Ninth Circuit Greenlights Drilling in Alaska Reserve

The Porcupine caribou herd crosses a river on the coastal plain of Alaska’s Arctic National Wildlife Refuge. (Photo by Peter Mather)

(CN) — Drilling can proceed in a sensitive Alaskan reserve without an update to the government’s 2012 assessment of whether the oil and gas development would speed up climate change, and despite the fact that the assessment was completed four years before the oil at issue was discovered, the Ninth Circuit ruled Thursday.

The National Petroleum Reserve-Alaska is 23.4 million acres of pristine wilderness named as a source of oil for the U.S. Navy in 1923. The vast area is important habitat for millions of migratory birds, marine mammals like beluga whales and home to the Teshekpuk Lake caribou herd — critical for Nuiqsut subsistence hunters. Congress handed management of the reserve to the Department of the Interior in 1976 with the mandate to provide “maximum protection” to the area’s fish and wildlife habitat.

In 2012, the Bureau of Land Management issued an environmental impact statement evaluating the effect of selling oil and gas leases on over 11 million acres of the reserve. In 2016, ConocoPhillips Alaska found a new cache of oil in the reserve that would mean an additional 130,000 barrels per day — beyond the daily 500,000 barrels that flowed through TransAlaska Pipeline last year.

The BLM’s own analysis found that developing the project would be bad for subsistence hunters in the village of Nuiqsut.

“The BLM expects that limitations to subsistence access and the reduced resource availability attributable to development of the project would result in an extensive interference with Nuiqsut hunter access,” the agency’s draft analysis states.

ConocoPhillips Alaska is currently running one drill site in the reserve, is constructing a second site and has proposed a third.

And although the company didn’t discover the new oil it plans to drill until the 2012 environmental impact statement was four years old, a three-judge panel of the Ninth Circuit Court of Appeals found Thursday that the document did enough to weigh the harm of drilling there.

Environmental groups had claimed the new discovery meant the government had to perform “site-specific analysis” to consider the harm that would be caused by that specific project.  But U.S. District Judge Sharon L. Gleason, a Barack Obama appointee, found the government couldn’t have known which parts of the vast area they opened for drilling would actually be drilled, so it’s more generalized assessment was sufficient. The Ninth Circuit affirmed that ruling on Thursday, finding that the 2012 document had contemplated future oil and gas leases, and the judges said that was enough.

Writing for the panel, U.S. Circuit Judge Milan D. Smith Jr. found that previous case law allows the government to prepare just one document as both an overarching management plan and as a detailed, site-specific consideration of individual projects within a large reserve — even in cases like this one, where the government can’t back out once oil companies lease sites. Here, the BLM’s 2017 lease sale “irretrievably committed” the agency to allowing drilling in the sites it leased.

“We disagree with plaintiffs’ suggestion that a programmatic EIS prepared for a broad-scale land use plan categorically cannot provide the site-specific analysis required for irretrievable commitments of resources,” Smith wrote.

But Suzanne Bostrom, arguing before the panel in February on behalf of Trustees of Alaska, said that approach equaled a foregone conclusion — one where specific oil and gas leases and their environmental consequences were no longer optional.

“The problem is here is that when the agency is getting down the line to deciding development decisions, it’s saying that it has already tied its hands,” Bostrom said at the hearing in February. “It’s saying that it can no longer adopt the ‘no action’ alternative.”

Smith noted in the ruling that numerous previous cases found sufficient the government’s use of a single environmental impact statement as covering both a leasing program as well as individual leases.

“The fact that the 2012 EIS provided a programmatic-level analysis for the IAP does not preclude the legal possibility that it also served as the necessary site-specific analysis for future lease sales,” Smith wrote.

U.S. Circuit Judge N. Randy Smith, a George W. Bush appointee, and U.S. District Judge John Tunheim, a Bill Clinton appointee sitting by designation from the District of Minnesota rounded out the panel.

A parallel suit challenged the Department of Interior’s failure to analyze climate change or consider the impacts of the leases through greenhouse gas emissions. But Gleason found that the environmental groups behind that challenge waited too long to file their complaint.

The panel affirmed that too.

At the hearing in February, Judge Smith asked Kevin McArdle, attorney for the Bureau of Land Management, whether the groups could argue that new science showing the imminent emergency presented by climate change should prod the government to analyze the environmental effects of the greenhouse gasses that would be emitted by drilling for oil and gas in the reserve.

“Let me ask this: when we talk about new information, we all here, awake, know that we have a climate change problem,” said Judge Milan Smith, a George W. Bush appointee. “Who causes it and the extent — there’s some debate — but it’s clearly a problem. That discussion has largely occurred after the original EIS occurred in this case, right? Is that new?”

But McArdle said that angle isn’t in play because the environmental groups hadn’t presented it in their lawsuit.

In a second ruling issued Thursday, the same panel of judges affirmed Judge Gleason’s dismissal of the parallel suit, finding that another look at climate impacts was time-barred and that the 2012 document’s minimal consideration of climate impacts was all that was required under the National Environmental Policy Act.

Erik Grafe, an attorney with Earthjustice who argued the case before the panel in February, told Courthouse News Thursday that the ruling affirms environmentalists’ contention that the BLM must still conduct a full analysis under NEPA before offering future lease sales in the reserve.

“This case was decided on a narrow procedural issue — the application of a statute of limitations,” Grafe said in an email. “It did not address the adequacy of BLM’s NEPA analyses for the 2016 & 2017 lease sales.”

Attorneys for the BLM did not immediately respond to requests for comment.

Suzanne Bostrom, who argued the first case before the panel in February on behalf of Trustees for Alaska, said Thursday that the rulings don’t alter the reality that the government is responsible for closely analyzing the impacts of oil and gas leases on public land.

“It’s bad news for public lands when the court allows an agency to lease these lands with so little analysis of how oil and gas activity will affect fish, birds, wildlife, and the land and water,” Bostrom said in an email.

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