Coastal Commission Wins Another Court Battle Against Feds to Curb Offshore Oil Drilling

When MIR last interviewed you in 1999 the topic that dominated our conversation was California's suit against the Federal government to allow the California Coastal Commission greater oversight over oil drilling off the Central Coast of California. Give us a status report of where that jurisdictional issue stands. How active is this debate between the federal government and the Coastal Commission?

There is still very much a debate between the federal government and the State of California on that issue. Where is stands is that the Minerals Management Service has taken the position that these oil leases – it's called "suspension," but please understand that when you use the word "suspension" it means extension - are existing leases that were granted before the moratorium on new leases. Those leases are due to expire unless the federal government extends them. MMS took the position that the state, i.e. the Coastal Commission, did not have the right to have a say or even review whether or not those leases could or could not be suspended.

That's what went to court on years ago, and the Commission won. The federal court said we did have the right to determine whether or not the federal government could extend these leases. On August 11, the federal government now came for review of these lease extensions, and the Commission denied the extension, because the federal government didn't provide us with the information that they are required to provide in order for us to make a decision. So we're basically in a long, drawn-out process.

We understand that the federal government contends that the Coastal Commission doesn't have the right to scrutinize each tract and assess possible harms from drilling. Is this true? Has that been issue been resolved?

As far as we're concerned, it's been resolved, and as far as the courts are concerned, it's been resolved. That's what we don't understand – we don't understand why the MMS has behaved the way they have. What MMS is saying is that there's no information you need because just ending the lease doesn't involve anything but that. MMS is saying, you don't need to look at the impacts at this stage, you can look at the impacts later.

We disagreed - if you're going to extend the leases we need to be looking at what are the foreseeable consequences of extending those leases. And the courts agreed with us. So the courts have already made a determination that in fact the Commission is right, that we do need to look at the foreseeable consequences. And, in fact, we made our decision on Thursday based on the court's decision in our case, and on Friday the court, in a very similar case - not brought by the Coastal Commission but by a group of environmental organizations - said the same thing again: you have to analyze the foreseeable consequences if you are going to extend the leases.

What's the federal government's time frame for making a decision on extending the leases? Where are we on the clock?

Although we haven't seen the ruling because it hasn't been an official written ruling that's come down from the court, from what we can tell from what was said on Friday, our clock is not really relevant right now, because MMS has to deal with the ruling of the court relative to their environmental review. They haven't done the adequate environmental review of these lease extensions, and that's what the court ruled on Friday. So they have to do that before they even worry about getting back to us and dealing with us, and on that time frame. I don't know what it is, and I don't know what it is relative to us. They'll have to deal with our issues after they deal with these other issues.

And have the leases not already expired?

These were leases that go way back, probably some in the '60s and '70s. They're well beyond the original term of the leases, and within those leases and the terms and conditions of those leases, is the ability for the government to extend it for cause, and there has to be a basis on which they extend it. You can't take a lease and just sit on it and not develop. That's part of the original conditions of the leases. So if you want to extend it if you haven't developed and haven't done the exploration, in order to get an extension, it would have to be for cause. There are a variety of reasons why the government has extended them over the years, and so whether or not they have the right to extend it again is what the argument is about.

To be fair to the Bush administration, it's clear that with oil now above $65 per barrel, there's a need for more domestic production. Is there any justification for reconsidering California's position on drilling off the coast? MIR asks knowing, obviously, that you sit on the Coastal Commission with serious environmentalist credentials.

Aside from the whole argument as to what is the real reason for the rise in prices and oil - which we can get into as to whether that's really related to the supply or other factors - in the case of California's offshore reserves, there's not enough oil to affect anything. If they completely drilled it, there's about a 20-day supply of oil there, and about a four-day supply of gas for the United States. And of that 20 days, most of it will go to the making of asphalt, so it's totally unrelated to this notion of increasing domestic supplies.

In the alternative, what is the potential harm that may emerge if drilling off the coast was to commence?

First of all, one of the things – and I can tell you one of the issues that needs to be explored – is that the federal government didn't give us the information to know, for example, what the oil spill risk was. They didn't provide us with data. They didn't provide us data as to the life of the existing platforms are, so we don't know whether or not they have to drill and put in new platforms to deal with this. Obviously oil spill risk is a big one, and also obvious is that if you're going to have to put in new platforms all kinds of environmental damage can happen. And then there are all of the exploration issues, such as the use of seismic surveys and their impact on marine mammals. So there are all kinds of possible impacts of this drilling and exploration, and the commission needs that information.

Let's segue from drilling – to a not totally unrelated issue – beach access. The Coastal Commission recently ruled in favor of beach access in its long-running dispute between the homeowners and beachgoers of Malibu's Broad Beach. Can you give us an update on that ruling and what's at issue regarding access?

By the way, to pick up on your questions, the public's ability to get to the beach is related to oil drilling off the coast!

The public by law has a right to get to the beach, and what was going on at Broad Beach was that residents had trespass signs posted on the beach that were clearly misleading. These signs were there without a permit, and you can't put up a sign on the beach without a permit. They were clearly misleading the public by telling the public that if they wanted to walk to the beach they had to be 40 or 50 feet seaward of the signs, and most of the time that meant you're in the water where the water would be overhead! Plus, the homeowners were making the determination where the mean high-tide line is, and they don't have a legal right to do that. Only the State Lands Commission can determine where the mean high-tide line is. Plus, they had security guards on ATVs who were down there harassing the public even when they were on public property, giving the impression of a private beach.

So on August 12 the commission told them that those signs are illegal and issued a cease and desist order, and now if they don't comply, they could be fined. They have removed the signs and removed the guards from the ATVs. I understand that the guards are still there, but they're not on ATVs anymore. I don't think it's any longer a question of whether or not they will comply but whether or not this is going to go to court. The commission took legal action to say they cannot do this, not only now but also in the future. And that is another reason why the commission had to take that position, because if we didn't, then the homeowners could go in at any time and put the signs back up.

Do you think this is the final chapter on beach access, or just another skirmish?

That remains to be seen. I would hope that the homeowners got the message that they need to find a way to 1) comply with the law, and 2) to work with the commission to find an ultimate solution for what will happen at that beach rather than just going out and doing whatever it is they think they want to do. So I hope it will lead to something positive.

Extrapolate, would you, on how this issue plays out all along the 1100-mile coast of California. Is Malibu just one case, or is it one of many contests with respect to beach access?

No. The situation in Broad Beach might be a little more egregious than in most places - because I don't know of any other place, for example, where they had guards on ATVs - but this kind of thing plays out up and down the coast of California. Wherever you have homeowners who live right on the beach, there's a tension between them and the public, because if they live right on the beach, they kind of like to think that they own it. Whereas in California, that's just not the case. In fact, that's not the case anywhere. The US Supreme Court just decided a case in new Jersey saying that a private beach had to be open because beaches are supposed to be accessible to the public. So it's not just in California; it's nationwide.

Sara, MIR did an interview about six months ago with the Coastal Commission's new chair, Meg Caldwell. Could you speak to the quality of her leadership of the Commission?

I think Meg is a wonderful chair. She has brought the Commission together. We are working very well. That does not mean that we always agree on everything – we don't; there are differences of opinion, but the Commission is really functioning quite well now in the sense that I enjoy it. We go into hearings and we have very good questions about the issues, and we move in various directions during the hearing depending on what we hear and what the discussion is and what our colleagues say, and it is working quite well.

You told MIR readers five years ago that you wanted the Coastal Commission to be more proactive, that you thought it was too reactive sometimes. Give our readers a status report. Is the Commission pressing ahead with what needs to be addressed along California's coast?

I still say that it would be nice for the Commission to be proactive, but the law is such that it's very difficult for us. One of the principle ways that we could and should be proactive is to do overall long-range planning, and we do that planning through the process called Local Coastal Program Certification. Unfortunately, the Commission cannot require local jurisdictions to bring in their LCPs, so we don't get to do the kind of planning that we should. It's really much better do to a long-term plan that works and that accounts for what's happening rather than to just have permits coming in front of you and reacting to those permits.