Center for Biological Diversity et al v. Bureau of Land Management et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SOVEREIGN IÑUPIAT FOR A LIVING
ARCTIC, et al.,
Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT,
et al.,
Defendants,
and
CONOCOPHILLIPS ALASKA, INC.,
et al.,
Intervenor-Defendants.
Case No. 3:23-cv-00058-SLG
CENTER FOR BIOLOGICAL DIVERSITY,
et al.,
Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT,
et al.,
Defendants,
and
CONOCOPHILLIPS ALASKA, INC.,
et al.,
Intervenor-Defendants.
Case No. 3:23-cv-00061-SLG
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DECISION & ORDER
This order is entered in two related cases challenging the Bureau of Land
Management’s (“BLM”) March 2023 Record of Decision (“ROD”) for the Willow
Master Development Plan (“Willow Project,” “Willow,” or “Project”), which
authorizes oil production on leases held by ConocoPhillips Alaska, Inc.
(“ConocoPhillips”), in the National Petroleum Reserve in Alaska (“NPR-A” or
“Reserve”). Sovereign Iñupiat for a Living Arctic Plaintiffs (“SILA Plaintiffs”)1 and
Center for Biological Diversity Plaintiffs (“CBD Plaintiffs”)2 (collectively, “Plaintiffs”)
bring suit pursuant to the Administrative Procedure Act (“APA”) against Federal
Defendants.3 ConocoPhillips, Arctic Slope Regional Corporation (“ASRC”), North
Slope Borough (“NSB”), Kuukpik Corporation (“Kuukpik”), and the State of Alaska
1 In Case No. 3:23-cv-00058-SLG, SILA Plaintiffs are Sovereign Iñupiat for a Living Arctic,
Alaska Wilderness League, Environment America, Northern Alaska Environmental Center,
Sierra Club, and The Wilderness Society.
2 In Case No. 3:23-cv-00061-SLG, CBD Plaintiffs are Center for Biological Diversity, Defenders
of Wildlife, Friends of the Earth, Greenpeace, Inc., and Natural Resources Defense Council, Inc.
3 In Case No. 3:23-cv-00058-SLG, Federal Defendants are the U.S. Bureau of Land
Management; U.S. Fish and Wildlife Service; and the U.S. Department of the Interior. In Case
No. 3:23-cv-00061-SLG, Federal Defendants are the same with the addition of the National
Marine Fisheries Service; U.S. Department of Commerce; Deb Haaland, in her official capacity
as Secretary of the Interior; Tommy P. Beaudreau, in his official capacity as Deputy Secretary of
the Interior; Gina M. Raimondo, in her official capacity as Secretary of Commerce; Steven
Cohn, in his official capacity as Alaska State Director of Bureau of Land Management; Sara
Boario, in her official capacity as Alaska Regional Director of U.S. Fish and Wildlife Service; and
Jonathan Kurland, in his official capacity as Regional Administrator of National Marine Fisheries
Service.
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(“State”) (collectively, “Intervenor-Defendants”) were permitted to intervene in both
cases.4
SILA Plaintiffs and CBD Plaintiffs filed opening briefs at Docket 105 in Case
No. 3:23-cv-00058-SLG and Docket 115 in Case No. 3:23-cv-00061-SLG,
respectively, seeking vacatur of BLM’s Record of Decision (“ROD”), BLM’s Final
Supplemental Environmental Impact Statement (“Final SEIS”), and the Fish and
Wildlife Service’s (“FWS”) Biological Opinion (“BiOp”). CBD Plaintiffs also seek to
set aside the Letter of Concurrence by the National Marine Fisheries Service
(“NMFS”).5 Federal Defendants and Intervenor-Defendants (collectively,
“Defendants”) each filed briefs in opposition.6 Plaintiffs each replied in support.7
ConocoPhillips then filed a Notice of Supplemental Authority in Support of
4 See Dockets 9, 27, 37, 39, 45 (Case No. 3:23-cv-00058-SLG); Dockets 28, 31, 40, 43, 51
(Case No. 3:23-cv-00061-SLG). In addition, there were numerous amici briefs filed in both
cases. See Dockets 100, 101, 104, 110, 133, 147 (Case No. 3:23-cv-00058-SLG); Dockets
117, 123, 125, 137, 146, 162 (Case No. 3:23-cv-00061-SLG).
5 See Docket 104 at ¶¶ 219-22 (Case No. 3:23-cv-00061-SLG).
6 Dockets 137 (Federal Defendants), 141 (ConocoPhillips), 142 (ASRC), 143 (NSB), 144
(Kuukpik), 145 (State) (Case No. 3:23-cv-00058-SLG); Dockets 149 (Federal Defendants), 153
(ConocoPhillips), 154 (ASRC), 155 (NSB), 156 (Kuukpik), 157 (State) (Case No. 3:23-cv-00061-
SLG). While SILA Plaintiffs’ and CBD Plaintiffs’ briefs are different from each other, Defendants’
briefs are identical in both cases. Therefore, the Court will cite only to Defendants’ briefing in
Case No. 3:23-cv-00058-SLG for simplicity.
7 Docket 155 (Case No. 3:23-cv-00058-SLG); Docket 170 (Case No. 3:23-cv-00061-SLG).
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Intervenor-Defendants’ Opposition to Plaintiffs’ Summary Judgment Motions,8 to
which Plaintiffs responded.9
SILA Plaintiffs also filed a Motion to Strike at Docket 150 in Case No. 3:23-
cv-00058-SLG, seeking to strike portions of ConocoPhillips’s and NSB’s filings in
opposition “that rely on extra-record evidence and the parties’ extra-record
declarations and materials.”10 ConocoPhillips and NSB each responded in
opposition at Docket 158 and Docket 157, respectively, to which SILA Plaintiffs
replied at Docket 163.11
No party requested oral argument, and oral argument was not necessary to
the Court’s determination.
BACKGROUND
The Court set out the background in some detail in its previous order at
Docket 74 in Case No. 3:23-cv-00058-SLG and Docket 82 in Case No. 3:23-cv-
00061-SLG.12 The Court assumes familiarity here and briefly summarizes the
relevant facts.
8 Docket 164 (Case No. 3:23-cv-00058-SLG); Docket 181 (Case No. 3:23-cv-00061-SLG).
9 Docket 165 (Case No. 3:23-cv-00058-SLG); Docket 182 (Case No. 3:23-cv-00061-SLG).
10 Docket 150 at 2 (Case No. 3:23-cv-00058-SLG).
11 Case No. 3:23-cv-00058-SLG.
12 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., Case No. 3:23-cv-00058-SLG,
2023 WL 2759864 (D. Alaska Apr. 3, 2023), appeal dismissed, No. 23-35226, 2023 WL
4339382 (9th Cir. May 19, 2023).
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The National Petroleum Reserve in Alaska (“NPR-A”), on Alaska’s North
Slope, consists of 23.6 million acres and is the Nation’s largest single unit of public
land.13 Established as the Naval Petroleum Reserve in 1923, the NPR-A was
renamed and its management authority was transferred to the Secretary of the
Interior in 1976 by the Naval Petroleum Reserves Production Act (“NPRPA”), 42
U.S.C. § 6501 et seq.14 In 1980, the NPRPA was amended by an appropriations
rider that directed the Secretary of the Interior to conduct “an expeditious program
of competitive leasing of oil and gas in the” NPR-A.15 Over the years, Intervenor-
Defendant ConocoPhillips has acquired and developed significant lease holdings
in the northeast portion of the NPR-A.16
On May 10, 2018, ConocoPhillips requested that BLM prepare an
Environmental Impact Statement (“EIS”) for the Willow Project, as required by the
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq.17
The following year, BLM made available for public comment a Draft EIS for the
13 N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969, 973 (9th Cir. 2006).
14 H.R. Rep. No. 94-81, at 5-6, 8-9 (1975); Naval Petroleum Reserves Production Act, Pub. L.
No. 94-258, 90 Stat. 303 (1976); 42 U.S.C. § 6503(a).
15 Pub. L. No. 96-514, 94 Stat. 2964 (1980) (codified at 42 U.S.C. § 6506a).
16 Docket 5 at 2-7 (Case No. 3:23-cv-00058-SLG) (ConocoPhillips Mot. to Intervene).
17 Notice of Availability of the Willow Master Development Plan Draft Environmental Impact
Statement, Alaska, 84 Fed. Reg. 45801, 45801 (Aug. 30, 2019).
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Project.18 Then, on March 26, 2020, BLM released a Supplemental Draft EIS that
evaluated additional Project components.19 BLM published its notice regarding the
availability of the Final EIS on August 14, 2020.20 On October 26, 2020, then-
Secretary of the Interior David Bernhardt signed the ROD approving the Willow
Project.21
In late 2020, a number of plaintiffs filed two lawsuits challenging the Federal
Defendants’ compliance with NEPA and the Endangered Species Act (“ESA”) in
preparing the Final EIS and ROD for the Willow Project.22 In August 2021, the
Court identified several discrete deficiencies in the agencies’ analyses and vacated
BLM’s approval of the Willow Project and FWS’s Biological Opinion (“BiOp”).23
18 Id.
19 Notice of Availability of the Supplement to the Willow Master Development Plan Draft
Environmental Impact Statement, Alaska, 85 Fed. Reg. 17094, 17094 (Mar. 26, 2020) (“This
targeted Supplement to the Draft EIS only addresses additional analysis for three Project
components added by the Project proponent: Module delivery Option 3, a constructed
freshwater reservoir, and up to three boat ramps for subsistence access.”).
20 Notice of Availability of the Willow Master Development Plan Final Environmental Impact
Statement, Alaska, 85 Fed. Reg. 49677 (Aug. 14, 2020).
21 Sovereign Iñupiat for a Living Arctic, 2023 WL 2759864, at *2.
22 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., 516 F. Supp. 3d 943, 948 (D.
Alaska 2021). Plaintiffs in those cases are nearly identical to those in these cases: Sovereign
Iñupiat for a Living Arctic, Alaska Wilderness League, Defenders of Wildlife, Northern Alaska
Environmental Center, Sierra Club, and The Wilderness Society (Case No. 3:20-cv-00290-
SLG), and Center for Biological Diversity, Friends of the Earth, and Greenpeace, Inc. (Case No.
3:20-cv-00308-SLG).
23 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., 555 F. Supp. 3d 739, 805 (D.
Alaska 2021) [hereinafter SILA I].
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Following the Court’s decision, BLM began preparing a Supplemental
Environmental Impact Statement (“SEIS”) for the Willow Project “to address
deficiencies identified by [the Court].”24 On July 25, 2022, BLM made available for
public comment a Draft SEIS.25 And on January 13, 2023, FWS issued a new
BiOp considering the effects of the Willow Project to listed species and designated
critical habitats protected by the ESA.26 On March 2, 2023, NMFS issued a Letter
of Concurrence to BLM’s biological assessment finding that the Willow Project
“may affect, but is not likely to adversely affect,” several species of marine
mammals.27 On February 6, 2023, BLM published the notice of availability of the
Final SEIS in the Federal Register.28 And on March 12, 2023, Deputy Secretary
of the Interior Tommy Beaudreau signed the ROD approving the Willow Project.29
As approved by the ROD, the Willow Project will consist of three drill sites
and related support infrastructure, including a processing facility, airstrip,
24 Notice of Availability of the Draft Supplemental Environmental Impact Statement for the
Willow Master Development Plan, Alaska, 87 Fed. Reg. 44148, 44149 (July 25, 2022).
25 Id. at 44148.
26 FWS_AR032380-582.
27 NMFS_AR000143. The marine mammals include: the bowhead whale, blue whale, fin whale,
North Pacific right whale, Western North Pacific distinct population segment (“DPS”) gray whale,
Western North Pacific DPS or Mexico DPS humpback whale, sperm whale, Arctic subspecies
ringed seal, Beringia DPS bearded seal, and the Western DPS Steller sea lion.
NMFS_AR000143.
28 Notice of Availability of the Final Supplemental Environmental Impact Statement for the
Willow Master Development Plan, Alaska, 88 Fed. Reg. 7756 (Feb. 6, 2023).
29 AR824916.
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operations center, gravel mine, gravel roads connecting the Project infrastructure,
and pipelines.30 The ROD disapproved of two additional drill sites that had been
proposed by ConocoPhillips, explaining that this decision “significantly reduces the
footprint of project infrastructure and the level of construction and operational
activities, both within and outside of the sensitive [Teshekpuk Lake Special Area],
and thereby substantially reduces impacts to a broad range of surface
resources.”31 Five days after BLM issued the ROD, ConocoPhillips relinquished
68,085.50 acres of leased lands in the Reserve because BLM “did not approve
drilling pads that could have developed [these] leases.”32
SILA Plaintiffs filed their case on March 14, 2023, and CBD Plaintiffs filed
their case the following day.33 On March 16, 2023, Plaintiffs moved for preliminary
injunctive relief and a temporary restraining order seeking to enjoin ConocoPhillips
from beginning construction activities for the Willow Project.34 This Court denied
those motions on April 3, 2023.35 Plaintiffs unsuccessfully sought emergency relief
at the Ninth Circuit, and shortly thereafter voluntarily dismissed their preliminary
30 AR824892.
31 AR824900.
32 Docket 48-10 at 23 (Case No. 3:23-cv-00058-SLG).
33 Docket 1 (Case No. 3:23-cv-00058-SLG); Docket 1 (Case No. 3:23-cv-00061-SLG).
34 Docket 23 (Case No. 3:23-cv-00058-SLG); Docket 24 (Case No. 3:23-cv-00061-SLG).
35 Sovereign Iñupiat for a Living Arctic, 2023 WL 2759864, at *15.
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injunction appeals.36 The merits of Plaintiffs’ claims against Federal Defendants
are now ripe for decision.
JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
which “confer[s] jurisdiction on federal courts to review agency action, regardless
of whether the [Administrative Procedure Act] of its own force may serve as a
jurisdictional predicate.”37
LEGAL STANDARD
Plaintiffs seek judicial review under the Administrative Procedure Act
(“APA”).38 Under that statute, a reviewing court shall set aside agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]”39 Agency action is arbitrary and capricious if it:
relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem, offer[s]
an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it c[an]not be ascribed to a
difference in view or the product of agency expertise.40
36 Sovereign Iñupiat for a Living Arctic, 2023 WL 4339382, at *1.
37 Califano v. Sanders, 430 U.S. 99, 105 (1977).
38 Docket 88 at ¶ 11 (Case No. 3:23-cv-00058-SLG) (Am. Compl.); Docket 104 at ¶ 11 (Case
No. 3:23-cv-00061-SLG) (Am. Compl.).
39 5 U.S.C. § 706(2)(A).
40 Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034 (9th Cir. 2019) (alterations in
original) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)).
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A court’s review of whether an agency action is arbitrary and capricious should be
“searching and careful,” but “narrow,” as a court may not substitute its judgment
for that of the administrative agency.41 “[D]eference to the agency’s decisions is
especially warranted when reviewing the agency’s technical analysis and
judgments, based on an evaluation of complex scientific data within the agency’s
technical expertise.”42 “Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”43 “Whether agency
action is ‘not in accordance with law’ is a question of statutory interpretation, rather
than an assessment of reasonableness in the instant case.”44
DISCUSSION
Upon consideration of the parties’ briefing and the record in this case, the
Court finds as follows:
41 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
42 Native Vill. of Point Hope v. Salazar, 680 F.3d 1123, 1130 (9th Cir. 2012) (internal quotation
marks omitted).
43 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation marks omitted).
44 Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Env’t Advocs. v. EPA, 537
F.3d 1006, 1014 (9th Cir. 2008)).
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I. National Environmental Policy Act
Plaintiffs bring two NEPA claims: First, Plaintiffs contend that BLM failed to
consider a reasonable range of alternatives for the Willow Project, as required by
NEPA.45 Second, Plaintiffs contend that BLM violated NEPA by failing to
adequately analyze global greenhouse gas emissions from future oil development
on lands adjacent to Willow, for which Willow will serve as a catalyst.46
a. Reasonable Range of Alternatives
Both sets of Plaintiffs claim that BLM’s alternatives analysis for the Willow
Project violated NEPA.47 In preparing an EIS, an agency must “[r]igorously explore
and objectively evaluate all reasonable alternatives” to a proposed action, “and for
alternatives which were eliminated from detailed study, briefly discuss the reasons
for their having been eliminated.”48 “NEPA does not force agencies to ‘review
45 Docket 105 at 17-25 (Case No. 3:23-cv-00058-SLG); Docket 115 at 17-24 (Case No. 3:23-cv-
00061-SLG).
46 Docket 105 at 30-32 (Case No. 3:23-cv-00058-SLG); Docket 115 at 24-29 (Case No. 3:23-cv-
00061-SLG).
47 Docket 105 at 18 (Case No. 3:23-cv-00058-SLG); Docket 115 at 17 (Case No. 3:23-cv-
00061-SLG).
48 40 C.F.R. § 1502.14(a) (2019). The Council on Environmental Quality published a new rule,
effective September 14, 2020, that substantially revised the regulations implementing NEPA,
including changes to the definition of reasonable range of alternatives. However, citations in
this case are to the 2019 Code of Federal Regulations, reflecting the regulations originally
promulgated in 1978, with a minor substantive amendment in 1986. See National
Environmental Policy Act—Regulations, 43 Fed. Reg. 55978 (Nov. 29, 1978); National
Environmental Policy Act Regulations; Incomplete or Unavailable Information, 51 Fed. Reg.
15618 (Apr. 25, 1986). This is because the 2020 NEPA regulations only apply to NEPA process
begun after September 14, 2020, although agencies have the option to apply the 2020 NEPA
regulations to ongoing activities begun before that date. 40 C.F.R. § 1506.13 (2020). BLM
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remote and speculative alternatives,’ ‘only reasonable or feasible ones.’”49
However, an EIS must consider alternatives “varied enough to allow for a real,
informed choice.”50 “The range of alternatives that an agency must consider is
based on the purpose and need of the proposed agency action,” so a court must
“begin by determining whether or not the purpose and need statement was
reasonable.”51 A court then “determine[s] whether the agency considered a
reasonable range of alternatives based on its purpose and need.”52 “The existence
of a viable but unexamined alternative renders an environmental review conducted
under NEPA inadequate.”53 The “touchstone for [a court’s] inquiry is whether an
determined that since the 2020 Willow Final EIS was developed under the 1978 regulations, the
2023 SEIS would also comply with the 1978 regulations as they concern a reasonable range of
alternatives. See AR821922.
49 City of Los Angeles v. Fed. Aviation Admin., 63 F.4th 835, 843 (9th Cir. 2023) (first quoting
Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 580 (9th Cir. 2016); and then quoting City of
Sausalito v. O’Neill, 386 F.3d 1186, 1207 (9th Cir. 2004)); see also Headwaters, Inc. v. Bureau
of Land Mgmt., Medford Dist., 914 F.2d 1174, 1180 (9th Cir. 1990) (“Nor must an agency
consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy
objectives for the management of the area.” (citation omitted)).
50 Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1039 (9th Cir. 2008) (citation
omitted).
51 Fed. Aviation Admin., 63 F.4th at 843 (alterations omitted) (quoting Audubon Soc’y of
Portland v. Haaland, 40 F.4th 967, 981 (9th Cir. 2022)).
52 Id. (citing Audubon Soc’y of Portland, 40 F.4th at 982).
53 Id. at 844-45 (alteration omitted) (quoting Env’t Def. Ctr. v. Bureau of Ocean Energy Mgmt.,
36 F.4th 850, 877 (9th Cir. 2022), cert. denied sub nom. Am. Petroleum Inst. v. Env’t Def. Ctr.,
143 S. Ct. 2582 (2023)).
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EIS’s selection and discussion of alternatives fosters informed decision-making
and informed public participation.”54
Here, Plaintiffs contend that BLM violated NEPA by failing to consider a
reasonable range of alternatives “based on a misinterpretation of its authority
under the NPRPA” that restricted its alternatives analysis to only those alternatives
that would fully develop the oil resource.55 Plaintiffs assert that the agency erred
by not considering an alternative that would allow some oil production but would
leave considerable quantities of recoverable oil in the ground.56 The issue at the
heart of this claim is the intersection of two directives in the NPRPA. The first is
Congress’s directive to the Secretary of the Interior to “conduct an expeditious
program of competitive leasing of oil and gas in the Reserve,”57 as a result of which
the government granted non-NSO leases to ConocoPhillips, according to it the
“right to drill for, mine, extract, remove and dispose of all the oil and gas” from the
subsurface.58 The second NPRPA directive requires that, when authorizing these
54 Westlands Water Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 868 (9th Cir. 2004) (quoting
California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).
55 Docket 105 at 17, 20 (Case No. 3:23-cv-00058-SLG); Docket 115 at 17-18 (Case No. 3:23-
cv-00061-SLG).
56 Docket 105 at 23 (Case No. 3:23-cv-00058-SLG); Docket 115 at 19-20 (Case No. 3:23-cv-
00061-SLG).
57 42 U.S.C. § 6506a(a).
58 See AR950259. Some oil and gas leases contain “no surface occupancy” (“NSO”)
stipulations. Conner v. Burford, 848 F.2d 1441, 1444 (9th Cir. 1988). “Leases not governed by
an NSO stipulation” are called “non-NSO leases,” and non-NSO leases contain “mitigation
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oil and gas activities in the Reserve, the Secretary “mitigate reasonably
foreseeable and significantly adverse effects on the surface resources of the”
NPR-A and “assure the maximum protection” to the Teshekpuk Lake Special Area
(“TLSA”) and other areas designated by the Secretary of the Interior as containing
significant surface values.59
This Court first considered the import of these two directives when reviewing
BLM’s 2020 ROD for the Willow Project. In 2020, BLM defined the Project’s
purpose as follows: “The purpose of the Proposed Action is to construct the
infrastructure necessary to allow the production and transportation to market of
federal oil and gas resources under leaseholds in the northeast area of the NPR-
A, consistent with the proponent’s federal oil and gas lease and unit obligations.”60
In furtherance of this purpose, “BLM asserted that ConocoPhillips’ lease rights
precluded the agency from considering alternatives concerning the configuration
stipulations” which “authorize the government to impose reasonable conditions on drilling,
construction, and other surface-disturbing activities; unlike NSO stipulations, however, they do
not authorize the government to preclude such activities altogether.” Id. The Willow leases are
non-NSO leases. Each lease provides: “Rights granted are subject to applicable laws, the
terms, conditions, and attached stipulations of this lease, the Secretary of the Interior’s
regulations and formal orders in effect as of lease issuance, and to regulations and formal
orders hereafter promulgated when not inconsistent with lease rights granted or specific
provision of this lease.” See, e.g., AR950259.
59 42 U.S.C. § 6506a(b); 42 U.S.C. § 6504(a) (“Any exploration within . . . the Teshekpuk Lake
areas . . . shall be conducted in a manner which will assure the maximum protection of such
surface values to the extent consistent with the requirements of this Act for the exploration of
the reserve.”).
60 SILA I, 555 F. Supp. 3d at 768.
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or location of the drill pads” because ConocoPhillips had the right “to extract all the
oil and gas possible within the leased areas.”61 But the Court held in 2021 that
“[t]he leases do not grant the lessee the unfettered right to drill wherever it chooses
or categorically preclude BLM from considering alternative development
scenarios”; hence, “BLM acted contrary to law insofar as it developed its
alternatives analysis based on the view that ConocoPhillips had the right to extract
all possible oil and gas from its leases.”62 The Court also concluded that BLM’s
asserted lack of authority was “inconsistent with its own statutory responsibility to
mitigate adverse effects on the surface resources” set out in the NPRPA.63
Accordingly, the Court held that BLM’s alternatives analysis violated NEPA and
the NPRPA.64
On remand, BLM prepared a supplemental EIS that was intended to address
the deficiencies identified by this Court in the original EIS.65 In the SEIS, BLM
identified the purpose and need of the Proposed Action as follows:
The purpose of the Proposed Action is to construct the infrastructure
necessary to allow the production and transportation to market of
federal oil and gas resources in the Willow reservoir located in the
[Bear Tooth Unit], while providing maximum protection to significant
61 Id.
62 Id. at 768, 805.
63 Id. at 769 (citing 42 U.S.C. § 6506a(b)).
64 Id. at 770.
65 AR820696.
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surface resources within the NPR-A, consistent with BLM’s statutory
directives. The need for federal action (i.e., issuance of
authorizations) is established by BLM’s responsibilities under various
federal statutes, including the NPRPA (as amended) and the Federal
Land Policy and Management Act as well as various federal
responsibilities of cooperating agencies under other statutes,
including the Clean Water Act (CWA). Under the NPRPA, BLM is
authorized to conduct oil and gas leasing and development in the
NPR-A (42 USC 6506a). BLM is required to respond to the
Proponent’s requests for [a Master Development Plan] and related
authorizations to develop and produce petroleum in the NPR-A.66
The Court “begin[s] by determining whether or not the purpose and need
statement was reasonable” and then “determine[s] whether the agency considered
a reasonable range of alternatives based on its purpose and need.”67 The purpose
and need statement in this case as quoted above adequately frames the
authorization of NPR-A oil and gas production while providing for the protection of
significant surface resources as directed by the NPRPA. None of the parties
dispute the reasonableness of the purpose and need statement, and the Court
similarly finds that the statement is reasonable given the NPRPA’s directives and
BLM’s responsibilities pursuant to federal law. The Court thus turns to an analysis
of whether BLM considered a reasonable range of alternatives based on this
purpose and need.
66 AR820696-97; see also AR821927.
67 Fed. Aviation Admin., 63 F.4th at 843 (quoting Audubon Soc’y of Portland, 40 F.4th at 981).
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Plaintiffs assert that BLM improperly rejected alternatives that would “strand
an economically viable quantity of [recoverable] oil.”68 Plaintiffs contend that
“BLM’s erroneous view of its authority under the [NPRPA] precluded it from
evaluating any alternatives that struck a middle ground between recovering all
economically viable oil from the field and recovering no oil at all.”69 Plaintiffs
maintain that there is no real distinction between BLM’s new standard and its
previous interpretation that it must allow ConocoPhillips to extract “all possible oil”
from Willow, which the Court held to be contrary to law.70 Plaintiffs instead assert
that “[a]n alternative that substantially reduces Willow’s carbon footprint and
prohibits infrastructure within the [TLSA], while also allowing ConocoPhillips to
produce some oil from its leases, satisfies” the purpose and need for the Project.71
They contend that the purpose and need statement “calls simply for ‘the production
and transportation to market of federal oil . . . in the Willow reservoir’” and that it
does not mandate “a threshold amount of oil recovery.”72 Plaintiffs assert that a
middle ground alternative that would preclude any infrastructure in the TLSA and
68 Docket 105 at 20 (Case No. 3:23-cv-00058-SLG) (citing AR821709-10, AR821740,
AR501470); Docket 115 at 18-19 (Case No. 3:23-cv-00061-SLG) (citing AR821958-59,
AR814575-76).
69 Docket 170 at 17 (Case No. 3:23-cv-00061-SLG).
70 Docket 115 at 18-19 (Case No. 3:23-cv-00061-SLG); see also Docket 105 at 20 (Case No.
3:23-cv-00058-SLG); SILA I, 555 F. Supp. 3d. at 770.
71 Docket 115 at 24 (Case No. 3:23-cv-00061-SLG) (emphasis in original).
72 Docket 170 at 19 (Case No. 3:23-cv-00061-SLG) (quoting AR820696).
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still allow for 71% recovery of the reservoir’s oil “plainly satisf[ies] the Project’s
purpose and need.”73
The Court finds that BLM did consider the requisite reasonable range of
alternatives based on the Project’s purpose and need. The Ninth Circuit’s decision
in Northern Alaska Environmental Center v. Kempthorne is instructive.74 In that
case, the plaintiffs challenged the federal government’s decision to make the entire
Northwest Planning Area (“NWPA”) of the NPR-A available for leasing.75 The
plaintiffs argued that the government failed to consider as a reasonable alternative
an alternative proposed by the Audubon Society that would “add four new special
areas [in the NWPA] and, therefore, make 35 percent of the high oil potential area
unavailable for leasing.”76 The Kempthorne plaintiffs asserted that the five
alternatives the agency improperly considered proposed only full development or
no development alternatives.77 The Ninth Circuit disagreed and held that the
“consideration of the five alternatives satisfied the NEPA requirement to consider
a broad range of possible alternatives,” “[g]iven the policy objectives of the
73 Docket 170 at 18 (Case No. 3:23-cv-00061-SLG). CBD Plaintiffs contend that “an alternative
eliminating infrastructure in the [TLSA] would have afforded that area maximum protection while
also providing access to 71 percent of the reservoir’s oil.” Docket 170 at 18 (Case No. 3:23-cv-
00061-SLG).
74 457 F.3d 969 (9th Cir. 2006).
75 Id. at 973.
76 Id. at 978.
77 Id.
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project.”78 The Ninth Circuit upheld the agency’s rejection of the Audubon
Alternative as “inconsistent with the NWPA project and statutory mandates.”79 The
circuit court held that the agency’s explanation, “coupled with [the agency’s]
willingness to incorporate several” of the Audubon Society’s recommended
mitigation measures, “satisfied the NEPA requirements to consider or properly
reject proposed alternatives.”80
Plaintiffs assert that reliance on Kempthorne is “misplaced” because,
according to Plaintiffs, BLM in that case “did not constrain alternatives based on a
misapprehension of its authority.”81 But the Court finds that BLM did not
misapprehend its authority here. The NPR-A was set aside by Congress to be a
petroleum reserve to help meet the Nation’s need for oil and gas.82 Established in
1923, the NPR-A was originally “one of four Naval Petroleum Reserves created
from public lands to assure the Navy’s ships would have adequate petroleum
78 Id.
79 Id. at 978-79.
80 Id.
81 Docket 170 at 16 n.2 (Case No. 3:23-cv-00061-SLG).
82 See Naval Petroleum Reserves Production Act, Pub. L. No. 94-258, 90 Stat. 303 (1976) (“An
Act to authorize the Secretary of the Interior to establish on certain public lands of the United
States national petroleum reserves the development of which needs to be regulated in a
manner consistent with the total energy needs of the Nation, and for other purposes.”).
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supplies.”83 Then an “oil embargo during the 1970s established that the Nation
had a need for oil that exceeded the needs of the Navy.”84 In response, Congress
enacted the NPRPA in 1976, “which transferred NPR-A management authority
from the Secretary of the Navy to the Secretary of the Interior.”85 And in 1980,
“Congress, driven by the fuel crisis of the previous decade, directed the Secretary
to carry out an ‘expeditious program of competitive leasing of oil and gas’ on the
Reserve.”86 Although Congress directed “maximum protection” be accorded to
significant surface values in the TLSA and other Special Areas while undertaking
oil and gas activities in the NPR-A, it still clearly envisioned that the TLSA would
be developed for oil and gas production.87 So it is with this Congressional objective
of NPR-A oil and gas development in mind—even in Special Areas, though with
greater protections in those areas—that BLM’s alternatives analysis is evaluated.88
ConocoPhillips, as the lessee, has the right and the responsibility to fully
develop its oil and gas leases in the NPR-A subject to reasonable restrictions and
83 ConocoPhillips Alaska, Inc. v. Alaska Oil & Gas Conservation Comm’n, __ F. Supp. 3d ___,
Case No. 3:22-cv-00121-SLG, 2023 WL 2403720, at *1 (D. Alaska Mar. 8, 2023) (citing H.R.
Rep. No. 94-81, at 5-6 (1975)).
84 Id. (quoting N. Alaska Env’t Ctr. v. Norton, 361 F. Supp. 2d 1069, 1072 (D. Alaska 2005), aff’d
sub nom. N. Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir. 2006)).
85 Id. (first citing Pub. L. No. 94-258; and then citing 42 U.S.C. § 6503(a)).
86 Kempthorne, 457 F.3d at 973 (quoting 42 U.S.C. § 6506a(a)).
87 See 42 U.S.C. § 6504(a).
88 See Kempthorne, 457 F.3d at 978.
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mitigation measures imposed by the federal government.89 The alternatives that
BLM analyzed are fully consistent with an interpretation of the purpose and need
statement that recognizes the rights and responsibilities of the lessee.90 Given the
significant surface values in the TLSA, BLM may have elected to prohibit all
infrastructure in the TLSA at the Integrated Activity Plan (“IAP”) development stage
or at the lease sale stage,91 but “the sale of a non-NSO oil or gas lease constitutes
the ‘point of commitment;’ after the lease is sold the government no longer has the
ability to prohibit potentially significant inroads on the environment.”92 As this Court
previously recognized, “infrastructure is allowed, and indeed anticipated, within the
89 See 43 C.F.R. § 3137.71(b)(1). See also Kempthorne, 457 F.3d at 976 (“The government
can condition permits for drilling on implementation of environmentally protective measures, and
we assume it can deny a specific application altogether if a particularly sensitive area is sought
to be developed and mitigation measures are not available. The government cannot, however,
consistent with current statutory imperatives, forbid all oil and gas development in Alaska’s
NWPA.”). The Ninth Circuit has long recognized that non-NSO leases for oil and gas
development on federal land “permit reasonable regulation of surface-disturbing activities to
reduce their impact on the environment,” but these stipulations do not “preclude the lessees
from engaging in surface-disturbing activities altogether,” including “build[ing] roads and drill[ing]
for oil, subject only to reasonable mitigation measures.” Conner, 848 F.2d at 1448-49; see also
Kempthorne, 457 F.3d at 976-77 (explaining that the oil and gas leases for the Northwest
Planning Area of the NPR-A are similar to the leases discussed in Conner).
90 Section 4 of ConocoPhillips’ NPR-A oil and gas leases provide, in relevant part: “Lessee must
exercise reasonable diligence in developing and producing, and must prevent unnecessary
damage to, loss of, or waste of leased resources.” See, e.g., AR950260 (emphasis added).
91 See, e.g., AR950259 (describing land included in the lease at item 3).
92 Conner, 848 F.2d at 1451. Conner held that “the distinction between the NSO and non-NSO
leases [is] critical.” Id. at 1449. While NSO leases do not constitute “an irreversible
commitment of resources requiring the preparation of an EIS,” the government may not sell a
non-NSO lease without first preparing an EIS which includes consideration of a “no action”
alternative. Id. at 1447, 1451.
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TLSA.”93 An alternative that would leave considerable quantities of economically
recoverable oil in the ground is quite simply inconsistent with the Congressional
policy objective of resource extraction in the NPR-A. Thus, the Court rejects
Plaintiffs’ assertion that BLM need only allow “ConocoPhillips to produce some oil
from its leases” in order to satisfy the purpose and need for the Project.94 Rather,
the Court finds that BLM’s decision to consider only those alternatives that
constitute full field development, subject to reasonable mitigation measures, is
consistent with the NPRPA’s policy objectives and the purpose and need of the
Willow Project.
In responding to a comment that critiqued the Draft SEIS’s rejection of
alternatives that would substantially restrict the quantity of oil to be extracted, BLM
explained:
The purpose of a master development plan is to evaluate the impacts
of full field development to ensure that [NEPA] analyses are not
segmented[.] [T]o the extent that an alternative concept strands an
economically viable quantity of oil, the BLM would expect to receive a
future permit application to develop it. Such an alternative concept
therefore does not disclose and analyze the impacts of full field
development and is a false comparison to other action alternatives.95
93 SILA I, 555 F. Supp. 3d at 769.
94 Docket 115 at 24 (Case No. 3:23-cv-00061-SLG) (emphasis in original).
95 AR821710 (see response to Comment 6501-200).
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BLM further explained that the term “fully develop” is contained in 43 C.F.R. §
3137.71(b)(1).96 This regulation, which was promulgated in accordance with the
NPRPA,97 provides that, in order for a lessee to meet its continuing oil and gas
development obligations, it must submit a plan to BLM “describ[ing] the activities
to fully develop the oil and gas field” if the lessee has “drilled a well that meets the
productivity criteria.”98 BLM explains that this “mean[s] that a lessee may not
strand such a large quantity of oil and gas that, standing alone, is economic to
develop (i.e., that would warrant construction of an additional drill pad).”99 For the
Willow Project, a partial development alternative would invite “future permit
application[s] to develop” an additional drill pad,100 which would result in a
“piecemeal” analysis of the Project rather than the required “full field development”
and accompanying analysis.101 Further, a partial development alternative for the
96 AR821710 (see response to Comment 6501-200).
97 See 42 U.S.C. § 6506a(o) (“As soon as practicable after August 8, 2005, the Secretary shall
issue regulations to implement this section.”); 43 C.F.R. §§ 3130.0-1, 3130.0-2, 3130.0-3
(providing the purpose, policy, and authority for 43 C.F.R. Part 3130, “Oil and Gas Leasing:
National Petroleum Reserve, Alaska”).
98 43 C.F.R. § 3137.71(b)(1).
99 AR821710 (see response to Comment 6501-200).
100 AR821710 (see response to Comment 6501-200).
101 Docket 144 at 23 (Case No. 3:23-cv-00058-SLG). See also Docket 141 at 24 (Case No.
3:23-cv-00058-SLG) (“BLM concluded that some of Plaintiffs’ proposals to eliminate all
infrastructure in the TLSA were not viable alternatives for a master development plan because
they would strand so much recoverable oil that ConocoPhillips would certainly later apply to
build another drill site.” (citing AR821710, AR821958)).
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Project would invite challenges that BLM was “improperly segmenting the project
and failing to consider the impacts associated with drill sites that were likely to be
constructed and were sufficiently connected to the Willow project to require
consideration in a single EIS.”102 Thus, BLM’s consideration of only those
alternatives that evaluated the full extent of oil production at Willow in one Final
SEIS is reasonable and consistent with the NPRPA’s directives.103
Plaintiffs assert that only considering alternatives that allow for full field
development is “functionally indistinguishable” from BLM’s prior statement that it
must allow the lessee to extract “all possible oil.”104 Similar to Plaintiffs’ arguments
here, one commenter on the Draft SEIS for the Willow Project stated that BLM had
“adopted a functionally indistinguishable position” from the 2020 FEIS that “seems
to . . . let ConocoPhillips develop all the oil [it] thinks is profitable to develop.”105 In
response, however, BLM explained that the Final SEIS “does not assume that
ConocoPhillips has the right to extract all possible oil and gas from its leases,” and
102 Docket 144 at 26 (Case No. 3:23-cv-00058-SLG). See also AR509715 (commenting that
“BLM should be clear about the true scope of Willow and should not allow Conoco to piecemeal
its proposal”).
103 See AR821737 (“The purpose of a master development plan is to evaluate the full
development of an oil prospect to disclose all impacts related to the proposed project and
prevent segmentation of the [NEPA] analysis . . . .”).
104 Docket 115 at 18-19 (Case No. 3:23-cv-00061-SLG).
105 AR821709 (see Comment 6501-193). “However, 43 CFR 3137.71(b)(1) requires lessees to
‘fully develop’ the oil and gas field, meaning that a lessee may not strand such a large quantity
of oil and gas that, standing alone, is economic to develop (i.e., that would warrant construction
of an additional drill pad).” AR821709 (see response to Comment 6501-193).
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recognized that BLM “may condition Project approval to protect surface resources
even if doing so reduces the amount of oil and gas that can be profitably
produced.”106 The Court agrees. As BLM noted in the Final SEIS, compared to
Alternative B, Preferred Alternative E would result in “15.4 million barrels (2.45%)
less production” of oil.107 This is certainly a distinguishable difference from BLM’s
previous “all possible oil” standard, and the Court finds that BLM’s Final SEIS
alternatives analysis remedies this deficiency in the 2020 FEIS.
Furthermore, based on the Project’s stated purpose and need, BLM
conducted an adequate analysis of possible alternatives, including considering
alternatives that would reduce or eliminate infrastructure in the TLSA, as sought
by Plaintiffs.108 “BLM considered over 50 alternative concepts in developing the
range of alternatives included in the Draft Supplemental EIS; those that did not
106 AR821709 (see response to Comment 6501-193).
107 AR820777. Alternative E as modified in the ROD would result in “52.9 million barrels (8.4%)
less production relative to Alternative B,” an almost 6% further reduction of production than that
contemplated by Alternative E in the Final SEIS. AR824901.
108 In the Final SEIS, BLM dedicated 250 pages to Alternatives Development. See AR821912-
14 (table of contents for Appendix D.1 of the Final SEIS, Alternatives Development, showing
about 250 pages of analysis). BLM explained that it “began the alternatives development
process” for the 2023 Final SEIS “with a hard look at the NPR-A Special Areas, particularly the
TLSA and CRSA.” AR821948. This “hard look” involved (1) review of the “comments submitted
during the 2020 EIS process for suggestions of alternatives” to protect surface resources in the
NPR-A Special Areas; (2) the development of a map to show “a baseline for how important
surface resources overlay the sub-surface resources”; and (3) requests for additional
information from ConocoPhillips regarding subsurface resources and “drilling reach polygons
. . . to illustrate how much of the subsurface resource could be accessed from a given drill site
pad location.” AR821948.
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meet the screening criteria were eliminated from full analysis.”109 Specifically,
BLM’s consideration of Alternative Component Numbers 36 and 44 rebuts
Plaintiffs’ contention that BLM “failed to explain its rejection of alternatives” that
avoid placing any infrastructure in the NPR-A Special Areas as “inconsistent with
the project’s purpose and need.”110 Alternative Component Number 36 would have
rerouted the access road so it would be outside of the Colville River Special Area
(“CRSA”).111 And Alternative Component Number 44 would have removed all
infrastructure, including gravel pads, gravel roads, and pipelines, from within the
TLSA, permitting construction of three drill site pads outside of the TLSA.112
As required by its regulations, BLM “briefly discuss[ed] the reasons for”
eliminating these alternatives from further consideration.113 BLM stated that it
eliminated Alternative Component Number 36 from further analysis because the
proposed access road outside of the CRSA “would pass directly over or in very
close proximity to an observed yellow-billed loon nest,” and thereby result in more
109 AR821710 (see response to Comment 6501-201).
110 Docket 105 at 24 (Case No. 3:23-cv-00058-SLG); AR821953.
111 AR821953.
112 AR821953.
113 40 C.F.R. § 1502.14(a).
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impacts to these loons relative to other alternatives.114 And BLM eliminated
Alternative Component Number 44 from further analysis because, while it “would
theoretically . . . provide maximum protection to important surface resources in the
TLSA,” it “would not meet the Project’s purpose and need and would strand an
economically viable quantity of recoverable oil.”115 BLM explained that
“[a]pproximately 67% [of ConocoPhillips’ Bear Tooth Unit] leases by surface area
are located in the TLSA.”116 If no new Project infrastructure is constructed within
the TLSA, it “would completely eliminate access to oil and gas resources in several
BTU leases located in the TLSA” and “substantially reduce access to such
resources in additional BTU leases located in the TLSA.”117 These brief
explanations of why each of these alternatives were removed from further
consideration satisfied NEPA’s requirements.118
114 AR821957. BLM explained that this would be less compliant with the 2013 NPR-A IAP,
which allows for infrastructure in the CRSA but “would require an exception to encroach on [the]
yellow-billed loon nesting setback buffer.” AR821957.
115 AR821965, AR821958.
116 AR821965.
117 AR821965. This is because the alternative “would strand all of the oil that would be
accessed by drill site BT4 and some of the oil that would be accessed from drill site BT2.” BLM
further explained that this alternative would “create significant overlap in drilling reach between
drill sites BT1 and BT2, which would have the net effect of having all of the surface impacts of a
road and two pads but with far less resource recovery.” AR821965.
118 See 40 C.F.R. § 1502.14(a); Kempthorne, 457 F.3d at 978 (citing 40 C.F.R. § 1502.14(a)).
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Although BLM did not give further consideration to Alternative Component
Numbers 36 or 44, BLM did consider a range of alternatives on the scope of
infrastructure development in the NPR-A Special Areas as part of the Final
SEIS.119 And while BLM did not, due to its interpretation of the Willow Project’s
purpose and need, implement Plaintiffs’ suggestions to prohibit all TLSA
infrastructure, “the Preferred Alternative it did adopt included some protections
similar to those” that Plaintiffs sought, such as less TLSA infrastructure, much the
same as BLM did with the Audubon Alternative in Kempthorne.120 For just as
BLM’s “consideration of the five alternatives [in Kempthorne] satisfied the NEPA
requirement” “[g]iven the policy objectives of the project,” so too does BLM’s in-
depth consideration of the five alternatives here satisfy NEPA, given the NPRPA’s
policy objectives and the Willow Project’s purpose and need.121 And while Plaintiffs
119 For example, Alternative C consisted of up to 12.5 miles of gravel road and gravel pads
(179.6 acres total) in the TLSA, while Alternative E consisted of up to 5 miles of gravel road and
gravel pads (61.2 acres total) in the TLSA. BLM also considered 12.2 miles of pipeline in the
TLSA as part of Alternative C, versus 4.9 miles of pipeline in the TLSA as part of Alternative E.
Similarly, BLM considered 8.1 acres of gravel road development in the CRSA as part of
Alternatives B and C, and 0.5 acres of gravel pad development in the CRSA as part of
Alternative D. AR820751. In addition, BLM analyzed Alternative A, the No Action Alternative,
which would prohibit all proposed project activities on ConocoPhillips’ Willow leaseholds,
including in the TLSA and the CRSA. AR820730.
120 See Kempthorne, 457 F.3d at 978 (“Although BLM chose not to adopt the entire Audubon
Alternative, the Preferred Alternative it did adopt included some protections similar to those in
the Audubon Alternative. Since BLM adopted components of the Audubon Alternative in
developing the Preferred Alternative, the BLM adequately examined a range of viable
alternatives in preparing the FEIS.” (citing Muckleshoot Indian Tribe v. U.S. Forest Serv., 177
F.3d 800, 814 (9th Cir. 1999))).
121 Id.
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contend that Alternative E, the Preferred Alternative, “is hardly different from the
other three” alternatives first considered in the 2020 FEIS,122 BLM explained that
Alternative E “reduces infrastructure in the TLSA by more than 40% relative to
other action alternatives.”123 At the same time, Alternative E as modified in the
ROD would still “produce approximately 94% of the total production for Alternative
E as analyzed in the Final [SEIS].”124 In sum, the full field development framework
for the alternatives analysis undertaken in the Final SEIS strikes an appropriate
balance between the NPRPA’s two directives of conducting an expeditious oil and
gas leasing program in the NPR-A while protecting significant surface resources.
Further, Plaintiffs have not “met [their] burden, as [parties] challenging an
agency’s failure to consider an alternative, ‘to show that the alternative is
viable.’”125 “[A]n EIS’s range of alternatives” is reviewed under the “rule of
reason”—an EIS “need not consider an infinite range of alternatives, only
reasonable or feasible ones.”126 Although Plaintiffs advocate that no infrastructure
be built in the TLSA, they fail to show how such an alternative would appropriately
122 Docket 115 at 21 (Case No. 3:23-cv-00061-SLG).
123 AR821859 (see response to Comment 30962-19).
124 AR824901.
125 Fed. Aviation Admin., 63 F.4th at 846-47 (first quoting Alaska Survival v. Surface Transp.
Bd., 705 F.3d 1073, 1087 (9th Cir. 2013); and then quoting Audubon Soc’y of Portland, 40 F.4th
at 983).
126 Westlands Water Dist., 376 F.3d at 868 (citation omitted).
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meet the two objectives of the NPRPA: extracting the oil in the Reserve while
mitigating the impact on the surface resources caused by that extraction. In
addition, Plaintiffs do not explain why another alternative is necessary to foster an
informed decision and public participation. In this regard, the Ninth Circuit’s
decision in Montana Wilderness Ass’n v. Connell is instructive.127 In that case,
BLM considered six different airstrip alternatives: two would open 10 airstrips, one
would open seven airstrips, another would open six airstrips, another would open
five airstrips year-round and a sixth seasonally, and the final alternative would
open no airstrips. The plaintiffs contended that BLM unreasonably failed to
consider a “middle ground” alternative that would have opened somewhere
between zero and six airstrips.128 The Ninth Circuit rejected this argument,
explaining that “[a]lthough BLM could have included an alternative that opened
more than zero but less than six alternatives, NEPA did not compel the agency to
do so.”129 The circuit court explained that “the touchstone of the NEPA inquiry is
‘whether an EIS’s selection and discussion of alternatives fosters informed
decision-making and informed public participation.’”130 The circuit court held that
127 725 F.3d 988 (9th Cir. 2013).
128 Id. at 1004.
129 Id. at 1004-05.
130 Id. at 1005 (quoting Westlands Water Dist., 376 F.3d at 868).
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the plaintiffs in that case failed to show how consideration of another alternative
would have been “necessary to foster” these goals.131
Similarly in this case, BLM considered a range of alternatives with respect
to the scope of development in the TLSA, ranging from 61.2 acres to 179.6 acres
of gravel road and gravel pad construction and from 4.9 to 12.2 miles of pipeline
construction.132 And similarly here, while “Plaintiffs appear to want . . . more
analysis of additional, unspecified variants somewhere between the no-action
alternative and Alternative E,” they have not shown “why another alternative was
necessary to foster informed decisionmaking and public participation.”133
CBD Plaintiffs also cite to three cases in support of their position: Center for
Biological Diversity v. National Highway Traffic Safety Administration,134 Center for
Biological Diversity v. U.S. Fish & Wildlife Service,135 and Wild Fish Conservancy
v. National Park Service.136 These cases, however, are inapposite. In National
Highway Traffic Safety Administration, the agency acknowledged that the range of
alternatives it had considered was “very narrow and minimal”; the court explained
131 Id.
132 AR820751.
133 Docket 137 at 34 (Case No. 3:23-cv-00058-SLG); Mont. Wilderness Ass’n, 725 F.3d at 1005.
134 538 F.3d 1172 (9th Cir. 2008).
135 409 F. Supp. 3d 738 (D. Ariz. 2019), aff’d, 33 F.4th 1202 (9th Cir. 2022).
136 8 F. Supp. 3d 1289 (W.D. Wash. 2014), aff’d, 687 F. App’x 554 (9th Cir. 2017). See Docket
115 at 22-23 (Case No. 3:23-cv-00061-SLG); Docket 170 at 17 (Case No. 3:23-cv-00061-SLG).
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how the agency had improperly circumscribed its discretion.137 Here, however,
“BLM considered a wide range of [Master Development Plan] alternatives with
significant differences in the number of drill sites, size of gravel footprint, number
of wells, and miles of gravel and ice roads.”138 In U.S. Fish & Wildlife Service, the
court held that the agency had applied the wrong regulations, a mistake that
“infected the FEIS and led to the [agency] misinforming the public and failing to
consider reasonable alternatives within the scope of its duties.”139 In the instant
case, BLM considered the appropriate regulations in developing its viable
alternatives consistent with its obligations under the NPRPA. And in Wild Fish
Conservancy, the district court held that the agency failed to give meaningful
consideration to an alternative “between 0% and 82%” release rate for hatchery
fish.140 That case, however, concerned the management of a sustainable
resource; it does not pertain to the extraction of a non-renewable resource on
public lands set aside as a petroleum reserve. Thus, for all the reasons set forth
above, the Court finds that BLM’s alternatives analysis for the Willow Project
complied with NEPA.
137 538 F.3d at 1217-19 (agency setting average fuel economy standards offered ranges that
varied from only 22.2 to 23.6 mpg).
138 Docket 141 at 21 (Case No. 3:23-cv-00058-SLG); AR820730-33, AR822115-20.
139 409 F. Supp. 3d at 764.
140 8 F. Supp. 3d at 1300-01.
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b. Greenhouse Gas Emissions
Plaintiffs assert that Federal Defendants violated NEPA in their analysis of
the greenhouse gas (“GHG”) emissions from reasonably foreseeable future
actions that will be induced by the Willow Project.141 Plaintiffs’ GHG emissions
arguments focus on a potential future development: Greater Willow, also referred
to as West Willow.142
“NEPA requires agencies to evaluate the direct and indirect effects of the
proposed action.”143 “[D]irect effects occur ‘at the same time and place’ as the
proposed project, while indirect effects occur ‘later in time or [are] farther removed
in distance.’”144 “Indirect effects may include growth inducing effects and other
effects related to induced changes in the pattern of land use, population density or
growth rate, and related effects on air and water and other natural systems,
including ecosystems.”145 An agency need only consider “indirect effects that are
‘reasonably foreseeable’ or those that ‘a person of ordinary prudence would take
141 Docket 105 at 30 (Case No. 3:23-cv-00058-SLG); Docket 115 at 24 (Case No. 3:23-cv-
00061-SLG).
142 Docket 105 at 30-31 (Case No. 3:23-cv-00058-SLG); Docket 115 at 26 (Case No. 3:23-cv-
00061-SLG).
143 Ctr. for Biological Diversity v. Bernhardt, 982 F.3d 723, 737 (9th Cir. 2020) [hereinafter
Liberty] (citing 40 C.F.R. § 1502.16).
144 Id. (quoting 40 C.F.R. § 1508.8(a), (b)).
145 40 C.F.R. § 1508.8(b).
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into account in reaching a decision.’”146 In addition to direct and indirect impacts,
a cumulative impact “results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions”; such impacts
“can result from individually minor but collectively significant actions taking place
over a period of time.”147 A cumulative impacts analysis “must be more than
perfunctory; it must provide ‘a useful analysis of the cumulative impacts of past,
present, and future projects.’”148 “[A]n agency must provide ‘some quantified or
detailed information; . . . [g]eneral statements about possible effects and some risk
do not constitute a hard look absent a justification regarding why more definitive
information could not be provided.’”149
In 2021, this Court held that “BLM’s exclusion of foreign emissions in its
alternatives analysis in the Willow EIS was arbitrary and capricious.”150 This
finding was based on the Ninth Circuit’s decision in Center for Biological Diversity
v. Bernhardt (“Liberty”), which concluded that, based on “basic economic
146 Liberty, 982 F.3d at 737 (alteration omitted) (first quoting 40 C.F.R. § 1508.8(b); then quoting
EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir. 2016); and then citing 40 C.F.R. §
1502.22(b)).
147 40 C.F.R. § 1508.7. In this order, “effects” is used interchangeably with “impacts” when
discussing direct, indirect, and cumulative effects of reasonably foreseeable future actions.
148 Ocean Advocs. v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 868 (9th Cir. 2005) (quoting
Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002)).
149 Id. (quoting Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1379-80 (9th
Cir. 1998)).
150 SILA I, 555 F. Supp. 3d at 765.
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principles,” the production of oil from the Liberty project would increase worldwide
oil consumption.151 The Ninth Circuit thus held that “[e]missions resulting from the
foreign consumption of oil [produced at Liberty] are . . . a ‘reasonably foreseeable’
indirect effect of drilling.”152 Therefore, the Circuit Court held that an EIS must
“either give[] a quantitative estimate of the downstream greenhouse gas emissions
that will result from consuming oil abroad, or explain[] more specifically why it could
not have done so, and provide[] a more thorough discussion of how foreign oil
consumption might change the carbon dioxide equivalents analysis.”153
In the Final SEIS, BLM rectified this deficiency in the 2020 FEIS by including
foreign GHG emissions in its alternatives analysis for the Willow Project.154 Neither
set of Plaintiffs challenge that analysis in this appeal. Rather, Plaintiffs now
151 982 F.3d at 736 (“If oil is produced from Liberty, the total supply of oil in the world will rise.
Increasing global supply will reduce prices. Once prices drop, foreign consumers will buy and
consume more oil.”).
152 Id. at 738 (citing Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 549
(8th Cir. 2003)).
153 Id. at 740 (internal quotation marks omitted) (quoting Sierra Club v. FERC, 867 F.3d 1357,
1374 (D.C. Cir. 2017)). The 2019 version of 40 C.F.R. § 1502.22 requires an agency, when
there is “incomplete or unavailable information,” to explain “that the information is lacking, its
relevance, a summary of any existing credible evidence evaluating the foreseeable adverse
impacts, and the agency’s evaluation of the impacts based upon ‘theoretical approaches or
research methods generally accepted in the scientific community.’” Liberty, 982 F.3d at 739
(quoting 40 C.F.R. § 1502.22(b)); see discussion supra note 48 (explaining the reasons for
using the 2019 version of the Code of Federal Regulations). The 2019 version of 40 C.F.R. §
1502.22 can be accessed at the National Archives eCFR website,
https://www.ecfr.gov/on/2019-07-24/title-40/chapter-V/part-1502/section-1502.22 (last visited
Nov. 3, 2023).
154 AR821126.
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challenge the GHG emissions analysis for West Willow.155 Currently, “West Willow
is an oil and gas discovery with two exploration wells . . . [that] represent the
general potential for future activity, but there is no certainty as to whether, how, or
when this discovery could be developed.”156 However, the Final SEIS identifies
West Willow as a reasonably foreseeable future action (“RFFA”) that is a growth-
inducing impact of the Willow Project, and estimates that West Willow could
produce up to 75 million barrels of oil, with development starting after 2035.157
SILA Plaintiffs maintain that because the development of West Willow is an
RFFA, “BLM was required to do a quantified analysis of the reasonably
foreseeable impacts of the [West] Willow development’s [GHG] emissions but
failed to do so.”158 CBD Plaintiffs maintain that “BLM was separately required to
analyze West Willow’s downstream emissions and the downstream emissions
from additional foreseeable oil development induced by Willow as indirect
155 Docket 105 at 30-31 (Case No. 3:23-cv-00058-SLG); Docket 115 at 26 (Case No. 3:23-cv-
00061-SLG).
156 AR821124.
157 AR821122, AR821124, AR822689.
158 Docket 155 at 24-25 (Case No. 3:23-cv-00058-SLG). The two exploration wells in Greater
Willow are called Greater Willow 1 (“GW1”) and Greater Willow 2 (“GW2”). AR821124. The
Court agrees with Plaintiffs and ConocoPhillips that West Willow is an RFFA; the Court rejects
Federal Defendants’ position that West Willow is not a “proposed action” and therefore does not
require any indirect or cumulative impacts analyses. See Docket 137 at 36 (Case No. 3:23-cv-
00058-SLG). Federal Defendants cite to a holding that was expressly withdrawn by the Ninth
Circuit. Docket 137 at 36 n.9 (Case No. 3:23-cv-00058-SLG) (citing Lands Council v. Powell,
395 F.3d 1019, 1023 (9th Cir. 2005)). The Lands Council court specifically “deleted in their
entirety” the language that Federal Defendants cite regarding proposed actions. See Lands
Council, 395 F.3d at 1022-23.
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effects.”159 CBD Plaintiffs assert that the GHG emissions from the 75 million
barrels of oil that West Willow may produce were “not disclosed anywhere in the
[Final] SEIS,” nor were they included in the 2020 IAP for the development of the
entire NPR-A.160 Rather, CBD Plaintiffs note that “it appears the IAP assessment
specifically excludes West Willow from its downstream emissions analysis.”161
Plaintiffs’ assertions that the Final SEIS violates NEPA in its GHG emissions
analysis for West Willow are unfounded. “In 2012, BLM completed an IAP/EIS that
analyzed development scenarios and related environmental consequences for all
BLM-managed federal lands and oil and gas resources within the NPR-A . . . .”162
The ROD for that IAP/EIS was issued in 2013.163 BLM then issued a revised
IAP/EIS and ROD in 2020, but after BLM “was directed [by court order] to
reevaluate the 2020 NPR-A IAP,” it issued a new IAP ROD in 2022.164 The 2022
IAP ROD designated “approximately 11.8 million acres (52 percent) of the
approximately 22.8 million acres subsurface estate managed by the BLM in the
159 Docket 170 at 21-22 (Case No. 3:23-cv-00061-SLG) (emphasis omitted) (first citing 40
C.F.R. § 1508.8(b); and then citing Liberty, 982 F.3d at 737-38).
160 Docket 170 at 25-26 (Case No. 3:23-cv-00061-SLG).
161 Docket 115 at 29 n.6 (Case No. 3:23-cv-00061-SLG) (citing FWS_AR364553,
FWS_AR363937, FWS_AR364805, AR822689); Docket 170 at 26 (Case No. 3:23-cv-00061-
SLG).
162 AR820723.
163 AR820723.
164 AR820723.
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NPR-A . . . for oil and gas leasing,” including land within the TLSA.165 “The
remaining approximately 11 million acres (48 percent) of the NPR-A are closed to
oil and gas leasing . . . in order to protect and conserve important surface resources
and uses in these areas.”166 The Willow Project Final SEIS “tiers to the 2012 and
2020 IAP/EISs.”167
That BLM derived its analysis of Willow’s cumulative GHG emissions
impacts from the 2020 IAP is reasonable; “incorporating by reference the general
discussions” from the IAP is permitted.168 As this Court previously noted, the “Ninth
Circuit has held that an agency may group together several projects in its
cumulative impacts analysis, including RFFAs.”169 Here, the Final SEIS
incorporates by reference the 2020 IAP’s projected GHG emissions discussion in
165 AR516640.
166 AR516640.
167 AR820723; see 40 C.F.R. § 1508.28 (2019) (“Tiering refers to the coverage of general
matters in broader environmental impact statements . . . with subsequent narrower statements
or environmental analyses (such as . . . site-specific statements) incorporating by reference the
general discussions and concentrating solely on the issues specific to the statement
subsequently prepared.”). See discussion supra note 48 (explaining the reasons for using the
2019 version of the Code of Federal Regulations). The 2019 version of 40 C.F.R. § 1508.28
can be accessed at the National Archives eCFR website, https://www.ecfr.gov/on/2019-11-
28/title-40/chapter-V/part-1508/section-1508.28 (last visited Nov. 3, 2023).
168 W. Watersheds Project v. Abbey, 719 F.3d 1035, 1048 (9th Cir. 2013) (quoting 40 C.F.R. §
1508.28); see discussion supra note 167.
169 SILA I, 555 F. Supp. 3d at 782 (citing Cascadia Wildlands v. Bureau of Indian Affs., 801 F.3d
1105, 1112 (9th Cir. 2015)).
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the “Cumulative Impacts to Climate Change” section.170 The 2020 IAP discussed
“low development” and “medium development” scenarios for the NPR-A, where
“additional satellite developments would be added in the Bear Tooth Unit and
connected to the Willow development.”171 It then specifically estimated
downstream GHG emissions for future development scenarios in the NPR-A,
including both “low and high” hypothetical emissions.172 Thus, the 2020 IAP
included estimates for downstream GHG emissions from developments like West
Willow in these future development scenarios. Furthermore, the Final SEIS used
“the higher end of the . . . NPR-A range of projected emissions,” thereby capturing
the full potential growth-inducing impacts by the Willow Project.173 And the Final
SEIS made a comprehensive analysis, including the cumulative effects of Willow’s
“direct and indirect emissions, the increase in downstream foreign oil consumption
emissions, existing GHG emissions sources on the North Slope . . . , and GHG
170 See AR821126 (referencing “BLM 2020b” in the third paragraph). The Final SEIS references
the 2012 IAP/EIS as “BLM 2012c,” the 2020 IAP/EIS as “BLM 2020b,” and the 2022 IAP ROD
as “BLM 2022b.” See AR820723 (Section 1.3, National Petroleum Reserve in Alaska). The
Final SEIS also incorporates by reference the 2022 IAP ROD’s discussion of projected annual
NPR-A direct and indirect emissions. AR821126.
171 FWS_AR363937-38.
172 FWS_AR364010-11.
173 AR821126 (“Using the higher end of the Coastal Plain and NPR-A range of projected
emissions, the cumulative annual average of gross GHG emissions from the Project, the
Coastal Plain, NPR-A, and other North Slope emissions would be approximately 95.60 MMT
(i.e., about 1.46% of the 2019 U.S. GHG inventory and 2.9% to 3.0% of U.S. net GHG
emissions target for 2030).”).
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emissions from the West Willow discovery.”174 Therefore, even if West Willow’s
projected downstream emissions were not specifically included in the IAP analysis
that was incorporated into the Final SEIS, the IAP analysis, with its low to high
range of projected GHG emissions from future potential projects in the NPR-A,
gives readers and the decision maker sufficient information regarding the
cumulative effects of GHG emissions from future development that may be
induced by the Willow Project.175
SILA Plaintiffs additionally assert that BLM erred in its estimate of the
indirect effects of West Willow’s GHG emissions. Specifically, they point out that
BLM estimated the annual GHG emissions from West Willow “at approximately
8,500 metric tons from construction, 48,500 metric tons from development drilling,
and 8,500 metric tons from routine operations.”176 SILA Plaintiffs assert, however,
174 AR821126. The Final SEIS includes quantified values of the estimated emissions. See also
AR820760-62 (discussing trends in and climate change impacts from GHG emissions);
AR820770-73 (tables on GHG emissions estimates and social costs of GHG emissions);
AR822432-73 (Appendix E.2A, Climate and Climate Change Technical Appendix).
175 CBD Plaintiffs contend that the IAP “considered West Willow as a component of Willow and
excluded it from emissions analysis as a planned development” in the IAP. Docket 170 at 26
(Case No. 3:23-cv-00061-SLG). If in fact West Willow was not included in the IAP emissions
analysis, its exclusion is inconsequential. The Final SEIS included the “cumulative effects of
Willow’s downstream emissions in the context of all such emissions from future development” in
the NPR-A and across the North Slope. Docket 141 at 26 (Case No. 3:23-cv-00058-SLG)
(emphasis in original) (citing AR821126). The Final SEIS estimated West Willow’s resource
potential at approximately 75 million barrels of oil, and the IAP estimated that, under a high
development scenario, “peak production from NPR-A developments could reach a maximum . . .
[t]otal lifetime production” of approximately 2.6 billion barrels of oil. AR821124;
FWS_AR364559. Thus, under a high development scenario, West Willow’s potential of 75
million barrels would constitute 2.9% of peak NPR-A production.
176 Docket 105 at 32 (Case No. 3:23-cv-00058-SLG).
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that “when quantifying [West] Willow’s combined climate impacts and emissions,”
BLM, “without explanation,” “included only the 48,500 metric tons from
development drilling,” but not the emissions from construction and routine
operations.177 The exclusion of these potential emissions from West Willow is
inconsequential; as ConocoPhillips points out, the Final SEIS estimated future
development impacts of up to 370,000 metric tons of annual direct emissions and
6,200,000 metric tons of annual indirect emissions based on aggressive
development scenarios.178 The Final SEIS contains “a reasonably thorough
discussion of the significant aspects of the probable environmental consequences”
of Willow’s growth-inducing impacts, allowing for meaningful public participation
and informed decision-making about the Willow Project.179
CBD Plaintiffs rely on four cases in support of their position regarding the
requirement to address induced growth: City of Davis v. Coleman;180 Natural
Resources Defense Council, Inc. v. Department of Energy;181 Barnes v. U.S.
177 Docket 105 at 32 (Case No. 3:23-cv-00058-SLG).
178 Docket 141 at 29 (Case No. 3:23-cv-00058-SLG); see also Audubon Soc’y of Portland, 40
F.4th at 984 (“[W]e do not ‘fly-speck’ [the agency’s] analysis and ‘hold it insufficient on the basis
of inconsequential, technical deficiencies.’” (citation omitted)).
179 Fed. Aviation Admin., 63 F.4th at 849 (quoting Audubon Soc’y of Portland, 40 F.4th at 984);
180 521 F.2d 661 (9th Cir. 1975).
181 Case No. C-04-04448 SC, 2007 WL 1302498 (N.D. Cal. May 2, 2007).
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Department of Transportation;182 and Ocean Advocates v. U.S. Army Corps of
Engineers.183 However, all four cases involved an agency’s failure to prepare an
EIS altogether and addressed whether potential growth-inducing impacts could
trigger an EIS. As such, they are inapposite here.
For the foregoing reasons, the Court finds that the Final SEIS appropriately
analyzed the indirect and cumulative GHG emissions impacts of the Willow Project
and provided information “sufficient for the decision maker and the public to
understand the potential scope and impacts of Greater Willow” and other growth-
inducing impacts that Willow may cause as required by NEPA.184
II. Naval Petroleum Reserves Production Act
In conjunction with their NEPA claims, SILA Plaintiffs contend that BLM
violated the NPRPA by failing to consider a reasonable range of alternatives and
arbitrarily limiting its authority.185 The Court rejects this argument for the same
reasons that it has upheld BLM’s alternatives analysis under NEPA.186
CBD Plaintiffs maintain that BLM violated the NPRPA by “failing to
reasonably explain its decision not to adopt an alternative or mitigation measures
182 655 F.3d 1124 (9th Cir. 2011).
183 402 F.3d 846. See Docket 115 at 25 (Case No. 3:23-cv-00061-SLG).
184 SILA I, 555 F. Supp. 3d at 781.
185 Docket 105 at 17 (Case No. 3:23-cv-00058-SLG).
186 See discussion supra Section I.a.
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to limit Willow’s downstream emissions,” since these emissions would “exacerbate
climate harm to the surface resources of the Reserve.”187 Similar to their NEPA
claims, CBD Plaintiffs suggest that BLM should have considered alternatives that
“reduc[ed] total oil production or delay[ed] production” in order to “meaningfully
reduce carbon emissions.”188
CBD Plaintiffs’ assertion that BLM violated the NPRPA because it failed to
address the impact that Willow’s GHG emissions may have to the surface
resources of the NPR-A is unpersuasive.189 While one might generally conclude
that climate change can damage the NPR-A’s surface resources, CBD Plaintiffs
do not causally link how GHG emissions from the Willow Project would specifically
harm NPR-A surface resources.190 As discussed above, the “purpose of the
187 Docket 115 at 30 (Case No. 3:23-cv-00061-SLG).
188 Docket 115 at 31 (Case No. 3:23-cv-00061-SLG).
189 Docket 115 at 30 (Case No. 3:23-cv-00061-SLG).
190 Indeed, case law suggests that “attempting to establish a causal nexus” in this context “may
be a particularly challenging task.”
This is so because there is a natural disjunction between Plaintiffs’ localized
injuries and the greenhouse effect. Greenhouse gases, once emitted from a
specific source, quickly mix and disperse in the global atmosphere and have a long
atmospheric lifetime. Current research on how greenhouse gases influence global
climate change has focused on the cumulative environmental effects from
aggregate regional or global sources. But there is limited scientific capability in
assessing, detecting, or measuring the relationship between a certain GHG
emission source and localized climate impacts in a given region. As the U.S.
Geological Survey observed, “[i]t is currently beyond the scope of existing science
to identify a specific source of CO2 emissions and designate it as the cause of
specific climate impacts at an exact location.”
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NPRPA is to increase the production of oil” while taking measures that “the
Secretary deems necessary or appropriate to mitigate reasonably foreseeable and
significantly adverse effects on the surface resources of the [NPR-A].”191 While
CBD Plaintiffs are correct that the impact on surface resources should be
mitigated, the Secretary in this context has broad discretion in how to protect NPR-
A surface resources, needing only to do so as the Secretary “deems necessary or
appropriate,” and only for “reasonably foreseeable and significantly adverse
effects.”192 In any event, the Final SEIS and the ROD discussed and implemented
numerous “operating procedures, design features, and other mitigation measures
specifically designed to provide maximum protection to TLSA surface resources,
and to avoid or mitigate reasonably foreseeable and significantly adverse impacts
to other NPR-A surface resources.”193 And Alternative E, as modified in the ROD,
Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1143 (9th Cir. 2013) (emphasis added) (citation
omitted).
191 Docket 141 at 35 (Case No. 3:23-cv-00058-SLG) (emphasis omitted); 42 U.S.C. § 6506a(b).
192 42 U.S.C. § 6506a(b).
193 Docket 137 at 39-40 (Case No. 3:23-cv-00058-SLG) (citing AR824891, AR824898-99,
AR824920-92). The Final SEIS discusses mitigation measures in Appendix I (Avoidance,
Minimization, and Mitigation). AR824891. The ROD discusses the mitigation measures it
adopted from the Final SEIS in Appendix A, Mitigation Measures. AR824891. Further, the
ROD discusses mitigation measures analyzed in the Final SEIS but not adopted by the ROD in
Appendix A, Section 4.0, “which includes BLM’s rationale for not adopting the measures.”
AR824891. CBD Plaintiffs’ assertion that “BLM never explained its decision not to explore any
other mitigation measures that would limit climate harms to surface resources” is without merit.
See Docket 115 at 34 (Case No. 3:23-cv-00061-SLG) (emphasis in original).
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would result in “a total reduction of indirect [carbon dioxide equivalent] emissions
of 21,750,000 metric tons” as compared to the previously selected Alternative B.194
CBD Plaintiffs point to three specific measures that they assert “BLM
arbitrarily rejected”: (1) BLM rejected changing the Project’s operating term from
30 years to no more than 20 years; (2) BLM declined to periodically review its
NEPA analysis in the event ConocoPhillips recovered higher amounts of oil than
anticipated; and (3) BLM rejected a measure to mitigate GHG emissions through
land reforestation.195 As to the first point, BLM explained that “[a]ll project
alternatives are designed and evaluated based on a full 30-year field life consistent
with the Master Development Plan for the Bear Tooth Unit.”196 The Final SEIS
explained that the Project’s field life is estimated to be 30 years for Alternatives B,
C, and E, or 31 years for Alternative D.197 Ceasing operations after 20 years would
be inconsistent with full field development. Thus, BLM’s decision to use a 30-year
field life is logical and not arbitrary.198 As to the second point, BLM explained that
periodically reviewing its NEPA analysis “would provide no additional reduction of
194 AR824901.
195 Docket 115 at 33 (Case No. 3:23-cv-00061-SLG).
196 AR824972.
197 AR820743. The ROD notes, however, that “[s]election of Alternative E would reduce both
the scope and scale of development and resulting production, thereby reducing GHG
emissions.” AR824972.
198 See discussion supra Section I.a.
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known Project effects,” and that such re-analysis is not required by regulation
because the “suggested points of re-analysis are not tied to specific BLM action.”199
While CBD Plaintiffs assert that BLM’s position is unsupported, the Court finds that
BLM’s rejection of this measure for these reasons is not arbitrary or capricious and
is consistent with its statutory directives.200 As to the third point, BLM explained
that a reforestation measure “conflicts with and duplicates current initiatives, both
from the industry and government perspective.”201 Contrary to CBD Plaintiffs’
statement that BLM simply “cited complexity, the need for government-wide
cooperation, and [BLM’s] inability to enforce the measure,”202 BLM explained that
a reforestation measure was a “narrow and prescriptive approach” that would
“conflict[] with and duplicate[] current initiatives,” because ConocoPhillips was
“already committed to net-zero GHG emissions by 2050 on a portfolio-wide
basis.”203 BLM further explained that it would not be feasible for BLM to enforce
such a measure because enforcement would “require[] the sort of government-
wide cooperation and goal setting that is already occurring by those best
199 AR824964.
200 See Docket 115 at 33 (Case No. 3:23-cv-00061-SLG). BLM also noted that it “may
voluntarily conduct additional analysis if it is determined that a change in conditions warrants
reanalysis.” AR824964.
201 AR824973.
202 Docket 115 at 33-34 (Case No. 3:23-cv-00061-SLG).
203 AR824973 (emphasis in original).
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positioned to directly regulate and guide such initiatives, such as the EPA and the
SEC.”204 Thus, BLM provided a well-reasoned explanation for why it did not adopt
this measure; its decision was not arbitrary.
In addition, CBD Plaintiffs assert that “BLM failed to rationally justify why [a]
five percent drop in downstream emissions” set out by Alternative E as modified
by the ROD “satisfied the agency’s [NPRPA] obligations.”205 As discussed above,
BLM adequately explained its reasons for rejecting further consideration of
alternatives that would be inconsistent with full field development.206 Accordingly,
the Court finds that BLM complied with its obligations pursuant to the NPRPA.
III. Alaska National Interest Lands Conservation Act § 810
SILA Plaintiffs contend that BLM violated § 810 of ANILCA by failing to
consider alternatives that would reduce impacts to subsistence uses.207 “The
purpose of ANILCA § 810 is to protect Alaskan subsistence resources from
unnecessary destruction,” but it “does not prohibit all federal land use actions
which would adversely affect subsistence resources.”208 Rather, it “sets forth a
procedure through which such effects must be considered and provides that
204 AR824973.
205 Docket 170 at 29 (Case No. 3:23-cv-00061-SLG).
206 See discussion supra Section I.a.
207 Docket 105 at 25-30 (Case No. 3:23-cv-00058-SLG); see 16 U.S.C. § 3120.
208 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987).
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actions which would significantly restrict subsistence uses can only be undertaken
if they are necessary and if the adverse effects are minimized.”209 “Both NEPA
and ANILCA require [an agency] to consider reasonable alternatives to a proposed
action.”210
ANILCA § 810 establishes “a two-step process: first, the agency determines
whether the contemplated action may significantly restrict subsistence use” by
evaluating (1) “the effect of such use, occupancy, or disposition [of public lands]
on subsistence uses and needs,” (2) “the availability of other lands for the purposes
sought to be achieved,” and (3) “other alternatives which would reduce or eliminate
the use, occupancy, or disposition of public lands needed for subsistence
purposes” (referred to as the Tier-1 evaluation).211 Second, if the agency
determines that the proposed action may significantly restrict subsistence use,
then it “must comply with the notice and hearing procedures” laid out in § 810(a)(1)-
(3) (Tier-2 evaluation).212 As part of the Tier-2 evaluation, the agency must give
notice to the appropriate State agency, local committees, and regional councils;
give notice of and hold a hearing in the vicinity of the area involved; and determine
that
209 Id.
210 City of Tenakee Springs v. Clough, 915 F.2d 1308, 1310 (9th Cir. 1990).
211 Kunaknana v. Clark, 742 F.2d 1145, 1150-51 (9th Cir. 1984); 16 U.S.C. § 3120(a).
212 Kunaknana, 742 F.2d at 1151.
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(A) such a significant restriction of subsistence uses is necessary,
consistent with sound management principles for the utilization of the
public lands, (B) the proposed activity will involve the minimal amount
of public lands necessary to accomplish the purposes of such use,
occupancy, or other disposition, and (C) reasonable steps will be
taken to minimize adverse impacts upon subsistence uses and
resources resulting from such actions.213
Additionally, if the agency is required to prepare an EIS, the agency must include
its § 810(a) findings in that EIS.214
Here, SILA Plaintiffs focus on the third requirement in the Tier-1 evaluation—
that the authorizing agency shall evaluate “other alternatives which would reduce
or eliminate the use, occupancy, or disposition of public lands needed for
subsistence purposes.”215 Echoing their NEPA argument, SILA Plaintiffs maintain
that BLM failed to “adequately consider any alternatives which would ‘reduce or
eliminate the use, occupancy, or disposition of public lands needed for subsistence
purposes,’” because “BLM improperly limited the scope of its alternatives by relying
on the erroneous assumption that it could not strand economically viable quantities
of recoverable oil.”216 However, SILA Plaintiffs seek to convert this Tier-1
evaluation factor into a requirement that BLM must consider “other alternatives
213 16 U.S.C. § 3120(a)(1)-(3).
214 Id. § 3120(b).
215 Id. § 3120(a).
216 Docket 105 at 27-28 (Case No. 3:23-cv-00058-SLG) (quoting 16 U.S.C. § 3120(a)); see also
Docket 155 at 21 (Case No. 3:23-cv-00058-SLG).
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which would reduce or eliminate the use, occupancy, or disposition of public lands
needed for subsistence purposes.”217 But the consideration of alternatives is
simply one factor that BLM must evaluate at Tier-1 to determine whether the
proposed action “may significantly restrict subsistence uses.”218
BLM appropriately made a Tier-1 evaluation here by evaluating, for each
proposed action alternative, “the effect of such use, occupancy, or disposition [of
public lands] on subsistence uses and needs, the availability of other lands for the
purposes sought to be achieved, and other alternatives which would reduce or
eliminate the use, occupancy, or disposition of public lands needed for subsistence
purposes.”219 Based on that evaluation, BLM concluded that each action
alternative, except the No Action Alternative (Alternative A), “may significantly
restrict subsistence uses.”220 The Tier-1 evaluation requires no more than that.
217 16 U.S.C. § 3120(a).
218 Id. In any event, the Court has already held that BLM did not misapprehend its authority, and
that it considered a reasonable range of alternatives pursuant to NEPA based on the Willow
Project’s stated purpose and need. See discussion supra Section I.a.
219 16 U.S.C. § 3120(a). The table of contents for Appendix G, ANILCA § 810 Analysis, most
clearly lays out how BLM conducted its Tier-1 evaluation. For each proposed action alternative,
BLM considered all three § 810(a) factors before making its finding of whether the action
alternative “may significantly restrict subsistence uses.” See AR824302 (sections B.1 through
B.5); see, e.g., AR824340 (noting in the Alternative E findings section that the action alternative
“may significantly restrict subsistence uses for the community of Nuiqsut”). BLM also made
Tier-1 evaluations for the three module delivery options and the “cumulative case,” which
includes a discussion of Willow impacts and other RFFAs. See AR824302-03 (sections B.6
through B.9). However, SILA Plaintiffs do not appear to challenge any of these latter
determinations.
220 See AR824309, AR824332, AR824336, AR824338, AR824340.
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“That BLM made affirmative Tier-1 findings for all proposed action alternatives
does not mean BLM violated ANILCA. Rather, it means BLM was required under
all alternatives to hold hearings, take reasonable steps to reduce impacts, and
make certain findings.”221
This leads to the Tier-2 evaluation. SILA Plaintiffs contend that “[a]s a result
of its limited range of alternatives and misinterpretation of its own statutory
authority, BLM also failed to meet its Tier-2 obligations.”222 SILA Plaintiffs do not
challenge BLM’s compliance with the first two requirements of the Tier-2 evaluation
set out in § 810(a)(1) and (2): giving appropriate notice and holding a hearing
regarding the affirmative Tier-1 findings.223 Rather, SILA Plaintiffs assert that BLM
failed to meet the third requirement of the Tier-2 evaluation, specifically §
810(a)(3)(B) and (C), in not ensuring that “(B) the proposed activity will involve the
minimal amount of public lands necessary to accomplish the purposes of such use,
occupancy, or other disposition, and (C) reasonable steps will be taken to minimize
adverse impacts upon subsistence uses and resources resulting from such
221 Docket 144 at 19 (Case No. 3:23-cv-00058-SLG) (footnotes and emphasis omitted).
222 Docket 105 at 29 (Case No. 3:23-cv-00058-SLG); Docket 155 at 21 (Case No. 3:23-cv-
00058-SLG).
223 See 16 U.S.C. § 3120(a)(1), (2); AR824371 (Section C, Notice and Hearing).
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actions.”224 SILA Plaintiffs contend that BLM’s failure in the Tier-2 evaluation again
stems from “improperly limit[ing] the scope of its analysis.”225
SILA Plaintiffs’ Tier-2 argument is unpersuasive. The Court has already
rejected Plaintiffs’ argument that BLM improperly limited the scope of its analysis
to full field development pursuant to NEPA and the NPRPA. For the same reason,
the Court rejects SILA Plaintiffs’ argument here, because ANILCA § 810 “must be
read in light of” the NPRPA.226 As such, it was appropriate for BLM to consider
only those action alternatives that would result in full field development,227 and for
BLM to conduct its ANILCA § 810 analysis based on those action alternatives. As
BLM explained in its § 810(a) findings, of the four action alternatives that “met the
purpose and need of the proposed action,” Alternative E as modified in the ROD
“involves the minimal amount of public lands necessary,” because its “total
224 Docket 155 at 21 & n.56 (Case No. 3:23-cv-00058-SLG); 16 U.S.C. § 3120(a)(3)(B), (C). It
appears that SILA Plaintiffs do not directly challenge the agency’s § 810(a)(3)(A) finding, which
provides that the agency must determine that “such a significant restriction of subsistence uses
is necessary, consistent with sound management principles for the utilization of the public
lands.” 16 U.S.C. § 3120(a)(3)(A).
225 Docket 155 at 21 (Case No. 3:23-cv-00058-SLG).
226 Kunaknana, 742 F.2d at 1150-51. Kunaknana held that ANILCA § 810 “must be read in light
of section 6508,” which was recodified at 42 U.S.C. § 6506a, the NPRPA appropriations rider
directing the Secretary to conduct “an expeditious program of competitive leasing of oil and gas”
in the NPR-A. Kunaknana, 742 F.2d at 1150-51; 42 U.S.C. § 6506a(a).
227 See discussion supra Section I.a.
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footprint of approximately 499 acres . . . is less than any of the other action
alternatives.”228
Furthermore, Alternative E as modified in the ROD ensures that “reasonable
steps will be taken to minimize adverse impacts upon subsistence uses and
resources” through a variety of measures.229 It disapproved drill sites BT4 and
BT5 “and their associated road and pipeline segments,” which “substantially
reduce[s] impacts to subsistence resources and uses,” including in the TLSA.230
And Alternative E as modified in the ROD includes “subsistence tundra access
ramps and pullouts on gravel roads with locations based on community input”;231
“construction of up to three subsistence boat ramps to provide local residents with
improved river access”;232 and continued consultation with affected subsistence
users and local stakeholders.233 In addition, Mitigation Measure 27 in the ROD
228 AR824999-825000; 16 U.S.C. § 3120(a)(3)(B).
229 16 U.S.C. § 3120(a)(3)(C).
230 AR825001. “In addition, Alternative E would reduce infrastructure within the TLSA by 43%
and move infrastructure (including roads, pipelines, and the nearest drill site) farther from high-
density calving areas and mosquito-relief habitat . . . .” AR824339.
231 AR824938 (Design Measure 72).
232 AR824943 (Design Measure 112).
233 AR824938 (Design Measures 68 and 69). Continued consultation will be with “affected
subsistence communities, tribes, Alaska Native Corporations, and NSB, as well as the
Kuukpikmuit Subsistence Oversight Panel, Alaska Eskimo Whaling Commission, Nuiqsut
Whaling Captains, and Barrow Whaling Captains,” and “the Kuukpik Subsistence Oversight
Panel, the Native Village of Nuiqsut, and Kuukpik Corporation.” AR824938 (Design Measures
68 and 69).
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directs BLM to “develop compensatory mitigation that provides durable, long-term
protection for the Teshekpuk Caribou Herd to fully offset impacts of the project on
that Herd, to include protecting the surface area of Teshekpuk Lake, a buffer along
all shores of the lake, and the K-10 Caribou Movement Corridors/K-16 Deferral
Areas.”234 Kuukpik Corporation, which is the “Alaska Native village corporation for
the community of Nuiqsut, the village closest to the future Willow site,” calls this “a
groundbreaking mitigation measure” for protection of “the caribou herd that is most
important to Nuiqsut subsistence users.”235
SILA Plaintiffs, beyond repeating their assertion that BLM unlawfully limited
its own authority, do not explain why the measures BLM adopted here are
insufficient to mitigate Willow’s impacts on subsistence uses and resources in light
234 AR824955.
235 Docket 144 at 7, 31 (Case No. 3:23-cv-00058-SLG). Kuukpik Corporation supports
Alternative E as modified in the ROD; indeed, “this iteration of the Project is the first alternative
that Kuukpik believes can support the findings that BLM is required to make under ANILCA
810.” Docket 144 at 16-17, 17 n.44 (Case No. 3:23-cv-00058-SLG) (quoting AR704766). The
Arctic Slope Regional Corporation, which is the Alaska Native regional corporation
encompassing the North Slope of Alaska (including Nuiqsut), and the North Slope Borough, an
“area-wide local government representing eight remote Native villages on the North Slope of
Alaska” and whose “jurisdiction includes the entire NPR-A,” including Willow, also support
Alternative E and the subsistence measures adopted to mitigate Willow’s impact. See Docket
142 at 5-8, 14-16 (Case No. 3:23-cv-00058-SLG); Docket 143 at 10, 20-25 (Case No. 3:23-cv-
00058-SLG).
Kuukpik further notes that the gravel roads required to support the Willow Project actually make
subsistence hunting safer because, before the roads, it “was easy to get [4 wheelers] stuck” on
“very wet and marshy” tundra, and hunters “couldn’t go as far to find caribou.” Docket 144 at 29
n.98 (Case No. 3:23-cv-00058-SLG) (quoting Docket 58-2 at ¶ 4 (Decl. Nellie Kaigelak) (Case
No. 3:23-cv-00061-SLG)). In addition, the three boat ramps would provide Nuiqsut residents
access to “good hunting and fishing” areas that are currently challenging or difficult to reach.
Docket 58-2 at ¶ 11 (Decl. Nellie Kaigelak) (Case No. 3:23-cv-00061-SLG).
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of the Project’s stated purpose and need.236 Thus, the Court finds that BLM’s
finding that it took “reasonable steps . . . to minimize adverse impacts upon
subsistence uses and resources” after engaging in meaningful consultations with
affected subsistence users and local stakeholders, and after considering and
adopting a multitude of mitigation measures, was consistent with ANILCA and not
arbitrary or capricious.237 Accordingly, the Court finds that BLM complied with its
obligations for both Tier-1 and Tier-2 evaluations pursuant to ANILCA § 810(a).
Lastly, SILA Plaintiffs contend that “BLM failed to include its Tier-2 findings
in the [F]inal SEIS, contrary to ANILCA,” and that “[i]nclusion of the findings in the
ROD was not sufficient because it deprived the public of the opportunity to evaluate
the findings prior to a final decision.”238 The Court agrees that, pursuant to §
810(b), it was error for BLM to not include the Tier-2 findings in the Final SEIS and
to instead make those findings in the ROD.239 However, while inclusion in the Final
236 SILA Plaintiffs rely on City of Tenakee Springs v. Clough for the proposition that “where an
agency improperly confines the scope of its authority under a statute or contract and thereby
limits its consideration of alternatives, it acts contrary to the substantive purpose of Section 810
to minimize impacts to subsistence.” Docket 105 at 28 (Case No. 3:23-cv-00058-SLG) (citing
Tenakee Springs, 915 F.2d at 1312). However, the Court has found that BLM did not
improperly confine the scope of its authority here.
237 16 U.S.C. § 3120(a)(3)(C). The ROD lists multiple additional mitigation measures, such as
required operating procedures A-11, E-1, E-3, E-7, F-4, H-1, and H-3, and Lease Stipulation K-1
in the 2022 IAP ROD; Project Design Measures 68, 69, 72, and 112 in the ROD; and additional
Mitigation Measures 1, 2, 11, 13, 15, 16, 17, 18, 21, 24, 26, and 27 in the ROD. AR825000.
238 Docket 105 at 29 (Case No. 3:23-cv-00058-SLG) (first citing AR824371; and then citing 16
U.S.C. § 3120(b)).
239 ANILCA § 810(b) provides: “If the Secretary is required to prepare an environmental impact
statement pursuant to [NEPA], he shall provide the notice and hearing and include the findings
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SEIS would have given the public “the opportunity to evaluate the findings prior to
a final decision,” as SILA Plaintiffs assert,240 there would still have been no
opportunity for public comment or participation had the findings been included in
the Final SEIS. And the extensive § 810 discussion in the Final SEIS was sufficient
to meaningfully inform the public regarding Willow’s impact on subsistence uses.241
Therefore, BLM’s error here has no “substantive effect” on the outcome, and the
Court finds that the error is harmless.242
IV. Motion to Strike
The Court next addresses SILA Plaintiffs’ Motion to Strike. SILA Plaintiffs
ask the Court to strike the “extra-record evidence” attached to the responses filed
by ConocoPhillips, specifically the Declaration of Anne E. Smith and her curriculum
vitae;243 a 2008 letter from Robert J. Meyers, Principal Deputy Assistant
required by subsection (a) as part of such environmental impact statement.” 16 U.S.C. §
3120(b). However, the Court recognizes the challenge an agency faces to include those
findings in the SEIS before the preferred alternative has been selected in the ROD.
240 Docket 105 at 29 (Case No. 3:23-cv-00058-SLG).
241 See AR824300-75 (Final SEIS, Appendix G, ANILCA § 810 Analysis).
242 See Docket 144 at 20 (Case No. 3:23-cv-00058-SLG); PDK Lab’ys Inc. v. U.S. Drug Enf’t
Agency, 362 F.3d 786, 799 (D.C. Cir. 2004) (“In administrative law, as in federal civil and
criminal litigation, there is a harmless error rule: § 706 of the Administrative Procedure Act, 5
U.S.C. § 706, instructs reviewing courts to take ‘due account . . . of the rule of prejudicial error.’
If the agency’s mistake did not affect the outcome, if it did not prejudice the petitioner, it would
be senseless to vacate and remand for reconsideration.”).
243 Dockets 141-3, 141-4 (Case No. 3:23-cv-00058-SLG).
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Administrator, Office of Air and Radiation, EPA;244 and the portions of
ConocoPhillips’ response brief that rely on that evidence.245 SILA Plaintiffs also
move to strike the Declaration of Tyson Kade and the attached exhibits filed by
NSB:246 a 2008 memorandum from Mark D. Myers, Director, U.S. Geological
Survey;247 the Meyers letter identified by ConocoPhillips;248 and a 2008 letter from
James H. Lecky, Director, Office of Protected Resources, NMFS.249 They also
seek to strike the portions of NSB’s response brief relying on those exhibits.250
The Court grants in part and denies in part SILA Plaintiffs’ Motion to Strike.
First, ConocoPhillips filed the Smith Declaration and curriculum vitae “for the
purpose of addressing standing,” rather than as a supplement to the administrative
record for the decision on the merits.251 Because these documents were filed “not
244 Docket 141-1 at 17-25 (Case No. 3:23-cv-00058-SLG).
245 Docket 150 at 2 (Case No. 3:23-cv-00058-SLG).
246 Docket 150 at 2 (Case No. 3:23-cv-00058-SLG); Docket 143-1 (Case No. 3:23-cv-00058-
SLG).
247 Docket 143-1 at 5-6 (Case No. 3:23-cv-00058-SLG).
248 Docket 143-1 at 8-16 (Case No. 3:23-cv-00058-SLG).
249 Docket 143-1 at 18-19 (Case No. 3:23-cv-00058-SLG).
250 Docket 150 at 2 (Case No. 3:23-cv-00058-SLG).
251 Docket 158 at 12 (Case No. 3:23-cv-00058-SLG). The Smith Declaration discusses whether
a causal link can be reliably established between GHG emissions from the Willow Project and a
loss of Arctic sea ice. See Docket 141-3 at ¶ 8 (Case No. 3:23-cv-00058-SLG). ConocoPhillips
relies on this declaration in its argument that Plaintiffs lack standing to assert their ESA GHG
emissions claims. See Docket 141 at 42-50 (Case No. 3:23-cv-00058-SLG).
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in order to supplement the administrative record on the merits, but rather to
determine whether [Plaintiffs] can satisfy a prerequisite to this court’s jurisdiction,”
the Court declines to strike them.252
Second, two of the challenged exhibits were referenced and partially relied
upon in the administrative record. While “judicial review of agency action is
[generally] limited to review of the administrative record,” “certain circumstances
may justify expanding review beyond the record.”253 The Ninth Circuit
allow[s] expansion of the administrative record in four narrowly
construed circumstances: (1) supplementation is necessary to
determine if the agency has considered all factors and explained its
decision; (2) the agency relied on documents not in the record; (3)
supplementation is needed to explain technical terms or complex
subjects; or (4) plaintiffs have shown bad faith on the part of the
agency.254
The 2008 Meyers letter filed by both ConocoPhillips and NSB and the 2008 Myers
memorandum filed by NSB were cited and partially discussed in a Department of
Interior memorandum contained in the administrative record.255 As such, they fall
252 Nw. Env’t Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997) (citation
omitted). However, because the Court does not separately address causation and
redressability with respect to Plaintiffs’ GHG emissions ESA claim, the Court did not consider
the Smith materials. See discussion infra Section V.b.
253 Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), amended, 867 F.2d 1244
(9th Cir. 1989) (citations omitted).
254 Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010) (citing
Lands Council, 395 F.3d at 1030).
255 FWS_AR032371; FWS_AR032375-77 & nn.6 & 8. See Thompson v. U.S. Dep’t of Labor,
885 F.2d 551, 555 (9th Cir. 1989) (“The whole administrative record, therefore, consists of all
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within the second exception of “documents not in the record” on which “the agency
relied.”256 Accordingly, the motion to strike these documents is denied.
However, the final challenged exhibit—the 2008 Lecky letter—does not fall
within an exception. NSB relies on the letter to demonstrate that BLM and the
Services reasonably concluded that Willow’s GHG emissions were outside the
scope of the Section 7 consultation and that the agencies considered the best
available science in making those determinations.257 The Court does not find that
the 2008 Lecky letter is “necessary to determine if the agency has considered all
factors and explained its decision” or that it is “needed to explain technical terms
or complex subjects.”258 There is no evidence that BLM relied on this letter in
carrying out its obligations pursuant to the ESA, and Plaintiffs do not assert “bad
faith on the part of the agency” here.259 Accordingly, the Court grants the motion
to strike as to the 2008 Lecky letter260 and the sentence in NSB’s response in
opposition that relies on it, where NSB asserts: “Following a review of EPA’s
analysis, NMFS ‘agree[d] that current models do not allow us to trace a link
documents and materials directly or indirectly considered by agency decision-makers . . . .”
(emphasis and citation omitted)).
256 Fence Creek Cattle, 602 F.3d at 1131 (citation omitted).
257 Docket 157 at 6-8 (Case No. 3:23-cv-00058-SLG).
258 See Fence Creek Cattle, 602 F.3d at 1131 (citation omitted).
259 Id.
260 Docket 143-1 at 18-19 (Case No. 3:23-cv-00058-SLG).
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between individual actions that contribute to atmospheric carbon levels and
localized climate impacts relevant to a consultation.’”261
V. Endangered Species Act
Plaintiffs assert that (1) FWS erred in finding in its BiOp that there would be
no incidental take of polar bears, and BLM unlawfully relied on FWS’s BiOp,262 and
(2) BLM failed to consult with FWS and NMFS regarding Willow’s carbon
emissions as an effect of the Willow Project.263
a. Applicable Law
“The ESA ‘is a comprehensive scheme with the broad purpose of protecting
endangered and threatened species.’”264 Section 9 of the ESA prohibits the “take”
of any endangered species.265 A “take” under the ESA occurs when an
endangered animal is harassed, harmed, pursued, hunted, shot, wounded, killed,
261 Docket 143 at 33 & n.8 (Case No. 3:23-cv-00058-SLG).
262 Docket 105 at 39-44 (Case No. 3:23-cv-00058-SLG); Docket 115 at 41-47 (Case No. 3:23-
cv-00061-SLG).
263 SILA Plaintiffs challenge FWS’s failure to consider Willow’s GHG emissions as an effect of
the project in the BiOp, Docket 105 at 34 (Case No. 3:23-cv-00058-SLG), whereas CBD
Plaintiffs assert that BLM erroneously concluded that Willow’s GHG emissions are not an effect
of the action and that FWS and NMFS improperly concurred with that conclusion, Docket 115 at
35-39 (Case No. 3:23-cv-00061-SLG).
264 Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1036 (9th Cir. 2015)
(quoting Ctr. for Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1106 (9th Cir.
2012)).
265 16 U.S.C. § 1538(a)(1)(B).
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trapped, captured, or collected, or when anyone attempts to engage in such
conduct.266
Section 7 of the ESA “imposes an affirmative duty to prevent violations of
Section 9 upon federal agencies.”267
Section 7(a)(2) of the ESA requires every federal agency to “insure
that any action authorized, funded, or carried out by such agency . . .
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [critical] habitat of such species.”268
In accordance with this affirmative duty, federal agencies must prepare a
“biological assessment . . . evaluat[ing] the potential effects of the action on listed
and proposed species and designated and proposed critical habitat.”269 The
biological assessment (“BA”) is “used in determining whether formal consultation”
is required.270 Formal consultation with FWS or NMFS is required when the action
agency determines that listed species or critical habitat is likely to be adversely
266 16 U.S.C. §1532(19); 50 C.F.R. § 17.3 (defining “harass” as action that “creates the
likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal
behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering”).
267 Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1238 (9th Cir. 2001)
(citing 16 U.S.C. § 1536(a)(2)).
268 Ctr. for Biological Diversity, 807 F.3d at 1036 (alterations in original) (quoting 16 U.S.C. §
1536(a)(2)).
269 50 C.F.R. § 402.12(a).
270 Id.
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affected by the action.271 The applicable service then produces a BiOp containing
a “detailed discussion of the effects of the action on listed species or critical
habitat.”272
Effects of the action are all consequences to listed species or critical
habitat that are caused by the proposed action, including the
consequences of other activities that are caused by the proposed
action. A consequence is caused by the proposed action if it would
not occur but for the proposed action and it is reasonably certain to
occur. Effects of the action may occur later in time and may include
consequences occurring outside the immediate area involved in the
action.273
The BiOp must also opine as to whether the action will jeopardize an
endangered species or destroy or adversely modify the species’ designated critical
habitat.274 If the service determines that the proposed action will neither jeopardize
the species (“no jeopardy determination”) nor adversely modify its habitat (“no
adverse modification determination”), it then authorizes the taking of a listed
species incidental to the proposed project by issuing an incidental take statement
(“ITS”) with the BiOp.275
271 Id. § 402.12(k)(1).
272 Id. § 402.14(h)(iii).
273 Id. § 402.02.
274 See 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(1)(iv).
275 See 16 U.S.C § 1536(b)(4); 50 C.F.R. § 402.14(i); Ctr. for Biological Diversity v. Salazar, 695
F.3d 893, 909 (9th Cir. 2012).
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“The incidental take statement estimates the amount of the project’s
incidental take of the listed species, includes any ‘reasonable and prudent
measures’ considered ‘necessary or appropriate to minimize such impact,’ and—
in the case of marine mammals such as the polar bear—describes specific
measures necessary to comply with the” Marine Mammal Protection Act
(“MMPA”).276 “The purpose of the incidental take statement is, at least in part, to
specify the amount of take that may occur, and include triggers that indicate non-
compliance with the statement and require re-consultation [under Section 7 of the
ESA] with FWS.”277 “A taking that complies with the terms and conditions of a
Section 7 incidental take statement is not prohibited by Section 9.”278
b. Standing
As a threshold issue, Intervenor-Defendants dispute Plaintiffs’ standing to
bring their ESA claims.279 Under Article III of the Constitution, “[t]he jurisdiction of
the federal courts is limited to ‘cases’ and ‘controversies.’”280 Federal courts
276 Liberty, 982 F.3d at 742 (citing 50 C.F.R. § 402.14(i)(1)); see 16 U.S.C. § 1361 et seq.
(MMPA).
277 Liberty, 982 F.3d at 748 (first citing 16 U.S.C. § 1536(b)(4); and then citing 50 C.F.R. §
402.14(i)(1)(i)).
278 Id. at 742 (first citing Salazar, 695 F.3d at 909; 16 U.S.C. § 1536(o)(2); then citing 16 U.S.C.
§ 1536(o)(2); and then citing 50 C.F.R. § 402.14(i)(5)).
279 Docket 141 at 42-50 (Case No. 3:23-cv-00058-SLG); Docket 145 at 9-22 (Case No. 3:23-cv-
00058-SLG).
280 Bellon, 732 F.3d at 1138 (quoting U.S. Const. art. III, § 2).
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enforce this jurisdictional limitation through the doctrine of “Article III standing.”281
Plaintiffs bear the burden of establishing their standing to bring suit.282
SILA Plaintiffs and CBD Plaintiffs filed their lawsuits on behalf of their
members.283 An organization can assert the interests of its members.284
Accordingly, Plaintiffs must demonstrate that at least one of their members has
standing to sue.
[T]o satisfy Article III’s standing requirements, a plaintiff must show
(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.285
In environmental cases, “[t]he relevant showing for purposes of Article III
standing . . . is not injury to the environment but injury to the plaintiff.”286 “While
281 See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-42 (2006).
282 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
283 Docket 1 at ¶¶ 17-19 (Case No. 3:23-cv-00058-SLG); Docket 1 at ¶ 17 (Case No. 3:23-cv-
00061-SLG). ConocoPhillips argues that “SILA[] does not appear to have standing in its own
right because it is not a separate legal entity but instead a ‘program’ of plaintiff Northern Alaska
Environmental Center.” Docket 141 at 42 n.142 (Case No. 3:23-cv-00058-SLG). However,
SILA has alleged that it “is an Alaska-based grassroots organization made up of Iñupiat Peoples
and community members.” Docket 88 at ¶¶ 12, 18-20 (Case No. 3:23-cv-00058-SLG).
ConocoPhillips has presented no contrary evidence regarding SILA’s standing to bring claims
on behalf of its members other than website links.
284 Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009).
285 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)
(citing Lujan, 504 U.S. at 560-61).
286 Id. at 181.
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generalized harm to the forest or the environment will not alone support standing,
if that harm in fact affects the recreational or even the mere esthetic interests of
the plaintiff, that will suffice.”287 The other two requirements, “the ‘fairly traceable’
and ‘redressability’ components for standing overlap and are ‘two facets of a single
causation requirement.’”288 “The two are distinct insofar as causality examines the
connection between the alleged misconduct and injury, whereas redressability
analyzes the connection between the alleged injury and requested judicial
relief.”289
i. Injury-in-Fact
The State challenges Plaintiffs’ standing to contest FWS’s BiOp regarding
the incidental harassment of polar bears.290 Specifically, the State asserts that
Plaintiffs fail to show an injury-in-fact because “Plaintiffs’ hopes to see a polar bear
in the Petroleum Reserve (at times and locations where the presence of polar
bears would be an anomaly) are conjectural[,] Plaintiffs’ members have never
287 Summers, 555 U.S. at 494. See also Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d
1141, 1149 (9th Cir. 2000) (“[A]n individual can establish ‘injury in fact’ by showing a connection
to the area of concern sufficient to make credible the contention that the person’s future life will
be less enjoyable—that he or she really has or will suffer in his or her degree of aesthetic or
recreational satisfaction—if the area in question remains or becomes environmentally
degraded.”).
288 Bellon, 732 F.3d at 1146 (quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated
on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118
(2014)).
289 Id.
290 Docket 145 at 9-22 (Case No. 3:23-cv-00058-SLG).
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reported seeing a polar bear anywhere near the Willow Project, and [they] provided
no evidence that seeing one in the future is even remotely likely or planned.”291
1. Plaintiffs’ Declarations
SILA Plaintiffs point to the declarations of Robert Thompson and Daniel
Ritzman to establish injury-in-fact.292 SILA Plaintiffs argue that the Southern
Beaufort Sea (“SBS”) polar bear population will be harmed by the Willow Project
and that Thompson and Ritzman have enjoyed viewing that same population in
the past and they plan to enjoy doing so in the future.293 And SILA Plaintiffs
contend that they “do[] not need to show that members view polar bears at the
Willow site; impacts to these polar bears will harm members’ ability to continue
enjoying them across their range,” as polar bears are a migratory species.294
Mr. Ritzman has visited the Reserve several times, beginning in 1996 when
he floated the Colville River to Nuiqsut. He has traveled to the TLSA and has
floated other rivers where he saw wolverines, caribou, muskox, grizzly bears,
wolves, and birds. He has also seen the site of the Willow Project and oil and gas
291 Docket 145 at 22 (Case No. 3:23-cv-00058-SLG).
292 Docket 155 at 29-30 (Case No. 3:23-cv-00058-SLG) (citing Dockets 105-7 (Thompson Decl.)
and 105-3 (Ritzman Decl.) (Case No. 3:23-cv-00058-SLG)).
293 Docket 155 at 30 (Case No. 3:23-cv-00058-SLG).
294 Docket 155 at 30 (Case No. 3:23-cv-00058-SLG) (citing FWS_AR032465 (figure showing
global distribution of polar bear subpopulations, with the Southern Beaufort Sea population
distributed across northern Alaska and east into northern Canada)).
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development near the Colville River from an airplane. Mr. Ritzman had plans to
return to the area in August 2023 and again in 2025 to float the Colville River to
Nuiqsut, and to return to Utqiaġvik in 2024. On those trips, he “hope[s] to
experience raptors, wolves, bears, wolverines, and caribou along with other
wildlife.”295
Mr. Thompson lives in Kaktovik and “own[s] and operate[s] [his] own
business, Kaktovik Arctic Adventures.” He “was licensed and permitted to guide,
and [he was] planning on applying for a permit to guide again. The majority of [his]
business has been to guide polar bear viewing trips in the Arctic Refuge.” He
states that “[i]t used to be unusual to see [polar] bears onshore” but that “more
[polar bears] are denning onshore due to sea ice loss.”296
CBD Plaintiffs also rely on a declaration by Mr. Ritzman; they also point to
the declarations of Rosemary Ahtuangaruak and Jeffrey Fair, and a corrected
declaration by Richard Steiner, among others.297 Ms. Ahtuangaruak lives in
Nuiqsut, and her declaration describes living in Nuiqsut, subsistence activities,
traditional sharing practices, and the changes to her traditional way of life brought
by increased oil and gas development to hunting, fishing, and whaling. She states
295 Docket 105-3 at ¶¶ 25-31, 33 (Case No. 3:23-cv-00058-SLG).
296 Docket 105-7 at ¶¶ 2-3, 11-12 (Case No. 3:23-cv-00058-SLG).
297 Docket 170 at 38 n.17, 48-49 (Case No. 3:23-cv-00061-SLG) (citing Dockets 115-1, 115-2,
115-3, and 170-1 (Case No. 3:23-cv-00061-SLG)).
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that her “extended family hunts polar bears, which range across the North Slope,
from Canada to past Barrow in the West.”298
Mr. Fair lives near Palmer, Alaska, and has conducted extensive research
on loons in northern Alaska. He has also “seen polar bears in the Arctic National
Wildlife Refuge and in Kaktovik and hope[s] to see one in the Reserve.” He “plan[s]
to return to the Reserve for research purposes sometime in the next couple years,”
and he “plan[s] to take personal trips into the Reserve at the earliest opportunity
and hopefully by 2025.”299
Mr. Steiner lives in Anchorage, Alaska. In the 1970s, he “organized and
joined an Arctic expedition across more than two thousand miles of Arctic
terrestrial and river habitat, from the Northwest Territories of Canada across to
Alaska and down the Yukon River to the Bering Sea.” He has “floated (solo) down
the Utukok River through the NPR[-]A to Kasegaluk Lagoon and Point Lay, and
spent time on the south side of [the] NPR[-]A.” On his visits to the Reserve, Mr.
Steiner saw polar bears. In 2008 and 2009, he “organized” and “took” flights along
the northern coast of Alaska “to examine the condition of sea ice when it [was] at
its minimum level, and to observe the behavior and distribution of polar bears.” Mr.
Steiner “plan[s] to visit the coastal plain and offshore areas in the Chukchi and
298 Docket 115-1 at ¶¶ 7-50, 90 (Case No. 3:23-cv-00061-SLG).
299 Docket 115-3 at ¶¶ 1-17 (Case No. 3:23-cv-00061-SLG).
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Beaufort Seas again later this year to observe marine and coastal wildlife, including
. . . polar bears.”300
2. Analysis
The Court concludes that Plaintiffs have sufficiently shown injury-in-fact for
their ESA claims. “[T]he desire to use or observe an animal species, even for
purely esthetic purposes, is undeniably a cognizable interest for purpose of
standing.”301 “The interest that individuals have in observing a species or its
habitat, ‘whether those individuals are motivated by esthetic enjoyment, an interest
in professional research, or an economic interest in preservation of the species’ is
sufficient to confer standing.”302
In Center for Biological Diversity v. Kempthorne, the Ninth Circuit held that
the environmental plaintiffs had standing to maintain their MMPA and NEPA claims
challenging incidental take regulations authorizing oil and gas activities in and
along the Beaufort Sea, because their “members allege[d] that they ha[d] viewed
polar bears and walrus in the Beaufort Sea region, enjoy[ed] doing so, and ha[d]
plans to return.”303 Accordingly, “[i]f the plaintiffs’ allegations are true,” FWS’s
300 Docket 170-1 at ¶¶ 2, 9, 15-17 (Case No. 3:23-cv-00061-SLG).
301 Lujan, 504 U.S. at 562-63 (citation omitted).
302 Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009) (quoting Lujan,
504 U.S. at 582).
303 Id. at 707-08. Note that this is a different case than the one by the same name discussed in
the alternatives analysis section of this order supra Section I.a.
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“incidental take regulations threaten imminent, concrete harm to these interests by
destroying polar bears and walrus in the Beaufort Sea.”304
The same is true for Plaintiffs here. Several of Plaintiffs’ members have
“allege[d] that they ha[d] viewed polar bears . . . in the Beaufort Sea region,
enjoy[ed] doing so, and ha[d] plans to return.”305 They have demonstrated the
requisite injury-in-fact to their interest in viewing polar bears in the region
encompassing the Willow Project.306
ii. Causation and Redressability
304 Id. at 708.
305 Id. at 707-08. See description of Action Area and polar bears’ migratory nature infra
Sections V.c.i.1-3. See also Melone v. Coit, Case No. 1:21-cv-11171-IT, 2023 WL 5002764, at
*4 (D. Mass. Aug. 4, 2023) (“Whether Melone observes right whales off the coast of . . .
Massachusetts, or . . . Florida, is irrelevant where it is the same population . . . that migrate[s]
from one location to the other, and it is the same population” that will be impacted.).
The State relies on Kunaknana v. U.S. Army Corps of Eng’rs, 23 F. Supp. 3d 1063 (D. Alaska
2014), in support of its assertion that Plaintiffs’ declarations are insufficient because they do not
assert that they have seen polar bears near the site of the Willow Project or that they hope to
return to the area of the Willow Project to see polar bears. Docket 145 at 16-19 (Case No. 3:23-
cv-00058-SLG). However, Kunaknana is distinguishable. In Kunaknana, the plaintiffs, pursuant
to the Clean Water Act and NEPA, challenged a permit given to ConocoPhillips to fill particular
wetlands to develop a drill site. 23 F. Supp. 3d at 1067-68. The Court determined that plaintiffs
lacked standing because none of the declarations showed that a member had visited the site
and intended to return to the site. Id. at 1082-83. Here, Plaintiffs’ members have visited and
have demonstrated an intent to return to the region in the near future, including in the NPR-A.
And considering the migratory nature of polar bears, the geographic scope of the potential injury
is greater than just the Willow Project site. See FWS_AR032490 (map showing overlap
between action area and denning critical habitat, and nearby historical den sites); Melone, 2023
WL 5002764, at *4.
306 Although the State challenges injury-in-fact only as to a subset of Plaintiffs’ ESA claims, the
Court finds that Plaintiffs’ declarations adequately allege injury-in-fact as to all of Plaintiffs’
challenges pursuant to the ESA.
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Plaintiffs challenge the adequacy of the Section 7 consultations under the
ESA and FWS’s BiOp. They seek vacatur of the “ESA consultation documents,”
including the BiOp.307 Vacatur of the BiOp could lead to changes to the Willow
Project that would better protect Plaintiffs’ interests in viewing polar bears.
Plaintiffs, therefore, have established causation and redressability to maintain their
ESA claims.308
ConocoPhillips argues that Plaintiffs must separately establish standing for
their ESA claim regarding the Services’ consultation on Willow’s GHG
emissions.309 ConocoPhillips maintains that Plaintiffs cannot establish causation
and redressability with respect to that particular claim because “[w]hether Plaintiffs
suffer global climate change impacts in the future that affect their interests in Arctic
species is a function of many factors, including total global GHG emissions (past,
present, and future) and global policy choices.”310
However, the Court has concluded that Plaintiffs have standing to seek
vacatur of the BiOp and the ESA consultation documents. As such, Plaintiffs may
307 Docket 115 at 50 (Case No. 3:23-cv-00061-SLG); Docket 105 at 47 (Case No. 3:23-cv-
00058-SLG) (seeking vacatur of “the ROD, final SEIS, BiOp, and all decisions that rely on these
documents”).
308 See Kempthorne, 588 F.3d at 708 (“[The] injury is geographically specific, is caused by the
regulations at issue, and is imminent. The plaintiffs do not challenge the ‘regulation in the
abstract.’ The plaintiffs have standing.”).
309 See Docket 141 at 42-50 (Case No. 3:23-cv-00058-SLG).
310 Docket 141 at 49-50 (Case No. 3:23-cv-00058-SLG).
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raise a full range of challenges to BLM’s and the Services’ compliance with the
ESA.311 “[O]nce a litigant has standing to request invalidation of a particular
agency action, it may do so by identifying all grounds on which the agency may
have failed to comply with its statutory mandate.”312 Additionally, in Natural
Resources Defense Council v. Jewell, the Ninth Circuit held that “to establish
standing, a litigant who asserts a procedural violation under Section 7(a)(2) need
only demonstrate that compliance with Section 7(a)(2) could protect his concrete
interests.”313 Plaintiffs have shown as much here. Accordingly, the Court finds
that Plaintiffs have standing to raise all ESA claims associated with the Willow
Project.314
c. FWS’s Incidental Take Finding for Polar Bears
i. The BiOp
311 See DaimlerChrysler Corp., 547 U.S. at 353 n.5.
312 DaimlerChrysler Corp., 547 U.S. at 353 n.5 (internal quotation marks omitted).
313 Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (emphasis in original)
(citing Defs. of Wildlife v. EPA, 420 F.3d 946, 957 (9th Cir. 2005), rev’d and remanded on other
grounds sub nom. Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007)). See
All. for the Wild Rockies v. U.S. Dep’t of Agric., 772 F.3d 592, 599 (9th Cir. 2014) (holding that
plaintiffs had standing to bring ESA claim asserting that federal defendants failed to comply with
Section 7 of the ESA as there was “a direct causal connection between these claims of
procedural injury and the federal defendants’ actions concerning [a federal management plan]”).
314 The Court has reviewed the supplemental authority recently filed by ConocoPhillips: Ctr. for
Biological Diversity v. U.S. Dep’t of the Interior, Case No. 1:22-cv-01716-TSC (D.D.C. Nov. 1,
2023). Docket 164 at 2 (Case No. 3:23-cv-00058-SLG); Docket 164-1 (Case No. 3:23-cv-
00058-SLG) (slip opinion). The Court also considered Plaintiffs’ responses. Docket 165 (Case
No. 3:23-cv-00058-SLG); Docket 182 (Case No. 3:23-cv-00061-SLG). The out-of-circuit case
did not alter the Court’s decision here.
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1. Action Area
FWS’s BiOp for the Willow Project described “[t]he terrestrial Action Area
[as] the area within 1 mile (1.6 km) of Project activities . . . because it encompasses
the area of physical disturbance coupled with a one mile buffer within which
disturbance to polar bear dens could occur from noise, vibration, physical
presence, and human activity associated with the Project.”315
The offshore Action Area is the area within 1.5 miles (2.4 km) of
offshore Project components: the marine transit route (MTR) for barge
transit from Dutch Harbor in the southern Bering Sea to the offshore
barge lightering area, the screeding area for barge lightering, the
barge and support vessel route from the lightering area to Oliktok
Dock, and the area encompassing construction, screeding, and
offloading activities at Oliktok Dock . . . .316
“Apart from activities at and around Oliktok Dock, activities associated with the
Proposed Action would occur primarily between approximately 7.8 to 26.0 miles
(12.6 to 42.0 km) inland from the Beaufort Sea coast.”317
NMFS identified the Action Area in its Letter of Concurrence as identical to
the offshore Action Area in the BiOp: “the area within 2.4 km (1.5 mi) on both sides
of the barge delivery route (total width of 4.8 km (3 mi) . . . ) and 2.4 km (1.5 mi)
315 FWS_AR032437. See FWS_AR032438 (map of action area).
316 FWS_AR032437. See FWS_AR032439 (map of MTR).
317 FWS_AR032509. Oliktok Dock “existed at the time critical habitat was designated and [is]
therefore not part of critical habitat.” FWS_AR032531.
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along the lightering route for support vessels and barges to and from Oliktok
Dock.”318
2. Denning Polar Bears
Southern Beaufort Sea polar bears have increasingly used land for denning
due to the decline in sea ice.319 “The majority of the Action Area is farther inland
than where most polar bear dens occur, with the exception of the coastal area near
Oliktok Dock . . . . [I]n northern Alaska, west of the Kavik River, 95% of all historical
confirmed and probable dens occurred within 4.5 km (2.8 mi) of the Beaufort Sea
coast.”320 However, “[t]he majority of the proposed Project infrastructure would be
greater than 10 km from the coast. For example, BT2, the closest permanent
Project infrastructure to the coast[,] would be roughly 21 km inland. The
Tiŋmiaqsiuġvik mine site would also be roughly 15 km from the coast . . . .”321
Nevertheless, “small numbers of dens have been documented within or just
beyond the discrete boundary of the Action Area within the last 100 years; almost
all were concentrated in coastal areas, near Oliktok Dock, and nearby barrier
318 NMFS_AR000146. See NMFS_AR000147 (map of action area).
319 FWS_AR032470; FWS_AR032484.
320 FWS_AR032518.
321 FWS_AR032518.
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islands.”322 “This history suggests that it is possible that one or more polar bears
could attempt to den within the Action Area over the 30-year life of the project.”323
In the Effects section of the BiOp, FWS explained that it had used a model
to “derive[] an estimate of the number of dens that may be disturbed and hence
the number of cubs that could experience potential injury or mortality because of
this disturbance.”324 The model estimated that, during the life of the project, an
estimated median of zero cubs could experience MMPA harassment with the
potential to cause injury or mortality annually as a result of the disturbance by
Willow activity.325 And “there is a 70% probability of [zero] potential injuries or
mortalities to denning polar bears over the 30-year life of the Project.”326
322 FWS_AR032518.
323 FWS_AR032518.
324 FWS_AR032518. See FWS_AR032575-82 (Appendix B detailing model methodology).
325 FWS_AR032519. The model determined the amount of MMPA Level A or Level B
harassment—a lower bar compared to harassment under the ESA. As FWS explained,
there are several important differences in how various forms of “take” are defined
under the MMPA and ESA, and that in many instances MMPA take does not
equate to any form of ESA take. This is largely due to different standards
concerning both the probability and the extent of impacts. Whereas acts causing
a “potential to disturb” or “potential to injure” a marine mammal could qualify as
MMPA “Level B harassment” or MMPA “Level A harassment[,”] respectively, no
ESA take can occur unless the act creates a “likelihood of injury” (an element of
“harass” under the ESA) or “actually kills or injures” a marine mammal (an element
of “harm” under the ESA).
FWS_AR032540 (first citing 16 U.S.C. § 1362(18); and then citing 50 C.F.R. § 17.3).
326 FWS_AR032519. FWS found, based on the model, “that impacts to denning or post-
emergence polar bear cubs are not anticipated or reasonably certain to occur over the 30-year
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3. Non-Denning Polar Bears
FWS noted that “[w]hile on shore, the distribution of polar bears is largely
influenced by the opportunity to feed on the remains of subsistence-harvested
bowhead whales. Most polar bears are aggregated at three sites along the coast,
Utqiaġvik, Cross Island, and Kaktovik.”327 “[R]ecords of [i]ndustry encounters
during activities on the North Slope between 2014 – 2018[] indicate the number of
polar [bear] encounters significantly decreases with distance from the coast . . . .
Few encounters occur [greater than] 1.2 miles from the coast . . . and more
encounters occur during the open-water season than the ice season.”328
FWS noted that Willow will generate noise and other disturbance and that
“[p]ossible impacts on transient polar bears exposed to project related disturbance
potentially include disruption of normal activities, displacement from foraging and
resting areas, and interruption of movement patterns.”329 However, FWS
concluded in its Effects section of the BiOp that,
although small numbers of non-denning polar bears could be
disturbed by activities associated with the proposed Project, project-
specific disturbance would not result in injury to these bears because
1) polar bears occur at low density in the Action Area, 2) transient
bears can move away from disturbance if necessary, such that
life of the Project (i.e., cumulative probability of 0 MMPA Level A + lethal takes = 70%; Appendix
B, Table B.2).” FWS_AR032529.
327 FWS_AR032486. See FWS_AR032508.
328 FWS_AR032510.
329 FWS_AR032513.
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disturbance would be limited to short-term changes in behavior that
would not be biologically significant, 3) following the construction
phase, most activities would take place well inland from the coast
where polar bears are less likely to occur, and 4) existing coastal
infrastructure most likely to be encountered by polar bears is subject
to on-going existing levels of human activities and disturbance, and 5)
[ConocoPhillips’] adherence to minimization measures, such as
[required operating procedures] A-8, M-1 and Design features 46, 60,
66, and 81 would minimize impacts of disturbance to non-denning
bears.330
4. Mitigation Measures
The BiOp included several “Lease Stipulations (LSs) and required operating
procedures (ROPs)” aimed at mitigating impacts to listed species and critical
habitat.331 For example, ROP M-1 provides, “Chasing wildlife with ground vehicles
is prohibited. Particular attention will be given to avoid disturbing caribou.”332 FWS
also identified measures included by ConocoPhillips in the Willow Project proposal
that would minimize the Project’s impacts to listed species and critical habitat.333
5. No Jeopardy Determination
Ultimately, FWS concluded that “the Action, as proposed, is not likely to
jeopardize the continued existence of polar bears by reducing appreciably the
330 FWS_AR032516-17.
331 FWS_AR032409-21.
332 FWS_AR032420.
333 FWS_AR032421-26.
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likelihood of survival and recovery in the wild by reducing reproduction, numbers,
or distribution of this species.”334
6. Incidental Take Finding
FWS included an Incidental Take Statement (“ITS”) for polar bears in the
BiOp.335 In the ITS, FWS stated that it did “not anticipate the proposed action would
result in any incidental take of polar bears.”336 Nevertheless, FWS included an
explanation to “contextualize” its no-take finding and to address the relationship
between the BiOp and take authorizations issued under the MMPA.337 MMPA
Level B harassment constitutes acts causing a “potential to disturb” and Level A
harassment includes acts causing a “potential to injure.”338 In contrast, “no ESA
take can occur unless the act creates a ‘likelihood of injury’ (an element of ‘harass’
under the ESA) or ‘actually kills or injures’ a marine mammal (an element of ‘harm’
under the ESA).”339 Accordingly, MMPA Level B harassment is generally not ESA
334 FWS_AR032538. FWS also concluded that Willow was “not likely to result in the destruction
or adverse modification of any unit of designated critical habitat for the polar bear.”
FWS_AR032539.
335 FWS_AR032539-46.
336 FWS_AR032540.
337 FWS_AR032540.
338 FWS_AR032540. See 16 U.S.C. § 1362(18)(A)(i)-(ii), (C), (D).
339 FWS_AR032540 (first citing 16 U.S.C. § 1362(18); and then citing 50 C.F.R. § 17.3).
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take, and “not all instances of MMPA Level A harassment rise to the level of ESA
harm.”340
As to non-denning polar bears, the ITS stated that FWS
[did] not anticipate any incidental disturbances resulting from the
proposed action would “harass” any polar bears per the applicable
definition of that term. Two concepts separately and independently
support this finding. First, for the reasons explained in the Effects
section, none of the incidental disturbances to non-denning (i.e.,
transient) polar bears anticipated to result from this proposed action
would create a “likelihood of injury” to any polar bears, and thus none
of these incidental disturbances would “harass” any polar bears per
the ESA. Second, incidental disturbances resulting from this
proposed action would not occur intentionally or negligently.341
In support of its second conclusion in the ITS—that any incidental
disturbances would not occur intentionally or negligently to non-denning polar
bears and therefore did not constitute harassment under the ESA—FWS defined
“harass” as requiring an intent to harass.342 Because Willow “would be conducted
with the intent of developing and producing oil and gas and without any intent to
annoy, disturb, or harass polar bears,” and because the project incorporated
340 FWS_AR032540 (internal quotation marks omitted).
341 FWS_AR032541 (citing 50 C.F.R. § 17.3).
342 FWS_AR032541. FWS cited to a 1981 FWS proposed rulemaking that would redefine
“harm,” which cited to 50 C.F.R. § 17.3, and stated that, under this definition, “two elements
must be shown before a finding of harassment can be made: (1) likelihood of injury to wildlife,
and (2) some degree of fault, either intentional or negligent. Because the definition contains an
element of fault, it will not result in criminal liability for habitat modifications unless it is shown
that the defendant knew or reasonably should have known that his actions would be likely to
injure wildlife.” FWS_AR032541 (quoting Endangered and Threatened Wildlife and Plants;
Proposed Redefinition of “Harm,” 46 Fed. Reg. 29490, 29490-92 (June 2, 1981)).
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“numerous additional minimization measures . . . to further protect polar bears,”
FWS concluded that Willow “would be conducted in accordance with ‘reasonable
measures to avoid injury to’ . . . polar bears and that any incidental (i.e., not
intentional) disturbance of polar bears that nevertheless results from the proposed
action would not entail any ‘degree of fault, either intentional or negligent’, and thus
would not constitute ‘harassment’” under the ESA.343
Regarding denning polar bears, the ITS again referenced the model FWS
had relied on, which predicted that “the anticipated number of all MMPA Level A
Harassments (even when combined with the anticipated number of lethal takes) is
zero,” to conclude “that no incidental ESA take of denning bears is anticipated to
result from [Willow].”344
ii. Plaintiffs’ Claims
1. Non-Denning Polar Bears
a. The BiOp’s Definition of “Harassment”
Plaintiffs argue that FWS improperly defined “harassment” “to require
specific intent directed toward the listed animal, rather than general intent to
343 FWS_AR032541. In the BiOp, FWS “acknowledge[d] that it has not consistently given effect
to the ‘intentional or negligent’ language of its ESA definition of ‘harass’ when developing
biological opinions for polar bears. It [did] so here to give proper effect to all elements of the
definition of ‘harass,’ reflect the comprehensiveness of mitigation measures already
incorporated into this Proposed Action, provide a more precise estimate of the amount or extent
of ESA take anticipated to result from this proposed action, and better satisfy its responsibilities
under the ESA.” FWS_AR032542.
344 FWS_AR032542.
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commit acts that create a likelihood for injury,” in contravention of FWS regulations
and the ESA’s definition of incidental take.345
Federal Defendants respond that its definition of harassment is lawful
because “the plain language and regulatory history show that FWS applies ‘harass’
only to (1) intentional harassment of animals and (2) unintentional harassment
traceable to a negligent act[] or omission.”346 They rely on the proposed 1981
rulemaking cited in the BiOp and an earlier 1975 final rulemaking that explained
that “the definition of ‘harass’ has been modified by restricting its application to acts
or omissions which are done intentionally or negligently. In the proposal, ‘harass’
would have applied to any action, regardless of intent or negligence.”347 As to the
purported conflict between FWS’s definition of harass and the ESA’s incidental
take provision, ConocoPhillips responds that “both ‘harass[ment]’ and ‘harm’ can
occur incidentally” because “[a] negligent act that incidentally causes the likelihood
345 Docket 105 at 39-41 (Case No. 3:23-cv-00058-SLG); Docket 115 at 41 (Case No. 3:23-cv-
00061-SLG) (arguing that FWS’s “interpretation—that there is no incidental take where the
activity is not undertaken with the intent to harass the species—is contrary to the ESA’s plain
language, legislative history, implementing regulations, and FWS’s past practices” (emphasis in
original) (citation omitted)).
346 Docket 137 at 60 (Case No. 3:23-cv-00058-SLG).
347 Docket 137 at 59-60 (Case No. 3:23-cv-00058-SLG) (quoting Reclassification of the
American Alligator and Other Amendments, 40 Fed. Reg. 44412, 44413 (Sept. 26, 1975)). See
Proposal to Reclassify the American Alligator, 40 Fed. Reg. 28712, 28714 (July 8, 1975)
(“‘Harass’ in the definition of ‘take’ in the Act means an act which either actually or potentially
harms wildlife by killing or injuring it, or by annoying it to such an extent as to cause serious
disruption in essential behavior patterns, such as feeding, breeding or sheltering; significant
environmental modification or degradation which has such effects is included within the
meaning of ‘harass[.]’”).
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of injury to a listed animal is not done for the purpose of harassing the animal.”348
In any event, Federal Defendants emphasize that FWS relied on two separate and
independent reasons for its no-take finding: that there was no likelihood of injury
to listed species, and that, pursuant to its definition of “harass,” any disturbance
would not be intentional or negligent.349
The ESA does not define “harass”; FWS regulations define it as “an
intentional or negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt normal behavioral
patterns which include, but are not limited to, breeding, feeding, or sheltering.”350
In evaluating a challenge based on a regulation, courts first determine whether a
regulation is “genuinely ambiguous,” by “carefully consider[ing] the text, structure,
history, and purpose” of the regulation.351 If the regulation is not ambiguous, “[t]he
regulation then just means what it means—and the court must give it effect, as the
court would any law.”352
Plaintiffs are correct that the definition of “harass” that FWS applied to non-
denning polar bears is inconsistent with the regulation. The regulation’s text is
348 Docket 141 at 61 (Case No. 3:23-cv-00058-SLG).
349 Docket 137 at 57 (Case No. 3:23-cv-00058-SLG).
350 50 C.F.R. § 17.3.
351 Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (plurality opinion) (citation and internal
quotation marks omitted).
352 Id.
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unambiguous. “Harass” means an “intentional or negligent act or omission which
creates [a] likelihood of injury,”353 not an intentional or negligent act or omission
which intentionally or negligently creates a likelihood of injury. “Intentional or
negligent” modifies “act,” not “likelihood of injury.”354 This interpretation is
bolstered by the legislative history of the ESA.
The House Report [on the ESA] underscored the breadth of the “take”
definition by noting that it included “harassment, whether intentional
or not.” The Report explained that the definition “would allow, for
example, the Secretary to regulate or prohibit the activities of
birdwatchers where the effect of those activities might disturb the birds
and make it difficult for them to hatch or raise their young.” These
comments . . . support the Secretary’s interpretation that the term
“take” in § 9 reached far more than the deliberate actions of hunters
and trappers.355
Because the regulation is unambiguous, the Court does not defer to FWS’s
definition of “harass” in the BiOp or the proposed 1981 rulemaking commentary on
which the BiOp and Federal Defendants rely for non-denning polar bears.356
However, as explained below, FWS’s second, independent basis for finding that
non-denning polar bears would not be harassed by the Willow Project was not
353 50 C.F.R. § 17.3.
354 See id.
355 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704-05 (1995)
(emphasis in original) (quoting H.R. Rep. No. 93-412, at 11 (1973)).
356 See Kisor, 139 S. Ct. at 2415 (“[I]f there is only one reasonable construction of a regulation[,]
then a court has no business deferring to any other reading . . . .”).
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arbitrary and capricious, such that the agency’s misinterpretation of its regulation
is harmless error.
b. No Likelihood of Injury
CBD Plaintiffs argue that “Willow will involve substantial activity in polar bear
habitat,” including “over three million ground transportation trips, . . . gravel mining
and blasting, pile driving, new roads, and hundreds of boat trips.”357 “Such
activities can significantly disrupt polar bears’ normal behaviors[,]” considering
their sensitivity to noise and “high energy demands,” as well as polar bears’
“declining reproductive and survival rates, and poor body condition.”358 CBD
Plaintiffs contend that FWS’s determination “that none of the disturbances from
Willow over the next three decades would significantly disrupt the normal
behavioral patterns of any polar bear . . . rests on several arbitrary rationales
contradicted by the record.”359
Specifically, CBD Plaintiffs contend that FWS “relied on the fact that polar
bears occur in ‘low density’ in the Project area, especially ‘inland’ where bears are
‘less likely to occur[,]’ [b]ut this acknowledges that bears do occur in the Project
area, including inland, and a lower density does not preclude Willow from
357 Docket 115 at 44 (Case No. 3:23-cv-00061-SLG) (first citing AR820708; then citing
FWS_AR032516; and then citing FWS_AR032512-13, 16).
358 Docket 115 at 44-45 (Case No. 3:23-cv-00061-SLG) (first citing FWS_AR032513; then citing
AR515923; then citing AR523622; then citing AR517712-30; and then citing AR517731-72).
359 Docket 115 at 45 (Case No. 3:23-cv-00061-SLG) (emphasis in original).
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harassing individual bears.”360 Next, CBD Plaintiffs assert that FWS concluded
“that non-denning bears ‘can move away from disturbance if necessary[,]” [b]ut
such movements can themselves constitute harassment, particularly for
females.”361 Third, CBD Plaintiffs maintain that FWS’s recognition that “‘on-going
existing levels of human activities and disturbance’ in some polar bear habitat . . .
contradicts, without explanation, the available evidence showing that the more
disturbances a bear experiences, the more negative impacts that bear will
suffer.”362 Lastly, CBD Plaintiffs assert that “FWS assumed that various Project
design features would minimize the impacts of any disturbance[,] . . . includ[ing]
disturbance from all vehicle traffic.”363 Although FWS cited a mitigation measure
prohibiting chasing wildlife with vehicles, CBD Plaintiffs argue that the measure
“does not require anything that will prevent incidental harassment to polar bears
from vehicle traffic.”364
360 Docket 115 at 45 (Case No. 3:23-cv-00061-SLG) (quoting FWS_AR032516).
361 Docket 115 at 45-46 (Case No. 3:23-cv-00061-SLG) (quoting FWS_AR032516) (“Studies
have shown, for example, that ‘[w]hen energetically stressed, female polar bears may forego
reproduction,’ and that ‘females with small cubs . . . have higher energetic demands due to
lactation’ and increased movements require them ‘to expend additional energy.’” (first quoting
AR522160; then quoting AR523622; and then citing AR521546-56)).
362 Docket 115 at 46 (Case No. 3:23-cv-00061-SLG) (first quoting FWS_AR032516-17; and then
citing AR523622 (noting the harms to polar bears “from increased movements”)).
363 Docket 115 at 46 (Case No. 3:23-cv-00061-SLG) (first citing FWS_AR032517; and then
citing FWS_AR032516).
364 Docket 115 at 46 (Case No. 3:23-cv-00061-SLG) (first citing FWS_AR032420, 512; and then
citing Cook Inletkeeper v. Raimondo, 533 F. Supp. 3d 739, 754-55 (D. Alaska 2021)).
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SILA Plaintiffs similarly argue that FWS erroneously “failed to explain why”
“impacts on transient polar bears exposed to project-related disturbance
potentially includ[ing] disruption of normal activities, displacement from foraging
and resting areas, and interruption of movement patterns,” “do not qualify as
harassment.”365
Federal Defendants respond that FWS recognized that “small numbers of
transient bears could be exposed to project-related disturbance,” but “FWS also
[made] clear that such exposures would be brief and would only result in short-
term changes in behavior that are not biologically significant.”366 And
ConocoPhillips asserts that FWS did not rely on only one mitigation measure to
find vehicle traffic would not harass any polar bears; rather, FWS also explained
that traffic would occur inland where polar bears are less likely to be, that Oliktok
Dock is already heavily used so any additional use caused by Willow would not
meaningfully add to disturbances there, and that vehicle traffic is regulated at
industry sites.367
Plaintiffs’ arguments are unpersuasive. First, FWS recognized that polar
bears could transit through the Action Area and, contrary to CBD Plaintiffs’
365 Docket 105 at 43-44 (Case No. 3:23-cv-00058-SLG) (quoting FWS_AR032513).
366 Docket 137 at 64 (Case No. 3:23-cv-00058-SLG) (citing FWS_AR032516-17).
367 Docket 141 at 63 (Case No. 3:23-cv-00058-SLG) (first citing FWS_AR032516; then citing
FWS_AR032509-10; then citing AR512218; and then citing FWS_AR032520).
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assertion, did not rest its finding that those bears would not experience harassment
solely on their low density in the Action Area.368 Next, FWS’s statement that
transient bears could move away from disturbances was in the context of
disturbance from aircraft operations, and FWS provided additional reasons for
finding that aircraft disturbance was unlikely to result in “measurable effects or
injury.”369 Third, FWS’s recognition that “existing coastal infrastructure most likely
to be encountered by polar bears is subject to on-going existing levels of human
activities and disturbance” was one of five reasons FWS gave for finding that non-
denning polar bears would not suffer harassment from Willow’s activities.370
Contrary to CBD Plaintiffs’ assertion, the statement does not contradict anything—
it is a fact. Lastly, regarding mitigation of vehicle disturbances, as ConocoPhillips
points out, this mitigation measure was not the only reason FWS gave for finding
that vehicles would not cause ESA harassment.
368 FWS_AR032516-17. See FWS_AR032504, FWS_AR032508-17, FWS_AR032520-29 (BiOp
analysis on the effects of Willow to non-denning polar bears); FWS_AR032530-32 (BiOp
analysis on the effects of Willow to polar bear critical habitat).
369 FWS_AR032516 (“[A]lthough small numbers of non-denning polar bears could be disturbed
by aircraft operations associated with the proposed Project, measurable effects or injury would
be unlikely because 1) polar bears occur at low density in the Action Area, 2) transient bears
can move away from disturbance if necessary, and this level of disturbance is expected to be
minor and temporary without the likelihood of injury, 3) most activities requiring summer
helicopter operations would take place along winter routes well inland from the coast, and 4)
adherence to minimization measures, such as maintaining a flight altitude of 1,500 feet (ROP F-
1) would minimize impacts of disturbance to non-denning bears.”).
370 See FWS_AR032516-17.
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In the BiOp, FWS determined that the probability that polar bears would
enter the Action Area was low, considering the inland location of most of Willow’s
new infrastructure. For bears that might enter the Action Area, FWS considered
various types of disturbances that might occur and the associated mitigation
measures Willow would implement. Upon consideration of those facts, FWS
determined that Willow “would intermittently incidentally expose small numbers of
polar bears of the SBS stock to disturbance, and that effects from these exposures
would be limited to temporary changes in behavior that would not be biologically
significant.”371 Plaintiffs have not shown that FWS’s determination that there was
no likelihood of injury to non-denning (i.e. transient) polar bears was arbitrary and
capricious.
In sum, the Court finds that FWS’s conclusion that Willow’s disturbances
would not create a likelihood of injury to non-denning polar bears and that,
therefore, there would be no ESA harassment or take, is “within the bounds of
reasoned decisionmaking.”372 FWS “considered the relevant factors and
articulated a rational connection between the facts found and the choice made.”373
Accordingly, because FWS’s no-take determination for non-denning polar bears
371 FWS_AR032537.
372 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983).
373 Id. (citations omitted).
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relies on this lawful, separate, and independent basis, FWS’s erroneous definition
of harassment is not prejudicial error.374
2. Denning Polar Bears
Plaintiffs also challenge FWS’s conclusion that disturbance to denning polar
bears would not result in a likelihood of injury. Specifically, SILA Plaintiffs argue
that “FWS acknowledged that Willow ‘could affect denning polar bears,’” but it
“largely limited its discussion to its modeling assessment’s finding of Willow’s low
risk of cub injury or mortality” and did not consider impacts to adult female denning
bears.375
Federal Defendants respond that “the BiOp explain[s] why disturbance of
denning or prospecting bears is unlikely to occur given the location and timing of
Project activities.”376 For polar bears that might den in the project area, FWS
modeled the impact of disturbances using the MMPA standard.377 Federal
374 See PDK Lab’ys Inc., 362 F.3d at 799.
375 Docket 105 at 43 (Case No. 3:23-cv-00058-SLG) (fist quoting FWS_AR032517; then citing
FWS_AR032518-19; and then citing FWS_AR032580).
376 Docket 137 at 62 (Case No. 3:23-cv-00058-SLG) (first citing FWS_AR032509 (“The majority
of the Action Area is farther inland [than] polar bears typically occur, including transient (non-
denning) individuals and females prospecting for den sites and/or establishing dens[.]”); then
citing FWS_AR032517 (“[W]e anticipate impacts to denning polar bears associated with
activities at Oliktok Dock would be discountable due to lack of temporal overlap with the denning
period[.]”); then citing FWS_AR032520 (noting the inland location of the “vast majority of Project
infrastructure and activities” and the fact that “Project-related activities occurring closer to shore
would utilize existing infrastructure already subject to disturbance”); and then citing
FWS_AR032518 (discussing the scarcity of historical dens occurring even a few miles inland of
the coast)).
377 Docket 137 at 62 (Case No. 3:23-cv-00058-SLG); FWS_AR032581 (model results).
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Defendants note that Plaintiffs do not dispute “FWS’s assumption that any denning
adult females subjected to Project-related disturbance could experience MMPA
‘Level B harassment’ (which requires only a disruption of behavioral patterns) but
would not experience any MMPA ‘Level A harassment’ (which requires a potential
to injure).”378 Given that assumption, Federal Defendants contend that “the notion
espoused by Plaintiffs that a ‘likelihood of injury’ . . . could accrue to the adult bear
herself is unsupported, speculative at best, and contradicted by the well-reasoned
and undisputed assumptions underpinning FWS’s peer-reviewed model as well as
by FWS’s express conclusions reported in the BiOp.”379
With respect to adult female bears, FWS found that the probability that polar
bears would den within the Action Area was low. For those polar bears that might
enter the Action Area to den, FWS modeled whether there would be any MMPA
harassment, including to the adult female prior to cub birth during den
establishment.380 The model assigned MMPA Level B harassment to any potential
disturbance experienced by denning adult polar bears; the results showed a 0.60
probability of MMPA Level B harassment during den establishment and a 0.267
378 Docket 137 at 62-63 (Case No. 3:23-cv-00058-SLG) (first citing 16 U.S.C. § 1362(18); and
then citing FWS_AR032580).
379 Docket 137 at 63 (Case No. 3:23-cv-00058-SLG) (citation omitted).
380 FWS_AR032581 (“Level B harassment was applicable to both adults and cubs, if present;
Level A harassment and lethal take were applicable to cubs only and were not possible during
the den establishment period, which ended with the birth of cubs.”).
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probability of MMPA Level B harassment after the polar bear and her cub emerged
from the den.381 The BiOp then explained that
in many instances MMPA take does not equate to any form of ESA
take. This is largely due to different standards concerning both the
probability and the extent of impacts. Whereas acts causing a
“potential to disturb” or “potential to injure” a marine mammal could
qualify as MMPA “Level B harassment” or MMPA “Level A
harassment[,”] respectively, no ESA take can occur unless the act
creates a “likelihood of injury” (an element of “harass” under the ESA)
or “actually kills or injures” a marine mammal (an element of “harm”
under the ESA).382
In sum, FWS considered non-lethal disturbances to adult denning polar
bears in its model as MMPA Level B harassment and determined that Willow’s
activities did not have any likelihood of actually injuring an adult denning bear. The
Court finds that FWS “considered the relevant factors” in its analysis of project
disturbances to denning polar bears and “articulated a rational connection between
the facts found” and its conclusion that Willow would not cause ESA harassment
of any denning polar bears.383 Accordingly, Plaintiffs have not shown that FWS’s
consideration of ESA harassment as to denning polar bears was arbitrary and
capricious.
381 FWS_AR032580 (“Adult females received MMPA Level B harassment for any disturbance.”);
FWS_AR032581 (Table B.1 showing a 0.600 probability of MMPA Level B harassment during
the den establishment period due to discrete exposure and a 0.267 probability of MMPA Level B
harassment in the post-emergence period due to repeated exposure).
382 FWS_AR032540 (first citing 16 U.S.C. § 1362(18); and then citing 50 C.F.R. § 17.3).
383 See Balt. Gas & Elec. Co., 462 U.S. at 105.
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Because the BiOp was not arbitrary and capricious in its incidental take
analysis of polar bears, the Court also concludes that BLM’s reliance on FWS’s
BiOp did not violate its duties pursuant to Section 7.
d. Section 7 Consultation on Willow’s GHG Emissions
Plaintiffs contend that BLM, FWS, and NMFS violated Section 7(a)(2) of the
ESA by failing to consider the effects of Willow’s carbon emissions on protected
species.384
i. Consultation
Federal agencies fulfill their consultation responsibilities under Section 7 of
the ESA by consulting with FWS or NMFS, depending on the species potentially
affected.385 If an action agency determines that an action “may affect listed species
or critical habitat,” then generally “formal consultation is required.”386 However, if
an action agency determines that an action “may affect,” but “is not likely to
adversely affect” endangered species, threatened species, or designated critical
habitat, and the consulting service (FWS or NMFS) concurs, consultation can
384 Docket 105 at 34-39 (Case No. 3:23-cv-00058-SLG) (raising claim against BLM and FWS
and identifying polar bears as protected species); Docket 115 at 34-41 (Case No. 3:23-cv-
00061-SLG) (raising claim against BLM, FWS, and NMFS and identifying polar bears, ringed
seals, and bearded seals as protected species).
385 50 C.F.R. § 402.14(a).
386 Id.
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conclude informally.387 “An agency may avoid the consultation requirement only if
it determines that its action will have ‘no effect’ on a listed species or critical
habitat.”388
After this Court vacated FWS’s prior BiOp for the Willow Project, BLM issued
a new BA “to support USFWS’ efforts to prepare a new [BiOp].”389 The revised BA
prepared for FWS concluded that the Willow Project may affect and was likely to
adversely affect polar bears.390 The BA prepared for NMFS concluded that Willow
may affect but was not likely to adversely affect ringed and bearded seals.391
Accordingly, BLM initiated formal consultation with FWS regarding Willow’s impact
on polar bears392 and, through informal consultation, secured a letter of
concurrence from NMFS agreeing that Willow was not likely to adversely affect
any listed species or critical habitat.393
387 50 C.F.R. § 402.14(a), (b)(1).
388 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) (citation
omitted).
389 FWS_AR030552.
390 FWS_AR030118.
391 AR525026-27.
392 FWS_AR032388.
393 See NMFS_AR000143-94.
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The BA provided to each Service did not analyze Willow’s GHG emissions
as an effect of the action.394 In July 2022, BLM release a revised Draft SEIS and
solicited public comment for the Willow Project.395 CBD submitted a comment
asserting that BLM’s consultation with the Services under Section 7 “must consider
the impacts from the direct, indirect, and cumulative greenhouse gas emissions
caused by the project.”396 In light of CBD’s comment, on January 10, 2023, BLM
prepared a detailed memorandum assessing whether Willow’s GHG emissions
should be included in the scope of the agency’s Section 7 consultation with the
Services.397 BLM concluded that “the additional climate change-related
information [did] not alter” its initial analysis.398 BLM transmitted the memorandum
to both Services for review. On January 12, 2023, FWS responded to BLM’s
394 See FWS_AR030542-666 (revised BA to FWS); NMFS_AR000003-142 (BA to NMFS); 50
C.F.R. § 402.12(a) (“A biological assessment shall evaluate the potential effects of the action on
listed and proposed species and designated and proposed critical habitat and determine
whether any such species or habitat are likely to be adversely affected by the action . . . .”).
395 AR511580-81.
396 FWS_AR032349-50. See FWS_AR032348-70 for CBD’s entire comment.
397 See FWS_AR032344-47 (Memorandum from BLM Wildlife Biologist Craig Perham to Willow
Master Development Plan Supplemental EIS Decision File, Re: Scope of Ongoing Section 7
Consultations for Willow MDP (Jan. 10, 2023)).
398 FWS_AR032347 (“BLM’s evaluation of the additional climate change-related information
does not alter its list of species or designated critical habitat that could be affected by an
approval of the Willow MDP, the BLM’s delineation of the Action Area, or the BAs’ analysis of
effects to any listed species or designated critical habitat.”).
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memorandum via email, concurring in BLM’s conclusion.399 On January 13, 2023,
FWS issued the BiOp, which did not include Willow’s GHG emissions as an “effect
of the action.”400 Ten days later, NMFS also concurred in BLM’s conclusion that
Willow’s GHG emissions were outside the scope of the Section 7 consultation.401
ii. Willow’s GHG Emissions
CBD Plaintiffs argue that BLM violated the ESA by failing to assess Willow’s
GHG emissions in the BA and that BLM’s memorandum—concluding that Willow’s
GHG emissions were not an effect of the action—did not remedy that omission
because it applied the wrong standard.402 That is so, they assert, because Willow’s
GHG emissions “may affect” a listed species and therefore consultation on
Willow’s GHG emissions was required.403 Accordingly, CBD Plaintiffs also argue
that NMFS’s and FWS’s concurrences with BLM’s conclusion in its memorandum
were unlawful.404
399 FWS_AR032341 (FWS email “agree[ing] that the current state of climate science does not
allow us to draw causal links between contributions from project-specific GHG emissions to
global climate change, and subsequent project-specific effects on listed species and designated
critical habitat”).
400 See generally FWS_AR032380-582.
401 NMFS_AR000495 (January 23, 2023, NMFS email “agree[ing] that the scope of the ESA
Section 7 consultation with respect to GHG emissions is appropriate”).
402 Docket 115 at 35-37 (Case No. 3:23-cv-00061-SLG).
403 Docket 115 at 37-39 (Case No. 3:23-cv-00061-SLG).
404 Docket 115 at 36-39 (Case No. 3:23-cv-00061-SLG).
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SILA Plaintiffs contend that FWS violated the ESA because the BiOp failed
to consider Willow’s GHG emissions as an “effect” of the action and to
“acknowledge or explain how Willow’s emissions could further reduce sea ice
extent or otherwise reduce the survival and recovery of polar bears.”405 They argue
that “Willow’s additive direct and indirect GHG emissions are ‘effects’ under the
ESA because these emissions would not occur ‘but for’ BLM’s action approving
Willow and are ‘reasonably certain to occur.’”406 SILA Plaintiffs contend that, “[a]t
a minimum, Willow’s GHG emissions ‘may affect’ polar bears and meet the
threshold requirement for being considered during consultation.”407
Federal Defendants respond that “BLM fully grappled with climate-change
related issues in its ESA Section 7 consultations.”408 They point to portions of
BLM’s BAs to FWS and NMFS that included climate change as a cumulative effect
and noted that warming global temperatures and the associated loss of sea ice
“may have serious implications for polar bears and their ice-dependent marine
prey.”409 Federal Defendants assert that, “[w]hile BLM did not specifically consider
405 Docket 105 at 34-35 (Case No. 3:23-cv-00058-SLG).
406 Docket 105 at 35 (Case No. 3:23-cv-00058-SLG) (first citing 50 C.F.R. § 402.02; and then
citing Conner, 848 F.2d at 1453).
407 Docket 105 at 35 (Case No. 3:23-cv-00058-SLG) (citing Ctr. for Biological Diversity, 698 F.3d
at 1122-25).
408 Docket 137 at 46 (Case No. 3:23-cv-00058-SLG).
409 FWS_AR030115. See FWS_AR030115-20 (portion of BLM’s BA to FWS regarding climate
change cumulative effects and polar bears); NMFS_AR000073 (BLM’s BA sent to NMFS noting
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Willow’s GHG emissions as part of its initial ESA ‘effects’ analysis, this is
immaterial because it determined the Willow Project ‘may affect’ listed species and
their designated critical habitat.”410 Federal Defendants maintain that “the ‘may
affect’ threshold is only applied by action agencies in determining whether ESA
consultation must be initiated in the first place” and “an action agency’s ‘may affect’
determination addresses the entirety of the proposed action, not specific
subcomponents in isolation like GHG emissions.”411 “[O]nce consultation is
underway, the only potential consequences that must be evaluated and described
are ‘effects of the action.’”412
Regarding BLM’s January 2023 memorandum, Federal Defendants assert
that BLM’s conclusion—that “BLM [did] not identif[y] any additional effects to listed
that nonfederal “actions could contribute to cumulative effects on marine mammals, particularly
ringed and bearded seals, which are closely associated with sea ice” and “[w]arming global
temperatures and the associated reductions in extent and duration of sea ice that are predicted
to occur in the future may have substantial implications for these species”). See also
FWS_AR030116 (BLM’s BA to FWS noting that “the ability of federal agencies to influence the
processes thought to be responsible for climate change (such as global greenhouse gas
emissions) is extremely limited at present, absent an effective worldwide response to the
problem); NMFS_AR000073 (same).
410 Docket 137 at 48 (Case No. 3:23-cv-00058-SLG).
411 Docket 137 at 53 (Case No. 3:23-cv-00058-SLG) (quoting 50 C.F.R. § 402.14(a)).
412 Docket 137 at 53 (Case No. 3:23-cv-00058-SLG) (first citing 50 C.F.R. § 402.14(c)(iv)
(describing required contents of a biological assessment); then citing 50 C.F.R. § 402.14(g)(3)
(describing what the Services must evaluate); and then citing 50 C.F.R. § 402.14(h) (describing
required contents of a BiOp)).
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species or designated critical habitat within the Action Area stemming from
[Willow’s] GHG emissions”413—was proper because
quantifying a marginal decrease in seasonal sea ice in unknown spots
somewhere in the millions of square miles of the circumpolar Arctic
does not enable the Agencies’ expert biologists to identify any
“reasonably certain to occur” consequences to any listed species or
critical habitat, and thus fails to reveal any additional “effects of the
action.”414
As an initial matter, the Court addresses what constitutes an “effect of the
action” and therefore must be considered by BLM in the BA and by the Services in
their consultations. As noted above, “may affect” is the standard that triggers some
level of consultation between the action agency—here BLM—and the Services.415
In contrast, in their substantive analysis, the BA and the BiOp must assess “the
effects of the action on listed species or critical habitat.”416
Effects of the action are all consequences to listed species or critical
habitat that are caused by the proposed action, including the
413 FWS_AR032346-47.
414 Docket 137 at 50 (Case No. 3:23-cv-00058-SLG) (first citing FWS_AR032341 (FWS
concurrence email); then citing FWS_AR032345-46 (BLM’s memorandum); and then citing
NMFS_AR000495 (NMFS’s concurrence email).
415 50 C.F.R. § 402.14(a) (“Each Federal agency shall review its actions at the earliest possible
time to determine whether any action may affect listed species or critical habitat. If such a
determination is made, formal consultation is required except as noted in paragraph (b) of this
section.”); id. § 402.14(b)(1) (“A Federal agency need not initiate formal consultation if, as a
result of the preparation of a biological assessment under § 402.12 or as a result of informal
consultation with the Service under § 402.13, the Federal agency determines, with the written
concurrence of the Director, that the proposed action is not likely to adversely affect any listed
species or critical habitat”).
416 Id. §§ 402.14(h)(1)(iii), 402.12(a) (“A biological assessment shall evaluate the potential
effects of the action on listed and proposed species and designated and proposed critical
habitat . . . .”).
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consequences of other activities that are caused by the proposed
action. A consequence is caused by the proposed action if it would
not occur but for the proposed action and it is reasonably certain to
occur. Effects of the action may occur later in time and may include
consequences occurring outside the immediate area involved in the
action.417
Accordingly, because BLM concluded in the BA that Willow “may affect” polar
bears and bearded and ringed seals, it consulted with FWS and NMFS regarding
those species. During consultation, the Services analyze the “effects of the
action,” as determined by applying the above definition, not by applying the “may
affect” standard.418
BLM applied the correct standard to determine whether Willow’s GHG
emissions were an effect of the action and provided a reasoned basis for
concluding that they were not. While BLM’s BAs generally discuss climate change
and global warming, and that a loss of sea ice may threaten polar bears and other
417 Id. § 402.02.
418 Id. § 402.14(c)(1)(iv) (formal consultation); id. § 402.13(c)(1) (during informal consultation,
“[a] written request for concurrence with a Federal agency’s not likely to adversely affect
determination shall include information similar to the types of information described for formal
consultation at § 402.14(c)(1) sufficient for the Service to determine if it concurs.”).
Plaintiffs rely on Center for Biological Diversity v. Bureau of Land Management, 698 F.3d at
1122-25, in support of their assertion that the “may affect” standard applies to the BiOp’s effects
analysis. Docket 105 at 36 (Case No. 3:23-cv-00058-SLG); Docket 115 at 37 (Case No. 3:23-
cv-00061-SLG). However, that case equated the standard for initiating consultation, “may
affect,” with the standard that an agency action “is arbitrary and capricious if it fails to ‘consider[]
the relevant factors and articulate[ ] a rational connection between the facts found and the
choice made.’” Ctr. for Biological Diversity, 698 F.3d at 1121-22 (quoting Pac. Coast Fed’n of
Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)). See
also Karuk Tribe of Cal., 681 F.3d at 1027 (“We have previously explained that ‘may affect’ is a
‘relatively low’ threshold for triggering consultation.” (emphasis added) (quoting California ex rel.
Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1018 (9th Cir. 2009)).
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ice-dependent species, the BAs do not discuss how Willow’s GHG emissions may
affect these species.419 However, BLM’s memorandum, issued after the BAs but
before the BiOp and Final SEIS were complete, responded to CBD’s comment on
the Draft SEIS “that suggested that Federal agencies establish causal links
between project-specific GHG emissions and climate change-related effects to
listed species (with an emphasis on marine mammals, highlighting polar bears)
and/or their designated critical habitat.”420 In the memorandum, BLM
acknowledge[d] that [Willow] is anticipated to result in a marginal
increase in global GHG emissions that would contribute to climate
change and, potentially, a marginal seasonal decrease in sea ice
extent somewhere in the Arctic. Further, while a suite of polar bear
impacts as a result of sea ice loss is known, any generalized
calculations of GHG impacts, such as sea ice loss, at this time would
not be able to determine precise effects to individual animals and such
consequences would not be reasonably certain to occur.421
That was, in part, because “the sea-ice calculation [provided in CBD’s comment]
is too broad to quantify potential impacts to listed species already addressed in the
Section 7 consultations or their critical habitat with additional precision beyond that
which has already occurred.”422 The memorandum concluded that Willow’s GHG
419 See FWS_AR030662 (BA to FWS noting that “the ability of federal agencies to influence the
processes thought to be responsible for climate change (such as global greenhouse gas
emissions) is extremely limited at present, absent an effective worldwide response to the
problem).”); NMFS_AR000073 (BA to NMFS noting same).
420 FWS_AR032344. See FWS_AR032348-70 (CBD’s comment).
421 FWS_AR032345.
422 FWS_AR032345.
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emissions were not an effect of the action and the “BAs’ effects analysis [was]
sufficient.”423 Both FWS and NMFS agreed.424
CBD Plaintiffs argue that BLM’s memorandum improperly required
“‘precision’ or ‘granularity’ in the ability to predict effects from [Willow’s]
emissions.”425 But “[t]o be considered an effect of a proposed action, a
consequence must be caused by the proposed action (i.e., the consequence would
not occur but for the proposed action and is reasonably certain to occur).”426 “A
conclusion of reasonably certain to occur must be based on clear and substantial
information, using the best scientific and commercial data available.”427 BLM
determined that “generalized calculations of GHG impacts . . . would not be able
to determine precise effects to individual animals and such consequences would
not be reasonably certain to occur.”428 As such, BLM concluded that Willow’s GHG
423 FWS_AR032346-47.
424 FWS_AR032341 (FWS email); NMFS_AR000495 (NMFS email).
425 Docket 115 at 38 (Case No. 3:23-cv-00061-SLG) (quoting FWS_AR032345-46 (BLM
memorandum noting that “more granular information” was needed “to establish a relationship
between a marginal sea ice loss and resulting consequences to marine mammals” and “[a]
simple calculation of sea ice loss would not be adequate to further help the analysis of polar
bear food resources or seal impacts to a level of precision that has not already been addressed
in the SEIS and BAs”) and FWS_AR032341 (FWS email providing that “[a]lthough climate
science has advanced since [2008], the level of reliability and granularity provided by existing
models is still insufficient to identify project-specific effects to listed species or designated critical
habitat”)).
426 50 C.F.R. § 402.17(b).
427 Id. § 402.17(b).
428 FWS_AR032345.
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emissions were not an effect of the action by evaluating whether Willow’s GHG
emissions were “reasonably certain” to “cause” a “consequence to listed species
or critical habitat” in the Action Area, the proper regulatory standard.429 BLM and
FWS used “precision” and “granularity” as characterizations of the causation
issues with the scientific data: the evidence was not clear and substantial enough
to render the impact of Willow’s GHG on listed species an “effect of the action.”
Accordingly, the memorandum applied “effects of the action” to conclude that
Willow’s GHG emissions fell outside the regulatory definition.430 Therefore, the
BAs and BLM memorandum were not arbitrary and capricious, and FWS’s and
NMFS’s concurrences with BLM’s conclusion were also not arbitrary and
capricious.
429 50 C.F.R. § 402.02 (defining “effects of the action”); 50 C.F.R. § 402.02 (defining BA as “the
information prepared by or under the direction of the Federal agency concerning listed and
proposed species and designated and proposed critical habitat that may be present in the action
area and the evaluation potential effects of the action on such species and habitat.”); 50 C.F.R.
§ 402.12(c) (requiring the action agency to solicit “a list of any listed or proposed species or
designated or proposed critical habitat that may be present in the action area” or to provide such
a list of species or habitat to the Service for inclusion in the BA).
430 CBD Plaintiffs characterize BLM’s conclusion—and the Services concurrences—that
Willow’s GHG emissions were not an effect of the action as akin to a determination that Willow’s
GHG emissions will have “no effect” on polar bears or bearded and ringed seals. Docket 115 at
36 (Case No. 3:23-cv-00061-SLG). However, as noted above, if an agency determines that an
action will have “no effect” on listed species or critical habitat, then no consultation with the
Services under Section 7 is required. Here, BLM did not make a “no effect” finding as to Willow.
Rather, it concluded that Willow “may affect” polar bears and bearded and ringed seals and
initiated consultation with the Services on the “effects” of Willow. Willow’s GHG emissions are
not a standalone “agency action” that requires a standalone determination of “no effect” or “may
affect.” See Docket 137 at 53 (Case No. 3:23-cv-00058-SLG) (“[A]n action agency’s ‘may
affect’ determination addresses the entirety of the proposed action, not specific subcomponents
in isolation like GHG emissions.”).
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SILA Plaintiffs’ similar arguments as to FWS’s BiOp also fail. Just as BLM’s
determination that Willow’s GHG emissions did not constitute an “effect of the
action” under the ESA was not arbitrary and capricious, FWS’s failure to
specifically address Willow’s GHG emissions in the BiOp was similarly not arbitrary
and capricious. In any event, FWS recognized the impacts of GHGs on climate
change and climate change’s impacts on polar bears and their habitat. In
evaluating the baseline of polar bears, the BiOp noted that, “[i]n the Action Area,
the greatest impact to polar bears is loss of sea ice resulting from climate change”
and that “the decline of sea ice habitat due to changing climate [is] driven primarily
by increasing atmospheric concentrations of greenhouse gases.”431 The BiOp
then explained how reductions in sea ice are impacting or could impact polar bears
and their habitat.432 In the BiOp’s conclusion, FWS
acknowledge[d that] the Proposed Action could affect an increasingly
higher proportion of the SBS stock of polar bear in the future (due to
polar bears’ increased use of terrestrial areas as sea ice decreases,
a decline in the SBS stock population, or other factors). [FWS] also
acknowledge[d] that polar bears in the Action Area could become
increasingly sensitive to disturbance or other impacts due to food
stress or other factors indirectly associated with climate change.
However, [FWS did] not have sufficient data to reliably predict how
the effects of the proposed Action may or may not contribute to
increased sensitivity.433
431 FWS_AR032485.
432 FWS_AR032485-87; FWS_AR032491.
433 FWS_AR032537.
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Further, in the FWS email concurring in BLM’s conclusion that Willow’s GHG
emissions were outside the scope of the Section 7 consultation, FWS
agree[d] that the current state of climate science does not allow us to
draw causal links between contributions from project-specific GHG
emissions to global climate change, and subsequent project-specific
effects on listed species and designated critical habitat. The Service
has consistently held this position since at least 2008, when it listed
polar bears as threatened. Although climate science has advanced
since then, the level of reliability and granularity provided by existing
models is still insufficient to identify project-specific effects to listed
species or designated critical habitat.
. . .
Here, we agree that an estimate of a project-caused decrease in sea
ice occurring somewhere in the Arctic, without more specific
information (e.g., location and type of affected sea ice, use [if any] of
that sea ice by listed species and their prey/forage, etc.), does not
enable us to predict any "effects of the action" to listed species or
designated critical habitat per section 7 and its implementing
regulations.434
In sum, BLM and the Services “considered the relevant factors” and
“articulated a rational connection between the facts found and” their conclusions
that Willow’s GHG emissions did not constitute an effect of the action under the
ESA.435 While NMFS’s email “agreed that the scope of the ESA Section 7
consultation with respect to GHG emissions is appropriate” “[w]ithout commenting
on the conclusions that BLM has drawn,” because the underlying BLM conclusion
was not arbitrary and capricious, any deficiency on NMFS’s part in explaining its
434 FWS_AR032341.
435 Balt. Gas & Elec. Co., 462 U.S. at 105.
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agreement with BLM’s conclusion would be harmless error. Because FWS’s BiOp
was not arbitrary or capricious, the Court also finds that BLM’s reliance on the BiOp
did not violate the ESA.436
iii. Best Scientific Data Available
Plaintiffs argue that, by failing to consult on or consider Willow's GHG
emissions, FWS did not consider the best available scientific and commercial data
as required by the ESA.437 Federal Defendants respond that “[they] did not ignore
the studies cited by Plaintiffs. Rather, they comprehensively described key
overarching issues like the contribution of GHG emissions to climate change and
the projected impacts to sea ice and ice-dependent species.”438
“The ESA requires an agency to use ‘the best scientific and commercial data
available’ when formulating a BiOp.”439 “Under this standard, an agency must not
‘disregard[] available scientific evidence that is in some way better than the
evidence [it] relies on.’”440 “The standard does not, however, require an agency to
436 Docket 105 at 34 (Case No. 3:23-cv-00058-SLG); Docket 115 at 47 (Case No. 3:23-cv-
00061-SLG).
437 Docket 105 at 36-39 (Case No. 3:23-cv-00058-SLG); Docket 115 at 39-41 (Case No. 3:23-
cv-00061-SLG).
438 Docket 137 at 56 (Case No. 3:23-cv-00058-SLG) (first citing AR820758-59; then citing
FWS_AR030115-20; and then citing NMFS_AR000073).
439 San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014) (quoting
16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.14(g)(8)).
440 Id. (quoting Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006) (internal
quotation marks omitted)).
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conduct new tests or make decisions on data that does not yet exist.”441 “Finally,
what constitutes the best scientific and commercial data available is itself a
scientific determination deserving of deference.”442
CBD Plaintiffs claim that “[t]he current science substantially develops
information about sea ice trends in all polar bear subpopulation regions, and other
information estimating the extent and timing of projected Arctic sea ice loss” and
Plaintiffs cite several studies in the record.443 They also claim that “science also
shows that significant emissions reductions will allow substantially more sea ice to
persist and increase the chances that polar bears will survive in Alaska and across
their range.”444 Plaintiffs also rely on a 2016 study quantifying that every metric
441 Id. (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 998-99 (D.C. Cir. 2008)).
442 Id. (citing Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1265 (11th Cir.
2009)).
443 Docket 115 at 40 (Case No. 3:23-cv-00061-SLG) (first citing AR522799-813 (2016 Stern and
Laidre study finding “a trend toward earlier sea-ice retreat and later sea-ice advance” and a
decline in the “number of ice-covered days”); then citing AR752368 (report noting that “[s]ince
the early 1980s, annual average arctic sea ice has decreased in extent between 3.5% and 4.1%
per decade” and that “[i]t is very likely that human activities have contributed to observed arctic
surface temperature warming [and] sea ice loss” (emphasis omitted)); then citing AR752642 and
AR752646 (report noting same); then citing AR725580 (2018 Arctic Report Card noting that
surface air temperatures in the Arctic are warming and 2018 Arctic sea ice was “younger,
thinner, and covered less area than in the past”); and then citing AR644960, AR644993-5000
(2021 Arctic Report Card excerpts noting that “the 15 lowest [sea ice] minimum extents have all
occurred in the last 15 years” and “[t]he amount of multiyear sea ice, based on available data
since 1985, reached its second lowest level by the end of summer 2021, sea ice thickness was
lower than recent years, and volume was at record low (since at least 2010) in April 2021”)).
444 Docket 115 at 40 (Case No. 3:23-cv-00061-SLG) (first citing AR725265-70 (2010 study
showing “substantially more sea-ice habitat would be retained if greenhouse gas rise is
mitigated” and that “mitigating greenhouse gas emissions to improve polar bear status would
have conservation benefits throughout and beyond the Arctic”); then citing AR736462-66 (2016
study modeling the response of polar bears to sea ice loss); then citing AR725322-28 (2020
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ton of carbon emissions results in a loss of three, plus or minus three-tenths,
square kilometers of sea ice and maintain this study should have been used to
quantify the impact of Willow’s GHG emissions on polar bears and seals.445
FWS cited the Stern and Laidre study identified by CBD Plaintiffs in the BiOp
for the proposition that “over the last two decades, the Southern Beaufort Sea
subpopulation has experienced a marked decline in summer sea-ice extent, along
with pronounced lengthening of the open-water season.”446 The other studies
Plaintiffs identify indicate that Arctic sea ice is decreasing, that greenhouse gases
contribute to the loss of sea ice, and that a loss of sea ice could adversely affect
polar bears. FWS acknowledged all of this in the BiOp: “[T]he decline of sea ice
study noting “that, with high greenhouse gas emissions, steeply declining reproduction and
survival will jeopardize the persistence of all but a few high-Arctic subpopulations by 2100”); and
then citing AR523567 (FWS Polar Bear Conservation Management Plan noting that “[i]t cannot
be overstated that the single most important action for the recovery of polar bears is to
significantly reduce the present levels of global [GHG] emissions, which are the primary cause
of warming in the Arctic”)). See Docket 105 at 40 (Case No. 3:23-cv-00058-SLG) (first citing
same 2010 study above; and then citing FWS_AR371710 (2015 study noting “two-thirds of the
world’s polar bears could disappear if greenhouse gas emissions continue as predicted”)).
445 Docket 105 at 37 (Case No. 3:23-cv-00058-SLG) (citing AR751166-70 (2016 Notz and
Stroeve study)); Docket 115 at 39-41 (Case No. 3:23-cv-00061-SLG) (citing AR736154-58
(same)). ConocoPhillips asserts that “BLM evaluated [the Notz study]” in the memorandum.
Docket 141 at 55 (Case No. 3:23-cv-00058-SLG) (citing AR811704 and FWS_AR032345). The
BLM memorandum cites two studies, neither of which is the Notz study; but both the
memorandum and FWS’s response discuss that it is possible to estimate a “project-caused
decrease in sea ice,” which was the conclusion of the Notz study. FWS_AR032341. BLM also
referred to the Notz study and its finding regarding sea ice loss in the Final SEIS. See
AR820758.
446 FWS_AR032470; FWS_AR032484; FWS_AR032564.
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habitat due to changing climate, driven primarily by increasing atmospheric
concentrations of greenhouse gases, is the primary threat to polar bears.”447
The 2016 Notz study that Plaintiffs rely on concludes that a defined increase
in global GHG emissions will result in a measurable quantity of Arctic sea ice loss.
The agencies considered that this scientific evidence was available in their ESA
analysis.448 But Plaintiffs have not shown any available scientific evidence that
links Willow’s projected GHG emissions to a reasonably certain decrease in sea
ice impacting polar bears in the Action Area.449 As BLM acknowledged, Willow “is
anticipated to result in a marginal increase in global GHG emissions that would
contribute to climate change and, potentially, a marginal seasonal decrease in sea
ice extent somewhere in the Arctic.”450 But as FWS explained, “an estimate of a
project-caused decrease in sea ice occurring somewhere in the Arctic, without
more specific information (e.g., location and type of affected sea ice, use [if any]
of that sea ice by listed species and their prey/forage, etc.,) does not enable us to
predict any ‘effects of the action’ to listed species or critical designated habitat.”451
Accordingly, Plaintiffs have not shown that FWS “disregarded available scientific
447 FWS_AR032485.
448 FWS_AR032341.
449 See description of Action Area supra Section V.c.i.1.
450 FWS_AR032345.
451 FWS_AR032341.
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evidence” “better than the evidence it relied on,”452 and FWS’s use of the available
scientific and commercial data was not arbitrary and capricious.
CONCLUSION
In light of the foregoing, IT IS ORDERED that:
• SILA Plaintiffs’ Motion to Strike at Docket 150 in Case No. 3:23-cv-00058-
SLG is GRANTED in part and DENIED in part as follows: the Court strikes
only the 2008 Lecky letter and the portion of NSB’s response in opposition
that relies on the letter,453 as set forth above;
• SILA Plaintiffs’ request for vacatur at Docket 105 in Case No. 3:23-cv-
00058-SLG and CBD Plaintiffs’ request for vacatur at Docket 115 in Case
No. 3:23-cv-00061-SLG are each DENIED; and
• SILA Plaintiffs’ and CBD Plaintiffs’ claims are DISMISSED with prejudice.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 9th day of November 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
452 See San Luis & Delta-Mendota Water Auth., 776 F.3d at 995.
453 Docket 143-1 at 18-19 (Case No. 3:23-cv-00058-SLG); Docket 143 at 33 & n.8 (Case No.
3:23-cv-00058-SLG).
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