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.

A herd of caribou near the Canning River in the Arctic National Wildlife Refuge.
A herd of caribou near the Canning River in the Arctic National Wildlife Refuge.Credit…Chris Flowers/Design Pics Inc., via Alamy

By Henry Fountain and John Schwartz

  • Nov. 17, 2020

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.

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