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District court orders CD-5 review; requires NEPA analysis briefing
Judge Sharon Gleason in the federal District Court Alaska has in part upheld an appeal against a U.S. Army Corps of Engineer’s dredge-and-fill permit for ConocoPhillips’ CD-5 oilfield development project in the northeastern National Petroleum Reserve-Alaska. In a May 27 court order Judge Gleason told the parties in the appeal to submit briefings proposing how to proceed in resolving the appeal case.
In a May 28 email, ConocoPhillips spokeswoman Natalie Lowman told Petroleum News that ConocoPhillips is reviewing Judge Gleason’s decision and cannot at this point speculate on any course of action.
Permit appealed In February 2013 seven residents of the village of Nuiqsut, the nearest village to the CD-5 site, appealed the Corps of Engineers permit on the grounds that, in issuing the permit, the Corps had violated the National Environmental Policy Act and the Clean Water Act. Later in 2013 the Center for Biological Diversity, an environmental group, also filed suit, challenging the permit on similar grounds. The District Court later consolidated both appeals for joint review.
CD-5, in effect, represents the latest phase in the development of a series of modest-sized fields that are satellites to the ConocoPhillips Alpine field in the Colville River Delta, on the North Slope. And in 2004 the Corps published an environmental impact statement for the complete program of Alpine satellite developments.
The Corps of Engineers’ permit for the CD-5 project has been a subject of controversy since 2005, when ConocoPhillips originally applied for a permit for the project. The project is of particular interest as the first stepping stone to oil development in NPR-A.
In 2010 the Corps refused to issue the CD-5 permit, saying that a proposal by ConocoPhillips to build a bridge over the Nigliq channel of the Colville River was environmentally unacceptable and that a pipeline bringing production from the new field into the central North Slope should pass under the river, not over it. Eventually, in 2011, the Corps changed its mind, issuing a permit that allowed bridge construction.
Further analysis needed? The villagers who appealed the permit in 2013 are worried about the potential impact of the CD-5 development on their subsistence activities in and around the Colville River. They question the Corps’ rationale in concluding that changes that have taken place since the issue of the 2004 environmental impact statement did not require a supplementary environmental analysis - apparently the Corps had stated that the permitted action for CD-5 would raise no new, significant environmental concerns.
Kuukpik, the village corporation for Nuiqsut; Arctic Slope Regional Corp; the North Slope Borough; the State of Alaska; and ConocoPhillips all joined the appeal, in support of the Corps.
In March 2014 Judge Gleason refused to issue an injunction that would have placed the CD-5 development on hold until the appeal was resolved.
In her May 27 court order Gleason dismissed the Center for Biological Diversity appeal, saying that, because neither the environmental organization nor any of its members appears to have any direct connection with the impacts of the CD-5 project, the Center does not have standing in the case.
Complaint upheld But the judge has agreed with the Nuiqsut villagers that the Corps has not adequately explained why changes in the CD-5 project since the 2004 environmental impact statement did not warrant a further environmental analysis, under the terms of the National Environmental Policy Act. Examples of project changes include the relocation of the CD-5 pad by 1.3 miles; an increase in the number of wells planned for the project; a change in road alignment; an increase in road length; and an increase in the number of bridges required, Gleason said. The court has concluded that “the Corps’ decision was arbitrary,” she said. Gleason also agreed with the villagers that the Corps had been “arbitrary” in dismissing without explanation the environmental significance of information contained in some new documents, submitted to the Corps after publication of the environmental impact statement, and on any new information that the Corps relied on in making its revised permit decision.
Gleason deferred judgment on another issue raised by the plaintiffs in the appeal - a question of whether the impacts of climate change on the North Slope in the last few years also merit a supplemental environmental analysis. The judge asked for briefings on this specific issue.
Given the unresolved questions relating to the application of the National Environmental Policy Act, it is premature at this stage to rule on whether the Corps’ CD-5 permit decision violated the Clean Water Act, Gleason said. Instead, Gleason has ordered the parties in the case to file proposals on how the case should proceed. The judge said that, at this stage, she has not determined whether a supplemental analysis under the National Environmental Policy Act is warranted, or what the appropriate remedy would be for the Corps’ violation of the act. The issue in question is the need for the Corps to provide an adequately reasoned explanation for its decision not to conduct a supplemental analysis.
- Alan Bailey
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