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Providing coverage of Alaska and northern Canada's oil and gas industry
December 2018

Vol. 23, No 50 Week of December 16, 2018

Challenge dismissed

District Court rejects appeals against 2016 and 2017 NPR-A lease sales

Alan Bailey

Petroleum News

The federal District Court in Alaska has rejected two appeals challenging the legality of recent Bureau of Land Management oil and gas lease sales for the National Petroleum Reserve-Alaska. In a Dec. 6 court order Judge Sharon Gleason upheld a motion by BLM and ConocoPhillips Alaska to dismiss the appeal. ConocoPhillips had purchased leases in the sales. One lawsuit challenged the lease sales conducted in 2016 and 2017, while the other challenged the 2017 lease sale.

Individual lease sale EIS?

The lawsuit challenging the 2017 lease sale claimed that the sale contravened the National Environmental Policy Act, because BLM did not carry out an adequate assessment of the potential environmental impacts of the sale prior to conducting the sale. Under the terms of NEPA, any significant federal action that could impact the environment requires an environmental evaluation, potentially leading to a formal environmental assessment or the development of an environmental impact statement.

Defendants in the case have countered that BLM conducted an environmental impact statement for the NPR-A integrated activity plan that the agency published in 2013. That plan envisaged the conducting of lease sales in specific areas of the reserve, including the area encompassing the 2017 sale. BLM has argued that the EIS for the plan was sufficient to cover the lease sale itself.

In agency challenges of this type courts adopt a position, as required under the federal Administrative Procedures Act, that they will defer to an agency’s technical expertise in its decision making. The court will, on the other hand, rule on whether an agency decision complies with the relevant laws.

Legal precedent

In this particular case Judge Gleason cited the legal precedent from a previous similar case, involving an appeal against an earlier lease sale held for the northwestern NPR-A. In that case judges in the Court of Appeals for the 9th Circuit had found that no additional EIS was required for the lease sale, because the EIS for the opening of the northwestern area had satisfied the NEPA requirements for conducting lease sales in the area. Moreover, the 9th Circuit court judges commented that the lease sale itself did not trigger any physical activity on leased land - any subsequent proposal for exploration and development on leased acreage would require environmental review and potentially the development of an EIS.

Gleason did comment that, given the time lag between the publication of the NPR-A integrated activity plan EIS and the conducting of the lease sale now being challenged, there could be a question of new circumstances arising that could impact the findings of the EIS. But plaintiffs have not asserted that a supplemental EIS for the plan is needed but have, instead, argued for the development of a completely new lease sale EIS, she wrote.

Challenge to plan EIS

The appeal against the 2016 and 2017 lease sales was launched in 2018 and argued that BLM had not adequately considered the potential greenhouse gas emissions impacts of the lease sales, and that the agency had also not adequately considered a range of lease sale configurations when evaluating the potential environmental impacts of the sales.

Judge Gleason rejected this appeal because the appeal had been essentially directed against the adequacy of the integrated activity plan published in 2013 and had been filed too late to have legal standing. Under the terms of the National Petroleum Reserves Production Act, the statute governing actions in the NPR-A, any appeal against the EIS for the plan had to be filed within 60 days of the EIS being published, she wrote. She added that any challenge to the individual lease sales, rather than the lease sale plan, was invalid, for the same reasons that she had found in the appeal against the 2017 lease sale.






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