Army announces it will grant easement for DAPL, terminate further environmental review

army-notice-re-dapl-feb-7-2017
This excerpt from a filing in a federal court in Washington, D.C. indicates the Trump regime’s determination to remove the last obstacle to completion of the Dakota Access Pipeline.

The U.S. Army Corps of Engineers said Tuesday that it will grant Energy Transfer Partners, L.P., the developer of the controversial Dakota Access Pipeline, the easement required to build beneath North Dakota’s Lake Oahe.

Further study of environmental impacts of DAPL will also be jettisoned.

A memorandum from a senior official temporarily serving as assistant secretary of the Army said that Donald Trump’s Jan. 24, 2017 executive memorandum demanded the move.

Opponents of DAPL denounced the Trump regime’s move to short-circuit further study of the $3.8 billion dollar pipeline’s impacts on the water supply of native Americans in the Dakotas.

“The Obama administration correctly found that the Tribe’s treaty rights must be respected, and that the easement should not be granted without further review and consideration of alternative crossing locations,” Jan Hasselman, an attorney with Earthjustice who is representing tribal opponents of the project, said. “Trump’s reversal of that decision continues a historic pattern of broken promises to Indian Tribes and a violation of Treaty rights. Trump and his administration will be held accountable in court.”

The decision removes the last hurdle to completion of the fossil fuel infrastructure project.

Work on the project was stopped by the Obama administration last September. Then the Army Corps of Engineers had decided in on Dec. 4, 2016 not to grant the easement beneath Lake Oahe. The agency instead determined that preparation of an environmental impact statement on DAPL was necessary to comply with the National Environmental Policy Act.

The period in which the public could comment on that EIS began on Jan. 18 and was not set to expire until Feb. 20.

Trump, the real estate developer and reality television star who occupies the White House despite losing last November’s popular vote by nearly 3 million votes and despite Russian interference in the Presidential election, owned Energy Transfer Partners stock worth at least $500,000 in 2015.

Bills to permanently block oil exploration off West Coast introduced

heceta-head-lighthouse-near-florence-or-courtesy-wikimedia
Ocean waters near Heceta Head lighthouse in Oregon would be among those protected from fossil fuel exploration activity if a bill introduced by West Coast senators becomes law. Photo courtesy Wikimedia.

California’s senior U.S. senator has introduced a bill that would permanently block fossil fuel exploration on the outer continental shelf along the coasts of California, Oregon, and Washington.

The measure, sponsored by veteran Sen. Dianne Feinstein, D-Calif., was introduced Jan. 4.

In her comments on the Senate floor on the day she introduced S.31 Feinstein highlighted the huge economic impact of coastal counties in California, explaining that they produce 80 percent of the state’s gross domestic product, and said the likely close proximity of any drilling to the beaches makes offshore energy exploration too dangerous.

“The fact is that those of us on the Pacific coast do not want any further offshore oil or gas development,” Feinstein said.

Wildlife conservation concerns are a powerful argument against energy exploration off the Pacific Coast. Among the marine animals that may be adversely affected by oil and natural gas drilling are a variety of sea birds and fish, orcas, otters, salmon, seals, sea lions, and migratory whale species (including blue whales).

Those wildlife resources have previously been harmed by oil extraction in the Pacific.

In 1969 a spill near Santa Barbara polluted the Pacific Ocean with about 3.36 million gallons of crude. That incident remains the most severe oil spill in California’s history and the third-most severe spill in American history.

The Santa Barbara oil spill killed thousands of sea birds and many dolphins, elephant seals, and sea lions. The mortality rate among small marine organisms in the inter-tidal zone was as high as 90 percent.

santa-barbara-oil-spill-map-courtesy-wikimedia
This graphic shows the extent of ocean and beach area impacted by the 1969 Santa Barbara oil spill. Map courtesy Wikimedia.

Despite the warning provided by the Santa Barbara oil spill, there are still 24 oil drilling platforms operating in ocean areas off the California coast.

In 1994 the Golden State’s legislature largely  precluded any future drilling leases in the six kilometer-wide band of Pacific waters under its regulatory control. The California Coastal Sanctuary Act allows leasing only if the “State Lands Commission determines that oil and gas deposits contained in tidelands are being drained by means of wells upon adjacent federal lands and leasing of the tidelands for oil or gas production is in the best interest of the State.”

The California State Senate passed a bill in 2015 that would have permanently banned all oil leases off the state’s coast. S.B. 788 was not considered by the state’s General Assembly (a body akin to the House of Representatives in most other states).

California’s State Lands Commission had stopped authorizing nearly all new leases after the Santa Barbara spill.

No fossil fuel exploration in waters of the Pacific Ocean off California’s coast subject to the federal Outer Continental Shelf Lands Act has occurred since 1981. Congress included bans on leasing off California’s coast, as well as offshore of several East Coast states, in annual appropriations bills until 2008.

U.S. Presidents also included California’s (along with Oregon’s and Washington’s) coastal waters in exclusions from leasing included in executive orders. Presidents George H.W. Bush, in June 1990, and William J. Clinton, in June 1998, imposed a ban through 2012.

President George W. Bush lifted that ban by revoking those executive orders on July 14,  2008. He also said that he would veto any bill that continued the practice of banning leases off the coast of California and several other states.

President Barack Obama’s administration has returned to the long-time practice of keeping energy exploration activities away from California’s coast. The most recent five-year leasing plan for the Bureau of Ocean Energy Management precludes any leasing off the Pacific coast of the continental U.S. between 2017-2022.

The factors weighing against energy exploration off the coasts of Oregon and Washington are largely the same as in California.

According to one 2015 report, Oregon’s rural coast region had more than 21,000 jobs directly dependent on tourism, which also generated more than $1.8 billion in economic activity in that part of the state.

As for fishing, the value of the Beaver State’s commercial onshore fisheries was more than $136 million in 2015, according to the state’s Department of Fish and Wildlife, while spending on recreational fishing in coastal counties exceeded $68 million in 2014.

Washington’s coastal economy is similarly dependent on tourism and fishing. In 2011 tourism and recreation contributed about $3.4 billion to the Evergreen State’s “ocean economy,” while fishing is responsible for at least 16,000 jobs and half of billion dollars of economic activity in Washington.

Pacific waters off the coasts of the two northwestern states have not generally been considered likely to produce significant oil resources. In 1964 the Department of Interior issued leases for 2,400 square kilometers of ocean areas off the coasts of Oregon and Washington. Oil companies drilled 13 test wells before those leases expired in 1969.

In 1977 the Department of Interior ranked Oregon and Washington as being lowest among all potential lease areas in the country for “resource potential.” That assessment was essentially confirmed by a 2009 report by Environment America and Sierra Club, which concluded that the amount of oil and natural gas off the Oregon and Washington coasts is “miniscule.”

“The planning area is estimated to contain (i.e., undiscovered economically recoverable resource) approximately 0.3 billion barrels of oil and 1.28 trillion cubic feet of natural gas at recent price estimates, representing about 0.6% of total OCS resources for both oil and gas. At recent prices and usage, the oil and natural gas economically available from the Washington/Oregon planning area could supply the nation with 15 days of oil and 20 days of natural gas with a value of $26 billion.”

Oregon and Washington have nevertheless moved to toughen their laws on offshore energy development.

In 2007 Oregon imposed a three-year moratorium on new exlporatory activity and then, in 2010, extended it for 10 more  years.

Washington law forbids marine oil exploration only in the area “extending from mean high tide seaward three miles along the Washington coast from Cape Flattery south to Cape Disappointment, nor in Grays Harbor, Willapa Bay, and the Columbia river downstream from the Longview bridge . . .”

Feinstein’s co-sponsors include all of the senators representing the three west coast states covered by her bill: Democrats Kamala Harris of California, Jeff Merkley and Ron Wyden of Oregon, and Maria Cantwell and Patty Murray of Washington.

The California senator’s effort to ban drilling off the Pacific coast is not the first attempt she has made. She has introduced similar bills in several previous Congresses. Nor is her bill the first Pacific coast state oil drilling ban to be co-sponsored by West Coast senators.

S.31 has been assigned to the Senate Energy & Natural Resources Committee for consideration. Cantwell and Wyden are members of that committee.

Similar legislation, known as the West Coast Ocean Protection Act, has been introduced in the U.S. House of Representatives by Democrat Jared Huffman of California and 13 co-sponsors. They include California Democratic Reps. John Garamendi, Derek Kilmer, Barbara Lee, Ted Lieu, Alan Lowenthal, Doris Matsui, Jimmy Panetta, Scott Peters, Jackie Speier, Eric Swalwell, and Mike Thompson, Oregon Democrats Earl Blumenauer and Peter DeFazio, and Washington Democrat Suzan DelBene.

 

Obama administration denies seismic testing permits, needed for oil exploration, in bid to protect marine life

The U.S. Bureau of Ocean Energy Management decided Friday to turn aside six applications for permits that would allow seismic testing for fossil fuel deposits beneath the Atlantic Ocean.

BOEM, an agency of the U.S. Department of Interior, specifically cited the possibility that sonic harm might come to ocean animals as a reason for its action.

“In the present circumstances and guided by an abundance of caution, we believe that the value of obtaining the geophysical and geological information from new airgun seismic surveys in the Atlantic does not outweigh the potential risks of those surveys’ acoustic pulse impacts on marine life,” the agency’s director, Abigail Ross Hopper, said in a statement.

BOEM also pointed to the recently-finalized 2017-2022 plan for leasing mineral deposits on the nation’s outer continental shelf. That plan excludes the two regions in the Atlantic Ocean in which the seismic testing would occur.

The applicants denied permits for geological and geophysical testing included TGS, GX Technology Corp., WesternGeco LLC, CGG Services (US), Inc., Spectrum Geo, Inc., and PGS. All six entities primarily serve the oil and gas industry by assisting with exploration activities.

acoustic-survey-diagram-courtesy-boem
This graphic shows how seismic surveying at sea is done. Map courtesy U.S. Bureau of Ocean Energy Management.

Geological and geophysical surveys using airguns are performed because they assist fossil fuel exploration firms to determine an area’s stratigraphy, variety and location of rocks, and geologic structure.

Airguns allow observation to a depth of several thousand meters below the ocean floor. They explode from a position behind an exploration vessel every 10-15 seconds.

BOEM had previously consulted with the National Oceanic & Atmospheric Administration, as required by the Endangered Species Act, during the course of preparing an environmental impact statement on its Atlantic seismic surveying permit program. There are  several marine species in the area in which the seismic surveys would have been conducted that are on the federal list of threatened and endangered species.

“Sonic blasting causes tremendous harm to endangered whales and fish,” Michael Jasny, the director of the Marine Mammal Protection Project at Natural Resources Defense Council, said.

Jasny went on to explain that use of seismic airguns “is known to disrupt foraging and other vital behaviors in endangered whales, displace fish, and harm commercial fisheries over vast areas of the ocean.”

BOEM had previously estimated that issuance of the six permits would result in millions of incidents of harassment of whales and dolphins during a five-year period. In the case of sperm whales, it is possible that hundreds of individuals could lose their ability to hunt, navigate in the ocean, and communicate with others in the species if the seismic surveys proceeded.

BOEM has acknowledged that the airguns can cause hearing loss and death in whales and fish.

 

Obama blocks oil drilling in Arctic, part of Atlantic oceans

000bf-polarbear-courtesyusfwsphotobyterrydebruhn
This photograph of a polar bear, one of the wildlife species that may benefit from President Barack Obama’s decision, was taken by Terry DeBruhn. Image courtesy U.S. Fish & Wildlife Service.

Relying on a statute from the 1950s, President Barack Obama moved Tuesday to permanently shut off the Arctic and a significant portion of the Atlantic oceans along the nation’s coasts to oil and gas exploration.

The White House announced that Obama invoked authority granted by the Outer Continental Shelf Lands Act to withdraw the Chukchi Sea Planning Area, most of the Beaufort Sea Planning Area, and 5,990 square miles of canyons in the Atlantic Ocean between New England and the Chesapeake Bay from fossil fuel activities.

Obama said in a statement that his decision was motivated by a desire to “protect a sensitive and unique ecosystem that is unlike any other region on earth.”

“They reflect the scientific assessment that, even with the high safety standards that both our countries have put in place, the risks of an oil spill in this region are significant and our ability to clean up from a spill in the region’s harsh conditions is limited,” Obama explained. “By contrast, it would take decades to fully develop the production infrastructure necessary for any large-scale oil and gas leasing production in the region – at a time when we need to continue to move decisively away from fossil fuels.”

arctic-ocean-withdrawal-map-courtesy-boem
Map courtesy U.S. Bureau of Ocean Energy Management

The OCLA was enacted in 1953. Section 12(a) of OCLA, 43 U.S.C. § 1341(a), provides that “[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

The statute imposes no constraints on the President’s authority to order such a withdrawal. In that way it is similar to the American Antiquities Act of 1906, which gives Presidents the power to declare national monuments.

In both cases, Congress delegated its power over federal property to the President, but the grant could well be interpreted by a federal court as a “one-way ratchet” that does not permit a later President to reverse a predecessor’s decision to withdraw OCSLA areas from energy exploration activities.

The reach of section 12(a) has not been tested in litigation.

John D. Leshy, a professor of law at Hastings College of the Law in San Francisco and a former solicitor of the Department of Interior, told Atlantic Monthly that he believes Obama’s decision should be upheld in federal court if it is challenged by fossil fuel advocates.

“I think it was quite a realistic thing that Obama did, and it should be upheld—but who knows,” he said.

Congress could, of course, pass a bill reversing Obama’s move, but that legislation would have to clear a likely filibuster by U.S. Senate Democrats on the way to Trump’s desk.

atlantic-canyon-withdrawal-map-courtesy-boem
Map courtesy U.S. Bureau of Ocean Energy Management

Presidents also have authority under OCLA to craft five-year exploration plans. Obama has used that tool, too, as a way of reducing the American fossil fuel footprint in sensitive marine areas.

On Nov. 18 the administration issued the final five-year OCLA lease program that covers the years 2017-2022. It proposes one sale in waters off Alaska, in Cook Inlet, and none in the Atlantic or Pacific Oceans. The 2017-2022 lease program anticipates 10 sales of exploration rights in the Gulf of Mexico.

Canada also undertook action to ban future fossil fuel exploration in the Arctic on Dec. 20. Prime Minister Justin Trudeau announced that his country would impose the prohibition for five years.

“Canada is designating all Arctic Canadian waters as indefinitely off limits to future offshore Arctic oil and gas licensing, to be reviewed every 5 years through a climate and marine science-based life-cycle assessment,” Trudeau said in a joint statement by Canada and the U.S.

No Canadian oil and gas activity in the Arctic has occurred since 2006.

Alaska and other states retain authority to authorize oil drilling in the first three miles of ocean beyond their shores as management of those areas of the continental shelf are entrusted to them and is not subject to federal control.

Obama administration seeks reduction in methane emissions from oil and gas facilities on public lands

The U.S. Department of Interior has proposed regulations aimed at limiting the amount of a potent greenhouse gas emitted from oil and natural gas exploration wells.

Announced Jan. 22, the new rule would require energy companies to scale back the amount of flaring from 7,200,000 cubic feet per month per well to 1,800,000 cubic feet per month per well within three years. Well operators would have the choice of capturing gases that would otherwise be released to the atmosphere or reducing production as means of achieving the target. Emergency flaring would not be limited.

“I think most people would agree that we should be using our nation’s natural gas to power our economy – not wasting it by venting and flaring it into the atmosphere,” secretary of the interior Sally M. Jewell said in a statement. “We need to modernize decades-old standards to reflect existing technologies so that we can cut down on harmful methane emissions and use this captured natural gas to generate power and provide a return to taxpayers, tribes and states for this public resource.”

Flaring is used by energy producers as a way of eliminating gases released from underground during extraction of fossil fuel resources, particularly oil. The gases are considered by the fossil fuel extractor to be either not economically useful or infeasible to store or transport.

These “waste” gases are mostly methane. The U.S. Energy Information Administration estimates that about 29 percent of total American methane emissions to the atmosphere comes from fossil fuel extraction infrastructure, including wells, storage tanks, pipelines, and processing facilities. Worldwide, as much as 5.3 trillion cubic feet of methane is released to the atmosphere every year from fossil fuel extraction, transportation, storage, and processing systems.

Aside from the methane emissions caused by flaring, about 400 million tons of carbon dioxide are also added to the atmosphere every year as the result of flaring around the world.

Flaring also costs the taxpayer money. According to the U.S. Government Accountability Office, the gases flared to the atmosphere from wells and related infrastructure on U.S. public lands means that about $23 million in royalties otherwise payable to the federal treasury is lost to the government.

Video courtesy U.S. GAO.

Environmental advocacy organizations reacted cautiously to the Obama administration’s initiative.

“These rules are an important start to reducing potent methane pollution—which fuels climate change and threatens public health—from oil and gas companies operating on our nation’s public lands,” Meleah Geertsma, an attorney at Natural Resources Defense Council, said in a statement. “However, they fall short of what’s necessary to tackle the full scope of the problem, including leaving significant gas leaks and flaring unaddressed.”

“At a minimum, the administration should require the industry to put all of the available and cost-effective measures in place to curb this rampant air pollution problem,” Geertsma continued. “That’s true not just for public lands—but all oil and gas operations, new and old, nationwide.”

The rules announced by Jewell are not yet final. The proposed rule has not yet been published in the Federal Register. The U.S. Bureau of Land Management, an agency of the Department of Interior, will accept comments for 60 days following publication.

President Barack Obama announced in Jan. 2015 that his administration would seek to reduce methane emissions from the oil and gas industry by 40 to 45 percent by 2025. The U.S. Environmental Protection Agency proposed in August 2015 a regulation that would limit methane emissions from new or modified oil and natural gas extraction facilities.

 

Environmental groups seek intervention in oil industry effort to preserve Arctic leases

Drillship Kulluk, 2012 - photo courtesy Royal Dutch Shell
The drillship Kulluck in the Beaufort Sea, 2012. Photo courtesy Royal Dutch Shell PLC.

The environmental advocacy community aims to have a voice as the Department of Interior addresses oil industry arguments that rights to drill for oil in Arctic seas were unlawfully taken away.

In a motion filed Wednesday with the Interior Board of Land Appeals, nine organizations asked for permission to intervene in two Royal Dutch Shell PLC subsidiaries’ efforts to force the Obama administration to extend exploration leases for five years.

“The agency was right to reject Shell’s extension request, and we look forward to helping it defend that decision,” Erik Grafe, an attorney at Earthjustice who is representing the groups, said.

Royal Dutch Shell announced on Sept. 28 that it would cease all exploration activities in the Alaskan Arctic. However, the oil giant had asked the Obama administration in July 2014 to grant a Suspension of Operations for its leases in the Beaufort and Chukchi seas. In legal terms, an SOO is a pause in the duration of an exploration lease that allows it to be extended by a time equivalent to that lost when drilling is economically impractical.

The Department of Interior’s Bureau of Safety and Environmental Enforcement then said on Oct. 16 that it had denied the SOO request by the two subsidiaries.BSEE found that Shell had failed to provide a “reasonable schedule” of exploration resumption.

As a general rule, companies can retain marine exploration leases only if they are actively engaged in an effort to find and extract energy resources.

Shell Gulf of Mexico Inc. and Shell Offshore Inc. filed an appeal of the BSEE decision with IBLA, the department’s panel of administrative judges, on Dec. 15. The subsidiaries have not yet filed a statement of the reasons they argue justify a reversal of BSEE’s decision.

The Beaufort and Chukchi leases are due to expire in 2017 and 2020.

Conoco-Phillips Co., another giant in the energy industry, has also asked IBLA to force the administration to grant it an SOO for its Arctic leases.

House to vote on Senate-passed KXL bill next week

The U.S. House of Representatives will vote next week on whether to adopt the KXL pipeline bill approved by the Senate.

The chamber’s majority leader, Rep. Kevin McCarthy, R-Calif., announced Tuesday his intention to move the controversial proposal to President Barack Obama’s desk.

“Next week we will take up the Keystone pipeline as passed by the Senate and send it to the President’s desk,” McCarthy said during a press conference.

If the House, as expected, passes S.1 without changes, then Obama will soon be in a position to impose a promised veto of the legislation.

Shell again asks Interior to allow Arctic oil drilling

Bowhead whales inhabit the shallow Chukchi Sea. An endangered species, Balaena mysticetus can grow to 40 feet in length and weigh up to 100 tons. Walruses, ringed seals, a variety of whale species, and polar bears also inhabit the Chukchi Sea, as do millions of sea birds of many species. Photo courtesy National Oceanic & Atmospheric Administration, photo by Dave Rugh.
Bowhead whales inhabit the shallow Chukchi Sea. An endangered species, Balaena mysticetus can grow to 40 feet in length and weigh up to 100 tons. Walruses, ringed seals, a variety of whale species, and polar bears also inhabit the Chukchi Sea, as do millions of sea birds of many species. Photo courtesy National Oceanic & Atmospheric Administration, photo by Dave Rugh.

Oil giant Royal Dutch Shell PLC has decided to again seek U.S. government permission to drill for oil in the Arctic.

The company filed an exploration plan with the Department of Interior’s Bureau of Ocean Energy Management on Thursday, according to a report in Financial Times.

An earlier effort to obtain approval for drilling in the fragile Chukchi Sea was blocked by the federal appeals court in San Francisco, which ruled that BOEM’s environmental impact statement on $2 billion worth of leases sold to Shell did not comply with federal law. The decision in Native Village of Point Hope v. Jewell pushed Shell’s nearly decade long effort to extract hydrocarbons from some of the most environmentally sensitive marine areas on Earth back to the drawing boards.

Shell has also experienced a series of machinery disasters in the Arctic, including the grounding of a vessel off the coast of Sitkalidak Island, Alaska in 2012. A Coast Guard report on that incident released last April concluded that “inadequate assessment and management of risks” was a principal cause of it.

Within U.S. terrritorial waters, the federal government owns the sea and seabed beyond 5.6 kilometers past the shoreline. Two statutes that date back to the 1950s – the Submerged Lands Act and the Outer Continental Shelf Lands Act – together authorize the secretary of the interior to lease submerged oil and gas deposits. However, that authority is subject to a variety of constraints imposed by broadly applicable environmental laws, including the National Environmental Policy Act. NEPA requires federal agencies to study the environmental impact of “major federal actions” before moving forward with them.

The drilling rig Kulluk ran aground near Alaska on Dec. 31, 2012. This image shows the distressed vessel on Jan. 1, 2013. Image courtesy Wikimedia.
The drilling rig Kulluk ran aground near Alaska on Dec. 31, 2012. This image shows the distressed vessel on Jan. 1, 2013. Image courtesy Wikimedia.

 

Report: 56 senators support Keystone approval

A majority of U.S. senators is likely to support legislation that would force the Obama administration to green-light the controversial Keystone XL oil pipeline, according to a report by The Hill.

The report explained that proponents of the measure have not yet decided whether to attach it as amendment to pending legislation related to energy efficiency improvements or push a stand-alone bill.

In either case, it is not clear that there are enough votes in the U.S. Senate in favor of an immediate approval of the pipeline to overcome a likely filibuster by those opposed to it.

Sixty votes would be needed to limit debate and bring such a measure to a floor vote.

Even if it passed the Senate, and then was approved by the Republican-controlled U.S. House of Representatives, it is possible that President Barack Obama would veto it. Proponents of an immediate approval of the Keystone XL pipeline would need 67 votes in the U.S. Senate and two-thirds of the members of the House of Representatives to vote to override a veto in order to force the proposal into law.

 

Federal appeals court rejects U.S. plan for oil drilling in Chukchi Sea

The Obama administration’s plan to extract billions of barrels of oil from Arctic seas off the northwest coast of Alaska hit a roadblock in federal court last week.

The federal appeals court in San Francisco ruled Jan. 22 that the U.S. Bureau of Ocean Energy Management, Regulations, and Enforcement’s ‘s environmental impact study was flawed because it assumed a production level far lower than the potential oil production from the project.

The case centers on a lease sale advanced by the administration of President George W. Bush. Called Lease Sale 193, the 2008 decision affects about 30 million acres of the marine region, an area larger than Pennsylvania.

The sale of 487 exploration leases in Lease Sale 193 produced more than $2.6 billion in revenue for Washington, with about $2.1 billion of that coming from Royal Dutch Shell, one of the world’s largest energy companies.

Opponents of the BOEM plan to allow drilling in the area point to the risks it poses to the region’s diverse wildlife.

“The melting Chukchi Sea is no place for drillships,” Rebecca Noblin, the Center for Biological Diversity’s Alaska director, said in a statement. “It’s a place where polar bears hunt for ringed seals, where walruses socialize and bowhead whales make their way to rich feeding grounds.”

The opponents, who include 12 conservation groups, one native Alaskan advocacy organization, and one native Alaskan village, argued that, by underestimating the amount of oil that could be extracted from the area if drilling occurred, BOEM was risking a huge oil spill that would devastate that pristine area.

“This mistake means that the EIS gives only the best case scenario for environmental harm,” Eric Grafe, an attorney with the public interest law firm Earthjustice, said. “All is based on the number of barrels produced. If they get the number wrong, they understate all those other impacts.”

Grafe said that, even if only 1 billion barrels of oil were produced in the area that is subject to the oil lease sale, there would be a 40 percent chance of an oil spill.

“Because it’s so remote and so inaccessible, the assumption is that you’d have to find a significant amount of oil to justify the infrastructure that would have to be put in,” he said. “Right now there’s nothing. No roads, no pipelines. It’s a pristine area. It’s precisely because of that absence of infrastructure that it’s so risky to drill there. If there is an oil spill, you’re not going to have the resources to respond to that oil spill and you can’t clean it up in an icy environment anyway.”

The federal appeals court panel that heard the case agreed that the government’s reliance upon an estimate of 1 billion barrels of oil caused its study of environmental impacts from the drilling activity  to be flawed.

“In the case before us, BOEM was fully aware from the very beginning that if one billion barrels could be economically produced, many more barrels could also be economically produced,” Judge William Fletcher, the lead author of the appellate panel’s opinion, wrote.

There may be as many as 15 billion barrels of oil that are economically viable to extract beneath the Chukchi Sea, according to 1 2011 BOEM analysis.

Environmentalists also point to the contribution to ongoing climate change that extracted oil would make.

“We can’t afford to burn the oil found there,” Grafe said. “We shouldn’t be getting more oil out to burn it if we are going to stay within climate change parameters.”

Shell commenced drilling in the Chukchi Sea in 2012 but experienced numerous problems. A  March 2013 report by the U.S. Department of Interior concluded that Shell committed a series of logistical and planning blunders in connection with its Lease Sale 193-related activities in the Arctic.

“They screwed it up really badly,” Grafe said. “Here’s a company saying ‘we’re ready to drill, we can do it safely’ and it’s a giant fiasco. Nothing goes right.”

Among those problems:

* a containment dome used to prevent the spread of oil spills that was being tested in Puget Sound was “crushed like a beer can,” according to a U.S. Department of Interior official who observed the test;

* a drill ship called the Noble Discoverer slipped anchor and nearly ran aground in Dutch Harbor, AK, then had to quickly be moved from Shell’s exploration site in the Chukchi Sea because an ice storm was rapidly approaching;

* U.S. Coast Guard inspectors found a litany of maritime regulation violations on the vessel and later referred its findings to the U.S. Department of Justice;

* the Noble Discoverer later caught fire and exploded while in port in the Aleutian Islands; and

* another drilling ship, the Kulluck, broke free of a tow and ran aground in Kodiak, AK in Dec. 2012. Shell was trying to move the ship to Seattle to avoid paying Alaska property taxes on vessels used for oil and gas exploration.

“Doing that in the winter when there’s lots of storms in the Gulf of Alaska is risky,” Grafe said. “But they did it.”

The incident involving the Kulluck drill barge remains under investigation by the U.S. Coast Guard.

Under the Outer Continental Shelf Lands Act of 1953 the U.S. Department of Interior has authority over oil and gas exploration and extraction on submerged lands along the country’s coasts. That cabinet department, in turn, includes a specialized agency – BOEM – to handle leasing of the submerged lands for oil and gas development activity. BOEM used to be known as the Minerals Management Service. The Obama administration changed its name in 2010, following the oil spill in the Gulf of Mexico.

The Chukchi Sea lease sale dispute will now go back before a U.S. district judge in Alaska. He will decide whether the holders of oil leases in the Chukchi Sea can proceed to drill after a modified environmental impact statement is prepared or whether the lease sales should be voided altogether.

Judge Ralph Beistline had previously rejected BOEM’s environmental impact statement in a 2010 decision. Later, after the Obama administration made changes to the EIS and proceeded with Lease Sale 193, Beistline upheld that decision. It was that 2011 order that was reversed by the Ninth Circuit last week.

Grafe said that the appeals court’s opinion gives BOEM time to decide whether to abandon the Chukchi Sea leases.

“They could put out a draft EIS and, while they’re doing that process to get a more accurate assessment, not allow any activities to happen on those leases,” he explained. “At the end of that EIS process, when we have a document that more accurately informs the public about the risks, they can reconsider the decision about whether the leases should be there.”

Grafe was referring to an environmental impact statement, which is the study of the environmental impacts likely to result from a “major federal action,” such as marine oil leases, mandated by the National Environmental Policy Act of 1969.

Shell announced this week that it would not attempt to drill in the Chukchi or Beaufort Seas this year.

The case is Native Village of Point Hope v. Jewell, No. 12-35287.

Chukchi Sea ice - photo courtesy NOAA - photo by Karen E. Frey Beluga whale pod in Chukchi sea - photo courtesy NOAA, photo by Laura Morse Walruses in the Chukchi Sea - photo courtesy USGS

Kulluck aground - photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg

Top photo: Ice on Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Karen E. Frey)

Second photo: Beluga whale pod in Chukchi Sea (photo courtesy National Oceanic & Atmospheric Administration, photo by Laura Morse)

Third photo: Walrus in Chukchi Sea (photo courtesy U.S. Geological Survey)

Fourth photo: The drill ship Kulluck aground in Kodiak, AK, Jan. 1, 2013 (photo courtesy U.S. Coast Guard, photo by Petty Officer 3rd Class Jonathan Klingenberg)