Deep Water Ports: Energy Demands Versus Environmental Safeguards

In his energy message of April 18, 1973, President Nixon endorsed the construction of deep water ports, capable of accommodating supertankers, as the answer to the nation's predicted need for sharply increased petroleum imports in the foreseeable future. Such ports would provide moorings outside U.S. territorial waters from which foreign oil could be piped ashore or offloaded into smaller tankers able to use existing harbors. The President cited a CEQ study indicating that the use of fewer, larger tankers at deep water ports connected to the shore by pipelines would present less danger of oil pollution than do the numerous small tankers which now crowd conventional ports. Asserting that oil imports will expand in any event, Mr. Nixon argued that if the U.S. does not authorize construction, these ports will be built instead in the Bahamas and Canada, with a loss to the U.S. of jobs and capital. Noting that states cannot now license deep port construction beyond the three mile limit, the President proposed legislation giving the Interior Department authority to issue such licenses.

This presidential endorsement of the deep water port concept in conjunction with the announcement of the nation's first comprehensive energy policy stimulated a prompt response on Capitol Hill, where the question of deep port construction has been under discussion for several years without any concrete result. In the meantime, however, several coastal states have been taking actions on their own. Delaware's Coastal Zone Act of 1971¹ forbids construction of deep water ports off the state's shores, and Maine has prohibited the on-shore terminal facilities which a deep water port would require.² In New Jersey, a similar ban was deleted from the Coastal Zone Management Act of 1973 before final passage.³ Washington, California and Texas, on the other hand, have shown a positive interest in such ports through referenda, staff studies, and official statements. Louisiana has gone so far as to appoint a task force composed primarily of oil men, bankers, and industrialists to promote financing and development of deep water ports in the state's territorial or contiguous waters. This group recommended that a deep port be located about three miles off the mouth of the Mississippi River and has drafted legislation, subsequently enacted by the Legislature,⁴ setting up a state agency to oversee construction and operation of deep ports. A Florida firm has also announced plans for a deep port 30 miles from shore near the entrance to Tampa Bay.

[3 ELR 10166]

These proposals for deep water port construction are a product of the recent shift in international oil transport from conventional 50,000 ton tankers to supertankers weighing between 80,000 and 540,000 tons, with drafts of up to 94 feet. The deepest channel to an existing port on the East and Gulf coasts is only 45 feet, and on the Pacific coast, Long Beach and Seattle are capable of handling the supertankers. Deep water ports are advanced by some as the logical means of importing the most oil with the minimum environmental and navigational disruption, but many environmentalists challenge both the premises and conclusions of this initially appealing solution.

At the outset, the assumption that oil imports must increase rapidly for the foreseeable future is open to question, as the Middle East conflict underscored dramatically in October. Strict energy conservation programs, including restrictions on automobile design and use, and increased liquification of deep-mined domestic coal could conceivably halt or even reserve the trend toward increased imports. Substantial curtailment of energy consumption would probably create great political opposition, however, and it would, therefore, be unrealistic to plan on a leveling off of the nation's energy needs.

The two alternatives to constructing deep water ports both present problems. Deepening existing harbors to accommodate supertankers, where technologically feasible, would seriously damage estuaries, in terms of turbidity, increased salinity, and destruction of bottom habitat, and the millions of tons of spoil would pose a huge disposal problem. Building many more small tankers to handle either direct importation or transshipment from deep water ports off the U.S. or in the Bahamas and Canada has been criticized in a CEQ⁵ study prepared by the Coast Guard as both navigationally and environmentally unsafe. U.S. ports are already congested with ship traffic and to add large numbers of tankers would almost certainly increase the incidence of oil spills from groundings and collisions. The study presents statistical data to show hat the same volume of oil could be transported with less risk in a few supertankers than in more, conventionally-sized tankers. These findings are open to question, however, since the study is based on the assumptions that double bottoms will be mandatory for supertankers and that radar-guided traffic control systems will be in operation around deep water ports. The study itself also cautions that during the two-year period in which data was collected, there was no major spill involving a supertanker, but that if one had occurred, the statistical conclusion might have been substantially different. The study thus represents less than a solid basis for deep port proponents, and the Sierra Club and the Environmental Defense Fund have asked for further investigation of the small tanker direct importation alternative.

These two groups have also called for further study and explanation of possible submerged pipelines, but assuming that deep water ports for unloading supertankers by means of such pipelines represent the best theoretical solution to the problem of increased oil importation, a second group of issues concerning the location, construction, and operation of such facilities immediately arises. The first problem is jurisdictional. At present states may not license port construction beyond the three mile limit, and federal legislation is thus required to allow any facility which is not constructed directly by the government. Congress could simply give the states authority to license and regulate deep water port construction and operation beyond the three mile limit off their shores, or designate a federal agency as the licensing and regulating authority, or reserve the right to approve such ports through legislation on a case by case basis. The first alternative, which Louisiana has already endorsed, would exempt deep port site selection from the requirements of NEPA and make it impossible for a single agency to coordinate site location decisions on a national scale. Senator Case of New Jersey has argued for requiring individual congressional authorization of each proposed port, but there seems little support for this position on Capitol Hill. The Sierra Club and the Environmental Defense Fund have called for the creation of a new federal agency to deal with all the decisions regarding deep water ports, but Congress seems at this time inclined to make an existing agency responsible for licensing the ports, though there is disagreement as to which federal agency should administer the licensing process.

The process itself has also been subject to dispute, with regard both to the role of the states and the procedures it would require. New Jersey and Delaware have argued, and Louisiana has agreed, that a state should have veto power over proposed deep water ports off its shores, although Louisiana's acquiescence would seem to rest on the assumption that independent licensing power should accompany this veto power. There is disagreement too over whether a hearing prior to the grant of a license should be mandatory or held only at the licensing agency's discretion. The environmental protection guidelines to be applied to deep water ports and the environmental certification process through which the guidelines are to be met have also been a focal point for controversy, originating in the differences of viewpoint between those who see the deep water port as an "energy crisis" issue and those who view it as a means of minimizing environmental damage.

The issue of proper land-use planning has also begun to loom large over the deep port question as recognition has grown that the most serious projected consequence of deep port construction may be the ancillary shoreside industrial development necessary to receive, store, and process the incoming oil. The Administration's initial refusal to fund the Coastal Zone Management Act of 1972,⁶ after warmly endorsing it prior to passage, raises the question [3 ELR 10167] of whether the executive branch can be depended on to investigate thoroughly and regulate such ancillary effects even if stringent provisions concerning secondary development are enacted. This fear led the Sierra Club to argue that no action should be taken to allow construction of deep water prots until a coherent, comprehensive, and effective framework for coastal zone management and protection has been established at the state as well as the federal level. Awareness of the dangers that such on-shore development poses for proper land-use and environmental protection seems to be widely held among both legislators and citizens of coastal states, except in Texas and Louisiana, where interest in the potential economic benefits runs high and some petroleum processing facilities already exist near proposed port sites. The Delaware Coastal Zone Act⁷ flatly prohibits the introduction of any new heavy industry into the state's coastal zone, and serves as a possible means by which coastal states might not only eliminate ancillary development problems, but also make deep port construction offshore beyond their jurisdiction effectively impractical.

Two deep water port bills are now under active consideration by the Senate. S.1751, the administration bill which accompanied the President's energy message, was introduced by Sen. Jackson on May 8, 1973. It would give the Interior Department power to issue licenses for deep water port construction after consultation with the governors of any state off whose coast the port is to be located. A hearing on the license application would be granted only at the agency's discretion. The agency must find that the proposed facility will be "operated in a manner which will minimize or prevent any adverse significant environmental effects." The Secretary of the Interior is required to determine that the application meets the relevant requirements of other federal agencies and to consult with the governors of adjacent states in order to insure that directly related land-based activities will be consistent with state land use programs. The Secretary may include conditions in a license grant to prevent or minimize pollution and may immediately suspend a license that creates "a serious threat to the environment." All federal laws are extended to cover deep water ports, and any person "adversely affected" by an agency licensing decision may seek judicial review in the U.S. Court of Appeals for the circuit nearest the site.

Many groups expressed dissatisfaction with this bill, and Senator Hollings, noting that the Interior Department had issued the drilling permits that resulted in the Santa Barbara oil spill, introduced an alternative bill (S. 2232)⁸ on July 23, 1973. Hollings' bill gives responsibility over permits to the Secretary of Transportation and requires hearings before any license could be issued. In addition, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, must certify that the proposed port does not pose "an unreasonable threat to the integrity of the marine and coastal environment, and that all possible precautions have been taken to minimize anticipated adverse impact on the marine and coastal environment." The Commerce Secretary may attach conditions to an application to insure the continuing validity of this certification. The Administrator of EPA must also find that the proposed facility meets the requirements of the FWPCA and the Clean Air Act, and any other applicable standards which EPA administers. No certification may be issued by the Secretary of Commerce unless the states adjacent to the site have approved coastal zone management programs pursuant to the CZM Act, and the Secretary has determined after consultation with state officials that the proposed port is consistent with these programs. The Secretary of the Interior likewise may not give his approval unless he finds after consulting with the states that operation of the port and directly related land-based facilities located outside the coastal zone would be consistent with the states' land-use programs. The Secretary of Transportation, who is responsible for obtaining these certifications and other agencies' assurances that the application is lawful and proper, may modify, suspend, or revoke any license. A single environmental impact statement is to be prepared jointly by the Secretaries of Transportation, Commerce, and Interior, and the EPA Administrator. The Hollings' bill allows any person to file suit in the district court for the District of Columbia against the United States or any person for a violation of the act, and against the Secretary of Transportation for failure to perform nondiscretionary duties assigned to him by the law. The court in such a case may in its discretion grant costs and attorneys fees to any party.

Even this cursory examination shows that the multiple agency system of environmental safeguards proposed by S.2232 is much more rigorous than the basically perfunctory provisions of S.1751. The difference reflects the sponsors' attitudes: the Administration bill was introduced as a remedy for the "energy crisis," while S.2232 was specifically designed to protect the marine and coastal environment. Hearings on S.1751 were held in late July by a special joint subcommittee of the Committees on Commerce, Public Works, and Interior and Insular Affairs, and recent hints from the Administration of a possible compromise show that the bill in its present form is in trouble. When the subcommittee's markup of deep water port legislation takes place, the result will probably bear more resemblance to S.2232 than to the Administration proposal. Since little further action is expected on the matter of deep water ports in the Senate this session, the issue will be held over for additional consideration next spring. At this point, the forces insisting on strict environmental protection and land-use planning seem to be standing firm but the uncertain Middle Eastern situation and the possibility of widespread fuel oil shortages in the event of a severe winter make the final form of the legislation difficult to predict at this time.

1. 7 Del. Code §§ 7001 et seq.

2. 38 Me. Rev. Stat. §§ 541 et seq.

3. 1972 Assembly No. 722.

4. 34 La. Rev. Stat. §§ 3101 et seq.

5. 119 Cong. Rec. 14439 (daily ed. July 24, 1973)

6. 16 U.S.C.A. §§ 1451-1464 (Supp. 1973).

7. 7 Del. Code §§ 7001 et seq.

8. 119 Cong. Rec. 14291 (daily ed. July 23, 1973).