What’s Wrong With MMPA?

Overlapping, Unnecessary Regulations

• Instances of overlap between the jurisdictions of the MMPA, the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) have proven difficult for the agencies, the courts, and the regulated community to navigate. The MMPA sets the most rigorous, conservation-oriented standards of all these statutes, thus making additional reviews and administrative processes under the ESA and NEPA unnecessary and redundant.
• The MMPA puts a five-year limit on “incidental take regulations,” which requires applicants to petition for a new set of regulations every five years. The result is an unnecessary and burdensome administrative process that creates delays and even creates opportunities for litigation driven by the most extreme anti-energy activists.
• Responsible offshore surveying activity is just the first step in the energy exploration and production chain. Regulatory delays slow project development timelines, preventing the development of projects that would bring significant economic benefits to local communities, especially in coastal communities around the Gulf of Mexico.

Little Regulatory Accountability

• The current regulatory process functions as a de facto ban on geophysical surveying in some U.S. waters.
• There is little accountability in the current procedural requirements, meaning that MMPA authorizations for energy exploration are unjustly delayed by the implementing agencies. Meanwhile, authorizations for other purposes, such as renewables and scientific research, are often granted within a reasonable timeframe. The ambiguous and unclear accountability requirements allow this disparity in approvals.
• – In January 2018, the Government Accountability Office (GAO) released a report on offshore seismic surveys which found that current delays in the issuance MMPA authorizations is a result of bureaucratic dysfunction and unnecessary stalling.

Vague Language

• The language in the original act does not provide clear direction for application to the geophysical industries. This means that the MMPA language and intent must be determined in the courts, creating an opportunity for exploitation by advocacy-based litigation intended to block or impede offshore development.
• The MMPA includes numerous instances of vague and ambiguous language which lead to regulatory uncertainty, inconsistent application by agencies, endless delays and much litigation.
  • “Negligible impact” is not defined in the statute and is vaguely defined in the regulations.
  • “Small numbers” is also not defined in the statute and the regulatory definition has been struck down by the courts.
  • “Least practicable impact” is also not defined in the statute or in the implementing regulations. As a result, it is not consistently applied by agencies or courts, and gives little guidance to operators.

Selective Application

• The misapplication of MMPA processes to the energy exploration industry and the efforts of anti-energy opportunists have almost entirely halted U.S. offshore surveying activity. In one instance, approval for Atlantic Incidental Harassment Authorizations (IHA) for the industry have been delayed over 1,200 days since the completion of a thorough review process.
• But the MMPA has been selectively applied to IHAs for offshore energy surveying activity. In the same period of inaction on industry IHAs, NOAA has issued a multitude of Authorizations for research and alternative energy purposes. These include:
  • NOAA has approved 19 IHAs to applicants for alternative energy purposes, five of which are still active.
  • NOAA has approved 42 IHAs to applicants for research purposes, 14 of which are still active.