The Obama administration's plan to extract billions of barrels of oil from Arctic seas off the northwest coast of Alaska hit a roadblock in federal court last week.
The federal appeals court in San Francisco ruled Jan. 22 that the U.S. Bureau of Ocean Energy Management, Regulations, and Enforcement's 's environmental impact study was flawed because it assumed a production level far lower than the potential oil production from the project.
The case centers on a lease sale advanced by the administration of President George W. Bush. Called Lease Sale 193, the 2008 decision affects about 30 million acres of the marine region, an area larger than Pennsylvania.
The sale of 487 exploration leases in Lease Sale 193 produced more than $2.6 billion in revenue for Washington, with about $2.1 billion of that coming from Royal Dutch Shell, one of the world's largest energy companies.
Opponents of the BOEM plan to allow drilling in the area point to the risks it poses to the region's diverse wildlife.
"The melting Chukchi Sea is no place for drillships," Rebecca Noblin, the Center for Biological Diversity's Alaska director, said in a statement. "It’s a place where polar bears hunt for ringed seals, where walruses socialize and bowhead whales make their way to rich feeding grounds."
The opponents, who include 12 conservation groups, one native Alaskan advocacy organization, and one native Alaskan village, argued that, by underestimating the amount of oil that could be extracted from the area if drilling occurred, BOEM was risking a huge oil spill that would devastate that pristine area.
"This mistake means that the EIS gives only the best case scenario for environmental harm," Eric Grafe, an attorney with the public interest law firm Earthjustice, said. "All is based on the number of barrels produced. If they get the number wrong, they understate all those other impacts."
Grafe said that, even if only 1 billion barrels of oil were produced in the area that is subject to the oil lease sale, there would be a 40 percent chance of an oil spill.
"Because it’s so remote and so inaccessible, the assumption is that you’d have to find a significant amount of oil to justify the infrastructure that would have to be put in," he said. "Right now there’s nothing. No roads, no pipelines. It’s a pristine area. It’s precisely because of that absence of infrastructure that it’s so risky to drill there. If there is an oil spill, you’re not going to have the resources to respond to that oil spill and you can’t clean it up in an icy environment anyway."
The federal appeals court panel that heard the case agreed that the government's reliance upon an estimate of 1 billion barrels of oil caused its study of environmental impacts from the drilling activity to be flawed.
"In the case before us, BOEM was fully aware from the very beginning that if one billion barrels could be economically produced, many more barrels could also be economically produced," Judge William Fletcher, the lead author of the appellate panel's opinion, wrote.
There may be as many as 15 billion barrels of oil that are economically viable to extract beneath the Chukchi Sea, according to 1 2011 BOEM analysis.
Environmentalists also point to the contribution to ongoing climate change that extracted oil would make.
"We can’t afford to burn the oil found there," Grafe said. "We shouldn’t be getting more oil out to burn it if we are going to stay within climate change parameters."
Shell commenced drilling in the Chukchi Sea in 2012 but experienced numerous problems. A March 2013 report by the U.S. Department of Interior concluded that Shell committed a series of logistical and planning blunders in connection with its Lease Sale 193-related activities in the Arctic.
"They screwed it up really badly," Grafe said. "Here’s a company saying ‘we’re ready to drill, we can do it safely’ and it’s a giant fiasco. Nothing goes right."
Among those problems:
* a containment dome used to prevent the spread of oil spills that was being tested in Puget Sound was "crushed like a beer can," according to a U.S. Department of Interior official who observed the test;
* a drill ship called the Noble Discoverer slipped anchor and nearly ran aground in Dutch Harbor, AK, then had to quickly be moved from Shell's exploration site in the Chukchi Sea because an ice storm was rapidly approaching;
* U.S. Coast Guard inspectors found a litany of maritime regulation violations on the vessel and later referred its findings to the U.S. Department of Justice;
* the Noble Discoverer later caught fire and exploded while in port in the Aleutian Islands; and
* another drilling ship, the Kulluck, broke free of a tow and ran aground in Kodiak, AK in Dec. 2012. Shell was trying to move the ship to Seattle to avoid paying Alaska property taxes on vessels used for oil and gas exploration.
"Doing that in the winter when there’s lots of storms in the Gulf of Alaska is risky," Grafe said. "But they did it."
The incident involving the Kulluck drill barge remains under investigation by the U.S. Coast Guard.
Under the Outer Continental Shelf Lands Act of 1953 the U.S. Department of Interior has authority over oil and gas exploration and extraction on submerged lands along the country's coasts. That cabinet department, in turn, includes a specialized agency - BOEM - to handle leasing of the submerged lands for oil and gas development activity. BOEM used to be known as the Minerals Management Service. The Obama administration changed its name in 2010, following the oil spill in the Gulf of Mexico.
The Chukchi Sea lease sale dispute will now go back before a U.S. district judge in Alaska. He will decide whether the holders of oil leases in the Chukchi Sea can proceed to drill after a modified environmental impact statement is prepared or whether the lease sales should be voided altogether.
Judge Ralph Beistline had previously rejected BOEM's environmental impact statement in a 2010 decision. Later, after the Obama administration made changes to the EIS and proceeded with Lease Sale 193, Beistline upheld that decision. It was that 2011 order that was reversed by the Ninth Circuit last week.
Grafe said that the appeals court's opinion gives BOEM time to decide whether to abandon the Chukchi Sea leases.
"They could put out a draft EIS and, while they’re doing that process to get a more accurate assessment, not allow any activities to happen on those leases," he explained. "At the end of that EIS process, when we have a document that more accurately informs the public about the risks, they can reconsider the decision about whether the leases should be there."
Grafe was referring to an environmental impact statement, which is the study of the environmental impacts likely to result from a "major federal action," such as marine oil leases, mandated by the National Environmental Policy Act of 1969.
Shell announced this week that it would not attempt to drill in the Chukchi or Beaufort Seas this year.
The case is Native Village of Point Hope v. Jewell, No. 12-35287.