Introduction

Under the Outer Continental Shelf Lands Act (OCSLA), as amended,¹ the Department of the Interior (DOI) must prepare and maintain forward-looking five-year plans—referred to by DOI as national programs or five-year programs—that indicate proposed public oil and gas lease sales on the U.S. outer continental shelf (OCS) over a five-year period.² In preparing each program, DOI must balance national interests in energy supply and environmental protection.³ The lead agency within DOI responsible for the program is the Bureau of Ocean Energy Management (BOEM).⁴

BOEM's development of a five-year program typically takes place over two or three years, during which successive drafts of the program are published for review and comment. All available leasing areas are initially examined,⁵ and the selection may then be narrowed based on economic and environmental analysis to arrive at a final leasing schedule. At the end of the process, the Secretary of the Interior must submit each program to the President and to Congress for a period of at least 60 days, after which the proposal may be approved by the Secretary and may take effect with no further regulatory or legislative action.⁶

As required by the National Environmental Policy Act (NEPA), the planning process includes a programmatic environmental impact statement (PEIS).⁷ The PEIS examines the potential environmental impacts from oil and gas exploration and development on the OCS and considers a reasonable range of alternatives to the proposed plan. Public comments from stakeholders, including state governors, companies, individuals, and public interest organizations, are addressed in both the PEIS and the five-year program itself. Because of the stages of review and comment required under both the OCSLA and NEPA, the Administration generally could not revise a finalized program—for example, to add new sales—without restarting the program development process.⁸ However, scheduled sales could potentially be cancelled (but not added) during implementation of the program, based on requirements for environmental review that are associated with each individual sale.

The leasing decisions in BOEM's five-year programs may affect the economy and environment of individual coastal states and of the nation as a whole. Accordingly, Congress typically has been actively involved in the planning process for the five-year programs. Under the OCSLA, Congress's review of BOEM's final program does not include approval or disapproval of the program. However, Members of Congress may influence the program in other ways. Members may convey their views on the Administration's proposals by submitting public comments on draft versions of the program during formal comment periods, and they may evaluate the program in committee oversight hearings. More directly, Members may introduce legislation to set or alter a program's terms.

This report discusses the history and legal framework for BOEM's five-year leasing programs, outlines the agency's program development process, summarizes previous programs, and discusses the role of Congress. Most recently, the five-year program for 2024-2029 was approved by Secretary of the Interior Deb Haaland in December 2023.⁹ The program schedules three lease sales for the 2024-2029 period, all located in specified planning areas of the Gulf of Mexico region of the OCS. (BOEM identifies four OCS regions—the Gulf of Mexico region, the Alaska region, the Atlantic region, and the Pacific region—comprising a total of 26 planning areas.) Prior to the December 2023 approval of the program, a gap occurred between leasing programs, the first prolonged gap since publication of the programs began in 1980.¹⁰ The 2017-2022 program had expired on June 30, 2022, with 8 of the 11 scheduled sales having been held, one of which was vacated by a court decision. Subsequently, P.L. 117-169, commonly known as the Inflation Reduction Act of 2022 (IRA 2022), was enacted in August 2022; it directed BOEM to hold the remaining lease sales in the 2017-2022 program despite the program's expiration and directed the agency to issue the leases from the vacated lease sale.¹¹ For further discussion of the 2024-2029 program and recent actions, see CRS Report R44692, Five-Year Offshore Oil and Gas Leasing Program: Status and Issues in Brief.

Historical Background¹²

In 1953, Congress enacted two laws that addressed jurisdiction and rights off the coasts of the United States, including rights to regulation of subsurface oil and natural gas exploration and production. The first of these acts, the Submerged Lands Act,¹³ provides that coastal states are generally entitled to an area extending 3 geographical miles¹⁴ from their officially recognized coasts (or baselines).¹⁵ The second, the OCSLA, defined the OCS as "all submerged lands lying seaward and outside of" state coastal waters that are subject to the jurisdiction and control of the United States.¹⁶ The OCSLA has as its primary purpose "expeditious and orderly development [of OCS resources], subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs."¹⁷

As offshore activities expanded in the years following adoption of the OCSLA, Congress sought a means by which to allow for expedited exploration and production in order to achieve national energy goals while also providing for environmental protection, opportunities for state and local governments affected by offshore activity to have their voices heard, and a competitive bidding and leasing process.¹⁸ The product was the Outer Continental Shelf Lands Act Amendments of 1978.¹⁹ This legislation added a number of new provisions to the OCSLA, including Section 18, which mandates the creation and maintenance of an OCS leasing program to "best meet national energy needs for the five-year period following its approval or reapproval."²⁰ These five-year programs, which include schedules for lease auctions, have provided the framework for OCS oil and gas exploration and production since the first one was adopted by DOI in 1980.

Although the 1978 amendments were the last major overhaul to the OCSLA, Congress has taken other actions since that time that have altered the scope of offshore oil and gas exploration and production. For example, the Deep Water Royalty Relief Act of 1995 attempted to encourage exploration and production in deep water by providing relief from otherwise applicable royalty payment requirements for some deepwater oil and natural gas production.²¹ The Gulf of Mexico Energy Security Act of 2006 directed the leasing of certain regions of the Gulf of Mexico for oil and gas exploration and production and placed a moratorium on leasing in other regions.²² It also created a mechanism for sharing revenues from leasing in the region with Gulf states and the Land and Water Conservation Fund.²³ Also, starting in 2008, Congress removed language from annual Interior appropriations legislation that had been in place to bar leasing and related activities in certain OCS regions.²⁴ These legislative actions helped to shape subsequent five-year programs.

Legal Framework²⁵

The statutory framework governing BOEM's development of a five-year offshore oil and gas leasing program includes the OCSLA as well as other federal statutes, particularly NEPA and the Coastal Zone Management Act (CZMA).²⁶

Outer Continental Shelf Lands Act

Section 18 of the OCSLA provides

The Secretary [of the Interior] ... shall prepare and periodically revise, and maintain an oil and gas leasing program to implement the policies of this subchapter. The leasing program shall consist of a schedule of proposed lease sales indicating, as precisely as possible, the size, timing, and location of leasing activity which he determines will best meet national energy needs for the five-year period following its approval or reapproval.²⁷

Section 18 further provides that the OCS is to be managed in a manner "which considers economic, social, and environmental values" of the resources of the OCS as well as the potential impact of oil and gas exploration on the marine, coastal, and human environments.²⁸

Specifically, Section 18 directs the Secretary to schedule the timing and location of oil and gas exploration and production among the regions of the OCS based on consideration of a variety of factors, including existing geographical, geological, and ecological characteristics of the regions; relative environmental and other natural resource considerations of the regions; the relative interest of oil and natural gas producers in the regions; and the laws, goals, and policies of the states that would be affected by offshore exploration and production in the region. In addition to striking this balance, leasing under the five-year program must also "be conducted to assure receipt of fair market value for the lands leased and the rights conveyed by the Federal Government."²⁹ The OCSLA also requires that the five-year program include estimates on appropriations and staffing needs.³⁰

The OCSLA also imposes a number of consultation requirements. During preparation of the five-year program, the Secretary of the Interior must "invite and consider suggestions for such program from any interested Federal agency, including the Attorney General, in consultation with the Federal Trade Commission, and from the Governor of any State which may become an affected State under such proposed program."³¹ In addition to these mandatory consultation requirements, the Secretary may choose to consult with local government officials in affected states.³²

Once the Secretary has satisfied these consultation and other requirements and prepared a proposed program, that program must be submitted to the governor of each affected state for further comments at least 60 days prior to publication of the proposed program in the Federal Register.³³ The OCSLA also authorizes the Attorney General, in coordination with the Federal Trade Commission, to submit comments regarding potential effects of the proposed program on competition.³⁴ Subsequently, at least 60 days prior to its approval, the Secretary must submit the proposed program to Congress and the President, along with an explanation as to why any specific recommendation of the Attorney General or a state or local government was not accepted.³⁵ Once these steps have been completed, the Secretary is free to approve a final five-year program. The OCSLA also authorizes the Secretary to revise the five-year program at any time pursuant to a mandated review, but any revision that is "significant" must go through the process for the initial five-year program described above.³⁶

The responsibilities of the Secretary of the Interior with respect to the five-year program under the OCSLA are carried out by BOEM. The regulations applicable to BOEM's preparation of the five-year program include details regarding these consultation requirements. For example, BOEM is required to send letters to governors of affected states requesting that they identify specific laws, goals, and policies that they would like BOEM to consider during preparation of the five-year program.³⁷ The regulations also outline requirements for publication of the proposed program in the Federal Register.

Other Federal Statutes

While the OCSLA and the applicable regulations guide the five-year planning process, other federal statutes also play a role in the program's formation. Two federal statutes that play a prominent role in the preparation of the five-year program are NEPA and the CZMA.

National Environmental Policy Act

Section 102(2)(C) of NEPA requires all federal agencies to prepare a detailed statement of the environmental impact of and alternatives to major federal actions significantly affecting the environment.³⁸ In many cases the process for compliance with this requirement includes an environmental assessment (EA) that determines whether an action is a major federal action significantly affecting the environment.³⁹ However, if the agency has determined that the proposed action is a major federal action without conducting an EA, then the agency moves directly to preparing the statement of the environmental impact of and alternatives to the proposed federal action, known as an environmental impact statement (EIS).⁴⁰ This is the case with BOEM's five-year programs; the significance of the program's impact on the environment is assumed. Therefore, BOEM prepares a programmatic EIS (PEIS)⁴¹ concurrently with preparation of the five-year program. This process is explained in further detail throughout this report.

Coastal Zone Management Act⁴²

Under the CZMA,⁴³ states are encouraged to enact coastal zone management plans to coordinate protection of habitats and resources in coastal waters.⁴⁴ The CZMA establishes a policy of preservation alongside sustainable use and development compatible with resource protection.⁴⁵ State coastal zone management programs that are approved by the Secretary of Commerce are eligible to receive federal monetary and technical assistance. State programs must designate conservation measures and permissible uses for land and water resources,⁴⁶ and must address various sources of water pollution.⁴⁷

The CZMA also requires that the federal government and federally permitted activities comply with these state programs.⁴⁸ To that end, the BOEM regulations governing the five-year program provide that "[i]n development of the leasing program, consideration shall be given to the coastal zone management program being developed or administered by an affected coastal State."⁴⁹ The regulations require BOEM to request information concerning the relationship between a state's coastal zone management program and OCS oil and gas activity from the governors of affected coastal states and the Secretary of Commerce prior to development of the leasing program.⁵⁰

Five-Year Program Development Process⁵¹

BOEM's development of a five-year program typically takes place over two or three years, during which three successive versions of the program proposal are published for review. The process can sometimes take longer; for the 2024-2029 program, program development spanned a six-year period over two presidential Administrations.⁵² The program drafts are submitted to state governors and federal agencies and, in the final stage, to Congress and the President (see discussion of consultation requirements in the "Legal Framework" section, above). The second and final program proposals are released concurrently with draft and final versions of the PEIS, which are also opened to public comments. Each step of the process involves additional public comment and environmental review. After the program takes effect, individual lease sales also undergo environmental review, as do companies' exploration and development plans on leased tracts. Figure 1 outlines the steps from development of the five-year program to actual oil and gas production in an individual well.

Because of the analysis and review undertaken at each stage of drafting the five-year program, the successive drafts represent a winnowing process. The initial draft proposed program (DPP) examines all of the agency's available planning areas for oil and gas leasing,⁵³ analyzing them according to factors in Section 18 of the OCSLA and considering public input, in order to develop an initial schedule of proposed lease sales. In subsequent versions of the program, BOEM might remove proposed sales on the basis of further analysis, but could not add new sales without reverting to an earlier stage of the process and undertaking new environmental reviews.

Figure 1. OCS Oil and Gas Leasing, Exploration, and Development Process

Source: BOEM oil and gas leasing flow chart, at https://www.boem.gov/sites/default/files/oil-and-gas-energy-program/Leasing/Five-Year-Program/2017-2022/Process-Diagram.pdf.

The steps of the process are discussed in greater detail below, with examples from the 2024-2029 program, the most recent five-year program to complete the development process.

• Step 1. Request for Information. BOEM initiates development of a new five-year program by publishing in the Federal Register a request for information (RFI) from interested parties concerning regional and national energy needs for the next five-year period; leasing interests of possible oil and gas producers; environmental concerns; and concerns of state and local governments, tribes, and the public, among other issues. For example, the RFI for what became the 2024-2029 leasing program was published on July 3, 2017, and was followed by a comment period during which the agency received more than 800,000 comments.⁵⁴ At the time, the leasing program was envisioned as covering a five-year period from 2019 through 2024.
• Step 2. Draft Proposed Program/Notice of Intent for PEIS. BOEM publishes a draft proposed program (DPP), the first of three program decision documents.⁵⁵ The DPP analyzes all OCS planning areas available for leasing, taking into account comments received on the RFI, and identifies a preliminary lease schedule. BOEM published its DPP for what became the 2024-2029 program (at that time planned as a 2019-2024 program) on January 8, 2018, with a comment period that closed on March 9, 2018.⁵⁶ The DPP was published under the Trump Administration. The DPP's preliminary lease schedule consisted of 47 proposed oil and gas lease sales spanning all four offshore planning regions (Gulf of Mexico, Alaska, Atlantic, and Pacific). BOEM received more than 2 million comments on the DPP.

When the DPP is published, BOEM also issues a notice of intent (NOI) to publish a programmatic environmental impact statement (PEIS) for the proposed lease areas and seeks public input (through a scoping process) on the issues that should be analyzed in the PEIS. The NOI to prepare a PEIS for what became the 2024-2029 program (at that time planned as a 2019-2024 program) was published on January 8, 2018, along with the DPP.⁵⁷

• Step 3. Proposed Program/Draft PEIS. After further analyzing the lease sale areas proposed in the DPP according to the required factors in Section 18 of the OCSLA, and taking into account the public comments received on the DPP, BOEM publishes a proposed program (PP). This second version refines the proposed locations and timing for OCS oil and gas lease sales. BOEM submits the PP to Congress, state governors, and relevant federal agencies and also solicits public comment on the program. BOEM published the PP for what became the 2024-2029 program on July 8, 2022, with a comment period that closed on October 6, 2022.⁵⁸ At that time, the PP was envisioned to cover the years 2023-2028. The PP, published under the Biden Administration, revised the draft leasing schedule from the DPP to narrow it to a maximum of 10 proposed lease sales spanning two offshore planning regions (Gulf of Mexico and Alaska).

The PP is accompanied by a draft PEIS analyzing the OCS areas that were identified for leasing at the DPP stage. The draft PEIS for what became the 2024-2029 program (at that time covering the 2023-2028 period) was released along with the PP, with a comment period that closed on October 6, 2022.⁵⁹ BOEM received more than 750,000 comments on the PP and draft PEIS.

• Step 4. Proposed Final Program/Final PEIS. The final document published by BOEM is the PFP, which is based on additional analysis of the factors in Section 18 of the OCSLA, along with analysis of the public comments received on the PP and draft PEIS. The PFP is announced in the Federal Register and submitted to the President and Congress for a period of at least 60 days. Although Congress does not have an approval role for the PFP, the 60-day review period could allow for legislation to be introduced that would influence the outcome of the program. BOEM published the PFP for 2024-2029 on September 29, 2023.⁶⁰ It contained a final refinement of the proposed lease schedule, narrowing it to three sales in one offshore planning region (the Gulf of Mexico region).

Along with the PFP, BOEM publishes a final PEIS that concludes the analysis of the areas proposed for leasing. The final PEIS is submitted to the President and Congress along with the PFP. BOEM released the final PEIS for the 2017-2022 program on September 29, 2023, along with the PFP.⁶¹

• Step 5. Approval of PFP by Secretary of the Interior. At least 60 days after the PFP is submitted to the President and Congress, the Secretary of the Interior may approve the PFP, which then becomes final. The Secretary publishes a record of decision for the final program. Secretary of the Interior Deb Haaland issued a record of decision approving the final program for 2024-2029 on December 14, 2023.⁶²

Five-Year Programs Submitted in Earlier Years⁶³

Since 1980, 10 distinct five-year programs and a revised version of one program have been submitted to Congress.⁶⁴ Following the 60-day review period required by the OCSLA, each of these five-year programs has taken effect as an approved program. Table 1 shows the previous submissions, dating back to 1980. The five-year programs have reflected the offshore oil and gas leasing policies of different presidential Administrations, along with input from states, Members of Congress, and other stakeholders.

Role of Congress

Congress can influence the Administration's development of a five-year program in a number of ways. Members of Congress may convey their views on the Administration's proposals by submitting public comments on program drafts during the formal comment periods, and they may evaluate the program in committee oversight hearings. More directly, Members may introduce legislation to set or alter a program's terms. Congress also has a role under the OCSLA of reviewing each five-year program once it is finalized, but as discussed above, the OCSLA does not require that Congress directly approve the final program in order for it to be implemented.

As examples of these types of participation, this section summarizes congressional action on the 2017-2022 program, the most recent completed program. For developments related to the upcoming 2024-2029 program, see CRS Report R44692, Five-Year Offshore Oil and Gas Leasing Program: Status and Issues in Brief.

Public Comment

Members of Congress, along with other stakeholders such as state governors, interested agencies and organizations, and members of the public, may submit comments on draft versions of five-year programs. For the 2017-2022 program, BOEM received 15 comments from Members of Congress on its initial request for information (RFI), 12 comments from Members on the DPP, and 5 comments from Members on the PP. Some of these comments came from one or a few Members, and others had many signers (in some cases, 150 Members or more).⁶⁵ Some comments opposed the inclusion of certain regions in the program, whereas others supported the proposed lease sales or sought an expansion of lease areas and a higher number of sales. The comments also addressed related issues such as seismic testing in the Atlantic.

BOEM takes the public comments into account when developing successive drafts of a five-year program. Each draft contains an appendix summarizing the substantive comments that BOEM received on the previous version, including those from Members of Congress, and explaining BOEM's response to each.⁶⁶ BOEM may revise the program to partially or fully adopt a suggestion, or may explain why it declined to do so.

Oversight Hearings

The House or Senate may hold oversight hearings to evaluate a proposed five-year oil and gas leasing program. Such hearings help to inform Members in their legislative decisionmaking concerning the program and provide an opportunity for BOEM to hear Members' views. After BOEM released the DPP for 2017-2022, the House Natural Resources Committee held a hearing on the program on April 15, 2015.⁶⁷ Members and witnesses addressed issues such as the overall number of lease sales proposed for the program, whether leasing should occur in the Atlantic and Arctic, and whether seismic surveying should occur in the Atlantic, among others. On May 19, 2016, the Senate Energy and Natural Resources Committee held a hearing on the PP version of the program.⁶⁸ Members and witnesses discussed, among other issues, the PP's proposal for targeted rather than area-wide lease sales in Alaska and the factors that contributed to BOEM's decision to remove its earlier-proposed Atlantic lease sale from the 2017-2022 program.

Legislation

Under the OCSLA, the final version of each five-year program must be submitted to Congress for a period of 60 days before the Secretary of the Interior can approve and implement the program.⁶⁹ During or outside the 60-day period, Congress could consider legislation to alter the program. Legislation could, for example, remove scheduled lease sales, add new lease sales, or make broader changes to the program.

The 114^th, 115^th, 116^th, 117^th, and 118^th Congresses all considered legislation to alter the development or implementation of the 2017-2022 program. Proposals included bills to add specific lease sales to the program or require a different set of lease sales, to require certain minimum numbers of acres to be leased, to prohibit leasing in certain OCS areas, to defund the planning program, to prohibit any revisions to the program, and to require that canceled lease sales be held even after the program's expiration, among other topics. One enacted measure—the IRA 2022, P.L. 117-169—directed BOEM to hold three canceled lease sales from the 2017-2022 program despite the program's expiration and to issue the leases from Lease Sale 257, which previously had been vacated by a judicial decision.