Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management

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On February 6, 2021, the court issued an injunction on certain construction activities through February 20 or until the Ninth Circuit rules on any motions for injunction pending appeal. The district court noted that the application of the NPRPA’s judicial review provision was one of first impression in the Ninth Circuit. The court further indicated that if the claim is not time-barred, the plaintiffs “could well be likely to succeed on the merits” of their claim that the defendants’ analysis of greenhouse gas emissions violated NEPA. The court also concluded that the plaintiffs had established a likelihood of irreparable harm.

On February 1, 2021, the federal district court for the District of Alaska denied motions for preliminary relief barring certain construction activities related to a major oil and gas development project in the National Petroleum Reserve in Alaska (NPR-A). First the court found that the plaintiffs’ NEPA claims were likely time-barred under the Naval Petroleum Reserves Production Act (NPRPA), which requires that actions seeking judicial review under NEPA “concerning oil and gas leasing” in NPR-A be brought within 60 days after notice of the availability of an environmental impact statement is published in the Federal Register. With respect to claims under the Endangered Species Act, the court found that that the plaintiffs failed to demonstrate that Southern Beaufort Sea polar bears would be irreparably injured before the court issued a ruling on the merits.

The federal district court for the District of Alaska found deficiencies in federal defendants’ reviews and approvals of ConocoPhillips Alaska, Inc.’s (ConocoPhillips’) Willow Master Development Plan in the National Petroleum Reserve in Alaska, which was anticipated to produce approximately 586 million barrels of oil over a 30-year life. The court therefore vacated the U.S. Bureau of Land Management’s (BLM’s) approval of the project and the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion. Under NEPA, the court first found that the Naval Petroleum Reserves Production Act’s 60-day time limit for seeking judicial review of environmental impact statements did not apply and that NEPA claims were therefore timely. The court then found that BLM’s exclusion of foreign emissions in its alternatives analysis was arbitrary and capricious because its rationale “suffers from the same flaws the Ninth Circuit identified” in a December 2020 <a href="https://climatecasechart.com/case/center-for-biological-diversity-v-zinke-3/">decision</a> involving offshore drilling in the Beaufort Sea. Although the district court acknowledged that BLM provided “a lengthier explanation” of its reasons for not quantifying foreign emissions than the Bureau of Ocean Energy Management provided in the earlier case, the court found that BLM still did not “thoroughly explain” why an estimate of foreign emissions was impossible. The district court also rejected the defendants’ and ConocoPhillips’ assertion that the failure to quantify foreign emissions was inconsequential because BLM could not have adopted the no-action alternative given ConocoPhillips’ existing leasing rights. In addition, the court found that BLM acted contrary to law by failing to consider a statutory directive to give “maximum protection” to surface values in the Teshekpuk Lake Special Area. Under the Endangered Species Act, the court vacated the FWS’s biological opinion because the incidental take statement lacked “the requisite specificity of mitigation measures for the polar bear” and because the take finding for the polar bear was arbitrary and capricious. The court ruled for the federal defendants under other claims under NEPA and the Clean Water Act, including an argument that the defendants did not take a hard look at cumulative impacts of oil and gas development activities and climate change on fish and polar bears.

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On May 26, 2021, the federal government and the oil and gas company developing the Willow Master Development Plan Project in the National Petroleum Reserve in Alaska filed briefs opposing the plaintiffs’ motions for summary judgment on claims that project approvals violated the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. With respect to climate change, the federal defendants argued that the U.S. Bureau of Land Management’s analysis of lifecycle greenhouse gas emissions associated with the project had adequately explained why the agency “lacked the data necessary for a reliable quantitative estimate of downstream emissions in foreign countries,” and therefore did not suffer from inadequacies identified by the Ninth Circuit it its December 2020 <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2020/20201207_docket-18-73400_opinion.pdf">decision</a> in Center for Biological Diversity v. Bernhardt. Other climate change-related arguments included that the EIS had adequately analyzed the project’s cumulative effects on fish and polar bears when combined with impacts resulting from climate change and other factors.

The Ninth Circuit Court of Appeals dismissed without prejudice an appeal of the district court’s denial of a preliminary injunction in cases challenging the Willow project, a major oil development project in the National Petroleum Reserve-Alaska. In February, the Ninth Circuit temporarily enjoined certain construction work for the duration of the appeal. The plaintiffs agreed to dismissal of the appeal after the oil and gas company agreed not to take certain actions until December 1, 2021.