Federal judge upholds pause on pre-development oil work in Arctic refuge

Proponents and opponents are still awaiting a new environmental analysis that could permanently halt or change plans to drill there

By James Brooks, Alaska Beacon - August 8, 2023
The Arctic National Wildlife Refuge sprawls to the shoreline of the Beaufort Sea, seen here in 2006. Oil development has been proposed for the refuge’s coastal plain. (Photo by Steve Hillebrand/U.S. Fish and Wildlife Service)

A federal judge has upheld decisions by President Joe Biden and the Department of the Interior that temporarily suspended work needed to open the coastal plain of the Arctic National Wildlife Refuge to oil and gas drilling.

In a 74-page order published Monday afternoon, U.S. District Court Judge Sharon Gleason ruled in favor of the federal government and against the state of Alaska, its state-owned development bank and several other plaintiffs.

The Alaska Industrial Development and Export Authority, the development bank, is the sole remaining organization with oil and gas leases in the refuge, purchased during a 2021 sale mandated by Congress.

Monday’s decision means AIDEA cannot proceed with pre-development surveys and other work on its leases. It must await the results of a new environmental assessment expected later this year.

“AIDEA is disappointed in the recent court decision,” said Josie Wilson, AIDEA’s communications director, by email. “Congress clearly said the Department of the Interior had to go forward with leasing in ANWR and expected DOI to allow those leases to produce jobs, oil, and revenue for the Treasury. Congress certainly expects the leasing entities to carry out its intent without having to expressly authorize every step in the leasing process.”

The state of Alaska has been interested in developing ANWR’s coastal plain for decades under the belief that it may contain billions of barrels of crude oil and substantial deposits of natural gas.

Commercial interest has thus far been limited; two small firms also bid on ANWR leases but have since surrendered them.

The state’s determination and fierce environmental opposition have turned ANWR into a contentious issue nationally. Environmental groups praised the judge’s order.

“Today’s ruling comes as good news as we continue defending the Porcupine caribou herd and our traditional way of life from a destructive, disrespectful, needless and illegal leasing program,” said Bernadette Demientieff, executive director of the Gwich’in Steering Committee, which intervened in the case to support the federal government.

The Biden administration paused pre-development work in the refuge on the president’s first day in office, with Biden ordering the Secretary of the Interior to “place a temporary moratorium on all activities of the federal government relating to the implementation of the coastal plain oil and gas leasing program.”

That pause was extended as the Department of the Interior ordered a new environmental analysis, concluding that one performed during the Trump administration was inadequate.

Citing the pause, federal officials refused to allow AIDEA or third-party contractors to perform seismic surveys and other work needed before productive drilling.

AIDEA, backed by the state, two Alaska Native corporations and the North Slope Borough, sued the federal government in November 2021, saying that the temporary halt violates federal law and is intended to permanently stop work.

“The Department of Interior failed to specify what specific items were deficient in the determination. This lack of clarity will likely lead to an open ended and costly delay. This is another example of why comprehensive permit reform is needed. Agency decisions must be final at some point and not subject to politics and the whims of changing administrations,” Wilson said.

After almost two years of legal arguments, Gleason concluded that neither AIDEA’s leases nor federal law “provide an express deadline by which Agency Defendants must allow oil and gas activities on the coastal plain to proceed after a lease sale is conducted.”

She said that neither the state, AIDEA, nor any other plaintiff “identified any provision or source of federal law that precludes a temporary moratorium for the purpose of ensuring that the program comports with the law.”

Gleason said further that there is “no genuine dispute” that federal officials have changed their minds on ANWR development, but that the federal government has not crossed any legal lines set by Congress.

“Agency defendants have not canceled, rescinded, nullified, or otherwise undone the first lease sale,” she said.

She expanded in a footnote: “To the extent plaintiffs suggest that the moratorium is a de facto rescission of the lease sale, they have not pointed to any authority indicating that this is the case. Also … there has not been a ‘functional’ rescission of the lease sale.”

Attorneys familiar with the case noted that an appeal may be moot.

The federal government is expected to deliver a revised environmental impact statement by the end of September, and that could lead to a decision that changes, confirms or voids the ANWR development program altogether.

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