Reporters Be Warned: ‘Offshore Fracking’ Lawsuit is a Deceptive Venue Shopping Tactic

The Center for Biological Diversity (CBD) recently filed a lawsuit against the Trump administration for reissuing a permit that would allow wastewater from oil and gas operations to be released in the Gulf of Mexico, resulting in numerous headlines suggesting wrongdoing.

But not only does the lawsuit falsely claim the administration failed to conduct a comprehensive environmental review prior to issuing the permit, the U.S. Environmental Protection Agency (EPA) has directly refuted the CBD’s claims that release of wastewater into the Gulf would result in environmental harm, echoing the conclusions of past regulatory authorities.

Of course, the CBD knew all of this prior to filing the lawsuit, but that hasn’t kept it from pursuing (and achieving) its true objective — impeding the regulatory process and generating as many headlines as possible. Here are the under-reported facts on this lawsuit and the CBD tactics that will no doubt be employed in other areas of the country in the future.

Regulators Refute Claims Made in Most Recent Lawsuit

While there are a number of issues with the CBD’s claims in its latest lawsuit, the crux of its argument is that this National Pollutant Discharge Elimination System (NPDES) permit threatens endangered species and habitats found in the Gulf. Citing Section 7 of the Endangered Species Act (ESA), the CBD is arguing that the proper environmental assessment wasn’t conducted prior to its issuance. This is simply not true. In fact, the CBD raised this issue under the 60-day comment period when the reissuance of the permit was announced and was promptly set straight by the EPA:

“EPA agrees that consultation with the National Marine Fisheries Service (NMFS) is required for this action. NFMS has determined in this case that the most effective means to conduct formation consultation is through a gulf-wide consultation with BOEM [Bureau of Ocean Energy Management] and EPA that addresses all oil and gas related federal actions being undertaken at this time. Based on prior consultations and current information, the EPA has determined that the General Permit may be issued consistent with Sections 7(a)(2) and 7(d) of the ESA prior to the completion of formal consultation with NMFS.”

If that weren’t enough, the BOEM completed its OCS Environmental Impact Study, which found that the current permit’s regulations were appropriate and discharge of oil and gas wastewater under the permit would have minimal impact. As the study states:

“These regulation and permit provisions are designed to prevent unreasonable degradation of the marine environment, and adherence to these requirements by industry would be expected to result in limited impacts to water quality (USDOI, BOEM, 2017a). The impacts from these factors are, therefore, expected to be nominal given assumed compliance with existing regulations and permit requirements.”

The CBD has also touted its lawsuit as a way to stop “the dumping of dangerous fracking chemicals” from oil and gas operations into the Gulf. This statement so egregiously misrepresents the regulated discharge of wastewater from offshore oil and gas activities, one wonders whether the CBD bothered to read the current regulations at all. The CBD’s consistent use of “fracking” and “chemicals,” including a listing of various compounds in its press release, is simply a scare tactic. Offshore hydraulic fracturing differs substantially from onshore fracking, with offshore well stimulations using “significantly lower volumes of hydraulic fracturing fluid and additives compared to most onshore wells,” according to EPA. Additionally, offshore fracking activities differ from onshore fracking in that offshore fracking is typically used to repair formation damage or prevent erosion.

Further, the chemicals used in offshore fracking and their concentrations are strictly regulated, with operators required to submit the chemical make-up of any wastewater discharge and ensure that it is free of any oil or grease. Under the current standards, EPA has not found evidence that permitting the discharge of wastewater has negatively impacted humans, wildlife or the ecosystem. According to the EPA:

“In addition, whole effluence toxicity data submitted by permittees under the current Region 6 offshore GP [General Permit] indicates that such discharges consistent with the terms of the GP have not had adverse impact on the marine environment. EPA has neither observed nor discovered scientific evident of ‘significant adverse changes’ in ecosystem diversity, productivity or stability of the biological community as a result of the discharges, no threat to human health through direct exposure to pollutants or consumption of exposed aquatic organisms, and no loss of esthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived from the discharge.” (emphasis added)

It is also important to note that the regulated discharge of wastewater from offshore oil and natural gas development in the Gulf of Mexico is not new. Beginning in 1981, the EPA issued a general permit under the NPDES, which authorized “discharges from facilities located seaward of the outer bounder of the territorial seas of Louisiana and Texas,” otherwise referred to as the Western Gulf of Mexico’s Outer Continental Shelf (OCS).

Since then, the permit, in various forms, has been reissued every few years to include the latest data, technology and practices. Such updates have included setting limits on specific chemicals and compounds under the EPA’s Effluent Limitations Guidelines for Best Available Technologies Economic Available, which help mitigate impact to the surrounding environment. Most recently, the general permit was reissued in 2012 under the Obama Administration to include requirements on electronic discharge monitoring.

In other words — this is not a partisan action by the current administration, but a continually updated process, which allows for the vital development of offshore resources to continue.

 Par for the Course for the CBD

If this all sounds familiar, it’s probably because California regulators refuted similar CBD claims regarding offshore oil and gas activities back in 2016, issuing a Finding of No Significant Impact (FONSI) following a taxpayer-funded environmental assessment that was part of a lawsuit settlement agreement with the CBD.

The fact that the CBD refused to accept that scientific conclusion and has instead simply moved onto a new area of the country to file another frivolous lawsuit is not surprising.

As EID has highlighted before, the CBD isn’t about to let scientific facts get in the way of trying to advance an agenda which has nothing to do with honest advocacy for more effective regulations to protect the environment. Instead, this “multimillion dollar litigation factory’s” true goal is to use “psychological warfare” to “mock,” “destroy” and delay projects of every type, even if it means routinely misleading elected officials and intentionally misrepresenting important data.

The group is currently employing similar tactics to try to disrupt responsible development in Ohio’s Wayne National Forest. The only question now is: Where will the CBD go venue shopping for its next frivolous lawsuit? And will the media catch on to its tactics?

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