Regulators cherry-pick research to justify policies, witnesses charge

Federal agencies that regulate US oil and gas activity tend to rely on research that supports their restrictive decisions instead of possibly better information that might facilitate development, three witnesses charged at a May 19 US House Natural Resources subcommittee hearing.

Federal agencies that regulate US oil and gas activity tend to rely on research that supports their restrictive decisions instead of possibly better information that might facilitate development, three witnesses charged at a May 19 US House Natural Resources subcommittee hearing.

The US National Marine Fisheries Service (NMFS) relies on a Duke University model that emphasizes marine life estimates over measurements to justify multiyear delays in issuing incidental take authorizations to geophysical contractors wanting to survey the South and Mid-Atlantic US Outer Continental Shelf, said Peter Seidel, Marine Acquisition Director at TGS, a Norwegian geophysical firm with operating headquarters in Houston.

“It is important to note that the Duke Model, which NMFS is using to estimate incidental take from proposed surveys, predicts likelihoods of finding animals at particular places and times and is not actual counts of animals,” he told the Energy and Minerals Subcommittee. “In other words, it is a model forecast of marine mammal distribution, not actual data on animal abundance.”

Seidel, who also spoke on behalf of the International Association of Geophysical Contractors (IAGC), said the professional society first learned of the research model’s existence in April 2015, but subsequently learned that NMSF encouraged the US Bureau of Ocean Energy Management to use it as early as 2014 in developing its Atlantic Programmatic Environmental Impact Statement for geological and geophysical activities.

“The Duke Model remained unavailable to the public, including IAGC, throughout 2015 in contradiction to legal requirements stating federal agencies must rely upon the best available scientific information in decision making processes,” Seidel said in his written testimony. “NMFS was, however, providing the model to permit applicants as early as February 2015, and strongly encouraging amendment to their applications under threat of further delays in [Incidental Harassment Authorization] issuance if the applicant did not use the Duke Model to calculate their requested [Marine Mammal Protection Act (MMPA)] takes for their proposed survey activities.”

Calls for follow-up data

NMSF also needs to confirm the model’s predictions with follow-up data, especially since its numbers are 80, 30, or 12 times the previous values the National Oceanic and Atmospheric Administration agency used in all aspects of its legal obligations to protect and manage marine mammal stocks, Seidel said. IAGC would like the full committee to request a plan by NMFS to address discrepancies between the model’s outputs and numbers from its own Stock Assessment Reports, which MMPA requires, he said.

“It is important to note that the recent decision by the administration to drop the South and Mid-Atlantic planning areas in the Draft Proposed OCS Oil and Gas Leasing Program for 2017-22 (OGJ Online, Mar. 15, 2016)does not diminish the need for new data and should not be used to excuse the agencies from carrying out their legally required duties,” Seidel said. “We urge Congress to review the MMPA and pass meaningful reform that will rectify the existing limbo for pending seismic survey IHA applications.”

Transparency issues at the US Department of the Interior, on which the subcommittee’s hearing focused, range from manipulating data to provide political cover and deflect criticism of policies, to ignoring data and science to arrive at preferred policies, a second witness declared. “New policies and rules put in place in a less-than-transparent manner are affecting or will affect current and future operations of our more than 300 members,” said Kathleen Sgamma, vice-president of government and public affairs at the Western Energy Alliance (WEA) in Denver.

She described a series of recent US Bureau of Land Management, Fish, and Wildlife Service, and Geologic Survey regulatory actions surrounding preservation of the greater sage grouse’s habitat across 11 western states which she said undermines a landmark multistakeholder agreement Interior Sec. Sally Jewell announced last fall (OGJ Online, Sept. 22, 2015).

WEA, whose members are Rocky Mountain and Upper Great Plains independent oil and gas producers, joined county governments in four states and other industry and agriculture groups to file four Data Quantity Act challenges about data the three agencies used which already should have been in the public domain, Sgamma said in her written testimony. “We documented 92 relevant studies that the agencies were ignoring in order to move forward with a predetermined narrative and arrive at policies more about controlling public lands than effective sage grouse conservation,” she said. “[DOI] simply dismissed our comprehensive DQA challenges of hundreds of pages of detailed information with a four-page letter.”

Basic data standards vary

Sgamma also said BLM does not have standard methods for tracking basic data about oil and gas leasing, development, and production on federal lands, which leads to federal onshore resource development transparency issues. “States and field offices track information differently, but for political reasons, the Washington office reports much of the data in a standardized format in order to provide political cover for its failure to meet statutory mandates from Congress,” she said.

A third witness, Richard D. Belzer, a consultant who was an economist in the White House Office of Management and Budget’s Office of Information and Regulatory Affairs from 1988 through 1998, said transparency requirements are largely absent from federal regulatory practices overall under OMB’s Information Quality Act guidelines.

“When an agency produces or sponsors the production scientific information, it may do so because there is a crucial data gap that public domain literature doesn’t fill,” he told the subcommittee. “It also may do so to advance an agenda that public domain literature doesn't support.”

Underlying data in reports published in scholarly journals may not always comply with Good Laboratory Practice regulations, he warned. “GLP reports include extensive details on laboratory procedure, record-keeping, standard operating procedures, quality control and quality assurance, and independent auditing and data,” Belzer said. “GLP compliance is much more demanding than mere publication in a peer-reviewed journal, and it suffers no publication bias.”

He said, “At the other extreme, transparency often is minimal, nonexistent, or downright misleading in reports prepared by or for advocacy organizations. These reports are prepared to advance policy objectives; they are not a search for scientific truth.”

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