The early EIS: a benefit or a problem?

Although criticized by some an unnecessary, could the continuing effort by the National Marine Fisheries Service, or NMFS, to develop a programmatic environmental impact statement for Arctic oil and gas exploration actually benefit the oil industry by reducing some of the uncertainties associated with environmental permitting and environmental mitigation? Or, is it simply premature to attempt an environmental analysis for activities that are not yet planned?

During the Seminar Group’s Permitting Strategies in Alaska seminar on Feb. 28, Ryan Steen, an attorney with Stoel Rives, commented that there is a growing trend towards EIS development at as early a stage as possible in a project life cycle. The preparation of an EIS forms part of the process for implementing the National Environmental Policy Act, or NEPA, a federal statute that that requires a thoughtful and thorough analysis of the probable environmental impacts of projects, Steen said.

And, although a NEPA review leading to an EIS does not result in the issue of a permit as such, the open-ended nature of the NEPA statute leaves plenty of scope for litigation that can result in significant project delays. So starting early makes sense.

“You want to get started in plenty of time, so that NEPA doesn’t hold up your other permits,” Steen said.

But a lack of sufficient information about what a project will precisely involve may cause difficulties in early EIS development, Steen said.

In the case of the NMFS EIS, the Fisheries Service has said that it anticipates having to do many marine mammal incidental harassment authorizations for future oil and gas activities — the agency thinks that it would be best to do a single EIS up front, to cover all of the potential activities as one batch, Steen said. But, while that seems at least in concept to be a reasonable idea, it does raise the “early EIS” question of whether sufficient information is known about future exploration projects to, in fact, be able to develop a useful document.

If a document such as this is developed prematurely the EIS could end up being supplemented multiple times within a few years, or perhaps be replaced by subsequent EIS documents, Steen said.

Early EIS development also potentially raises another emerging issue — the question of missing environmental information pertinent to the analysis of potential environmental impacts. This missing information question is at the core of a multi-year lawsuit challenging the EIS for the 2008 Chukchi Sea oil and gas lease sale, the lease sale in which Shell, ConocoPhillips, Statoil and others purchased leases, Steen said. Environmental groups have claimed that the EIS does not adequately consider missing environmental information for the Chukchi Sea.

After a major rework of the EIS by the Department of the Interior following a federal District Court in Alaska ruling in the case, the appeal has now moved to the 9th Circuit Court of Appeals. The 9th Circuit’s eventual decision in this case will set an important precedent for the future treatment of missing information in a NEPA analysis, Steen said.

—Alan Bailey