In response to the oil spill from the Deepwater Horizon well and drilling rig in the Gulf of Mexico, the White House Council on Environmental Quality (“CEQ”) announced on May 17, 2010 that it would conduct a thirty-day review of the U.S. Department of Interior, Minerals Management Service’s (“MMS”) environmental polices for oil and gas exploration and development in the Outer Continental Shelf. CEQ has primary authority for implementing the National Environmental Policy Act (“NEPA”) and may review and require that agencies revise their policies if they do not fully comply with NEPA. 40 C.F.R. § 1507.3. CEQ stated that the review will “be holistic, i.e., from leasing decisions to drilling and production.” 75 Fed. Reg. 29996, 29996 (May 28, 2010).
MMS implements a four-stage process for oil and gas development, which includes: “(1) [p]reparing a nationwide 5-year oil and gas development program, (2) planning for and holding a specific lease sale, (3) approving a company’s exploration plan, and (4) approving a company’s development and production plan.” 75 Fed. Reg. at 29996. The agency must consider NEPA’s requirements during each stage. However, MMS has also promulgated regulations defining certain “categorical exclusions,” or categories of actions for which the agency found not to have a significant effect on the environment, and therefore, an individual environmental review is not prepared.
In April 2007, MMS developed a multi-sale environmental impact statement (“EIS”) for lease sales in the Outer Continental Shelf, which included the Deepwater Horizon project. Based on an environmental assessment under the multi-lease sale EIS, MMS determined that the Deepwater Horizon project fit within the following categorical exclusion:
Approval of an offshore lease or unit exploration. [sic] development/production plan or a Development Operation Coordination Document in the central or western Gulf of Mexico (30 CFR 250.2) except those proposing facilities: (1) In areas of high seismic risk or seismicity, relatively untested deep water, 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.
Because of this determination, MMS did not analyze the potential significant adverse environmental impacts of the Deepwater Horizon project.
As part of its review, CEQ is requesting public comment on current MMS NEPA practices, policies, and procedures relating to oil and gas exploration and development in the Outer Continental Shelf. Specifically, CEQ is requesting input on the following issues:
- Whether substantive issues exist and how those issues should be analyzed during the NEPA process.
- Whether the current permitting process and NEPA submissions allow for comprehensive evaluation of all relevant issues.
- Whether using categorical exclusions has been effective for oil and gas activities in the Outer Continental Shelf.
- Whether MMS’s use of Categorical Exclusion Review has been an effective tool for reducing paperwork without compromising necessary review under NEPA.
- Whether public engagement has been a part of MMS NEPA practice, particularly with respect to categorical exclusions.
- What resources are available to federal, tribal, state, and local government agencies to participate in MMS NEPA reviews.
Comments should be submitted “as soon as possible” because CEQ’s review ends June 17. 75 Fed. Reg. at 29997.
