Photo by NOAA's National Ocean Service. Some rights reserved.
Quick on the heels of an upbeat Department of the Interior Press Release came an equal-and-opposite reaction from the National Resources Defense Council.
The commentary focused on a recently released Programmatic Environmental Impact Statement from DOI’s Bureau of Ocean Energy Management that evaluates potential significant environmental effects of multiple geological and geophysical “G&G” activities in support of oil and gas exploration and development, renewable energy, and marine minerals in the Mid- and South Atlantic. All part of Obama’s all-of-the-above energy strategy, according to the DOI, which called these steps “critical,” and the PEIS “a milestone […] consistent with the Proposed OCS Oil and Gas Leasing Program for 2012-2017.”
But the NRDC sees it differently. The same G&G processes that might be used to “understand the extent, properties and geography of hydrocarbon resources, as well as the potential to site renewable energy structures and locate marine mineral resources like sand and gravel” – such as seismic air guns – are apparently “equivalent to blasting dynamite in a neighborhood every 10-12 seconds for weeks or months on end,” according to the NRDC, and “can cause hearing damage and death to marine mammals like endangered North Atlantic right whales that calve off the coasts of Georgia and Florida.”
Feel strongly one way or the other? The public may submit written comments by email to firstname.lastname@example.org.
D.C. Circuit Court. Photo by Ken Lund. Some rights reserved.
Seattle-based Marten Law walks us through the EPA’s recent headbutt with the Natural Resources Defense Council (NRDC), as the agency tried to defend its actions with regards to Section 185 of the Clean Air Act (CAA). The struggle ended July 1, 2011, when the D.C. Circuit Court of Appeals vacated a Section 185 guidance document that the EPA has previously relied on.
The EPA is required by the CAA to establish national ambient air quality standards (NAAQS) for various pollutants, and to impose deadlines and/or fees on areas that fail to comply. Section 185 (42 U.S.C. § 7511d) addresses ozone nonattainment areas that are classified as “severe” or “extreme,” and the specific enforcement to be levied against the major stationary sources of the offending pollutants in those areas.
When the NAAQS were overhauled in 2004, many areas that were previously classified as “severe” or “extreme” in their nonattainment now only classified as “marginal” or “moderate.” The CAA’s “anti-backsliding” provision (42 U.S.C. § 7502(e)) prevented these areas from getting off the hook completely, but enforcement procedures in these cases were now a bit murky. In order to address the confusion, the EPA issued “Guidance on Developing Fee Programs Required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS,” a document that ostensibly gave states the authorization to implement “alternative programs” in certain nonattainment areas, rather than the usual fee programs mandated by Section 185.
But this didn’t fly with NRDC or the D.C. Circuit. NRDC filed suit, and the Court subsequently found that the EPA violated the Administrative Procedure Act by issuing the guidance without following notice-and-comment rulemaking procedures. Is this becoming a trend? If so, it’s one that will likely not be tolerated. Marten Law concludes that the “EPA has, in recent years, tended to favor the use of interpretive guidance where it can, as the rulemaking process is typically long and arduous. No matter, the D.C. Circuit has joined other courts in holding that guidance is not a substitute for rulemaking.”