An ANWR challenge
Plaintiffs in court case request summary judgement against lease hiatus
Alan Bailey for Petroleum News
The plaintiffs in a federal District Court in Alaska case challenging a Department of the Interior decision to suspend oil and gas lease related activities in the Arctic National Wildlife Refuge have filed requests for a summary judgement, negating the suspension decision. The filings come in response to a court order requiring summary judgement briefs by Dec. 5. Defendants in the case have until Feb. 17 to respond to the briefs.
In June 2021, under the newly elected Biden administration, DOI ordered a suspension of all activities relating to a Jan. 6, 2021, lease sale for the 1002 area of the ANWR coastal plain, pending a rework of the environmental impact statement for the lease sale program. This suspension followed a Jan. 20, 2021, executive order by newly elected President Biden, ordering, among other things, a temporary moratorium on federal government activities relating to the implementation of an ANWR coastal plain oil and gas leasing program.
AIDEA lawsuit In November 2021 the Alaska Industrial Development and Export Agency filed a legal complaint in District Court over the DOI decision. The State of Alaska, Kaktovik Inupiat Corp., the North Slope Borough and Arctic Slope Regional Corp. subsequently joined the lawsuit in support of AIDEA. The Native Village of Venetie, the Arctic Village Council, the Gwich’in Steering Committee and several environmental organizations intervened in support of DOI.
AIDEA had purchased leases in the sale and had been planning to contract seismic surveying in its leases, with a view to promoting ANWR oil and gas development. Knik Arm Services LLC and Regenerate Alaska, the two other purchasers of leases in the lease sale, have surrendered their leases because of the hiatus in approval of lease related activities.
The original EIS approving an ANWR coastal plain lease sale program was signed in August 2020 under the Trump administration. The lease sale program resulted from a section of the Tax Cuts and Jobs Act, passed by Congress in 2017, requiring DOI to conduct oil and gas lease sales for the coastal plain. The Bureau of Land Management conducted the January 2021 ANWR lease sale in compliance with the 2017 legislation.
The Biden administration subsequently argued that the lease sale EIS was deficient and, thus, required a rework. BLM then anticipated publishing a final SEIS in April 2023, with a record of decision following in June 2023. However, the agency subsequently indicated that there would be delays in the completion of the SEIS - the anticipated completion date remains unclear.
Plaintiffs claim moratorium unlawful In their Dec. 15 court briefing AIDEA, the North Slope Borough, ASRC and Kaktovik Inupiat Corp. argued that Biden’s executive order and the resulting moratorium on ANWR lease related activities were “unauthorized by any statute” and violated the Tax Cuts and Jobs Act, while also violating the Alaska National Interest Lands Conservation Act and the Federal Land Management and Policy Act. Moreover, by enacting the moratorium without opportunities for public comment and, by “arbitrarily and capriciously” reversing their position on the adequacy of the original EIS, BLM had violated the Administrative Procedures Act, the plaintiffs claimed. Essentially, by passing the Tax Cuts and Jobs Act, Congress had mandated the Secretary of the Interior to facilitate oil and gas activity on the ANWR coastal plain, with this mandate not being subject to alteration through an executive or secretarial order, the plaintiffs argued.
Moreover, continuing uncertainty over a completion date for the final SEIS has “indefinitely frozen all steps towards coastal plain exploration and development,” the plaintiffs said. The plaintiffs commented that, in what they claim to be a similar case, the federal District Court in Louisiana had recently ruled unlawful a second Biden executive order requiring a pause in oil and gas leasing on public lands and in offshore waters.
For all of these reasons, the court should vacate the suspension of coastal plain oil and gas leases and the suspension of right-of-way or easement applications for coastal plain oil and gas activities, the plaintiffs said. In addition, the court should issue an injunction requiring DOI to end the moratorium on oil and gas activities, lift the suspension of AIDEA’s leases and continue the processing of right-of-way and easement applications, they said.
State of Alaska brief The State of Alaska filed its own court brief, requesting a summary judgement in the case. The state made similar arguments to the other plaintiffs while commenting that, in its view, the moratorium on coastal plain oil and gas lease related activities reflected a view that federal agencies act “as mere tools in the hands of changing presidential administrations to implement at will any preferred policies regardless of, or even in opposition to, existing law that was implemented pursuant to Congressional direction.” Instead, federal agencies are created by Congress to implemented and enforce laws enacted by Congress, the state told the court.
The cancellation of coastal plain leases would violate the Tax Cuts and Jobs Act, the state argued.
Moreover, the justifications offered for the moratorium lacked any record or factual support and, without any reasoned analysis, contradict DOI’s and BLM’s prior factual findings and decision making, the state wrote. Once a final decision on an EIS is issued, agencies are bound by this record of decision and must implement the resulting actions, unless the agencies follow a required legal process for changing the decision, the state added. Moreover, the moratorium is illegal in that its purpose, to enable the preparation of a further NEPA analysis, with the possibility of canceling oil and gas leases, exceeds DOI’s authority to issue and administer coastal plain leases, the state argued.
In addition, the DOI’s arguments for justifying the moratorium are merely generic and vague, lacking the detail and factual support necessary to provide a reasoned basis for the moratorium decision, the state claimed.
DNR comments In another court filing, Vasilios Gialopsos, acting commissioner of the Alaska Department of Natural Resources, commented that lease sales in the coastal plain leasing program could potentially result in the production of 1.5 million to 10 million barrels of oil, thus generating billions of dollars of revenues for the State of Alaska through royalties and lease rental payments. These revenues would be used to the benefit of Alaskans, including the generation of employment opportunities and the protection of Alaska wildlife and natural resources, Gialopsos wrote.
Any delays in the start of production would result in follow-on delays in the collection of royalty revenues, Gialopsos wrote.
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