With CD-5 half-built, judge faults Corps permit


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 $1 billion CD-5 project in the National Petroleum Reserve-Alaska.

The ruling by Judge Sharon Gleason issued May 27 did not suggest a remedy for the 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.

The bridge and roads, meanwhile, are about half-built. CD-5 is scheduled to begin production in late 2015.

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 lawsuit filed separately 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 (National Environmental Policy Act) 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’ (Clean Water Act) 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 of her May 27 order.

The controversy over the bridge for CD-5 has a long and twisted history. The project was first proposed in 2005 by ConocoPhillips but was delayed after Nuiqsut villagers contested the location proposed for the crossing, arguing that it could impair subsistence fishing.

After extensive consultations and discussions, in 2008 ConocoPhillips agreed to move the bridge and to also meet other requests by the village, mainly to extend a road to connect the community with the oilfield road system.

The next twist came, however, when the company actually applied to the U.S. Army Corps of Engineers in 2009 for the permit to build the bridge.

The Corps rejected the permit, arguing that the company could avoid a bridge by building an underground river crossing for the pipeline and supporting CD-5 with a winter ice road and by air in summer, which is done now with two other drill sites in the Alpine field that are located on the Colville River delta where there are several river channels.

In making its rejection, the Corps was acting on behalf of other federal agencies, such as the U.S. Fish and Wildlife Service, which was worried about the effects of large gravel fill for the bridge and CD-5 roads on the local wetlands and the water flow through the wetlands needed to support waterfowl habitat.

In summer the Colville River delta is supports one of North America’s major migratory waterfowl nesting areas.

The agency was also concerned about future extensions of the CD-5 road west to subsequent developments. If the decision were made to reject all-year road access to CD-5, the effect would be to preclude the extension of the road further, which is now, in fact, being planned for ConocoPhillips’ Greater Moose’s Tooth project, or GMT-1, eight miles west.

ConocoPhillips appealed the Corps rejection of the bridge permit and was joined by Arctic Slope Regional Corp., which owns the subsurface rights at CD-5, and ironically by Kuukpik Corp., the Native village corporation for Nuiqsut.

There were two key arguments made in support of the bridge, and against the underground pipeline crossing. One was that inspections for corrosion, and detection of leaks, are difficult with an underground pipeline but much easier for an above-ground pipeline, such as is planned with the bridge.

The second was that all-year road access was important for safety and maintenance at CD-5 and drill sites further west that could be served by a road. If an emergency occurred at a drill site it would be faster to get equipment, material and personnel to a site by road than by cross-tundra winter travel or by air.

The Corps ultimately accepted those arguments and in 2011 reversed the rejection of the bridge permit. In filing the lawsuit in 2013, the litigants said that the Corps never fully explained its reversal in issuing the permit, and relied on a 2004 environmental impact statement for the Alpine field satellites that was done by the U.S. Bureau of Land Management.

What the corps should have done, the plaintiffs argue, was to do a supplemental environmental impact statement, or SEIS, for the bridge and road plans, which have changed since the 2004 EIS was prepared. The federal district court has not bought that argument so far but clearly intends that the Corps must do something.

What happens next, other than a wrist-slapping for the Corps, remains unclear. The BLM currently has an SEIS process underway for the GMT-1 project and there is thought that Gleason’s decision could affect that. ConocoPhillips is hoping for a final EIS on GMT-1 by this fall.

11/21/2016 - 3:11pm