If lease sales happen in the final days of the Trump administration, they may face disputes in court or could be reversed by the Biden administration.
Even if in its waning days the Trump administration succeeds in selling oil and gas leases in the Arctic National Wildlife Refuge in Alaska, the leases may never be issued, legal and other experts said Tuesday.
The leases would face strong and likely insurmountable headwinds from two directions: the incoming Biden administration and the courts, they said.
Under new leadership, several federal agencies could reject the leases, which even if purchased at an auction a few days before Inauguration Day would be subject to review, a process that usually takes several months.
Mr. Biden vowed during the campaign to oppose oil and gas development in the refuge, a vast expanse of virtually untouched land in northeast Alaska that is home to polar bears, caribou and other wildlife.
“President-elect Biden has made it clear that protecting the Arctic refuge from drilling is important to him,” said Brook Brisson, a senior staff attorney with Trustees for Alaska, a nonprofit public-interest law firm. “We trust that means his administration will use its executive authority to do just that.”
But if for some reason after those 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 relating to oil and gas development in the refuge, including one filed by Ms. Brisson’s group on behalf of Alaska Native and environmental organizations.
“Whoever wins these leases will walk into a minefield of litigation,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at the Columbia Law School.
Mr. Gerrard said the Trump administration has lost several similar cases involving oil and gas leasing in Western states, due largely to its poor handling of the required legal steps. “The haste with which it’s trying to ram through these leases could lead to still more mistakes that the opponents’ lawyers will jump on,” he said.
With the publishing of a “call for nominations” in the Federal Register on Tuesday, the Bureau of Land Management officially initiated the lease-sale program for the refuge. The document seeks comment from oil companies and other parties as to their interest in leasing specific parts of the refuge’s coastal plain, which covers 1.5 million acres along the Arctic Ocean.
The area is thought to overlie reserves containing billions of gallons of oil. For decades it was protected by law from drilling, but it was opened to potential development in 2017 by the administration and the Republican-led Congress.
The decision to start the lease-sale program was hailed by oil industry groups and by members of Alaska’s Congressional delegation, who have long pursued drilling in the refuge for the jobs and revenue it could bring. The Interior Department, which includes the Bureau of Land Management, said it had “taken a significant step in meeting our obligations by determining where and under what conditions the oil and gas development program will occur.”
Following the comment period, which ends December 17, the bureau could quickly announce a sale that could be held 30 days later — or just a few days before Jan. 20, when Mr. Trump’s term ends.
That is a very tight time frame, which would probably necessitate the Bureau of Land Management ignoring the comments for the most part and offering rights to all the tracts in the coastal plain for sale. The environmental impact statement for the leasing plan, which was approved by the Interior Department in August, recommended that all tracts should be made available.
The auction would be conducted on a single day, using sealed bids. Regulations call for the winning bids to be reviewed by the Bureau of Land Management to determine, among other things, the bidders’ capabilities for undertaking oil and gas exploration on the land. The winning bids would also be forwarded to the Justice Department to review any possible antitrust issues.
“Ordinarily after an auction it takes two to three months to execute leases,” said Niel Lawrence, Alaska director for the Natural Resources Defense Council. Even preparing the documents for signing can take time, he said.
That timetable would push the review into the early months of the Biden administration, he said. Even if the Justice Department review found no antitrust concerns, the Bureau of Land Management could reject the leases, he said.
But Mr. Lawrence said there was always the possibility that the Trump administration could flout the rules and accept the leases immediately after the auction.
“Nobody should underestimate the Trump administration’s desire to cut legal corners,” he said. “It would be rash to predict that they won’t sign leases between the auction and the inauguration.”
“But that would be flatly illegal,” he added, and grounds for more court action.
Plenty of legal briefs have already been filed concerning the administration’s plans for the refuge. The four current suits were filed after the Interior Department approved the final environmental impact statement in August, setting the stage for the lease sales.
In addition to the one filed by Trustees for Alaska on behalf of Native groups like the Gwich’in and Alaskan environmental organizations, others were brought by national environmental groups including the Audubon Society, the Natural Resources Defense Council and Center for Biological Diversity, and by state attorneys general.
The various groups claim that the actions by the Trump administration violate a number of laws, including the National Environmental Policy Act, the National Wildlife Refuge System Administration Act, and the Administrative Procedures Act, which governs the rules for issuing federal regulations, and which prohibits “arbitrary and capricious” rule-making.
The plaintiffs say that the Department of the Interior, Bureau of Land Management and the Fish and Wildlife Service failed to follow the law to protect the “iconic and sacred” Arctic Refuge, as one suit stated. The action by the Bureau of Land Management, it said, “threatens the exceptional resources of the Coastal Plain and the subsistence, cultural, and spiritual connection between the Gwich’in People and the Coastal Plain.”
“The most glaring legal deficiency in this leasing program,” Mr. Lawrence of N.R.D.C said, “is that Congress left in place all of the laws that protect public resources.”
“Those laws mean the Bureau of Land Management has to minimize the damage it does to the refuge. Instead they went whole hog, deciding to lease nearly every acre of the coastal plain.”
Ann Navarro, a former government environmental litigator now with the law firm Bracewell LLP, said that if courts in lease cases decide the relevant agencies did not comply with environmental laws, it might send the case back to the agency to reconsider the issue, with or without vacating the lease. The agency would have to start the process over again.
“I would say it’s not a common outcome of litigation, but it certainly can happen,” she said. Once President Biden’s administration begins, she added, they could “potentially even take it upon themselves to reconsider” the leases.
Even if all of the lawsuits should fail and the leases become valid, there still would be opportunities for the Biden administration to block any activities in the coastal plain, the experts said.
A lease would give a company the right to explore for and extract oil or gas from the land, but the company would still need permits for any activities, like driving trucks across the tundra to survey the land, building a gravel pad for an exploratory well or tapping into a water source. And every permit application follows a process that allows an agency, federal or state, to impose requirements or reject the application.
Source: The New York Times