Ninth Circuit Hears Debate Over Oil Drilling in Alaska Reserve

(CN) – Attorneys sparred Friday over oil and gas drilling in Alaska – whether the government ignored environmental consequences and if it should reevaluate projects in light of climate science released after the project was first evaluated in 2012.

In this undated file photo, drilling operations at the Doyon Rig 19 at the Conoco-Phillips Carbon location in the National Petroleum Reserve, Alaska, are shown. (AP Photo/Judy Patrick, File)

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 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.

Developing the Willow project would be bad for subsistence hunters in the village of Nuiqsut, according to the Bureau of Land Management.

“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.

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

Environmental groups challenged oil and gas lease sales in 2016 and 2017, claiming the BLM failed to consider how the leases would affect climate change and that the agency must evaluate the environmental effects of individual oil and gas leases in Alaska’s National Petroleum Reserve, rather than relying on years-old analysis of the large-scale impact of drilling in the reserve as a whole.

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 its more generalized assessment was sufficient.

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.

On Friday, attorneys argued both cases before a three-judge panel of the Ninth Circuit Court of Appeals in Seattle.

Suzanne Bostrom with Trustees for Alaska argued on behalf of Alaska Wilderness League.

“The lease sale is a distinct, major federal action, separate from the adoption of the management plan,” Bostrom told U.S. Circuit Judges Milan Smith Jr. and N. Randy Smith, both George W. Bush appointees, and U.S. District Judge John Tunheim, a Bill Clinton appointee sitting by designation from the District of Minnesota. “BLM did a high level, programmatic analysis, but didn’t do assessments later when it did lease sales.”

Attorney for the Bureau of Land Management Thekla Hansen-Young countered that the bureau had enough information from its 2012 environmental impact statement, or EIS.

“It is completely appropriate for the BLM to analyze the environmental impacts of leasing in one EIS in advance of the lease sale,” Hansen-Young told the judges.

But Bostrom 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. “It’s saying that it can no longer adopt the ‘no action’ alternative.”

And in the parallel case before the court on Friday, Erik Grafe argued on behalf of Natural Resources Defense Council, claiming there was no way for the groups to challenge the 2012 environmental impact statement within the 60-day time limit when the BLM hadn’t yet determined the details of the individual lease sales.

“At the time the EIS was completed, whether there would be a lease sale at all was not known and exactly what kind of additional analysis BLM would do for the lease sale was not known,” Grafe told the judges.

Judge Milan Smith Jr. 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,” Judge Milan Smith said. “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.

Ryan Steen, attorney for ConocoPhillips Alaska, an intervenor in both cases, said the groups had already made their arguments in response to the 2012 environmental impact statement and couldn’t repeat them now.

“In the meantime,” Steen said, “Conoco has drilled two exploration wells and it’s going to drill four more this winter. It would be patently unfair for this court to find that those lease sales were invalid based upon claims that they stated they had back in 2012. There’s an investment-backed expectation there.”

Dawnell Smith, spokeswoman for Trustees for Alaska, said there are larger problems to worry about, like crumbling coastlines, melting permafrost and the loss of traditional foods for indigenous groups.

“Alaska has been treated like a resource warehouse by outsiders and colonial forces for hundreds of years,” Smith said over the phone. “Now there’s this intense, unrelenting push to sell off every piece of land possible to private industry, no matter the harm done.”

%d bloggers like this: