A New Statute and Pressure Litigation - Outer Continental Shelf Oil and Gas Leasing in the Courts
One of the most challenging areas for Natural Resources Section(“NRS”) litigation over the years has been that involving cases brought by coastal states and their allies challenging the leasing of oil and gas on the outer continental shelf(“OCS”). First the province of the Marine Resources Section(“MRS”), NRS succeeded to this litigation in 1981 when it absorbed the OCS work of MRS. This litigation has been brought under the Outer Continental Shelf Lands Act Amendments of 1978 (“OCSLAA”), which replaced the theretofore virtually limitless discretion of the Secretary of Interior with judicially reviewable guidelines requiring a considered assessment of the impacts on the coastal states, taking into account the views of those states and their local governments, before scheduling leasing.
The Amendments themselves were brought about by two singular events in our nation’s history, the Santa Barbara oil spill of January 28, 1969, and the Arab oil embargo of 1973, and consistent with those events reflect a mandate for expeditious leasing coupled with environmental protection. See 43 U.S.C. § 1802 (Congressional declaration of purposes). The OCSLAA, together with the original legislation, address every aspect of the leasing process from overall planning to the sale of recovered oil and gas, in successive stages, each with its own legal requirements. See State of Cal. By and Through Brown v. Watt, 668 F.2d 1290, 1297 (D.C. Cir. 1981).
Until recently, litigation, had focused on the first and second stages: the development of a five-year leasing program by the Secretary of the Interior, and the subsequent leasing of identified discrete tracts for exploration and possible development. The second stage litigation has taken NRS attorneys from Alaska to the Gulf of Mexico to New England in controversial, heavily litigated, and highly publicized cases; the first stage litigation involving challenges to the five-year program, has taken place on direct judicial review in the United States Court of Appeals for the District of Columbia Circuit. 43 U.S.C. § 1349(c)(1).
Today, Natural Resources Section attorneys and Appellate attorneys are also called upon frequently to defend the United States in cases involving the third and fourth stages of the offshore oil and gas leasing process: the exploration and development stages. This growing area of litigation developed in the wake of the BP Oil Spill, which began on April 20, 2010, and released nearly five million barrels of oil into the Gulf of Mexico. Groups advocating environmental interests have been quick to challenge the Department of the Interior’s approval of exploration and development plans following the Spill, often based on perceived deficiencies in the Department of the Interior’s compliance with the National Environmental Policy Act or Endangered Species Act. Industry groups, for their part, have challenged various facets of Interior’s regulatory response to the Spill. Those groups seek to limit the degree to which Interior may restrict exploration and development activities, on the theory that Interior is bound by the OCSLAA to ensure the “expeditious” development of oil and gas resources.
Opportunities for case review include the controversial DOI Five Year Program in the Courts where the Environment and Natural Resources Division defended successive Secretaries of the Interior, including Secretaries Andrus and Watt, and an example of an OCS lease sale case that went from the District Court to the Supreme Court in two days.