In what may be the first of many environmental battles that will arise from efforts to exploit minerals beneath the soon-to-be-denuded Arctic Ocean, the 9th Circuit has ruled that the federal Minerals Management Service violated the National Environmental Policy Act and the Outer Continental Shelf Leasing Act when it gave Shell permission to drill up to 12 exploration wells over three years in the U.S. portion of the Beaufort Sea. Shell plans to use two drilling vessels, two ice breakers, several supply boats, and a small flock of helicopters in the sea, which lies above Alaska'ês North Slope. The whole flotilla was ready to head north in the summer of 2007, but a coalition of environmental groups represented by Earthjustice and joined by the North Slope Borough and the Alaska Eskimo Whaling Commission got the 9th Circuit to issue a stay.
'êThe Arctic is undergoing major shifts due to climate change, Earthjustice noted in a press release. 'êSummer sea ice is retreating rapidly — reaching record lows during the past two summers. The changes raise major concerns about the survival of wildlife — such as the polar bear — that call the Arctic home. In spite of these dramatic changes, the Bush administration charged ahead opening this fragile environment to oil and gas activity, without following environmental laws.'ê
The groups challenging MMS'ê decision alleged that the agency hadn'êt adequately considered the impact of oil exploration and the possible effects of an oil spill on bowhead whales and other critters, and had illegally failed to require an environmental impact statement. The 9th Circuit agreed that 'êMMS has not provided a convincing statement of reasons explaining why Shell'ês exploratory drilling plans at these specific sites would have an insignificant impact on bowhead whales and Inupiat subsistence activities.'ê
The agency had prepared an environmental impact statement to cover a number of planned drilling projects, but not for this specific one. 'êThe biggest gap in the agency'ês multi-sale EIS and [environmental assessment] is the lack of both information and analysis examining the impacts this project will have on fish populations. . . . MMS acknowledges that it 'êcannot concur'ê with Shell'ês assurances that its activities 'êmay have minimal to no impact on fish.'ê'ê
The court also found plenty to dislike in the MMS'ê discussion of bowhead whales. It said that the EIS "contains no studies that analyze the effects of noise from a project with two drillships and two icebreakers. The studies assessing the effect of noise in other situations suggest that bowheads respond to drilling noise by altering their migration speed and swimming direction to avoid closely approaching the noise sources. In discussing icebreaker noise, the EIS states, 'êeffects of an actual icebreaker on migrating bowheads, especially mothers and calves, could be biologically significant.'ê'ê
'êMoreover,'ê the court added, 'êMMS'ês own review of a 1993 monitoring study . . . notes that the report 'êdetected behavioral changes in bowheads around drillship operations near Camden Bay.'ê MMS goes on to state: 'êthere is no evidence that the offshore displacement . . . persisted for more than a generation (about 17 years). So, the level of effect of a drillship in Camden Bay is probably not significant by MMS NEPA standards. However, the same type of displacement to the east of Kaktovik where whales frequently feed would affect growth and could have a more serious biological effect. Also, even though there isn'êt a significant biological effect from in Camden Bay operations, there could be a significant sociocultural effect if the bowheads do not migrate back into the shoreward portion of the migration corridor as they approach Cross Island.'ê Notably, the EA also states that the 'êeffect on bowheads is likely to be greater than for [the 1993 activities] because of Shell'ês proposal to use two drillships, two large icebreakers, and several associated vessels.'ê'ê
The court has sent the issue back to the Interior Department for a new environmental assessment and, if necessary, a full-blown EIS. The Bush administration couldn'êt get this one done before it headed out the door. What to do about the Arctic is yet another energy-policy question that the Obama administration will have to answer.