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NPR-A decision awaits written arguments Court rules that FEIS for Northeast NPR-A Planning Area doesn’t take account of cumulative impacts on Northwest NPR-A Alan Bailey Petroleum News
The Sept. 6 injunction issued by U.S. District Court Judge James Singleton Jr. halting the Sept. 27 National Petroleum Reserve-Alaska lease sale is a preliminary court decision, Petroleum News has learned. The court has asked for written arguments by Sept. 15 in response to that preliminary decision. A rebuttal hearing is scheduled for Sept. 21, a court official told PN.
The court will then issue a final decision in the case. That ruling is expected before Sept. 27, an Interior Department official told one member of the press, although the court official PN interviewed was not able to confirm that information.
Until the final decision is made, the court injunction prohibits further action on the Bureau of Land Management’s Jan. 11 record of decision that adopted the final environmental impact statement (or FEIS) authorizing oil and gas leasing in the Teshekpuk Lake Special Area in northeastern NPR-A. The Interior agency’s decision would open 389,000 acres of federal land around the lake for leasing, with the potential to discover as much as 2 billion barrels of oil and 3.5 trillion cubic feet of natural gas.
Wildlife habitat But Teshekpuk Lake is a habitat for huge numbers of waterfowl and lies in an area that includes caribou calving grounds.
A coalition of environmental groups, consisting of the National Audubon Society, Alaska Wilderness League, Center for Biological Diversity, Natural Resources Defense Council, Northern Alaska Environmental Center, Sierra Club and The Wilderness Society, sued to stop BLM’s planned lease sale in northeast NPR-A. That court case has resulted in the Sept. 6 injunction.
And the North Slope Borough has also objected to the BLM decision, although the borough has not participated in the lawsuit.
“It’s too bad that legal action was the only way to make BLM take a closer look at possible consequences of developing around Teshekpuk Lake,” borough Mayor Edward Itta said, in response to the injunction. “… We don’t complain about most of these onshore lease sales. We’re not opposed to well-thought-out, environmentally safe development. But the waterfowl and caribou habitat north of the lake is one-of-a-kind.”
Cumulative impacts According to the court’s Sept. 6 preliminary decision the plaintiffs in the court case have argued that the FEIS violates the U.S. National Environmental Policy Act by failing to analyze the full cumulative impacts of opening the Teshekpuk Lake area on the Northwest NPR-A Planning Area. Teshekpuk Lake lies in the Northeast NPR-A Planning Area. The Sept. 27 lease sale scheduled by BLM was for both this area and the Northwest NPR-A Planning Area.
The court agreed with the plaintiffs’ argument, saying that, although BLM has argued that cumulative impacts on the Northwest NPR-A planning area would be addressed as part of lease stipulations, the outcome of a previous court case relating to leasing in the Northwest NPR-A Planning Area prohibited that argument.
“This Court and the Court of Appeals also relied upon the implicit, if not explicit, representation of Defendants (that) the cumulative impact of development in NE NPRA on the NWPA would be addressed in the NE NPRA EIS,” the court said. “ … Instead, Defendants now argue that since this proposed action is limited to leasing, any further analysis of the cumulative effect may await the next phase — when plans for development actually occur. Having relied on the assumption by this Court and the Court of Appeals that the cumulative analysis would be undertaken in the NE NPRA EIS, which Defendants now apparently believe was erroneous … Defendants are judicially estopped from arguing they had no duty to considered the cumulative impact in the NE NPRA EIS.
“Having failed to fully consider the cumulative effects of the proposed development … Defendants have violated NEPA and abused their discretion.”
And, having reached that conclusion, the court banned any further agency action “on the invalid EIS in the absence of unusual circumstances.”
The court also dismissed an argument by BLM that the January record of decision did not authorize any ground activities in the disputed area, saying that the argument “has significant superficial appeal on its face. It does, however, suffer from one glaring deficiency: it proposes to issue leases based on the stipulations and conditions contained in the ROD.”
Because the record of decision is being remanded for consideration of cumulative effects, stipulations may need to be amended, the court said, and if leases are issued based on requirements in the record of decision, “they may prove difficult, if not impossible, to change subsequently. This would constitute irreparable injury,” it said.
Other arguments dismissed The court dismissed a claim by the plaintiffs that BLM needed to issue a supplemental EIS with a public comment period, in support of the agency’s final preferred alternative for the Teshekpuk Lake Special Area. The court also dismissed an argument that the FEIS did not evaluate the cumulative impact of oil development on global warming — BLM has identified “in significant detail the environmental conditions that could be adversely impacted,” the court said.
The court also dismissed claims that BLM had improperly taken into account the impact on spectacled and Stellar’s eiders, under the terms of the Endangered Species Act.
And the court dismissed the plaintiffs’ argument that the FEIS contravened a stipulation in the National Petroleum Reserve Production Act requiring “maximum protection” of the Utukok River and Teshekpuk Lake areas. The court found that BLM had adequately used its discretion in stipulating protection measures for the Teshekpuk Lake wildlife habitats, given that the National Petroleum Reserve Production Act includes an objective for an “expeditious program of competitive leasing of oil and gas in the Reserve.”
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