Fight against seismic testing ramps up with another legal action

By on February 21, 2019

A ship tows an array of airguns. (Bureau of Ocean Energy Management)

Mark Hibbs
Coastal Review Online

A group of conservation organizations this week asked a federal judge to block the start of any seismic exploration for oil and natural gas off the East Coast until after a pending legal challenge is heard in court.

The groups, which include the North Carolina Coastal Federation, publisher of Coastal Review Online, requested the prelimiary injunction Wednesday in federal court in Charleston, S.C.

Sixteen South Carolina coastal communities and the South Carolina Small Business Chamber of Commerce filed a lawsuit in December seeking to prevent seismic testing. It has since been merged with that of the conservation groups, and 10 attorneys general from East Coast states, including Josh Stein of North Carolina, have intervened in the combined lawsuits.

The seismic companies that applied for permits and two industry groups, the American Petroleum Institute and the International Association of Geophysical Contractors, intervened on behalf of the federal government to defend the permits.

The conservation groups also include the South Carolina Coastal Conservation League, Center for Biological Diversity, Defenders of Wildlife, Natural Resources Defense Council, Oceana, One Hundred Miles, Sierra Club and the Surfrider Foundation. The Southern Environmental Law Center is representing South Carolina Coastal Conservation League, Defenders of Wildlife and One Hundred Miles. Earthjustice is representing Sierra Club and the Surfrider Foundation.

The motion contends, among other things, that the Trump administration’s approval for five companies to harm marine life with seismic operations violates the Marine Mammal Protection Act, the Endangered Species Act and the National Environmental Policy Act.

Without an injunction, seismic exploration could begin before the case is resolved, the groups contend. That would put at risk dolphins, whales and other animals as seismic air guns create one of the loudest sources of noise in the oceans, according to the groups.

“The government failed to consider the combined effects of overlapping and simultaneous surveys, which are greater than the effects of individual seismic-blasting boats,” the groups said in an announcement released Wednesday.

“The government erroneously determined that only a ‘small number’ of whales and dolphins would be harmed. Should it go forward, this blasting will irreparably harm marine species, from tiny zooplankton — the foundation of ocean life — to the great whales.”

Permitting was delayed earlier this year during the partial government shutdown over border wall funding. The judge has since lifted the stay he imposed to prevent the Bureau of Ocean Energy Management from issuing seismic permits during the shutdown.

The National Marine Fisheries Service in November 2018 issued multiple authorizations to five companies that applied to incidentally, but not intentionally, harass marine mammals during geophysical survey activities in the Atlantic Ocean from Cape May, N.J., to Cape Canaveral, Fla. The effective dates for the authorizations are to be determined but must not be later than Nov. 30 of this year.

The filing also claims seismic testing could irreparably harm the remaining population of North Atlantic right whale, a critically endangered species. The groups cite research showing there are only about 400 right whales remaining in the Atlantic. Also, seismic testing’s effects would be concentrated on the world’s densest population of acoustically sensitive beaked whales off the Outer Banks.

Also this week, conservation groups and eastern North Carolina elected officials weighed in on the Trump administration’s new five-year plan for offshore drilling, pointing to the risks posed to the environment and coastal economies and citing adamant local opposition.

The administration says it seeks to maintain the nation’s position as “a global energy leader and foster energy security and resilience for the benefit of the American people,” according to the draft 2019-24 proposed National Outer Continental Shelf Oil and Gas Leasing Program released Jan. 4, 2018. It proposes dramatically expanded drilling off the nation’s coastlines. This includes the Mid-Atlantic planning area from Delaware to the North Carolina-South Carolina line.

In a letter dated Feb. 18 to Interior Department Acting Secretary David Bernhardt, the National Wildlife Federation and more than two dozen of its affiliates, including the North Carolina Wildlife Federation, urge the administration to abandon its plans for expanded offshore drilling and instead work with governors and residents of coastal states. The letter contends that the environmental risks are too great in coastal regions that depend on oceans and marine wildlife to support billions of dollars of economic activity and sustain tourism, outdoor recreation and fishing.

The Wildlife Federation writes that coastal wetlands and dunes protect communities and shelter birds and mammals. “That’s why every single governor from Maine to Florida and from Washington to California opposes offshore drilling off their coasts,” according to the letter.

Earlier this month, Sen. Thom Tillis, R-N.C., requested additional information on the recent decision to open the Atlantic Outer Continental Shelf for review under a new oil and gas leasing program.

Tillis’ letter to Bernhardt and the secretary of the U.S. Department of Commerce, the acting director of the Bureau of Ocean Energy Management and the assistant secretary for Oceans and Atmosphere at the Department of Commerce, requests more information about the plan to ensure there are adequate protections for North Carolina’s coastal communities. Tillis also invited the administration officials to visit North Carolina “for listening and education sessions across our coastal counties on the topic of offshore energy exploration.”

The ocean advocacy group Oceana joined with officials from Dare and Carteret counties this week in a response to Tillis’ letter. The letter, provided to Coastal Review Online by Randy Sturgill of Oceana and published Tuesday in the News & Observer, was signed by Sturgill, Nags Head Mayor Ben Cahoon, Beaufort Mayor Rett Newton, Dare County Board of Commissioners Chairman Bob Woodard, Environment North Carolina Director Drew Ball and Outer Banks Surfrider Foundation co-chair and small business owner Matt Walker.

The letter praises Tillis’ “newfound interest” in how drilling and seismic testing could affect tourism and commercial fishing, but notes that “the information he seeks has been available for quite some time.” The groups go on to cite state figures on coastal tourism, which supports more than 30,000 jobs and generates more than $3 billion in annual revenue in North Carolina, and commercial and recreational fishing – an additional 22,500 jobs and $787 million in revenue each year.

“Where offshore drilling exists in the U.S, between 2001 to 2015, there were over 700 offshore petroleum spills that discharged at least 4.93 million barrels. One of the primary causes was hurricanes. The fact is, drilling is inherently risky and there is no way to guarantee against spills,” according to the letter.

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