Interior Secretary David Bernhardt told the U.S. House Natural Resources Committee that the federal Bureau of Ocean Energy Management remains working on seismic airgun testing permits — a key prerequisite to offshore oil and gas drilling — while issues regarding the legality of the Trump administration’s offshore leasing plan work their way through the federal court system.

In late March, a federal district judge in Alaska ruled Executive Order 13795, and subsequent efforts by the Trump administration to open up offshore drilling access in waters off Alaska and the Atlantic Coast, were illegal in attempting to repeal former President Barack Obama’s withdrawal of unleased lands in those areas under Section 12(a) of the Outer Continental Shelf Lands Act.

Since that point, there’s been some confusion about what the Interior Department will and won’t do. Attorneys for the federal government stated in a May 9 status report — in the seismic testing lawsuit in federal court in Charleston, S.C. — that neither the department nor Bernhardt made any announcement that Interior “may wait until the resolution of any potential appeal” of that ruling before making decisions on authorizing offshore activities.

Georgia’s One Hundred Miles is a party to the lawsuit, as is other environmental conservation groups, a group of nine states, the state of South Carolina — separately from the other states — a group of South Carolina coastal municipalities and the S.C. Small Business Chamber of Commerce.

Defendants include the companies that are applying for the seismic testing authorizations and two industry associations, the National Marine Fisheries Service, the assistant administrator for Fisheries and Commerce Secretary Wilbur Ross.

On the part of the federal government, the seismic testing process is moving right along. Whether drilling does or doesn’t occur following that seismic testing — should the authorizations go out and companies commence testing — is more in doubt.

In response to a question from U.S. Rep. Joe Cunningham, D-S.C., Bernhardt said, “I think there’s no legal impediment to developing a leasing plan. There is a question about what the scope of that particular plan could be, and what it could contain when you got to the point of finalization.”

Bernhardt later elaborated, “There’s a legal impediment to moving forward in a particular way that leads to a particular outcome. The district court has laid out a paradigm that I fully suspect the Department of Justice will want to challenge, and I’ll be trying to develop a plan while that’s going on, and then the court will ultimately rule, and then I would have to deal with that, and if I guessed wrong. So, I’m not sure what I’m going to do.”

Bernhardt said he didn’t think it was a wise use of resources to have to go back and fix the leasing plan if the courts find part of what the administration wants to do is illegal, so he wants the plan, once finalized, to be able to go into effect as it is. Bernhardt said he has until 2022 to get a new leasing plan in place, that he informed the White House that Interior is “in pause” and that he is consulting with the Justice Department.

In light of the statements made by DOJ attorneys in the status update — which Bernhardt explained to the House committee — the state of South Carolina filed a response Monday asserting the update clearly demonstrates a need for a preliminary injunction halting seismic testing authorizations.

The South Carolina lawyers argue, “The Department of the Interior, given the opportunity to assure the court in this status report that ‘offshore activities’ will be delayed in light of Secretary Bernhardt’s earlier comments to the Wall Street Journal, has done just the opposite. BOEM Acting Director (Walter) Cruickshank has informed the court that BOEM’s review of seismic testing permit applications continues.

“Because such review by BOEM is proceeding apace, and because the initiation of seismic surveying is imminent, a preliminary injunction is necessary to avoid the irreparable harm to South Carolina and its economy and citizenry which seismic testing will inflict.”

While Georgia hasn’t joined this lawsuit, Gov. Brian Kemp remains opposed to oil and gas exploration in federal waters off the Georgia coast, and the state House of Representatives passed a nonbinding resolution during the last session opposing seismic testing and offshore drilling.

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