Federal court rejects arguments to stop ANWR lease sale

U.S. District Court of Alaska Judge Sharon Gleason rejected a late attempt to stop the Trump administration’s Arctic National Wildlife Refuge coastal plain lease sale Jan. 5 when she denied a preliminary injunction motion from a group of national conservation organizations less than 24 hours before the bids are set to be opened.

Gleason wrote in a 27-page opinion issued a day after oral arguments that claims leasing would likely hasten the pace of environmental damage to the refuge from activities such as seismic exploration are premature because Bureau of Land Management officials have not yet approved a seismic exploration plan submitted by Kaktovik Inupiat Corp., or KIC.

She also ruled that the conservation groups would not suffer the “imminent irreparable harm” that would be cause for a preliminary injunction to stop completion of the lease sale because the record of decision authorizing the sale as well as the subsequent lease rights do not authorize any on-the-ground exploration activity.

Bidding in the sale closed Dec. 31.

“Plaintiffs have listed various threats to their enjoyment of the Arctic Refuge’s solitude posed by, for example, aircraft noise and the presence of trucks, but they have not shown that these harms are likely to occur during the pendency of this action,” Gleason wrote.

The original suit filed Aug. 24 is one of three separate legal challenges against BLM’s EIS review of the coastal plain leasing program brought by a collection of Alaska Tribes and local and national environmental organizations.

The order against the preliminary injunction does not alter the broader lawsuits.

In oral arguments Jan. 4, attorneys on behalf of the Audubon Society, the Center for Biological Diversity and Friends of the Earth insisted that allowing Bureau of Land Management Alaska officials to open bids for the sale Jan. 6 would increase the likelihood of seismic activities, aerial surveys and other activities that could disturb wildlife before the full merits of the case have been adjudicated.

Earthjustice attorney Katharine Glover contended that allowing the sale to be finalized while the case is pending would also continue the “bureaucratic momentum” of the leasing program while acknowledging that further permit authorizations would still be needed for on-the-ground activities such as seismic surveys or drilling.

KIC is the Alaska Native corporation for the village of Kaktovik, the only community within the coastal plain. Kaktovik leaders largely support oil development in the area on the premise it would bring additional revenue to North Slope communities and provide more basic infrastructure for the region.

Attorney Paul Turke emphasized on BLM’s behalf that issuing the leases is an administrative matter that would not change the physical characteristics of the coastal plain while also noting that Congress mandated the agency to hold the lease sales via language in the 2017 tax bill.

“The court retains its full authority to review this case on the merits and to take appropriate action when it reaches a determination on the merits,” Turke said to Gleason, adding she could suspend issued leases or order BLM to redo the environmental impact statement for the leasing program that is at the heart of the suit. “There would be no irreparable injury to the environment or otherwise in the interim period.”

The conservation groups, which filed the preliminary injunction motion to stop the sale Dec. 15, shortly after BLM officials announced bids for the sale would be opened Jan. 6, are conflating the “irretrievable commitment” made when the government issues a lease with “irreparable injury,” Turke said.

“Leases can be issued and never have any actual effect on the environment,” he said.

Natural Resource Defense Council attorney Nathaniel Lawrence said on the broader merits of the case that BLM failed to comply with the National Environmental Policy Act that prescribes the EIS process by not disclosing the full climate change consequences of oil production from the coastal plain in the EIS Interior Secretary David Bernhardt approved in August.

The EIS only included estimates for domestic carbon emissions resulting from prospective oil extraction, according to Lawrence, who compared the analysis to that done by the Bureau of Ocean Energy Management in approving Hilcorp Energy’s offshore North Slope Liberty oil project.

The 9th Circuit Court of Appeals invalidated the federal approval for Liberty in a Dec. 7 ruling in part based on the fact that the government did not analyze foreign consumption of oil from the project in evaluating Liberty’s environmental impacts.

“It painted a false picture because it only included U.S. emissions, not the bulk of the emissions that come from foreign consumption,” Lawrence said of the coastal plain EIS.

Lawrence also said that while Congress did require two lease sales offering a little more than half of the coastal plain over 10 years, BLM did not need to open ostensibly all of the area to leasing as it did following the environmental review.

“The (leasing) program goes far beyond anything Congress mandated,” he said, which further requires agency leaders to make a written determination of how the new uses of the refuge are compatible with its existing purpose — something Interior leaders did not do.

Ryan Steen, representing the Alaska Oil and Gas Association, countered the “bureaucratic momentum” argument by noting that President-elect Joe Biden had made it clear he opposes developing the coastal plain, so any momentum that exists now is likely to be gone Jan. 20.

Tyson Kade, representing the North Slope Borough, the Native Village of Kaktovik and KIC said any seismic activity is unrelated to leasing; he referenced SAE Exploration’s unsuccessful attempt to conduct seismic exploration in the 2018-19 winter before a lease sale was planned.

“This court should consider the input of the people that live and depend on the resources of the coastal plain,” Kade said.

“The tax act and ANCSA provide for the realization of those (economic) benefits.”

Glover rebutted that any delay in realizing economic benefits caused by a preliminary injunction would likely only be temporary.

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Elwood Brehmer can be reached at [email protected].

Updated: 
01/06/2021 - 9:05am