Salazar Warned in May, 2009 of Danger from BP Drilling in the Gulf

The U.S. House of Representatives Natural Resources Committee chaired by Rep. Nick Rahall (D-W.VA.), continues to  investigate the Deepwater Horizon oil rig explosion that has resulted in the massive oil spill in the Gulf of Mexico and will also examine the administration’s offshore oil and gas policy.

The investigation will focus, in part, on the effect of the oil spill on natural resources and the Mineral Management Service’s compliance with the laws. MMS is under Interior Secretary Ken Salazar’s supervision.  Watch the hearings live or archived here. For the full schedule of hearings, go here.  

The Attorney General Eric Holder has also launched a criminal investigation into the oil spill.

It appears the Dept. of Interior was warned as long ago as May, 2009 that BP’s operations in the Gulf of Mexico presented an extreme and potentially catastrophic danger to wildlife. In a letter from attorney David L. Perry, Perry & Haas, DOI was warned BP was ill prepared for malfunctions and "major portions of the project do not have the required engineering certifications", that "the number of critical documents never receiving engineering approval is breathtaking". Salazar was reminded of BP’s criminal history in regard to oil and gas exploration and drilling. Salazar was reminded of his own duty under the Submerged Lands Act to shut down oil and gas drilling operations when there is a "serious,  irreparable, or immediate" threat to wildlife.

Salazar apparently ignored the letter. 

The shocking oil spill in the Gulf of Mexico has prompted the Center for Biological Diversity to issue a notice of its intent to sue Ken Salazar, Secretary of the Interior, and the Minerals Management Service (MMS), which is under his jurisdiction.

CBD charges Salazar has violated the Marine Mammal Protection Act ("MMPA") (16 U.S.C. § 1361 et seq.) and the Endangered Species Act ("ESA")(16 U.S.C. § 1531 et seq.) in authorizing and managing, or mismanaging, oil and gas exploration and drilling in the Gulf. The oil, still gushing from a leak thousands of feet under the surface of the Gulf waters, is filling the Gulf and creeping into sensitive marshes, beaches and other coastal wildlife habitat. The oil has killed, injured or devastated marine mammals, birds, fish and other life. Dolphins have stranded on beaches, and birds and turtles have been found covered in the muck, struggling to breathe, to live.  (The devastation from oil and gas exploration and drilling generally is discussed at length in the CBD’s Notice of Intent to Sue, attached below.)

CBD explains, "Specifically, the Secretary has taken and continues to take actions approving offshore oil and gas lease sales, exploration plans, drilling plans, and seismic exploration permits-which result in harm, harassments and other forms of take of marine mammals, including marine mammals listed as threatened or endangered under the ESA-without authorization pursuant to the MMPA and ESA.

"The MMPA and ESA prohibit the take of protected marine mammals unless authorized. It is undisputed that oil and gas activities such as exploratory drilling and seismic surveys harm, harass and otherwise take marine mammals, yet [Salazar]has never obtained the required authorizations for such actions in the Gulf of Mexico. Meanwhile, offshore oil and gas development …has accelerated in recent years. Since President Obama took office on January 20, 2009, [the following have been] approved for the Gulf of Mexico:   

3 lease sales

103 Geological or Geophysical Exploration Permits ("G&G permits")

299 Exploration Plans

185 Development Operations Coordination Documents

According to CBD, "there has not been a single authorization" for these activities as required by these laws. It turns out the well drilled by the Deepwater Horizon rig was one of those activities Salazar allowed to proceed without authorization.

In the case of the Gulf of Mexico, Salazar has promoted oil and gas exploration as if he is Energy Secretary.  Had he truly acted as Interior Secretary, maybe he would have taken steps or at least followed the law, to try to protect what is "one of the most productive-and fragile-marine ecosystems in the nation."

"The Gulf of Mexico is home to thousands of marine species, ranging from simple invertebrates such as gastropods and sponges to complex and highly evolved fish and marine mammals. It is estimated that there are thousands of species of invertebrates, at least 600 species of fish, and 29 species of cetaceans in the Gulf. In addition, five of the world’s eight species of sea turtles as well as tens of thousands of shore and coastal birds reside in or migrate to the Gulf of Mexico. More than 300 species of coral, combined with other hard-bottom communities, wetlands, seagrass beds, mangroves, and soft-bottom communities, provide the necessary habitat to support this rich assemblage of marine life. ….

"Many of the marine mammals living in the Gulf are listed as endangered under the ESA. Six endangered whale species are known to occur in the Gulf of Mexico-the sperm whale, blue whale, finback whale, sei whale, humpback whale and North Atlantic right whale-and the West Indian manatee inhabits the Gulf’s coastal waters. Other species of marine mammals that occur in the Gulf of Mexico, all of which are protected under the MMPA, include dwarf and pygmy sperm whales, Bryde’s whales, several species of beaked whales, Northern Gulf of Mexico stocks of bottlenose dolphins, Atlantic and pantropical spotted dolphins, striped dolphins, spinner dolphins, Clymene dolphins, Fraser’s dolphins, killer whales, pygmy killer whales, Risso’s dolphins, melon-headed whales, and short-finned pilot whales. In total, twenty-nine species of marine mammals occur in the Gulf of Mexico".  Gulf of Mexico OCS Oil and Gas Lease Sales: 2009-2012; Central Planning Area Sales 208, 213, 216, and 222; Western Planning Area Sales 210, 215, and 218; Final Supplemental Environmental Impact Statement at 4-84 (2009); Notice of Intent to Sue: Violations of the Marine Mammal Protection Act and Endangered Species Act: Unauthorized Take of Marine Mammals Related to the Offshore Oil and Gas Activities in the Gulf of Mexico (attached below)

The Marine Mammal Protection Act and the Endangered Species Act

Under the MMPA there is a  "moratorium on the taking . . . of marine mammals." Id. § 1371. The MMPA, the term "take" means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." Id. § 1362(13). "Harass" is further defined to include acts of "torment" or "annoyance" that have the potential to injure a marine mammal or marine mammal stock in the wild or have the potential to "disturb" them "by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering." Id. § 1362(18); 50 C.F.R. § 216.3 (defining "Level A" and "Level B" harassment).

Generally, only the Secretary of Interior or Secretary of Commerce can authorize a "taking" and can do so only "through the issuance of either small take regulations or an ‘incidental harassment’ authorization. 16 U.S.C. § 1371(a)(5); 50 C.F.R. § 18.27 (FWS), 216.106-07 (NMFS). The MMPA and its accompanying regulations set forth standards and procedures, including public comment requirements, which must be satisfied before either small take regulations or incidental harassment authorization may issue. Id."

These regulations can only authorize a taking for up to 5 years "on the condition that: (i) it is limited to a ‘specified geographical region’; (ii) it allows the taking of only small numbers’ of marine mammals; (iii) the takings it authorizes have no more than a ‘negligible impact’ on species and stocks; (iv) it provides for the monitoring and reporting of such takings; and (v) it prescribes methods and means of effecting the least practicable adverse impact’ on species and stocks and their habitat. 16 U.S.C. § 1371(a)(5)(A). Each of these requirements is mandatory and cannot be skirted by claims of insufficient information. If the issuance of a small take permit is found to be appropriate, The U.S. Fish & Wildlife Service (FWS) or the National Marine Fisheries Services (NMFS) will issue a Letter of Authorization’ (‘LOA’) to the applicant, allowing it to take action consistent with the regulations. 50 C.F.R. § 18.27 (FWS) and § 216.106 (NMFS).

"If the expected take is limited to harassment and does not have the potential to result in serious injury or mortality, FWS and/or NMFS may issue an Incidental Harassment Authorization (‘IHA’) for not more than one year, provided that all of the other conditions that apply to small take regulations are met. 16 U.S.C. § 1371(a)(5)(D), 50 C.F.R. § 216.107."

"Section 9 of the ESA specifically prohibits the take’ of an endangered species, 16 U.S.C. § 1538(a)(1)(B), a term broadly defined to include harassing, harming, pursuing, wounding or killing such species, 16 U.S.C. § 1532(19). The term harm’ is further defined to include significant habitat modification or degradation where it . . . injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.’ 50 C.F.R. §17.3 Harass’ includes any act or omission which creates the likelihood of injury to wildlife by annoying it to such and extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.’ Id. The ESA’s legislative history supports the broadest possible’ reading of take.’ Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704-05 (1995). Take’ includes direct as well as indirect harm and need not be purposeful. Id. at 704; see also National Wildlife Federation v. Burlington Northern Railroad, 23 F.3d 1508, 1512 (9th Cir. 1994)."

Salazar’s alleged violations of the laws

To begin with, CBD says Salazar has failed to publish proposals for oil and gas exploration and drilling in the Gulf in the Federal Register and solicit public comment. This is nothing new, of course. Salazar’s BLM has long turned a deaf ear to public comment even when it was solicited!

According to CBD, "Neither the Secretary nor any industry operator has to date received any authorization pursuant to the MMPA  for [these oil and gas exploration and drilling activities]. The Secretary admits …oil and gas activities can harm and harass marine mammals in a variety of ways. Thus, the Secretary is in continuing violation of the MMPA by authorizing, approving and allowing oil and gas activities in the Gulf of Mexico that are certain to result in take without obtaining, or requiring operators to obtain… authorization… 16 U.S.C. §§ 1371(a)(5) & 1372."

CBD notes, "The Secretary’s violations of the MMPA in the Gulf of Mexico can only be considered knowing and deliberate. The Secretary [prior to Salazar] attempted to gain MMPA authorization from NMFS in 2002, yet that process has never been finalized. In 2002, MMS petitioned NMFS for regulations under the MMPA for incidental take of sperm whales due to seismic surveys in the Gulf of Mexico. …In 2004, MMS revised its petition to include the incidental take of other species of marine mammals, such as the Bryde’s whale and several species of dolphins and beaked whales. …[Nothing was completed]… Despite this acknowledgement that oil and gas activities harm and harass marine mammals in violation of the MMPA, the Secretary has continued to authorize, approve and allow such activities without MMPA authorization…[,] a knowing violation of the MMPA. See 16 U.S.C. §§ 1372 & 1375(b)."

Interestingly, CBD notes, "It is possible that NMFS was not able to authorize the take because it could not determine that the requirements of MMPA authorization were met-i.e., that only small numbers of marine mammals would be taken and that the take would have no more than a negligible impact on the species or stocks…."

According to CBA, "[Salazar] has never obtained … authorization for taking ESA-listed marine mammals in the Gulf of Mexico for its offshore oil and gas activities. The Secretary is well aware of his lack of take authorization under the ESA."

"Although NMFS issued an Incidental Take Statement on sea turtle species, which contained measures to help minimize take, NMFS never authorized take of ESA-listed marine mammals. …NMFS could not authorize take of ESA-listed marine mammals absent authorization under the MMPA.

"Although MMS has never received ESA take authorization for any listed marine mammals, it has continued to approve Gulf of Mexico offshore exploration and development activities. These activities harm, injure, and harass threatened and endangered marine mammals, thus resulting in take. As described above, seismic surveys disturb whales, mask important communications, and can result in temporary or permanent hearing loss. Noise from drilling, service vessels, and air traffic also contributes to noise disturbance. Additionally, offshore oil and gas activities harm and harass marine mammals through pollution-including routine discharges, marine debris, and oil spills-and marine mammals are often victims of vessel strikes that can result in serious injury or mortality.

"In this case, no take of ESA-listed marine mammals has ever been authorized related to oil and gas activities in the Gulf. Meanwhile, the Secretary’s actions authorizing, approving and allowing oil and gas activities that are certain to result in take of ESA-listed marine mammals such as sperm whales are continuing. …The Secretary’s continued authorization of exploration, development, and seismic activities directly authorizes offshore oil and gas activities that have been documented to take marine mammals and therefore is the legal cause of such take. Such take is ongoing, and likely to continue to occur. As such the Secretary is violating section 9 of the ESA."