Court Rules on Lease of Lands in Alaska’s Northwest Planning Area

Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969 (2006)

Britta Hinrichsen, 3L, Vermont Law School

The National Petroleum Reserve-Alaska (NPR-A) covers 23.6 million acres of public land located in northern Alaska. Under the National Petroleum Reserve Protection Act, the Secretary of the Interior has authority to permit oil and gas exploration, leasing, and development. The Bureau of Land Management (BLM) under the Department of the Interior (DOI), proposed to lease portions of the NPR-A called the Northwest Planning Area (NWPA), which encompasses 8.8 million acres.

The Northern Alaska Environmental Center (NAEC) challenged BLM’s proposed leasing in the NWPA, claiming that DOI and BLM violated both the National Environmental Policy Act (NEPA) for failure to conduct an adequate Environmental Impact Statement (EIS) and the Endangered Species Act (ESA) for issuing an improper Biological Opinion (BiOp). The U.S. District Court for the District of Alaska ruled in favor of the federal government, holding that the Final EIS did not violate NEPA and that the BiOp did not violate the ESA. On appeal, the Ninth Circuit affirmed the lower court’s decision.

NEPA Claims
Pursuant to NEPA, an EIS is required for “major federal actions significantly affecting the quality of the human environment.”1 The EIS must address the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, and alternatives to the proposed action.2 When reviewing the adequacy of an EIS, the court asks “whether the agency adequately considered a project’s potential impacts and whether the consideration given amounted to a ‘hard look’ at the environmental effects.”3 For substantive decisions under NEPA, such as BLM’s decision to adopt the Preferred Alternative, the court determines whether the BLM’s decision was “based on a consideration of the relevant factors.”4

First, NAEC argued that the Final EIS was insufficient because it did not analyze the environmental impacts of each parcel involved in a possible lease. The Ninth Circuit held that the Final EIS did not have to be that site specific, because it was impossible for BLM to know which parcels will undergo exploratory drilling or development. Facing such uncertainty, BLM analyzed possible effects of drilling under two hypothetical situations: 1) half of the parcels were leased for exploration but none were developed, and 2) all available resources were discovered and developed. The Final EIS analyzed natural resources, including water, wildlife, and specific bird species, under both scenarios. While this analysis did not examine the environmental impacts to individual parcels, the Final EIS indicated the potential impacts to these resources. Given the uncertainty inherent in the oil and gas leasing process, it was not arbitrary or capricious for BLM to rely upon this analysis in the Final EIS. Specifically, the court stated that “when an agency complies in good faith with the requirements of NEPA and issues an EIS indicating that the agency has taken a hard look at the pertinent environmental questions, its decision should be afforded great deference.”5 Additionally, plaintiffs will be given an opportunity to comment on later site-specific agency actions.

Second, NAEC claimed that BLM violated NEPA for failing to consider an adequate range of alternatives, specifically a middle ground alternative. To satisfy NEPA requirements, an agency does not have to consider all alternatives. The Ninth Circuit determined that BLM did not violate NEPA because it considered five alternatives in the Final EIS. The court found that the Preferred Alternative chosen by the BLM was actually a middle ground alternative, because “it places numerous limitations on the leases, including mandatory deferment and no permanent surface occupancy restriction in some areas.”6

Third, NAEC argued that the Final EIS did not adequately describe and discuss mitigating measures. Under NEPA, the EIS must contain “a reasonably complete discussion of possible mitigating measures.”7 The Ninth Circuit found that BLM satisfied this requirement through stipulations and Required Operating Procedures, which avoid or reduce the environmental impacts from the oil and gas leasing activities. Also, it was impossible to have more site specific mitigation measures because BLM does not know which areas of the NWPA may be developed. To offset this uncertainty, BLM acknowledged that further protective measures may be implemented with subsequent permitting actions.

Fourth, NAEC claimed that the Final EIS failed to adequately consider cumulative impacts from amending the Northeast EIS (the other planning area within the NPR-A). The Final EIS must address “[c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.”8 BLM issued a Notice of Intent to amend the Northeast EIS, which normally triggers a cumulative impact analysis. However, the Notice of Intent indicated that the cumulative impacts from modifying the Northeast EIS would be addressed during the amendment process. Therefore, the Ninth Circuit held that the cumulative impacts analysis did not have to occur at this stage.

ESA Claim
Finally, NAEC argued that BLM violated the ESA because the BiOp prepared by the Fish and Wildlife Service (FWS) failed to asses the entire agency action and ignored the uneven distribution of the Stellar eiders and spectacled eiders, two endangered species within the NWPA. Pursuant to the ESA, the Secretary must “ensure that an action of a federal agency is not likely to jeopardize the continued existence of any threatened or endangered species”9 and must issue a biological opinion “evaluating the nature and extent of jeopardy posed to that species by the agency action.”10 NAEC challenged FWS’s no jeopardy determination in the BiOp because it used assumptions about oil and gas activities supplied by the BLM. The Ninth Circuit held that BLM did not violate the ESA by providing such assumptions, because insufficient information existed about exact locations of oil and gas activity and the BiOp “properly relied on a reasonable and foreseeable oil development scenario.”11

Conclusion
The Ninth Circuit affirmed the lower court’s decision that the BLM’s Final EIS did not violate NEPA or the ESA. Subsequent to the court’s decision, a separate action was filed in the District Court for the District of Alaska involving the DOI’s planned lease of land around Teshekpuk Lake.12 The district court struck down the department’s plan, finding, among other things, that it had violated NEPA and the ESA.13

Endnotes
1.42 U.S.C. § 4332(2)(C).
2. Id. § 4332(2)(C)(i)-(iii).
3. NAEC v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006).
4. Id. (quoting 5 U.S.C. § 706(2)(A)).
5. Id. at 977.
6. Id. at 978.
7. Id. at 979 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989)).
8. Id. at 980 (quoting 40 C.F.R. § 1508.25(a)(2)).
9. 16 U.S.C. § 1536(a)(2).
10. Id. § 1536(b).
11. NAEC v. Kempthorne, 457 F.3d at 981.
12. National Audubon Society v. Kempthorne, No. 1: 05-cv-00008-JKS (D. Alaska, Sept. 25, 2006).
13. Id.