Like wilderness, but need oil? Securing America's Future Energy Act puts little between accident-prone oil companies and the Arctic National Wildlife Refuge.

• Author: Stanke, Samuel

In May 2002 the Senate narrowly rejected Securing America's Future Energy (SAFE), a bill that would have lifted the oil drilling ban on an ecologically vital section of the Arctic National Wildlife Refuge (ANWR). However, the American drive for greater oil-and-gas-resource self-reliance and ANWR's relatively high yield potential combine to make future congressional noise about lifting the ban probable, if not inevitable. This Comment first tracks the history of ANWR and describes the two main positions in the vigorous debate on whether to partially lift the ANWR drilling ban. This Comment then evaluates SAFE's environmental protection language and its likely ability to protect ANWR from the risks inherent in the oil and gas recovery process. Third, this Comment spotlights the track record and environmental policy of BP Exploration (Alaska) (BPXA), one of the biggest Alaska oil developers, as illustrative of the danger development poses in the fragile arctic ecosystem--even development carried out with the best of possible environmental intentions. Finally, this Comment concludes that SAFE's environmental provisions are too loose and unspecific to afford the ANWR ecosystem much protection from oil and gas development, despite the oil companies' commitments to low-impact development.

1. INTRODUCTION II. BACKGROUND OF ANWR COASTAL PLAIN CONTROVERSY A. Brief History of Oil and Federal Wildlife Reserves in Northern Alaska 1. Creation of the Arctic National Wildlife Range 2. Wilderness Act Creates Potential Safety Zone for 1002 Area 3. The Alaska National Interests Land Conservation Act of 1980 B. America's Serengeti: ANWR's Ecological Significance and Fragility 1. Porcupine River Caribou Herd a. Development Could Affect Porcupine Caribou Herd More Than Central Arctic Caribou b. Significance of the Porcupine Caribou Herd to Gwich'in Subsistence Lifestyle 2. Polar Bears 3. Migratory Bird Species 4. Muskoxen 5. Fragility of Life on the ANWR Coastal Plain 6. Inherent Wilderness Character of Entire ANWR, Including the Coastal Plain C. Thirty Years of Saudi Oil: ANWR Coastal Plain Oil Potential 1. Possible Oil Bonanza 2. Increasing Domestic Production Will Reduce Dependence on Middle East Oil 3. Technology Allows Greater Recovery with Less Environmental Impact D. War on Terror III. PROPOSED SAFE ACT OF 2001 A. SAFE Would Lift the Ban on ANWR Coastal Area Oil Production B. Interpreting the Language of SAFE 1. "Significant Adverse Effect" 2. "Best Commercially Available Technology" 3. "Site-Specific Effect Assessments, Regulations, Conditions, and Restrictions 4. "Oil and Gas Leasing Program "Required 5. Oil Drilling is "Compatible" with the Purposes of ANWR IV. BP EXPLORATION (ALASKA), INC. AND THE ANWR COASTAL PLAIN A. Greenwashing B. Prudhoe Bay Operations C. Interior Secretary Must Restrict BPXA's Prospective ANWR Activities V. CONCLUSION I. INTRODUCTION

   In August 2001, the House of Representatives sent the Securing America's Future Energy Act of 2001 (SAFE) bill to the Senate for consideration. (1) The House's approval of the bill, (2) which would repeal (3) the ban (4) on oil and gas production on the Coastal Plain of the Arctic National Wildlife Refuge (ANWR), further stoked the already red-hot controversy surrounding prospective development of ANWR's coastal plain, (5) provoking jubilation (6) and condemnation. (7) The Inupiat Indians of northeast Alaska, (8) the Bush administration, (9) the state of Alaska, (10) and the Teamsters Union (11) hailed the bill and ANWR oil and gas development as sensible energy policy--a way to stimulate the economy and reduce United States dependence on foreign oil. These proponents of development argue that the SAFE bill limits drilling on the Coastal Plain to 2000 acres--a tiny fraction of the 19 million--acre refuge. (12) On the other hand, wilderness proponents (13) contend that the plain's size belies its unique ecological significance as the "biological heart" of the refuge. (14) Critics of the bill add that the negligible amount of economically recoverable oil in ANWR's coastal plain does not justify industrializing what former President Clinton called "one of the last truly wild places on earth ... the Serengeti of the Americas." (15)

   Questions of national security were bandied about in reference to the ANWR oil issue at the time of SAFE's passage before September 11, 2001. (16) Such concerns took on increased urgency following the terrorist attacks, which seem to have been motivated partly by the oil-guarding U.S. military presence in the Middle East. (17) Two senators even sought to attach energy amendments that would have mandated oil and gas leasing in ANWR to the defense authorization bill Congress passed in response to the attacks. (18) The Trans-Alaska Pipeline is the only path by which ANWR oil could reach the rest of the world; its appeal and vulnerability as a terrorist target glare in the wake of both September 11 and subsequent intentional (though apparently not terrorist-related) damage to the pipeline. (19) In short, lawmakers cannot separate energy policy consideration from national security as easily as they could before September 11. The Senate nonetheless shelved SAFE, its energy policy bill, immediately after September 11 to enact emergency national security legislation. (20)

   It was unclear before September 11 how the (barely) Democrat-controlled Senate would handle H.R. 4. But the events of that day, as well as the powerful coalition of interests aligned in favor of developing the Coastal Plain for oil and gas production, may have nudged the Senate toward opening ANWR. (21) As written, SAFE requires the Interior Secretary to implement a leasing program, and gives her near-exclusive authority to decide to which developers the government will sell leases. (22) SAFE requires lessees to be "responsible," and gives the Secretary broad discretion to determine whether a prospective bidder is environmentally "responsible." (23) If SAFE becomes law, the Secretary will have to ensure that development of the ANWR Coastal Plain does not result in significant adverse effects on wildlife and the environment. (24) She would also have exclusive authority to distinguish "significant adverse effects" from insignificant adverse effects, the latter of which would be acceptable under SAFE. (25) BP Exploration (Alaska), Inc. (BPXA), the company currently responsible for forty-three percent of Alaskan oil production, has an abysmal environmental record in Alaska, yet is the loudest pro-ANWR development voice in the oil industry. (26) The company's employees have criticized its policies as dangerous both to field employees and the Arctic environment (27)--it has paid more than $20 million in civil and criminal penalties for its failure to report in a timely manner a subcontractor's illegal toxic waste dumping. (28) It averages more than one spill a day as part of its production routine in Prudhoe Bay--Alaska's largest oil development and production complex. (29)

   To provide context for an analysis of the SAFE bill, this Comment explores the history of ANWR, and the still-developing issue of oil and gas production in the Refuge. Part II recounts the history of ANWR, including how Congress prohibited leasing of the Refuge's coastal plain for oil and gas development, but retained authority to permit leasing in the future. Part II also emphasizes the two traits that make ANWR's development so controversial--its ecological significance and its potential for abundant oil reserves--and illuminates the positions of each side of the debate. Part III analyzes the purpose and environmental protection standards of SAFE, and ponders the future of the bill in light of heightened national security concerns following recent terrorist attacks. Part IV details the daily operations and criminal history of BPXA, and discusses likely environmental effects of oil production in ANWR if conducted by BPXA. This Comment concludes that SAFE would probably permit the leasing of ANWR lands to BPXA, despite the company's crude oil-drenched environmental record. (30) Finally, this Comment suggests that if and when Congress opens ANWR to oil drilling, it should provide the Secretary with more specific environmental protection guidelines than those in the SAFE bill. If SAFE is passed as written, the Interior Secretary should subject companies like BPXA to rigorous conditions and restrictions.

2. BACKGROUND OF ANWR COASTAL PLAIN CONTROVERSY

   When Congress established ANWR in 1980, (31) it precluded oil and gas development on about 8 million acres of the Refuge by declaring those acres a wilderness, (32) and on an additional 9.5 million acres by declaring those a wildlife refuge. (33) At the same time, Congress withheld a decision on whether to declare the 1.55 million acres of ANWR's coastal plain a wilderness pending further investigation into the environmental ramifications of oil drilling on the Alaskan Northern Slope. (34) Congress included section 1002 of the Alaska National Interest Lands Conservation Act (ANILCA), (35) which requires the Interior Secretary to thoroughly research the environmental ramifications of developing the ANWR Coastal Plain, to help Congress decide whether to permit oil and gas leasing. (36) The ANWR Coastal Plain is commonly called the "1002 Area," a reference to section 1002 of the bill that became ANILCA. (37) The findings made pursuant to section 1002 will determine whether the plain will remain an untouched, federally protected wilderness or become an industrial oil development and production complex. ANILCA section 1002 represents an intense, twenty-year-plus divergence between those who urge Congress to permit oil drilling on the ANWR Coastal Plain (38) and those who urge Congress to declare the disputed area wilderness. (39) Both sides of this controversy have strong arguments because the 1002 Area possesses both tremendous ecological significance (40) and...