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Offshore energy: Judge dismisses challenge to seismic testing

By Charles Swenson
Coastal Observer

A challenge to state approval for three companies to conduct seismic testing for oil and gas off the South Carolina coast was dismissed by a S.C. Administrative Law Court judge last week. Municipalities and conservation groups don’t have standing to argue against the decision because even a ruling in their favor wouldn’t alter federal permits for the firms to conduct the tests, Judge Ralph King Anderson III ruled.

The groups are considering an appeal to the state Court of Appeals, their attorney said.

The federal Bureau of Ocean Energy Management must issue permits for the tests. The state Department of Health and Environmental Control asked to review plans by the companies for consistency with its federally-mandated coastal zone management program last year even though the tests will be conducted in federal waters 40 miles offshore.

Conservation groups oppose the testing – which uses high-volume, long-term blasts from air guns – because they say it will harm marine life, including endangered and threatened species and commercial species. DHEC certified the testing after adding conditions to protect sea turtles and commercial fishing.

The cities of Charleston, Beaufort and Folly Beach along with the Coastal Conservation League and the S.C. Wildlife Federal appealed the decision.

The companies – Spectrum Geo, CGG Services and GX Technology – all filed motions to dismiss the appeal. They argued the appellants lacked standing.

“Spectrum and DHEC argue that any decision issued by this court would have no effect on BOEM’s decision to issue the permit because South Carolina’s role in the federal permitting process is now over and its concurrence cannot be withdrawn, and that any reversal of DHEC’s concurrence would simply result in BOEM’s review of Spectrum’s permit application without DHEC’s recommended mitigation measures,” Anderson wrote. “I agree.”

The judge said it’s up to the opponents to prove that any alleged injury from DHEC’s decision could be remedied by the court’s finding in their favor, an issue known as “redressability.” He based his decision on a letter from the acting director of the federal Office for Coastal Management who said “A state cannot withdraw or reverse a conditional concurrence.” Once that is issued, federal law “does not provide any further role in the federal review process and the authorizing federal agency may issue the requested permit.”

The opponents argued that the state’s decision wasn’t final until it had gone through the appeal process. If the decision was overturned, it would amount to an objection to the federal permit. Anderson disagreed.

The judge noted that there is a six-month time limit under federal law for a state to make a decision which the appeals process can’t meet. Without action, the state is assumed to agree with the federal permit. In this case, Anderson said, that would “have the perverse effect for the petitioners of providing less environmental protection” because of the DHEC conditions on sea turtles and commercial fishing.

“The court concludes that any opinion that it might render would not have any effect in addressing petitioners’ injury,” Anderson ruled.

Amy Armstrong, head of the S.C. Environmental Law Project, who represented the opponents, said “there are very complicated questions about the interplay between the state and federal roles.” She noted the ruling wasn’t based on the merits of the DHEC decision, which haven’t been argued.

She disagreed that a favorable ruling would offer no remedy. “I would hope at a minimum BOEM would take that into consideration,” she said.

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