States vow to fight offshore drilling by any means at their disposal

- Maret 12, 2018

NEW YORK CITY — The Trump administration may have the power to control what happens in federal waters, but state leaders are vowing to make it as difficult as possible for the White House to advance its offshore drilling plan.

The move has drawn opposition from both Democratic and Republican leaders in nearly every affected state and mobilized the environmental community. From California to New York, lawmakers are considering ways to block the proposal, which would open vast new stretches of federal waters in the Atlantic and Pacific oceans, as well as in the Arctic and eastern Gulf of Mexico, to oil and gas exploration and extraction.

New York Gov. Andrew Cuomo has been particularly vocal.

"Offshore drilling is a really, really dumb idea," Cuomo said at an event Friday, standing alongside former Vice President Al Gore. "That's my professional comment."

Cuomo and his counterparts in other states are looking to prevent offshore drilling by any means at their disposal.

They are considering laws to block the construction of pipelines or infrastructure in state-controlled waters that are needed to support drilling projects. Attorneys general have vowed to sue over Interior Department Secretary Ryan Zinke's proposal at the earliest possible moment, and state agencies plan to object to any lease sales using their joint authority under federal law over coastal waters.

“I cannot envision anything that Secretary Zinke could have done to generate more controversy than he has,” said Richard Charter, a senior fellow at the Ocean Foundation, based in California. “I think what Ryan Zinke has really done is build himself a wall all along the U.S. coastline.”

The proposal, which is an incremental move by the Interior Department to develop a five-year plan to manage oil and gas leasing on the outer continental shelf, has several more steps before it can be implemented. The comment period on the draft proposal closed Friday. A more nuanced, and presumably narrow, proposal is expected by the end of the year along with an evaluation of the potential environmental impacts when another comment period will be held.

Barring any delays, the first lease sales under the program aren’t expected until at least 2019.

"Governor Cuomo and the state of New York will use every avenue available to prevent an environmental assault off our coastline,” said Rich Azzopardi, a spokesman for Cuomo, in an email. “The Governor is evaluating all options, including legislation, the state’s authority to review coastal consistency, and other legal challenges to prevent the egregious environmental and economic harm the federal government’s proposal would cause."

New York Attorney General Eric Schneiderman has already threatened to sue over the Trump administration’s proposal. The administration hasn’t yet considered the climate change impacts of the proposal as required under federal law, Schneiderman wrote in comments submitted Friday. The Interior Department also hasn’t shown a valid reason why it would ignore New York’s objections when a previous leasing proposal under former President Barack Obama was modified to remove states that objected, he argued.

“The Trump Administration’s plan to turn over New York’s coast to Big Oil threatens our environment and our economy — and I stand ready to use the full power of my office to fight back if the administration won’t listen to New Yorkers’ opposition,” Schneiderman said in a statement.

Governors — both Republicans and Democrats — in every state where offshore drilling doesn’t already exist, except Maine, have expressed opposition to opening their coastlines to the oil and gas industry.

Florida Gov. Rick Scott, a Republican, met privately with Zinke and announced in January the state would be exempt from the plan. Other governors piled on to ask for similar exemptions, and some observers noted the seemingly lackadaisical decision to exempt one state made litigation extremely likely in others.

While an Interior Department official later backtracked on Zinke’s comments, Florida lawmakers passed a resolution opposing expanded offshore drilling, and the state’s Department of Environmental Protection also opposes the proposal.

New Jersey has also pushed Zinke to exempt the state from its drilling proposal, citing the coastal state’s reliance on tourism and fishing. Just before taking office, Gov. Phil Murphy, a Democrat, signed a rare letter of agreement with former Gov. Chris Christie, a Republican, pushing for an exemption. Sen. Cory Booker (D-N.J.) also signed the letter.

The opposition seems to be paying off for the Garden State. GOP Rep. Chris Smith said New Jersey will likely be exempted soon, after a meeting with Zinke.

Rep. Frank Pallone (D-N.J.) said opening up the prospect of exemption could make it more difficult for the Interior Department to justify moving forward in the face of increased opposition.

“He said Florida would be negatively impacted — does he think that if there’s a spill in Georgia it’s not gonna go to Florida? This doesn’t make any sense,” Pallone said. “It’s going to be very hard for the Interior Department to make a cogent argument not to exempt the East Coast. It’s one ecosystem.”

Murphy sent an additional letter Friday to the Bureau of Ocean Energy Management, claiming that the agency used flawed analysis to justify drilling off the coast of New Jersey and that the state should be exempted. The letter included an analysis by the state DEP that says BOEM used a flawed scientific analysis on the impact of oil spills and exploration techniques like seismic testing.

Every area will be analyzed by BOEM to inform Zinke’s decision on what areas to include or exclude, said agency spokeswoman Connie Gillette. She said the bureau was not aware of any exemption for New Jersey.

In case efforts to exempt their states are unsuccessful, lawmakers in California, New York and New Jersey are pushing legislation that would make new offshore drilling in federal waters as difficult as possible.

The New Jersey legislation would prohibit offshore drilling for oil and natural gas in state waters. Perhaps more importantly, the bill would also prohibit the state Department of Environmental Protection from issuing permits that would allow a company to build facilities, like pipelines, in state waters meant to aid offshore drilling.

The measure mirrors one first introduced in California last year by state Sen. Hannah Beth Jackson (D-Santa Barbara). It stalled last session, but Jackson said there’s more urgency to pass the bill, CA SB834 (17R), this year with the Trump administration moving forward on the offshore drilling proposal.

“We’re basically recognizing that we don’t have control over the decision in the outer continental shelf, but we do have control over what happens in state waters. Hopefully other states are following suit,” Jackson said. “By prohibiting our participation in the conveyance of oil and gas … we want the oil companies to understand that taking up this reckless offer is not only going to be politically costly but the economic costs of taking up any new production are going to be high as well.”

New York Assemblyman Steve Englebright (D-Setauket) has also introduced a preliminary measure, NY A9819 (17R), to bar any offshore drilling or related activity in state waters. He said revisions to make it more aggressive and comprehensive are still in the works.

“It’s very very important that we have an opportunity to make use of our offshore lands and waters for renewable energy,” Englebright said. “Oil and gas exploration and drilling is in direct contradiction to offshore renewable energy. These are not compatible enterprises.”

The Assembly held its own hearing in Long Island to gather comments opposing the offshore drilling plan after the Interior Department refused to hold one there and instead chose Albany for a public information session that did not include any public comment opportunity. The federal agency later agreed to take comments on Long Island at a March event organized by Rep. Lee Zeldin, a Republican.

If or when the federal government ever gets to the point of issuing lease sales, states will have another opportunity to act against any planned offshore drilling. The federal Coastal Zone Management Act gives states joint authority over activities in coastal waters and there’s a mechanism for them to object to federal actions, including oil and gas leases, that conflict with coastal management plans developed by the state.

The California Coastal Commission has already signaled its intent to use its authority to object under federal law to block offshore drilling. New York's Department of State could raise objections and New Jersey’s DEP could also throw up regulatory roadblocks.

Although California does have some offshore drilling, opposition there to any new development is particularly strong and traces back to the 1969 oil spill off Santa Barbara. That incident was part of the genesis of the Coastal Commission's formation. California also fought a 1981 decision by the federal government to allow oil and gas drilling off the shores of central and northern California.

The state lost that case, but Congress later changed the law to increase states’ authority to object under the federal zone management act to offshore oil and gas lease sales. If the federal government challenges a state’s objection, the issue could go to non-binding mediation by the U.S. Secretary of Commerce but would likely end up in litigation, said Mark Delaplaine, the California Coastal Commission’s manager for ocean resources, energy and federal consistency.

“The commission has been vehemently opposed ever since the commission started its existence to drilling in any other areas off the California coast in part because there isn’t infrastructure to support the oil and there hasn’t been anything approved for almost 30 years now,” he said.

While there’s a provision for a presidential override if the courts side with a state, it's only been used once and may be subject to a challenge on constitutional grounds, Delaplaine said.

“Certainly the lawsuits will last longer than the Trump administration, even if it’s a two-term administration,” said the Ocean Foundation’s Charter.

Bruce Ritchie contributed to this report.


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