing off the coast of Virginia as permitted under the 2007-2012 Five-Year Plan, is depicted in Figure 1 and Figure 2 below. 43MidAtlantic Ocean. 48 However, on December 1, 2010, an updated strategy was announced that removed areas in the Eastern Gulf of Mexico and the South Atlantic and Mid-Atlantic Ocean from consideration for leasing under the 2012-2017 Five-Year Plan. The scope of existing leasing activity, as well as areas still under consideration for leasing pursuant to the 2012-2017 Five-Year Plan, is depicted in Figure 1 and Figure 2 below. 42 42 U.S.C. § 4332(2)(C). In general, NEPA and the regulations that govern its administration require various levels of environmental analysis depending on the circumstances and the type of federal action contemplated. Certain actions that have been determined to have little or no environmental effect are exempted from preparation of NEPA documents entirely and are commonly referred to as “categorical exclusions.” In situations where a categorical exclusion does not apply, an intermediate level of review, an environmental assessment (EA), may be required. If, based on the EA, the agency finds that an action will not have a significant effect on the environment, the agency issues a “finding of no significant impact” (FONSI), thus terminating the NEPA review process. On the other hand, major federal actions that are found to significantly affect the environment require the preparation of an environmental impact statement (EIS), a document offering detailed analysis of the project as proposed as well as other options, including taking no action at all. NEPA does not direct an agency to choose any particular course of action; the primary purpose of an EIS is to ensure that environmental consequences are considered. For additional information, see CRS Report RS20621, Overview of National Environmental Policy Act (NEPA) Requirements, by Kristina Alexander. 4443 See Natural Resources Defense Council v. Hodel, 865 F.2d 288, 310 (D.C. Cir.1988). 4544 The Plan, as revised by Secretary of the Interior Ken Salazar on March 31, 2010, is available on BOEBOEMRE’s website at at http://www.boemre.gov/5-year/PDFs/PRP2007-2012.pdf. 4645 73 Fed. Reg. 45065 (August 1, 2008). The notice and request for comment was published by MMS, the predecessor to BOE. 47 Id. 48BOEMRE. 46 Id. 47 Notice of Intent to Prepare and Scope an Environmental Impact Statement (EIS) for the Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2012-2017, 75 Fed. Reg. 16828 (April 2, 2010). 4948 Id. Congressional Research Service 7 Offshore Oil and Gas Development: Legal Framework Figure 1. Atlantic, Gulf of Mexico, and Pacific Strategies as of April 6December 1, 2010 Department of the Interior Outer Continental Shelf Oil and Gas Updated Strategy Source: http://www.doi.gov/whatwedo/energy/ocs/lower48-strategy.cfmnews/pressreleases/loader.cfm?csModule=security/getfile&PageID=78990. Adapted by CRS. CRS-8 Figure 2. Alaska Strategy as of April 6December 1, 2010 Department of the Interior Outer Continental Shelf Oil and Gas Updated Strategy Source: http://www.doi.gov/whatwedo/energy/ocs/AlaskaRegion.cfm. Adapted by CRS. Congressional Research Service 8news/pressreleases/loader.cfm?csModule=security/getfile&PageID=78988. Adapted by CRS. CRS-9 Offshore Oil and Gas Development: Legal Framework Leasing The lease sale process involves multiple steps as well. Leasing decisions are impacted by a variety of federal laws; however, it is section 8 of the OCSLA and its implementing regulations that establish the mechanics of the leasing process. 5049 The process begins when the Director of BOEBOEMRE publishes a call for information and nominations nominations regarding potential lease areas. The Director is authorized to receive and consider these various expressions of interest in lease areas and comments on which areas should receive special special concern and analysis.5150 The Director is then to consider all available information and perform perform environmental analysis under NEPA in crafting both a list of areas recommended for leasing and any proposed lease stipulations.52 51 This list is submitted to the Secretary of the Interior and, upon the Secretary’s approval, published in the Federal Register and submitted to the governors of potentially affected states.5352 The OCSLA and its regulations authorize the governor of an affected state and the executive of any local government within an affected state to submit to the Secretary any recommendations concerning the size, time, or location54location53 of a proposed lease sale within 60 days after notice of the lease sale. 5554 The Secretary must accept the governor’s recommendations (and has discretion to accept a local government executive’s recommendations) if the Secretary determines that the recommendations reasonably balance the national interest and the well-being of the citizens of an affected state.5655 The Director of BOEBOEMRE publishes the approved list of lease sale offerings in the Federal Register Register (and other publications) at least 30 days prior to the date of the sale. 5756 This notice must describe describe the areas subject to the sale and any stipulations, terms, and conditions of the sale.58 The bidding 57 The bidding is to occur under conditions described in the notice and must be consistent with certain baseline baseline requirements established in the OCSLA.59 58 Although the statute establishes base requirements for the competitive bidding process and sets forth a variety of possible bid formats,6059 some of these requirements are subject to modification at the discretion of the Secretary.6160 Before the acceptance of bids, the Attorney General is also 5049 43 U.S.C. § 1337. 30 C.F.R. §§ 256.23, 256.25. 5251 30 C.F.R. § 256.26. 5352 30 C.F.R. § 256.29. 51 5450 53 It should be noted that the OCSLA establishes certain minimum requirements applicable to these subjects. For instance, lease tracts are, in general, to be limited to 5,760 acres, unless the Secretary determines that a larger area is necessary to comprise a “reasonable economic production unit....” Id. at § 1337(b). The law and its implementing regulations also set the range of initial lease terms and baseline conditions for lease renewal. 5554 43 U.S.C. § 1345(a); see also 30 C.F.R. § 256.31. 5655 43 U.S.C. § 1345(c). 5756 43 U.S.C. § 1337(l). 5857 30 C.F.R. § 256.32(1). 5958 43 U.S.C. § 1337. 6059 43 U.S.C. § 1337(a)(1)(A)-(H). For example, bids may be on the basis of “cash bonus bid with a royalty at not less than 12 ½ per centum fixed by the Secretary in amount or value of the production saved, removed, or sold....” See also 30 C.F.R. §§ 256.35 - -256.47. 6160 43 U.S.C. §§ 1337(a)(1)-(3), (8)-(9). Congressional Research Service 910 Offshore Oil and Gas Development: Legal Framework authorized to review proposed lease sales to analyze any potential effects on competition, and may subsequently recommend action to the Secretary of the Interior as may be necessary to prevent violation of antitrust laws.6261 The Secretary is not bound by the Attorney General’s recommendation, and likewise, the antitrust review process does not affect private rights of action under antitrust laws or otherwise restrict the powers of the Attorney General or any other federal agency under other law.6362 Assuming compliance with these bidding requirements, the Secretary may grant a lease to the highest bidder, although deviation from this standard may occur under some circumstances.6463 In addition, the OCSLA prescribes many minimum conditions that all lease instruments must contain. The statute supplies generally applicable minimum royalty or net profit share rates, as necessitated by the bidding format adopted, subject, under certain conditions, to secretarial modification. Several provisions authorize royalty reductions or suspensions. Royalty rates or net profit shares may be reduced below the general minimums or eliminated to promote increased production.6564 For leases located in “the Western and Central Planning Areas of the Gulf of Mexico and the portion of the Eastern Planning Area of the Gulf of Mexico encompassing whole lease blocks lying west of 87 degrees, 30 minutes West longitude and in the Planning Areas offshore Alaska,” a broader authority is also provided, allowing the Secretary, with the lessee’s consent, to make “other modifications” to royalty or profit share requirements to encourage increased production.6665 Royalties may also be suspended under certain conditions by BOEBOEMRE pursuant to the Outer Continental Shelf Deep Water Royalty Relief Act, discussed infra. The OCSLA generally requires successful bidders to furnish a variety of up-front payments and performance bonds upon being granted a lease.6766 Additional provisions require that leases provide that certain amounts of production be sold to small or independent refiners. Further, leases must contain the conditions stated in the sale notice and provide for suspension or cancellation of the lease in certain circumstances.6867 Finally, the law indicates that a lease entitles the lessee to explore for, develop, and produce oil and gas, conditioned on applicable due diligence requirements and the approval of a development and production plan, discussed below.6968 Exploration Exploration for oil and gas pursuant to an OCSLA lease must comply with an approved exploration plan. 7069 Detailed information and analysis must accompany the submission of an exploration plan, and, upon receipt of a complete proposed plan, the relevant BOEBOEMRE regional 6261 43 U.S.C. § 1337(c); 30 C.F.R. § 256.47(d). 43 U.S.C. § 1337(c), (f). 6463 Restrictions include a statutory prohibition on issuance of a new lease to a bidder that is not meeting applicable due diligence requirements with respect to the bidder’s other leases. See 43 U.S.C. § 1337(d). 6564 Id. at § 1337(a)(3). 6665 43 U.S.C. § 1337(a)(3)(B). 6766 43 U.S.C. § 1337(a)(7); 30 C.F.R. §§ 256.52 - -256.59. 6867 43 U.S.C. § 1337. 6968 43 U.S.C. § 1337(b)(4). 7069 43 U.S.C. § 1340(b), (c). 6362 Congressional Research Service 1011 Offshore Oil and Gas Development: Legal Framework supervisor is required to submit the plan to the governor of an affected state and the state’s Coastal Zone Management agency.7170 Under the Coastal Zone Management Act (CZMA), federal actions and federally permitted projects, including those in federal waters, must be submitted for state review. 7271 The purpose of this review is to ensure consistency with state coastal zone management programs as contemplated by the federal law. When a state determines that a lessee’s plan is inconsistent with its coastal zone management program, the lessee must either reform its plan to accommodate those objections and resubmit it for BOEBOEMRE and state approval or succeed in appealing the state’s determination to the Secretary of Commerce. 7372 Simultaneously, the BOEBOEMRE regional supervisor is to analyze the environmental impacts of the proposed exploration activities under NEPA; however, regulations regulations prescribe that BOEBOEMRE complete its action on the plan review within 30 days. Hence, extensive extensive environmental review at this stage may be constrained or rely heavily upon previously prepared prepared NEPA documents.7473 If the regional supervisor disapproves the proposed exploration plan, the lessee is entitled to a list of necessary modifications and may resubmit the plan to address those issues.7574 Once a plan has been approved, drilling associated with exploration remains subject to the relevant BOEBOEMRE district supervisor’s approval of an application for a permit to drill, which involves analysis of even more specific drilling plans. Development and Production While exploration often will involve drilling wells, the scale of such activities will significantly increase during the development and production phase. Accordingly, additional regulatory review and environmental analysis are required by the OCSLA before this stage begins.7675 Operators are required to submit a Development and Production Plan for areas where significant development has not occurred before77before76 or a less extensive Development Operations Coordination Document for those areas, such as certain portions of the Western Gulf of Mexico, where significant activities have already taken place.7877 The information required to accompany submission of these documents is similar to that required at the exploration phase, but must address the larger scale of operations.7978 As with the processes outlined above, the submission of these documents complements the department’s and BOEBOEMRE’s environmental analysis under NEPA. It may not always always be necessary to prepare a new EIS at this stage, and environmental analysis may be tied to previously prepared NEPA documents.8079 In addition, affected states are allowed, under the OCSLA, to submit comments on proposed Development and Production Plans and to review these plans for consistency with state Coastal Zone Management Programs. 8180 Additionally, if the 7170 30 C.F.R. §§ 250.226, 250.227, 250.232, 250.235. 16 U.S.C. § 1456(c). 7372 30 C.F.R. § 250.235. 7473 30 C.F.R. § 250.232(c). 7574 30 C.F.R. §§ 250.231 - -250.233. 7675 43 U.S.C. § 1351. 7776 30 C.F.R. § 250.201. 7877 Id. 7978 30 C.F.R. §§ 250.24 - -250.262. 72 8071 79 The regulations indicate that “at least once in each planning area (other than the western and central Gulf of Mexico planning areas) we [BOEBOEMRE] will prepare an environmental impact statement (EIS)....” 30 C.F.R. § 250.269. 8180 30 C.F.R. § 250.267. Congressional Research Service 1112 Offshore Oil and Gas Development: Legal Framework drilling project involves “non-conventional production or completion technology, regardless of water depth,” applicants must also submit a Deepwater Operations Plan (DWOP) and a Conceptual Plan.8281 These additional documents allow BOEBOEMRE to review the engineering, safety, and environmental impacts associated with these technologies. 8382 As with the exploration stage, actual drilling requires approval of an Application for Permit to Drill (APD). 8483 An APD focuses on the specifics of particular wells and associated machinery. Thus, an application must include a plat indicating the well’s proposed location, information regarding the various design elements of the proposed well, and a drilling prognosis, among other things.8584 Lease Suspension and Cancellation The OCSLA authorizes the Secretary of the Interior to promulgate regulations on lease suspension and cancellation.8685 The Secretary’s discretion over the use of these authorities is specifically limited to a set number of circumstances established by the OCSLA. These circumstances are described below. Suspension of otherwise authorized OCS activities may generally occur at the request of a lessee or at the direction of the relevant BOEBOEMRE Regional Supervisor, given appropriate justification.86 87 Under the statute, a lease may be suspended (1) when it is in the national interest; (2) to facilitate proper development of a lease; (3) to allow for the construction or negotiation for use of transportation facilities; or (4) when there is “a threat of serious, irreparable, or immediate harm harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment....”88 The regulations 87 The regulations also indicate that leases may be suspended for other reasons, including (1) when necessary to comply with judicial decrees; (2) to allow for the installation of safety or environmental environmental protection equipment; (3) to carry out NEPA or other environmental review requirements; or (4) to allow for “inordinate delays encountered in obtaining required permits or consents....”89 88 Whenever suspension occurs, the OCSLA generally requires that the term of an affected lease or permit be extended by a length of time equal to the period of suspension. 90 This extension 89 This extension requirement does not apply when the suspension results from a lessee’s “gross negligence or willful violation of such lease or permit, or of regulations issued with respect to such lease or permit....”91 8290 81 30 C.F.R. §§ 250.286, 250.287. 30 C.F.R. §§ 250.289, 250.292. 8483 30 C.F.R. §§ 250.410 - -250.469. 8584 30 C.F.R. § 250.411. 8685 43 U.S.C. § 1334; see also 30 C.F.R. §§ 250.168 - -250.185. 8786 30 C.F.R. §§ 250.168, 250.171-250.175. 8887 43 U.S.C. § 1334(a)(1). 8988 30 C.F.R. § 250.173 - -250.175. 9089 43 U.S.C. § 1334(a)(1). 9190 Id. 8382 Congressional Research Service 1213 Offshore Oil and Gas Development: Legal Framework If a suspension period reaches five years,9291 the Secretary may cancel a lease upon holding a hearing and finding that (1) continued activity pursuant to a lease or permit would “probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral (in areas leased or not leased), to the national security or defense, or to the marine, coastal, or human environment”; (2) “the threat of harm or damage will not disappear or decrease to an acceptable extent within a reasonable period of time”; and (3) “the advantages of cancellation outweigh the advantages of continuing such lease or permit in force....”9392 Upon cancellation, the OCSLA entitles lessees to certain damages. The statute calculates damages at the lesser of (1) the fair value of the canceled rights on the date of cancellation94cancellation93 or (2) the excess of the consideration paid for the lease, plus all of the lessee’s exploration- or developmentrelated expenditures, plus interest, over the lessee’s revenues from the lease. 9594 The OCSLA also indicates that the “continuance in effect” of any lease is subject to a lessee’s compliance with the regulations issued pursuant to the OCSLA, and failure to comply with the provisions of the OCSLA, an applicable lease, or the regulations may authorize the Secretary to cancel a lease as well.9695 Under these circumstances, a nonproducing lease can be canceled if the Secretary sends notice by registered mail to the lease owner and the noncompliance with the lease or regulations continues for a period of 30 days after the mailing.9796 Similar noncompliance by the owner of a producing lease can result in cancellation after an appropriate proceeding in any United States district court with jurisdiction as provided for under the OCSLA.98 Suspensions Following the Deepwater Horizon Oil Spill On May 28, 2010, the U.S. Department of the Interior issued a memorandum to the Director of MMS.99 The basis for the memorandum was a report produced by the Secretary on May 27 that reviewed all aspects of offshore drilling operations in the wake of the Deepwater Horizon oil spill in the Gulf of Mexico and made numerous immediate and long-term recommendations to improve drilling safety, including “a six-month moratorium on permits for new wells being drilled using floating rigs.”100 Based on these findings, the May 28 memorandum directed “a six month suspension of all pending, current or approved offshore drilling operations of new 9297 Legal Challenges to Offshore Leasing Multiple statutes govern aspects of offshore oil and gas development, and therefore, may give rise to legal challenges. Certainly, violations of the Marine Mammal Protection Act,98 Endangered Species Act, 99 and other environmental laws have provided mechanisms for challenging actions associated with offshore oil and gas production in the past.100 Of primary interest here, however, are legal challenges to agency action with respect to the planning, leasing, exploration, and development phases under the procedures mandated by the OCSLA itself and the related environmental review required by the National Environmental Policy Act. 91 43 U.S.C. § 1334(a)(2)(B). The requisite suspension period may be reduced upon the request of the lessee. 43 U.S.C. § 1334(a)(2)(A)(i)-(iii). For regulations implementing the cancellation provisions, see 30 C.F.R. §§ §§ 250.180 - -250.185. 9493 The statute requires “fair value” to take account of “anticipated revenues from the lease and anticipated costs, including costs of compliance with all applicable regulations and operating orders, liability for cleanup costs or damages, or both, in the case of an oil spill, and all other costs reasonably anticipated on the lease....” 43 U.S.C. § § 1334(a)(2)(C). 9594 Exceptions from this method of calculation are carved out for leases issued before September 18, 1978, and for joint leases that are canceled due to the failure of one or more partners to exercise due diligence. 43 U.S.C. § § 1334(a)(2)(C)(ii)(I), (II); see also 30 C.F.R. §§ 250.184 - -250.185. 9695 43 U.S.C. § 1334(b). 9796 43 U.S.C. § 1334(c). 98 43 U.S.C. § 1334(d). 99 As discussed above, MMS has since been renamed the Bureau of Ocean Energy Management, Regulation and Enforcement pursuant to Secretarial Order 3302 issued on June 18, 2010. 100 U.S. Department of the Interior, Increased Safety Measures for Energy Development on the Outer Continental Shelf; Executive Summary, May 27, 2010 (Report), available at http://www.doi.gov/deepwaterhorizon/loader.cfm? csModule=security/getfile&PageID=33598. 93 Congressional Research Service 13 Offshore Oil and Gas Development: Legal Framework deepwater wells in the Gulf of Mexico and the Pacific regions.” The Memorandum further provided that “[f]or those operators who are currently drilling new deepwater wells, they shall halt drilling activity at the first safe and controlled stopping point and take all necessary steps to close the well.” Finally, the Memorandum stated that “MMS shall not process any new applications for permits to drill consistent with this directive.” The Memorandum instructed the Director of MMS to issue Letters of Suspension and other appropriate documentation in order to effectuate the suspension as outlined in the Memorandum. After the issuance of the Moratorium and Suspension of Operations (SOO) described above, a number of owners and operators of vessels, shipyards, and supply services companies that support deepwater oil and gas exploration and production activities in the Gulf of Mexico brought an action against the Department of the Interior and MMS/BOE challenging the Moratorium and SOO and seeking to stop their enforcement by obtaining an injunction from the court. On June 22, 2010, the U.S. District Court for the Eastern District of Louisiana issued a decision granting the requested injunction, thus rendering ineffective the Moratorium and related SOOs.101 The court found that the plaintiffs had established the likelihood of successfully showing that the decision to issue the moratorium was arbitrary and capricious.102 The court also found that the plaintiffs had demonstrated that the moratorium had caused and would continue to cause them to suffer irreparable harm.103 Therefore, the court granted the motion for preliminary injunction, thereby lifting the moratorium. 104 In response to this decision, the Department of the Interior filed notice of intent to appeal the decision with the U.S. Court of Appeals for the Fifth Circuit,105 as well as a motion for a stay of the injunction pending the appeal.106 The motion for a stay was denied by the Fifth Circuit on July 8,107 leaving the preliminary injunction on enforcement of the May moratorium in place. On July 12, the Secretary issued a “decision memorandum” instructing the Director of the newly formed BOE to “direct the suspension of the drilling of wells using subsea blowout preventers (BOPs) or surface BOPs on a floating facility.”108 The Memorandum also instructed the Director to “cease the approval of pending and future applications for permits to drill wells using subsea BOPs or surface BOPs on a floating facility.”109 The directive is to apply in the Gulf of Mexico and the Pacific offshore regions through November 30, 2010, although it is subject to later modification at the discretion of the Secretary.110 As with the May Memorandum, the Secretary cites to 30 C.F.R. §§ 250.172 (b) and (c) for the authority to issue these instructions.111 The text of 101 Hornbeck Offshore Services, L.L.C. v. Salazar, — F.Supp.2d —, 2010 WL 2490930 (E.D.La. 2010). Id. at *8. 103 Id. 104 Id. at *9. 105 Notice of Appeal, Hornbeck Offshore Services, Inc. v. Salazar, Case No. 10-30585 (5th Cir. June 24, 2010). 106 Motion for Stay Pending Appeal, Hornbeck Offshore Services, Inc. v. Salazar, Case No. 10-30585 (5th Cir. June 25, 2010). 107 Denial of Motion for Stay Pending Appeal, Hornbeck Offshore Services, Inc. v. Salazar, Case No. 10-30585 (5th Cir. July 8, 2010). 108 U.S. Department of the Interior: Decision memorandum regarding the suspension of certain offshore permitting and drilling activities on the Outer Continental Shelf. July 12, 2010, at 1. 109 Id. 110 Id. 111 Id. 102 Congressional Research Service 14 Offshore Oil and Gas Development: Legal Framework this July 12 Memorandum, which covers 22 pages, seeks to justify the need for the suspension and ceasing of approvals as necessary to address a “‘threat of serious, irreparable or immediate harm or damage’ to human or animal ‘life, property, and deposit or the marine, coastal or human environment,’” or as necessary for the “‘installation of safety or environmental protection equipment.’”112 In the text of the Memorandum, the Secretary notes that he has “concluded, based on an extensive record, that this temporary pause in deepwater drilling will provide time for a number of important steps toward addressing this threat and improving the safety of drilling operations.”113 The Memorandum then details the ways that the “pause” might allow the Department of the Interior to do this, including collection and analysis of evidence regarding causes of the Deepwater Horizon incident, assessment of well intervention and blowout containment resources, and submission of evidence by operators to demonstrate ability to effectively respond to potential incidents.114 The Memorandum details risks that are specific to deepwater115 and also discusses other proposed actions that were considered but rejected.116 The Memorandum also recognizes the potential negative impacts of a suspension on “rig workers and those who support them. 117 In addition, the Memorandum provides that suspensions may be lifted early for specific operators who are able to satisfy certain requirements related to workplace and drilling safety, blowout containment, and oil spill response capacity.118 These detailed considerations, including the flexibility for early lifting of the suspension in certain cases, could be seen as an effort to address the perceived shortcomings in the decision-making process for issuance of the May Moratorium that led to its injunction. This July 12 memorandum has already been challenged in federal courts. As of the date of this report, the courts had not yet ruled on requests for injunctive relief that would suspend the effectiveness of the July 12 memorandum and suspensions issued pursuant to its direction. Legal Challenges to Offshore Leasing Multiple statutes govern aspects of offshore oil and gas development, and therefore, may give rise to legal challenges. Certainly, violations of the Marine Mammal Protection Act,119 Endangered Species Act, 120 and other environmental laws have provided mechanisms for challenging actions associated with offshore oil and gas production in the past.121 Of primary interest here, however, are legal challenges to agency action with respect to the planning, leasing, exploration, and development phases under the procedures mandated by the OCSLA itself and the related environmental review required by the National Environmental Policy Act. 112 Id., quoting 30 C.F.R. §§ 250.172 (b)-(c). Id. at 2. 114 Id. 115 Id. at 7-17. 116 Id. at 17-19. 117 Id. at 3. 118 Id. at 18. 11997 43 U.S.C. § 1334(d). 98 16 U.S.C. §§ 1361-1423. 12099 16 U.S.C. §§ 1531-1544. 113 121100 Village of Akutan v. Hodel, 869 F.2d 1185 (9th Cir. 1988); Village of False Pass v. Clark, 733 F.2d 605 (9th Cir. 1984); North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980); Conservation Law Foundation v. Andrus, 623 F.2d 712 (1st Cir. 1979).(continued...) 92 Congressional Research Service 1514 Offshore Oil and Gas Development: Legal Framework Suits Under the Outer Continental Shelf Lands Act The OCSLAAdministrative Procedure Act provides for judicial review of agency action alleged to be in violation of federal law, including the OCSLA, its implementing regulations, and the terms of any permit or lease.122 101 The following paragraphs provide an overview of the existing case law and address the limitations applicable to relief at each phase of the leasing and development process. Jurisdiction to review agency actions taken in approving the five-year plan is vested in the U.S. Court of Appeals for the D.C. Circuit, subject to appellate review by writ of certiorari tofrom the U.S. Supreme Court.123102 A few challenges to five-year plans have been brought in federal courts. The . The first, California ex. rel. Brown v. Watt,124103 involved a variety of challenges to the 1980-1985 plan, and, while the court ultimately found that the Secretary had failed to comply with certain procedural procedural requirements in making determinations, the court established a relatively deferential standard of review, which it has continued to apply in later challenges. When reviewing “findings of of ascertainable fact made by the Secretary,” the court will require the Secretary’s decisions to be supported by “substantial evidence.”125104 However, the court noted that many of the decisions required in the formulation of the five-year plan will involve the determination of policy in the face of disputed facts, and that such determinations should be subject to a less searching standard. In such instances, a court will examine agency action and determine whether “the decision is based on a consideration of the relevant factors and whether there has been a clear error of judgment.”126105 The standards for review outlined in Watt have been upheld in subsequent litigation related to the five-year plan.127106 In these subsequent cases, the Court of Appeals for the D.C. Circuit applied a deferential standard in reviewing the Secretary’s decisions, particularly in reviewing the Secretary’s environmental impact determinations, such that the Secretary could perform environmental analysis using “any methodology so long as it is not irrational.”128107 Further, these cases indicate that the Secretary is vested with significant discretion in determining which areas are to be offered for leasing and which areas will not. Thus, while the Secretary must receive and consider comments related to excluding areas from leasing, the court has clearly stated that the Secretary need only identify the legal or factual basis for leasing determinations at this stage and explain those determinations. More searching judicial review of the Secretary’s analysis is not required.129 122 108 (...continued) F.2d 712 (1st Cir. 1979). 101 43 U.S.C. § 1349. 102 43 U.S.C. § 1349(c). 124103 668 F.2d 1290 (D.C. Cir. 1981). 125 Watt, 668 F.2d104 Id. at 1302; see also 43 U.S.C. § 1349(c)(6). 123 126 Watt, 668 F.2d105 Id. at 1301-1302 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (internal quotations omitted)). 127106 See California v. Watt, 712 F.2d 584 (D.C. Cir. 1983); Natural Resources Defense Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988). 128107 California, 715712 F.2d at 96596 (internal quotations omitted). 129108 Hodel, 865 F.2d at 305. Congressional Research Service 1615 Offshore Oil and Gas Development: Legal Framework Litigation under the OCSLA has also challenged actions taken during the leasing phase. As described above, the OCSLA authorizes states to submit comments during the notice of lease sale stage and directs the Secretary to accept a state’s recommendations if they “provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State.”130109 Courts have typically applied the deferential “arbitrary and capricious” standard to the Secretary’s decisions with respect to these recommendations. According to the cases from the Ninth Circuit Court of Appeals, because the OCSLA does not provide clear guidance as to how balancing of national interest and a state’s considerations is to be performed, agency action will generally be upheld so long as “some consideration of the relevant factors ...” takes place. 131110 Cases from the federal courts in Massachusetts, including a decision affirmed by the First Circuit Court of Appeals, have, while embracing the arbitrary and capricious standard, found the Secretary’s balancing of interests insufficient. 132111 However, it should be noted that the Massachusetts cases reviewed agency action that was not supported by explicit analysis of the sort challenged in the Ninth Circuit. Thus, it is possible that, given a more thorough record of the Secretary’s decision, these courts may afford more significant deference to the Secretary’s determination. Apart from matters relating primarily to the authority of the Secretary to authorize the various stages of leasing, recent litigation has focused on the authority of MMS/BOEBOEMRE to require royalty royalty payments on certain offshore leases allegedly subject to mandatory royalty relief provisions. In Kerr-McGee Oil & Gas Corp. v. Allred, the plaintiff, an oil and gas company operating offshore wells in the Gulf of Mexico pursuant to federal leases, challenged actions by the department to collect royalties on deepwater oil and gas production. 133112 The plaintiff alleged the department does not have authority to assess royalties based on an interpretation of the 1995 Outer Continental Shelf Deepwater Royalty Relief Act (DWRRA), that the act requires royalty-freeroyaltyfree production until a statutorily prescribed threshold volume of oil or gas production has been reached, and does not permit a price-based threshold for this royalty relief.134 113 The DWRRA separates leases into three categories based on date of issuance. These categories are (1) leases in existence on November 28, 1995; (2) leases issued after November 28, 2000; and (3) leases issued in between those periods, that is, during the first five years after the act’s enactment. The third category of leases is the source of current controversy. According to Kerr-McGee, its KerrMcGee, its leases, which were issued during the initial five-year period after the DWRRA’s enactment, are subject to different legal requirements from those applicable to the other two categories. KerrMcGeeKerr-McGee argued that the department has a nondiscretionary duty under the DWRRA to provide royalty relief on its deepwater leases, and that the statute does not provide an exception to this obligation based on any preset price threshold. To the extent any price threshold has been included in these leases, Kerr-McGee argued that such provisions are contrary to DOI’s statutory statutory authority and unenforceable. 130109 43 U.S.C. § 1345(d). 131110 California v. Watt, 683 F.2d 1253, 1269 (9th Cir. 1982); see also Tribal Village of Akutan v. Hodel, 869 F.2d 1185 (9th Cir. 1988). 132111 Conservation Law Foundation v. Watt, 560 F.Supp. 561 (D.Mass. 1983), aff’d sub nom. Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983); Massachusetts v. Clark, 594 F.Supp. 1373 (D.Mass. 1984). 133112 Kerr-McGee v. Allred, No, 2:06 CV 0439, 2007 WL 3231634 (W.D. La. Oct. 30, 2007). 134113 P.L. 104-58. Congressional Research Service 1716 Offshore Oil and Gas Development: Legal Framework Section 304 of the DWRRA, which addresses deepwater leases135leases114 issued within five years after the DWRRA’s enactment, directs that such leases use the bidding system authorized in section 8(a)(1)(H) of the OCSLA, as amended by the DWRRA. Section 304 of the DWRRA also stipulates that leases issued during the five-year post-enactment time frame must provide for royalty suspension on the basis of volume. Specifically, section 304 states: [A]ny lease sale within five years of the date of enactment of this title, shall use the bidding system authorized in section 8(a)(1)(H) of the Outer Continental Shelf Lands Act, as amended by this title, except that the suspension of royalties shall be set at a volume of not less than the following: (1) 17.5 million barrels of oil equivalent for leases in water depths of 200 to 400 meters; (2) 52.5 million barrels of oil equivalent for leases in 400 to 800 meters of water; and (3) 87.5 million barrels of oil equivalent for leases in water depths greater than 800 meters.136115 It is possible to interpret this provision as authorizing leases issued during the five-year period to contain only royalty suspension provisions that are based on production volume with no allowance at all for a price-related threshold in addition. Such an intent might be gleaned from the language of the quoted section alone; indeed, in this provision, Congress provides for a specific royalty suspension method and does not clearly authorize the Secretary to alter or supplement it. Kerr-McGee’s challenge to the Secretary’s authority to impose price-based thresholds on royalty suspension was based on this interpretation of the statutory language above. The U.S. District Court for the Western District of Louisiana agreed with Kerr-McGee’s interpretation of the language discussed above. The court found that the DWRRA allowed only for volumetric thresholds on royalty suspension for leases issued between 1996 and 2000, and that the Secretary did not have authority under the DWRRA to attach price-based thresholds to royalty suspension for those leases.137116 On January 12, 2009, the U.S. Court of Appeals for the Fifth Circuit issued a decision affirming the district court’s ruling, 138117 and on October 5, 2009, the U.S. Supreme Court denied a petition for writ of certiorari.139118 In Center for Biological Diversity v. U.S. Department of the Interior,140119 the plaintiff challenged the five-year plan for 2007-2012 on several grounds. Among these was a claim that DOI had failed to satisfy the requirement found in Section 18(a)(2)(G) of the OCLSA that, in preparing the five-year plan, DOI must consider “the relative environmental sensitivity and marine productivity of different areas of the outer Continental Shelf.”141120 The court found that DOI’s analysis, which relied solely on “physical characteristics” of different shoreline areas, did not satisfy the requirements of Section 18(a)(2)(G) because it failed to consider non-shoreline areas of the 135114 This term refers to “tracts located in water depths of 200 meters or greater in the Western and Central Planning Area of the Gulf of Mexico, including that portion of the Eastern Planning Area of the Gulf of Mexico encompassing whole lease blocks lying west of 87 degrees, 30 minutes West longitude....” 43 U.S.C. § 1337 note. 136115 P.L. 104-58. 137116 Kerr-McGee v. Allred, slip. op. at 8-9. 138117 Kerr-McGee Oil & Gas Corp. v. U.S. Dep’t of Interior, 554 F.3d 1082 (5th Cir. 2009). 139118 U.S. Dept. of the Interior v. Kerr-McGee Oil and Gas Corp., 130 S. Ct. 236 (Mem) (2009). 140119 563 F.3d 466 (D.C. Cir. 2009). 141120 43 U.S.C. § 1344(a)(2)(G). Congressional Research Service 1817 Offshore Oil and Gas Development: Legal Framework OCS.142121 The court therefore vacated the five-year program and remanded it to DOI for reconsideration. In a later order, the court clarified that this relief related only to those portions of the five-year plan that related to leasing in the Chukchi, Beaufort, and Bering Seas, as the environmental sensitivity analysis for these areas was the only analysis that was found to be deficient. 143122 Suits Under the National Environmental Policy Act In the context of proposed OCS development, NEPA regulations generally requiresrequire publication of notice of an intent to prepare an Environmental Impact Statement (EIS), acceptance of comments on what should be addressed in the EIS, agency preparation of a draft EIS, a comment period on the draft EIS, and publication of a final EIS addressing all comments at each stage of the leasing process process where government action will significantly affect the environment. 144123 As described above, NEPA NEPA figures heavily in the OCS planning and leasing process and requires various levels of environmental analysis prior to agency decisions at each phase in the leasing and development process.145124 Lawsuits brought under NEPA are thus indirect challenges to agency decisions in that they typically question the adequacy of the environmental analysis performed prior to a final decision. In Natural Resources Defense Council v. Hodel,146125 the plaintiff challenged the adequacy of the alternatives examined in the EIS and the level of consideration paid to cumulative effects of offshore drilling activities. The court held that not every possible alternative needed to be examined, and that the determination as to adequacy was subject to the “rule of reason.”147126 This standard appears to afford some level of deference to the Secretary, and his choice of alternatives was found to be sufficient by the court in this instance.148127 However, without significant explanation of the standard of review to be applied, the court found that the Secretary’s failure to analyze certain cumulative impacts was a violation of NEPA.149128 Thus, the Secretary was required to include this analysis, although final decisions based on that analysis remained subject to the Secretary’s discretion, with review only under the arbitrary and capricious standard.150129 As mentioned above, NEPA plays a role in the leasing phase as well. BOEBOEMRE often uses NEPA and and its tiering option to evaluate lease sales.151130 The NEPA procedures and standard of review remain remain the same at this phase; however, due to the structure of the OCSLA process, more specific information is generally required. 152131 Still, courts are deferential at the lease sale phase. In challenges to the adequacy of environmental review, courts have stressed that inaccuracies and 142121 563 F.3d at 488. 143122 Center for Biological Diversity v. U.S. Department of the Interior; Order upon consideration of respondent’s petition for rehearing and/or clarification, No. 07-1247 (D.C. Cir. July 28, 2009). 144123 40 C.F.R. §§ 1501.7, 1503.1, 1503.4, 1506.10. 145124 42 U.S.C. § 4332. 146 Natural Resources Defense Council, Inc. v. Hodel, 125 865 F.2d 288 (D.C. Cir. 1988). 147126 Id. at 294. 148127 Id. at 296. 149128 Id. at 297-300. 150129 See California ex. rel. Brown v. Watt, 668 F.2d 1290, 1301-1302 (D.C. Cir. 1981). 151130 See 30 C.F.R. § 256.26(b); 40 C.F.R. § 1508.28. 152131 Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1191 (9th Cir. 1988). Congressional Research Service 1918 Offshore Oil and Gas Development: Legal Framework more stringent NEPA analysis will be available at later phases. 153132 Thus, because there will be an opportunity to cure any defects in the analysis as the OCSLA process continues, challenges under NEPA at this phase are often unsuccessful.154 It is also possible to challenge exploration and development plans under NEPA. In Edwardsen v. U.S. Department of the Interior, the Ninth Circuit Court of Appeals applied the typical “rule of reason” to determine if the EIS adequately addressed the probable environmental consequences of the development and production plan, and held that, despite certain omissions in the analysis and despite an MMS decision to tier its NEPA analysis to an EIS prepared for a similar lease sale, the requirements of NEPA were satisfied.155133 Thus, while additional analysis was required to account for the greater specificity of the plans and to accommodate the “hard look” at environmental impacts NEPA mandates, the reasonableness standard applied to what must be examined in an EIS did not allow for a successful challenge to agency action. 153132 Id. at 1192; Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir. 1978); Village of False Pass v. Clark, 733 F.2d 605, 612-616 (9th Cir. 1984); North Slope Borough v. Andrus, 642 F.2d 589, 594-905 (D.C. Cir. 1980). 154 But see Conservation Law Foundation v. Clark, 560 F.Supp. 561 (D. Mass. 1983). 155 Edwardsen v. U.S. Department of the Interior, 133 268 F.3d 781, 784-790 (9th Cir. 2001). Congressional Research Service 2019 Offshore Oil and Gas Development: Legal Framework Appendix. State Laws That Ban or Regulate Offshore Resource Development Table A-1. State Laws That Ban or Regulate Offshore Resource Development: Policy and Statutes State Policy Statutes AL Drilling is authorized in Alabama’s state waters. The State Lands Division of the Department of Conservation & Land Resources is charged with leasing offshore oil and gas in state waters. In addition, the Alabama State Oil and Gas Board regulates oil and gas production to ensure the conservation and proper development of oil and gas resources. Authorization: Ala. Code §§ 9-15-18; 9-17-1 et seq.; 40-20-1 et seq. AK The Alaska Department of Natural Resources is responsible for leasing oil and gas on state lands, including offshore areas. Certain areas are specifically designated as off limits to oil and gas leasing, and administrative decisions may further limit access. Ban: Alaska Stat. §§ 38.05.140(f); 38.05.184. The State Lands Commission is generally responsible for oil and gas leasing. California currently has a general ban in place restricting any state agency from issuing new offshore leases, unless the President of the United States determines that there is a “severe energy supply interruption and has ordered distribution of the Strategic Petroleum Reserve ... , the Governor finds that the energy resources of the sanctuary will contribute significantly to the alleviation of that interruption, and the Legislature subsequently acts to amend...[the law] to allow that extraction.” The ban is limited to areas that are not currently subject to a lease. Ban: Cal. Pub. Res. Code §§ 6871.1.2 (repealed 1994); 6870 (Santa Barbara limitations); 6243 (general ban). CA Authorization: Alaska Stat. §§ 38.05.131 et seq. Authorization: Cal. Pub. Res. Code §§ 6870 et. seq.; 6240 et seq. CT Connecticut does not appear to have laws addressing oil and gas development in state waters. DE The governor and the secretary of the Department of Natural Resources and Environmental Control are authorized to lease oil and gas in state waters. Lands “administered by the Department of Natural Resources and Environmental Control” may not be leased by the secretary. Ban: Del. Code Ann. tit. 7 ch. 61 § § 6102(e). In general, the Department of Natural Resources is vested with the authority to permit oil and gas development on state lands and submerged lands; in 1990, Florida enacted a broad ban on offshore oil and gas development by prohibiting oil and gas drilling structures in a variety of locations, including Florida’s territorial waters. The development ban provides an exception for valid existing rights. Ban: Fla. Stat. Ann. § 377.242. GA The State Properties Commission is authorized to issue leases for stateowned oil and gas. The statute does not distinguish between onshore and offshore minerals. Authorization: Ga. Stat. § 50-16-43. HI The Board of Land and Natural Resources is authorized to lease oil and gas on state lands, including submerged lands. There would not appear to be a statutory ban in place. Authorization: Hawaii Rev. Stat. §§ 182-1 et seq. LA The state Mineral Board is responsible for leasing oil and gas in Louisiana and its offshore territory. Development is limited to areas offered by the Board for leasing. Authorization: La. Rev. Stat. §§ 30:121 et seq. FL Congressional Research Service Authorization: Del. Code. Ann. tit. 7 ch. 61. Authorization: Fla. Stat. Ann. §§ 377.01 et seq.; 253.001 et seq. 2120 Offshore Oil and Gas Development: Legal Framework State Policy Statutes ME The Bureau of Geology and Natural Areas has primary authority over oil and gas development on state lands, including tidal and submergedall state lands. The Bureau is authorized to issue exploration permits and mineral leases. Authorization: Me. Rev. Stat. tit. 12 §§ 549 et seq. MD The Department of the Environment regulates oil and gas development. The areas underlying the Chesapeake Bay, its tributaries, and the Chesapeake Bay Critical Area are unavailable for oil and gas development. Ban: Md. Code, Envt. § 14-107. The Division of Mineral Resources is charged with administering the leasing of oil and gas on state lands. The law requires a public hearing before any license to explore or lease for extraction is issued for mineral resources located in coastal waters. Many of the state’s offshore areas are designated as ocean sanctuaries in which oil and gas development is prohibited. Authorization: Mass. Gen. Laws Ann. Ch. 21 §§ §§ 54 et seq. The Mississippi Major Economic Impact Authority is responsible for administering oil and gas leases on state lands. Offshore oil and gas development is generally permissible. Specific areas are not available for leasing. No development may occur in areas north of the coastal barrier islands, except in Blocks 40, 41, 42, 43, 63, 64, and 66 through 98. Further, “surface offshore drilling operations” may not be conducted within one mile of Cat Island. Authorization: Miss. Code. Ann. §§ 29-7-1 et seq. MA MS Authorization: Md. Code, Envt. §§ 14-101 et seq. Ban: Mass. Gen. Laws Ann. Ch. 132A § 15. Ban: Miss. Code. Ann. § 29-7-3. NH New JerseyHampshire does not appear to have laws addressing offshore oil and gas development in state waters. NJ State law authorizes the removal of sand and other materials from lands under tidewaters and below the high water mark if approved by the Tidelands Resource Council. Offshore oil and gas development is not addressed. Authorization: N.J. Stat. Ann. §§ 12:3.-12-.1 et seq. NY Leases and permits for the right to use state-owned submerged lands for navigation, commerce, fishing, bathing, and recreation are authorized for specified submerged areas. General authority for issuing oil and gas leases is vested in the Department of Environmental Conservation. Certain submerged lands underlying specified lakes are excluded from exploration and leasing, but offshore areas would not appear to be subject to a similar ban. Authorization: N.Y. Pub. Lands Law § 75; N.Y. Envt’l & Conserv. Law §§ 230101 et seq. NC State law authorizes the sale or lease of any state-owned mineral underlying the bottoms of any sounds, rivers, creeks, or other waters of the state. The state is authorized to sell, lease, or otherwise dispose of oil and gas at the request of the Department of Environment and Natural Resources. Authorization: N.C. Gen. Stat. § 146-8. OR The Department of State Lands is generally responsible for leasing state owned minerals, including oil and gas. Leasing of tidal and submerged lands is governed by separate provisions of law. There does not appear to be a ban in place. Authorization: Or. Rev. Stat. §§ 274.705 et seq.; 273.551 (for submerged lands seaward more than 10 miles easterly of the 124th West Meridian). RI The Coastal Resources Management Council is charged with identifying, evaluating, and determining which uses are appropriate for the state’s coastal resources and submerged lands. Authorization: R.I. Gen. Laws §§ 46-23-1 et seq. Congressional Research Service 2221 Offshore Oil and Gas Development: Legal Framework State Policy Statutes SC The State Budget and Control Board is authorized to “negotiate for leases of oil, gas and other mineral rights upon all of the lands and waters of the State, including offshore marginal and submerged lands.” Authorization: S.C. Code. Ann. §§ 10-9-10 et seq. TX The School Land Board is authorized to lease those portions of the Gulf of Mexico under the state’s jurisdiction for oil and gas development. Authorization: Tex. Nat. Res. Code §§ 52.011 et seq. VA The Marine Resources Commission is authorized to grant easements or to lease “the beds of the waters of the Commonwealth outside of the Baylor Survey” for oil and gas development. Authorization: Va. Code Ann. § 28.2-1208. WA In general, the Department of Natural Resources is responsible for mineral development on state lands. State law prohibits leasing of tidal or submerged lands “extending from mean high tide seaward three miles along the Washington coast from Cape Flattery south to Cape Disappointment, nor in Grays Harbor, Willapa Bay, and the Columbia river downstream from the Longview bridge, for purposes of oil or gas exploration, development, or production.” Ban: Wash. Rev. Code Ann. §§ §§ 43.143.005 et seq. Source: CRS. Author Contact Information Adam Vann Legislative Attorney avann@crs.loc.gov, 7-6978 Congressional Research Service 2322