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of such a program would have to balance the needs and problems of all those regional areas, and of the Federal Government. Therefore, in order to provide for a consolidated review mechanism, review of a leasing program is to be only in the U.S. Court of Appeals for the District of Columbia. Review of an exploration plan or a development and production plan, would be held closer to the area in which the plan was submitted, in the U.S. Court of Appeals for a circuit in which an affected State is located.
A petitioner must seek review within 60 days after the date of the challenged action, and must promptly submit copies of his petition to the Secretary and to the Attorney General.
The court of appeals is to consider the matter upon review of the record made before the Secretary. The Secretary is to file records of any public hearings, and to supply any additional information on which he based his decision.
To insure an opportunity for the Secretary during his administrative procedures to consider and resolve disputes, specific objections to a proposal or plan are to considered by the court of appeals only if the issue upon which such objections are based were raised in the administrative procedures. The findings of the Secretary, if supported by substantial evidence on the record, considered as a whole, shall be conclusive. The court of appeals can affirm, vacate, or modify any order or decision, or can remand proceedings back to the Secretary court of appeals can be subject to review by the Supreme Court of the for further action as it may direct. Of course, the judgment of the United States upon a writ of certiorari.
In order to assure that citizens will have the assistance of effective counsel, the court in issuing any final order in a citizen's suit or judicial review, can award costs of litigation, including reasonable attorney's fees, to a party in an appropriate case. In order to avoid frivolous litigation, the court can require a bond or equivalent security if a temporary restraining order or injuction is sought. Section 24.-Remedies and Penalties.
Section 24(a) authorizes the Attorney General, or a U.S. attorney, at the request of the Secretary of the Interior,54 to institute civil actions, including seeking restraining orders or injunctions, to enforce the Act, any Regulation or Order issued under this Act, or any team of a lease, license, or permit issued pursuant to this Act.
Subsection 24(b) provides for a civil penalty to be assessed against any person, who after notice, a reasonable period for corrective action, and a hearing, continues to fail to comply with the Act, any regulation or order under it, or the terms of an OCS lease, license or permit. The maximum penalty is $10,000 per day.
Subsection 24(c) provides criminal penalties for knowing and willful violations of any provision of this Act, any regulation or order issued under the authority of this Act, or the terms of any OCS lease, license, or permit, designed to protect public health, safety, or the environment, or conserve natural resources. There are also criminal penalties for any person who knowingly and willfully makes any false statement, representation, or certification in any application, record, report or plan or other document filed or required to be maintained under this Act; who knowingly and willfully falsifies, tampers with or renders inaccurate any monitoring device or record required to be under this Act; who knowingly and willfully falsifies, tampers with any data or information required to be kept confidential by this Act.
54 In order to conform this section to other provisions of the bill, to provide for Interior to be a clearinghouse for OCs actions, as the lead agency, requests for enforcement are to be made only by the Secretary of the Interior. Of course, the Secretary is expected to consult other involved agency and department heads and when appropriate, forward their requests for enforcement action, and assess and collect penalties.
The criminal penalty is a fine of not more than $100,000, or imprisonment for not more than 10 years, or both. However, each day that a person violates a regulation, or each day that a monitoring device remains inoperative or inaccurate, will be considered a separate offense, subject to the maximum fine and penalty.
Subsection 24 (d) provides for application of the criminal penalties against corporate officials when the violator is a corporation or other business entity, and the officer or agent knowingly and willfully authorized, ordered or carried out the proscribed activity.
Subsection 24(e) states that the remedies and penalties in this section are to be concurrent with each other, and any other remedies afforded by any other law or regulation. Section 25.-Oil and Gas Development and Production
Section 25 is intended to provide the mechanism for review and evaluation of, and decision on, development and production in a leased area, after consultation and coordination with all affected parties.
The committee considers this one of the most important provisions of the 1977 amendments. It provides a means to separate the Federal decision to allow private industry to explore for oil and gas from the Federal decision to allow development and production to proceed if the lessee finds oil and gas. The failure to have such a mechanism in the past has led to extensive litigation prior to lease sales, when onshore and environmental impacts of production activity are not yet known. In fact, the failure to have this procedure has led, in part, at least one court to invalidate an entire lease sale.55
The Secretary of Interior has publicly stated that he favors the mechanism described in this section and, while hopeful that legislation will be forthcoming, if necessary will implement its provisions under his general regulatory authority. Even before this recent pronouncement by the new Secretary of Interior, the Interior Department recognized the need for affected States, and other interested persons, to receive information and input into development and production decisions, by adopting regulations providing for a lessee to supply a development and production plan to the Secretary of the Interior prior to commencement of development and production. In addition, these new regulations provide for information concerning the expected onshore development as a result of such development and production off-shore to be forwarded to the States. Section 25 seeks to strengthen and enact into law the protections afforded by these regulations, and mandate procedures for the review and approval, disapproval, modification, or revision of development and production plans.
55 The Baltimore Canyon Lease Sale No. 40. County of Suffolk v. Secretary of the Interior, 7 Envt'l L. Rptr 20230 (E.D. N.Y. 1977), rev'd, F. 2d (2nd Cir. 1977). The Court of Appeals reversed on the assumption that the now Secretary of Interior will keep his commitment to conduct a second review prior to development.
The committee recognized, that in many cases, there is no real separation between exploration and production. Exploration activities, including delineation drilling, can continue in a lease area even after production has commenced. However, the committee also recognized that there is a point in time when the lessee has to make a decision whether or not he is going to order a platform, seek related onshore” support facilities, and commence substantial development and production in a lease area. This decision is perhaps, with the exception of the purchase of a lease, the key decision, with the most significant effects, relating to OCS activities. This section utilizes the natural pause
that occurs when a lessee determines he is to commence major development as the basis to supply needed information to affected, states and other interested persons, and to provide a mechanism for decisions as to continued activity on a lease.
Off-shore plan and on-shore statement Subsection 25 (a) provides that prior to development and production, a lessee is to submit a development and production plan to the, Secretary for approval. The plan is to be accompanied by a statement describing facilities and operations other than on the Outer Continental Shelf resulting from activities on the Shelf.
The requirement of submission of a development and production plan for approval, and of the statement for review, does not apply to leases in non-frontier areas unless the Secretary finds a plan is necessary in the public interest, or in any case to existing leases in any area where oil and gas in commercial quantities have been discovered prior to enactment of this section.
As section 25 provides a new mechanism for approval, and disapproval, of activities, the committee believed it inappropriate to apply it to any lease in an area which has undergone substantial activity, such as those in the Gulf of Mexico, where most future leases would be drainage ones in nature, unless specific need is shown, or to apply it to a lease where development and production has already commenced.
The development and production plan, which is subject to the approval of the Secretary, is to describe, to the extent available at the time of its submission, information about the nature and extent of the proposed development, including specific work to be performed, a description of all off-shore facilities and operations directly related to such development, environmental safeguards and safety standards to be implemented, an expected rate of development and production, a time schedule of performance, and other relevant information as the Secretary may require. The plan may apply to more than one lease.
The committee recognizes that there must be flexibility in the degree of detail required in the plan, or in the statement of information. Therefore, that degree of detail is to be established by regulations issued by the Secretary, which of course, are subject to modification and revision.
The information supplied by the lessee is to be his best estimate and should not be open to attack on the basis of reliance, if it is a reasonable attempt to comply and supply the necessary information.
The statement as to on-shore facilties and operations is to describe the nature, extent, and location of facilities to be constructed and utilized in connection with OCS activities, including, transportation, processing or refining, and safety protections to be implemented. This statement can only be in a degree of detail available to the lessee. Therefore, the lessee is only required to describe those facilities and operations which he reasonably should know and which he himself proposes. This statement as to on-shore facilities and operations is not subject to the approval of the Secretary, as the Secretary's responsibility is only as to off-shore operations. Relevant, State, local, regional, or other bodies have, or should have, appropriate procedures and mechanisms to review these proposed activities and grant or deny permission for them to occur.
Within 10 days after receipt of the development and production plan, and the statement of information, the Secretary of the Interior is, with limited exceptions, to submit such plan and statement to the Governor of any affected state and upon request, to the executives of any affected local government and is also to make such plan and statement available to any other interested person. The Secretary may withhold some of the material if it is confidential or privileged in formation. Under section 26(c) (2), however, the Secretary must make even this confidential information accessible to a Governor, subject, of course, to a requirement that the designated official himself maintain confidentiality. Access to all information is, therefore, provided to any affected State. Copies of privileged information is not to be provided to the State, and access and copies are not to be provided to other interested persons.
Subsection 25(d) and (e) provide for the procedures for review and approval of a development and production plan. Such review can be conducted in two ways-either through procedures established by the National Environmental and Policy Act, applicable to “major Federal actions significantly affecting the quality of the human environment," or through submission of comments and recommendations by interested persons.
Review The Secretary is to review a development and production plan and declare his findings as to whether approval of the development and production plan is a "major Federal action” requiring a draft environmental impact statement to be prepared, followed by public hearings, and concluded by the preparation of a final environmental impact statement. The committee intends that the provisions of the National Environmental Policy Act of 1969 (NEPA) shall apply.
The provisions of this Act determine whether any particular activity is a "major Federal action" requiring the appropriate procedures. However, the Secretary is instructed by the 1977 Act that at least once prior to major development being authorized in any frontier area, the NEPA procedures involving environmental impact statements and a hearing are to be applied. It may be possible, of course, that approval of a later plan in an area may also be a major Federal action” under the National Environmental Policy Act. The mandate of at least one set of environmental impact statements and hearings does not in any way limit the applicability of NEPA to later approval of later plans.
If development and production pursuant to a plan is found to be a major Federal action, the Secretary may require lessees on adjacent or nearby leases to submit preliminary or final plans for their leases, for consideration and review at the same time as consideration and review of the submitted plan. The Secretary is to transmit the draft environmental impact statement to the Governor of any affected State, and the executive of any local government or area, and is to make such draft available to the public.
The Secretary is to conduct the NEPA public hearings, review its record and within 60 days after releasing the final environmental impact statement, approve, disapprove or require modifications of the plan.
The committee feels strongly that the NEPA impact statement process when applicable, should not unnecessarily delay the approval of a development and production plan. Therefore, the committee supports the directive of President Carter to the Chairman of the Council on Environmental Quality, that he promulgate new guidelines designed to expedite the process.
The other review procedure is through comment. If development and production pursuant to a plan is not found to be a major Federal action, the Governor of any affected State, and the executive of any local government agency or local government area, can submit comments and recommendations to the Secretary within 90 days of receipt of the plan from the Secretary. As described in section 19, the Secretary must accept recommendations submitted by any affected Governor, whether under the NEPA procedure or the comment procedure, if he determines they “provide for a responsible balance between the national interest and the well-being of the citizens of the affected State.” Such comments and recommendations are to be made available to the public upon request and any interested person can also submit comments and recommendations. Within 60 days after the 90-day period provided for comments and recommendations, the Secretary is to approve, disapprove, or require modifications of a plan.
As detailed in section 23, the action of the Secretary in approving, requiring modifications of, or disapproving any development and production plan, is subject to judicial review in the U.S. Court of Appeals for a circuit in which an affected State is located.
Modifications, revisions, and disapproval Detailed provisions are provided for modifications, revisions, and disapproval of a plan. The Secretary is to require modifications of a plan if he determines that the lessee has failed to make adequate provision in a plan for safe operations or for the protection of the environment, including compliance with regulations required under section 5(a) to insure clean air. In order to preserve the rights of State and local governments to regulate land use within their jurisdiction, the Secretary may not require any modification which would be inconsistent with a State coastal zone management program, approved pursuant to section 306 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1455) as amended, unless the Secretary of Commerce makes