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Posts Tagged ‘DC Court of Appeals’

5 Year OCS Leasing Plan: Legal appeals filed right on cue!

Posted in energy policy, Gulf of Mexico, Offshore Energy - General, tagged , , , , on February 15, 2024| Leave a Comment »

Expected appeals by API (first attachment) and Earth Justice et al (second attachment) were filed on 12 Feb, 60 days after Secretary Haaland approved the 5 year plan and thus the first day appeals could be filed pursuant to 43 U.S. Code § 1349.

The statute (language below) requires that leasing program appeals be filed in the DC Court of Appeals. API would have undoubtedly rather filed in Louisiana while Earth Justice is likely content with the DC venue.

43 U.S. Code § 1349 (c)(1) Any action of the Secretary to approve a leasing program pursuant to section 1344 of this title shall be subject to judicial review only in the United States Court of Appeal for the District of Columbia.

The filings don’t include any arguments except for API’s general assertion that “the Record of Decision and Approval is arbitrary, capricious, and not in accordance with law.”

Earth Justice presumably filed for defensive reasons given that the 5 year plan has the fewest lease sales in history and would seem to be favorable to their point of view.

API will likely contend that the plan is not balanced as require by the statue:

43 U.S. Code § 1344 (a)(3)The Secretary shall select the timing and location of leasing, to the maximum extent practicable, so as to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone.

We’ll see how this plays out.

api-offshore-oil-lawsuitDownload
earthjustice-offshore-oil-challengeDownload

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Mixed DC Appeals Court decision on Lease Sales 250 and 251

Posted in Offshore Energy - General, Regulation, tagged , , , on September 2, 2022| Leave a Comment »

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.

 

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