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01/5/2018

The Outer Continental Shelf Oil and Gas Leasing Program

In August of 2016, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act (“FOIA”) request, seeking the following information about the Outer Continental Shelf (“OCS”):

Because of the agency’s failure to release records responsive to this request, CoA Institute filed a FOIA lawsuit on November 11, 2016. Recently, the Bureau of Ocean Energy Management (“BOEM”) provided its 10th and final production. While CoA Institute is still in active litigation regarding this request, considering the new administration and its priorities, we thought it of value to discuss our findings to date. However, to fully understand the process, we believe that some background on the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C., is necessary.

The Outer Continental Shelf and OCSLA background

The outer continental shelf is made up of “all submerged lands lying seaward and outside of the area of lands beneath navigable waters…and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” OCSLA was enacted on August 7, 1953 and governs the policies and procedures related to the OCS. Under  OCSLA, the Secretary of Interior (the “Secretary”) is responsible for the administration of mineral exploration as well as other OCS development (i.e., wind energy).[1] Further, through OCSLA, the Secretary may grant leases to the highest qualified responsible bidder based on sealed competitive bids.[2] OCSLA also provides guidelines for implementing an OCS oil and gas exploration and development program.[3] This program, the Outer Continental Shelf Oil and Gas Leasing Program, is commonly referred to as the “Five-Year Program”.

Specifications under the Five-Year Program

As provided in the OCSLA, the Five-Year Program shall have a schedule that indicates as precisely as possible, the size, timing and location of leasing activity best suited for national energy needs during the five-year period following its approval or re-approval.[4] In reviewing the five-year program, the BOEM looks at a variety of economic and environmental factors. The timing and location of exploration, development, and production of oil and gas on the OCS shall be based on consideration of eight factors.

These factors are:

“(A) existing information concerning the geographical, geological, and ecological characteristics of such regions; (B) an equitable sharing of developmental benefits and environmental risks among the various regions; (C) the location of such regions with respect to, and the relative needs of, regional and national energy markets; (D) the location of such regions with respect to other uses of the sea and seabed, including fisheries, navigation, existing or proposed sea-lanes, potential sites of Deepwater ports, and other anticipated uses of the resources and space of the outer Continental Shelf; (E) the interest of potential oil and gas producers in the development of oil and gas resources as indicated by exploration or nomination; (F) laws, goals, and policies of affected States which have been specifically identified by the Governors of such States as relevant matters for the Secretary’s consideration; (G) the relative environmental sensitivity and marine productivity of different areas of the outer Continental Shelf; and (H) relevant environmental and predictive information for different areas of the outer Continental Shelf.”

Further, the Five-Year Program provides that the Secretary shall request and contemplate input from federal agencies and the Governor of any State that could be affected under the proposed leasing program. Suggestions from local government executives in states that may be affected, which have been previously mentioned to the Governor of such State and any other person may also be considered. Under 43 U.S.C. §1331,  the term “person” includes, in addition to a natural person, an association, a State, a political subdivision of a State, or a private, public, or municipal corporation.

The Five-Year Program “process includes three separate comment periods, two separate draft proposals, a final draft proposal, a final secretarial proposal, and development of environmental impact statement (EIS).” This process, takes approximately two and a half years to complete. As mentioned above, input from federal agencies, state and local government, and any other person, may be considered. After the Secretary approves the program, the Proposed Final Five-Year Program is sent to the President and Congress. After at least sixty days, the Secretary may approve the program. The Department of Interior cannot offer an area for lease without it being included in an approved Five-Year Program.

The Secretary shall review the leasing program approved under this section at least once a year. After Secretarial approval, the geographic scope of a lease sale area can be narrowed, cancelled, or delayed without the development of a new program. The Secretary shall, by regulation, establish procedures for various steps in the management process. Such procedures will apply to various activities, including any significant revision or reapproval of the leasing program.

This series will continue next week with a comparison between the requirements outlined above and the process that took place during the 2017-2022 planning process.

Any questions, commentary, or criticisms? Please email us at kara.mckenna@causeofaction.org and/or katie.parr@causeofaction.org

Katie Parr is a law clerk and Kara E. McKenna is a counsel at Cause of Action Institute.

[1] Bureau of Energy Management, BOEM, https://www.boem.gov/OCS-Lands-Act-History/ (last visited January 3, 2018).

[2] Id.

[3] Id.

[4] Id.

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12/19/2017

Politicizing FOIA review at the EPA and Interior

The Washington Post reported last week that “high-level officials” at the Environmental Protection Agency (“EPA”) and the Department of the Interior (“DOI”) have started to “keep closer tabs” on incoming Freedom of Information Act (“FOIA”) requests for records that may be embarrassing or politically damaging to the Trump Administration.  Whether by deliberately delaying responses or conducting pre-production review of responsive records, non-career officials have been accused of politicizing FOIA.

Politicizing FOIA is Not New

Although concern over the improper interference by political appointees in the administration of the FOIA is justified, the practice did not originate with President Trump.  For example, according to two DOI Inspector General reports—dated September 2015 and October 2010—political appointees at Interior have long been routinely made aware of “selected” FOIA requests, including those “currently in litigation” or concerning “high profile or sensitive matters.”  In some instances, requests (including those from news media requesters) were “considerably delayed . . . possibly due to political involvement.”  Moreover, the EPA Inspector General, in August 2015 and January 2011, reported that EPA regulations specifically permitted some political appointees—including the agency’s Chief FOIA Officer and the authorized disclosure official in the Administrator’s Office—to participate in approving requests and redacting records.

The Obama-era

The truth is that politicizing FOIA reached its zenith under the Obama Administration.  Despite a professed commitment to transparency, President Obama introduced the pernicious practice of “White House equities” and “sensitive review” procedures at various agencies, including the Department of Treasury, the Department of Housing and Urban Development, the EPA, the State Department, the Department of Veteran Affairs, the Department of Defense, and the Department of Homeland Security.  As part of “sensitive review,” non-career political appointees direct career FOIA staff to consult with them whenever a FOIA request could elicit media attention or potentially embarrass the White House.  It is more than a bit ironic that the Washington Post—which previously described the Obama Administration as “one of the most secretive” ever because of its historic “stonewalling or rejecting” of FOIA requests—would now forget, or least fail to mention, this long, bipartisan history of presidents abusing transparency laws to their advantage.

Of course, none of this means that the Trump Administration is adhering to best practices.  It stands to reason that FOIA politicization, and a lack of overall commitment to transparency, continues.  For example, “White House equities” review persists.  In July 2017, the General Services Administration released to CoA Institute a previously-secret White House memo detailing those procedures, thus suggesting they are still in place.  Although not directly related to the FOIA, the White House also appears to have interfered with how agencies respond to congressional oversight requests.  And, most recently, CoA Institute has investigated the National Oceanic and Atmospheric Administration’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump “transition.”

The current Administration is not alone in politicizing FOIA.  Where political appointees are interfering with the disclosure of records, they are continuing a long tradition of obstructing the public’s right to access government information.  To turn the issue into a partisan one—of Trump versus the EPA #Resistance, of #DrainTheSwamp versus the “main stream” media—obscures the underlying problem and makes it more difficult to reach consensus on how to fix it.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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06/7/2017

Antiquities Act Review – Bears Ears and Beyond

We recently began our series of blog posts examining the history, purpose, limitations, and the Trump administration’s review of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss the status of President Trump’s Executive Order on the Review of Designations Under the Antiquities Act.

As discussed in our previous posts, the Antiquities Act permits a president to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. To protect these objects, the President also is permitted to “reserve parcels of land as part of the national monument” subject to the limitation that “the parcels are confined to the smallest area compatible with proper care and management of the objects to be protected.[1]

On April 26, 2017, President Trump signed the Executive Order on the Review of Designations Under the Antiquities Act (“Antiquactities Act E.O.”), which directs the Secretary of the Interior to review all national monuments created by the Antiquities Act since January 1, 1996 that measure more than 100,000 acres or lacked appropriate public input. In addition, review of some Marine National Monuments are the subject of section 4 of the April 28, 2017 Executive Order on Implementing an America-First Offshore Energy Strategy (“Offshore Energy E.O.”).

In conducting its review of these national monuments, the Department of Interior is seeking public comments related to the seven considerations set forth in the Antiquities Act E.O.: (1) whether the monument designations are limited to “the smallest area compatible with the proper care and management of the object to be protected”; (2) whether the designated lands are “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest” within the meaning of the Act; (3) the impacts of designations on the use of Federal lands; (4) the impacts of designations on non-Federal inholdings or lands near the monument boundaries; (5) concerns of “State, tribal, and local governments affected by the designation”; (6) whether there are sufficient Federal resources to manage the designated lands; and (7) other factors deemed appropriate by the Secretary.

Comments related to the Bears Ears National Monument in Utah closed on May 26, 2017. Comments related to all other national monuments are open until July 10, 2017. Pursuant to the Antiquities Act E.O., the Secretary of the Interior must provide an interim report regarding Bears Ears by June 10, 2017 and a final report on all monuments under review by August 24, 2017. The Offshore Energy E.O. requires a final report from the Secretary of Commerce regarding certain Marine National Monuments by October 25, 2017.

Cause of Action Institute (“CoA Institute”) submitted comments regarding Bears Ear National Monument on May 26, 2107. Our comments, which can be read here focused on several key issues, such as the lack of transparency in the monument designation process and the lack of sufficient Federal resources to manage the designated lands.

Several days after submitting our comments, CoA Institute received the first installment, totaling some 1,300 records, in response to one of our two Freedom of Information Act (“FOIA”) requests seeking records related to Bears Ears National Monument. That FOIA request was based on conversations with local stakeholders and publicly available reports and sought, among other things, records relating to incidents of looting, vandalism, and damage to antiquities located on Bureau of Land Management-held (“BLM”) lands in San Juan County, Utah that ultimately were included as part of Bears Ears National Monument on December 28, 2016.

Several of the responsive records released to CoA Institute substantiate the concerns we raised in our May 26, 2017 comments. First, in regards to Federal resources to manage the designated lands, the records demonstrate that there are, at most, only two BLM rangers who patrol the entire million-plus acres of BLM-administered land in San Juan County. This is roughly the same number of BLM Rangers who patrol the approximately 2.5 million acres in Grand Staircase Escalante National Monument and the BLM Kanab Field Office.

Read the released emails here

Although Bears Ears also has a significant number of volunteers who act as site stewards, the released records show that patrolling these vast resources is complicated. For example, responding to incidents that occur at archaeological sites requires not just BLM Rangers, but also BLM archaeologists to assess damage and remediate as necessary. In some instances, Rangers and archaeologists can only access the damaged sites with the aid of climbing equipment. Because BLM does not have policies or certifications related to rock climbing or repelling and thus may not have qualified personnel on site, some of these investigations have been barred from proceeding. Resources to patrol and protect this area were and continue to be an issue, as stated by a BLM employee in response to a question assuming that monument designation would confer additional law enforcement resources: “Funding and resources are separate issues from land use designations. They don’t always go hand in hand.”

Read the released emails here

In our comments regarding Bears Ears, CoA Institute also highlighted the lack of transparency in the monument designation process and suggested several remedies for addressing transparency concerns moving forward, including releasing information regarding incidents of looting and vandalism of antiquities on the lands reserved as part of the monument. The documents released to us last week illustrate why this is necessary. In the months prior to the creation of the Bears Ears National Monument, there were conflicting reports regarding the number of incidents of looting and vandalism in the proposed monument area. Individuals on both sides of the monument advocacy efforts used these conflicting reports to their own ends, adding additional confusion to an already heated debate.

Read the released emails here

The confusion regarding incident reports was also apparent within the BLM itself—not because BLM did not have the data regarding the incidents, but rather because it did not have an efficient, timely reporting mechanism in place to make such information easily retrievable.

As the Secretary of the Interior continues his review of recent monument designations, CoA Institute will continue to examine and release records relevant to this effort as they are received.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] 54 U.S.C. § 320301 (2014)

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