By Jennifer A. Dlouhy (Bloomberg) — Interior Secretary Ryan Zinke just handed offshore drilling foes ammunition for lawsuits by declaring the Florida coast off limits.
Zinke declared he would dial back a proposal to auction drilling rights in as much as 90 percent of U.S. coastal waters less than a week after the plan was unveiled. The decision, announced Tuesday in a tweet, appeared to circumvent a detailed process laid out in federal law and came without any detailed explanation to justify the changes.
“It’s politically unwise and legally unwise,” said Michael Livermore, an administrative law professor at the University of Virginia. “They have a draft out there, and there is a formal process for making changes to the draft. And they’re circumventing that.”
Zinke’s declaration followed a meeting with one of the plan’s top Republican opponents, Florida Governor Rick Scott.
“I support the governor’s position that Florida is unique, and its coasts are heavily reliant on tourism as an economic driver,” Zinke said in a post on Twitter. “As a result of discussion with Governor Scott’s [sic] and his leadership, I am removing Florida from consideration for any new oil and gas platforms.”
Zinke also called Scott “a straightforward leader that can be trusted.”
The Outer Continental Shelf Lands Act specifies eight factors the Interior Department must consider when developing new leasing plans — everything from the proximity of energy markets and the environmental sensitivity of targeted areas to the interest of oil producers and the goals of affected states. The opinions of governors of the affected states — though not their personality traits — are supposed to be taken into account.
— Secretary Ryan Zinke (@SecretaryZinke) January 9, 2018
Zinke’s use of a tweet to announce the about-face drew comparisons to how opponents of President Donald Trump’s restrictions on travel from Syria, Libya and other nations have used his own words to argue in court that the policy was meant to discriminate against Muslims.
Representatives of Zinke and the Interior Department did not respond to an emailed request for comment on the legal consequences of the secretary’s announcement.
At least 11 governors have asked the Interior Department to leave their states out of any new leasing plan. Some of them responded to Zinke’s pronouncement by demanding meetings with the Interior secretary to argue against new offshore drilling near their shores.
“New York doesn’t want drilling off our coast either,” the state’s governor, Andrew Cuomo, said on Twitter. “Where do we sign up for a waiver?”
Representative Ted Lieu, a Democrat from California, said Zinke did “not justify discriminatory agency action in favor of Florida over other states” and offered “no evidence other governors can’t be trusted.”
If Zinke sticks to his decision, the Interior Department is foreclosing new oil lease sales in the south Atlantic, the Florida straits and the eastern Gulf of Mexico from 2019 to 2024. That’s a big blow to the oil industry, which viewed the eastern Gulf as prime new real estate in the U.S. — sure to contain crude and natural gas, close to existing development and near a host of refineries in Louisiana and Texas.
Federal agency decisions can’t be “arbitrary and capricious” under a law known as the Administrative Procedure Act.
“What he has done undermines the integrity of the entire program,” said Peter Van Tuyn, an Anchorage-based attorney with Bessenyey & Van Tuyn LLC who successfully challenged a previous leasing plan.
“Congress put a very, very detailed and deliberate system in place to take input from the public and governors and affected communities,” Van Tuyn said. “To say that a meeting with one governor changes the secretary’s mind and to announce that Florida’s no longer in it when there’s no discussion of those public comments, when the process hasn’t played out, when we cannot see in writing what the secretary considers relevant — that smacks very heavily of an arbitrary decision.”
The argument cuts both ways. Supporters of drilling off Florida could also use the decision to mount arguments for keeping those waters in the program.
“The announcement by the secretary that he is considering limiting areas offshore Florida is disappointing and premature,” said Randall Luthi, head of the National Ocean Industries Association — and a former drilling regulator who helped assemble government leasing plans. “The conversation to be had around the draft proposed offshore leasing plan should include modern technology, science and America’s energy demand and security.”
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