In April 2000, in my role as deputy secretary of the Department of the Interior, I testified in Congress against drilling for oil in the Arctic National Wildlife Refuge in Alaska. Rep. Don Young (R-Alaska), who has called the refuge “really nothing” and a barren, desolate wasteland, denigrated the refuge and challenged me to see for myself.
A few weeks later, I camped on the Arctic Refuge’s coastal plain and witnessed how wrong the congressman was (and is). Our group watched in awe as caribou completed the longest migration of any mammal on the globe, quietly appearing over a rise as they gracefully entered their traditional birthing area. The cries of nesting birds offered an occasional distraction to the profound quiet and tranquility of a landscape rarely touched by man.
{mosads}Now, nearly 20 years later, our nation is on the cusp of handing over the most sensitive part of the Arctic Refuge — the 1.5 million acres on the coastal plain that I visited in 2000 — to the oil and gas industry. The turning point came in late 2017 when, as a $1.5 trillion corporate tax cut was being rammed through Congress, drilling proponents accompanied the “wasteland” Arctic deception with two new ones: the ludicrous notion that only 2,000 of the 1.5 million acres that lie on the refuge’s coastal plain will be impacted by oil drilling, and the canard that an Arctic Refuge oil drilling program will generate $2.2 billion for the U.S. Treasury.
These deceptions may have helped clear a congressional hurdle but, in doing so, Congress inadvertently laid legal traps that stand in the way of the administration’s misguided ambition to drill for oil in this special place.
Consider, for example, how the Interior Department has staged the potential opening of the Arctic Refuge to oil drilling. Under the tax law, Congress directed Interior to, first, “establish and administer” an “oil and gas program” that covers “the leasing, development, production and transportation of oil and gas in and from the [Arctic Refuge’s] Coastal Plain.”
In a thinly-veiled rush to auction off large blocks of the Arctic Refuge to the oil and gas industry before the next presidential election, however, Interior has made a political decision to issue leases first and address “on-the-ground” oil and gas development issues later. It does not want to miss the opportunity to privatize the Arctic National Wildlife Refuge and turn it into a giant oil field while it can.
Neither the tax law, nor the National Environmental Policy Act, allow this. The Arctic Refuge’s oil and gas program needs to be fleshed out, and a full environmental review covering that program needs to be completed, before leasing can occur.
For a massive, unexplored area such as the Arctic Refuge, for example, seismic testing is a necessary, foundational element for its oil and gas program. Information about the location of potential oil deposits is needed to inform companies whether to bid on leases, and how much they are willing to pay. Also, because testing in the Arctic involves running huge seismic testing trucks emitting ear-splitting noise over a wild, sensitive landscape, permanently scarring its surface and disrupting wildlife and subsistence activities, these serious environmental issues must be addressed at the front end of the program. Illustrating this point, seismic oil and gas testing in the unexplored Atlantic Ocean is undergoing review now, prior to leasing.
Likewise, leasing cannot go forward until the department forthrightly addresses how it will ensure that Arctic Refuge oil and gas production and support facilities somehow fits within 2,000 surface acres — a deception that Congress wrote into the tax law. Interior’s draft environmental review references the acreage limitation, but fails to acknowledge its fantasy, blithely suggesting that not all support facilities need to be counted against the statutory acreage ceiling.
Finally, by moving directly to leasing and failing to complete a program-level economic and environmental analyses, the Interior Department is avoiding confronting the key revenue, environmental and climate realities of drilling for oil in the Arctic Refuge. As laid out in a devastating economics study that state attorneys general recently submitted to Interior, it is not economic to drill for oil in the Arctic Refuge. A drilling program will return only scant revenues. And even if some drilling goes forward, no production will occur for at least 10 years; the oil will be exported rather than used domestically; and long-term demand will soften in the face of advancing technology and continued climate concerns.
In sum, Arctic deceptions have caught up with reality. The Arctic National Wildlife Refuge is not yet open for oil and gas leasing and, if the law and common sense prevail, it never will be.
David J. Hayes is executive director of the State Energy & Environmental Impact Center at New York University School of Law. The center supports state attorneys general in their advocacy for clean energy, climate and environmental laws and policies. He teaches at NYU School of Law and is a visiting lecturer at Stanford Law School. He previously served as deputy secretary and chief operating officer at the Department of the Interior for Presidents Barack Obama (2009-2013) and Bill Clinton (1999-2001).