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Court backs Chukchi Sea wildlife regs 9th Circuit judges say that incidental harassment regulations for polar bears and walruses comply with environmental statutes Alan Bailey Petroleum News
A panel of three judges from the U.S. Court of Appeals for the 9th Circuit has rejected an appeal by the Center for Biological Diversity and Pacific Environment against the U.S. Fish and Wildlife Service’s regulations for the incidental take of walrus and polar bears during oil and gas exploration in the Chukchi Sea. The ruling enables Fish and Wildlife to continue to issue so-called letters of authorization, allowing the unintended, minor disturbance of the animals.
The Alaska Oil and Gas Association, or AOGA, a trade association representing the Alaska oil and gas industry and an intervener in the case, has lauded the decision as “a victory for science and due process.”
“This ruling is important because even a court with a reputation for being antidevelopment recognized the flaws in the Center for Biological Diversity’s arguments; namely, that polar bears and walruses are not being adequately protected,” said Kara Moriarty, executive director of AOGA. “The court reviewed the evidence and ultimately decided that the USFWS took the appropriate steps to protect these species while development proceeds in the outer continental shelf. This case affirms that responsible resource development is possible in Alaska.”
2008 decision The case emanates from a Fish and Wildlife Service decision in June 2008 to issue a final rule for incidental take regulations for polar bears and walrus in the Chukchi Sea and on adjacent coastal areas. Similar regulations had been in place for many years for oil and gas exploration, development and production in the Beaufort Sea. With heightened interest in exploration of the Chukchi Sea, the agency decided to publish Chukchi Sea regulations, but just for exploration activities and not for development or production. And, in an environmental assessment of the new rule, the agency concluded that implementation of the new regulations would have a negligible impact on the animals concerned.
Under the regulations a company conducting exploration in the Chukchi can unintentionally disturb small numbers of marine mammals, provided that Fish and Wildlife determines that the disturbance will have a negligible impact on the relevant mammal species, with the agency issuing a letter of authorization for the exploration activity. A letter of authorization spells out permissible wildlife disturbance and any mitigation measures that a company must implement to minimize that disturbance.
Without an appropriate letter of authorization and the required mitigation measures in place a company that disturbs marine mammals would infringe the Marine Mammals Protection Act and, in the case of the polar bear, would also infringe the Endangered Species Act.
Appealed The Center for Biological Diversity and Pacific Environment appealed the new regulations in federal District Court in Alaska, saying that the regulations did not comply with the Marine Mammals Protection Act, the Endangered Species Act and the National Environmental Policy Act. The environmental organizations argued that by combining the criteria of “negligible impact” on a species and “small numbers” of mammals, the incidental harassment regulations rendered the term “small numbers” superfluous, with the resulting imprecision in the language rendering the regulations invalid. The organizations also argued that mitigation and monitoring requirements in the regulations are unproven or inadequate, and that a determination of impacts on just “small numbers” of mammals needs to consider the impacts of support and onshore activities, as well as the specific activity being evaluated for a letter of authorization.
And the environmental organizations said that the regulations failed to analyze the potential impacts of oil spills on the wildlife.
In early 2010 the District Court rejected the appeal. The environmental groups subsequently elevated the appeal to the 9th Circuit.
In an opinion issued on Aug. 21 the 9th Circuit judges affirmed the District Court decision, saying that the regulations adequately reflect the potential impacts of a narrow range of oil industry activities, and also saying that the use of the term “small numbers” of animals is consistent with the concept of “negligible impacts” on an animal population.
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