a day ago
Appeals court upholds approval of Willow project on Alaska's North Slope
The ConocoPhillips Alaska Inc. building in Anchorage is seen on June 28, 2023. The company has said it will spend at least $7 billion to develop the huge Willow field and that first production is expected by the end of the decade. (Photo by Yereth Rosen/Alaska Beacon)
A federal appeals court on Friday upheld the Biden administration's approval of a major oil development on Alaska's North Slope, even though it identified one flaw with the action.
The 9th U.S. Circuit Court of Appeals, in a divided decision, said the U.S. Bureau of Land Management largely abided by federal laws when it granted approval to ConocoPhillips to develop the huge Willow project.
Despite one problem that the ruling characterized as 'minor,' the approval shall stand, said the majority opinion, written by Judge Ryan D. Nelson.
The ruling allows ConocoPhillips to keep developing Willow, which holds about 600 million barrels of reserves and is slated to produce up to 180,000 barrels per day and be the westernmost operating oil field on the North Slope. And it rejects arguments from environmental and Native plaintiffs who said the BLM approval violated requirements for considering the cumulative and climate impacts of the huge development, impacts to endangered species and other issues.
The identified flaw stems from the BLM's decision to approve a Willow development plan with three drill pads rather than the five ConocoPhillips had proposed. The scaled-back plan approved in 2023 also required ConocoPhillips to give up leases on about 68,000 acres, almost all of that in the ecologically sensitive Teshekpuk Lake area.
During the environmental study process that led to the approval decision, the BLM had expressed the position that it needed to consider full field development rather than piecemeal development, the ruling said. 'And then when it came time to issue the final approval, it never explained whether its adopted alternative satisfied the full field development standard,' the ruling said.
But that was a 'at heart, a procedural, not a substantive violation,' the ruling said. The development approval is to remain in place, the decision said. Overturning the approval is 'unwarranted because the procedural error was minor and the on-the-ground consequences (of vacating it) would be severe,' the decision said.
In a dissenting opinion, Justice Gabriel Sanchez said the flaw was serious enough to justify overturning the permit. 'BLM's errors were more fundamental than simply failing to explain how it applied the full field development standard among the alternatives it reviewed,' he said. The agency wrongly excluded consideration of smaller alternatives when it was deciding whether to allow 'the largest domestic oil drilling project on federal public lands,' he said.
Willow has been the subject of heated national debate. The discovery, on federal leases that date as far back as 1999, has inspired other exploration in the area, as well as hopes for state officials for a development renaissance on the North Slope. Oil production in the region is now less than a quarter of the 2 million-barrel-a-day peak hit in 1988.
Environmental activists, however, have described the project as a 'climate bomb' that will pour substantial new amounts of planet-heating carbon gases into the atmosphere.
Friday's ruling is the latest in a yearslong series of legal challenges that have created roadblocks to Willow development. In 2021, U.S. District Court Sharon Gleason overturned a prior approval of Willow. She ordered the BLM to complete a formal supplemental environmental impact statement to better analyze climate impacts and impacts to threatened polar bears. The 2023 project approval is the product of that supplemental study.
ConocoPhillips, which is already well into Willow construction and plans to spend at least $7 billion on development, described Friday's ruling as good news.
'ConocoPhillips welcomes the 9th Circuit Court of Appeals decision, which allows construction on the Willow project to continue. We recently completed another significant winter construction season, and the project remains on track for first oil in 2029,' company spokesperson Rebecca Boys said by email.
'We look forward to continuing the responsible development of Willow, which will enhance American energy security while expanding local employment opportunities and providing extensive benefits to Alaska Native communities and the State of Alaska.'
Over the past winter season, crews delivered modular structures and worked on road, pad, bridge, work camp and pipeline construction, Boys said.
That work was allowed to proceed because the 9th Circuit Court in December denied the plaintiffs' motion for a restraining order blocking it.
Lawyers for the plaintiffs in the case had mixed responses to Friday's decision.
Some were highly critical.
'This decision is bad news for the planet and anyone who cares about the impacts of industrialization on communities now and in the future,' Bridget Psarianos, an attorney with the environmental law firm Trustees for Alaska, said in a statement.
'The bureau is required under the law to protect the western Arctic's sensitive ecosystem and the subsistence users who rely on them. But the agency did not minimize the harm from this project on the Arctic's people, animals, habitat, and the planet in a real way, in violation of the law. There is too much at stake to gloss over the harm this project will do,' said Psarianos, who is representing some of the plaintiffs.
It will probably be fairly simple for the BLM to address the court-identified flaw, Psarianos said in a follow-up email. The agency could submit a report or a memorandum explaining its reasoning, leaving the approval unaffected, she said.
Other plaintiff representatives portrayed the ruling as a vindication, albeit a partial one.
'Today's ruling is a significant step forward for Alaska's North Slope,' Hallie Templeton, legal director for plaintiff Friends of the Earth, said in a statement. 'We hope that this will push BLM to heed the significant risks that Willow poses and deny it for good. While this should be the final straw for the doomed Willow Project, we will continue fighting to prevent this carbon bomb project from destroying one of our last remaining wild places.'
A spokesperson for the BLM declined to comment, citing the agency's policies on litigation.
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