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Federal court upholds issuance of Beaufort Sea oil and gas leases
Alan Bailey Petroleum News
In a Jan. 8 order the U.S. District Court in Alaska has ruled against a motion by the North Slope Borough and the Alaska Eskimo Whaling Commission to rescind oil and gas leases issued in the U.S. Minerals Management Service April 2007 Beaufort Sea lease sale.
The borough and the whaling commission had originally sued to overturn an MMS decision not to supplement a 2003 environmental impact statement for the sale and had sought a preliminary injunction to halt the sale until the court case was settled. However, after the court had allowed the sale to proceed, the borough and the whaling commission sought to have the sale rescinded and asked that an injunction be imposed against further sales until MMS prepared a supplementary EIS.
The court has now denied the request for an injunction and has granted an MMS request to dismiss the case.
Oppose offshore development Native communities on the North Slope have long opposed offshore oil and gas development because of concerns about potential impacts on subsistence hunting. And prior to the 2007 Beaufort Sea lease sale North Slope Borough Mayor Edward Itta commented on why the borough was taking legal action.
“I don’t really want to go to court over this,” Itta said, “but there are way too many unanswered questions about the impacts of offshore activity on the bowhead whale migration and on our subsistence activities. I wouldn’t be doing my job if I just let this lease sale go by.”
He said North Slope whalers and elders are increasingly worried about the stepped-up pace of exploration in recent years.
“People feel like it’s just too much, too soon, too fast,” Itta said. “We’re seeing it onshore with leasing in sensitive areas of NPR-A, and we’re seeing it offshore.”
Environmental assessment According to court documents, in September 2006 MMS published an environmental assessment that found no new significant environmental impacts for the Beaufort Sea lease sale since the publication of the 2003 EIS. But during the public comment period for that environmental assessment, the borough and the whaling commission expressed concern about several issues, including increased industrial interest in the Beaufort Sea, single-field development scenarios for the region and “potentially significant cumulative impacts from seismic testing and climate change on subsistence and polar bears.”
On March 29, 2007, the borough and the whaling commission filed a complaint, arguing that the MMS decision not to supplement the 2003 EIS violated the National Environmental Policy Act. That complaint later led to the request for an injunction rescinding the sale.
In its Jan. 8 order, the court said that in reviewing an administrative action under NEPA, the court must determine whether the MMS action was “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” However, “the reviewing court may not substitute its judgment for that of the agency,” the court said.
Based on that legal standard, the court concluded that MMS had adequately considered whether a supplement to the 2003 EIS was required.
“It is worth noting that MMS exceeded the documentary requirements for determining whether to supplement the 2003 EIS,” the court said. “MMS could have made this determination using a much more informal documentation (than an EA). … After reviewing the administrative record and the parties’ respective briefs with accompanying exhibits, the Court cannot conclude that MMS failed to take a ‘hard look’ at the concerns raised by Plaintiffs prior to concluding that preparation of a Supplemental EIS was not necessary.”
Adequate explanation The court said that MMS had explained adequately how it came to its conclusion that any new information about wildlife or seismic testing was either not significant or already considered in the EIS. Safeguards under the Outer Continental Shelf Leasing Act and the Marine Mammals Protection Act would also render unlikely any significant impacts beyond those envisaged in the EIS, the court said.
“The purpose of NEPA is to ensure that environmental considerations are taken into account, but not necessarily elevated over other appropriate considerations,” the court also commented.
In that regard MMS had invested significant time and expense in preparing for the scheduled lease sales, the court said.
“Moreover, the public interest in energy development favors upholding the scheduled sales,” the court said. “To conclude otherwise would require the Court to engage in multiple levels of speculation regarding climate change, animal migration, and economics, and to conclude that existing federal regulations would not effectively address Plaintiffs’ environmental concerns. This the Court cannot do.”
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