Villagers seeking order to shut down CD-5 construction

Six Inupiat villagers from Nuiqsut are in federal court seeking an injunction to shut down construction of ConocoPhillips’ CD-5 oil project on the North Slope. Alaska U.S. District Judge Sharon Gleason accepted briefs Feb. 28 on a request for a Temporary Restraining Order in a lawsuit that was filed in early 2013 challenging a U.S. Army Corps of Engineers permit for the project.

The suit claims the permit issued by the Corps was flawed, but no request for a restraining order was made at the time. ConocoPhillips started construction early this winter.

The villagers, represented by Trustees for Alaska, an environmental law firm, argue that the placement of gravel on wetlands in the sensitive environment is an immediate threat to their subsistence activities. They said they were unaware of the exact location of the project activities until recently, according to the brief filed by Trustees for Alaska.

The case is being watched closely by environmental groups. The Center for Biological Diversity has filed a similar suit against the Corps over the bridge permit, but did now join the request for a restraining order.

CD-5 is an undeveloped oil deposit about eight miles west of the producing Alpine field. It is within the National Petroleum Reserve-Alaska, and the mineral rights are owned by Arctic Slope Regional Corp., the regional Native development corporation.

ConocoPhillips and its minority partner Anadarko Petroleum Corp. plan to develop CD-5 with production expected to begin in late 2015. Peak production is estimated at 16,000 barrels per day, or b/d. Capital costs are estimated at about $1 billion, ConocoPhillips has said previously.

In their lawsuit, the six villagers argue that the Army Corps failed to do an updated environmental impact statement, or EIS, to support the permits issued for the bridge and related roads and pads. The permits were issued in December 2011. The Corps was relying on an EIS done in 2004 for the Alpine field by the U.S. Bureau of Land Management, but the villagers argue that was outdated, and that the Corps should have done an updated supplemental EIS.

The plaintiffs also contend the Corps failed to justify its decision to favor a bridge over a channel of the Colville River over an earlier plan favored by the agency itself for a underground pipeline crossing at the river and winter-only access to the CD-5 pad via ice road.

There are other satellite pads in the Alpine field that are now served only by pipeline and winter ice roads.

The Corps’ original permit, requiring the underground river crossing, was appealed and after a lengthy review process the agency reversed itself and approved the bridge crossing.

The concerns raised by the Center for Biological Diversity in its suit is that the bridge and all-year gravel roads would set the stage for extensions of the roads further west to other NPR-A oil prospects, cutting through sensitive wetland habitat.

If Gleason issues a restraining order, ConocoPhillips will have to demobilize construction contractors. The project would likely be set back for an extended period to allow a trial on the lawsuit or for the Corps to prepare a supplemental EIS for the bridge and gravel fill projects.

A delay in CD-5 would have a broad ripple effect because it would also set back ConocoPhillips’ schedule to develop GMT-1, a drill site eight miles further west in the NPR-A, which will depend on the CD-5 bridge and gravel roads for access to move equipment to the site.

GMT-1 is expected to be in production in 2017 if it stays on schedule, with peak production estimated at 30,000 b/d.

In a rebuttal brief filed to the request for the injunction, ConocoPhillips argued that a draft EIS prepared for the GMT-1 project by the U.S. Bureau of Land Management covers issues that would be reviewed by the Corps if it were to do a new EIS for the CD-5 project.

Brian Litmans, lead attorney for Trustees for Alaska, disagreed with that. For one thing, the GMT-1 EIS is still in draft form, and is not final.

“Relying on the analysis in the GMT-1 draft to bolster the Corps’ lack of analysis on CD-5 is equivalent to providing an after-the-fact rationale for an agency decision by a different agency,” Litmans said in a statement.

“Another agency’s draft analysis of a different project (GMT-1) several years after the Corps’ decision does not excuse the Corps’ failure to conduct its own environmental analysis for CD-5.”

Although the lawsuit was filed in early 2013 the villager/plaintiffs said decided to pursue the Temporary Restraining Order when they learned the precise location of the bridge and that construction had started, he said.

In its brief, ConocoPhillips replied that the plaintiff villagers had failed to participate in a lengthy public review of the Corps permits that did involve other villagers in Nuiqsut, that the claims of irrepairable harm are not justified, and that the plaintiffs waited untll the last minute to request the TRO.

“ConocoPhillips is well into performing long-anticipated, broadly publicized, costly and logistically complex construction activities at a very remote Arctic location,” the company said in its brief. “The plaintiffs sat on their rights until the moment it would inflict the maximum possible damage and disruption,” after construction had started.

The work underway now includes the placement of bridge pilings and the laying of gravel for roads and pads, ConocoPhillips said in its brief.

“To date, materials have been fabricated and staged, and equipment and manpower have been contracted for and mobilized,” the brief said. “Approximately half of the requiring bridge pilings for three bridges have been installed. Gravel road and pad installation have begun with the work expected to be complete by mid-April.”

The case has pitted Inupiat people in the region against each other. Kuukpik Corp., the Nuiqsut Alaska Native village corporation, has come down on the side of ConocoPhillips and the Corps. Although it is within the NPR-A, the land on which CD-5 is located is owned by the Kuukpik Corp.

Arctic Slope Regional Corp., the regional Native corporation that owns the mineral rights at CD-5 and would receive royalties from development, has also intervened on the side of the Corps and ConocoPhillips along with the North Slope Borough, the regional municipal government.

11/15/2016 - 5:12pm