Arctic Drilling: Did the Federal Government Violate NEPA?

A coalition of 15 states has filed a lawsuit against the U.S. Department of Interior over its plan to allow oil and gas companies to lease land for drilling along the coastal plain of the Arctic National Wildlife Refuge in Alaska. The lawsuit, however, won’t likely result in the program’s cancellation, according to a professor at NC State’s College of Natural Resources.

In its lawsuit, filed in the U.S. District Court of Alaska, the coalition asserts that the department violated the National Environmental Policy Act, or NEPA, by failing to adequately analyze the impacts of drilling on the climate and to consider an alternative plan that minimizes the environmental impact to the coastal plain.

Since its inception in 1970, NEPA has required federal agencies to examine the potential environmental impacts of major infrastructure projects such as highways and pipelines, according to Gary Blank, an associate professor in the Department of Forestry of Environmental Resources, who consulted with engineering firms on NEPA-related projects for nearly two decades. The law also requires agencies to document their assessment and make it available to the public prior to making a decision about whether to move forward with a project.  

While the Coastal Plain Oil and Gas Leasing Program is expected to have negative impacts on both wildlife and tourism within the refuge, the Bureau of Land Management (BLM) followed the processes required by NEPA, according to Blank. The BLM, an agency within the Interior Department, was directed to develop a leasing program in the refuge as part of a congressional mandate added to the Trump administration’s Tax Cuts and Jobs Act of 2017. 

“Procedurally, the BLM conducted a minimalist process but they went through their motions,” Blank explained. “Nothing in the NEPA regulations, certainly not the act itself, says how thoroughly the issues have to be examined as long as they are considered.” 

Examining the environmental impacts  

When proposing a project that’s subject to NEPA regulations, a federal agency must initially determine whether or not the project will cause a significant impact on the environment. If that review does indicate a significant impact on the environment, the agency is required to prepare an Environmental Assessment, or EA, to determine the significance of the environmental effects and to look at ways in which the agency can revise the project to minimize the effects.

Blank, who currently teaches “Natural Resources 484: Practice of Environmental Assessment,” said this process concludes with either a Finding of No Significant Impact (FONSI) or the decision to move forward with an Environmental Impact Statement, or EIS. 

The EIS aims to inform the work and decisions of policymakers and community leaders by outlining the status of the environment in the affected area, and the positive and negative effects on the environment. It also requires the lead agency or agencies to objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, discuss why they were eliminated.

Once an EIS is prepared, the public is allowed to view the document and provide comments. The comment period is at least 45 days long; however, it may be longer based on agency-specific procedures or at the agency’s discretion. The EIS process ends in a Record of Decision. This document explains the agency’s decision, describes the alternatives the agency considered, and discusses the agency’s plans for mitigation and monitoring if necessary. 

In August, nearly a year after releasing an EIS for the Coastal Plain Oil and Gas Leasing Program, the BLM announced its Record of Decision to move forward with the project. Both the coalition and environmental groups argue that the agency failed to consider how greenhouse gas emissions from drilling in the refuge might impact climate change.

Over the years, a number of state and federal courts have ruled that greenhouse gas emissions should be considered as part of the EIS process. Some courts, however, have ruled otherwise. In addition to the legal uncertainty created by the court system, the Trump administration has repeatedly denied climate change is real and recently withdrew an Obama-era guidance directing agencies to factor in emissions and climate change during NEPA reviews.

“From a legal standpoint, the environmental groups probably don’t have any hope of blocking this action,” Blank said. “NEPA just says you have to look at the potential impacts of a project and inform people of how it’s being done. The lawyers perfectly understand NEPA and know very well that they won’t win if it goes to the Supreme Court. Even if they win in district courts, it will be appealed over and over again.”

Choosing a plan of action 

While NEPA requires federal agencies to consider alternative plans, it doesn’t require them to select the most environmentally-friendly option, according to Blank. 

The EIS for the Coastal Plain Oil and Gas Leasing Program states that the impacts resulting from the sale would include effects from “seismic and drilling exploration, development, and transportation of oil and gas in and from the Coastal Plain” and outlines the effects on local subsistence users as “impacts on subsistence species and from direct disturbance of hunts, displacement of resources from traditional harvest areas, and hunter avoidance of industrialized areas.” It also acknowledges mass extinctions due to climate change and drilling. 

However, the BLM selected a plan that involves leasing the entirety of the 1.56 million-acre coastal plain as it would include the fewest acres with no surface occupancy (NSO) stipulations. These stipulations prevent the construction of well pads, roads, and other developments on the surface of the leased parcel by requiring companies to extract oil and gas through directional drilling from adjacent lands, protecting wildlife habitat and other important natural resources.

As part of the Coastal Plain Oil and Gas Leasing Program, the Interior Department will construct as many as four airstrips and major well pads, 175 miles of roads, vertical supports for pipelines, a seawater treatment plant and a barge landing and storage site.

“The Record of Decision couldn’t be any clearer,” Blank said. “The BLM has examined the potential consequences of drilling in the refuge, and they are willing to accept them. That’s all NEPA requires.” 

Blank added that the BLM only oversees the subsurface rights of the refuge. Once the leases are sold to companies, the U.S. Fish and Wildlife Service (USFWS) may require additional environmental assessments of proposed drilling activities, especially if it includes the construction of surface facilities. While the BLM is permitted to lease the land, the USFWS manages the refuge and is responsible for protecting its wildlife and natural resources.

The Tax Cuts and Jobs Act of 2017 directs the BLM to hold at least two lease sales covering at least 400,000 acres each. The lease sales must be held within seven years with the first lease sale taking place before December 22, 2021 and the second lease sale before December 22, 2024. 

Ultimately, though, Blank predicts that many companies will avoid drilling in the refuge. “BP and other companies have announced major shifts in how they are going to produce energy,” he said. “If I were a company, I would be wary of leasing in the refuge as there’s a real good chance that we’re going to have a different administration that may put the brakes on it.”