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9th Circuit says ConocoPhillips NPR-A exploration case moot
Alan Bailey for Petroleum News
In an Aug. 24 order the U.S. Court of Appeals for the 9th Circuit declared moot a lawsuit challenging the legality of the Bureau of Land Management approval of ConocoPhillips exploration drilling in 2018-19 in the National Petroleum Reserve-Alaska. The court requires the federal District Court in Alaska to vacate the case.
The exploration in question involved the drilling of up to six exploration wells in or near the Bear Tooth unit, together with the construction of ice roads, ice pads, an airstrip and temporary accommodations. Environmental organizations and the village of Nuiqsut had appealed the approval of the exploration program in the District Court. After the District Court rejected the appeal in January 2020, the appeal was elevated to the 9th Circuit.
Relied on integrated activity plan EIS At the core of the appeal was an argument that BLM should have prepared an environmental impact statement for the exploration program, rather than conducting an environmental assessment linked back to the EIS for BLM’s NPR-A integrated activity plan, completed in 2012. That IAP envisaged the possibility of oil exploration activities in the region where ConocoPhillips conducted its drilling. Apparently the Bear Tooth exploration environmental assessment had also made reference to the supplemental EISs for ConocoPhillips’ nearby drilling in the Mooses Tooth unit. BLM had also argued that it had conducted a separate evaluation of impacts on subsistence uses and needs under the terms of the Alaska National Interest Lands Conservation Act.
BLM and ConocoPhillips had both argued that the case was moot, given that the exploration in question had been completed, with a few small surface well caps being the only remaining evidence of exploration activities.
However, at issue was a question of whether this case could set a precedent for future court decisions in similar cases. Should an exploration project of this nature require its own EIS, rather than relying on the EIS for the IAP?
Legal criteria In concluding that the case is indeed moot the 9th Circuit panel of judges considered two legal criteria, both of which would need to apply were the case to continue: whether the duration of the exploration program being challenged was too short to allow full litigation before completion of the program, and whether there is a reasonable expectation of the same legal challenge in the future. The court determined that, given that the exploration program in question only lasted five months, the first of these criteria applied. However, the second criterion failed because of several new circumstances that have arisen since the District Court’s decision in January 2020, the 9th Circuit said.
Firstly, in 2020 the Council of Environmental Quality issued new regulations for implementing the National Environmental Policy Act. And in January 2021 President Biden directed a review of this new rule. As a consequence it is now unclear whether future challenges to NPR-A exploration would be adjudicated based on the old regulations or the new regulations. Moreover, use of the new regulations would require BLM to use a different method than previously for the approval of future exploration projects.
New IAP for NPR-A Secondly, in 2020 BLM issued a new IAP for NPR-A, thus rendering obsolete the 2012 IAP referenced in the lawsuit. In addition, although BLM says that it is continuing to tier environmental reports for the region at issue to one of the Mooses Tooth supplemental EISs, that particular project represents a different development stage from an exploration project - this would preclude using this approach for an environmental assessment for future exploration, the 9th Circuit panel said.
“The panel concluded that this was a unique case where mootness was not based on a single factor, but on a multitude of new circumstances, which, together, showed that the ‘capable of repetition, yet evading review’ mootness exception did not apply,” the panel wrote in its Aug. 24 order.
- ALAN BAILEY
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