Green groups see legal flaws in Trump’s plan for Arctic refuge drilling

The Trump administration’s effort to open up drilling across more than a million acres in the Arctic National Wildlife Refuge (ANWR) faces significant legal hurdles, according to experts who are likely to assist in challenging the newly announced plan.

The Interior Department on Monday finalized plans to move ahead with a longstanding item on the GOP’s wishlist: allowing drilling in the Alaskan wilderness. The move could have dire consequences for polar bears, caribou, birds and other species that live in the coastal area in the northern part of ANWR.

But environmental lawyers argue the Trump administration was lax in conducting the reviews needed to proceed and ignored key requirements established by Congress when it gave the green light for oil exploration in late 2017.

“Congress passed a law that said hold lease sales in the coastal plain, and what the Trump administration has done is take a completely maximalist approach … and in so doing has violated other laws like the National Environmental Policy Act and the Endangered Species Act all designed to protect the resources,” Erik Grafe, deputy managing attorney of Earthjustice’s Alaska office, told The Hill.

The nearly 1.6 million acres that the Trump administration is opening up for drilling are a fraction of the refuge’s 19.3 million acres, but the area is still far beyond Congress’s specification for two lease sales each totaling a minimum of 400,000 acres.

Interior Secretary David Bernhardt said he hopes to hold sales for the 1.6 million acres by the end of next year with another round in 2024.

David Hayes, a deputy Interior secretary during the Obama administration who’s now with New York University’s School of Law, said developing such a large parcel is complicated by another provision of the 2017 GOP tax law that authorized the lease sales: All the infrastructure for drilling — the well pads, the supporting posts for above-ground pipelines, four airstrips — must occupy no more than 2,000 acres.

He doesn’t think the math works.

“That 2,000 acres was never based on evidence. It was a rhetoric invention that took hold in the Congress that you could actually do big oil and gas development in the Arctic for under 2,000 acres,” Hayes said, adding the reality appears to be that “it’s not going to be possible to open up the entire [1.6 million acre] area.”

“That is a clumsy way to try and avoid what appears to be the reality that it’s not going to be possible to open up the entire area,” he added.

But what environmentalists are most upset about — and what is likely to be key to the multiple suits expected on the ANWR decision — is what they see as a lack of rigor from the Trump administration in weighing how oil development will affect wildlife in the area.

Oil exploration requires seismic testing, shooting waves beneath the surface to map where oil lies.

“It failed to adequately analyze the effects to polar bears both on the impact of an oil spill on a species and the impact of seismic activity on a species which could crush dens and kill polar bears and their cubs,” said Kristen Monsell, an attorney with the Center for Biological Diversity.

Rep. Jared Huffman (D-Calif.), who successfully shepherded a 2019 House bill banning ANWR drilling that later stalled in the GOP-controlled Senate, called Interior’s work on the topic a “fundamentally flawed analysis” in a July letter to the agency. Interior’s biological opinion produced on the topic came after it took the unusual step of opening its research to public comment in February.

“Through the work of political insiders and well-connected special interests, Trump officials have overruled and ignored the science demonstrating the dangers posed to mother polar bears and their cubs from oil and gas development,” Huffman said in a Monday statement.

Environmental lawyers argue that the agency’s analysis and others used to support the ANWR decision don’t meet the requirements set forth by the Endangered Species Act or the National Environmental Policy Act, which both require thorough reviews.

Hayes said the review from Interior also too narrowly focused on the impact of selling leases on the land while the 2017 tax law required consideration of “leasing, development, production, and transportation” of oil — something he sees as weighing the process from start to finish.

Sen. Lisa Murkowski (R-Alaska), who fought to get the drilling language added to the 2017 tax legislation, called Interior’s decision part of a “methodical, purposeful approach.”

“Suggestions that the [record of decision] does not reflect the law — or that it is somehow the end of the approval process before development takes place — are simply inaccurate,” Murkowski said. 

Bernhardt also defended his agency’s work in a call with reporters.

“This is something that I have personally looked at very closely, and I have some experience in this area. I would not be going forward if I was not very comfortable at the lines we drew in this case,” he said Monday.

Supporters of the drilling plan see it as a huge opportunity for Alaska’s economy.

Murkowski said development “is needed both now, as Alaskans navigate incredibly challenging times, and well into the future as we seek a lasting economic foundation for our state.”

But environmentalists see that as a bad bet as oil prices have fallen sharply amid the coronavirus pandemic and many financial institutions have pledged not to finance drilling in ANWR as banks look to reduce their carbon footprint. Lawyers planning to challenge the ANWR move are likely to argue the federal government must try to monetize climate change impacts along with oil proceeds.

Many groups have vowed to sue, but the timing of those lawsuits depends on which statutes they focus on.

“This takes us in the totally wrong direction on climate change. We shouldn’t be expanding oil and gas development into new areas like this when that new oil and gas won’t come to market for decades, and by that time we’ll have to be turning away from oil and gas for sure if we’re going to address the climate crisis. The Arctic Refuge is the last place we should be looking for oil,” Grafe wrote in his group’s initial response to Interior’s drilling proposal.

The Trump administration, however, doesn’t see it that way, rebutting comments on its ANWR drilling plans by saying it “does not agree that the proposed development is inconsistent with maintaining a livable planet (i.e., there is not a climate crisis).”