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March 06, 2009 --- Vol. 15, No. 24March 2009

9th Circuit Court vacates November decision on Shell Beaufort Sea plan

The U.S. Court of Appeals for the 9th Circuit has withdrawn its Nov. 20 decision by a panel of three judges that upheld appeals by the North Slope Borough, the Alaska Eskimo Whaling Commission and several environmental organizations against the U.S. Minerals Management Service approval of Shell’s Beaufort Sea exploration plan.

“The opinion vacated and withdrawn will be replaced by a new opinion,” the court said in an order issued today. The court did not indicate when the new opinion would be issued.

As a consequence of the November court decision Shell deferred its planned 2009 Beaufort Sea exploration drilling program. The company also filed a petition for a rehearing of the case by the full court.

But the court now says that its decision to vacate the November decision renders moot the Shell rehearing petition and any other motions that relate to that petition.

In the November decision a majority of the judges in the court panel said that MMS had not conducted an adequate environmental evaluation of Shell’s Beaufort Sea exploration plan and that the agency must prepare a revised environmental assessment. Among its findings the court said that MMS had not sufficiently analyzed the impact of drilling noise on bowhead whale migration patterns and, hence, the impact on subsistence whale hunting.

However, one judge dissented from the opinion, saying that MMS had thoroughly analyzed the potential impacts of Shell’s Beaufort Sea program and commenting that it was not appropriate for the court to overrule MMS expertise regarding the interpretation of research results pertaining to the potential impacts of exploration activities on bowhead whales.

See story in March 15 issue available online at noon Friday, March 13, at www.PetroleumNews.com

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