Texas is suing the federal government over its deepwater drilling moratorium, alleging that under the Outer Continental Shelf Lands Act (OCSLA) affected states must be consulted by the secretary of the U.S. Department of Interior (DOI) before such a measure is taken.

“The federal government ignored the state of Texas and failed to comply with the law when the secretary of the Interior unilaterally imposed the administration’s offshore drilling ban,” Texas Attorney General Greg Abbott said. “Under federal law, affected states are guaranteed the right to participate in offshore drilling-related policy decisions, but the Obama administration did not bother to communicate, coordinate or cooperate with Texas. Worse, the secretary of the Interior failed to consider the economic consequences of his decision, which will cost the Texas economy millions of dollars and threatens far too many hard-working Texans’ jobs.”

The lawsuit, filed in U.S. District Court for the Southern District of Texas names DOI; DOI Secretary Kenneth Salazar; the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM); and BOEM Director Michael Bromwich. Bromwich recently indicated that the moratorium could be lifted early, telling reporters that his preference would be to lift the moratorium as soon as he “felt comfortable” that sufficient safety precautions were in place (see NGI, Aug. 9). The moratorium’s current expiration date is Nov. 30.

Under OCSLA the Interior secretary must coordinate with affected states and weigh a moratorium’s economic impact before imposing an offshore drilling ban, Texas maintains.

The challenge targets the administration’s second offshore drilling moratorium. The first was retracted by the administration after multiple private parties successfully sued to block it. On July 12 Salazar announced the current moratorium “without any prior notice to or communication with the state of Texas — despite the fact that Texas refines more oil than any other state,” Abbott’s office said.

“As the state’s complaint explains, an economic impact analysis produced by Louisiana State University has projected that Texas will suffer a $622 million decrease in gross state product because of the six-month moratorium. Thus, Texas clearly meets the statutory definition of an ‘affected state’ under the OCSLA. Nonetheless, the Department of the Interior did not give the State of Texas an ‘opportunity to participate’ in the federal government’s decision-making process, which constitutes a violation of the OCSLA and the Administrative Procedure Act.”

The Railroad Commission of Texas (RRC) also has attacked the offshore moratorium for trampling on states’ rights. Commissioners last week unanimously passed a resolution that says RRC “opposes all proposals from the present administration and from Congress that may usurp the rights of the states to regulate and manage oil and natural gas exploration and production within their sovereign borders.”

Commissioner Elizabeth Ames Jones led the charge against provisions in the recently passed H.R. 5626, the “Blow-out Prevention Act of 2010;” in H.R. 3534, the “Consolidated Land, Energy and Aquatic Resources (CLEAR) Act;” and in S.3663, the “Clean Energy Jobs and Oil Company Accountability Act of 2010.” Neither bill has made it all the way through the Congress.

Jones has criticized recent Washington actions since the blowout of BP plc’s Macondo well in the Gulf of Mexico. She sent a letter of protest to President Obama in June in reaction to the moratorium on deepwater drilling. Recently she advised the Texas congressional delegation in a letter on July 28 to vote against the Blow-out Prevention Act, which was rolled into the CLEAR Act. The CLEAR Act includes federal oversight of all coastal waters seaward of the line of mean high tide as the boundary.

“Thanks to the foresight of our state’s early leaders, the Republic of Texas entered into the Union in 1845 and retained jurisdiction out to three leagues offshore,” Jones said. “That boundary was adjudicated in the Tidelands case in the 1940s and finally resolved by Congress in 1953. As established in the U.S. Supreme Court case, New York v. United States [112 S.Ct. 2408 (1992)] the Congress may not simply commandeer the legislative and regulatory processes of the states.”

She added that the exploration and production of state-owned minerals in state waters must be regulated by the Railroad Commission, which has 100 years of experience in management and stewardship of many of Texas’ natural resources.

The resolution was to be sent to Obama and Vice President Joe Biden, as well as House and Senate leaders of both major parties.

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