Biden's green allies promise lawsuit over Alaska oil project

The approval Monday of ConocoPhillips' massive Willow project in Alaska's National Petroleum Reserve is teeing up a new high-profile legal brawl that will likely align the Biden administration and Republican lawmakers against environmentalists who have largely backed the president's climate agenda.

The pared-down project opens up three new oil and gas drilling areas of the western North Slope — two fewer than originally proposed by the oil company — but green groups say the approval still undermines the Biden administration's commitment to halve nationwide greenhouse gas emissions by 2030. The brewing legal battle highlights a sharp divide between a Democratic administration and environmental groups over the extent to which public lands and federal waters should be available for oil and gas development.

"We are going to work with our clients to move forward with litigation," said Bridget Psarianos, senior staff attorney at Trustees for Alaska, which previously led a successful lawsuit challenging the Trump administration's approval of the Willow project. "We'll be moving quickly on that."

Alaska Sen. Dan Sullivan (R) — a staunch Willow supporter — said he was already preparing to help defend the Biden administration from "frivolous legal challenges" against the $8 billion project.

"We are coordinated and ready to defend this decision," he told reporters Monday.

Biden officials have sought to balance interest in continued leasing in oil- and gas-producing states like Alaska with the president's clean energy priorities. Environmentalists who have generally backed the president's climate initiatives have also repeatedly pushed the federal government to go even further by eliminating new oil and gas leasing on federally controlled lands.

Cancellation of the Willow project would have been a key win to block future fossil fuel extraction on public lands. Now environmentalists' pressure campaign against the project is transitioning to legal action against the approval process by the Interior Department's Bureau of Land Management.

Trustees for Alaska, which successfully sued to block a Trump-era Willow approval in 2020, is reviewing whether the Biden administration's green light for the project fully complies with an earlier court order. A federal judge in 2021 blocked Willow after finding that BLM had failed to conduct an adequate analysis of the project's environmental impacts.

Judge Sharon Gleason of the U.S. District Court for the District of Alaska sent BLM back to the drawing board after finding the agency had not done enough to model the impact of the project on foreign emissions, properly weigh alternative designs or approve a project that provided maximal surface area protections within the leasing area.

BLM's court-ordered environmental review did address the greenhouse gas modeling concerns, but that doesn't mean there aren't other potential problems with the agency's emissions and impact analysis under the National Environmental Policy Act, said Psarianos of Trustees for Alaska. NEPA requires agencies to take a "hard look" at environmental impacts of major federal actions but does not require a specific outcome for a project.

"We have some big, big questions about whether they actually complied with the NEPA requirement to assess impacts from those greenhouse gas emissions, even if they accurately quantified them," she said.

Environmental groups will also be looking at how BLM responded within its final approval — known as a record of decision, or ROD — to Gleason's finding that the agency had misinterpreted its statutory authority to assume ConocoPhillips had the right to extract all the oil and gas that was under its lease.

"The ROD does try to grapple with that," said Psarianos.

BLM stated that its project screening criteria were "reevaluated and augmented" to address the court's concerns about the amount of extraction approved under the Trump administration.

"That's something we're going to have to look at and dig into and see, whether that's defensible for them," Psarianos said.

Environmental groups will also be looking at compliance under other statutes such as the Naval Petroleum Reserves Production Act, which outlines conservation requirements specifically for the Alaska petroleum reserve, also referred to as the NPR-A.

In its new record of decision released Monday, BLM said it had responded to the concerns raised by Gleason, who was appointed during the Obama administration, and was moving forward with an alternative Willow design that "requires the fewest ice roads, fewest total miles of infield pipelines, least water use, fewest vehicle trips, fewest fixed-wing aircraft trips, fewest helicopter trips, and fewest acres of screeding."

The project design no longer allows gravel fill in a marine area and reduces the number of facilities, water and gravel use, and operational activities. The changes "reduce impacts to important surface resources and subsistence uses as compared to the other action alternatives," BLM said.

The approved alternative also had the least total greenhouse gas emissions, making the decision to move forward with the project "consistent with the principles and objectives" in 2021 climate orders issued by President Joe Biden and Interior Secretary Deb Haaland, according to BLM.

Willow will include nearly 200 oil wells along with other supporting infrastructure. ConocoPhillips also added three boat ramps to help offset the impacts of the project to the Alaska Native community of Nuiqsut. The tiny city is located closest to the development, and its residents have strongly opposed Willow for its impacts on subsistence hunting and fishing — even as many other Alaska Native leaders have backed the project.

BLM's final approval includes two fewer drilling sites than what was proposed by ConocoPhillips under the Trump administration. The company had previously warned the Biden administration that approving fewer than three well sites would not be economically viable.

ConocoPhillips praised the Biden administration's decision Monday, saying it was compatible with White House climate and energy policies.

'Huge disappointment'

In a separate announcement Monday, the White House said it plans to protect 16 million acres of public lands and federal waters from oil and gas development — although environmental groups say the move does not offset their concerns about Willow.

The Biden administration indefinitely withdrew 2.8 million acres of the Beaufort Sea from oil and gas leasing and announced plans for a new rulemaking to consider conservation measures for more than 13 million acres in the NPR-A that serves as important habitat for grizzly and polar bears, as well as caribou and migratory waterfowl.

"Today's withdrawal ensures this important habitat for whales, seals, polar bears as well as for subsistence purposes will be protected in perpetuity from extractive development," the White House said in a memorandum.

Psarianos said that the entire western Arctic deserves protection from oil and gas drilling.

"The Willow approvals … would unlock a large area for industrial development," she said. "That just in and of itself is a completely unacceptable threat for the reserve, to subsistence and to the climate."

Environmentalists said the Biden administration's approval of the Willow project is in line with other oil and gas leasing decisions from Interior.

“President Biden’s decision to approve the massive Willow fossil fuel project is undoubtedly a blow to our collective ability to address the climate crisis," Jim Walsh, policy director of Food and Water Watch, said in a statement. "But this administration has not yet demonstrated a strong commitment to stopping new fossil fuel projects."

The Biden administration has already faced a series of lawsuits challenging its analysis of the risks of oil and gas leasing.

That has included litigation over Lease Sale 258 in Alaska's Cook Inlet, the recent lawsuit against Lease Sale 259 in the Gulf of Mexico, as well as other challenges to onshore leases and drilling permits, said Kristen Monsell, oceans program litigation director at the Center for Biological Diversity.

Monsell said that the Biden administration's approval of drilling permits on public lands has outpaced the rate under former President Donald Trump.

"The Biden administration has been a huge disappointment," she said.

Emma Dumain contributed to this report.

A version of this report first ran in E&E News’ Energywire. Get access to more comprehensive and in-depth reporting on the energy transition, natural resources, climate change and more in E&E News.