Bud's Offshore Energy (BOE)

The U.S. Court of Appeals for the D.C. Circuit ruled that BOEM “unreasonably refused to consider possible deficiencies in environmental enforcement” in their Supplemental EIS for Sales 250 and 251. The court found that BOEM did not adequately consider a 2016 Government Accountability Office (GAO) report that was critical of BSEE’s oversight of offshore activities.

More positively, the court chose not to vacate the sales or the EIS:

Moreover, vacatur would be highly disruptive for the lessees. They have paid millions of dollars to obtain their leases and have acted for some four years in reliance on them—including by investing substantial additional sums and by executing contracts with third parties. Moreover, any redo of the lease sales “would be tainted by prior publication of [the] lessees’ proprietary valuation of the leases” following the original sales.

Comments:

1. How many GAO reports on BSEE or MMS have not been critical of some processes or procedures? None that I can recall.
2. It’s unreasonable to expect BOEM to consider every GAO or other external criticism of the regulatory program in their EIS’s.
3. All of the GAO recommendations in the subject report were process related and were closed (implemented) several years ago.
4. The court exercised good judgement in declining to vacate the sale. Per the decision, the case will be remanded to BOEM for further consideration of the GAO report.