Formal Cumulative Impacts Analysis Not Required Under Alaska Law

Greenpeace, Inc. v. State of Alaska, 79 P. 3d 591 (Alaska 2003).

Shannon McGhee, 2L

The Supreme Court of Alaska recently addressed whether Alaska requires a NEPA-like or “whole-project” approach to cumulative impacts analysis when projects are reviewed for consistency with the State’s coastal management plan.

Background
In 1995, British Petroleum Exploration (BP) purchased four oil and gas leases to develop Alaska’s first offshore oil facility and subsea oil pipeline in the Beaufort Sea near Prudhoe Bay. BP’s plans, known as the Northstar Project, required several federal and state permits. Any project impacting Alaska’s coastal areas and requiring multiple permits must undergo a comprehensive review to determine its consistency with Alaska’s Coastal Management Program (ACMP). The Alaska Division of Government Coordination (DGC) administers the review and is responsible for issuing the consistency determination. Due to the nature of the Northstar Project, the United States Army Corps of Engineers was also required to review the project under the National Environmental Policy Act (NEPA) and prepare an Environmental Impact Statement. In an effort to expedite the review process, the DGC and Army Corps of Engineers (Corps) coordinated their reviews.

During the review process, public comment was sought by DGC and the Corps. Greenpeace responded with extensive comments. DGC found the Northstar Project consistent with ACMP’s standards in a Proposed Consistency Determination in early 1999. Greenpeace, unhappy with the consistency determination, asked the Alaska Coastal Policy Council to review whether Greenpeace’s comments were fairly considered in the proposed consistency determination. The Council sustained the proposed consistency determination and the DGC issued a Final Consistency Determination on February 4, 1999.

Greenpeace appealed the Final Consistency Determination to the Alaska Superior Court. The superior court affirmed DGC’s decision and Greenpeace appealed to the Supreme Court of Alaska. Greenpeace alleged as a matter of law that DGC failed to apply the proper cumulative impacts analysis and phasing procedural requirements mandated under ACMP. On appeal, the Supreme Court ruled Alaska law did not require DGC to perform a NEPA-like cumulative impact analysis and that Northstar was not a phased project.

Cumulative Impacts
Greenpeace argued that the proper standard for a cumulative impacts analysis under the ACMP should be defined as “the impact on the environment which results from the incremental impacts of the action when added to other past, present, and reasonably foreseeable future actions.”1 Greenpeace supported its argument by claiming the federal government’s Final Environmental Impact Statement implicitly endorsed a NEPA-like definition by describing the ACMP’s standards as encompassing a “general balancing process taking account of public need, alternatives, and cumulative effects . . .”2 Greenpeace also claimed Alaska law defines a “use of direct and significant impact” in a way that considers the cumulative effects of a coastal project.3

The DGC, on the other hand, asserted Alaska law and cases support a “whole-project analysis” approach to the meaning of cumulative impacts. This whole-project analysis would require the DGC to evaluate the combined impacts of all aspects of the project under review, but not require the DGC to examine the project in light of hypothetical or proposed future development in the region.4

The Court agreed with the DGC that a NEPA-like cumulative impacts analysis is not warranted by the ACMP because the NEPA review process is already part of the consistency review for projects like Northstar. “The placement of structures and the discharge of dredged or fill material into coastal water must, at a minimum, comply with the standards contained in Parts 320-323, 33 C.F.R. 47,” a federal regulation under NEPA requiring a formal cumulative impacts analysis.5 This provision ensures that proposed projects requiring federal permits will achieve the minimal level of compliance with Alaskan law upon approval of a federal permit. It does not, as Greenpeace suggests, add an additional layer of cumulative impacts analysis. This statute does not require DGC to conduct an independent review. While the DGC must review and consider any cumulative impact analysis prepared by a federal agency, the DGC remains free to accept or reject the federal analysis.6 The Supreme Court reasoned that a separate level of review is unnecessary because of the availability of a federally prepared cumulative impacts analysis.

The Court also noted that ACMP standards require the DGC to consider a project’s known and predictable effects during the consistency review, such as adjacent uses and even subsequent adjacent uses. The Court rationalized a “whole-project analysis,” as suggested by the DGC, as more compatible with these standards because “it takes into account ‘all aspects of a project, considered as a whole’ and its ‘existing development context’ but does not require the DGC to speculate about unknown and unpredictable future events as does a NEPA-defined cumulative impact analysis.”7

Greenpeace also argued that the federal Coastal Zone Management Act (CZMA), as well as the DGC handbooks, promoted a NEPA-like cumulative impacts analysis for ACMP consistency reviews. No provision in the CZMA or its regulations mandates Alaska adopt a NEPA-like cumulative impact analysis. The Court also rejected similar arguments that the DGC handbooks and policies required a NEPA-defined cumulative impacts analysis, stating that at the most these materials “simply encourage coastal districts to develop cumulative impact analysis guidelines . . .”8

Finally, Greenpeace contended that even under DGC’s “whole project” cumulative impacts analysis, DGC still failed to consider “the incremental contribution of Northstar, in the context of past, present and reasonably foreseeable actions,” rendering the DGC decision arbitrary and capricious.9 Therefore, the DGC’s consistency determination could only fail because the agency failed to make a reasonable decision. Agency decisions are generally reviewed under the “hard look” standard - examining whether the agency took a “hard look” at the issues. The failure to comply with the “hard look” standard is a separate issue which was not raised by Greenpeace on appeal. Greenpeace argued that the DGC failed to comply with mandatory procedures. Because a NEPA-like cumulative impacts analysis is not required, the DGC’s final consistency determination complied with mandatory ACMP procedures. Greenpeace waited to raise the issue of failure to comply with the “hard look” standard until it filed its reply briefs with the court. The Supreme Court held that Greenpeace waived its right to argue this issue by failing to raise the issue on appeal.

Phasing
The second procedural issue was whether DGC improperly phased the Northstar Project by prematurely issuing permits and approving “major aspects” of the project’s future developments without sufficient information to make a reasoned ACMP consistency determination. The Court succinctly concluded that the Northstar project was not phased and that the consistency review encompassed the project in its entirety.

Conclusion
The Supreme Court of Alaska determined Alaska law did not require DCG to produce NEPA-like cumulative impact analysis during their ACMP consistency review of the Northstar Project and affirmed DCG’s final consistency determination.

Endnotes:
1. Greenpeace, Inc. v. State, 79 P. 3d 591, 593 (Alaska 2003) (citing 40 C.F.R. § 1508.7 (2002)).
2. Id. at 594.
3. Id. (citing Alaska Stat § 46.40.210 (1995)).
4. Id.
5. Alaska Admin. Code tit. 6, § 80.040 (2000).
6. Greenpeace, 79 P. 3d at 595, n 20.
7. Id. at 596.
8. Id. at 597.
9. Id. at 598.