September 2020 – Water Policy Consulting LLC

Unflagging Opposition to Business-as-Usual Extraction Practices

With Present Trump rolling back one environmental policy after another, ongoing efforts to slow global warming, safeguard wilderness, and provide clean water and air can seem futile. But never doubt that a handful of thoughtful, committed lawsuits can change the world. Indeed, it may be the only recourse that can.

We need look no farther than the Gwich’in Native community for inspiration when it comes to fighting to protect the environment. For more than thirty years they have resisted attempts to open up the Arctic National Wildlife Refuge to oil and gas drilling. Under Trump’s plan to open lease sales across the entire coastal plain, that fight has kicked into high gear. For the Gwich’in, the coastal plain, birthing grounds for the Porcupine caribou herd which numbers approximately 200,000, is sacred ground. Their culture, history and way of life revolve around the caribou and the 1.5 million-acre expanse of coastal lands. Sarah James, Gwich’in elder, explains, “We have a special connection in that we are a part of the caribou and the caribou are part of us. It is our language, our songs, our dance…. We take care of the caribou, and in return, they take care of us, and that’s really important to my people here.”

The Gwich’in Sterring Committee, along with several other plaintives including Canada’s Yukon chapter of Canadian Parks and Wilderness Society, filed a lawsuit in late August, seeking to overturn Trump’s approval for oil leasing, and siting violations of the Alaska Native Claims Settlement Act and likely impacts to the Porcupine Caribou Herd.

A second lawsuit to halt oil leasing on the Refuge filed by The National Audubon Society, Natural Resources Defense Council, Friends of the Earth, and Center for Biological Diversity sight insufficient concern over increased greenhouse gas emissions and melting permafrost, poor air quality, and negative impacts to the region’s wildlife.

And most recently, a third lawsuit to overturn drilling in the Arctic National Wildlife Refuge was filed on September 9th with the U.S. District Court in Anchorage by attorneys general for 15 states and led by Washington and Massachusetts. The lawsuit states that drilling will contribute to global climate change and its effects such as sea level rise and extreme weather events.

A number of other environmental legal battles continue in Alaska and Siberia. In North-western Alaska’s National Petroleum Reserve, Trump seeks to overthrow Obama-era safeguards by expanding development into regions of the Reserve long slated for protection. Two recent lawsuits are pushing back against expanded development in NPR-A oil leasing. The lawsuits are in response to the final environmental impact statement released by the Bureau of Land Management in June allowing oil leasing on 18.7 million acres in the 23-million-acre reserve, including drilling in Teshekpuk Lake. Teshekpuk is the largest lake on the North Slope and provides critical habitat for migratory waterfowl and shorebirds.

And while a lawsuit filed by the Natural Resources Defense Council challenging the U.S. Environmental Protection Agency’s reversal of restrictions on Pebble Mine was dismissed in US District Court, Alaska Senator Dan Sullivan has joined a growing rank of conservatives who are openly opposed to the Pebble mine project. The proposed gold, molybdenum and cooper mine, in South-central Alaska’s Lake and Peninsula region, is recognized as a threat to the nationally-significant Bristol Bay salmon fisheries. Following the release of secret recordings by Pebble executives, Sullivan stated in a tweet on September 24^th, “Let me be even more clear: I oppose Pebble Mine. No Pebble Mine.” This follows a surprise stipulation issued by the U.S. Army Corps of Engineers in late August to Dynasty Minerals Ltd requiring the mine owners to outline how they will offset damage to wetlands and any impacts to the Bristol Bay salmon fishery. Other conservatives who oppose the mine, at least as it is currently proposed, including Alaska Senator Lisa Murkowski, Donald Trump Junior and Fox News host Tucker Carlson.

In the southern part of the state, Southeast Alaska Conservation Council, and other conservation groups including the Chilkat Indian Village of Klukwan, lost lawsuits in federal district court and the Ninth Circuit court which sought to challenge federal permits issued to the Palmer mine project near Haines. The Constantine Metal Resources Ltd. obtained permits to build 2.5 miles of roads across U.S. Bureau of Land Management (BLM) lands to access zinc, copper, gold and silver deposits. The lawsuit argued that BLM did not factor in future mining development at the Palmer mine and impacts on the 3,000 bald eagles and spawning salmon along the nearby Chilkat River.

In southeastern Alaska, the Trump administration is zeroing in on the Tongass National Forest, seeking to exclude this, the nation’s largest national forest, from the Clinton-era roadless rule. A much-disputed study by the U.S. Forest Service states that lifting protections “will not significantly harm the environment.” By year’s end, the Trump administration hopes to open vast tracts of pristine old growth forest to road construction and timber sales. Recent lawsuits blocking timber sales that failed to identify impacted areas, and for deficiencies in the review process have stalled the sales process several times. That pushback resulted in the Trump administration implementing the new roadless rule exemption.

Meanwhile, in the Russian far north, a lawsuit has been filed against Norilsk Nickle seeking 1.96 billion dollars in damages for a May 29^th fuel spill. The spill, blamed on melting permafrost, dumped 21,000 tons of diesel into the Ambarnaya and Daldykan rivers which feed into Lake Pyasino before emptying into the Arctic Ocean. The spill is one of the largest ever recorded in the Arctic and has been compared with Alaska’s 1989 ExxonValdez spill, in part because both spills coincided with the spring migration — just as birds and fish are returning to their natal grounds.

The one take-away the Gwich’in can offer in this legal playing field is don’t give up. The fights for the Coastal Plains, the Tongas, and the headwaters of Bristol Bay continue, one lawsuit at a time. For Gwich’in elder Sarah James it’s straight forward. “We’re not a nonprofit. We’re not a movement. We’re not a corporation. We’re a neets’aii Gwich’in tribal government, and that’s how we’re now taking on this issue, government-to-government, and we’re standing our ground.”

Ten Tribes Partnership Takes a Seat at the Table for Colorado River Management

The Colorado River basin is home to 26 federally recognized tribes in seven western states. Despite their long-standing rights to about 20% of the water that flows through the Colorado, many tribes are excluded from water management decisions and don’t benefit from basic water infrastructure and a secure supply of clean, safe water. The Ten Tribes Partnership is taking a seat at the decision-making table by building capacity among tribes to claim their right to water, establishing water leases, and helping restore the river’s health. Drawing upon a spiritual mandate to “ensure that this sacred water will always be protected and available” the tribes are working to “advance sustainable water management through collaborative decision-making.”

There are alternatives to sacrificing the Arctic National Wildlife Refuge’s coastal plain

The Trump administration recently gave the final go-ahead to drilling in the Arctic National Wildlife Refuge, which by the end of 2020 would authorize the sale of two separate 400,000-acre oil and gas leases, encompassing a major portion of the refuge’s coastal plain and 8 percent of the 19.3 million-acre Refuge.

Opponents who have filed multiple lawsuits to stop the leasing, believe that the approval process was rushed for political reasons resulting in a flawed and inadequate analysis of the environmental impacts, violating prohibitions on killing or harassing of polar bears and laws requiring the protection of indigenous subsistence resources as well as exacerbate sea level rise, extreme weather events, the spread of diseases like and other impacts of climate change.

Alaska’s political leadership, on the other hand, seems unfazed by yet another botched Trump administration environmental analysis and the fact that more drilling in the Arctic will contribute to Alaska’s carbon footprint. Sen. Lisa Murkowski, for example, said “[t]his is a capstone moment in our decades-long push to allow for the responsible development of a small part of Alaska’s 1002 Area. … I’m confident the ROD has been developed carefully and comprehensively and look forward to the lease sales mandated by law…”

Why are our political leaders still stepping in line with President Trump’s insatiable thirst for oil no matter what the environmental cost, when economists have been warning for decades that the state is too dependent on the oil and gas industry to bail it out from spending at an unsustainable rate year after year?

It should have been obvious in the mid-1980s when global oil prices crashed sending the state into a full recession, that not only were the days of the oil and gas fueling fiscal growth over, but continuing to put all the state’s eggs in one basket would actually harm the economy. That the ongoing sugar-daddy delusion was still alive and well by 2003, however, is illustrated by then-Gov. Frank Murkowski’s announcement regarding the solution to the state’s economic crises: “Ladies and gentlemen, in a single word, it’s oil.”

Today the state’s addiction to oil is partly illustrated by the millions it provides via annual tax write-offs to oil and gas corporations who drill in Alaska but do not provide much in the way of return on this investment. in 2014, for example, the state’s largest producer, ConocoPhillips, made 68 percent of its global profits from Alaska but invested only 15 percent of its global capital in the state.

Despite the delusion of some politicians that drilling in places like ANWR could take Alaska back to the days of economic Nirvana of Prudhoe Bay, one thing that could prevent development in ANWR would be if presidential candidate Joe Biden who, if elected, has promised to “permanently protect” the refuge.

But in the end, rather than politics or litigation, it is simple economics that could stop drilling in the coastal plain. Ever sense COVID-19 — which came at a time when oil prices were already down — drove those prices to historic lows, the industry as a whole has been bleeding money, shedding jobs, and interest in drilling in the remote sites with difficult conditions, such as the Arctic refuge, may be waning.

More importantly, while oil companies are making cutbacks in drilling programs, banks
are less inclined to front them capital on future investments resulting in a vicious cycle of less funding available for future drilling. This situation has been further exacerbated by the
declaration from several global banks that they will stop financing oil and gas exploration in the Arctic due to the need to move away from fossil fuels and invest in alternative energy sources because of the rapidly increasing impacts of climate change on communities and ecosystems in the Arctic.

The good news is that with the banks turning away from fossil fuel investments while they decide what kind of energy programs could benefit from COVID-19 stimulus funding, there may not be a better chance than right now to move towards green energy. Fossils fuels have become no more than an economic dinosaur and a carbon-producing disaster, especially for the Arctic.

So, rather than sacrificing the coastal plain and Alaska’s fiscal future, why not investigate the potential local and global economic impact of renewable energy in the Arctic, including solar, and hydro and wind power as part of Alaska’s financial recovery?

This Op-ed also appeared in the September 24, 2020 edition of Arctic Today.

Trump Would Like You to Think He’s Gone Environmental

Just weeks away from the Presidential election, Trump is pandering for votes by suggesting that he is our man when it comes to preserving the environment. Describing himself as “the number one environmental president since Teddy Roosevelt,” in recent weeks he has backtracked on his administration’s move to grant a permit for Pebble Mine in Alaska which has to potential to devastate Bristol Bay salmon runs, and extended a federal moratorium on offshore drilling in the Gulf of Mexico which is largely supported by residents of Florida, Georgia and South Carolina where he is trying to solidify his base. Moreover, he rescinded his nomination of William Perry Pendley, the controversial candidate chosen to run the Bureau of Land Management. This smokescreen does little to obscure the dozens of deregulatory actions undertaken by the Trump administration, including rolling back fuel economy standards, opening the Arctic National Wildlife Refuge coastal plains to oil leasing, and tougher air-quality standards to name but a few.

Lawsuits Filed on ANWR

Three lawsuits have been filed seeking to block the Trump administration’s efforts to sell oil leases in the Arctic National Wildlife Refuge. The National Audubon Society, Natural Resources Defense Council, Friends of the Earth, and Center for Biological Diversity have signed off on a lawsuit sighting insufficient concern over increased greenhouse gas emissions and melting permafrost, poor air quality, and negative impacts to the region’s wildlife. The lawsuit alleges violations of the National Environmental Protection Act, the National Wildlife Refuge System Administration Act, and the Endangered Species Act. A second lawsuit, filed by the Gwich’in Steering Committee also sites violations of the Alaska Native Claims Settlement Act, and includes plaintiffs in Canada’s Yukon chapter of Canadian Parks and Wilderness Society. Most recently, a third lawsuit was put forth by fifteen states including California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington. Concerns addressed in this lawsuit include habitat damage and greenhouse gas emissions, as well as impacts to waterfowl hunting and a lucrative birdwatching industry for birds that breed on the Arctic plain and overwinter in the lower 48 states.