On December 7, 2018, the National Marine Fisheries Service (NMFS), part of the National Oceanic and Atmospheric Administration (NOAA), published in the Federal Register five “incidental harassment authorizations” (IHAs) allowing multiple companies to engage in seismic testing off the Atlantic coast of the United States. This seismic testing would be conducted in support of oil and gas exploration in the Atlantic Ocean, by companies that provide services to the oil and gas industry. Although the Obama Administration previously declined to issue the IHAs and other necessary permits on the basis of their potential harm to endangered marine life, the NMFS has now conclude that seismic testing is not likely to jeopardize the continued existence or recovery of multiple species of whales and sea turtles off the Atlantic coast.
Some of the applications date back to 2014-15, and were posted for public review at that time, three of the companies have since submitted revised applications, and two companies have submitted new applications, since that public review period. Without providing further opportunity for public comment, NMFS proposed issuing IHAs to these companies on June 6, 2017. Since the proposed IHAs were published, one of the companies modified its application again. Nonetheless, NMFS is issuing the proposed IHAs largely unmodified, reasoning that “the determinations made in regard to [that company’s] previously proposed specified activity remain appropriate and valid.”
The seismic testing is a precursor to the Trump Administration’s proposal that drilling for oil and gas be allowed off the Atlantic coast--a proposal that has been opposed by the governors of almost every coastal state. Now that the NMFS has issued the IHAs, the only remaining barrier before seismic testing can begin is for the Department of Interior's Bureau of Offshore Energy Management (BOEM) to issue geological and geophysical (G&G) permits pursuant to the Outer Continental Shelf Lands Act. In January 2018, the Acting Director of BOEM testified to Congress that BOEM hoped to promulgate permits within two weeks of NMFS issuing the IHAs.
On December 11, 2018, multiple environmental groups filed a lawsuit against NMFS in federal court in South Carolina, urging that the agency violated the Marine Mammal Protection Act, Endangered Species Act (ESA), National Environmental Protection Act (NEPA), and Administrative Procedure Act, and asking that the court vacate the IHAs. Ten states, including South Carolina, Maryland, Connecticut, Delaware, Maine, New Jersey, New York, North Carolina, Massachusetts and Virginia have since filed motions to intervene on the side of the environmental petitioners in the case.
On December 28, 2018, the Department of Justice filed for a stay in proceedings, indicating that it lacked the manpower to file briefs in the case during the partial government shut down. In a subsequent filing on January 15, 2019, seeking to delay its reply to South Carolina's Motion to Intervene, Department of Justice lawyers told the court that BOEM would not process the G&G permits during the shutdown, explicitly stating that "the Department of the Interior will not be acting on pending permit applications for the seismic survey activity at issue in this case until funding is restored." When the environmental petitioners pointed out that numerous press reports indicated that BOEM staff had been brought back for the sole purpose of processing those permit applications, DOJ attorneys were forced to admit that BOEM may "continu[e] to process the permit applications" during the lapse in appropriations, and may issue a permit decision as soon as March 1.
The judge hearing the case was not amused. In a sharply worded opinion issued on January 18, 2019, the judge invoked the little used All Writs Act to enjoin n"the Federal Defendants, BOEM, and any other federal agency or entity from taking action to promulgate permits, otherwise approve, or take any other official action regarding the pending permit applications for oil and gas surveys in the Atlantic based on the five incidental harassment applications issued by the NMFS ... until funds have been appropriated for the Department of Justice and all Federal Defendants" and DOJ has resumed briefing in the case.