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Judge orders responses on CD-5 permit case Parties disagree on whether Corps of Engineers permit should be cancelled while issue court has raised is addressed By Alan Bailey Petroleum News
In a June 18 court order U.S. District Court Judge Sharon Gleason set a deadline of July 1 for the parties in an appeal against a permit for ConocoPhillips’ CD-5 oilfield development to respond to a series of motions that have been filed in the case. The permit in question is the U.S. Army Corps of Engineers’ dredge-and-fill permit for the project.
A group of villagers from Nuiqsut near the Colville River Delta on the North Slope have appealed the permit in federal court in Alaska, claiming that the permit violates the National Environmental Policy Act and the Clean Water Act. The CD-5 development, the first oilfield development in the National Petroleum Reserve-Alaska, involves the construction of several bridges, including a bridge over a channel of the Colville River.
Questions over the possible environmental impacts of the bridge construction previously delayed the issue of the Corps’ permit and hence delayed work on the development for several years. However, with the permit having been issued in 2011, work has started moving forward.
The villagers launched their appeal against the permit in February 2013.
Arbitrary conclusion Gleason has not determined whether the permit violated either of the statutes cited in the appeal. But the judge has found that the Corps had been “arbitrary” in concluding, without explanation, that changes to the design of the CD-5 project and the arrival of some new information relating to the project did not warrant a revision to the environmental impact statement for the project. And on May 27 Gleason ordered the parties in the case to file motions on how the case should proceed.
The environmental impact statement in question was published in 2004 and encompassed the planned development of several satellite fields to the Alpine oil field, including CD-5.
The Corps subsequently filed a motion, offering to provide an explanation for its decision not to modify the EIS and asking that the permit remain in place meantime. Preparing the explanation would take up to 90 days, with a further 60 days then being required for briefs and responses by parties in the case, the Corps said. CD-5 activities planned for this summer will have little environmental impact and do not warrant an injunction against the work proceeding, the Corps argued.
The villagers, however, asked that the permit be cancelled, pending a reconsideration of the permit decision. The federal Administrative Procedures Act requires that any agency action found to be “arbitrary, capricious … or otherwise not in accordance with the law” be set aside, the villagers argued. Moreover, the cancellation of the permit would avoid a situation in which the agency would “simply defend a pre-ordained conclusion,” an attorney for the villagers wrote.
And, if the court does not cancel the permit, the court should place an injunction on the permitted work until the Corps complies with the National Environmental Policy Act and the court’s order, the attorney wrote. Were work on CD-5 to proceed without a valid environmental analysis, irreparable environmental damage could result, the attorney wrote.
Work already under way ConocoPhillips, the other main participant in the appeal case, essentially supported the Corps’ position, asking the court to allow the Corps 90 days in which to remedy the problem that the court had identified. And ConocoPhillips urged an expeditious schedule for the case, given the fact that the project, a complex Arctic operation, is already under way.
At this point, the entire gravel footprint authorized by the Corps permit has been established, an attorney for ConocoPhillips wrote. There are four bridges associated with the CD-5 project: structures for all of these bridges have been installed, with one bridge complete and two bridges structurally complete, the attorney wrote. An ice-pad has been installed for use as a staging area. No work planned for the proposed 90-day remand decision period involves in-water activities or the disturbance of aquatic resources, the attorney wrote.
And, while there is no mandatory requirement to cancel the permit in the circumstances of the appeal, cancellation would result in disruption to the project that would be significant, irreparable and inequitable, ConocoPhillips said.
In her June 18 order Judge Gleason asked each party in the case to file a single, consolidated response to all of the motions that have been submitted.
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