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Enviros sue over incidental take rule Object to a new regulation allowing unintended minor disturbance to Chukchi Sea walrus and polar bears from exploration activities Alan Bailey Petroleum News
Environmental law firm Earthjustice, on behalf of six environmental organizations, has sued the U.S. Department of the Interior over the issue in June 2013 of a temporary rule, allowing the incidental take of small numbers of walruses and polar bears during oil and gas exploration operations in Alaska’s Chukchi Sea. The U.S. Fish and Wildlife Service issued a final version of the rule in June 2013.
“The Fish and Wildlife Service needs to do a much better job of protecting walrus mothers and calves struggling to survive in the dramatically changing Chukchi Sea,” said Earthjustice attorney Erik Grafe on Nov. 10, when announcing the lawsuit. “Today’s challenge seeks to protect walruses from suffering potential serious harm and harassment at the hands of companies like Shell Oil, which crashed and burned during its Arctic Ocean drilling efforts in 2012. Walruses are already under tremendous stress from climate change - their sea ice home is literally melting away.”
The lawsuit has been filed in the federal District Court for the District of Columbia.
Harassment authorization Under the terms of the MMPA, or Marine Mammals Protection Act, the Fish and Wildlife Service can authorize the incidental harassment of certain marine mammal species by people or organizations conducting offshore activities. The idea is to allow the minor disturbance of a few animals without triggering an MMPA violation.
In January 2012 the Alaska Oil and Gas Association and ConocoPhillips requested a rule that would allow the incidental disturbance of small numbers of walruses and polar bears in the Chukchi Sea during exploration activities such as conducting seismic surveys and drilling exploration wells.
In January 2013 Fish and Wildlife published a draft version of the requested rule for public comment, before publishing a final version of the rule in June of that year. The new rule allows the incidental, non-lethal disturbance of small numbers of walruses and polar bears as a consequence of exploration activities in the Chukchi Sea and along the adjacent coastline from June 11, 2013, to June 11, 2018. The rule includes stipulations such as mitigation measures and marine mammal monitoring that companies must implement, to avoid more than minor animal disturbance.
Under the new rule, a company must still obtain a wildlife harassment authorization in the form of a letter of authorization from Fish and Wildlife for its offshore activities, but the terms and conditions of that authorization will presumably reflect the content of the rule.
Negligible impact? In its court filing, challenging Fish and Wildlife’s new Chukchi Sea rule, Earthjustice claimed that the agency had been arbitrary in concluding that oil industry activities would have a negligible impact on the walrus population, especially in the area of the Hanna Shoal, a shallow-water walrus feeding area about 75 miles off the Chukchi Sea coast. In adopting its new rule, Fish and Wildlife recognized the potential need for additional wildlife mitigation and monitoring in the Hanna Shoal area but deferred this issue for consideration during the reviews of requests by companies for letters of authorization, Earthjustice claimed, commenting that the issuance of a letter of authorization does not involve a public process.
Earthjustice also said that Fish and Wildlife had infringed NEPA, or the National Environmental Policy Act, by making a finding of no significant environmental impact from Chukchi Sea exploration activities while also recognizing the importance of not disturbing the huge numbers of walruses that habitually congregate in the Hanna Shoal area between July and September. Under NEPA, a finding of potential significant impact would have triggered the need for a formal environmental impact statement prior to issue of the new rule.
The Earthjustice court filing also says that the Chukchi Sea Burger prospect where Shell wants to conduct exploratory drilling is near the Hanna Shoal area.
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