Judge wants better rationale from Corps on CD-5


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A U.S. Alaska District Court judge has ruled that the U.S. Army Corps of Engineers did not provide an adequate rationale for its decision to allow ConocoPhillips to proceed with road and bridge construction at its CD-5 project in the National Petroleum Reserve-Alaska.

The ruling by Judge Sharon Gleason issued May 27 did not suggest a remedy for decision and asked for briefings from the plaintiffs and defendants on how to proceed. She did not require the preparation of a supplemental environmental impact statement or issue an injunction that would stop construction now underway at CD-5.

In March, Gleason denied plaintiffs’ request for an injunction to stop construction at CD-5, finding that, “based on the Court’s determination that the balance of the equities was then tipped sharply in favor of ConocoPhillips and the other Intervenor-Defendants and that a preliminary injunction would not be in the public interest. The March 2014 Order did not address the Kunaknana Plaintiffs’ likelihood of success on the merits.”

Gleason also tossed a similar lawsuit filed by Center for Biological Diversity, finding that the Outside environmental group lacked standing in the case.

The other plaintiff is Sam Kunaknana, who is represented by environmental law firm Trustees for Alaska. The CBD and Kunaknana cases had previously been merged by Gleason.

Gleason made no decision on the plaintiffs’ Clean Water Act claims.

The Corps of Engineers was joined in its defense by Arctic Slope Regional Corp., the North Slope Borough, Kuupik Corp. and the State of Alaska.

Kuupik owns the surface rights at the proposed CD-5; ASRC owns the subsurface rights.

“The Kunaknana Plaintiffs’ Motion for Summary Judgment will be granted on their NEPA claim to the extent they assert that the Corps failed to provide a reasoned explanation in the record for its decision not to conduct a supplemental NEPA analysis,” Gleason wrote. “This Order does not determine whether a supplemental NEPA analysis is required, nor does it determine the appropriate remedy for the Corps’ NEPA violation. This Order also does not resolve the Kunaknana Plaintiffs’ CWA claim. Instead, the Court requests further briefing from the parties as to how this case should proceed at this juncture.”

ConocoPhillips’ initial application to build the road and bridge at CD-5 was rejected by the Corps in 2010, and subsequently appealed by the company. The Corps granted ConocoPhillips permit in 2011 with modifications based on the appeal.

The Kunaknana plaintiffs filed the first lawsuit Feb. 27, 2013, and CBD filed its lawsuit June 5, 2013. Briefings on Gleason’s order are required within 21 days.

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