Lawsuits oppose drilling in ANWR, expanded drilling in NPR-A

Environmental activists filed lawsuits Aug. 24 to challenge Trump administration preparations for oil leasing in the Arctic National Wildlife Refuge (ANWR) and expanded leasing elsewhere on Alaska’s North Slope, in the National Petroleum Reserve-Alaska (NPR-A).

The court filings follow the issuance of a record of decision Aug. 17 that completed the regulatory steps necessary to allow leasing to go ahead on the ANWR coastal plain (OGJ Online, Aug. 17, 2020) and a final environmental impact statement issued published June 26 for a new integrated activity plan for NPR-A.

To fight the leasing plan for ANWR, the environmental groups had to deal with the fact that the Tax Cuts and Jobs Act of 2017 mandates a leasing program. The essence of their lawsuit is an argument that the plan violates environmental and land management laws by failing to minimize the acreage that can be leased under the 2017 law, and that the plan fails to include enough analysis.

The suit over NPR-A is narrower, focused on procedural details of one environmental law.

ANWR plan’s scale

The ANWR case is National Audubon Society v. David Bernhardt. Joining with the Audubon Society as plaintiffs are the Center for Biological Diversity, the Natural Resources Defense Council, and Friends of the Earth. Interior Secretary Bernhardt’s codefendants are the Bureau of Land Management (BLM) and the US Fish and Wildlife Service.

The plaintiffs argue that plan as developed in a final environmental impact statement (EIS) and a record of decision violates the National Environmental Policy Act (NEPA), the Endangered Species Act, the National Wildlife Refuge System Administration Act, the Alaska National Interest Lands Conservation Act (ANILCA), and the Administrative Procedure Act.

The 2017 law mandating a leasing program required a minimum of two lease sales and a minimum of 400,000 acres in each of those two sales. It allowed leasing of as much as 1.56 million acres—and BLM decided to include all 1.56 million acres in the leasing program.

That decision, according to the lawsuit, violated NEPA by not adequately considering alternatives involving less acreage and by not articulating an adequate reason for the decision.

The lawsuit also argues that the final EIS should have included a comprehensive analysis of what impacts seismic surveys might have on polar bears, listed as threatened under the Endangered Species Act. The final EIS and record of decision did not approve a plan for seismic surveys.

The plaintiffs also objected that the final EIS “relies on studies of other, significantly different, parts of America’s Arctic.”

Wildlife in the state lands west of ANWR has been thriving despite more than 50 years of oil exploration and development. By labeling other areas “significantly different,” the plaintiffs appeared to want to counter anyone who might point to the caribou, birds, and other wildlife coexisting with the work at the Prudhoe Bay, Kuparuk, Alpine, and other oil fields.

NPR-A details and alternatives

The challenge to the expanded leasing plan for NPR-A has the same lead plaintiff and lead defendant, National Audubon Society v. David Bernhardt. The other three plaintiffs are the Center for Biological Diversity, Friends of the Earth, and Stand.earth. In that case, too, BLM is one of the defendants.

The lawsuit argues that BLM’s final EIS for the new integrated activity plan “does not analyze or describe the full scale of impacts” and “failed to take a hard look at the significant impacts.”

The “hard look” phrase comes from federal court precedents saying an agency should not brush past issues of potential impacts but rather must give them a hard look, meaning a deeper dive into details, to satisfy NEPA. The question of how deep becomes a point of contention.

The new activity plan replaces a 2013 plan that Alaska’s US senators criticized as far too restrictive. The 2013 plan left 52% of NPR-A available for leasing, while the 2020 plan allows leasing on 82% of the area.

The plaintiffs also argued that BLM failed to consider enough alternatives, including one involving no change and one involving greater environmental protections than the 2013 plan. NEPA requires consideration of alternatives, but court cases often hinge on the number and protectiveness of alternatives.