Tuesday, May 15, 2007

Polar Bear listing and old ANWR drilling debates

As many are aware, the polar bear was recently list by the US Fish and Wildlife Service as "threatened." Many are weighing in with opinions. Not so long ago, I conducted a thought exercise wherein I acted in the role of a lawyer ( I know, strange fantasy indeed) who was legal council to a petroleum firm in the midst of deciding how to proceed given the BLM's recent decisions on drilling in ANWR. For reading pleasure, here it is:


TO: American Petroleum Institute Board of Directors/CEO/CFO

FROM: Chief Counsel to the American Petroleum Institute

RE: Potential Legal Challenges to BLM Decision re Drilling in ANWR

DATE: 20 Dec 2006

Question Presented

(a) Under which laws could environmentalists and other opponents challenge private oil

exploration at ANWR? Specify which claims they are likely to make, and, given the

facts above, discuss their chances of success.

(b) What difference, if any, would it make if the polar bear were listed as threatened?

Short Answer

(a) There are a number of legal challenges that can be expected regarding environmental concerns over exploration of ANWR. They range from obvious challenges, such as compatibility with National Wildlife Refuge purposes[1], Endangered Species Act (ESA)[2] and Marine Mammal Protection Act (MMPA)[3] protections, National Environmental Policy Act (NEPA)[4] compliance, ambiguity over lead agency status within the Department of the Interior, speculation on the Wilderness Act[5], and enforceability of the International Polar Bear Agreement[6], to more subtle and nuanced legal challenges involving Section 311 and Section 404 of the Clean Water Act (CWA)[7], dealing with oil spills and wetland protections respectively, and Native Lands issues.

(b) If the polar bear were listed as a threatened species, the voracity of a number of these legal challenges would be increased significantly.

Statement of Facts

The debate continues as to whether to allow energy development in the Arctic National Wildlife Refuge (ANWR). Sharp increases in recent energy prices, terrorist attacks, and energy infrastructure damage from hurricanes have intensified debate. Few onshore US areas are as interesting to industry as is ANWR. At the same time, few areas are considered more worthy of protection in the eyes of conservation and some Native groups. The refuge is rich in fauna, flora, and oil extraction potential. Current law prohibits oil and gas leasing in the Refuge.[8]

Opponents of drilling argue that intrusions on such a remarkable ecosystem are not justifiable under any circumstances; that oil found would provide little energy security and could be replaced by cost-effective alternatives, including conservation; and that job claims are exaggerated. They maintain that development’s footprints would have a greater impact than is implied by a limit on total acreage.[9]

The Refuge, especially the coastal plain, is home to a wide variety of plants and animals. The numbers of polar bears, caribou, grizzly bears, wolves, migratory birds, and other species in ANWR has led some to call the area “America’s Serengeti,”[10] and several species found in the area are protected by international treaties or agreements.[11]

The legal history of the ANWR area, consistent with the current debate, is politically charged. In 1957, an application was filed to the withdraw lands in northeastern Alaska to create an “Arctic National Wildlife Range. In 1960, after statehood, the Secretary of the Interior reserved the area as the Arctic National Wildlife Range.[12] The potential for oil and gas leasing was expressly preserved.

In 1971, Congress enacted the Alaska Native Claims Settlement Act[13] to resolve all Native aboriginal land claims against the US. ANCSA provided for payments and created Village Corporations that received 22 million surface acres of lands in Alaska, including some in the National Wildlife Refuge System. Subsurface rights in Refuges were not available.

The Alaska National Interest Lands Conservation Act of 1980[14] renamed the Range as the Arctic National Wildlife Refuge, and expanded it to include another 9.2 million acres. Though Section 702(3) designated much of the original Refuge as wilderness, the coastal plain and the newer portions of the Refuge did not receive wilderness status. Instead, Congress postponed decisions on the development or further protection of the coastal plain. Section 1002 directed a study of ANWR’s “coastal plain” and its resources. Section 1003 of ANILCA prohibited oil and gas development in the entire Refuge unless authorized by an act of Congress.


1. The most obvious potential challenge arises from the order that Bureau of Land Management (BLM) decide whether to authorize drilling in ANWR. Opponents are likely to take issue with the designation of BLM as the lead agency in the ANWR decision. Under the National Wildlife Refuge System Administration Act[15] it is the Secretary of the Interior acting “through the US Fish and Wildlife Service” who administers Refuge lands. This language was added by Congress in 1976 to ensure that management of refuges could not be assigned to other agencies.[16] Under current law, the Director of the FWS may approve an activity only if it is compatible with the purposes for which the System and the particular unit were created.[17] The Refuge Administration Act does not close refuges to possible oil and gas leasing, but many individual units are withdrawn and leasing is rare.

Although BLM, another agency also in the Department of the Interior, is often the mineral development manager for the US,[18] the Mineral Leasing Act[19] does not specify that the Secretary of the Interior must administer leasing through them. Current mineral leasing regulations recognize the authority of FWS over the wildlife resources on refuge lands and, with respect to oil and gas leasing in Refuges, reserve considerable authority to the Director of FWS.[20]

Given that there are no statutory requirements that mineral leasing be through BLM, and that since 1976 there is a statutory requirement that management of refuges be by the Secretary through FWS, it is not clear by what authority BLM is the lead agency with respect to leasing in refuges. Even if the Refuge Administration Act could be interpreted as only addressing the surface management of refuges, one could ask whether the approval of the Secretary of leasing in refuges must be given through FWS, with the concurrence of the Director of FWS.[21]

Reducing the role of FWS by placing BLM in charge of the leasing program for ANWR could separate the mineral development aspects from the biological/wildlife purposes and the expertise of FWS personnel, possibly resulting in the coastal plain of ANWR receiving less protection than lands in other refuges. It is difficult to forecast whether or not congress is prepared to legislate in this direction, but it is clearly possible, and might best represent the American Petroleum Institutes’ interests.

2. A second obvious and likely challenge is based on the argument that oil drilling is not an intended or compatible use for National Wildlife Refuges. Under current law for the management of national wildlife refuges,[22] and under 43 C.F.R. §3101.5-3 for Alaskan refuges specifically, an activity may be allowed in a refuge only if it is compatible with the purposes of the particular Refuge and with those of the Refuge System as a whole. New proposed legislation[23] states that the “energy leasing program and activities in the coastal plain are deemed to be compatible with the purposes for which ANWR was established and that no further findings or decisions are required to implement this determination,” apparently eliminating the usual compatibility determination processes. However, the extent of “activities” that might be compatible is debatable and could include support activities, such as construction and operation of port facilities, staging areas, and personnel centers. These support activities could trigger legal challenges and stand reasonable chances of success given the history of ANWR, and the history and intent of the National Wildlife Refuge System coupled with public attachment.

3. BLM approved oil exploration and drilling in the 1002 Area of ANWR without further hearing, investigation, or public comment. BLM stated that the concerns of environmentalists rely on outdated data and, regardless of environmental impact, established a linkage between foreign oil dependence and national sustainable development. This decision will likely face legal challenges under NEPA.

The National Environmental Policy Act of 1969[24] requires the preparation of an environmental impact statement (EIS) to examine major federal actions with significant effects on the environment, and to provide public involvement in agency decisions. The last full EIS examining development in ANWR was completed in 1987. Some assert that a new EIS is needed to support development now. NEPA requires an EIS to analyze an array of alternatives, including a “no action” alternative. Some development supporters want the process streamlined, in light of past analyses and to hasten production. Opponents, and NEPA supporters, argue that the 19-year gap and changed circumstances since the last analysis require an update, and stress flaws in the 1987 FLEIS.

One version of proposed new legislation to address this concern would deem the 1987 FLEIS to satisfy NEPA requirements with respect to pre-lease activities and the development of leasing regulations, and require the Secretary to prepare an EIS of all other actions before the first lease sale.[25] Alternatives would be limited to two choices, a preferred leasing action and a “single leasing alternative.” Compliance would satisfy all requirements to analyze the environmental effects of proposed leasing. Another House bill was essentially identical.[26] A Senate bill has similar provisions, but did not expressly require an EIS for leasing.[27]

4. Perhaps the most volatile issues, and the most likely source of legal challenges, are the protected, endangered, and threatened wildlife issues. The list of charismatic species inhabiting ANWR is indeed impressive. Some, including the polar bear, are facing reductions in numbers globally. The prospect of one of these charismatic species, most likely the polar bear, being listed as “threatened or endangered” under the ESA is, at minimum, significantly problematic.

Concern regarding the protection of marine mammals, including the polar bear, grew in the 1960s. In 1972, the Marine Mammal Protection Act (MMPA) was enacted. In 1973, the US, Canada, Denmark, Norway and the former USSR developed an international agreement on polar bear conservation.[28] This Agreement was ratified by the US in 1976. It prohibits the “take” of polar bears, defined as “hunting, killing and capturing.”[29] Article III describes five exceptions to the taking prohibition, including several relating to traditional take by a party’s nationals; take for scientific purposes, for conservation purposes, or to prevent serious disturbance of the management of other living resources.

Critics assert that oil and gas development in the Arctic may violate the Agreement because development could result in the death of polar bears. While the MMPA permits the unintentional taking of polar bears incidental to other lawful activities, such take would be inconsistent with the Agreement because there is no exception for such take in Article I or III. “If a lethal take were to occur during activities conducted under incidental take authority, the United States arguably could be considered to not be in compliance with the Agreement.”[30] According to animal law scholar Donald Baur, “...because there is potential for polar bears to be lethally taken incidental to activities such as oil and gas operations, it is necessary to either amend the Agreement or to amend the MMPA to prohibit such takes if consistency with the Agreement is the goal.”[31]

All of this is of course a moot point if the polar bear is listed as threatened or endangered under ESA. Currently, only two other species are listed under the ESA in ANWR, the peregrine falcon and the bowhead whale, neither of which would be significantly affected by development. The polar bear, on the other hand, is known to den in the 2002 area of ANWR. In that case, sections 9 and 10 of ESA would come into play, specifically provisions that prevent the taking or harming of species, including acts which actually kills or injures wildlife such as significant habitat modification or degradation that significantly impairs essential behavioral patterns, including breeding, feeding, or sheltering.[32] It would be difficult to prove that infrastructure development for oil and gas drilling would in no way modify or degrade habitat.

5. Other more peripheral legal challenges potentially exist, among them the aforementioned Clean Water Act as it relates to oil spills and wetlands, the Wilderness Act and possible wilderness designation actions for the 2002 section, and native lands issues. However, as these are far less likely to arise, they are not covered in detail in this memo.[33]


The American Petroleum Institute should anticipate legal challenges to oil and gas drilling in ANWR as described above. In efforts to keep legal options “open” and protect interests, it may be advisable to study proposed legislation that takes favorable positions as regards items 1-3 and marshal lobbying efforts accordingly and as appropriate. In terms of item 4, it may be prudent to commission scientific studies that demonstrate polar bear resilience to human activity and adaptability to various habitat types, as well as build alliances with other industries that are favorable to updating ESA. It may also be advisable to consider a legal defense fund.

[8] CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the 109th Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.

[11] Basic information on the Refuge can be found in CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues, by M. Lynne Corn, coordinator, (hereafter cited as CRS Report RL31278).

[12] Public Land Order 2214.

[13] ANCSA, P.L. 92-203

[14] ANILCA, P.L.96-487, 94 Stat. 2371

[15] 16 U.S.C. § 668dd(a)(1).

[16] P.L. 94-223, 90 Stat. 199.

[17] 16 U.S.C. 668dd(d).

[18] See Secretarial Order 3087, December 2, 1982, as amended February 7, 1983 (48 Fed. Reg. 8983).

[20] See 43 C.F.R. § 3101.5-1 and 43 C.F.R. § 3101.5-4.

[21] This observation and resulting legal question/argument from CRS Report Legal Issues Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge by Pamela Baldwin, Legislative Attorney, American Law Division, 2002, p5.

[22] 16 U.S.C.§668dd

[23] Section 3(c) of H.R. 5429, §3(c) of H.R. 2863, and §4001(c) of S. 1932

[24] NEPA, P.L. 91-190; 43 U.S.C. §§4321-4347

[25] Section 3(c) of H.R. 5429

[26] H.R. 2863 (Division C, §3(c))

[27] S. 1932 (§4001(c))

[28] Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (Nov.

15, 1973).

[29] Id., art.I(2).

[30] Draft Report to Congress on Status of United States Implementation of the 1073

International Agreement on the Conservation of Polar Bears, Prepared by U.S. Fish and

Wildlife Service, Alaska Region, October, 1997.

[31] Donald C. Baur, Reconciling Polar Bear Protection under United States Laws and the

International Agreement for the Conservation of Polar Bears, 2 ANIMAL LAW 9, 85


[32] 50 CFR § 17.3 (1994)

[33] More information available in these subjects upon request.