Offshore Oil Leasing: Trump Administration’s Environmentally Dangerous Energy Policy

The Trump administration’s Executive orders on Promoting Energy Independence and Economic Growth (“Energy Independence Order”) and Implementing an America-First Offshore Energy Strategy (“Offshore Energy Order”) set the stage to open over 90% of the continental shelf to offshore oil drilling from 2019–2024. The Offshore Energy Order ignores the statutory requirements of the Outer Continental Shelf Lands Act (“OCSLA”) and the National Environmental Policy Act (“NEPA”) to balance energy exploration with safeguards for marine life and the environment. We analyze the lack of express authority in OCSLA for the President to rescind its protective designations, in comparison to other laws that grant such authority. This Article discusses the traditional administrative processes for assessing environmental concerns with lease proposals, and contrasts those with the Trump administration’s proposals for streamlining the process. We examine the volatility of oil prices and the impact of hydraulic fracturing (“fracking”) on the viability of offshore leasing. While most mayors, governors, and senators of affected states oppose further offshore drilling, the Trump administration’s proposals ignore these stakeholders. This Article emphasizes the importance of minimizing environmental risks of offshore oil exploration and drilling, including threats to marine mammals and the fishing industry, as well as climate change implications of expanding fossil fuel exploration and use. More safety oversight is needed (including a reversal of the Trump administration’s discontinuance of the Methane Waste Rule, the Well Control Rule, and third-party audits of oil well blowout preventers). This Article concludes with the recommendation that it is imprudent to expand offshore drilling when conservation for future generations and protection of the environment is a more prudent course

“Experimental Populations” Outside Historical Range Proposal: Will It Get the Frog Out of Hot Water?

72 pagesTo address the impact of climate change on habitats of endangered and threatened species, the U.S. Fish and Wildlife Service is proposing a 2022 rule change to allow “experimental populations” to be introduced into habitat outside the species’ historical range. For essential experimental populations, habitat could be designated beyond current or historical range where “little to no habitat remains within the historical range of a species or where formerly suitable habitat . . . is undergoing, irreversible decline or change, rendering it unable to support one or more life history stages for the species.” A statutory prerequisite (under Endangered Species Act (ESA) section 10(j)) to designation of critical habitat for an experimental population is that “such population is essential to the continued existence of an endangered species or a threatened species.” The ESA defines “critical habitat” but does not separately define “habitat.” Designation of “critical habitat” has been complicated by the Weyerhaeuser v. FWS decision, in which the Supreme Court concluded that “critical habitat” must first be “habitat.

Offshore Oil Leasing: Trump Administration’s Environmentally Dangerous Energy Policy

The Trump administration’s Executive orders on Promoting Energy Independence and Economic Growth (“Energy Independence Order”) and Implementing an America-First Offshore Energy Strategy (“Offshore Energy Order”) set the stage to open over 90% of the continental shelf to offshore oil drilling from 2019–2024. The Offshore Energy Order ignores the statutory requirements of the Outer Continental Shelf Lands Act (“OCSLA”) and the National Environmental Policy Act (“NEPA”) to balance energy exploration with safeguards for marine life and the environment. We analyze the lack of express authority in OCSLA for the President to rescind its protective designations, in comparison to other laws that grant such authority. This Article discusses the traditional administrative processes for assessing environmental concerns with lease proposals, and contrasts those with the Trump administration’s proposals for streamlining the process. We examine the volatility of oil prices and the impact of hydraulic fracturing (“fracking”) on the viability of offshore leasing. While most mayors, governors, and senators of affected states oppose further offshore drilling, the Trump administration’s proposals ignore these stakeholders. This Article emphasizes the importance of minimizing environmental risks of offshore oil exploration and drilling, including threats to marine mammals and the fishing industry, as well as climate change implications of expanding fossil fuel exploration and use. More safety oversight is needed (including a reversal of the Trump administration’s discontinuance of the Methane Waste Rule, the Well Control Rule, and third-party audits of oil well blowout preventers). This Article concludes with the recommendation that it is imprudent to expand offshore drilling when conservation for future generations and protection of the environment is a more prudent course