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BLM & ConocoPhillips respond to appeal
Nuiqsut and five environmental groups had elevated challenge over 2018-2019 NPR-A exploration program to 9th Circuit court Alan Bailey for Petroleum News
The Bureau of Land Management and ConocoPhillips have filed briefs in the U.S. Court of Appeals for the 9th Circuit in an appeal by the village of Nuiqsut and five environmental organizations against BLM’s approval of ConocoPhillips’ 2018-19 National Petroleum Reserve-Alaska exploration program. 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 accommodation.
Environmental assessment challenged The plaintiffs argue that BLM should have prepared an environmental impact statement for the exploration activities, rather than relying on simply conducting an environmental assessment. BLM says that its environmental assessment linked back to the environmental impact statement for the NPR-A integrated activity plan, completed in 2012. That EIS fully considered the types of activity that ConocoPhillips conducted in its 2018-19 exploration, BLM says. The environmental assessment was also tiered back to the EIS for ConocoPhillips’ nearby Greater Mooses Tooth 1 development and the supplementary EIS for Greater Mooses Tooth 2, the agency says.
Both BLM and ConocoPhillips also argue that the appeal is now moot, given that the exploration in question has already been carried out. Operations approved by BLM were completed on April 28, 2019.
“What remains is undisturbed tundra, appearing as it did before the winter program with the exception of a few small surface well caps,” ConocoPhillips wrote in its court brief.
Rejected by district court The appeal was originally launched in March 2019 in the federal District Court in Alaska, with the court granting a ConocoPhillips motion to intervene in the case.
On Jan. 9, 2020, District Court Judge Sharon Gleason rejected the appeal, upholding the BLM environmental assessment for the exploration program. The plaintiffs subsequently elevated their case to the 9th Circuit Court - hence the new briefings in the case.
The District Court order rejecting the appeal did comment on the impact of the nearby oil and gas industry on the traditional way of life in Nuiqsut, the North Slope community that is closest to areas of petroleum development. ConocoPhillips’ 2018-19 exploration activities took place in the general vicinity of the village, the court said. The plaintiffs claimed that BLM’s assessment of the potential impacts of the exploration violated the National Environmental Policy Act and the Administrative Procedures Act by failing to take into account impacts on the Teshekpuk caribou herd and subsistence activity. The plaintiffs also claimed that BLM’s decision violated the Alaska National Interest Lands Conservation Act, known as ANILCA, because the agency had not adequately considered alternative actions that could reduce or eliminate impacts on subsistence use of the land.
However, the court found that BLM had acted in compliance with NEPA, APA and ANILCA.
Referenced 2012 EIS In its recent 9th Circuit filing BLM repeats its assertion that, by referring back to the 2012 EIS for the NPR-A integrated activity plan, it had complied with NEPA in its approval of ConocoPhillips’ exploration plan. Moreover, BLM had issued a separate evaluation of the impacts on subsistence uses and needs under the terms of ANILCA, the agency said.
One of the issues relating to the case concerns whether, although the exploration activities in question have already been conducted, the court findings in this case could become a precedent for challenges for planned future exploration. However, in its new brief, BLM argues that any future exploration proposal would involve different “areas, scopes and issues,” and would, therefore, require its own project-specific NEPA analysis. Moreover, BLM issued a new NPR-A integrated activity plan and an associated EIS in June 2020 - any future environmental assessment for NPR-A exploration activities would need to be tiered to that 2020 EIS, and not the EIS completed in 2012, the agency commented. In addition, an EIS issued in 2020 for ConocoPhillips’ nearby planned Willow development analyzes development activities in the same area as most of the 2018-19 exploration.
“In short, it is no longer conceivable for BLM to issue a similar EA in the future,” BLM’s court brief says.
ANILCA compliance In terms of ANILCA compliance, BLM had determined that the planned exploration activities would not significantly restrict subsistence use of the land, and had also found that there were no alternative lands appropriate for the exploration project’s purposes, the brief says. And, while BLM may impose reasonable conditions for the protection of surface resources, ConocoPhillips’ NPR-A leases grant the company the right to extract oil and gas within the leasehold, subject to those reasonable conditions, the brief says.
In its new court brief, ConocoPhillips argues that the 2018-19 exploration program at issue was not expected to and did not have any discernible impacts on caribou.
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