Alaska Indus. Dev. & Export Auth. v. Biden

685 F.Supp.3d 813

ALASKA INDUSTRIAL DEVELOPMENT AND EXPORT AUTHORITY, et al., Plaintiffs,andState of Alaska, Intervenor-Plaintiff, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al.,¹ Defendants,andNative Village of Venetie Tribal Government, et al., Intervenor-Defendants.

Case No. 3:21-cv-00245-SLG

United States District Court, D. Alaska

Signed August 7, 2023

Bryson Campbell Smith, Pro Hac Vice, Holland & Hart LLP, Jackson, WY, Kyle W. Parker, William G. Cason, Holland & Hart LLP, Anchorage, AK, for Plaintiffs Alaska Industrial Development and Export Authority, Kaktovik Inupiat Corporation.

Bryson Campbell Smith, Pro Hac Vice, Holland & Hart LLP, Jackson, WY, Kyle W. Parker, Holland & Hart LLP, Anchorage, AK, for Plaintiffs North Slope Borough, Arctic Slope Regional Corporation.

Gail L. Wurtzler, Pro Hac Vice, Kathleen C. Schroder, Pro Hac Vice, Mark E. Champoux, Pro Hac Vice, Nicholas R. Peppler, Pro Hac Vice, Davis Graham & Stubbs LLP, Denver, CO, Ronald Walter Opsahl, Alaska Department of Law, Anchorage, AK, for Intervenor-Plaintiff.

Paul A. Turcke, C/O U.S. Attorney's Office, Boise, ID, for Defendants Joseph R. Biden, Jr., United States Department of Interior, Deb Halland, Laura Daniel-Davis, Bureau of Land Management, Tracy Stone-Manning, Thomas Heinlein.

Matthew Neil Newman, Megan Rachel Condon, Native American Rights Fund, Anchorge, AK, Karen E. Schmidt, Peter H. Van Tuyn, Bessenyey & Van Tuyn, LLC, Anchorage, AK, for Intervenor-Defendants Native Village of Venetie Tribal Government, Venetie Village Council, Arctic Village Council.

Brian Litmans, Bridget Earley Psarianos, Brook Brisson, Suzanne Bostrom, Victoria Clark, Trustees for Alaska, Anchorage, AK, for Intervenor-Defendants Gwich'in Steering Committee, Alaska Wilderness League, Alaska Wildlife Alliance, Canadian Parks & Wilderness Society-Yukon, Defenders of Wildlife, Environment America, Inc., Friends of Alaska National Wildlife Refuges, National Wildlife Federation, Northern Alaska Environmental Center, The Wilderness Society, Wilderness Watch.

Brian Litmans, Bridget Earley Psarianos, Brook Brisson, Suzanne Bostrom, Trustees for Alaska, Anchorage, AK, for Intervenor-Defendant National Wildlife Refuge Association.

Brian Litmans, Bridget Earley Psarianos, Brook Brisson, Suzanne Bostrom, Victoria Clark, Trustees for Alaska, Anchorage, AK, Karimah Schoenhut, Pro Hac Vice, Sierra Club Environmental Law Program, Washington, DC, for Intervenor-Defendant Sierra Club.

ORDER RE MOTIONS FOR SUMMARY JUDGMENT

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 60 is the motion for summary judgment filed by Plaintiffs Alaska Industrial Development and Export Authority ("AIDEA"), North Slope Borough, Arctic Slope Regional Corporation, and Kaktovik Iñupiat Corporation; at Docket 59 is Intervenor-Plaintiff State of Alaska's (the "State") motion for summary judgment.² Plaintiffs and the State challenge President Joe Biden's Executive Order 13990 ("EO 13990") and actions the U.S. Department of the Interior ("DOI" or "Interior") and the Bureau of Land Management ("BLM") took to implement that order's directive to place a temporary moratorium (the "Moratorium") on the federal government's implementation of an oil and gas leasing program (the "Program") on the Coastal Plain of the Arctic National Wildlife Refuge ("ANWR" or the "Refuge").

The President, DOI, Interior Secretary Deb Haaland, Interior Principal Deputy Assistant Secretary of Land and Minerals Management Laura Daniel-Davis, BLM, BLM Director Tracy Stone-manning, and BLM Alaska State Director Cohn (collectively, "Federal Defendants")³ responded in opposition at Docket 63 to Plaintiffs' and the State's motions and request entry of judgment in their favor. Intervenor-Defendants Gwich'in Steering Committee, et al., and the Native Village of Venetie Tribal Government, Arctic Village Council, and Venetie Village Council(collectively, "Intervenor-Defendants") responded in opposition to Plaintiffs' and the State's motions at Docket 64 and Docket 65, respectively.⁴ Federal Defendants and Intervenor-Defendants are hereinafter collectively referred to as "Defendants." Plaintiffs replied to the oppositions at Docket 67, and the State replied at Docket 66.

The Court heard oral argument on June 20, 2023. For the reasons set forth below, the Court denies Plaintiffs' and the State's motions and enters judgment in favor of Defendants.

BACKGROUND

This case is one of several actions involving Agency Defendants' implementation of the Program on ANWR's Coastal Plain. The Court described the Coastal Plain and its cultural, ecological, and economic significance in a January 2021 order issued in Gwich'in Steering Committee v. Bernhardt.⁵ The Court assumes familiarity here.

As relevant here, in December 2017, Congress authorized an oil and gas leasing program on the Coastal Plain through Section 20001 of the Tax Cuts and Jobs Act of 2017 (the "Tax Act").⁶ Section 20001(b)(1) amends the Alaska National Interest Lands Conservation Act ("ANILCA")⁷ by lifting the restriction on oil and gas development on the Coastal Plain that had been included in ANILCA since it was enacted in 1980; it does so by adding an additional purpose for the Refuge: "to provide for an oil and gas program on the Coastal Plain." Section 20001(b)(2)(A) directs the Interior Secretary to "establish and administer a competitive oil and gas program for the leasing, development, production, and transportation of oil and gas in and from the Coastal Plain." Section 20001(c)(1) requires the Interior Secretary to conduct at least two area-wide lease sales under this program of at least 400,000 acres each; the Interior Secretary "shall offer" the first lease sale not later than December 22, 2021, and the second not later than December 22, 2024. Section 20001(c)(2) directs the Interior Secretary to "issue any rights-of-way or easements across the Coastal Plain for the exploration, development, production, or transportation necessary to carry out this section." Section 20001(c)(3) provides that the Interior Secretary "shall authorize up to 2,000 surface acres of Federal land on the Coastal Plain to be covered by production and support facilities (including airstrips and any area covered by gravel berms or piers for support of pipelines) during the term of the leases under the oil and gas program under this section." The Tax Act further instructs the Interior Secretary, "[e]xcept as otherwise provided in this section," to administer this oil and gas program "in a manner similar to the administration of lease sales under the Naval Petroleum Reserves Production Act of 1976 . . . (including regulations)."⁸

After Congress passed the Tax Act, BLM initiated the Program's review process pursuant to the National Environmental Policy Act ("NEPA"). In September 2019, BLM released an Environmental Impact Statement (the "EIS") analyzing the environmental impacts of a leasing program on the Coastal Plain.⁹ The EIS evaluated three action alternatives and one no-action alternative.¹⁰ BLM identified the alternative that "offers the opportunity to lease the entire program area" and "the fewest acres with no surface occupancy (NSO) stipulations" as its preferred alternative.¹¹ BLM did not analyze alternatives that allowed fewer than 2,000 acres of surface facilities, reasoning that doing so "would be inconsistent with [the Tax Act] as Congress explicitly established the protective facility acreage limit."¹²

In August 2020, then-Interior Secretary David Bernhardt published a Record of Decision (the "ROD") establishing the Program.¹³ The ROD adopted the preferred alternative identified in the EIS with some modifications.¹⁴ Then, on December 7, 2020, BLM published a Notice of 2021 Coastal Plain Alaska Oil and Gas Lease Sale and Notice of Availability of the Detailed Statement of Sale.¹⁵ The lease sale took place on January 6, 2021.¹⁶ Three bidders participated: AIDEA; Knik Arm Services, LLC; and Regenerate Alaska, Inc.¹⁷ AIDEA secured leases for seven tracts of land, while Knik Arm Services, LLC, and Regenerate Alaska, Inc., each secured a lease for one tract of land.¹⁸

When President Biden took office two weeks later, he issued EO 13990, which directed DOI to conduct a supplemental environmental review of the Program and, during the pendency of such review, temporarily halt all activities related to the Coastal Plain oil and gas leases.¹⁹ Section 4(a) of EO 13990 provides:

In light of the alleged legal deficiencies underlying the program, including the inadequacy of the environmental review required by the National Environmental Policy Act, the Secretary of the Interior shall, as appropriate and consistent with applicable law, place a temporary moratorium on all activities of the Federal Government relating to the implementation of the Coastal Plain Oil and Gas Leasing Program, as established by the Record of Decision signed August 17, 2020, in the Arctic National Wildlife Refuge. The Secretary shall review the program and, as appropriate and consistent with applicable law, conduct a new, comprehensive analysis of the potential environmental impacts of the oil and gas program.²⁰

Following the President's directive, on June 1, 2021, Interior Secretary Haaland issued Secretarial Order 3401 (the "Secretarial Order"), which instructed DOI and BLM officials to conduct the supplemental environmental review and instituted a "temporary halt on all Department activities related to the Program in the Arctic Refuge" while that supplemental review was being conducted.²¹ The temporary halt extended to "any action[s] to authorize any aspect of the Program, including, but not limited to, any leasing, exploration, development, production, or transportation," and the "process[ing of] any pending or future applications for such activities."²² The Secretarial Order expanded upon the justifications for the temporary moratorium articulated in EO 13990:

My

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