Congress Needs to Respond to MMS Failures

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Just as the Administration needs to incorporate transparency into their response to the failures of the Minerals Management Service, Congress does as well.

Since even before the oil spill began, Congress has been working on bills that would change the laws that govern offshore drilling. While there may be others, I’m particularly interested in the CLEAR Act [PDF], HR 3534, since it would amend the law I’m most familiar with, the Outer Continental Shelf Lands Act, which could redefine how the government (and the public) relate to offshore energy information. You can find the version the House posted here. There is a similar Senate bill, S. 3516, which is far shorter.

…transparency requirements often get overlooked entirely in the context of finance or energy, since they’re so specialized and complex. This just isn’t acceptable.

There are a number of transparency requirements that should be included in these bills. I’ve reviewed the entire House CLEAR Act, and suggested a number of amendments to improve transparency below.

Important reports, energy statistics, and oversight information needs to be online for disclosure to be as effective as possible. Public access requirements shouldn’t be an afterthought, especially when transparency is part of the foundation on which our entirely regulatory system is built.

As we all watch what happens when that system fails, we should turn our interest to what we can control, and one part of that is to help Congress define what we can know about resource extraction.

I should note that Sunlight isn’t endorsing any particular approach to regulating oil drilling, but if Congress acts on these bills, they should better address the transparency requirements associated with them.

While we’re certainly not experts in the energy industry, transparency requirements often get overlooked entirely in the context of finance or energy, since they’re so specialized and complex. This just isn’t acceptable. Also, if I’ve missed something, please let me know in the comments.

To see my annotations inline with the bill click the image below. (The same comments are in the extended entry below, as well.)

I’ve also included the text of my commentary separately below. All page numbers refer to the pagination on the document, rather than the file. Page 31, line 14: If the Secretary needs special authority to hire officials outside the regular process, and if that presents enough of a risk that all of those hires need to be reported to Congress, then shouldn’t those officials in critical positions also be reported to the public? Reporting to Congress isn’t always the same as reporting to the public, and it seems likely that the need for public oversight here outweighs the small privacy interests of the officials so appointed.

Page 45, line 22: This is a spectacular provision. Proprietary information (like building codes) are often incorporated by reference into laws, and if those laws are to be followed by everyone, then they should be accessible by everyone. See Carl Malamud’s vast work on the topic.

Page 50, line 1: If the Secretary is preparing a comprehensive report on the “Federal offshore oila and gas fiscal system” and submitting it to multiple committees, it should be made public as well, with any appropriate redactions if they are necessary.

Page 55, line 18: Why aren’t the Exploration Plans required to be public and freely available online? It appears that they are posted now. They do get bonus points for the bulk download option. Why not write this into the statute?

Page 59, line 6: The drilling permits aren’t required by statute to be made available. Despite widespread reporting about their issuance, I haven’t found them online. If they contain sensitive information, redacted versions could be published, which MMS did for many other documents. This could be required in the statute.

Page 60, line 10: The exploration permits should be required to be public. They (like many of these documents) are full of the kind of planning and assurances that were apparently flaunted at the old MMS.

Page 67, line 4: Why aren’t the Environmental Studies required to be public?

Page 67, line 14: It seems clear to me that research on data gaps regarding the use of dispersants should be required to be made public.

Page 75, line 24: The bill doesn’t require the Development and Production Plans to be made public online, even though they’re intended to be a public document, and are already required to be available at the regional offices by MMS (now BOEMRE) regulations. They should be required to be posted online. For additional research on the plans, see this post.

Page 79, line 10: The Oil and Gas Information Program doesn’t seem to incorporate public scrutiny at all. Perhaps it could strengthen its work by incorporating online transparency.

Page 89, line 16: This requirement looks good, but could be strengthened by requiring bulk access, and requiring that the datasets be registered on Data.gov.

Page 97, line 8: It seems to me that the Interim and Final Reclamation Plans should be required to be made available to the public.

Page 109, line 13: This data should be registered on Data.gov, and made available in bulk.

Page 120, line 16: If natural gas reporting needs to include collection of BTU values, perhaps that information should be available to the public as well as to the Secretary. The same goes for the “MMS-2014” form altogether, although I would expect redactions to be necessary there.

Page 145, line 1: This is good, but could also include bulk access and registration on Data.gov.

Page 146, line 21: This seems to be a drafting error — redundant phrase (compare (G) and (H)).

Page 160, line 8: There is no good reason for the committees to be exempted altogether from the Federal Advisory Committee Act, especially given MMS’s history. See this post to see how we successfully pushed for this exemption to be narrowed in the financial reform bill.

Page 184, line 17: This is good, again, could have bulk acess and registration on Data.gov required.

Page 185, line 3: Shouldn’t this report be required to be made public as well as reported to Congress?

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  • Thanks Steven, that’s very helpful.

  • John W. cites and asks:

    Page 67, line 4: Why aren’t the Environmental Studies required to be public?

    Stephen Buckley replies:

    Environmental studies are ALREADY required to be made public under the National Environmental Policy Act of 1969 (NEPA), as per 40 CFR 1500.

    If, as it appears, those documents were not done, or not made public, then redundant law is not the answer.

    The President’s Council on Environmental Quality was supposed to has finished a 30-day review on June 17th on this issue. But they have responded to my request for its release.
    http://ceq.hss.doe.gov/current_developments/mmsnepa.html

    Congress would do better to oversee implementation of EXISTING law than to pass requirements of the same law .. again.

    Stephen Buckley
    (NEPA-nerd)
    http://www.UStransparency.com

  • John Wonderlich

    Here’s a compendium of relevant resources from POGO: http://www.pogo.org/investigations/natural-resources/dept-of-interior.html