Casting Oil Upon the Waters: The House Drilling Bills
Posted May 2, 2011 in U.S. Law and Policy
This week, the House could vote on three bills to expand offshore oil and gas drilling. It is remarkable enough that the House would take up such measures before Congress has done a thing to make drilling safer. But what is truly astounding about these bills is that they would actually make the system that governs offshore drilling weaker than it was before the disaster in the Gulf of Mexico. This is legislation that should give pause even to the most ardent proponents of offshore drilling.
These bills are more than a Big Oil wish list; they are a sort of oil utopia – and they could make sense only in a utopian world in which oil spills could never ever happen, in which there are never conflicts between the oil industry and other economic interests like fishing and tourism, and in which oil companies always take environmental and safety concerns fully into account. It’s as if Rep. Doc Hastings (R-WA), the bills’ sponsor, set out to prove how apt it is to talk about the U.S. “addiction” to oil. Under these bills, the U.S. would truly be acting like an addict, willing to sell out any principle, dispense with any caution, endanger any asset to get its next fix. Again, these bills ought to be seen as irresponsible even by supporters of increased drilling.
So what would the bills actually do? Let’s start with the most egregious one of all, H.R. 1231. The bill is designed to ensure that oil drilling occurs off the East Coast from Maine to North Carolina, off the coast of Southern California and in the Arctic Ocean and Bristol Bay. That sweeping decision alone is breathtaking. But the bill does this by mandating that at least half the unleased area in each of those regions be put up for lease sales each and every time the government puts outer continental shelf territory up for lease. (Offshore territory available for lease is identified in five-year plans; the next one will cover 2012-2017.)
Now think about that. The bill doesn’t simply reiterate that the government could make these areas available for oil drilling. It doesn’t just say that the government has to figure out which parts of those coastal waters would be appropriate for oil drilling and open those. It doesn’t even say that this administration has to open up a set amount of acreage for oil drilling, regardless of the specific concerns in any region. It says that, in perpetuity, each time waters are opened to drilling, at least half of the available acreage in each area needs to be opened up to drilling – until, presumably, every bit of acreage is being drilled.
This is replacing oil policy with a kind of oil mania. Under this bill, neither this administration nor any future one could ever decide to limit drilling off the coast of New England, the Mid-Atlantic states, Southern California or Alaska because of economic or environmental concerns. No administration could decide to “take a breather” before opening up more leases to see how previously permitted activities were working out, or because there had been a spill, or because there was unexpected damage to the ecology or tourism, or because a state objected, or because there was no additional capacity to respond to an emergency, or because the agency overseeing drilling was too overwhelmed to properly review proposals. At least half the remaining unleased territory would have to be put up for leasing each and every time no matter what had happened, no matter what could happen, no matter what concerns states or scientists or fishermen or federal officials might have.
The bill goes beyond earlier proposals to open up drilling, many of which had at least limited provisions for states to opt out of drilling off their states and which were not as prescriptive.
The bill is titled “Reversing President Obama’s Offshore Moratorium Act,” demonstrating that partisan animus is behind this bill as much as any interest in energy. But the title is a misnomer in any event. The bill ought to be called “A bill to prevent any president or other official or the public from ever deciding not to drill for oil everywhere, no matter what the facts on the ground are.” Not so pithy, perhaps, but it’s what the bill actually does.
The other two bills, while less sweeping – it would be just about impossible to be more sweeping – are based on the same compulsion to remove any judgment, discretion and balance from drilling decisions.
H.R. 1230 mandates that the government conduct three lease sales in the next year – for oil and gas drilling in the central and western Gulf of Mexico and off the coast of Virginia. These are areas the administration decided not to lease after the Deepwater Horizon disaster. But as with H.R. 1231, the problem is not just opening up areas to oil and gas drilling. The bill short-circuits the environmental review for these sales.
Specifically, the bill blocks court review of the Environmental Impact Statements (EIS) prepared for the lease sales in the Gulf of Mexico. It does this by having Congress deem that the EISs have met the requirements of the National Environmental Policy Act. This deeming, of course, is simply a political judgment, based on nothing more than the wish that it be so. (The Virginia lease is treated differently, apparently because the military may have concerns with it. For the sponsors, court reviews are only legitimate when someone they like is bringing a lawsuit.)
Shutting down the courts is particularly wrongheaded in this instance for two reasons. First, the environmental review for these leases was done by the pre-Gulf disaster Minerals Management Service, an agency notorious for its close relationship to the oil industry. Second, these environmental reviews did not take into account the damage caused by the Deepwater Horizon blowout (and therefore what could happen under these leases) because such a disaster was thought of as impossible at the time.
So under H.R. 1230, what is Congress’ reaction to the Gulf disaster? It is mandating that the administration and the courts act as if it had never happened. This ought to be a dictionary definition of irresponsibility.
H.R. 1229 is another effort to make the review of oil and gas drilling weaker than it was before the Gulf disaster. The bill sets an arbitrary time limit of 30 days for reviewing drilling permit applications and grants automatic approvals if no action has been taken within 60 days. Was the message of the Gulf spill to ensure that safety reviews be shorter and conducted “under the gun”? In fact, the National Oil Spill Commission recommended that Congress extend another 30-day review limit – and that one didn’t even have an automatic approval provision.
H.R. 1229 also tries to make it harder to challenge any oil drilling decision related to the Gulf of Mexico by eliminating the ability of those who challenge the federal government successfully from having their legal fees reimbursed. Current law does not encourage frivolous suits – the fees are only paid if the suit is successful – but it does enable citizen groups to challenge bad decisions. And H.R. 1229 also has provisions to stack the decks against any plaintiff who still manages to sue.
So the first bills on drilling to come before the Republican-controlled House since the Gulf disaster try to wish away that catastrophic event. They would open almost all the waters of the U.S. to oil drilling; prevent any judgments from being made about where and when and how to drill; tie the hands of this and future administrations and the courts; and weaken the system of safety and environmental review. Quite a legacy.
As my colleagues have noted, additional drilling will have no impact on gasoline prices. This is not a solution to our problems, it is a way to create new ones. This is a bill written by people who are so hell-bent on drilling that they can’t even admit that there are consequences to be considered. This is not policymaking; it’s a new kind of magical thinking.