Did Biden must approve the Willow oil project?
ConocoPhillips has existing lease rights. However the Biden administration had tools to curtail those rights to limit harms.
Although the Biden administration has approved the Willow oil drilling project on Alaska’s North Slope—the biggest proposed oil drilling on U.S. public land in several many years—the legal questions are removed from settled.
Much of the media coverage to date has focused on the political dynamics driving the choice (as noted with some alarm here and here) and devoted less attention to the legal dynamics. So, is there merit to the Biden administration’s claim that it had limited legal ability to disclaim the Willow project at this stage in the method?
‘Legal ability’
The $8 Billion ConocoPhillips project was first approved by the Trump administration, then legally supported by the Biden administration. Then a federal court in Alaska blocked construction, faulting the unique environmental evaluation. After completing its own environmental review, the Biden administration gave the greenlight. That approval got here a day after the administration said it could bar drilling in another areas of Alaska and the Arctic Ocean. This permits ConocoPhillips to maneuver forward with three drill sites—not the proposed five sites—within the northeast area of the National Petroleum Reserve in Alaska. (The Bureau of Land Management Record of Decision is here.)
The Associated Press reports that “administration officials were concerned that ConocoPhillips’ decades-old leases limited the federal government’s legal ability to dam the project and that courts may need ruled in the corporate’s favor.” The Interior Department for its part emphasized the reductions within the scope of drilling, saying the actions “significantly scale-back the Willow Project inside the constraints of valid existing rights under decades-old leases issued by prior Administrations.” And Alaska Sen. Lisa Murkowski told the NYT that the legal argument was the turning point for Pres. Biden.
So, do the administration’s apparent legal concerns arise to scrutiny?
Partly, this decision illustrates the boundaries of our environmental laws. The goal of those laws is substantive: to guard the environment. But often those laws impose procedural requirements, not substantive bans on harmful activities. The National Environmental Policy Act (NEPA) provides example. Sure, the Biden administration issued its own supplemental environmental impact statement under NEPA for the Willow project, rigorously reviewing the project’s environmental impacts—but nearly all the attention in that document is spent comparing some versions of the project against other versions, all of which might end in significant oil extraction. The “No Motion” alternative—the one one which involves refusing the Willow project entirely—gets little or no attention, on the order of a single paragraph. And even when the Biden administration had fully expounded on that “no motion” alternative, nothing in NEPA requires that policymakers select the least damaging option, even within the face of stakes as overwhelming as global climate disruption. As Justice Stevens (writing for the Court) once wrote: “NEPA merely prohibits uninformed—reasonably than unwise—agency motion.”
The Willow decision also shows the boundaries of politics. Yes, ConocoPhillips has existing lease rights that make it complicated, or perhaps even unimaginable, to stop all oil extraction from this site. However the Biden Administration had tools to curtail those rights to limit harms to the environment and to people, and it’s not clear that it used those tools to the best degree possible.
For instance, the Endangered Species Act theoretically prohibits agencies from taking actions that jeopardize the continued existence of listed species or adversely affect their critical habitat. Does anyone really imagine that this project’s greenhouse gas emissions wouldn’t adversely affect the habitat of polar bears, or other ice-dependent listed species? Yet this Administration, together with others before it, has deliberately blinkered its review of the climate impacts of massive fossil fuel extraction projects like this one, in a way that enables federal agencies to conclude that these projects won’t jeopardize species. That blinkering is more a symptom of weak political will than of weak law.
Even certainly one of the core statutes governing ConocoPhillips’s rights under these existing leases, the Naval Petroleum Reserves Production Act, directs the Biden administration to constrain the exercise of existing lease rights to limit environmental harm. The NPRPA, for instance, requires that BLM “provide for such conditions, restrictions, and prohibitions” on activities inside the Reserve because it determines mandatory to guard the Reserve’s surface resources. And BLM may suspend operations and production “within the interest of conservation of natural resources” or to mitigate “reasonably foreseeable and significantly hostile effects on surface resources” under that statute.
And there will definitely be more litigation. Trustees of Alaska and other groups against the Willow project released a press release saying that “authorization of the project comes after a deficient supplemental environmental review process that didn’t assess the extraordinary and cumulative impacts of the project on Arctic communities, lands and water, wildlife, and the worldwide climate.” Earthjustice has said it could file a lawsuit as soon as this Wednesday to try to block the project from going forward.
Global impacts
There’s one other pressing query within the aftermath of the Biden administration’s decision. How does this approval relate to U.S. international agreements and climate projections?
The wells on these three sites could produce greater than 600 million barrels of crude over 30 years. That will release some 280 million metric tons of carbon dioxide, in keeping with a federal evaluation. Quite a lot of different estimates have put those greenhouse gas emissions on par with half 1,000,000 homes, or 75 coal plants on the grid for a 12 months, or adding two million cars on the road. Approving such a project—reasonably than utilizing all its legal tools to the best degree possible to pursue a distinct final result—creates some cognitive dissonance. On one hand, the Biden administration says it stays committed to meeting urgent climate goals while however approving a latest oil project of this size and scope. It’s clearly a step in the other way from what the International Energy Agency has indicated is required to fulfill the Paris Agreement’s temperature targets. The IEA’s roadmap to net zero by 2050 requires “no investment in latest fossil fuel supply projects, and no further final investment decisions for brand spanking new unabated coal plants.”
In The Atlantic, Emma Marris takes an in-depth take a look at the IEA 2021 report as context to the Willow project and finds it unnecessary to fulfill U.S. energy goals.
“If renewables continue to grow at their current rate, it projects, renewable energy would account for 38 percent of world electricity by 2027—two years before Willow oil would finally start flowing. Add in some serious demand reduction through energy-efficiency improvements and electrification of transport, and our remaining fossil-fuel needs will easily be met by existing drill sites. Ignore not needing Willow at the tip of its 30-year life span. It’ll be obsolete before the ribbon is cut.”
Biden’s approval of the Willow oil drilling project got here one week before the Intergovernmental Panel on Climate Change is about to release its final component of the Sixth Assessment, the Synthesis Report. News of ultimate approval got here as IPCC members met in Switzerland. In his opening remarks, UN Secretary-General António Guterres said, “We’re nearing the purpose of no return; of overshooting the internationally agreed limit of 1.5 degrees Celsius of world warming. We’re on the tip of a tipping point.” One wonders what that body has to say about this U.S. development. And the way they may greet the claim by the Biden administration that “we had limited legal ability’ to disclaim latest oil drilling.
