Cherise Oram Stoel Rives LLP

Transcription

1 ESA and NEPA Developments: Impacts on Natural Resource Development in Alaska September 29, 2010 Cherise Oram Stoel Rives LLP

2 Introduction Species Listings How do listings impact development? (hint: delay delay delay) Critical Habitat Pending and planned decisions The real costs of critical habitat NEPA litigation and the OCS

3 Listings Recent listings: Polar bear Rationale = global warming In litigation Cook Inlet beluga whale Pending: Questions over recovery trajectory Walrus (FWS decision fall 2010) Ribbon seal (not warranted) Spotted seal (AK not warranted) Bearded, ringed seals?? Take prohibited Polar bear exception for: MMPA-approved activities Activities outside range (i.e., GHG emissions) Salazar reaffirmed Oral argument - Jan. 10 Consultation (Section 7) Federal approvals, permits Adverse effects likely? Biological opinion: 135 days

4 Critical Habitat Specific areas that contain physical or biological features that are essential to the conservation of the species. Features must be in need of special management considerations or protections. Service must consider economic impact. Service may exclude areas where benefit of exclusion outweighs benefit to species (e.g., economic impacts, national security).

5 Polar bear critical habitat (proposed) October ,000 square miles Barrier Island habitat Terrestrial denning habitat Sea ice habitat Service admits no conservation benefit ESA and MMPA adequately protective FWS will not use to regulate GHG emissions Service recognized O&G activities are not a threat Estimated less than $700K impact through 2039

6 Economic impacts Industry argued broad designation inappropriate EA s determination of no conservation benefit forecloses special management finding Even modest impacts identified by EA outweigh zero benefits Economic impacts missed by EA: Total incremental administrative costs of considering CH is up to $1.35 million (not $185K) EA underestimates number and size of consultations, costs of preparing biological assessments Studies to determine potential impact on critical habitat biological features (up to $300K ea.) EA incorrectly dismisses as too speculative litigation, delay, lost production costs Litigation over final rule, GHG policy expected ($8 million est. for all parties) Project slippage from section 7 consultations, litigation Preparation of EIS = $4M -$12M more than EA, 1-2 year delay Increased risk, uncertainty Foreclosure of projects? No known Alaska or OCS leases granted in critical habitat yet To avoid unnecessary costs with no corresponding benefit, exclude: 1-mile buffer around current and proposed exploration, development, and production sites All active and proposed oil and gas lease sale planning areas

7 Cook Inlet beluga whale critical habitat (proposed) Nearshore foraging and calving (Area 1) Near and offshore feeding and transit (Area 2) Economic analysis estimates under $600K in impacts Underestimates costs, delays, regional impact 7

8 Industry Comments Industry argued for broad exclusion Past harvest, not habitat impacts, responsible for population declines Population has stabilized or increased without critical habitat no special management required Biological features not properly defined, defy meaningful identification (e.g., absence of noise causing abandonment, absence of harmful toxins) Service analysis identified unsupported benefits Resource Development Council economic analysis: Oil and gas impacts alone of $13.9M - $138.8M Secondary effects to region up to $204M Request to exclude: Areas around manmade structures, mixing zones Areas with significant human activity (O&G platforms, shipping lanes, etc.)

9 Future Walrus Critical Habitat?

10 Potential bearded & ringed seal habitat

11 NEPA and Energy Development in Alaska NEPA requires a thoughtful and reasonably thorough analysis of the probable environmental impacts from proposed projects before federal agencies make binding decisions. Requirements are entirely procedural. Provides an additional public notice and comment process Does not dictate federal decision or provide authority for denying or imposing conditions on federal approvals

12 NEPA / OCSLA Integration

13 OCS 55-Year Plan Litigation NEPA review at each stage 4

14 OCS 55-Year Plan Litigation CBD v. US Dep t of the Interior Center for Biological Diversity (CBD) challenged the year plan in D.C. Circuit Court Plan expanded lease offerings in Bering, Beaufort, & Chukchi Seas CBD claimed Interior: Did not adequately consider climate change under OCSLA and NEPA point of use carbon emissions Did not do sufficient baseline research under OCSLA and NEPA ESA failure to consult OCSLA Environmental Sensitivity Analysis insufficient Study looked at shorelines only

15 OCS 55-Year Plan Litigation 2009 D.C. Circuit Court Decision NEPA and ESA claims denied not ripe for review CBD can t challenge NEPA and ESA for 5-year plan until lease sale stage No harm to listed species at planning stage Climate change claims denied No duty to assess consumption effects, only production Interior does not need to consider whether to extract oil and gas at all already decided by Congress in OCSLA BUT, environmental sensitivity analysis insufficient Must look beyond shorelines Interior completing new environmental sensitivity analysis New lease sales in Alaska enjoined pending analysis

16 Lease Sale Litigation

17 Lease Sale 193 (Chukchi Sea): Native Village of Point Hope v. Salazar CBD alleges variety of NEPA, ESA, and APA claims Data gaps, climate change, oil spills, effects on species ConocoPhillips, Shell, State of Alaska intervened Court rejected all of CBD s claims except: BOEMRE must explain why data can t be obtained EIS must analyze potential impacts of natural gas development even though no infrastructure or development plans NEPA issues remanded to BOEMRE; SEIS due in January Original order enjoined all activities; amended to allow proposed exploration activities to proceed Any challenges to SEIS in March; briefed by April; ruling in June Some uncertainty for next summer

18 Exploration Plan Litigation

19 MMPA Incidental Take Litigation CBD challenged MMPA incidental take regulations Polar bear and walrus ESA, MMPA, and NEPA claims Beaufort Sea Case CBD s claims dismissed by Alaska District Court Ninth Circuit upheld decision Chukchi Sea Case CBD s claims dismissed by Alaska District Court CBD appealed; summary judgment briefing completed Pending 9th Circuit decision If 9th Circuit reverses, will raise questions about activities involving polar bear or walrus interactions

20 Questions?