A federal judge in the lawsuit in South Carolina regarding seismic air gun testing off the Atlantic Coast ordered Friday a halt on all action by the Bureau of Ocean Energy Management on pending seismic testing permits.
Three days earlier, it didn’t appear that would be necessary, but evidently one part of the Trump administration was not privy to work being done by the other part, and federal attorneys had to apologize Thursday to the court for this miscommunication.
Lawyers for the federal government call it an “inadvertent mischaracterization” of the Interior Department’s actions.
Tuesday, those lawyers stated in a filing that because of the partial government shutdown, “The Department of the Interior has confirmed that due to the lapse in appropriations, 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.”
BOEM Acting Director Walter Cruikshank explained in a declaration attached to Thursday’s filing, “On Jan. 8, 2019, the Department of the Interior issued a revised contingency plan in the event of a lapse of appropriations for BOEM. Since the issuance of the initial contingency plan in December 2018, BOEM identified certain available carryover funds that could be used for certain purposes.
“The revised contingency plan for BOEM provided, in part, that the bureau will have 40 personnel available on an on-call basis to perform exempt functions related to certain (outer continental shelf) oil and gas activities, including processing of Atlantic (geological and geophysical) permit applications and completing environmental reviews.”
Cruikshank wrote that the statement in the Tuesday filing “was intended to mean that BOEM would not take final action on the permit applications until funding was restored, and was not intended to imply that BOEM is not continuing to process the permit applications or undertake other preparatory work during the lapse in funding.”
He noted BOEM won’t make a final decision on any seismic testing permit application before March 1, regardless of the status of the government shutdown.
U.S. District Judge Richard Gergel wrote in his Friday order that an injunction against the federal government under the All Writs Act “is necessary so this court can properly assess what remedies, if any the states seeking to intervene are entitled to should BOEM issue permits during this lapse in appropriations.”
The state of South Carolina, through S.C. Attorney General Alan Wilson, filed a motion to intervene as a plaintiff.
In a separate motion, several other states requested the same, including Maryland, Connecticut, Delaware, Maine, New Jersey, New York, North Carolina, Massachusetts and Virginia. Gergel has yet to rule on their entry because of hinderances placed on the federal attorneys to respond to those intervention requests because of the lapse in appropriations. A Dec. 28 order directed the federal attorneys to respond within 13 days after Congress restores funding.
South Carolina pressed the issue Jan. 8, arguing a stay would impede its effort to respond to actions carried out by BOEM in the meantime on the seismic testing permits.
The Friday order continues, “The federal defendants’ sur replay acknowledges that the permits may issue as soon as March 1, 2019, regardless of whether funds have been appropriated for the federal defendants. Should BOEM issue these permits during the stay, as its own contingency plan indicates it may, the states moving to intervene would be directly impacted by the decision, with seismic testing potentially off their shores.
“However, as non-parties in this case, the states would be devoid of the opportunity to seek appropriate remedies. The proposed stay and the federal defendants’ lack of response would prevent the court from bringing the states into the case to vindicate their rights. This would divest this court of jurisdiction to determine the entire matter at issue in this case.
“Further, should the five companies begin seismic air gun testing prior to the end of the shutdown, their actions will also affect this court’s power to assess irreparable harm in any future motion for a preliminary injunction.”
As a result, Gergel enjoined the National Marine Fisheries Service, Commerce Secretary Wilbur Ross, 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 based on the five incidental harassment applications issued by NMFS to the five companies — Spetrum Geo, TGS-NOPEC Geophysical Company, Ion GeoVentures, WesternGeco and CGG.
The injection is to remain in effect until three actions take place — the end of the government shutdown, the court receiving the federal defendants’ responses to the motions to intervene and the court’s ruling on those motions.
Nine environmental advocacy groups brought the original complaint Dec. 11, including Georgia organization One Hundred Miles. Sixteen South Carolina cities and towns, including the S.C. Small Business Chamber of Commerce, who filed suit the same day, later joined this case when their suit merged with this one.
The five companies issued incidental harassment permits, along with the American Petroleum Institute and the International Association of Geophysical Contractors, filed a motion to intervene as defendants Dec. 21, the same day as the beginning of the shutdown.