An imminent or hypothetical threat? Judge hears arguments to halt Wednesday’s ANWR oil lease sale

Porcupine Caribou Herd (U.S. Fish and Wildlife Service)

Federal District Court Judge Sharon Gleason heard oral arguments today in a lawsuit trying to put a stop to the Trump administration’s plans to put large swaths of the Arctic National Wildlife Refuge out for bid on Wednesday for oil and gas drilling.

The lawsuit is brought by conservation and tribal groups who argue the Trump administration’s planned sale goes far beyond what was envisioned in the 2017 federal tax act and needs to go through more rigorous approval. They argue that without it, the region could suffer long-lasting environmental damage from potential yet-to-be-permitted exploratory work as well as the drilling itself.

“Our case here challenges the federal government’s decision to open essentially the entire coastal plain of the Arctic refuge to wholesale industrialization of variety of different plots,” said attorney Nathaniel Lawrence, who represented the groups bringing the lawsuit. “We challenge that decision for failure to comply with a series of environmental laws designed to protect the refuge including laws that require the significant impacts be thoroughly disclosed and discussed, that the agencies protect the natural value of the refuge and that it consider the best ways to do that and that it make findings and determinations of its compliance with environmental law.”

Lawrence and another attorney representing the plaintiffs argued the Trump administration’s plans for the lease sale go well beyond the lease sale required in the federal tax act, which could allow far more land to be developed for a far longer time period than envisioned, and thus should go through more scientific and public review. They also argued the plan runs contrary to existing environmental protections on ANWR and pending seismic activity would leave lasting damage on the region.

Attorneys for the federal government—as well as attorneys representing AOGA, the American Petroleum Institute, the North Slope Borough, Kaktovik Inupiat Corporation and the Native Village of Kaktovik—argued the intervention over potential environmental damage was too early, arguing that nothing in the lease sale explicitly permits seismic exploration, drilling or other work to occur. Exploration and drilling may never happen, they argued.

Federal attorney Paul Turcke called damage from seismic activity or aerial surveying “hypothetical” and argued that such activities have not been permitted yet.

“There is no commitment to any of these activities that plaintiffs fear in the mere issuance of leases,” he argued. “It’s not a basis for any kind of judicial intervention. … Leases can issue and never have any actual effect on the environment.”

As for the potential conflict between the Trump administration’s planned sale and existing federal environmental protections for ANWR, Turcke argued that there is not any such conflict because the drilling was authorized by Congress and therefore the conflict has already been resolved.

Kate Glover, a Juneau-based attorney for Earthjustice, acknowledged that much of the actions that would create the harm have yet to be permitted but argued that the approval of the lease sale, which she argues is based on a faulty process, would open the door for such decisions in the near future.

She also argued that the parameters of the leases, which they argue would allow more land to be developed for longer than Congress envisioned, are difficult to alter once sold.

“The defendants paint a picture that the leases have absolutely no effect. They can issue leases and it doesn’t matter, it doesn’t do anything, and those things can be undone,” she said. “But that’s not true. There’s a point to issuing leases and those leases transfer rights and it makes it difficult for BLM to change its mind and change those decisions later.”

Judge Gleason said she plans to issue a decision before the lease sale on Wednesday.

Just what will happen with the lease sales, if they are permitted, is unclear amid a turbulent year for oil production that has seen many major banks turn a cold shoulder to investing in the Arctic.

Bids were due by Jan. 1, 2021 and the feds confirmed to the Anchorage Daily News they have “received interest” in the lease sale, which is scheduled to occur at 10 a.m. on Wednesday.

There’s also the ongoing question of just how much oil is in the North Slope. A single exploratory well was drilled there in the mid-1980s and while the results are a closely guarded secret, an investigation by the New York Times suggests it’s not particularly promising.

The state-owned Alaska Industrial Development and Export Authority took unprecedented action last week to approve a controversial plan to spend up to $20 million to buy the leases in the event there are no other bidders.

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