Providing coverage of Alaska and northern Canada's oil and gas industry
January 2021

Vol. 26, No.2 Week of January 10, 2021

District court declines injunction against holding ANWR lease sale

Alan Bailey

for Petroleum News

The federal District Court in Alaska has declined to issue a preliminary injunction that would have prevented the Bureau of Land Management holding the Arctic National Wildlife Refuge oil and gas lease sale on Jan. 6. In a Jan. 5 court order Judge Sharon Gleason said that the plaintiffs in an appeal against the Bureau of Land Management’s decision to hold the lease sale had failed to establish the likelihood of irreparable harm to ANWR before the court has ruled on the legitimacy of the lease sale program.

There are currently four cases in progress in District Court challenging the program. The rejection of the injunction relates to three of the cases, cases launched by several environmental organizations and organizations representing the Gwich’in people of Arctic Alaska. The fourth case was filed by 15 U.S. states.

The various lawsuits claim that the decision to hold lease sales in ANWR contravened several U.S. statutes, including the National Environmental Policy Act, the Administrative Procedures Act and the Alaska National Interest Lands Conservation Act.

Oral arguments

During oral arguments on Jan. 4 regarding the injunction petition, attorneys for the plaintiffs argued that the sale of leases on Jan. 6 would trigger activities such as seismic surveying that could cause irreparable damage to the refuge. Such activity would be incompatible with the purpose of the refuge, they said. In particular, Kaktovik Inupiat Corp. has applied for a permit to conduct a seismic survey in the ANWR coastal plain this winter.

Attorneys also claimed that the issue of leases would, in itself, grant development rights to lessees. Even if a court later ordered BLM to redo its environmental analysis for the lease sale, the fact that leases have already been issued would impact BLM’s revised decision making, said Kate Glover, attorney for the Center for Biological Diversity.

Paul Turcke, attorney for BLM, argued that congressional approval of the holding of lease sales for the ANWR coastal plain provides legal authority for the January lease sale and that the holding of a lease sale will not, in itself, have any environmental impact. Moreover, the approval of the lease sale did not entail the approval of seismic surveying - seismic surveying would require to be permitted separately.

Should the court ultimately determine that the decision to conduct the lease sale was unlawful, BLM would have several options in responding to the court decision. Options could include suspending leases and conducting further environmental analysis, Turcke said.

“There will be no irreparable injury to the environment in the interim period,” he said.

No imminent harm

In her order rejecting the requested injunction against the lease sale, Judge Gleason said that the plaintiffs had not established the likelihood of imminent irreparable harm in the absence of an injunction - the record of decision for the sale does not authorize any immediate on-the-ground activities. Although it is true that any leases obtained though the lease sale would grant the right to engage in certain ground-disturbing activities, the plaintiffs have not shown that these activities are likely to take place before the court makes a final ruling in appeals against the lease sale, Gleason wrote. In addition, any future on-the-ground activities would require BLM environmental analysis and approval, she wrote.

The only ANWR exploration activity being actively considered for the near future is Kaktovik’s proposed seismic survey. But, in the absence of an agency approval decision for this survey, there is no final permit decision for the court to review. Plaintiffs can, however, seek an injunction against approval of the survey, should the survey ultimately be allowed, Gleason wrote.

Because the plaintiffs have not demonstrated the likelihood of immediate and near-term irreparable harm to the refuge prior to the court issuing a decision in the lease sale appeals, the court is required to deny the request for a preliminary injunction, Gleason wrote. However, should BLM approve ground disturbing activities prior to a decision in the case, the plaintiffs may seek preliminary injunctive relief related to those activities, she wrote.

A multi-year controversy

The Jan. 6 lease sale follows decades of controversy over the pros and cons of potential oil and gas exploration in ANWR. ANWR, it its current form, was established in 1980 under the Alaska National Interest Lands Conservation Act. Although that act placed much of the 19.3 million acre refuge off limits to oil and gas development, the act did offer the possibility of at some time opening for development the northern strip of the refuge, on the eastern extension of the North Slope coastal plain. This part of the refuge, the 1.57 million acre 1002 area, is thought highly prospective for oil and gas, with a number of major features of the productive petroleum systems of the central North Slope extending east in the subsurface. But under the terms of ANILCA the 1002 area could only be opened for oil and gas exploration if the U.S. Congress passes an act authorizing the opening.

Following a multi-year debate and several efforts to persuade Congress to open the 1002 area, congressional approval eventually came as part of the Tax Cuts and Jobs Act of 2017. Clauses within this act required BLM to conduct at least two areawide lease sales in the ANWR coastal plain 1002 area by December 2024. Subsequently BLM moved forward with the development of an environmental impact statement for a lease sale program, and the scheduling of the first of the lease sales.

The lease sale decision

In its final EIS BLM opted for least restrictive of the lease sale options that it considered, opening the entire 1002 area for potential leasing, but with 359,400 acres having no surface occupancy restrictions. In August 2020 the agency issued its record of decision for conducting the lease sales and later scheduled the Jan.6 sale. In December the agency withdrew about 475,000 acres of land tracts from the sale, in response to some environmental concerns expressed about this acreage.

The District Court lawsuits challenging the legality of BLM’s lease sale record of decision were filed in August and September.


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