Editor’s note: A version of this article was originally published by MPA News in February 2018. It is based in part on discussions during a web panel “Impacts of the Trump administration proposed offshore drilling plan on MPAs and regional marine spatial plans” that MEAM co-hosted on February 7, 2018. This version of the article covers impacts on US regional ocean plans and features additional highlights from the web panel.
In early January 2018, the US Bureau of Ocean Energy Management released a draft five-year program to guide leasing of the nation’s Outer Continental Shelf (OCS) areas for oil and gas drilling, from 2019-2024. The draft reflects the views of the administration of President Donald Trump and would make over 90% of the nation’s total OCS area available to exploration and development. By comparison, the current five-year program makes 94% of the OCS off-limits to oil and gas exploration. (The current program covers the years 2017-2022 and will be replaced by the Trump administration’s eventual final plan.) The new proposed plan has met with strong opposition in many states due to potential impacts to marine ecosystems and local economies.
The public comment period on the draft OCS program closed on March 9, 2018, and there will an additional 90-day period for public comment as the new program is developed. The program may change substantially as it goes through this review process, but we wanted to provide an overview on what the current draft plan could mean for US marine protected areas (MPAs) and regional ocean plans.
What does the draft OCS program say about opening MPAs to drilling?
President Trump initiated the development of the draft OCS plan with an Executive Order in April 2017, which requested a new OCS leasing program to “put the energy needs of American families and businesses first.” In addition to calling for a new, more expansive leasing program, the order directed a review of the energy production potential of all National Marine Sanctuaries and Marine National Monuments designated or expanded since 2007. (Department of Commerce Secretary Wilbur Ross has since delivered such a review to the administration, although the contents of that review have not yet been made public.) The Executive Order also revoked the 291,000-km2 Northern Bering Sea Climate Resilience Area, which was designated by former President Barack Obama in December 2016 as off-limits to petroleum exploitation.
The draft OCS program states that the following currently protected areas would be exempt from petroleum exploitation from 2019-2024:
- Any National Marine Sanctuaries “designated as of July 14, 2008”
- Northeast Canyons and Seamounts Marine National Monument
Regarding the National Marine Sanctuaries, technically none of them have been designated since July 2008, suggesting they should be safe. However, a few of them – like the Greater Farallones National Marine Sanctuary in California – have been expanded since then, and it remains unclear whether the Trump administration would consider their expanded areas as exempt from leasing, too.
The 12,720-km2 Northeast Canyons and Seamounts Marine National Monument, although given a reprieve from oil/gas exploitation in the draft Bureau of Offshore Energy Management OCS program, has been recommended for reopening to commercial fishing by US Department of Interior Secretary Ryan Zinke, and awaits a decision on that by President Trump. It is currently closed to all commercial resource extraction. No other Marine National Monuments are mentioned in the draft OCS program. They are all in US Western Pacific waters – Hawaii and territories farther south and west – which are believed to be low in petroleum resources and are not included in the draft Bureau of Ocean Energy Management program.
So does this mean that National Marine Sanctuaries and most Marine National Monuments would or would not be opened to drilling under this draft program?
This is unclear. MPA News co-hosted a web-based panel discussion on the draft OCS program on February 7, 2018, and panelists indicated they saw ways the Trump Administration could still open National Marine Sanctuaries and Marine National Monuments to drilling. (Watch a recording of the web-based panel discussion here.)
Panelist Richard Charter of the Ocean Foundation noted that the review by Commerce Secretary Ross could result in recommendations to rescind part or all of some Sanctuaries in the name of petroleum exploitation or other issues. “The concern is that any National Marine Sanctuary that might be rescinded, or any part of one that might be rescinded, instantly finds itself up for OCS oil and gas leasing in this five-year program,” said Charter.
Panelist Jay Austin of the Environmental Law Institute said the same could be the case for Northeast Canyons and Seamounts Marine National Monument. He cited President Trump’s plan to reduce the size of two terrestrial national monuments, as well as Secretary Zinke’s recommendation to open up Northeast Canyons to commercial fishing. “The trend is definitely toward reducing areas and protections for these recently designated monument areas,” said Austin.
Are there legal obstacles to opening these MPAs to drilling?
As discussed by our panelists, there are several legal obstacles. In the process of being designated, each National Marine Sanctuary underwent years of public hearings, US Congressional approval, and some state-level approval processes as well. National Marine Sanctuaries off the state of California, for example, all had to be found consistent under the state’s Coastal Zone Management Act with the state’s coastal plan. So undoing that would likely need to be found consistent as well, which seems unlikely. “I think there’s probably six or seven layers of litigation there if something were to happen in terms of a rollback,” said Charter.
Austin noted that the Antiquities Act of 1906, under which US Presidents designate national monuments, remains unclear on whether future presidents can undo or even downsize their predecessors’ designations. “There's an issue about whether they can reduce the size or relax restrictions that were in the monument proclamations,” he said. “That has been done in the past but the question of whether the Act actually authorizes it is still open.” He noted that Trump’s downsizing of the two terrestrial monuments has already been challenged in court by environmental groups and indigenous tribes. “Some of these questions are going to get tested for the first time. And that in turn may establish how far the administration is willing to try to go with the marine monuments.” (Austin noted that Trump’s revocation of Obama’s Bering Sea closure is also now being contested in court by conservation groups.)
There is also the issue of state waters. In the US in most cases, the waters of individual states extend 3 nm from shore. So oil and gas drilled offshore in federal waters must typically transit state waters to get to onshore facilities and pipelines. States that are opposed to new offshore drilling off their coasts – like California, for example – could make things difficult for industry. “In California in the mid-1980s, 24 local communities adopted ordinances that either banned outright or put to a vote of the local people the construction of any onshore facilities for offshore oil and gas,” said Charter. “Those were challenged in court by the oil industry and all of them survived.”
On February 7, 2018, the California State Lands Commission notified the Trump Administration that the state would not approve new pipelines or allow the use of existing pipelines to transport oil from new leases ashore. The Commission chair said, “I am resolved that not a single drop from Trump's new oil plan ever makes landfall in California.”
Where does the petroleum industry want to drill?
Panelist Tim Charters of the National Ocean Industries Association, which represents offshore energy producers and other sectors, said that the MPA subject is making the discussion more difficult. “I would certainly prefer to spend a lot less time talking about Sanctuaries and focus instead on areas that have not obviously had the same level of protection, but which have resources that are available to benefit the American people,” he said.
That being said, Charters acknowledges that California – which has four National Marine Sanctuaries – would be an attractive place for the petroleum industry to expand its drilling efforts: there are proven offshore petroleum reserves there, and existing infrastructure onshore. He says the state could save significant money by helping to produce more oil off its own coast rather than importing oil from overseas.
Charters also discussed other areas that might be of interest to the oil and gas industry for exploration and drilling. “The eastern Gulf of Mexico probably has the most prospects, both from an infrastructure [perspective] and a knowledge base of what may be available,” he said. He also mentioned that the northern coast of Alaska “clearly remains a priority area to examine” and the mid-Atlantic (for oil and gas) and the North Atlantic (for gas) would be intriguing to examine. “We haven't looked at the Atlantic and what may or may not be there [in generations]… It’s going to take some time to figure out what's actually there once the process starts rolling,” he said.
What about the US regional ocean plans?
The Northeast and Mid-Atlantic regions of the US adopted regional ocean plans in 2016. According to panelist Sarah Winter Whelan, director of ocean policy with the American Littoral Society, the plans are a tool to better integrate consideration of ocean ecosystems into state and federal agencies and tribal nation management of ocean uses. When the Northeast and Mid-Atlantic regions drafted their plans, they focused on current and emerging ocean uses. Since oil and gas leasing in federal waters was not expected, Whelan said, “neither region explicitly deals with oil and gas” as a potential use of the region's waters.
What are the next steps for the draft OCS plan?
Another draft of the five-year OCS program (the “proposed program”) will be created and made available for public comment in the coming year. After that, a proposed final plan will be created and made available for presidential and congressional comment. And after the final plan is released, there are likely to be lawsuits. “You can kick off the process with whatever kind of rhetoric you want,” said Austin. “But ultimately the plan gets written, and then it gets reviewed in court.”
Additional highlights from the February 7 web panel
This plan, like a lot of things, has an ‘in-your-face’ character to it. So the question becomes, ‘Can they do what they want to do?’ And I think that ultimately gets decided in court. They can say, ‘we want to flip the script from 90% of everything is off-limits to 90% is open for development,’ but that's not much of a principle by itself. You can call that ‘energy dominance,’ and maybe that's a principle by itself. But it's sort of a thin one, given what markets have already accomplished.
“[T]o be fair to the people who drafted the proposal, we know the administration isn't into incremental change. They don't feel bound by history or precedent or long-term thinking – they're very transactional. So this is their idea of a ‘strong opening bid,’ and that's probably okay under OCSLA [the Outer Continental Shelf Lands Act]. The Secretary gets to balance a lot of different factors… I think the only problem with some of the rhetoric that's out there, or having too freewheeling of a process, is that it might get you in trouble at the judicial review stage.
—Jay Austin, Environmental Law Institute, in the February 7, 2018 web panel “Impacts of the Trump administration proposed offshore drilling plan on MPAs and regional marine spatial plans”. Read more of Jay Austin’s commentary on the draft OCS plan.
[The April 2017 Executive order] makes it extremely difficult, if not almost impossible, to make any new National Marine Sanctuary designations, even through the National Marine Sanctuaries Act’s legitimate process. We're seeing a rollback of the laws that protect America's oceans pretty much wholesale across the board. And I don't think the American public, from what I can tell, is anywhere near ready for that. I don't think the industry benefits from it because it makes the issues surrounding ocean management so much more contentious. And I would suggest that we had a pretty good thing going. We realize that we have a new administration, but that doesn't really justify blowing up the way… Republicans and Democrats have [historically] figured out how to manage the oceans. It's not easy on the best of days, but there’s no need to make it impossible, which is what I think the administration has now done.
—-Richard Charter, The Ocean Foundation, in the February 7, 2018 web panel “Impacts of the Trump administration proposed offshore drilling plan on MPAs and regional marine spatial plans”
Want to comment on this plan? Although the formal comment period on the draft OCS plan has ended, US citizens can still contact their elected officials at the local, state, and national levels to comment on the plan.
Photo credit: Oil Rig off California Coast. Maria Petueli/Marine Photobank.