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August 27, 2009 --- Vol. 15, No. 63August 2009

Court upholds Beaufort lease sale decision

The U.S. Court of Appeals for the 9th Circuit has upheld a January 2008 decision by the U.S. District Court in Alaska, rejecting an appeal by the North Slope Borough and the Alaska Eskimo Whaling Commission against the U.S. Minerals Management Service April 2007 Beaufort Sea oil and gas lease sale, the sale in which Shell purchased the Beaufort Sea leases that it has been planning to drill in.

NSB and AEWC claimed that, prior to conducting the lease sale, MMS should have prepared a supplement to a 2003 environmental impact statement for the sale.

The district court, in its decision, said that the court could determine whether the agency’s action was “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law,” but “may not substitute its judgment for that of the agency.” Under that legal standard, the court concluded that MMS had adequately considered whether a supplementary EIS was necessary.

In February 2008 the borough and the whaling commission appealed the court decision. But a panel of three 9th Circuit judges has now agreed with the district court’s position.

“The district court found that North Slope (the borough and the whaling commission) failed to show that MMS acted arbitrarily or capriciously,” the judges said. “We agree, and affirm. MMS satisfied its duties under the National Environmental Policy Act … by taking the requisite ‘hard look’ at new information concerning the impact of rising oil prices on the activities related to Lease Sale 202 (the Beaufort Sea sale), and issuing a finding of no new significance.”

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