Posted on 12/01/2008 5:56:27 AM PST by thackney
Nearly a year after it heard oral arguments in the appeals against the U.S. Minerals Management Service approval of Shell’s Beaufort Sea exploration plan, the U.S. Court of Appeals for the 9th Circuit has finally issued its decision in the case. On Nov. 20 the court issued a 57-page opinion in which a majority of a panel of three judges from the court upheld the appeals, saying that MMS had not conducted an adequate environmental evaluation of Shell’s plan. One judge dissented from the opinion.
The 9th Circuit lawsuit merged three different appeals involving the North Slope Borough, the Alaska Eskimo Whaling Commission and several environmental organizations.
The court requires that MMS prepare a revised environmental assessment for Shell’s exploration plan and, if necessary, prepare an environmental impact statement before the plan can be approved. The court also denied a request by Shell to lift the injunction that the court has placed on the company’s planned Beaufort Sea drilling since August 2007. Shell wants to drill some exploration wells in its Sivulliq prospect on the western side of Camden Bay offshore the eastern North Slope.
However, the court did uphold the MMS analysis of the potential impact of oil spills that might result from Shell’s drilling.
“Despite any other insufficiencies, MMS’s environmental analysis does adequately examine the impacts of a potential crude oil spill,” said Judge Dorothy Nelson in the court’s majority opinion. “…The agency’s assessment makes the proper inquiry into the risk of an oil spill, and no further analysis is required in relationship to this exploration plan.”
MMS disappointed
MMS has expressed its disappointment at the court’s decision. The agency said that it had completed an extensive environmental assessment of Shell’s exploration proposals, supported by a 1,596-page environmental impact assessment.
“Over the past 30 years MMS has funded nearly $300 million for environmental studies concerning Alaska waters,” MMS said. “… Alaska and its adjacent offshore areas have great potential for increasing our energy security.”
On the other hand, Mayor Edward Itta of the North Slope Borough welcomed the court ruling.
“The court has confirmed the legitimacy of our argument,” Itta said. “It agreed that MMS did a woefully inadequate job in its assessment of the potential impacts to the bowhead whale and other marine life, as well as to our traditional bowhead subsistence harvest. I don’t think MMS took their job seriously enough. Maybe now they will.”
Shell spokeswoman Darci Sinclair expressed her company’s disappointment.
“We believe the MMS did a thorough job and that Shell has met or exceeded requirements for responsible Arctic exploration,” Sinclair said. “Shell is committed to operating safely and responsibly and will continue to comply with all regulatory requirements.”
The court decision will extend the time that it takes to bring much-needed U.S. oil production on line, she said.
“While we assess our options, it’s important to remember that we hope to make Alaska a long-term commitment for Shell,” Sinclair said. “We believe developing offshore Alaska is the right decision for the citizens of Alaska and the state’s economy and will help provide a secure energy future for the United States.”
Another EIS?
At the core of the appeals against approval of Shell’s exploration plan lay the question of whether the EIS that MMS conducted for its Beaufort Sea lease sale program analyzed in sufficient detail the types of activity that Shell proposed in its plan, or whether the exploration plan should have triggered a new EIS. Under the terms of the National Environmental Policy Act, MMS uses a tiered approach to environmental permitting, in which a broad EIS prior to the start of an offshore lease sale program determines whether lease sales should proceed. Further EISs may be done subsequently, targeting specific exploration or development activities that might have a significant environmental impact not fully considered in the earlier, broader EIS. A proposal to develop an offshore oil field, for example, would almost certainly trigger the need for a new EIS specific to that development.
The development of an EIS is a complex process that typically takes several years to complete.
MMS had published a comprehensive multi-sale EIS for its Beaufort Sea oil and gas leasing program. Then, when Shell submitted its Beaufort Sea exploration plan, MMS conducted an environmental assessment that concluded that the company’s planned operations came within the scope of the multi-sale EIS and could proceed.
But during oral arguments in the 9th Circuit case the appellants vehemently disagreed with the MMS position.
“Here you have a cursory EA (environmental assessment) that fails to assess the actual drilling proposals’ effects on whales and completely refuses to analyze the potential for a crude oil spill and its effects on that environment,” Dierdre McDonnell, the attorney representing the Alaska Wilderness League and environmental organization REDOIL, told the judges.
“The Minerals Management Service simply does not know enough about the potential impact on the Arctic environment to approve a three-year exploration plan and environmental assessment,” said Christopher Winter, attorney for the North Slope Borough and Alaska Eskimo Whaling Commission. The noise from drill ships and icebreakers would deflect bowhead whales from their normal migration routes, thus creating a major safety risk to whaling captains and crews and threatening a key source of food for North Slope communities, Winter said.
MMS for its part said that it had adequately taken account of the potential impacts of Shell’s planned Beaufort Sea drilling activities.
MMS has imposed very specific mitigation measures through the terms of its leases, said David Shilton, attorney for MMS. One of those measures is the requirement for a conflict avoidance agreement with the subsistence hunters, he said.
“Shell must sit down with the subsistence whalers and hammer out an agreement to protect their subsistence hunting, and that is something that has been done over the years successfully,” Shilton said. “… This year there was a conflict avoidance agreement which would have had Shell pull all of their assets off of the drilling for the time that whale hunters were out there.”
Court agreed
The majority of the judges on the 9th Circuit panel agreed with the petitioners’ concerns about the potential impact on wildlife of noise originating from specific Beaufort Sea drilling activities. “MMS has not provided a convincing statement of reasons explaining why Shell’s exploratory drilling plans at these specific sites would have an insignificant impact on bowhead whales and Inupiat subsistence activities,” Nelson said. “As a result, we are unpersuaded that MMS took the requisite ‘hard look’ at the environmental impact of this project. There remain substantial questions as to whether Shell’s plan may cause significant harm to the people and wildlife of the Beaufort Sea region.”
The court accepted the MMS tiered approach to environmental permitting under the National Environmental Policy Act, and said that the agency could conclude that a new environmental impact statement would not be needed for Shell’s exploration plan if the agency could make a finding of no significant impact, or FONSI, for Shell’s exploration activities.
But the judges quoted case law that says “An EIS must be prepared if ‘substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.’ … If an agency finds an EIS is not required and issues a FONSI, it must provide a ‘convincing statement of reasons’ to explain its decision.” And the judges said that the MMS environmental assessment of Shell’s Beaufort Sea exploration plan had failed to adequately consider several potential impacts of Shell’s drilling activities.
Impact of noise
In particular, there is insufficient analysis of the impact of drilling-associated noise on bowhead whales’ migration routes — Shell’s exploration plan envisages the use of two drilling vessels and two associated icebreakers for the Beaufort Sea drilling, Nelson said. “The multi-sale EIS discusses, in a general sense, the impact of noise on bowhead whales, citing a number of studies that have been conducted on the topic,” Nelson said. “However, that document contains no studies that analyze the effects of noise from a project with two drillships and two icebreakers. … Moreover, studies cited in the multisale EIS use varying methodologies and come to inconclusive results.”
The environmental assessment for Shell’s exploration plan “gives only a brief description of the level of noise the individual drillships in Shell’s proposal could make, but does not examine the combined effect of all vessels operating simultaneously,” Nelson said. And there is no evidence that a National Marine Fisheries Services biological opinion cited by MMS “relies on studies involving two drillships and two icebreakers,” she said.
The court majority opinion also says that MMS has recognized that even a single operating drillship can deflect migrating bowhead whales.
And the judges discounted the use of a whale monitoring program as a means of mitigating the impacts of drilling noise. The monitoring program proposed to accompany the Shell drilling “could detect impacts after they occur” rather than providing a buffer against the impacts, Nelson said.
“In sum, MMS abrogated its NEPA duties because neither the environmental assessment nor the documents it tiers to consider the specific parameters and potential dangers of Shell’s project,” Nelson said. “There is substantial uncertainty about how various levels of noise would affect whales and their migratory patterns.”
Subsistence hunting
MMS has also failed to take a “hard look” at the impact of Shell’s project on subsistence hunting, Nelson said. And relying on annual conflict agreements between Shell and the whale hunters does not meet the required legal standard, she said.
“The conflict avoidance agreement process is too vague and uncertain as a mitigation measure to justify the agency’s decision not to engage in further analysis,” Nelson said. “Conflict avoidance agreements come about through a voluntary process and are renegotiated every year. The agency is not party to the process, and any agreement made is not legally binding.”
And neither the EIS for the lease sale nor the environmental assessment for Shell’s exploration plan adequately considered potential impacts on the subsistence hunting of mammals other than bowhead whales, or on subsistence fishing, Nelson said.
“The EA ultimately concludes that Inupiat communities may suffer cultural consequences from drilling activities, but does not state whether these effects will be ‘significant,’” Nelson said. “Instead the EA relies on mitigation measures in the hopes that they would ameliorate any harm done. … These mitigation measures do not go far enough to rectify the potential that Shell’s project will cause substantial harm to Inupiat communities on Alaska’s northern shore.”
The court also said that, by approving Shell’s exploration plan without the company specifying exactly which wells it would drill in each year of the plan, MMS had violated the Outer Continental Shelf Lands Act.
Dissenting opinion
Judge Carlos Bea dissented from the majority decision, saying that the court could not overturn the MMS exploration plan approval on the grounds that the approval was arbitrary or capricious.
For its Beaufort Sea lease sale program MMS had prepared a 1,500-page multi-sale environmental impact statement that “discussed potential environmental effects from the development of each of Shell’s lease-sale sites,” Bea said. And, for Shell’s exploration plan, the agency had prepared an additional 100-page environmental assessment “that supplemented the multi-sale EIS for two of Shell’s lease plots about which MMS decided additional information was needed,” he said.
The petitioners and the majority on the panel of judges do not want MMS to “use its extensive prior work to inform its decisions on individual leases,” but instead they want the agency to prepare a new EIS for each lease, Bea said.
“This is worse than re-inventing the wheel: this is re-inventing the wheel for each wheel of the car,” he said.
The process will be expensive, time-consuming and largely duplicative, thus defeating the purpose of National Environmental Policy Act regulations that encourage tiering of NEPA documents, he said.
MMS Expertise
And Bea said that it was not appropriate for the court to overrule the MMS expertise regarding the interpretation of research results relating to the impacts of exploration activities on bowhead whales. Instead, the court’s role is to verify that the agency has taken the appropriate factors into consideration, considered all important aspects of the problem and offered a plausible explanation for its decision, he said.
“MMS gave a ‘hard look,’ by any stretch of the term, to whether Shell’s plans would disrupt the bowhead whale’s migratory habits,” Bea said. “The expert agency (MMS) to which Congress delegated its authority concluded Shell’s plan would not disrupt the bowhead whales to an extent necessary to require an additional costly EIS (or ‘revised’ EA).”
Bea said that the multi-sale EIS had also taken into consideration the cumulative impacts of multiple operations that might result from Beaufort Sea lease sales.
And Beau dismissed the majority argument that Shell should have precisely specified the location of each well to be drilled in each year of the exploration plan. The Outer Continental Shelf Lands Act allows MMS some discretion in the amount of detail that an exploration plan need contain, while the type of well location information that Shell had provided was sufficient to satisfy MMS regulations, he said.
“The majority’s demand (that) Shell provide exact locations of wells before approval of its exploration plan, when those exact locations depend on what happens with the earlier wells which must be explored pursuant to the exploration plan, is a catch-22,” Bea said.
Bea also said that the appeals should be dismissed because three of the petitioners had filed their appeals more than 60 days after MMS approval of Shell’s exploration plan, thus exceeding the time allowed under the applicable statute of limitations. The petitioners did file appeals with Interior Board of Land Appeals within the required 60 days. However, under federal law, administrative appeals relating to Beaufort Sea outer continental shelf exploration have to be filed with the 9th Circuit court — the appeals were eventually filed in the court 96 days after the MMS decision.
The majority of the 9th Circuit panel of judges took an alternative view that during the period that the appeals were being considered by the Interior Board of Land Appeals the appeals were in effect “tolled,” or placed on hold. As a consequence, the statutory 60-day period for appeal of the MMS decision was not exceeded, the majority said.
Gas prices WILL go up....
Meanwhile, Russia and China are prepping to drill off our southern coast in the Gulf of Mexico, and the Russians are staking their claim to the upper Arctic. And we sit with our hands tied.
We are so f***ing hamstrung by enviro whackos and agenda-driven, activist judges we can’t seem to get anything done anymore as a nation.
It's your complicity that got this nation into the mess it's now in.
Washington: you're next. Vacate those offices by mid-week. Your fired, through, kaput!
We'er fed up to the gills governement. Begone!
It's your complicity that got this nation into the mess it's now in.
Washington: you're next. Vacate those offices by mid-week. Your fired, through, kaput!
We'er fed up to the gills governement. Begone!
Hiccup?
A sad state of affairs when the Japanese have been slaughtering hundreds of whales in the antartic waters, presumeably waters that are “legally bannned to whale hunters”. The “reasons” and technicalities the environmentalists have halted America’s energy pursuits offshore and within the western lands has nothing to do with “’saving” anything, this is all a power play by the leftists who simply want to further weaken America and shut down any energy independence, simply outrageous and planned by the Democrats for many decades. Obama will concur, agree and support any policies seeking to comply with the enviro movement and there is nothing to stop this aggression.
Think about it
The OPEC minister will look you in the eyes and state: ‘ We are at war with you infidels. Have been since the embargo in the 1970s. You are so arrogant you haven’t even recognized it. You have more missiles, bombs, and technology; so we are fighting with the best weapon we have and extracting on a net basis about $700 billion/year out of your economy. We will destroy you! Death to the infidels! While I am here I would like to thank you for the following:
1) Not developing your 250-300 year supply of oil shale and tarsands. we know if you did this, it would create millions of jobs for US citizens, expand your engineering capabilities, and keep the wealth in the US instead of sending it to us to finance our war against you stupid bastards.
2) Thanks for limiting defense dept. purchases of oilsands from your neighbors to the north. We love it when you confuse your allies.
3) Thanks for over regulating every segment of your economy and thus delaying, by decades, the development of alternate fuel technologies.
4) Thanks for limiting drilling off your coasts, in Alaska , and anywhere there is a bug, bird, fish, or plant that might be inconvenienced. Better that your people suffer! Glad to see our lobbying efforts have been so effective.
5) Corn based Ethanol. Praise Allah for this sham program! Perhaps you will destroy yourself from the inside with theses types of policies. This is a gift from Allah, praise his name! We never would have thought of this one! This is better than when you pay your farmers NOT TO GROW FOOD. Have them use more energy to create less energy, and simultaneously drive food prices through the roof.
Thank you US Congress!!!!
6) Thank you letting us fleece you without end. You will be glad to know we have been accumulating shares in your banks, real estate, and publicly held companies. We also finance a good portion of your debt and now manipulate your markets, currency, and economies to our benefit.
7) Finally, thank you for allowing us to nominate one of our own for president of the United States! We have donated millions to the election fund of Barack Obama-a man who is anti-American, anti-military, anti-Christian, and anti-white. Obama will be the ideal president for us, and we will donate billions more, if necessary to get him elected. When Obama is your president, we will decimate your military, open your borders to the people of Islam, set up terrorist groups in all of your cities, build mosques throughout your land, and begin the conversion of American people to Islam. In a short time, you will be working for us!
You may wonder why I am giving away all of our secrets. I do not hesitate to tell you our plans, because I’m convinced that Americans are too stupid to recognize the truth, even when it is spread out before them. I believe the next election will prove me right, and soon I will be telling you what you can and cannot do. Wait and see America !
After we take over your country, I will read this warning to again-this time on your national television. I will do this just to let you know how blind and pathetic you really are!
THANK YOU AMERICA !’
‘Native’s rights to hunt whales outweigh the exploration for Oil and Natural Gas.’
Pretty funny the enviro’s arguments center around whale _hunting_. Bet that makes their heads hurt. ;-)
Typical obstructionist nonsense. I’m pretty sure the oil companies could provide equivalent food to the affected communities for a small fraction of what the studies and delays cost. And really, who cares about national/energy security anyhow? 0bama’s coming! Free energy for all, just like health care! /hurl
Argh!!!
9th Circus decision... Figures
There only one thing left to do: tap our strategic whale oil reserves now.
It’s interesting that when I catch a segment on the Inuit settlements in the far north, almost all of the folks are wearing synthetic parkas, snowboots and other gear made out of petroleum based materials, drive snow MACHINES (hat tip to Sarah!), use generators, modern rifles, etc., etc., the list seems endless. This is not a put-down of these fascinating people, mearly an observation of what they seem to PREFER and more power to them!
The Iditarod has all synthetic based gear also, this year only one participant built his own sled and it was of modern materials but lashed at the joints and the runners had replaceable plastic strips to adapt to the conditions like all the others. Lots of veterans among those people too, it’s not like they live in a vacuum.
It is the basis of the defense and supported by the local native government. See the article above for comments from Mayor Edward Itta of the North Slope Borough.
The Alaska Eskimo Whaling Commission has also been part of the legal filings to stop the exploration.
How many barrels are required to be considered serious?
I don't know.But it appears that you're in the oil business so perhaps you could use your definition of the word when considering a response.Of course,the Sierra Fund would consider anything more than 30 cc's "serious...but I most assuredly wouldn't.
I *do* believe,however,that if the Eskimos can prove that they've been harmed in any noteworthy way they should be justly compensated.After all,I'm not a *total* racist.
News to me! Thanks.
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