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 an arbitrary 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 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 America. 

Little Regulatory Accountability

• The current regulatory process allows for inexplicable delays with minimal oversight or transparency when MMPA authorizations are not issued in a timely manner for  geoscience surveying in some U.S. waters. In certain recent examples in both the Atlantic and Arctic, these regulatory delays act as a de facto ban on exploration.  
• There is little accountability in the current procedural requirements, meaning that MMPA authorizations for energy exploration are unjustly delayed by the implementing agencies.  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 delays in the issuance MMPA authorizations were 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 language in the Act does not provide clear direction for application to regulation of underwater sound. 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 energy activities. 
• 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 not defined in the statute, attepts to define through regulationhave been struck down by the courts, and the term is less rigorous than “negligible impact”. 
  • “Least practicable impact” is 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 outside the western and central Gulf of America. In one instance, approval for Atlantic Incidental Harassment Authorizations (IHA) for the industry were delayed over 1,200 days following 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 issued a multitude of Authorizations for research and alternative energy purposes.