New Alaska Oil Leases Debated in 9th Circuit

(CN) - Native Alaskans and environmentalists who worry that new oil and gas leases in the Chukchi Sea may threaten the marine life urged the 9th Circuit to intervene.

Located in the Arctic Ocean between Alaska and Siberia, the Chukchi Sea contains a variety of marine life including bowhead whales and walrus that are hunted for subsistence by native communities.

The Native Village of Point Hope and the Inupiat Community of the Arctic Slope, along with 10 environmental groups, challenged the offer of leases by federal agencies in 2008, saying there were critical information gaps about how wildlife and human communities could be harmed.

The federal complaint filed in Alaska claimed that the Department of Interior; the Minerals Management Service, now known as the Bureau of Ocean Energy Management (BOEM); and Fish and Wildlife Service approved a final environmental impact statement without proper analysis, violating the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the Administrative Procedure Act (APA).

U.S. District Judge Ralph Beistline refused to cancel the leases, but remanded to the BOEM and ordered it to analyze the environmental impacts of natural gas development, determine whether missing information in the environmental impact statement was necessary for analysis and determine whether the cost of obtaining the missing information was exorbitant.

The BOEM completed a final supplemental environmental impact statement in 2011 that Beistline said "adequately considered" impacts of the leases.

"Admittedly, no one has a crystal ball and can see the future perfectly," he wrote in his 2012 dismissal of the case. "But the court is now satisfied that BOEM has sufficiently studied and evaluated the future impacts of resource development in this region."

On Tuesday, opponents of the leases asked a three-judge appellate panel to reconsider approval of the leases.

Eric Grafe, with Earthjustice, represented the native communities and environmentalists. Grafe told the Seattle panel that "vast amounts of basic information are missing" from the environmental impact statement. He said the federal managers nevertheless concluded that the missing information is inconsequential to offering leases.

"What the government did here cannot stand," Grafe said.

Asked by Judge William Fletcher to identify the missing information, Grafe responded: "It's not for us to cite specific information.

A general example would be the unknown habitat use of Bowhead whales and walrus, he added, noting that regulations require the agency to gather information needed to analyze the lease sale.

Judge Ferdinand Fernandez asked Grafe about a 20-year estimate before development happened.

Though Grafe agreed, he said"it's very important at the lease sale stage to understand what development will look like.".

The lease stage was the only opportunity to close the area, he said. Later the "burden shifts," and canceling a lease requires probable harm to the environment, he added.

David Shilton, representing the Department of the Interior, said the agency "carefully considered" areas of missing information and determined that they were not necessary to have at the lease stage.

"You can get data as you go along and you can add protections as you go along," Shilton said. He said that the government could also cancel the leases if problems develop.

The lawyer had no answer when Judge Johnnie Rawlinson asked how often historically leases have been canceled.

Rawlinson said the plaintiffs were concerned that "once the train starts moving, it's difficult to halt the progress."

Shilton said that development was speculative and the chances of any development occurring is "less than 10 percent."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit