First Comes the Executive Order, Then Comes the Lawsuit

Last week, the President released an executive order entitled “Implementing an America-First Offshore Energy Strategy” aimed at “encourag[ing] energy exploration and production, including on the Outer Continental Shelf.”  The Executive Order states that “America must put the energy needs of American families and businesses first” and that “[t]he energy and minerals produced from lands and waters under Federal management are important to a vibrant economy and to our national security.”

The Executive Order directs the Secretary of the Interior, among other things:

  • To “give full consideration to revising the schedule of proposed oil and gas lease sales” to include, but not be limited to, annual lease sales in the following Outer Continental Shelf Planning Areas:  Western Gulf of Mexico, Central Gulf of Mexico, Chukchi Sea, Beaufort Sea, Cook Inlet, Mid-Atlantic, and South Atlantic;
  • To develop and implement “a streamlined permitting approach for privately funded seismic data research and collection aimed at expeditiously determining the offshore energy resource potential of the United States within the Planning Areas.”
  • To review the Bureau of Safety and Environmental Enforcement’s (BSEE) Final Rule “Oil and Gas and Sulfur Operations in the Outer Continental Shelf—Blowout Preventer Systems and Well Control,” 81 Fed. Reg. 25,888 (Apr. 29, 2016), and to review  (and consider whether to revise or withdraw) the Bureau of Ocean Energy Management’s Proposed Rule “Air Quality Control, Reporting, and Compliance,” 81 Fed. Reg. 19,718 (Apr. 5, 2016).
  • To review (and, if appropriate, publish for notice and comment a proposed rule suspending, revising or rescinding) the BSEE Final Rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” 81 Fed. Reg. 46,478 (July 15, 2016).

The Executive Order further directs the Secretary of Commerce, among other things:

  • To “refrain from designating or expanding any National Marine Sanctuary under the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq., unless the sanctuary designation or expansion proposal includes a timely, full accounting from the Department of the Interior of any energy or mineral resource potential within the designated area—including offshore energy from wind, oil, natural gas, methane hydrates, and any other sources that the Secretary of Commerce deems appropriate—and the potential impact the proposed designation or expansion will have on the development of those resources.”
  • To conduct within 180 days “a review of all designations and expansions of National Marine Sanctuaries, and of all designations and expansions of Marine National Monuments … designated or expanded within the 10-year period prior to the date of this order,” which review is to include “the opportunity costs associated with potential energy and mineral exploration and production from the Outer Continental Shelf, in addition to any impacts on production in the adjacent region.”
  • To review (and, if appropriate, publish for notice and comment a proposed rule suspending, revising or rescinding) NOAA’s Technical Memorandum NMFS-OPR-55 of July 2016 (Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing) for consistency with the Executive Order’s policy.

The Executive Order also:

  • Revokes Executive Order 13754 on Northern Bering Sea Climate Resilience (issued December 9, 2016), and
  • Modifies previously issued Memorandum that withdrew certain areas of the U.S. Outer Continental Shelf (including sections of the Arctic Ocean) from disposition by leasing to limit such withdrawal to only “those areas of the Outer Continental Shelf designated as of July 14, 2008, as Marine Sanctuaries under the Marine Protection, Research, and Sanctuaries Act of 1972.”

Yesterday, a coalition of environmental organizations brought a complaint in the United States District Court for the District of Alaska challenging the Executive Order as unlawful (under the Outer Continental Shelf Lands Act) and unconstitutional (under Article II and the Property Clause, Article IV, Section 3, clause 2).  The lawsuit seeks declaratory and injunctive relief.  The coalition is led by the League of Conservation Voters, who filed its first-ever lawsuit, and includes the Natural Resources Defense Council, Sierra Club, Alaska Wilderness League, Defenders of Wildlife, Northern Alaska Environmental Center, Resisting Environmental Destruction on Indigenous Lands, Center for Biological Diversity, Greenpeace, and the Wilderness Society.

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