(CN) — Legal challenges to ConocoPhillips’ oil and gas drilling Willow project continued Monday in an appeal to the Ninth Circuit on whether the Biden administration legally approved the massive undertaking in Alaska's National Petroleum Reserve.
Central to the arguments heard in San Francisco was whether the U.S Bureau of Land Management considered all reasonable alternatives when approving ConocoPhillips’ Willow project last March — a decision that won rare applause from right-wing members of Congress and one that is expected to produce 600 million barrels of oil and 300 long-term jobs.
“This decision is also crucial for our national security and environment," Alaska Senator Dan Sullivan said at the time. "Producing much-needed American energy in Alaska with the world’s highest environmental standards and lowest emissions enhances the global environment.”
But despite the Interior Department’s attempt to frame the approval as a compromise on what could have been a larger drilling project, many critics contest the idea that Willow wouldn’t harm the environment when it’s expected to produce at least 263 million tons of greenhouse gas emissions.
When a coalition of environmental groups filed two lawsuits against the Biden administration last March, one of the leading claims accused the U.S. Fish and Wildlife of violating the Endangered Species Act by finding that the project wouldn’t jeopardize the existence of threatened polar bears.
“The BiOp does not consider the impacts of the direct or indirect greenhouse gas emissions from Willow or how these emissions would exacerbate climate change related impacts on polar bears,” the Sovereign Iñupiat for a Living Arctic wrote in its complaint. “The BiOp fails to address existing scientific and technical information that has become available in the last decade that demonstrates such an analysis can indeed be conducted for polar bears.”
The Center for Biological Diversity included the same claim in its lawsuit. It also similarly accused the bureau of failing to consider any reasonable alternatives that would meaningfully reduce greenhouse gas emissions or prohibit infrastructure in the reserve’s culturally and ecologically important areas around Teshekpuk Lake and the Colville River.
U.S. District Judge Sharon Gleason dismissed both lawsuits in November 2023, ruling that the service’s conclusion about Willow’s disturbances was within the bounds of reasoned decision-making. Gleason also rejected the groups’ arguments around project alternatives — particularly those that would have allowed ConocoPhillips to produce “some oil” from its leases and not all — writing that they were inconsistent with Congress’s intent when it tasked the Interior Department with competitive leasing of oil and gas rights in the reserve.
"ConocoPhillips, as the lessee, has the right and the responsibility to fully develop its oil and gas leases in the NPR-A subject to reasonable restrictions and mitigation measures imposed by the federal government," Gleason wrote. "The alternatives that BLM analyzed are fully consistent with an interpretation of the purpose and need statement that recognizes the rights and responsibilities of the lessee."
Attorneys for the environmental groups brought the same arguments to a Ninth Circuit panel on Monday but with more emphasis on whether the bureau correctly constrained its alternative options to anything but a full field project.
According to Earthjustice attorney Erik Grafe, representing the center, the bureau’s supplemental environmental impact statement states that it must allow access to some subsurface resources and that it cannot permit a developmental proposal that would stray an economically viable quantity of oil.
“BLM thought itself constrained and that was an error and incorrect,” Grafe said, later adding that ConocoPhillips’ leases are subject to the bureau’s regulatory obligations to protect surface resources and afford maximum protection to special areas in the reserve.
Pushing back on this argument, government attorney Amy Collier explained that the leases could only propose full field development and that the bureau understood that it could not compare the impacts of a full field analysis next to a piecemeal or segmented alternative. Likewise, ConocoPhillips attorney Jason Morgan argued that the bureau could not consider an alternative that foreclosed infrastructure in a special area due to Congress’ statutory framework of his client’s leases.
Between these arguments, U.S. Circuit Judge Gabriel Sanchez took a moment to address how the bureau sent a letter to the service stating that it did not need to analyze downstream impacts of climate change from greenhouse gas emissions as part of its analysis.
“I guess my question is, if a project of this size wouldn’t trigger a formal analysis from the service, what would?” the Biden appointee asked.
However, Collier explained that the service had analyzed the potential impact on polar bears and that, in terms of the project’s contributions to climate change, there were no studies indicating a direct causation between Willow’s gas emissions and harm to polar bear critical habitat.
“The Endangered Species Act requires agencies to apply the best available science, which both this court and the Supreme Court has said that they’re not supposed to reply on speculation or surmise,” Collier said.
U.S. Circuit Judge Danielle Forrest, a Trump appointee, joined Sanchez in listening to similar arguments made by Sovereign Iñupiat attorney Suzzane Bostrom. The attorney for intervenor defendant Kuukpic Corporation, Patrick Munson, made the specific argument that the bureau listened to his clients’ subsistence concerns and imposed mitigation measures, including a million-acre conservation area, to reduce impacts on caribou and other resources.
Before Sanchez adjourned the hearing, Bostrom asked the judges to reverse Gleason’s ruling with the bureau’s approval and grant an injunction to halt current Willow construction.
The two judges did not indicate how they would rule.
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