Guest “Time to kick some @$$!” by David Middleton
This is a continuation of the Rice’s whales saga.
A quick recap
One of the first things Biden did after occupying the Oval Office was to halt oil & gas lease sales in the Gulf of Mexico. This was illegal. When forced to choose between holding the lease sale, or having the Secretary of the Interior face contempt of court charges, they held Sale 257 in November 2021.
A corrupt Obama judge voided the results of that Sale 257 in January 2022. As that case was being appealed in July 2022, Sen. Joe Manchin’s (D-WV) Inflation Reduction Act was passed by Congress and signed into law by Biden. This law required the Interior Department to honor the results of Sale 257 and continue to hold future sales over the open areas of the Gulf of Mexico. The law required Sale 261 to be held before September 30, 2023. Sale 261 is scheduled for September 27, 2023.
The latest developments
Just over a month ago, the National Marine Fisheries Service (NMFS) agreed to gut future lease sales and severely restrict Gulf of Mexico oil & gas operations as part of a settlement with a group of Enviro-Marxist terrorist organizations.
On August 17, 2023 BOEM issued an NTL (Notice to Lessees and Operators) implementing the arbitrary and unlawful restrictions outlined in the Rice’s whales settlement.
The NTL is allegedly temporary and voluntary, while the “Bureau of Safety and Environmental Enforcement (BSEE) and BOEM are engaged in reinitiated consultation with the National Marine Fisheries Service (NMFS) on the 2020 Biological Opinion.” However, there are no more lease sales scheduled after Sale 261; nor has BOEM issued a new 5-year leasing plan, since Biden occupied the White House. The laws require them to issue a 5-year leasing plan and to continue holding lease sales.
“Circumvents law and ignores science”
For Immediate Release: Monday, August 21, 2023
NOIA Contact: [email protected]NTL on Rice’s Whale Circumvents Law and Ignores Science, Will Have Far Reaching Impacts on Gulf of Mexico
Washington, D.C. – National Ocean Industries Association (NOIA) President Erik Milito issued the following statement after the Bureau of Ocean Energy Management (BOEM) issued a Notice to Lessees (NTL) with recommended restrictions on ongoing industry activities within the expanded Rice’s Whale habitat area. BOEM delayed issuance of the NTL from last Friday’s deadline.
“This decision by the Biden Administration does an end-around legal requirements and the public process, imposing unwarranted restrictions on U.S. energy production at a time of continued inflation with prices rising at the pump for consumers. The NTL, coupled with the broader Stipulated Stay Agreement, poses a barrier to America’s energy production capabilities within a region that not only sustains hundreds of thousands of high-paying jobs but also yields some of the world’s least carbon-intensive barrels.
“Despite lacking ample scientific evidence to support such extensive bans on operations, the agreement targets the domestic offshore oil and gas industry. The Stipulated Stay agreement ignores the best science, contravenes Congress’ explicit directives in enacting the Inflation Reduction Act, and threatens America’s energy independence.
“Moreover, the federal government is moving forward to expand these protections to other ocean users and industries through the proposed designation of critical habitat for the Rice’s Whale that will establish a restricted pathway through the entirety of the Gulf of Mexico, imposing disruptions to the full Gulf Coast economy – home to numerous strategic national ports – and reverberating throughout the whole U.S. economy.
“Among other things, making areas off-limits, imposing speed restrictions, and limiting transit at night and times of low visibility will impact the ability of the offshore energy industry to explore, construct, and develop energy projects in the Gulf of Mexico. The restrictions imposed by the lease stipulations and the NTL jeopardizes the vast concert of vessels working in the Gulf of Mexico and will very likely lead to an increase in the number of vessels at sea at a given time, increasing traffic, risk, and overall emissions. The proposed restrictions would potentially eliminate or hamper safely established and efficient activities in the Gulf of Mexico.
“The Rice’s whale is currently afforded protections under both the Endangered Species Act and the Marine Mammal Protection Act. Expanding the Rice’s whale habitat to include areas where there is only a negligible or no presence at all will dilute conservation resources that should be going towards protecting actual habitat areas. “Sue and settle” or “regulation by litigation” fails to respect both environmental preservation and the economic vitality that the energy sector supports.”
[…]
In response to this, most recent, unlawful effort by the Biden maladministration to shut down offshore drilling, the State of Louisiana, the American Petroleum Institute (API) and Chevron USA have filed a lawsuit in the United States District Court for the Western District of Louisiana Lake Charles Division. This is in the 5th Circuit, where the oil & gas industry has won lawsuits over regulatory malfeasance. The 5th Circuit is overseen by Supreme Court Justice Samuel Alito. If there’s a court where this arbitrary and capricious action will be immediately vacated, it’s the 5th Circuit.
Among the restrictions is the “arbitrary and unlawful last-minute changes by the Bureau of Ocean Energy Management (‘BOEM’) to the terms of Lease Sale 261, a lease sale under the Outer Continental Shelf Lands Act (‘OCSLA’) covering much of the western and central Gulf of Mexico that Congress has instructed must occur by September 30, 2023”. These last-minute changes include the removal of about 6 million acres, in the heart of the most prolific part of the Gulf of Mexico from Lease Sale 261.
ARBITRARY-OR-CAPRICIOUS TEST
The arbitrary-or-capricious test is a short-hand term for the scope-of-judicial-review provision in section 706(2)(A) of the APA directing reviewing courts to invalidate agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
This test applies to all agency action, specifically the review of the factual basis for agency rulemaking. In this context, reviewing courts have overturned agency rules if the underlying policy judgments, reasoning, or asserted factual premises of the action are so unreasonable as to be arbitrary.
A different test, the “substantial evidence” test, is required by the APA to be used in decisions made after formal hearings (i.e., formal adjudications and formal rulemakings). But court interpretations of these two tests have indicated that there is not much difference between their application.
Can you say arbitrary and capricious?
The existing NMFS biological opinion is that the Rice’s whales core habitat area is the black/yellow dashed outline on the map below:
The Rice’s whales core habitat area is in the Eastern Gulf of Mexico, where oil & gas leasing has been largely prohibited for decades. The dark blue strip, along the continental slope of the Western and Central Gulf of Mexico is what has been unlawfully removed from Lease Sale 261. The only purpose of these new restrictions is a continuation of the Biden maladministration’s unlawful efforts to shut down oil & gas operations in the Gulf of Mexico. This regulatory malfeasance is arbitrary and capricious, with malice aforethought.
API Press Release
API, State of Louisiana, Chevron U.S.A. Inc. Challenge Lease Sale 261 Final Notice of Sale
202.682.8114 | [email protected]
WASHINGTON, August 24, 2023 – The American Petroleum Institute (API) today joined with the State of Louisiana and Chevron U.S.A. Inc. in filing a challenge to the Department of the Interior (DOI) Bureau of Ocean Management’s (BOEM) Final Notice of Sale for Lease Sale 261. Today’s challenge follows BOEM’s announcement yesterday to hold the final offshore lease sale mandated by the Inflation Reduction Act, but with significantly reduced acreage and severe restrictions on oil and natural gas vessel traffic.
“Today we’re taking steps to challenge the Department of the Interior’s unjustified actions to further restrict American energy access in the Gulf of Mexico,” said API Senior Vice President and General Counsel Ryan Meyers. “Despite Congress’ clear intention in the Inflation Reduction Act, the Biden administration has announced a ‘lease sale in name only’ that removes approximately 6 million acres of the Gulf of Mexico from the sale and adds new and unjustified restrictions on oil and natural gas vessels operating in this area, ignoring all other vessel traffic. Together with the State of Louisiana and Chevron U.S.A. Inc., we intend to use every legal tool at our disposal to challenge these actions.”
“Once again, Joe Biden is unlawfully attempting to kill both Louisiana jobs and affordable energy for all Americans,” said Louisiana Attorney General Jeff Landry. “We are yet again taking the President to court, where we trust the rule of law will be followed and Biden’s bureaucrats will be defeated.”
Background on the Five-Year Program for Federal Offshore Leasing:
- For 45 years, the Interior Department has been required to prepare a five-year offshore leasing program that will best meet America’s energy needs for the ensuing five-year period, detailing a schedule for regular oil and natural gas lease sales, including in the Gulf of Mexico.
- It has been more than one year since the Department of the Interior allowed the five-year program for federal offshore oil and natural gas leasing to lapse with no immediate replacement.
- The U.S. Gulf of Mexico produces some of the lowest carbon intensity barrels in the world. Constrained production in this basin could be replaced by higher carbon intensity barrels from elsewhere in the world.
- According to the U.S. EIA, Gulf of Mexico federal offshore oil production accounts for 15% of total U.S. crude oil production and federal offshore natural gas production in the Gulf accounts for 5% of total U.S. dry production.
- Over 47% of total U.S. petroleum refining capacity is located along the Gulf coast, as well as 51% of total U.S. natural gas processing plant capacity.
- An agreement announced last month proposed operating “recommendations” that would impose significant burdens on operators and increase emissions from vessels forced to operate at suboptimal speeds or idle outside the restriction areas.
- Adopting the nighttime and low visibility restrictions could cut transit windows to approximately 50%– requiring industry to balance the government’s recommended practices against safely and efficiently servicing ongoing operations.
- These restrictions would unfairly single out oil and gas traffic in an area that is one of the most used maritime areas in U.S. waters by a variety of industries. Thousands of vessels pass through this area every day.
API represents all segments of America’s natural gas and oil industry, which supports nearly 11 million U.S. jobs and is backed by a growing grassroots movement of millions of Americans. Our approximately 600 members produce, process and distribute the majority of the nation’s energy, and participate in API Energy Excellence®, which is accelerating environmental and safety progress by fostering new technologies and transparent reporting. API was formed in 1919 as a standards-setting organization and has developed more than 800 standards to enhance operational and environmental safety, efficiency and sustainability.
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Give ’em Hell Joe!
Manchin rips administration over Gulf of Mexico leasing decision
- by Matt Harvey MANAGING EDITOR
- Aug 25, 2023
WASHINGTON (WV News) — The Biden administration’s decision to reduce a Gulf of Mexico oil and gas lease sale from about 73.4 million acres to 67 million acres caught the ire of U.S. Sen. Joe Manchin, D-W.Va. and chairman of the U.S. Senate Energy and Natural Resources Committee.
[…]
“This administration continues to kowtow to radical environmentalists at the expense of American energy security and costs to American families,” Manchin said.
“Let me be clear, the exclusion of more than 6 million productive acres from the upcoming offshore oil and gas lease sale in the Gulf of Mexico based on a settlement reached in the name of protecting Rice’s whale while conveniently only targeting oil and gas is yet another example of this administration’s intentional undermining of the strong energy security provisions in the Inflation Reduction Act,” he said.
“Notably, they have issued no such blanket ban for future offshore wind in this area. Today’s announcement comes months after the Department of the Interior put in black and white that they were choosing climate over energy security during the Alaska lease sale. The IRA required lease sales to get oil and gas leasing back on track to reduce the cost for working families to cook, heat their homes and fill their gasoline tank,” Manchin said.
[…]
And now for the fake news
The general media response to this lawsuit is clueless, if not intentionally dishonest.
- Oil giants are lawyering up against an endangered whale: Chevron, the API, and the state of Louisiana are fighting a White House attempt to protect the Gulf of Mexico (Quartz)
- Oil companies sue U.S. over Gulf auction changes meant to protect whale (Reuters)
- Oil industry sues Biden administration for shrinking Gulf lease to protect endangered whale (The Hill)
This is not about protecting endangered whales. They are already protected. This is about using the administrative state to slowly strangle an industry that does not support its agenda.
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