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Willow appeals rejected
District Court judge says BLM approval of NPR-A oilfield development valid
Alan Bailey for Petroleum News
On Nov. 9 federal District Court Judge Sharon Gleason issued an order rejecting two appeals by environmental organizations against the Bureau of Land Management's approval of ConocoPhillips's Willow oilfield development in the National Petroleum Reserve-Alaska.
ConocoPhillips had indicated that, if the appeals had succeeded, it was unlikely that the company would continue to pursue the project.
On Nov. 14 the plaintiffs appealed both cases to the U.S. Court of Appeals for the 9th Circuit.
One appeal had been raised by Sovereign Inupiat for a Living Arctic, Alaska Wilderness League, Environment American, Northern Alaska Environmental Center, Sierra Club and the Wilderness Society, while the other was filed by Earthjustice and the Natural Resources Defense Council on behalf of Defenders of Wildlife and other conservation groups.
Both lawsuits had claimed that that, in its supplementary environmental impact statement and associated record of decision for the Willow project, BLM had failed to adequately consider the potential impact of the project on the natural environment in NPR-A, on subsistence activities in the region, and on greenhouse gas emissions. The lawsuits also claimed that, by encouraging further NPR-A oil developments, the Willow development will result in additional greenhouse gas emissions.
Full legal compliance In her order rejecting the appeals Gleason said that, in the SEIS and ROD, BLM had fully complied with the relevant federal statutes: the National Petroleum Reserves Production Act, the National Environmental Policy Act, the Endangered Species Act and the Administrative Procedures Act.
One issue raised in the cases revolved around whether, in its SEIS, BLM had considered an adequate range of alternatives for the Willow development, including alternatives that would have significantly reduced the scale of the project. In particular there was concern that the preferred alternative has one of the three approved drill sites for the project within the Teshekpuk Lake Special Area, an area of significant environmental sensitivity. The original plan for the development had included two drill sites within the TLSA.
Gleason said that, although Congress had directed that there should be maximum protection for special areas such as the TLSA, it was "clearly envisioned that the TLSA would be developed for oil and gas production." And ConocoPhillips has the right and responsibility to fully develop its NPR-A leases, subject to reasonable restrictions and mitigation measures imposed by the federal government -- the elimination of any drill sites within the TLSA would prevent ConocoPhillips from fully developing the Willow field, a situation that would contravene the NPRPA's policy objectives, Gleason wrote. The court finds that BLM's decision to only consider alternatives that constitute full field development, subject to reasonable environmental mitigation measures, is consistent with those policy objectives, Gleason wrote.
An appropriate balance While BLM's preferred development alternative would be economically viable, this alternative does involve environmental mitigation measures that somewhat reduce the amount of oil that can be profitably produced relative to another alternative, Gleason commented. Thus, the alternatives analysis in the SEIS strikes an appropriate balance between the NPRPA's two objectives of conducting an expeditious NPR-A leasing program while also protecting significant surface resources, Gleason wrote. Moreover, the SEIS and ROD require operating procedures, design features and other mitigation measures to provide maximum protection for TLSA surface resources and to mitigate foreseeable and significantly adverse impacts to other NPR-A surface resources, she wrote.
Greenhouse gas impacts Gleason also rejected arguments that the SEIS had not adequately taken into account the potential greenhouse gas impacts of the Willow project. The Integrated Activity Plan for NPR-A that governs the scope of potential developments in the reserve had considered the possible greenhouse gas emissions resulting from oilfield development -- the range of emissions considered in the IAP analysis adequately provided information that enables an understanding of the potential emissions resulting from the Willow development and other possible subsequent developments such as West Willow, Gleason wrote.
Also, the Fish and Wildlife Service has agreed that the current state of climate science does not enable the determination of any linkage between project-specific greenhouse gas emissions and impacts on listed species such as polar bears from shrinking sea ice cover, the court order says.
And given that, in developing its preferred alternative, BLM had considered a reasonable range of alternatives for informed decision making, the SEIS complied with NEPA, Gleason wrote.
Subsistence use of the land The court order also says that the SEIS recognizes the potential for the Willow project to impact subsistence use of the land. The preferred alternative, as modified in the ROD, includes measures for subsistence tundra access, including three subsistence boat ramps. The ROD also requires BLM to ensure that there is long-term protection for the Teshekpuk Caribou Herd. Kuukpik Corp., the Alaska Native village corporation for the village of Nuiqsut, has characterized a required buffer around the Teshekpuk Lake and designated caribou movement corridors as "groundbreaking mitigation measures," the court order says.
Polar bears Another issue revolves around possible impacts of land operations on polar bears -- the bears have been designated as threatened under the Endangered Species Act. The court order says that the Fish and Wildlife Service has determined that, given the distance of the development from the coast, there would be zero problems with bear cubs experiencing harassment as a consequence of onshore bear denning. For the same reason FWS stated that it did not anticipate any incidental take of polar bears.
Moreover, the Willow project's use of the Oliktok Dock on the Beaufort Sea coast would not cause any meaningful disturbance beyond that caused by the existing heavy use of the dock, the court order says.
Gleason also agreed that the anticipated 30-year life of the project is reasonable, given that ceasing operation after 20 years, as requested by the plaintiffs, would be inconsistent with full field development.
Reactions to the court decision "The court's decision confirms our confidence that the BLM's review complied with all legal requirements," said Erec Isaacson, president of ConocoPhillips Alaska, in response to the court order. "Willow underwent nearly five years of rigorous regulatory review and environmental analysis, including extensive public involvement from the communities closest to the project site. We now want to make this project a reality and help Alaskan communities realize the extensive benefits of responsible energy development."
Oil and gas development on the North Slope has become contentious, with environmentalists arguing that the oil and gas industry can damage the sensitive Arctic environment while also contributing to global carbon dioxide emissions. On Nov. 9 Friends of the Earth hinted that environmental groups plan to challenge the court ruling, as they proceeded to do on Nov. 14.
"We are extremely disappointed in today's decision, which will have tragic consequences for Arctic communities, wildlife, and our planet as a whole," said Hallie Templeton, legal director at Friends of the Earth. "But the fight is far from over. We maintain confidence in our legal claims that Interior has unlawfully ignored the significant environmental harms stemming from Willow. We won't stop until this climate disaster of a project is dead once and for all."
Supporters of the oil and gas industry say that Alaska development projects are subject to stringent environmental regulations and that blocking Alaska development would simply have the effect of moving equivalent development elsewhere, potentially outside the United States in situations where environmental regulation is not as strict.
The industry also forms a key component of the Alaska economy. And, while North Slope residents worry about possible impacts on their subsistence lifestyle, the industry provides significant income for North Slope communities. When in March the Department of the Interior announced its approval of the Willow project, the Inupiat Community of the North Slope, North Slope Borough and Arctic Slope Regional Corp. said that "the Willow Project represents a new opportunity to ensure our indigenous, Alaska Native communities' ten thousand years of history has a viable future."
Comments from congressional delegation "The judge's ruling today is another victory for the critically-important Willow Project, and excellent news for Alaska's economy, good-paying jobs for our families, and the future prosperity of our state," said Sen. Dan Sullivan in response to the court decision. "When we secured the reapproval of Willow in March, Alaskans demonstrated that, when we come together, we can overcome powerful Outside groups and eco-colonialists who want to shut down our economy, kill our jobs, and cancel the voices of Alaska Native people."
"This ruling is a victory for Alaskans' right to responsibly produce our energy resources in the National Petroleum Reserve and to contribute to American energy security," said Sen. Lisa Murkowski.
"This decision is a major win for Alaska and all of us who worked so hard to bring Willow across the finish line," said Rep. Mary Peltola. "Thanks to a historic coalition of Alaska Natives, laborers, our business community, the state legislature, and everyday Alaskans, our voices were loud and persistent enough to carry through the noise of Lower 48 activists."
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