The Willow Project Heads to Court: Sabin Center Files Amicus Brief in Support of Plaintiffs Challenging BLM’s Approval of the Project

Last Wednesday, July 26, the Sabin Center filed an amicus brief in support of the plaintiffs in Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management (BLM) and Center for Biological Diversity v. BLM two lawsuits challenging BLM’s approval of the so-called “Willow Project” on the North Slope of Alaska. The project, to be developed by ConocoPhillips, would involve the drilling of up to 199 new oil wells and the construction of related infrastructure, including pipelines, processing facilities, roads, and boat ramps. BLM projects that it will produce 576 million barrels of oil over its 30-year lifetime, resulting in indirect emissions totaling 239 million metric tons of carbon dioxide (CO2) equivalent. The project is controversial due to both its location and its climate impacts. The North Slope of Alaska is the largest undisturbed track of public land in the U.S. and an area that is highly sensitive to climate change due to the Arctic environment. The project will cause significant disturbances to surface resources and will also open up the area to future oil and gas development. 

Many groups have critiqued BLM’s approval of the Willow Project on the grounds that it is inconsistent with U.S. climate commitments and Biden’s campaign promise to end oil and gas leasing on public lands. The administration has tried to disavow responsibility for the approval by asserting that it has a legal obligation to allow ConocoPhillips to “fully develop” oil resources in the project area. However, as we discuss in our brief and in a previous blog post, BLM has misconstrued its legal authority. BLM can restrict the scope of the Willow Project in order to mitigate adverse effects on surface resources, including adverse effects attributable to the project’s greenhouse gas (GHG) emissions.

Our brief identifies several specific legal deficiencies in BLM’s analysis of climate change-related considerations for the Willow Project:

  • Because BLM adopted the erroneous view that ConocoPhillips must be allowed to “fully develop” oil resources in the areas it leased from the federal government, BLM did not consider project alternatives that would entail less oil production and fewer GHG emissions. BLM thus failed to discharge its obligation to conduct a meaningful assessment of project alternatives and mitigation measures as required by the the National Environmental Policy Act (NEPA).
  • BLM also violated NEPA by failing to adequately assess the indirect and growth-inducing effects of the Willow Project. BLM explicitly acknowledged that this project would make it easier and more economically viable to develop additional oil and gas resources in the area, identified a number of “reasonably foreseeable” future projects, and even estimated oil production from one of those projects. However, BLM did not fully evaluate the GHG emissions from induced oil and gas production.
  • BLM violated the Endangered Species Act (ESA) by failing to consider how GHG emissions from the project would affect endangered species, despite the fact that there is climate attribution research which can be used to conduct such an assessment. 

Our brief also emphasizes the importance of the federal government adopting a rational approach to its assessment of new fossil fuel infrastructure. The Intergovernmental Panel on Climate Change (IPCC)’s latest assessment report (AR6) found that the world has already reached key limits with regards to fossil fuel infrastructure — e.g., the emissions from existing fossil fuel infrastructure, as of 2019, are larger than the total remaining carbon budget for 1.5°C and approximately equal to the remaining budget for 2.0°C. Most remaining fossil fuel reserves will, therefore, need to be left in the ground in order to avoid significant overshoot of the temperature targets. Given this, it is critically important that the U.S. government adopt an energy planning approach that includes, at minimum, careful consideration of the climate implications of new fossil fuel infrastructure and opportunities to reduce path dependency on fossil fuels.

The full brief is available here.  

Jessica Wentz
Non-resident senior fellow at Sabin Center for Climate Change Law | + posts

Jessica is now a non-resident senior fellow at the Sabin Center.