On August 16, the White House Council on Environmental Quality (“CEQ”) issued a report (“CEQ Report”) summarizing the findings of a thirty-day review of the U.S. Department of Interior (“DOI”) Minerals Management Service’s (“MMS”)[1] environmental polices for oil and gas exploration and development in the Outer Continental Shelf (“OCS”). CEQ found that MMS’s reliance on the “tiering process” (where prior programmatic environmental reviews are incorporated into later site-specific analyses) was not transparent and led to confusion and concern regarding whether MMS sufficiently evaluated and disclosed environmental impacts. CEQ stated that in order for information from one level of review to be effectively included in subsequent reviews, assumptions made by MMS must be independently tested by other agencies, and site-specific environmental impacts should also be evaluated.
The report presents seven recommendations “to promote robust and transparent implementation of the National Environmental Policy Act (NEPA) practices, procedures, and policies.” (CEQ Report at 4.) BOEM, the successor agency to MMS, has committed to using these recommendations as guideposts to reform its NEPA policies and practice.
CEQ’s recommendations to BOEM are:
- Perform careful and comprehensive NEPA review of individual deepwater exploration, operation, development, production, and decommissioning activities, including site-specific information where appropriate.
- Track and take into account all mitigation commitments made in NEPA and decision documents that are relied upon in determining the significance of environmental impacts, from the initial Programmatic EIS through site-specific NEPA analyses and decision.
- Ensure that NEPA analyses fully inform and align with substantive decisions at all relevant decision points; that subsequent analyses accurately reflect and carry forward relevant underlying data; and that those analyses will be fully available to the public.
- Ensure that NEPA documents provide decisionmakers with a robust analysis of reasonably foreseeable impacts, including an analysis of reasonably foreseeable impacts associated with low probability catastrophic spills for oil and gas activities on the OCS.
- Review the use of categorical exclusions for OCS oil and gas exploration and development in light of the increasing levels of complexity and risk and the consequent potential environmental impacts associated with deepwater drilling. Determine whether to revise these categorical exclusions.
- Continue to seek amendments to the Outer Continental Shelf Lands Act to eliminate the 30-day decisional timeframe for approval of submitted Exploration Plans.
- Consider supplementing existing NEPA practices, procedures, and analyses to reflect changed assumptions and environmental conditions, due to circumstances surrounding the BP Oil Spill.
CEQ also solicited public comments to assist its review of MMS’s environmental policies and practices. Among the thirty comments that CEQ received are those stating that Environmental Impact Statements (“EIS”) should be prepared with a greater level of specificity, and individual lease sales should require an EIS that comprehensively evaluates all stages of OCS activity; that categorical exclusions have not been applied appropriately, and their use has enabled MMS to avoid further analyses and public participation at every stage of oil and gas development; and that procedures for oil and gas development should be published as rules, rather than guidelines, not guidelines to ensure compliance.
The CEQ Report details the review process used by MMS prior to undergoing reform, linking to the environmental documents that the agency relied on in authorizing activities in the OCS. Additionally, it identifies the BP oil spill as significant new information that likely requires MMS (now BOEM) to reevaluate the conclusions it reached in prior NEPA reviews, environmental analyses and studies.
Following the release of the CEQ Report, Secretary of the Interior Ken Salazar and BOEM Director Michael R. Bromwich announced that the DOI will undertake a comprehensive review of its NEPA policies and use of categorical exclusions for offshore oil and gas development activities. During this review, BOEM will restrict its use of categorical exclusions to activities involving “limited environmental risk.” Development activities that potentially involve significant environmental risk, and which previously fell within a categorical exclusion, will need individual environmental assessments. A notice of this comprehensive review will be published in the Federal Register. BOEM stated that its new approach to NEPA will take into account the CEQ Report’s recommendations.
BOEM Director Bromwich’s August 16 memo regarding the use of categorical exclusions in the Gulf of Mexico region is available here.
[1] MMS is undergoing reform and reorganization and has been renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEM”).
