09/26/2018 - Regulatory Rollback

Arctic National Wildlife Refuge – Oil and Gas Development

by Hana Vizcarra, Laura Bloomer

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Arctic National Wildlife Refuge (ANWR) consists of more than 19 million acres of wilderness in northeastern Alaska. The refuge includes some of the most pristine, untouched lands and waters within the United States. It has no roads, marked trails, or campgrounds, though it is open to recreational use, such as hunting and fishing. ANWR is managed by the U.S. Fish and Wildlife Service in the Department of Interior.

ANWR is home to diverse wildlife, including over 40 mammals and over 200 bird species. It is a critical area for porcupine caribou, as thousands of porcupine caribou migrate through ANWR to reach appropriate calving locations each year. Female polar bears build their dens and give birth on ANWR’s Coastal Plain, the 1.5 million acres of land along the Beaufort Sea. The polar bears that come to the Coastal Plain are part of the Southern Beaufort Sea population of polar bears, which historically built their dens on sea ice. As sea ice continues to thin, the maternal polar bears have increasingly built their dens on land. According to the most recent research, around 900 Southern Beaufort Sea polar bears still exist in the world, which represents a significant decline in their population numbers over the past two decades.

While nearly 80% of ANWR is protected from oil and gas development under a 1980 law passed by Congress, the 1.5 million acres of the Coastal Plain is not. The 1980 law authorized a survey of the Coastal Plain for potential oil and gas development. The initial assessment was finalized in 1987. For the succeeding 30 years, Congress did not authorize any subsequent oil and gas exploration, and the Coastal Plain maintained its natural wilderness, undisturbed by the harmful activity and pollution that oil leasing could bring. In 1998, the United States Geological Survey estimated that there were 4.3 to 11.8 billion barrels of technically recoverable oil in the Coastal Plain. Because no oil and gas exploration has occurred since the 1980s, there is significant uncertainty about the size of oil reserves in ANWR.

However, in 2017, Congress and the Trump administration reversed course and established an oil and gas leasing program on the Coastal Plain. Without stringent environmental safeguards and oversight, this leasing program could be detrimental to the Coastal Plain and the species that depend on the fragile wilderness for survival.

The Department of Interior (DOI) is also considering expanding oil and gas development in the National Petroleum Reserve, 22.1 million acres of land in northwest Alaska managed by the DOI’s Bureau of Land Management (BLM). For more information on the administration’s actions there visit our post on the National Petroleum Reserve here.

Current Status

March 13, 2019 sixteen state attorneys general submit joint comments alleging that the draft environmental impact statement is inadequate and does not comply with the requirements of the National Environmental Policy Act – the statute that governs environmental impact statements.

July 31, 2019 Alaska natives and environmental groups file suit against the DOI alleging failure to produce documents required under FOIA that would provide a look at how oil and gas leasing decisions in ANWR were made.

Aug. 7, 2019 Environmental groups file suit against the DOI to challenge an agreed upon land-swap deal with King Cove Corporation that would allow construction of a road through the Izembek National Wildlife Refuge in Alaska.

Sept. 12, 2019 BLM releases the final environmental impact statement, which allows oil and gas leasing on 1.56 million acres of ANWR’s Coastal Plain. BLM’s chosen plan permits the agency to lease the maximum number of acres available and is the least environmentally protective of the alternatives BLM considered.

History

Dec. 6, 1960 The Department of the Interior (DOI) designates 9.8 million acres of wilderness in northeastern Alaska as the Arctic National Wildlife Range. Pursuant to the order, DOI is tasked with managing the land “for the purpose of preserving unique wildlife, wilderness, and recreational values.”

Dec. 2, 1980 Congress enacts the Alaska National Interest Lands Conservation Act (ANILCA). The primary purpose of ANILCA is to preserve the wilderness of over 100 million acres of Alaskan land. As part of the legislation, Congress renames the range the Arctic National Wildlife Refuge (ANWR) and added over 9 million acres of land to ANWR. However, Section 1002 of ANILCA authorizes oil and gas exploratory activity in the 1.5 million-acre area of ANWR known as the Coastal Plain. Section 1002 also orders the Secretary of DOI to conduct a study of the Coastal Plain as well as the potential impact of oil and gas development and production in the area. Meanwhile, Section 1003 of ANILCA establishes a prohibition on the leasing, development, and production of oil and gas from ANWR, unless authorized by an Act of Congress.

Winters of 1984 and 1985 As part of the exploration activity authorized under ANILCA, seismic testing is conducted throughout the refuge, leaving around 2,500 miles of trail destruction in the tundra. Though 90% of the affected tundra recovered within 10 years, around 5% of the exploration trails were still unrecovered in 2009.

April 1987 DOI completes and publishes the Coastal Plain Resource Assessment for ANWR. The report analyzes the likely environmental impacts of five management options for the coastal plain. The Secretary of DOI recommends that Congress open the entire Coastal Plain to oil and gas exploration, assuming that only a small portion of the area will ever be leased and/or developed. The report also includes an Environmental Impact Statement. Congress continues to study the area but does not open the Coastal Plain to leasing for over three decades.

Jan. 27, 2015 U.S. Fish and Wildlife Service announces the publication of a Revised Comprehensive Conservation Plan and Final Environmental Impact Statement for ANWR. The plan considers five management alternatives and recommends that Congress designate around 12 million acres in ANWR as Wilderness Study Areas, including the Coastal Plain. This would allow the Bureau of Land Management to implement policies to protect those areas’ natural conditions until Congress decides to designate them as wilderness areas. Alaska Native communities are split in their reaction to the Comprehensive Conservation Plan. The Gwich’in community support the plan for its ability to protect wildlife and sacred lands within ANWR, whereas the Iñupiat people do not want to restrict economic opportunities that could significantly benefit their community.

April 3, 2015 the Regional Director for DOI in Alaska signs the Record of Decision to adopt the Comprehensive Conservation Plan’s recommendations. However, without an authorizing statute from Congress, DOI cannot unilaterally begin managing the targeted areas as Wilderness Study Areas. Instead, DOI continues to manage the Coastal Plan under Minimal Management standards. These standards are intended to maintain the existing conditions of the area but are not as permanent of a protection as the Wilderness Study Area standards.

April 3, 2015 President Obama sends a letter to Congressional leaders urging Congress to act, but Congress does not pass the legislation needed to more permanently protect the 12 million acres.

Trump Era

Dec. 22, 2017 President Trump signs the Tax Cuts and Jobs Act of 2017. Section 20001 of the Act authorizes oil and gas exploration, leasing, development, and production on ANWR’s Coastal Plain. The Act orders the Secretary of the Interior to establish an oil and gas plan for the Coastal Plain and required that two lease sales occur within 10 years of the passage of the Act. One lease sale, for an area of at least 400,000 acres, must occur within four years of the passage of the act, or before Dec. 21, 2021. The second lease sale must occur within seven years, or before Dec. 21, 2024.

April 20, 2018 The Bureau of Land Management (BLM), a division of DOI, publishes a Notice of Intent to Prepare an Environmental Impact Statement for the Coastal Plain Oil and Gas Leasing Program. The Environmental Impact Statement is an initial step that the agency must take. The notice begins the “scoping process,” which includes a request for public comment on the scope of issues, impacts, and potential alternatives that BLM should consider when developing the Environmental Impact Statement. In evaluating the environmental consequences of the proposed leasing program, BLM must assess alternative plans for implementation of the program. For instance, the Environmental Impact Statement may include certain areas that would result in less damage from oil production or terms and conditions for leases that will minimize the damage of oil and gas development and production. However, BLM is not required to choose the least harmful alternative upon completion of the Environmental Impact Statement. BLM holds public hearings across Alaska as part of the process. Comments are due by June 19, 2018.

BLM is currently considering preliminary alternatives to include in the draft Environmental Impact Statement. Once the draft Environmental Impact Statement is finalized, BLM will publish a notice in the Federal Register and will request public comments on the draft.

July 18, 2018 BLM releases a seven-page document describing a plan by SAExploration, Inc. (SAE) for seismic testing across the entire Coastal Plain (2,600 square miles). The plan mentions but does not elaborate on environmental or cultural risks implicated by the seismic testing. According to the plan, SAE applied for an “incidental take authorization” for the work that will occur near polar bear habitats. Under the Marine Mammals Protection Act, an “incidental take authorization” allows the authorized party to unintentionally “take” – meaning “harass, hunt, capture, or kill” – a small number of the protected species. In general, these licenses are used to authorize activities that may alter the polar bears’ habits.

Aug. 6, 2018 BLM makes publicly available SAE’s application for permits to conduct a winter seismic survey. This application was submitted earlier in the summer and outlines the corporation’s plan to conduct seismic testing in the Coastal Plain. SAE intends to use 3-D seismic testing. This method, which uses large vibrations to send seismic waves into the ground, will allow the company to identify potential oil and gas reserves beneath the Coastal Plain’s tundra. SAE’s estimated start date is Dec. 10, 2018. According to the application, the seismic testing will continue throughout the winter and could continue again next winter if it cannot be completed during the 2018/2019 season. However, BLM will likely need to conduct an environmental review of the plan for seismic testing which could delay the process.

Nov. 8, 2018 Defenders of Wildlife files a complaint in the U.S. District Court for the District of Columbia against the Department of Interior, Fish & Wildlife Service, and the Bureau of Land Management seeking responses to requests submitted pursuant to the Freedom of Information Act. Since February of 2018, Defenders of Wildlife has submitted six requests to the agencies for records related to oil and gas exploration, leasing, and development in ANWR. All three agencies have yet to provide any records, such as agency correspondence or unpublished documents, in response to the requests. – Defenders of Wildlife v. Dept. of Interior, et. al., Case No. 18-2572 (Dist. of D.C.).

Dec. 20, 2018 BLM releases a draft environmental impact statement (EIS) for leasing in the Coastal Plains area of ANWR, describing four alternatives. The comment period is extended through March 13, 2019.

Jan. 9, 2019 BLM postpones its scheduled public meetings on the Coastal Plain drilling plan, setting no new dates. BLM continues to work on the ANWR development plans despite the current partial government shutdown.

Jan. 30, 2019 BLM reschedules public meetings on the draft EIS for the Coastal Plains drilling plan. Dates in Alaska and Washington D.C. range from Feb. 4 through Feb. 13.

Feb. 5. 2019 Interior announces at a public meeting that no seismic exploration will begin during this winter’s ice road construction season. Interior indicated that the permit application will be amended to reflect a December 2019 start date.

March 13, 2019 sixteen state attorneys general submit joint comments alleging that the draft environmental impact statement is inadequate and does not comply with the requirements of the National Environmental Policy Act – the statute that governs environmental impact statements.

July 31, 2019 Alaska natives and environmental groups file suit against the DOI alleging failure to produce documents required under FOIA that would provide a look at how oil and gas leasing decisions in ANWR were made. The FOIA requests—submitted in 2018 and 2019—encompass documents used to produce the draft EIS for leasing, communications and records relating to lease sale activities during the 2018–2019 government shutdown, and the Porcupine Caribou Treaty between the United States and Canada. According to the filing, DOI has not produced any documents in response to the FOIA requests and dozens of follow-up communications.

Aug. 7, 2019 Environmental groups file suit against the DOI to challenge an agreed upon land-swap deal with King Cove Corporation that would allow construction of a road through the Izembek National Wildlife Refuge in Alaska. The agreement would exchange land in the wildlife refuge to the Native corporation in exchange for land of equal value in order to allow the corporation to complete a road connecting King Cove to Cold Bay. This new land-swap follows a Mar. 29, 2019 order from the U.S. District Court of Alaska rejecting a nearly identical land-swap deal.

Sept. 12, 2019 BLM releases the final environmental impact statement, which allows oil and gas leasing on 1.56 million acres of ANWR’s Coastal Plain. BLM’s chosen plan permits the agency to lease the maximum number of acres available and is the least environmentally protective of the alternatives BLM considered.