The Trump administration has proposed giving offshore drilling safety standards created by the leading oil and gas lobbying association the force of law. Because those industry-created standards are difficult for the public to access, the Interior Department is skirting key federal laws that require meaningful public participation in rulemaking, according to a Project On Government Oversight (POGO) investigation.
POGO also submitted a comment yesterday to the Interior Department outlining the problems with this rulemaking process. The comment period for the proposed rule ended yesterday.
The proposed rule by the Interior Department’s Bureau of Safety and Environmental Enforcement relies on standards created by the American Petroleum Institute (API), a process known as “incorporation by reference.” The rule addresses safety and oversight requirements for blowout preventers and other related equipment meant to stop and mitigate the impacts from accidents. In the Deepwater Horizon disaster, the blowout preventer failed. Critics say the Interior Department’s changes would make offshore drilling more dangerous for workers.
The text of the standards is not included in the official legal notice for the public about the rulemaking proposal. Instead, the text of the standards is hosted on API’s website, which requires a user to either pay a fee to API or to register for free to access the documents. However, the free version is read-only and a user cannot cut, paste, print, or save them.
According to the American Bar Association, the government’s use of privately created standards “without meaningful public access” is “constitutionally suspect.” Read-only access alone “may not meet the reasonable availability requirement at the final rule stage of rulemaking,” according to a handbook issued by the Office of the Federal Register.
An API catalog shows that one of the documents costs $130, another costs $155, and a third costs $160. Combined, they total 227 pages and would cost $445.
The government’s reliance on industry standards creates hurdles for members of the public who seek to understand the proposed changes because the API standards are not easily accessible for free online. A University of Michigan law professor told POGO the hurdles were “onerous” and potentially in violation of the Administrative Procedures Act and Freedom of Information Act.
This isn’t the first time the government has used industry standards this way: In 2016, the Obama administration’s Interior Department also used API standards in rulemaking.
“Access to the law and meaningful participation in the rulemaking process should not be conditional,” said Danielle Brian, executive director at POGO. “Especially with an issue as enormous and complicated as deregulating offshore drilling, the public must be given the opportunity to make their voices heard without jumping through hoops or paying hundreds of dollars.”