Offshore Drilling Plan Under Fire: Zinke May Have Violated Law, Senator Says

The Trump administration wanted to open 90 percent of the U.S. coasts to oil and gas drilling. With states opposed and potential legal challenges, can it succeed?

California, where drilling rigs have caused oil spills in the past, is one of several states calling on the government to remove it from the federal drilling plan. Credit: Bureau of Safety and Environmental Enforcement

Coastal states are speaking out against the Interior Department plan to greatly expand offshore drilling, and they have several ways to fight it. Credit: Steven Straiton/CC-BY-2.0

Updated Jan. 11 with senator questioning legality of Interior secretary's actions.

It took less than a week for cracks to develop in the Trump administration's plan to open almost the entire offshore area of the United States to oil and gas drilling.

On Tuesday evening—five days after releasing a draft five-year leasing plan that is unprecedented in scale—Interior Secretary Ryan Zinke announced on Twitter that he was removing Florida from the plan.

"After talking with @FLGovScott, I am removing #Florida from the draft offshore plan," he tweeted. In another tweet, he wrote, "Local voice matters."

That decision set off an uproar along the coasts—and it could open Zinke's plan to legal challenges, as well as political ones.

On Thursday, the top Democrat on a U.S. Senate committee that oversees the Interior Department said Zinke's actions may have violated requirements of a law governing federal offshore areas. She requested that all correspondence between the department and the State of Florida regarding the drilling plan be turned over to the committee for review. 

Ten U.S. Senators from New England also introduced legislation Thursday to bar offshore drilling along their stretch of the East Coast. Officials from New Jersey, New York, Delaware, Maryland, Virginia, North Carolina, South Carolina, California, Oregon and Washington have voiced opposition to drilling off their coasts, and lawmakers from both political parties have called for their states to be removed from Zinke's plan. 

Andrew Cuomo tweet: New York doesn't want drilling off our coast, either.
California Attorney General Xavier Becerra tweet: If that's your standard, we, too, should be removed from your list. Immediately.
Oregon Gov. Kate Brown's tweet: How about doing the same for Oregon?

Zinke's startling concession to Scott was seen by many as a politically inspired gift aimed at bolstering his chances of being elected to the U.S. Senate, where President Donald Trump is keen to rebuild the razor-thin Republican majority. Trump reportedly would like Scott to run against the incumbent, Democratic Sen. Bill Nelson, a vocal opponent of drilling.

The extensive Zinke plan, which called for opening more than 90 percent of the Outer Continental Shelf for oil and gas leasing and scheduling 47 lease sales between 2019 and 2024, already was ripe for lawsuits, according to David Hayes, who was the Interior Department's deputy secretary and chief operating officer at points in the Clinton and Obama administrations.

"This proposal mirrors past proposals that have run into a buzzsaw of state opposition," he said. Zinke may have made things even worse for himself, though. His decision to remove Florida "should have his lawyers cringing," Hayes said. "It smacks of an impulsive, undisciplined, arbitrary process."

Part of Zinke's justification for taking Florida off the table was that it "is unique and its coasts are heavily reliant on tourism as an economic driver."

California Rep. Ted Lieu was among those on Twitter to take umbrage at that. "Taking Florida off the table for offshore drilling but not California violates the legal standard of arbitrary and capricious agency action," Lieu wrote in a tweet. "California and other coastal states also rely on our beautiful coasts for tourism and our economy. I believe courts will strike this down."

Washington Sen. Maria Cantwell said Thursday that Zinke's "decision to give a last-minute exemption to Florida while ignoring over 10 other states who followed the proper legal procedures is a waste of taxpayer dollars and may violate the requirements of the Outer Continental Shelf Lands Act." As the top Democrat on the Senate Energy and Natural Resources Committee, she requested all correspondence between the Interior Department and the State of Florida regarding the drilling plan "so we can conduct our oversight responsibilities." 

On the East Coast, Maine Sens. Susan Collins, a Republican, and Angus King, an independent, co-sponsored the legislation to block drilling off New England. "The waters off Maine's coast provide a healthy ecosystem for our state's fisheries and support a vigorous tourism industry, both of which support thousands of jobs and generate billions of dollars in revenue for Maine each year," they wrote in a statement. "With our environment so closely tied to the vitality of Maine's economy, we cannot risk the health of our ocean on a shortsighted proposal that could impact Maine people for generations."

An earlier letter signed by 37 Democratic senators and sent to Zinke on Tuesday described the draft proposal as "an ill-advised effort to circumvent public and scientific input" and said "we object to sacrificing public trust, community safety and economic security for the interests of the oil industry."

The plan was issued on the heels of the Trump administration's move to weaken oil spill safeguards that were put in place after the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. Those protections "really didn't go far enough," said Oceana Campaigns Director Diane Hoskins. "Now the administration wants to roll these existing safeguards back while expanding the areas where companies can drill. It's a recipe for disaster."

What Can States Do?

Five-year leasing plans are federally required to consider the laws, goals and policies of affected states. "These are factors that must be considered," Hayes said. "But it doesn't mean [governors] have a veto authority."

But, should Zinke continue against the states' wishes, they do have legal options, said Sam Ori, executive director at the University of Chicago's Energy Policy Institute.

While the federal government controls the waters of the Outer Continental Shelf, where any drilling would take place, the states have jurisdiction over their coasts and the first several miles of ocean. That means they could stand in the way of any pipelines needed to bring oil and gas resources onshore.

The Coastal Zone Management Act also allows states to slow the leasing process from the get-go and would provide ample opportunity for lawsuits, "forcing oil companies to tie up capital for decades with no clear return," Ori wrote in an analysis for Forbes.

With multiple phases of environmental review cooked into the federally mandated process for approving the plan, environmental groups have time to sue and slow the process further.

Given the scope of the plan, Ori said the administration must have known it was unlikely for it to go into effect as written. "It doesn't seem to me to be focused on necessarily achieving things that are realistic," he said.

Hayes agreed. "This is a completely unrealistic pander to those who are pushing to drill anywhere, all the time, regardless of environmental sensitivity," he said.

A Long Road Ahead

Getting a new five-year plan implemented is easier said than done. The federal Outer Continental Shelf Lands Act requires a series of environmental reviews and public comment periods, meaning no lease sales will be happening soon.

Here's what has to happen:

  • The draft proposed plan was published on Monday in the Federal Register. That kicked off a 60-day public comment period. Next week, the first public hearings will be held in Annapolis, Maryland, and Jackson, Mississippi, and hearings continue through February, with meetings across the affected states.
  • At the same time, the Bureau of Oceans and Energy Management (BOEM) has to prepare a draft Programmatic Environmental Impact Statement, which will look at any environmental issues associated with the planned offshore drilling areas.
  • BOEM will then review and analyze the comments on the draft proposed plan, which will get incorporated into an updated plan proposal and draft environmental impact statement. Then there's a 90-day public comment period.
  • After that, BOEM will review and analyze all of the comments that come in and prepare a final environmental impact statement and a final five-year leasing plan. Those documents go to the president and Congress for at least 60 days, after which the Interior secretary can approve the final plan and issue a record of decision.

"The entire process usually takes two or three years," Hayes said. "BOEM's website optimistically indicates that the agency expects to issue a final decision by the end of 2019."

One thing this timeline doesn't take into account: state opposition and lawsuits. Federal law requires that regulators take the opinions and concerns of states into account. Based on the response so far, that could spell trouble.

Are Oil Companies Even Interested?

When Zinke released the new plan last week, he was delivering on a promise Donald Trump had made early in his presidency: to replace the existing five-year leasing plan developed by the Obama administration and encourage the exploration and development of oil in the federally owned waters of the Outer Continental Shelf.

In theory, this plan could bring drilling rigs to the waters of the Eastern Seaboard, up the Pacific Coast, into the Alaskan Arctic and through the eastern waters of the Gulf of Mexico, which have been off-limits in the past. But will it?

Ori said it's unlikely. "Oil companies have lots of places they can invest, most obviously onshore in Texas, North Dakota and Colorado—the U.S. shale resources," he said.

What Does the U.S. Government Get from Offshore Drilling?

When Zinke announced the offshore drilling plan, he said he aimed to bring federal revenue from lease sales back to 2008 levels, when the government brought in a record $18 billion as it added new leases in Alaska and the central Gulf of Mexico. But that year was an anomaly, Ori said. From 2000 to now, most years have brought in $4 billion to $6 billion. That year, a perfect storm of high oil prices and dwindling available reserves in politically stable countries made the U.S. lease sale particularly appealing.

"You have to think of all the combination of things that existed back then. None of those things exist anymore," he said.

With lower oil prices acting as a deterrent for exploring new areas, Ori said, the far more logical place for companies to turn is onshore shale deposits, where there is existing infrastructure and proven reserves.

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