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At issue is the distance to be monitored to be able to halt seismic work to reduce potential adverse impacts on cow/calf pairs of whales migrating into the Chukchi Sea. Regulations call for seismic work to be shut down if four or more cow/calf pairs are present during the fall migration.
ConocoPhillips Alaska Inc., the largest producer of Alaska North Slope crude oil, argues that under the incidental harassment authorization issued by the NMFS on July 7, the oil company would be required to monitor a vast and remote 3,030-square-mile area of the Chukchi Sea for bowhead whales for the duration of its seismic program.
ConocoPhillips asked the court to find that NMFS has violated the Marine Mammal Protection Act and imposed conditions which are arbitrary, capricious, an abuse of discretion and contrary to law.
The new monitoring requirements will impair the company's ability to carry out its planned 2006-07 Chukchi Sea seismic exploration program and ability to effectively participate in the Outer Continental Shelf lease sale planed by the Minerals Management Service scheduled for late 2007 or early 2008, attorneys for the oil giant said.
In documents filed with the U.S. District Court in Anchorage, ConocoPhillips alleges that implementing the monitoring plan laid out to comply with the Marine Mammal Protection Act would cost the company $7 million to $14 million, thereby imposing severe economic harm, and impairing its 2006 seismic program.
The parent company, ConocoPhillips, reported in late April that its first-quarter profits for 2006 rose 13 percent, with net income at $3.29 billion, or $2.34 a share, for the January-March period, up from $2.91 billion, or $2.05 per share, in the year-earlier period.
ConocoPhillips, also citing safety risks of the monitoring program, has asked the federal court for a stay for the remainder of the 2006 seismic exploration season.
Attorneys for NMFS have asked the court to deny that stay.
NMFS noted that ConocoPhillips initially proceeded with seismic operations in compliance with the directed incidental harassment authorization, waiting seven weeks to bring this action on the federal permit, which expires Nov. 31.
While the bowhead whale population in the Bering, Chukchi and Beaufort seas is robust and well on its way to recovery from depletion due to commercial whaling, exposing the whale population to seismic activities is significant to the long-term viability of the species as a whole, NMFS said.
The accepted standard for underwater noise levels that impact whales is 120 decibels, according to Rick Steiner, a professor and conservation specialist with the University of Alaska Fairbanks. The lower the frequency, the greater distance it travels. And these baleen whales, like bowheads, humpback, gray and right whales, hear and communicate on these low frequencies - so loud, low frequency pulses are disruptive to them, Steiner said.
The seismic guns shoot air into the water at such an intensity that they produce a peak level of 226 decibels, according to Demian Schane, an attorney with Earthjustice, an environmental law firm. They shoot downward, but the noise propagates horizontally and travels long distances, he said.
NMFS also noted that multiple seismic survey areas would overlap with the bowhead's use of the Chukchi Sea during the fall migration.
Bowheads that have been summer feeding in the Canadian Beaufort Sea begin moving westward into Alaskan waters in August and September, typically migrating into the Chukchi Sea in mid-September through mid-October, NMFS argued. Significant cumulative impacts are possible if seismic vessels were to adversely impact marine mammals during critical life cycle periods, such as migration and concentrated feeding, NMFS said.
Attorneys for Earthjustice, meanwhile, have intervened in the case on behalf of the Alaska Native village of Point Hope, urging the court to deny a stay. The village hunts whales for subsistence purposes. Research has shown that seismic noise levels of 120 decibels may be heard as far as 12 to 35 miles from where the seismic gun was fired, causing whales to alter migration, and potentially precluding whales from important feeding and resting areas, said Earthjustice counsel Schane.
ConocoPhillips has argued that exploration activity has been undertaken in the past without adversely affecting whales.
"The challenged conditions are not supported by the best available scientific evidence, which demonstrates that the bowhead whale population is robust and has increased steadily over the past several decades alongside ongoing seismic exploration without use of the new monitoring requirements," ConocoPhillips argues in a brief submitted to the court Aug. 25.
According to ConocoPhillips, such monitoring requirements would pose substantial risks to human health and safety, impose severe economic harm to ConocoPhillips Alaska Inc. and result in "incalculable and irremediable lost opportunity costs."
NMFS attorneys note that the oil company's claims do not take into account that it intends to use an unmanned aerial vehicle to conduct the aerial monitoring, the government's brief said.
The court cannot sever conditions from the incidental harassment authorization that are an essential part of the authorization's legal underpinnings and leave the remainder of the harassment authorization in place, NMFS argued in its brief.
Earthjustice, on behalf of the whaling community of Point Hope, further argued that the potential environmental injury, by its very nature, can seldom be adequately remedied by the award of monetary damages, and such injury is often permanent or at least of long duration.
Margaret Bauman can be reached at
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