Today, the 5th Circuit Court of Appeals heard oral arguments in the appeal of the District Court’s injunction against the Rice’s whale tract deletions and operating stipulations for Sale 261.
If you want to listen to a recording of these arguments, you can do so at this link. The hearing was brief – only about 45 minutes.
Judging by the comments, it sounds like the Court will reach a decision soon. The Department of the Interior is asking for 37 days after the ruling to organize and hold the sales. The industry attorney seemed comfortable with that, so the sale should be prior to Christmas.
As a result of the order issued by the United States Court of Appeals for the Fifth Circuit on October 26, 2023, in Louisiana v. Haaland (Case No. 23-30666), the Bureau of Ocean Energy Management (BOEM) is postponing Lease Sale 261, which was originally scheduled for September 27, 2023, and later scheduled for November 8, 2023, in response to judicial orders. Until the court rules, BOEM cannot be certain of which areas or stipulations may be included in the sale notice.
Potential bidders in Lease Sale 261 should not submit bids until BOEM provides additional instruction. BOEM will hold any bids already received and will hold the sale after it receives further direction from the Court of Appeals.
The Polar Pioneer was once a good rig for sub-arctic operations, but is not at all similar to the modern drilling units that are used on the deepwater Gulf of Mexico leases that now account for 93% of OCS oil production and 76% of the natural gas. With the exception of the GoM shelf, which is laudably being gleaned by independent producers, the deepwater GoM blocks are all that is left of the once robust US offshore leasing program.
Unless the picture of the scrapped drilling rig is intended to be symbolic of the current state of the leasing program, the photo choice implies inattention to significant technical details. The document does not include a single picture of a deepwater drilling unit or production facility.
Tommy first served as Senior Advisor in the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE), a transition bureau in the wake of the blowout, and was later named Director of the Bureau of Ocean Energy Management (BOEM), one of the two new bureaus that were established to manage the offshore program. He subsequently served as DOI Chief of Staff, and was appointed Deputy Secretary in 2021.
Tommy was a strong leader and an energy moderate. He was highly regarded by the rank and file in BOEMRE and BOEM.
The press release announcing his departure is very professional with appropriate quotes from Secretary Haaland and Tommy. No reasons for his resignation are provided. However, given his balanced perspective on energy development, it would not be wildly speculative to suggest that he might have been a bit uncomfortable working in the policy bubble that produced documents like the latest offshore leasing plan.
BOEM’s five year plan presented one of the few recent opportunities to “vote” solely on the issue of offshore oil and gas leasing. Advocates facilitated the voting process by providing form letters for and against leasing. Both opponents and supporters are quite good at these campaigns, so neither side had a significant organizational advantage.
BOEM summarized (Table A-11 of the plan) the public comments, and I tabulated the 748,719 letters on the attached spreadsheet. The number of letters supporting oil and gas lease sales exceeded those opposed by 72,383 or 21.4%. The supporters campaign also had more breadth in that there were 49 separate campaigns vs. 45 for leasing opponents.
The NRDC demonstrated their organizational clout with the largest single campaign (107,355 letters). Denise Neal, a name that is unfamiliar to me, impressively organized the largest proponent campaign (61,122 letters).
Summary:
letters supporting offshore oil and gas leasing: 410,551
letters opposing offshore oil and gas leasing: 338,168
letter campaigns supporting leasing: 49
letter campaigns opposing leasing: 45
largest campaign: NRDC – 107,355 letters in opposition (32% of all such letters)
largest pro-leasing campaign: Denise Neal – 61,122 letters in support (15% of all letters in support)
reduce energy costs, farming costs, prices of gasoline and other goods
climate
jobs
environmental justice, local communities
energy independence
fisheries
intl competitiveness
marine environment
national security
marine mammals
GoM production is lower in carbon intensity, higher US environmental stds.
fossil fuel dependency, unnecessary to meet energy needs, oppose new fossil fuel investments, leasing “would not reduce gas prices”
domestic oil and gas preferable during transition
oil spill risks
help improve supply chain
air pollution
help address inflation
stockpiling ocean space, energy price gouging
Interesting contradiction: Opponents of Sale 257 argued in Federal Court that BOEM failed to consider the positive GHG effect that higher prices (the logical result of lower production) would have as a result of reduced demand. The judge agreed with that argument and vacated the sale. Some of the same groups have now commented (per the BOEM summary) that additional leasing “would not reduce gas prices.”
BOEM is allowed to delay the sale until Nov. 8, which is consistent with the Federal government’s request.
All other aspects of the Preliminary Injunction remain in place, but the 5th Cir. still needs to hear and decide the government’s appeal of the PI. Monday’s decision was on the emergency motion and not the merits of the Preliminary Injunction.
Assuming the Gulf of Mexico oil and gas lease sale proceeds tomorrow in accordance with Judge Cain’s order, some interesting questions and issues remain:
Will the lingering Rice’s whale issues affect bidding for deepwater leases? Friday’s court order is not a final resolution of those issues, either legally or administratively. While the Rice’s whale stipulation, at the direction of the Federal court, will not be included in the Sale 261 leases, BOEM’s Notice to Lessees and Operators (NTL) includes the same provisions and still stands pending further consultations with NOAA. Although the NTL is a “guidance document” (wink-wink), there are ways of making it stick through the exploration plan approval process. Even without binding requirements, companies might choose to fully comply to minimize legal risks.
When will the next GoM lease sale be held? Will the uncertainty spur or constrain bidding?
BOEM is taking steps to comply with an order issued on September 21, 2023, by the U.S. District Court for the Western District of Louisiana regarding Gulf of Mexico Outer Continental Shelf Oil and Gas Lease Sale 261.
Lease Sale 261 will be conducted on September 27, 2023. In accordance with the court’s order, BOEM will include lease blocks in Lease Sale 261 that were previously excluded due to concerns regarding potential impacts to the Rice’s whale distribution in the Gulf of Mexico.
BOEM is also extending the bid submission period to 3 p.m. CST on September 26, 2023.
The challenged lease term for the expanded Rice’s whale area only arose in a July 2023 district court filing and then appeared in the FNOS for Lease Sale 261 on August 25, 2023—one month before the statutory deadline for the sale. BOEM failed to follow its own procedures by making significant changes to the FNOS, thereby depriving both affected states and the public the opportunity for meaningful review and comment. The procedural error is particularly grave here, because of both the compressed timeline and BOEM’s inexplicable about-face on the scientific record it had previously developed. (p.19)
The challenged provisions inserted into these leases at the eleventh hour, and the acreage withdrawal, are based only on an unexplained change in position by BOEM on a single study a few months after that supplemental EIS. The process followed here looks more like a weaponization of the Endangered Species Act than the collaborative, reasoned approach prescribed by the applicable laws and regulations. (p.22).
According to an affidavit from Shell’s commercial manager, the new restrictions on vessel traffic apply to an area of the northern Gulf that separates Shell’s existing offshore leases from the onshore infrastructure that supports them. Shell Offshore Inc., No. 2:23-cv-1167, at doc. 4, att. 2, ¶¶ 23–27. (p. 23).
Given the shaky justification offered by BOEM, the court cannot find that the challenged provisions are so necessary that withholding them even on a preliminary basis will outweigh the risk of irreparable economic harm shown by plaintiffs. Additionally, “there is generally no public interest in the perpetuation of unlawful agency action.” (p. 26)
Bud's Offshore Energy (BOE) 