Federal attorneys again mislead the Court on seismic permitting process

Federal attorneys again mislead the Court on seismic permitting process

Following the U.S. Secretary of Interior David Bernhardt’s April 25th public comments that he was delaying indefinitely efforts to produce a new five-year plan for oil leases off the nation’s coast, I sent Secretary Bernhardt a letter asking about his intentions on possibly suspending seismic permits processing for the Atlantic.

I wrote, “It only stands to reason that if there is confusion as to what a draft five-year plan will include when it is released, then we should not be exploring for oil deposits in offshore areas that might not be in that plan.”  I have not received a response from Secretary Bernhardt or his office.

However, this issue has now been addressed by the Department of Commerce in response to a May 2nd order by U.S. District Court Judge Richard Gergel asking for a status report on the seismic permits.

U.S. Justice Department attorney’s filed the response which essentially said that the Bureau of Ocean Energy Management—BOEM—(which is in the Department of Interior, not Commerce) continues to process the permits because there has not been an “announcement” from either the Department of Interior or Secretary Bernhardt to do otherwise.

The use of the word “announcement” is peculiar and suspicious in itself (why not use the word “directive” which would not have to be made public).

However, this statement does make it clear that the BOEM follows the instructions of Secretary Bernhardt and the Department of Interior regarding the processing of the seismic permits.

Which raises the question as to why Secretary Bernhardt and/or Interior does not respond to Judge Gergel’s request for a status report.

Why does Commerce and Justice Department attorney’s skip over the real authority over the seismic permitting process and go to the agency that only follows Interior’s orders?

We don’t get Secretary Bernhardt’s rational for not delaying the seismic permitting process given that he has told BOEM to do exactly that with the five-year plan process.

One possible reason is that the government’s attorneys don’t want to pin on Secretary Bernhardt this misleading statement in the response to Judge Gergel’s request:

2. Specifically, BOEM may authorize seismic survey activity in the OCS even in areas of the OCS that are not open to oil and gas exploration. Entities seeking to conduct geological and geophysical surveys can therefore obtain a permit in any area of the OCS, including those areas that have been withdrawn from leasing. See 43 U.S.C. § 1340; 30 C.F.R. pt. 551; see also Declaration of W. Cruickshank at ¶ 4.

Permit requests to BOEM for seismic survey’s are very specific as to their purpose.  BOEM issues seismic permits for numerous projects such as offshore mineral mining or siting platforms for wind turbines.

So yes, “BOEM may authorize seismic survey activity in the OCS (Outer Continental Shelf) even in areas of the OCS that are not open to oil and gas exploration”.

I think this is a disingenuous statement meant to mislead the Court and public into thinking that BOEM routinely approves seismic testing permits for offshore oil exploration even in areas of the ocean not going to be offered for drilling leases.

“Hey, no big deal.  We do this all this all the time.”

But to my knowledge, BOEM has NEVER approved permits for seismic surveys in areas not included in an OCS five-year drilling lease plan.

In fact, President Obama’s Department of Interior referenced this as rational for denying these same seismic permits in January of 2017:

  1. The Atlantic Program Area is not offered for leasing considerations for the next five years.
  2. There is still the possibility that seismic survey information would not be used if the Atlantic is not offered for future oil and gas leasing.

It didn’t matter that the seismic companies had contracts with oil companies to do the surveys.

Thus, the precedent that has been established is that when OCS areas have not and might not be offered by the government for oil leasing, seismic permits for oil exploration should not be approved even if legally they could be.

Unfortunately, this is not the first time that the government’s response to a Judge Gergel directive has been misleading.

Judge Gergel included a reference to the government’s previous deception in a January 18, 2019, order staying any BOEM actions to process seismic permits while the government was shut down due to there being no approved federal budget.

On January 15, 2019, responding to a direction from this Court, the Federal Defendants represented 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.” (Dkt. No. 65.) South Carolina filed a reply on January 16, 2019, noting that multiple news sources have reported that BOEM has since recalled workers to keep processing permits for oil and gas surveys, including off the Atlantic Coast. (Dkt. No. 66.) Responding to a direction from the Court to address South Carolina’s concerns, the Federal Defendants filed a sur reply on January 17, 2019, admitting that while no final permit decision would be made immediately, the BOEM may “continu[e] to process the permit applications” during the lapse in appropriations and, regardless of the status of appropriations, may issue a permit decision as soon as March 1, 2019. (Dkt. Nos. 72 at 1 4; 72-1 17.)2

Footnote 2. The Department of Justice further stated in its January 17, 2019 filing that it “sincerely apologizes for the inadvertent mischaracterization of the status of work on permits in its previous filings and … greatly regrets any confusion caused by that filing.” (Dkt. No. 72 at 12). The Court regards the earlier representation to the Court to have been, at best, misleading, and admonishes counsel for the Federal Defendants to use greater care in making representations to the Court in the future. (emphasis added)

The future is now.

I would contend that attorneys for the government have again tried to mislead the Court.


The South Carolina Small Business Chamber of Commerce and 16 SC coastal cities filed a federal lawsuit against the U.S. Department of Commerce on December 11, 2018 regarding the approval of incidental harassment authorizations for the Atlantic by the National Marine Fisheries Service.  The IHAs are needed for the approval of seismic survey permits by BOEM.