Even if in its final days, the Trump administration is successful in selling oil and gas leases in Alaska’s Arctic National Wildlife Refuge, the leases may never be issued, legal and other experts said Tuesday.
The leases would face strong and possibly insurmountable headwinds from two directions: the incoming Biden administration and the courts, they said.
Under new leadership, several federal agencies could reject leases that, even if purchased at an auction a few days before the opening day, would go through a review, a process that typically takes several months. .
During the campaign, Mr. Biden vowed to oppose oil and gas development in the refuge, a vast expanse of virtually untouched land in northeast Alaska that’s home to polar bears, caribou and d ‘other wild animals.
“President-elect Biden has made it clear that it is important for him to protect the Arctic refuge from drilling,” said Brook Brisson, senior counsel at Trustees for Alaska, a public interest law firm in non-profit. “We are confident that this means his administration will use its executive authority to do just that.”
But if, for some reason, after these reviews, the new administration did not reject the leases, they could also be overturned in court. There are already four lawsuits against the Trump administration’s actions related to oil and gas development in the refuge, including one brought by Ms. Brisson’s group on behalf of Alaska’s native and environmental organizations.
“Whoever wins these leases will enter a minefield of litigation,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School.
Mr Gerrard said the Trump administration has lost several similar cases involving the leasing of oil and gas in Western states, largely due to its mismanagement of the required legal steps. “The haste with which he is trying to pass these leases could lead to even more mistakes that opponents’ lawyers will jump on,” he said.
With the publication of a “call for nominations” in the Federal Register on Tuesday, the Bureau of Land Management officially launched the shelter’s hire-purchase program. The document seeks comments from oil companies and others on their interest in leasing specific portions of the refuge’s coastal plain, which covers 1.5 million acres along the Arctic Ocean.
The region is believed to have reserves containing billions of gallons of oil. For decades it has been legally protected from drilling, but it was opened up to potential development in 2017 by the administration and the Republican-led Congress.
The decision to launch the hire-purchase program has been hailed by oil industry groups and members of the Alaska Congressional delegation, who have long continued to drill in the refuge for jobs and income. that he could bring. The Home Office, which includes the Bureau of Land Management, said it had “taken an important step in meeting our obligations by determining where and under what conditions the oil and gas development program will take place.”
After the comment period, which ends Dec. 17, the office could quickly announce a sale that could take place 30 days later – or just days before Jan. 20, when Mr. Trump’s term ends.
It’s a very tight deadline, which would likely force the Bureau of Land Management to ignore the comments for the most part and offer rights to all of the coastal plain plots for sale. The rental plan’s environmental impact statement, which was approved by the Home Office in August, recommended that all leaflets be made available.
The auction would take place over a single day, using sealed auctions. The regulations require that successful bids be reviewed by the Bureau of Land Management to determine, among other things, the bidders’ abilities to undertake oil and gas exploration in the field. Winning bids would also be forwarded to the Department of Justice for consideration of possible antitrust issues.
“Usually after an auction, it takes two to three months to fulfill the leases,” said Niel Lawrence, Alaska director for the Natural Resources Defense Council. Even preparing the documents to be signed can be time consuming, he said.
That timeline would push scrutiny into the early months of the Biden administration, he said. Even though the Department of Justice’s review found no antitrust issues, the Bureau of Land Management could reject the leases, he said.
But Mr. Lawrence said there was always the possibility that the Trump administration would flout the rules and accept the leases immediately after the auction.
“No one should underestimate the Trump administration’s desire to cut legal corners,” he said. “It would be unwise to predict that they won’t sign leases between the auction and the grand opening.”
“But that would be downright illegal,” he added, and justifies further legal action.
Numerous legal files have already been filed concerning the administration’s plans for the refuge. The four pending lawsuits were filed after the Home Office approved the final environmental impact statement in August, setting the stage for lease sales.
In addition to that filed by the Alaskan Trustees on behalf of Indigenous groups like the Gwich’in and Alaskan environmental organizations, others have been brought in by national environmental groups including the Audubon Society, the Resource Defense Council and the Center for Biological Diversity, and by state attorneys general.
The various groups claim that the Trump administration’s actions violate a number of laws, including the National Environmental Policy Act, the National Wildlife Sanctuary System Administration Act, and the Administrative Procedures Act , which governs the rules for issuing federal regulations and which prohibits the making of “arbitrary and capricious” rules.
The plaintiffs say the Home Office, the Bureau of Land Management and the Fish and Wildlife Service failed to follow the law to protect the “iconic and sacred” Arctic refuge, as a lawsuit said. The action of the Bureau of Land Management, he said, “threatens the exceptional resources of the Coastal Plain and the sustenance, cultural and spiritual connection between the Gwich’in people and the Coastal Plain.”
“The most glaring legal loophole in this leasing program,” said Mr. Lawrence of the NRDC, “is that Congress has left in place all laws that protect public resources.
“These laws mean that the Bureau of Land Management must minimize the damage it does to the refuge. Instead, they went their way, deciding to lease almost every acre of the Coastal Plain.
Ann Navarro, a former environmental litigator with the law firm Bracewell LLP, said if courts in lease cases decide that the agencies involved are not complying with environmental laws, he could fire the lender. deal with the agency to reconsider the matter, with or without leaving the lease. The agency would have to start the process over.
“I would say this is not a common outcome of litigation, but it certainly can happen,” she said. Once President Biden’s administration begins, she added, they could “even take it upon themselves to reconsider” the leases.
Even if all lawsuits were to fail and the leases became valid, the Biden administration would still have the option of blocking all activity on the coastal plain, experts said.
A lease would give a business the right to explore and extract oil or gas from the land, but the business would still need permits for all activities, like driving trucks across the tundra to survey the land, build a gravel pad for an exploration well. or tap into a water source. And each permit application follows a process that allows an agency, federal or state, to impose requirements or deny the application.