Providing coverage of Alaska and northern Canada's oil and gas industry
March 2024

Vol. 29, No.13 Week of March 31, 2024

9th Circuit OKs incidental take regs, with rework of 1 component

Alan Bailey

for Petroleum News

On March 19 a three-judge panel in the U.S. Court of Appeals for the 9th Circuit issued a majority decision regarding a U.S. Fish and Wildlife Service five-year incidental take regulation for the minor disturbance of polar bears and walruses in the southern Beaufort Sea and adjacent lands. The decision requires FWS to rework one aspect of the regulation but also allows the regulation to remain in place meantime. One judge on the panel issued a dissenting decision, arguing that the regulation, as it stands, should be fully approved.

The regulation was designed to enable oil and gas exploration and development activities to be carried out in the region.

Impact on polar bears?

Several environmental organizations have argued that activities allowed under the terms of the regulation would result in damaging disturbance to polar bears. Consequently the organizations challenged the legal validity of the regulation in the Alaska District Court. In March 2023 the District Court ruled that the regulation was legally valid. The plaintiffs in the case subsequently appealed the District Court decision to the 9th Circuit -- hence, the recent 9th Circuit ruling.

The 9th Circuit Court has now remanded the case back to District Court and required Fish and Wildlife to make appropriate changes to the regulation. Meanwhile oil and gas exploration and development activities in the region can continue.

Level A impacts

The court's requirement for a rework of the regulation revolves around the manner in which Fish and Wildlife had determined that activities would have a negligible impact on polar bears. In making this determination FWS had split its assessment of significant impacts, referred to as level A impacts, into two categories: serious and non-serious level A impacts.

While it was reasonable for the FWS to assess the overall level A impacts by splitting the impacts in this way, it is still necessary to assess the total level A impacts, the majority judges argued. Otherwise the total level A impacts may be underestimated, they wrote.

The majority judges also ruled that FWS needs to assess the five-year cumulative risk of a level A take, rather than just the annual risk.

Impact on industrial activities

The court is allowing the incidental take regulation to remain in place while Fish and Wildlife makes the required changes to the regulation, because, the judges wrote, the FWS's errors "pale in comparison" to the potential impact of cancelling the regulation on industrial businesses operating in the Beaufort Sea region. Also, cancelling the regulation would, in essence, criminalize oil and gas activities in the region since the regulation went into effect in 2021, the judges wrote. Moreover, the available evidence suggests the actual amount of level A takes of polar bears will likely be very small, they wrote.

The judge who dissented from the majority decision argued that FWS had provided adequate evidence that there would be a negligible impact on polar bears from industrial activities conducted under the terms of the incidental take regulation.


Petroleum News - Phone: 1-907 522-9469
[email protected] --- https://www.petroleumnews.com ---

Copyright Petroleum Newspapers of Alaska, LLC (Petroleum News)(PNA)�1999-2019 All rights reserved. The content of this article and website may not be copied, replaced, distributed, published, displayed or transferred in any form or by any means except with the prior written permission of Petroleum Newspapers of Alaska, LLC (Petroleum News)(PNA). Copyright infringement is a violation of federal law.