Midnight Watch: Public Lands

Arctic Refuge Seismic Surveying and Lease Sale

In August 2020, the Bureau of Land Management (BLM) issued a record of decision to open the Coastal Plain of the Arctic National Wildlife Refuge to oil and gas leasing. The decision was based on a September 2019 environmental impact statement that, among numerous other flaws and deficiencies, questioned the existence of climate change while simultaneously asserting that the impacts of oil and gas development on the Arctic Refuge ecosystem would be insignificant relative to the impacts of climate change, and failed to analyze environmental impacts associated with seismic surveying that would precede drilling activity.

Lease Sale

On November 17, BLM published a call for nominations and comments for tracts of land for oil and gas drilling in the Arctic Refuge, giving the oil and gas industry 30 days — until December 17, 2020 — to provide comments on the tracts that have been identified for potential sale. Normally, BLM would take some time to review the comments before publishing a notice of sale, which would identify a lease sale date at least 30 days in the future.

On December 7, BLM published a notice of sale announcing an Arctic Refuge lease sale scheduled for January 6, 2021. Taking these steps out of sequence — publishing a notice of sale ten days prior to the closing of the public comment period for BLM's call for nominations — is highly unusual and potentially unlawful. The relevant regulations require that a “detailed statement of the sale, including a description of the areas to be offered for lease, the lease terms, conditions and special stipulations and how and where to submit bids shall be made available to the public immediately after publication of the notice of sale.”

🔴NEW DEVELOPMENT: BLM proceeded with the lease sale on January 6, but received few bids and collected a mere $7 million in federal revenue. No major oil and gas companies submitted bids, and the biggest player in the auction was an economic development corporation owned by the State of Alaska.

Seismic Surveying

BLM accepted comments through November 6, 2020 on a proposed plan to conduct seismic surveying — a subsurface resource exploration technique that poses a significant threat to polar bears and other wildlife — in the eastern portion of the Coastal Plain. State attorneys general filed comments warning that BLM has “failed to provide the public with any information about the environmental impacts” of the plan, which are expected to be significant given that it will likely involve “seismic testing across a third of the Coastal Plain and construction of hundreds of miles of snow access trails, multiple airstrips, and thousands of miles of receiver lines.”

  • On December 8, the U.S. Fish and Wildlife Service published a proposed incidental harassment authorization related to the plan's impacts on polar bears. The Service accepted comments through January 7.
  • On December 16, BLM published notice of an environmental assessment and proposed Finding of No New Significant Impact (FONNSI) for the proposed seismic surveying. BLM accepted comments through December 30.

National Petroleum Reserve-Alaska Integrated Activity Plan

In June 2020, BLM released a final environmental impact statement (EIS) and integrated activity plan (IAP) to open an additional 6.6 million acres of the National Petroleum Reserve-Alaska to new oil and gas leasing. The expansion would include crucial wildlife habitat — including areas around the Teshekpuk Lake wetlands complex — that BLM designated as off-limits to leasing in its 2013 integrated activity plan, which was completed after extensive research and broad public involvement. The EIS fails to provide a defensible, evidence-based justification for the expansion of leasing into these areas, as state attorneys general noted in comments filed on the draft EIS in January 2020. The attorneys general also highlighted the plan’s failure to adequately account for the plan’s potential climate impacts, especially with regard to migratory birds, emphasizing that conditions are worse now for the Reserve’s wildlife than they were in 2013 as a result of the intensifying impacts of climate change.

🔴NEW DEVELOPMENT: On January 4, BLM published a record of decision adopting the new integrated activity plan. Under the new IAP, roughly 82% — 18.6 million acres — of the National Petroleum Reserve-Alaska will be open to oil and gas drilling.

Valuation Rule 

🔴NEW DEVELOPMENT: On January 15, 2021, the Interior Department published a final rule eliminating several key provisions in the 2016 Valuation Rule, which had reformed procedures for determining the royalties owed to the federal government from coal, oil and gas extracted on public lands. The rule will take effect on February 16, 2021. The rule will become effective on February 16, 2021. California and New Mexico twice successfully sued to defeat prior attempts to delay and repeal the Valuation Rule.

Offshore Oil and Gas Development

In January 2018, the Interior Department’s Bureau of Ocean Energy Management (BOEM) proposed a revised Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2019-2024. The plan would open more than 90% of the United States’ offshore waters for oil and gas exploration and development, including areas adjacent to East and West Coast states that strongly oppose such development off their shores and lack the onshore infrastructure needed to receive and process oil and gas. Many of the areas included in the plan have little production potential, and opening them for leasing is “simply not worth the environmental and economic disruption, much less the risk of a disaster with adverse effects persisting for many years,” as state attorneys general emphasized in comments filed in March 2019. The administration paused the plan following a March 2019 decision by the U.S. District Court for the District of Alaska that vacated a similar attempt to restart offshore leasing in Arctic waters; that decision was appealed to the U.S. Court of Appeals for the Ninth Circuit, which has not yet issued a ruling. President Trump has since placed a 10-year moratorium on offshore energy development off the coasts of Florida, Georgia, South Carolina, and North Carolina, and the fate of the revised OCS leasing program remains unclear.

Excluding Forest Service Actions from NEPA Reviews

On November 19, the U.S. Forest Service published a final rule that will allow a range of actions by the service to proceed without undergoing full National Environmental Policy Act (NEPA) review. The rule expands two existing categorical exclusions and creates six new exclusions for activities with potentially significant environmental impacts, including "activities related to recreation special uses, administrative sites, recreation sites, and restoration and resilience projects, along with two [categorical exclusions] for certain road management projects.” The changes took effect immediately upon the rule’s publication.

Restricting LWCF Implementation

On November 9, Interior Secretary David Bernhardt issued an order that would effectively give state and local governments the ability to block federal acquisitions of land through the Land and Water Conservation Fund (LWCF). The order requires the federal government to obtain a “written expression of support by both the affected Governor and local county or county-government-equivalent” before completing a LWCF-funded acquisition. The LWCF provides funds for states to spend on qualifying projects; neither the language nor the structure of the LWCF allows for states to also exercise a veto over federal conservation investment decisions. Both Republican and Democratic lawmakers who championed the legislation sharply criticized the order, as did conservation groups.