Alaska Wilderness v. Kempthorne

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-71457, 07-71989, and 07-72183. The petitioners are six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenge the Minerals Management Service’s (MMS) approval of an exploration plan submitted by Shell Offshore Inc. (Shell). Shell seeks to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea.

Petitioners challenge the agency’s action under the National Environmental Policy Act (NEPA), and the Outer Continental Shelf Lands Act (OCSLA). Petitioners allege that MMS failed to take the requisite “hard look” at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by NEPA, OCSLA, and their implementing regulations. Petitioners also argue that MMS erred by failing to prepare an environmental impact statement (EIS) for the proposed exploration activities, because of the potential for significant harmful effects on the environment.

The Appeals Court, in a split 2-1 decision vacated the Agency’s approval of Shell’s exploration plan, and remanded the case so that MMS can conduct the “hard look” analysis required by NEPA. The Appeals Court said MMS must prepare a revised EA "or, as necessary, an EIS."

In part, the majority said, ". . . having specific information about well locations is critical to the agency’s ability to analyze the project’s environmental effects. MMS acted in contravention of the regulations by approving Shell’s three-year plan without
determining the locations of the wells that would be drilled in that period. In order to comply with the regulations, the agency needs to consider the location of the proposed wells before it can approve the project for all three years."

Access the complete opinion and dissent (click here).