When I started writing this diary, I intended to examine seven major environmental laws which provide exemptions for the oil and gas industry. There is just too much information regarding each statute to cram into one diary and do any justice to the topic. I'll start with the National Environmental Policy Act of 1969 (NEPA). This is my favorite environmental law because of the beauty of the Congressional intent, the real sense of hope that we could be better stewards and the powerful tools which were supposed to curb the ongoing corruption of the earth, air and water.
For decades the oil and gas industry have enjoyed exemptions from major environmental laws which would otherwise directly affect their operations and profits. All of the exemptions can't be laid at the doorstep of former Vice President Halliburton Cheney, but the one which had a profound impact on NEPA in 2005 most definitely is his manipulation.
The tragedy unfolding in the Gulf of Mexico is the result of many things, obvious to all readers here. This diary and ones I hope to write on six other statutes, aren't directly about the ongoing catastrophe; they will provide, however, one perspective of how we got here.
Perhaps two major factors affected the enactment of NEPA: Rachel Carson's Silent Spring and the 1969 Santa Barbara Oil Spill
The National Environmental Policy Act (NEPA) 42 U.S.C. §§ 4321 et seq.
§ 4331. Congressional declaration of national environmental policy
(a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
Beautiful in its simplicity but painful in its naivete regarding the forces who can basically be lumped into "don't touch my property/freedoms" crowd. Here's what a majority of our Congress actually believed at one time:
that it is the responsibility of the federal government to make policy considerations which
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
42 U.S.C. § 4331 (b)
Ah, the good old days. How did Congress propose to implement these aspirations through actual policies and regulations? Again, simple. Prior to any legislation, regulation or action which might have a significant impact on the environment or human health, all agencies must
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, and shall accompany the proposal through the existing agency review processes;
42 U.S.C. §4332 (2)(C)
What all of that language boils down to is that every Federal Agency must first perform an Environmental Assessment (EA) on any proposed action to assess if it may significantly impact the environment. If the agency decides that there is no significant impact, then they must prepare A Finding of No Significant Impact (FONSI) and either circulate it among the affected public or publish it in the Federal Register for a 30 day comment period.
If an agency does find that there is a significant impact, it must then perform an Environmental Impact Study (EIS), which is more rigorous, must look at alternatives and once completed, be submitted to the Federal Register for public comment.
With me so far? Now, Administrations have had their Agencies utilize NEPA in varying degrees, from practically not at all to more often than not. So, how did oil and gas get an exemption? Not by Amending NEPA; rather through The Halliburton/Cheney Energy Policy Act of 2005 which changed the rules for oil and gas by creating
a "rebuttable presumption" that several oil and gas related activities ought to be analyzed and processed by the Interior and Agricultural Departments under a less stringent process known as a "categorical exclusion" (CE). The CE is considerably less comprehensive than the traditional environmental assessment (EA) or the environmental impact statement (EIS) and does not allow for any public comment.
. . . snip
Under the "rebuttable presumption," section 390 effectively shifts the burden from the agency to the public to prove that an activity requires further analysis. Prior to 2005, the agency had the burden of showing that no harm will occur from the type of activity at issue. Now, the public has the burden of proving that the above activities occur in an area with "extraordinary circumstances" and require a full NEPA review. "Extraordinary circumstances" are those in which a normally excluded action may have a significant environmental effect, thus requiring additional analysis and action.
Earthworks' Oil and Gas Accountability Project at pp. 15-16
Basically, the Energy Policy of 2005 made it so much easier for Minerals Management to completely circumvent NEPA by never finding any "extraordinary circumstances" and rubberstamp drilling activities without benefit of any permit process.
If NEPA were fully implemented, regulations adhered to and science and engineering respected for the last number of decades back to President Reagan, perhaps the Gulf crime against nature might never have occurred. Perhaps many other thousands of acres of land and water would not be contaminated.
Now, our challenge is to pressure Congress to start with a solid Energy/Climate Bill and gut the monstrosity of 2005. Each Agency promulgates their own NEPA regulations, thus, you must search the regs through each agency or on the Google.
If you made it this far, aren't you happy that I decided not to do all seven laws at once? Next is the Clean Water Act.
Here is an added bonus for those who would like to read about the Cheney/Bush era assault on NEPA: NEPA Under Assault by Sharon Buccino (warning, pdf.format) It is a law review article by an senior attorney with NRDC.