On January 4, the Trump administration released its proposed five-year offshore oil and gas leasing plan, ostensibly kicking off a 60-day public comment period during which affected communities would be given the chance to weigh in on the administration’s plan.
But less than a week after releasing the proposal — which would open up nearly every inch of federal water to the possibility of offshore drilling — Secretary Ryan Zinke made an unexpected announcement on Twitter. Calling Florida Gov. Rick Scott (R) a “straightforward leader that can be trusted,” and noting that “Florida is unique and its coasts are highly reliant on tourism as an economic driver,” Zinke said that he would be removing Florida waters from consideration for new oil and gas platforms.
— Secretary Ryan Zinke (@SecretaryZinke) January 9, 2018
Observers were quick to note that the move likely had political motivations, handing Scott and other Florida Republicans — who had been outspoken in their opposition to the plan — a win. But legal experts are pointing out another major flaw in Zinke’s hasty exemption: it’s likely illegal.
That’s because offshore leasing decisions are subject to a number of federal laws — chiefly, the Administrative Procedures Act and the Outer Continental Shelf Lands Act — that dictate formal processes for how the Department of the Interior must consider, and revise, its decisions regarding which offshore areas can be opened up to oil and gas.
By publishing the plan in the Federal Register, the Interior Department initiated the formal rule-making process, which dictates a 60-day public comment period as well as an environmental impact statement for areas that could be opened up to drilling. Announcing a change in the proposal two days into the process signals that the administration isn’t following the required procedure, legal experts argue, and raises flags about whether the decision was arbitrary or capricious — two things prohibited by administrative law.
“The decision is apparently being made two days into a comment period for the state of Florida, but not for the numerous other states that requested the same exclusion based on the same reasoning,” Sierra Weaver, senior attorney with the Southern Environmental Law Center, told ThinkProgress. “Under the Administrative Procedures Act, you would say this is arbitrary and capricious. It is also clearly in violation of federal law, which requires this very specific process.”
Taking #Florida off the table for offshore drilling but not #California violates the legal standard of arbitrary and capricious agency action. California and other coastal states also rely on our beautiful coasts for tourism and our economy. I believe courts will strike this down https://t.co/xWyB69F7Gg
— Ted Lieu (@tedlieu) January 10, 2018
According to Weaver, the problem with Zinke’s announcement isn’t his reasoning; economic factors are a viable reason to remove an area from a proposed offshore oil and gas leasing plan. The issue is that Zinke apparently made the decision without following the procedures mandated by federal law, rather than waiting to make the announcement after a full public comment period and environmental impact study.
“It’s the lack of the formal process,” Weaver said. “No one has ever seen anything like this. I don’t think anyone has imagined anything like this.”
Kristen Monsell, Oceans Program Litigation Director for the Center for Biological Diversity, agreed that Zinke likely violated federal law in choosing to remove Florida from the proposed plan.
“The Outer Continental Shelf Lands Act requires the administration to consider several specific factors in developing an offshore oil and gas leasing plan in light of national energy needs and the risks of offshore drilling. Helping Republicans to win elections certainly isn’t one of those factors,” Monsell told ThinkProgress via email. “And basic principles of administrative law require the agency to carefully consider its decisions and public input, not change its mind on a whim.”
Following Zinke’s announcement on Tuesday night, numerous governors, representatives, and attorneys general from states included in the proposed five-year plan argued that offshore drilling would negatively impact their coastlines and tourism industries.
“California is also ‘unique’ & our ‘coasts are heavily reliant on tourism as an economic driver,'” California Attorney General Xavier Becerra (D) tweeted. “Our ‘local and state voice’ is firmly opposed to any and all offshore drilling. If that’s your standard, we, too, should be removed from your list. Immediately.”
It’s possible states could attempt to challenge Zinke’s decision in court immediately, though SELC’s Weaver cautioned that it’s unclear what those challenges might look like. Most legal challenges, however, will likely come when the Interior Department releases its final five-year offshore plan. If the agency fails to give similar consideration to other states that make a case for being excluded from the plan, those states might challenge the final plan as “arbitrary and capricious” under administrative law.
“The real question will come when this process completely plays out and what the final decision looks like,” Weaver said. “If Florida was able to make this request, it only seems sensible that the Secretary would be honoring the similar requests of states like North Carolina, Maryland, Virginia, and New Jersey.”