Sovereign Inupiat for a Living Arctic v. Bureau of Land Mgmt., 3:20-cv-00290-SLG

• Court: United States District Courts. 9th Circuit. District of Alaska
• Writing for the Court: Sharon L. Gleason UNITED STATES DISTRICT JUDGE
• Parties: SOVEREIGN IÑUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.
• Decision Date: 18 August 2021
• Docket Number: 3:20-cv-00308-SLG,3:20-cv-00290-SLG

SOVEREIGN IÑUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, et al., Defendants,

and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, et al., Defendants,

and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.

Nos. 3:20-cv-00290-SLG, 3:20-cv-00308-SLG

United States District Court, D. Alaska

August 18, 2021

ORDER RE MOTIONS FOR SUMMARY JUDGMENT

Sharon L. Gleason UNITED STATES DISTRICT JUDGE

Before the Court are two motions for summary judgment in related cases filed by Center for Biological Diversity Plaintiffs (“CBD Plaintiffs”)^[1] and Sovereign Iñupiat for a Living Arctic Plaintiffs (“SILA Plaintiffs”).^[2] Plaintiffs in each case (collectively, “Plaintiffs”) challenge various aspects of Federal Defendants'^[3] review and approval of ConocoPhillips Alaska, Inc.'s (“ConocoPhillips”) Willow Master Development Plan (“Willow, ” “Willow Project, ” or “Project”) in the National Petroleum Reserve in Alaska (“NPR-A”) on Alaska's North Slope. Federal Defendants, ^[4] ConocoPhillips, ^[5] the State of Alaska, ^[6] and North Slope Borough^[7] filed combined oppositions to Plaintiffs' separate motions. Plaintiffs each replied in support.^[8] Oral argument was held on July 12, 2021.^[9]

INTRODUCTION

I. Factual Background

A. The Willow Project

ConocoPhillips' Willow Master Development Plan is a proposed oil and gas development project under leaseholds in the northeast area of the National Petroleum Reserve in Alaska.^[10]

The Project encompasses a series of interconnected infrastructure components that would be constructed over approximately nine years, including up to five drill sites, a central processing facility, an operations center pad, up to 37 miles of gravel roads and seven bridges, up to 575.4 total miles of ice roads during construction, an airstrip, up to 315.9 miles of pipelines (94.4 miles of new pipeline rack), a gravel mine site, sealift barge transport of construction materials and prefabricated modules to the North Slope, a constructed freshwater reservoir sized to provide 55 million gallons of water for winter withdrawal, and up to three boat ramps for subsistence users.^[11]

The Project is anticipated to have a peak production in excess of 160, 000 barrels of oil per day (with a processing capacity of 200, 000 barrels of oil per day) over its 30-year life, producing approximately 586 million barrels of oil.^[12]

B. Environmental Review

ConocoPhillips sought the Bureau of Land Management's (“BLM”) approval of the Willow Project under the National Environmental Policy Act (“NEPA”)^[13] and a Clean Water Act (“CWA”)^[14] Section 404 permit from the U.S. Army Corps of Engineers (“Corps”). BLM initiated formal consultation with the U.S. Fish and Wildlife Service (“FWS”) pursuant to the Endangered Species Act (“ESA”).^[15]

1. National Environmental Policy Act

On May 10, 2018, ConocoPhillips requested that BLM prepare an Environmental Impact Statement (“EIS”) for the Willow Project, as required by NEPA.^[16] The following year, BLM made available for public comment a Draft EIS for the Project.^[17] Then, on March 26, 2020, BLM released a Supplemental Draft EIS that evaluated additional Project components.^[18] BLM published its notice regarding the availability of the Final EIS (“FEIS” or “EIS”) on August 14, 2020.^[19]

The EIS evaluated a No. Action Alternative (Alternative A) and three action alternatives (Alternatives B, C, D).^[20] Under Alternative A, the Project would not be constructed; however, oil and gas exploration in the area would continue.^[21]Alternative B, ConocoPhillips' preferred alternative, would extend an all-season gravel road from an existing North Slope development toward the Project area. Gravel roads would connect all Project facilities, including the processing facility, operations center, and all drill sites.^[22] Alternative C, the “Disconnected Infield Roads” alternative, would extend the same all-season gravel road from existing development toward the Project Area, but it would not have gravel roads connecting other portions of the Project, among other differences.^[23] “The intent of Alternative C is to reduce effects to caribou movement and decrease the number of stream crossings required; this is also intended to further reduce impacts to subsistence users of these resources, and reduce impacts to hydrology and wetlands.”^[24] Alternative D, the “Disconnected Access” alternative, would not extend the all-season gravel road from existing development.^[25] “The intent of Alternative D is to minimize the Project's footprint and fill, reduce the number of required bridges (six versus 7), and lessen the length of linear infrastructure on the landscape to decrease effects to caribou movement and subsistence. This alternative's reduction of linear gravel infrastructure in the Project area may also reduce impacts to hydrology (e.g., sheet flow) and wetlands (e.g., direct fill, indirect impacts from dust).”^[26] Each action alternative evaluated the same five drill site locations: Bear Tooth (“BT”) drill sites 1-5.^[27]

For each action alternative, the EIS also considered three separate sealift module delivery options for delivering large, prefabricated modules to the Project area.^[28] Sealift module delivery Option 3, ConocoPhillips' preferred option, would require the construction of a partially grounded ice bridge crossing the Colville River near Ocean Point.^[29]

On October 26, 2020, then-Secretary of the Interior David Bernhardt signed the Record of Decision (“ROD”) authorizing Alternative B, ConocoPhillips' preferred alternative, and Sealift Module Delivery Option 3, the Colville River ice bridge crossing.^[30] However, at the request of ConocoPhillips, the ROD deferred from approval Bear Tooth drill sites 4 and 5 (BT4 and BT5) and their respective connecting road and pipeline segments.^[31]

2. Clean Water Act

On February 3, 2020, ConocoPhillips submitted a CWA Section 404 permit application to the Corps, seeking authorization to discharge fill and dredged material, as well as perform work in the waters of the United States (“WOUS”), including wetlands.^[32] The application was determined incomplete, and ConocoPhillips submitted a revised application on March 18, 2020.^[33] In December 2020, the Corps issued its ROD and the Section 404 permit to ConocoPhillips.^[34]

The Corps authorized the permanent discharge of fill and dredged material into 481.1 acres of WOUS, including wetlands; the temporary discharge of fill and dredged material into 157.9 acres of WOUS, including wetlands; and the permanent conversion of 135.8 acres of WOUS to open water as a result of gravel mine excavation and a constructed freshwater reservoir.^[35]

3. Endangered Species Act

On March 16, 2020, BLM initiated formal consultation with FWS pursuant to the ESA.^[36] The formal consultation culminated in FWS issuing its Biological Opinion (“BiOp”) for the Willow Project on October 16, 2020.^[37] As relevant here, FWS concluded that the Project was not likely to jeopardize the continued existence of polar bears and not likely to result in the adverse modification of polar bear critical habitat.^[38] FWS's BiOp also included an incidental take statement.^[39]

II. Procedural Background

In late 2020, Plaintiffs initiated the instant actions and sought to preliminarily enjoin ConocoPhillips from undertaking certain construction activities for the Willow Project in the winter of 2020-2021.^[40] On February 1, 2021, this Court denied Plaintiffs' motions for preliminary injunctive relief.^[41] Plaintiffs appealed the ruling to the Ninth Circuit Court of Appeals and simultaneously sought an injunction pending appeal from this Court.^[42] On February 6, 2021, this Court issued a temporary injunction enjoining certain construction activities for up to two weeks.^[43]On February 13, 2021, the Ninth Circuit granted Plaintiffs' emergency motions for an injunction pending appeal and extended this Court's February 6, 2021 injunction for the duration of the appeal.^[44] Thereafter, the parties stipulated to extend the temporary injunction until December 1, 2021, and Plaintiffs voluntarily dismissed their appeals.^[45] Presently before this Court are Plaintiffs' motions for summary judgment on all claims relating to the Willow Project.

JURISDICTION

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which “confer[s] jurisdiction on federal courts to review agency action, regardless of whether the [Administrative Procedure Act] of its own force may serve as a jurisdictional predicate.”^[46]

LEGAL STANDARD

Plaintiffs seek judicial review under the Administrative Procedure Act

(“APA”).^[47] Under that statute, a reviewing court shall set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]”^[48] Agency action is arbitrary and capricious if it:

relie[s] on factors which Congress has not intended it to consider, entirely fail[s] to consider an important aspect of the problem, offer[s] an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it c[an]not be ascribed to a difference in view or the product of agency expertise.^[49]

A court's review of whether an agency action is arbitrary and capricious should be “searching and careful, ” but “narrow, ” as a court may not substitute its judgment for that of the administrative agency.^[50] “[D]eference to the agency's decisions is especially warranted when reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise.”^[51] “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection...