By Lawrence A. Kogan
This article questions the extent to which U.S. continental shelf seabed mining policy, as reflected in the U.S. administration's recently issued five-year OCS development plan and accompanying agency regulations, is influenced by international environmental law, especially the deep seabed mining and environmental provisions (Parts XI-XII) of the United Nations Convention on the Law of the Sea ('UNCLOS') to which the U.S. has not yet acceded. It seeks answers in the first advisory opinion issued by UNCLOS' International Tribunal for the Law of the Sea ('ITLOS') which sets forth the legal responsibilities and obligations of UNCLOS State Parties that sponsor deep seabed mining activities in international waters. The opinion is significant, for among other reasons, its review and incorporation of evolving international environmental legal norms not expressly included within original or amended treaty text, such as Principle 15 of the Rio Declaration on Environment and Development (i.e., the precautionary approach) and its consequent imposition of new legal duties on treaty Parties.U.S. Outer Continental Shelf Policy and its Domestic Environmental DimensionFrom Formal Suspension of Offshore Drilling Bans to Informal Suspension of Offshore DrillingOuter Continental Shelf Lands Act and Accompanying RegulationsDuring 2008, the 110th U.S. Congress and former President Bush collectively removed decades-old congressional and presidential bans on offshore drilling along the U.S. OCS. The U.S. Outer Continental Shelf Lands Act (OCSLA) and accompanying U.S. Department of Interior implementing regulations constitute the primary authority for permitting, and granting the U.S. Secretary of the Interior authority over, approved OCS leasing activities consisting of the exploration, development and production of minerals. The OCSLA defines the OCS as "all submerged lands lying seaward and outside of the areas...[under state control] and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control...." In other words, the OCS "is a federal offshore area...[consisting of the submerged lands, subsoil, and seabed lying between]...the edge of state waters, usually starting at 3 nautical miles from shore...[and a]...seaward...distance of about 200 nautical miles, and may in special cases in the future extend out to 350 nautical miles." The OCS lies below the U.S. exclusive economic zone ('EEZ') which generally includes waters extending from 3 to 200 nautical miles from the U.S. shoreline. The U.S. may exercise certain sovereign rights within its EEZ to facilitate the economic exploitation of natural resources, including those found in the OCS, and to legally protect those resources and the surrounding marine environment.OCSLA prescribes "four distinct statutory stages to developing an offshore oil well: (1) formulation of a five year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Each stage involves separate regulatory reviews ['tiered reviews'] that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS. And each stage includes specific requirements for consultation with Congress, between federal agencies, or with the States. Formal review of consistency with state coastal management plans is expressly reserved for the last two stages."Applicable U.S. Department of Interior ('DOI') regulations implementing OCSLA require lease operators intending to employ non-conventional production or completion technology to undergo a deepwater operations planning process that includes the submission of a deepwater operations plan ('DWOP') and a conceptual plan "before they conduct post-drilling installation activities". These regulations also set forth the conditions under which such plans must be submitted as well as their contents, and they include reference to development and production plans ('DPP's) and development operations coordination documents ('DOCD's) which they supplement. BOEM must treat an operator's DPP or DOCD that satisfies all regulatory requirements as having been 'submitted' within five working days of its submission to the agency. [footnotes omitted]
Lawrence A. Kogan, Esq. is Managing Attorney of The Kogan Law Group, P.C., a New York City-based multidisciplinary professional services firm, and President/Director of the Institute for Trade, Standards and Sustainable Development (ITSSD)that is a globally recognized NGO for reporting and analysis of the growing influence of evolving foreign and international public interest rules on private property rights and the American free enterprise and common law systems.
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