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Arctic Refuge Oil Footprint Could Expand Illegally, Lawsuits Say

Sept. 10, 2020, 8:58 PM

Gravel mines, airstrips, and ice roads could appear in the Arctic National Wildlife Refuge, which Congress never intended when it agreed to allow oil development there, more than a dozen states are claiming in a bid to stop drilling there.

A complaint, filed Wednesday by 15 Democratic-leaning states, challenges the Bureau of Land Management’s August decision to move ahead with the oil and gas leasing plan for the Arctic refuge. Congress authorized leasing in the refuge in the 2017 Tax Act, ending a 40-year ban on drilling there.

Oil companies can disturb up to 2,000 acres within the refuge, under the 2017 law. But in a shift from an earlier version of its leasing plan, the land bureau interpreted that limit as applying only to “production and support” facilities.

The land bureau is making an “end-run” around Congress and the Tax Act because more than 2,000 acres can be developed under the leasing plan, the State Energy and Environmental Impact Center at NYU School of Law said in a statement.

“I would characterize that as disingenuous,” Elizabeth Klein, an attorney and deputy director of of the center, told Bloomberg Law on Thursday. “The BLM is deciding on its own whether it can go beyond what Congress told them to do, which is 2,000 acres of surface development.”

She said oil development can’t happen in the refuge without the gravel mines and airstrips that the land bureau says can be interpreted as not directly related to oil drilling.

‘Meritless’ Lawsuit

Land bureau spokesman Conner Swanson dismissed the allegations as baseless.

“This is a congressionally mandated energy development program that leaves 92% of the refuge completely off-limits to development. The lawsuit is politically motivated and meritless, and we will see them in court,” Swanson said via email Thursday.

Other kinds of development, such as barge landings, could be allowed outside of that 2,000 acre limit if they’re considered transportation-related or some other kind of facility not directly related to oil production, the land bureau, part of the Interior Department, said in its decision.

However, the land bureau said nobody knows if drilling will ever happen in the Arctic refuge.

“It is currently unknown whether any leases will ever be issued, it is unknown if any exploration will take place, and if so, it is unknown whether eventually any lessees will ever apply to the BLM for authorization of any production and support facilities,” the land bureau said in its final decision.

‘Funny Accounting’

The states, in their complaint, allege the bureau’s decision “overrides” Congress and violates the Tax Act by “irrationally” allowing more than 2,000 acres to be affected by oil and gas development.

“Congress has told them you’re allowed this much ground-disturbing activity, and their interpretation of that is, well, we’ll just pretend like this other stuff doesn’t exist,” said Matt Newman, a senior staff attorney for the Native American Rights Fund.

“The BLM has effectively figured out a way to do some funny accounting,” he said.

The Native American Rights Fund filed a separate lawsuit against the land bureau on Wednesday challenging the Arctic refuge leasing plan. The group, representing three Gwich’in tribal governments, alleges the land bureau failed to adequately consult with the tribes before approving the refuge drilling plan.

The land bureau didn’t account for the ways oil and gas leasing within the refuge would affect tribal use of the land for food or subsistence, the tribes say in their complaint.

“Tribes were not going to be listened to,” Newman said, adding that the lawsuit challenges the land bureau’s “choice to ignore” the tribes’ subsistence needs.

Tax Act Violation

The tribes, which include the Native Villege of Venetie Tribal Government, the Arctic Village Council and the Venetie Village Council, also allege the land bureau violated the Tax Act on similar grounds as the states.

The states further allege the land bureau is violating the law that created the refuge by doing too little to protect the wildlife there, in addition to harming migratory birds and permitting oil development that will exacerbate climate change.

The land bureau’s plan to drill the refuge applies to 1.5 million acres of the Arctic Coastal Plain. The agency’s environmental analysis says that the impacts of oil and gas development on the Arctic tundra would be “long term or permanent,” and widely dispersed throughout the coastal plain, despite the cap that Congress imposed.

Up to 69 of the 157 bird species found on the Arctic refuge coastal plain could go extinct because of drilling and climate change, the plan says.

NYU’s State Energy & Environmental Impact Center has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The cases are: State of Washington v. Bernhardt, D. Alaska, 3:20-cv-00224, complaint filed 9/9/20 and Native Village of Venetie Tribal Gov’t et al v. Bernhardt, D. Alaska, 3:20-cv-00223, complaint filed 9/9/20.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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