Federal appeals court declines to ‘criminalize’ Beaufort Sea oil and gas work

By James Brooks, Alaska Beacon - March 20, 2024
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A polar bear walks along the shore in Alaska on Sept. 6, 2019. (Photo provided by U.S. Fish and Wildlife Service)
A polar bear walks along the shore in Alaska on Sept. 6, 2019. (Photo provided by U.S. Fish and Wildlife Service)

A three-judge panel of the 9th U.S. Circuit Court of Appeals declined Tuesday to halt significant amounts of oil and gas work on and near Alaska’s Beaufort Sea coast despite concluding that the U.S. Fish and Wildlife Service erred when it granted permission for oil companies to harass nearby polar bears.

In 24 pages published Tuesday, the judges issued a split decision that partially overturns a prior Alaska U.S. District Court decision that upheld the Fish and Wildlife Service’s 2021 “incidental take regulation” as applied to the Beaufort Sea, which is adjacent to Alaska’s North Slope oil fields.

Such regulations are required every five years by the federal Marine Mammal Protection Act, which restricts companies’ ability to kill, injure or disturb protected animals during construction or other work that might disturb them.

Judges Margaret McKeown and Jay Bybee, ruling in the majority, said the Fish and Wildlife Service failed to properly justify parts of its 2021 regulation.

Judge Daniel Bress, writing in dissent, disagreed with that opinion and said he would have ruled fully in favor of the Fish and Wildlife Service.

The Alaska Wildlife Alliance, Alaska Wilderness League, and other environmental groups had sued the Fish and Wildlife Service over the 2021 regulation with hopes of halting oil and gas work in northern Alaska.

Despite ruling partially in plaintiffs’ favor, the judges declined to grant that request, saying that “vacating the 2021 ITR would in essence criminalize the act of knowingly operating as an oil company in the Beaufort Sea.”

The judges concluded that would be “grossly disproportionate” to the potential harm caused by operating under a flawed regulation.

They ordered the case be returned to the Alaska District Court for further proceedings. Plaintiffs could appeal the case to the full 9th Circuit.

In a brief statement, the Alaska Department of Law — which represented the state government in the case — said it agrees with the dissent but appreciates that oil and gas work can continue.

“There is no evidence that suggests that ongoing oil and gas activities are impacting polar bears,” the agency said. “While the court wants the agency to offer additional explanation, the court importantly left the regulation in place while that happens. This means that the oil and gas activities can continue while the Service performs its additional review.”


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