A Perfect Storm: Environmental Justice and Air Quality Impacts of Offshore Oil and Gas Development in the Arctic Outer Continental Shelf.

• Author: Race, Kayla

INTRODUCTION

The oil and gas industry has been encircling Alaska's North Slope with development in every direction, and now has Native Alaskan villages in a chokehold. On February 15, 2012, a "wall of coffee-colored smoke rolled toward the village of Nuiqsut." (1) Eighteen miles from the village and 1.75 miles inland from the Arctic coastline, an exploratory oil well owned by Repsol on the North Slope of Alaska had suffered a blowout, sending gas and 42,000 gallons of drilling mud shooting out of the well for nearly nine hours. (2) Panicked Nuiqsut residents scrambled to contact local authorities to find out if they should evacuate, but found no answers. (3) The village's air monitoring equipment happened to be down for "routine maintenance" at the time. (4) It also just so happened that the entity in charge of monitoring Nuiqsut's air was ConocoPhillips, the oil company that owned drilling sites on the outskirt of town. 95)

Many villagers reported feeling ill that day, but the response from the oil industry and state agencies alike has been dismissive. (6) ConocoPhillips said decades of the company's air monitoring data shows "the air quality of the North Slope ... is consistently better than national ambient air quality standards." (7) The chairman of the Alaska Oil and Gas Conservation Commission--the state agency that regulates drilling for worker safety and environmental protection--simply said: "Blowouts are exceedingly rare." (8) Nevertheless, just over a year later, on April 9, 2013, 6,600 gallons of crude oil sprayed out of another Repsol oil well located on Alaska's North Slope. (9) This trend was concerning, given that Repsol held the exploration rights to more than 500,000 acres in Alaska (10) and more than 100 offshore leases in the Chukchi Sea, making it second only to Shell in Arctic oil and gas exploration. (11)

Nuiqsut residents' concerns are broader than pollution from one-off blowouts. Nuiqsut residents have reported that the "every-day airborne pollutants from vast drilling operations" surrounding the village form a "hazy green" sky and "black soot on the snow." (12) As a result, "noses run and asthma flares up." (13) The number of people in Nuiqsut being treated for respiratory illness rose from one person in 1986 to seventy-five people by the turn of the century--a "stunning" increase for a village of 400 people. (14) A doctor told one mother who rushed her son to urgent medical care for respiratory distress on several occasions, "It's something in the air he's breathing." (15) State officials, however, assert that the connection between residents' symptoms and the industry's pollution is too attenuated. "Studies done by various state and regional agencies, based largely on ConocoPhillips' data, attribute respiratory health issues to spikes in viruses, smoking, poor indoor ventilation and cars left idling for hours in freezing temperatures." (16) Some Nuiqsut residents tried to prove the connection between their respiratory problems and oil and gas pollution by initiating a community-based air monitoring program, but fear of retribution by community elders with ties to the oil and gas industry thwarted these monitoring efforts. (17)

In addition to the immediate health impacts of oil and gas pollution in their village, Nuiqsut residents worry about the impact of the industry (onshore and offshore) and climate change on their native fishing, whaling, and hunting activities--the primary source of food for more than three-quarters of Nuiqsut residents. (18) Greenhouse gas emissions associated with oil and gas production contribute to climate change, which is "causing Arctic temperatures to rise twice as fast as the global average, changing the sea ice and impacting species that people rely on for hunting." (19) In addition, offshore drilling carries the unique risks of oil spills and increased marine traffic that could physically interfere with Native whaling and fishing activities. (20) The Bureau of Ocean Energy Management (BOEM)--the federal agency responsible for permitting oil and gas activities in federal waters--acknowledged that drilling in Arctic waters presents "possible conflicts" with the subsistence hunting and fishing activities of Native communities. (21) Further, harmful air pollutants from offshore drilling threaten the health of Native Alaskan hunters, including those from Nuiqsut, who "spend extended periods of time closer to the emissions sources" (22) because their pursuit of whales and walruses takes them up to sixty miles offshore, toward drilling activities. (23) In response to a legal challenge brought by the Native Village of Point Hope (24) and other environmental justice groups against Shell's offshore drilling efforts, the Environmental Appeals Board of the U.S. Environmental Protection Agency (EPA) recognized the unique air emissions impacts of Arctic offshore drilling on Native Alaskans in the North Slope. (25) This array of problems could worsen for the Villages of Nuiqsut, Point Hope, and others similarly situated if the Trump Administration succeeds in its quest to foster more Arctic drilling, both onshore and offshore. (26) In particular, a new era of offshore development would amplify the challenges that uniquely burden Native Alaskan communities.

In the past, offshore drilling in the Arctic had been limited by what the U.S. Department of the Interior described as "unique challenges associated with environmental and weather conditions, geographical remoteness, social and cultural considerations, and the absence of fixed infrastructure to support oil and gas activity, including resources necessary to respond in the event of an emergency." (27) BOEM has recognized the "risks of oil and gas activity to the Arctic may ... be greater than in other regions." (28) The sea ice that pervades for most of the year, the months without sun, the "[e]xtended periods of heavy fog, freezing temperatures and weeklong storms approaching hurricane strength" have earned the Arctic descriptors such as "demanding and challenging" (29) and "harsh and unforgiving." (30) The Arctic also contains ecologically important resources such as a "iconic" marine mammals, millions of migratory birds, more than 100 species of fish, (31) and many endangered species. (32) In addition, BOEM recognized "the remote nature of the Arctic program areas, the lack of widespread infrastructure, and the presence of sea ice for a large part of the year also make Arctic coastal zones more vulnerable to impacts from oil spills because of the challenges associated with conducting cleanup activities." (33) Despite these many challenges, the Arctic's lure of "huge, if uncertain, oil and gas resource endowments," especially in the Beaufort Sea and Chukchi Sea, (34) alongside Congressional and presidential interests in improving U.S. national security by increasing domestic energy supply, (35) inspired several attempts at Arctic offshore drilling over the last half-century. (36) While scholars, journalists, and environmental groups have devoted much attention to the risk of offshore oil spills as a result of several catastrophes, (37) the challenges faced by the Native Villages of Nuiqsut and Point Hope highlight an underdiscussed threat that is the focus of this Comment--the air pollution impacts of offshore oil and gas drilling on Native Alaskans, and how a disjointed regulatory framework for Outer Continental Shelf (OCS) air emissions affects those communities' potential for legal recourse. Part I delineates the evolution of drilling in the Arctic OCS. Part I provides additional detail on the impacts of offshore oil and gas development on Native Alaskans and puts their plight in the context of the broader environmental justice movement in the United Slates. Part I also describes the history of how courts have cripplingly limited the legal tools that environmental justice communities have attempted to use over the last four decades. Part II explores Native Alaskans' temporary win achieved through administrative remedies that were available under the Clean Air Act before Congress removed EPA's air permitting authority in the Arctic OCS. Part II analyzes the erratic history of air regulation on the OCS, and the differences between the EPA's OCS regulatory regime under the Clean Air Act and BOEM's regime under the Outer Continental Shelf Lands Act (OCSLA). Part II also examines how these different regulations and agency structures impact Native Alaskan communities and their ability to bring environmental justice-based challenges to OCS development. Part III observes how, while some of the past legal frameworks may have been better than others for Native Alaskan communities, none of these past legal frameworks are truly adequate to address environmental justice. Accordingly, Part III makes recommendations for agencies and Congress to improve legal tools to address both air emissions and environmental justice impacts on the OCS.

1. HISTORY OF DRILLING IN THE ARCTIC

   1. The Outer Continental Shelf Lands Act: The Early Years

      The United States federal government first established the jurisdiction and framework for regulating offshore oil and gas development in federal waters with the adoption of the OCSLA in 1953. (38) OCSLA, which some revered as the "key to a new frontier," (39) set a primary goal of making offshore oil and gas resources "available to meet the Nation's energy needs as rapidly as possible." (40) OCSLA directs the Secretary of the Interior (who now delegates responsibilities to the BOEM) (41) to establish a leasing system over development on the OCS--the area extending seaward from state-controlled waters (generally three nautical miles off the shoreline) (42) out to two hundred nautical miles from the U.S. coastline. (43) OCS energy leasing occurs in four regions: the Gulf of Mexico, the Atlantic, the Pacific, and Alaska. (44)

      In the first two decades after the adoption of OCSLA, little...