Natural resource development litigation: 'litigation is, for better or worse, part of the way it works up here'.

• Author: Anderson, Tasha
• Position: SPECIAL SECTION: Environmental Services

Alaska will never lack resources or opinions on how to develop them. It is a constant balancing act to allow industry to develop in a way that promotes a healthy Alaska economy while mitigating negative impacts on the environment or even other industry. One way opinions about the development of Alaska's natural resources are expressed is through litigation. According to attorney Eric Fjelstad, a partner at the Anchorage office of law firm Perkins Coie, "People fight because they're passionate about the issues," and that goes for those who are proposing a new project or those who may be fighting against it.

[ILLUSTRATION OMITTED]

Environmental Issues

Fjelstad, who has been practicing law in Alaska since 1994, says his practice has focused on oil and gas and mining industry project development. He says what comes up the most in terms of litigation are issues related to the National Environmental Policy Act, or NEPA, a federal law which has been in place since the late '60s. This is the law that may require companies to either perform an EIS (environmental impact statement) or environmental assessment.

"We have a lot of federal land here, and a lot of federal agencies, so many or most of the decisions that [project developers] make will trigger NEPA," Fjelstad says. He continues that an EIS may take two to six years to complete and can range from a couple of hundred pages of information to four or five thousand. "So, lots of money, lots of time."

Following NEPA issues would probably be the Endangered Species Act (ESA) claims, which he says are centered in three areas: the North Slope (polar bears, eiders, seals), Cook Inlet (beluga whales), and Southwest Alaska and the Aleutians (Steller sea lions, otters). Fjelstad says that the conversation about protecting the animals has shifted in recent years. "Ten or fifteen years ago there was little if any discussion of climate change. It just wasn't a cutting edge issue."

Fjelstad says an emerging ESA argument is that an affected species may be unlisted currently, but if certain projections of climate change bear out, the species would potentially be listed as endangered in the future. This issue is further complicated by the fact that there are various models that predict climate change, and different parties may favor different models. Fjelstad says, "You could bring one hundred people into a room and they'd all have a different view on the models."

He says one point of clarity in response to this...