5/17/2010By Milo C. Mason The recent oil spill in the Gulf is inviting intense scrutiny of oil drilling practices, as Congress considers levying hefty damages on British Petroleum and President Obama temporarily halts new offshore drilling leases. Major oil spills in the past have influenced the direction of ocean energy policy, from sparking opposition to offshore development to spurring extensive environmental laws amending the Outer Continental Shelf Lands Act of 1953 (OCSLA) and enacting the Coastal Zone Management Act, all intended to protect the ocean environment. A number of significant events have played a role in shaping the manner in which ocean energy policy has been carried out. The Santa Barbara Channel oil spill off the California shore in 1969 galvanized considerable opposition to offshore oil and gas development and resulted eventually in the process-laden and environmentally focused 1978 amendments to the OCSLA and the Coastal Zone Management Act. The oil embargo of 1973 added to the scope and pace of lease sale plans contained in the 1978 amendments. The Exxon Valdez oil spill of 1989 provided a new impetus for offshore environmental safeguards and for coastal states' increased voice in federal offshore lease sales. The Gulf of Mexico now provides about 30 percent of our nation's oil and 25 percent of its natural gas. This ocean energy production generates about $8 billion a year to the federal treasury and to states and coastal communities through their share of the revenue and a portion of the land and water conservation fund, which, when appropriated by Congress, gets distributed throughout the nation. Both the East and West Coasts of the United States are currently off limits to outer continental shelf (OCS) leasing and development by both congressional moratoria and presidential withdrawal. Defining the Scope of Federal Jurisdiction over the OCS Seabed and Natural Resources What specific legal regime applies to the OCS seabed? What laws determine use conflicts between energy and mineral development matters and nonenergy and mineral matters? Use conflicts will likely increase in the next fifty to one hundred years as more and more use of the coastal ocean and its seabed resources occurs. The Department of the Interior faces these questions and potential conflicts in any proposed Energy Policy Act of 2005 rulemaking on alternative energy siting matters. Also, as a practical matter, the Interior Department or some "appropriate officer" of the federal government must determine or regulate who can do what and where on or about the seabed and its resources. Section 4 of the OCSLA (codified at 43 U.S.C. § 1333) largely provides the framework for answering those questions. Thus, to shed light on how to address those important future issues warrants a full analysis of Section 4. Section 4 sets forth the laws and regulations that govern the OCS. Described as the heart of the OCSLA during the debate on the Senate floor, Section 4 presents several important ongoing and basic issues over fifty years later: its meaning, its application, and its directive to the President. And its language has created questions, such as what laws apply to civil or criminal actions committed on the seabed and what laws apply to fauna and flora, e.g., coral reefs, that touch or are attached to the OCS seabed. Federal Laws Apply to Incidents Whether Energy-Development Related or Not That Occur on the OCS Seabed Assuming that the United States has jurisdiction and control of the OCS regardless of the extraction of natural resources, federal laws would apply to any civil or criminal incident or activity that occurs on the seabed of the OCS, pursuant to Section 1333(a). For example, federal law would apply to any action that occurs on the OCS seabed, subsoil, or a structure, temporarily or permanently, attached to the seabed or subsoil. However, determining what federal law applies is problematic. Basically, two issues need resolution to understand what federal laws would apply to an incident that occurred on the OCS. First, if the incident did not happen in the context of the exploration, transportation, or production of natural resources, is the OCSLA even applicable? For reasons regarding the applicability of the OCSLA on artificial islands that are constructed for non–mineral extraction purposes, the United States has extended its jurisdiction to the entire seabed. Thus, the OCSLA would apply to any incident occurring on the OCS or an OCS structure. Next, since the OCSLA is applicable, would state or federal laws govern litigation arising out of an incident or activity on the OCS or an OCS structure? Federal courts have specified that state law pursuant to Section 1333(a)(2)(A) fills in the gaps of federal law. Indeed, the application of federal law, with the assimilation of state law, became the cornerstone of the original OCSLA. A review of the extensive legislative history shows that the OCSLA adopted state law as federal law to fill in gaps in federal law. In United States v. Lewis, the Supreme Court held that the Assimilative Crimes Act did "not make the state provision part of federal law." Specifically, just like the OCSLA, the Court found that the Assimilative Crimes Act's "basic purpose is one of borrowing state law to fill gaps in the federal criminal law that applies on federal enclaves." Federal Law, as Supplemented by State Law, Applies to OCS Coral Reefs and Other Marine Animal and Plant Life Coral reefs are universally acknowledged as important habitat to innumerable species in the oceans. They face potential harm from a variety of sources, including energy development, unless they are located in a protected area. Because they are natural resources located on the OCS seabed, the law applicable to them is directed by the OCSLA and Section 1333(a), which applies federal law and adopts consistent state law to supplement any gaps. In United States v. Ray, a district court held that "reefs and their coral and piscatorial inhabitants are natural resources not only as that term is understood by the general public, but as defined by [the OCSLA]." On appeal, the Fifth Circuit agreed, concluding that "the United States has the exclusive right for purposes of exploration and exploitation of the reefs." The court based this finding on several factors. First, the reefs were completely submerged at mean high water. Thus, "the reefs are contemplated within the definition of the [OCSLA] and the Geneva Convention on the Continental Shelf." The court also looked at the common definition of seabed as "lands underlying the sea." Likewise, the Geneva Convention includes both living and nonliving resources in its definition of "natural resources." The Fifth Circuit recognized the important interest the United States has in coral reefs. Coral reefs and "other marine animal and plant life" that are part of the seabed are covered by the OCSLA, and federal law, which adopts state law to fill gaps, would apply to anything that happened on the reef, to the in-place marine animal and plant life, or to any artificial island, installation, or device that is permanently or temporarily attached to the coral reef or seabed. Excerpted From:
Ocean and Coastal Law and Policy |
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