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

On December 1, 2023, the federal district court for the District of Alaska denied plaintiffs’ motions for injunction pending their appeal of the court’s judgment upholding federal approvals for the Willow Master Development Plan, which authorized oil production on leases in the National Petroleum Reserve in Alaska. The court found that the plaintiffs did not show a likelihood of success on the merits of their claims or raise serious questions going to the merits of those claims. The court also found that the plaintiffs did not establish irreparable harm from planned 2023-2024 planned winter construction activities. In addition, the court found that the balance of the equities and the public interest tipped sharply against injunctive relief pending appeal.

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The federal district court for the District of Alaska dismissed environmental organizations’ claims that federal agency approvals in early 2023 of the Willow Master Development Plan—which authorized oil production on leases in the National Petroleum Reserve in Alaska (NPR-A)—violated the National Environmental Policy Act (NEPA), Endangered Species Act, and other federal statutes. The approved project consists of three drill sites and related infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads, and pipelines. Under NEPA, the court found that the U.S. Bureau of Land Management (BLM) considered a reasonable range of alternatives, rejecting the plaintiffs’ contentions that BLM had based its selection of alternatives on a “purpose and need” statement that relied on a misinterpretation of BLM’s authority under the Naval Petroleum Reserves Production Act (NPRPA). The plaintiffs contended that BLM should have considered an alternative that “substantially reduces Willow’s carbon footprint” and prohibits infrastructure within the sensitive Teshekpuk Lake Special Area while also allowing production of some oil. The court held that the purpose and need statement’s framing of the authorization of NPR-A oil and gas production while providing for the protection of significant surface resources was reasonable and that BLM considered the requisite reasonable range of alternatives based on the purpose and need. In addition, the court rejected the plaintiffs’ assertion that BLM’s analysis of greenhouse gas emissions from reasonably foreseeable future actions failed to consider emissions from potential future development. The court noted that BLM’s final supplemental environmental impact statement (SEIS) incorporated prior analysis that included “low to high range of projected GHG emissions from future potential projects in the NPR-A” and therefore provided sufficient information about cumulative effects of greenhouse gas emissions from future development that could be induced by the Willow project even if the prior analysis did not include specific projections of downstream emissions from the potential “West Willow” or “Greater Willow” project. In addition, the court rejected the contention that BLM violated NEPA by excluding emissions from construction and routine operations of the West Willow project. The court characterized this exclusion as “inconsequential.” Under the NPRPA, the court rejected the contention that BLM failed to consider a reasonable range of alternatives and arbitrarily limited its authority, citing the same rationale as it cited for upholding the NEPA alternatives analysis. The court found that the assertion that BLM violated NPRPA by failing to address the impact of the Willow Project’s greenhouse gas emissions on surface resources was “unpersuasive”; the court found that the plaintiffs did not causally link the project’s emissions to specific harms. Under the NPRPA, the court also found that BLM provided sufficient explanations for its rejection of specific measures that the plaintiffs claimed BLM had arbitrarily rejected: (1) a 20-year operating term instead of a 30-year term; (2) periodic review of NEPA analysis if more oil was recovered than anticipated; and (3) mitigation of greenhouse gas emissions through land reforestation. Under Alaska National Interest Lands Conservation Act § 810, the court rejected the claim that BLM failed to consider alternatives that would reduce impacts to subsistence uses. Under the Endangered Species Act (ESA), the court first concluded that the plaintiffs had standing to raise all their ESA claims, including claims regarding the ESA consultation on the project’s greenhouse gas emissions. On the merits of the ESA claim, the court concluded that the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion (BiOp) was not arbitrary and capricious in its incidental take analysis of polar bears. The court also rejected the plaintiffs’ contention that BLM, FWS, and the National Marine Fisheries Service failed to consider the effects of Willow’s carbon emissions on protected species. The court upheld BLM’s determination that Willow’s greenhouse gas emissions were not an “effect of the action” under the ESA. In response to a plaintiff’s comment on the draft SEIS that suggested linking the project’s emissions and climate change-related effects to listed species and their critical habitat, BLM prepared a memorandum that stated that the project “is anticipated to result in a marginal increase in global GHG emissions that would contribute to climate change and, potentially, a marginal seasonal decrease in sea ice extent somewhere in the Arctic” but that “any generalized calculations of GHG impacts, such as sea ice loss, at this time would not be able to determine precise effects to individual animals and such consequences would not be reasonably certain to occur.” The court rejected the petitioners’ argument that BLM improperly required “precision” or “granularity” in the ability to predict effects. The court cited the regulations that prescribe criteria for determining what is an “effect of the action,” which provide that a consequence must be “reasonably certain to occur” based on “clear and substantial information.” The court found that BLM “used ‘precision’ and ‘granularity’ as characterizations of the causation issues with the scientific data” to conclude that the evidence was not “clear and substantial enough to render the impact of Willow’s GHG on listed species an ‘effect of the action.’” The court similarly found that FWS’s failure to specifically address the Willow Project’s greenhouse gas emissions in the BiOp was not arbitrary and capricious. The court noted that the BiOp had recognized the impacts of greenhouse gas emissions on climate change and climate change impacts on polar bears and their habitat. The court noted that FWS had acknowledged that “polar bears in the Action Area could become increasingly sensitive to disturbance or other impacts … indirectly associated with climate change” but had found that there was not “sufficient data to reliably predict how the effects of the proposed Action may or may not contribute to increased sensitivity.” In addition, the court cited FWS’s conclusion that climate science was “still insufficient to identify project-specific effects to listed species or designated critical habitat” and that “an estimate of a project-caused decrease in sea ice occurring somewhere in the Arctic, without more specific information … does not enable us to predict any ‘effects of the action’ to listed species or designated critical habitat.” Citing these statements, the court found that the federal agencies considered the relevant factors and articulated a rational connection between the facts and the conclusion that the Willow Project’s greenhouse gas emissions were not an “effect of the action” under the ESA. In addition, the court rejected a contention that FWS failed to consider the best available scientific and commercial data as required by the ESA when it failed to consider the project’s greenhouse gas emissions. The court found that the agencies had considered the scientific studies that plaintiffs contended should have been used to quantify the impacts of the project’s emissions on sea ice and polar bears and seals. But the court accepted the agencies’ conclusion that the studies did not enable them to predict “effects of the action” on listed species or their critical habitat.

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The court granted all motions for leave to file amicus briefs in support of the plaintiffs but stated that "absent a clear advance notice to the parties from the Court, the Court does not intend to address legal issues raised for the first time in an amicus brief that were not raised in either set of Plaintiffs’ opening briefs, such as arguments regarding asserted violations of international law contained in the United Nations Special Rapporteurs’ amicus brief."

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On April 3, 2023, the court denied motions for preliminary injunctions barring construction activities planned for winter 2023. Plaintiffs appealed the denial of the preliminary injunction and filed a motion in the district court for an injunction on construction activities for 14 days while they seek relief from the Ninth Circuit. In its order denying the plaintiffs’ requests for a preliminary injunction, the district court found that the plaintiffs’ concerns regarding the long-term negative impacts of oil and gas extraction, including impact on global climate change, were not relevant to consideration of the preliminary injunction motions because the winter 2023 construction activities would not include extraction. The court found that the plaintiffs’ other allegations of harm did not establish a likelihood of irreparable harm. The court also weighed environmental harm from the winter construction activities against economic damages, benefits to most subsistence users, and state and federal legislative statements that the Willow Project was in the public interest, and found that the balance of the equities and public interest “tip sharply against preliminary injunctive relief.” The court did not reach the issue of whether the plaintiffs were likely to succeed on the merits.

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Two lawsuits were filed in the federal district court for the District of Alaska challenging the U.S. Bureau of Land Management’s (BLM’s) approval of the Willow Master Development Plan (Willow Project) in the National Petroleum Reserve in Alaska. The Willow Project consists of three drilling sites and related support infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads, and pipelines. BLM issued a new record of decision authorizing the project on March 13, 2023 after preparing a supplemental EIS on remand from a 2021 district court decision that found shortcomings in BLM’s 2020 review of the project, including failure to adequately assess downstream greenhouse gas emissions from foreign oil consumption. The plaintiffs in one lawsuit are six conservation groups led by Sovereign Iñupiat for a Living Arctic. They assert claims under NEPA, the National Petroleum Reserves Production Act (NPRPA), the Alaska National Interest Lands Conservation Act, and the Endangered Species Act. They assert, among other things, that BLM failed to consider a reasonable range of alternatives in the supplemental EIS, including alternatives that would meaningfully reduce greenhouse gas emissions and climate impacts. They also assert that BLM failed to take a hard look at the Willow Project’s potential direct, indirect, and cumulative impacts, including impacts on greenhouse gas emissions and climate change. In addition, the complaint asserts that the U.S. Fish and Wildlife Service failed to address impacts to polar bears as a result of greenhouse gas emissions produced from the Willow Project.