Willow II:
Conservation Groups Sue Again to Stop Oil Project in Alaska’s Western Arctic

Willow II Case History

ConocoPhillips first proposed the Willow Oil Project to the Bureau of Land Management (BoLM) in May of 2018. After determining that the project was a major federally-involved action that would significantly affect the quality of the human environment, the BoLM knew it had to prepare an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).

After studying the Willow Oil Project and comparing it to three action-alternatives and one no-action alternative, as well as seeking public comment, the BLM published a final EIS for the Willow Oil Project on Aug. 14, 2020. The BLM’s approval was immediately contested in the Alaskan District Court by conservation and Alaska-native groups.

About a year later, on August 18, 2021, the plaintiffs were successful in obtaining a court order vacating the first project approval due to NEPA and Endangered Species Act (ESA) violations. Regarding the NEPA, the BLM “fail[ed] to adequately disclose and analyze the project’s downstream greenhouse gas emissions and by restricting the project alternatives it considered based on the mistaken view that ConocoPhillips had a right to extract all of the oil and gas on its leases.” And, the U.S. Fish and Wildlife Service (FWS) “violated the ESA by relying on unspecified Marine Mammal Protection Act . . . mitigation measures to support the no jeopardy and adverse modification determinations in its biological opinion for the polar bear, and by issuing an arbitrary and capricious incidental take statement for the bear.” The court then remanded to the BoLM for actions not inconsistent with its ruling.

On remand, the BoLM prepared a draft Supplemental EIS (SEIS) in July of 2022. The draft SEIS contained the same three alternative actions and one non-action alternative from the initial EIS, plus a new action alternative. After receiving public comment, including from the instant plaintiffs, the BoLM published its final SEIS for the Willow Oil Project on Feb. 3, 2023. Subsequently, the BoLM published a record of decision approving the Willow Project on March 13, 2023.

Plaintiffs’ Complaint

On March 14, 2023, Earthjustice, a non-profit environmental law organization, filed a complaint on behalf of several plaintiffs. Included in the group of plaintiffs are the Natural Resources Defense Council, Center for Biological Diversity, Defenders of Wildlife, Friends of the Earth, and Greenpeace, Inc.

In their complaint, the plaintiffs allege that the BoLM failed to adequately assess the Willow Oil Project’s impacts on the region’s wildlife and its contributions to climate change before issuing its ROD, allowing the project to move forward, thus violating the NEPA, ESA, and Administrative Procedure Act (APA). The complaint consists of five claims for relief.

Count I: NEPA

In the first count, plaintiffs assert that the BoLM’s final SEIS violated the NEPA by failing to consider any project-alternative “that would meaningfully reduce the climate impacts of the Willow Project by reducing total downstream greenhouse gas emissions, or any alternative that would prohibit infrastructure in the Teshekpuk Lake Special Area and the Colville River Special Area.” Plaintiffs take issue with the fact that although BLM considered action alternatives as required by NEPA, all of the alternatives were based on BoLM fully developing the entirety of its oil and gas leases. Plaintiffs disagree with the BLM’s assertion that this was proper and necessary to avoid “strand[ing] an economically viable quantity of recoverable oil.”

Count II: NEPA

Plaintiffs’ second count alleges that the BLM committed another violation of NEPA by failing to take a “hard look” at the reasonably foreseeable risk of oil spills and potential discoveries of oil production prospects resulting from the project. Thus, the agency fell short of its NEPA duties to disclose and analyze the indirect and cumulative impacts of the Willow Oil Project.

Count III: Reserves Act (APA)

The third count in the plaintiffs’ complaint alleges that the BoLM violated the APA’s arbitrary and capricious decision-making standard by failing to act in accordance with the Reserves Act. The Reserves Act requires that the Secretary of the Department of the Interior “protect[] the ‘environmental, fish and wildlife, and historical or scenic values’ within the Reserve.” Plaintiffs believe that the BoLM’s evaluation of only “full lease development” project alternatives contradicts its protection duties under the Reserves Act “to condition, restrict, or prohibit activity as it determines necessary to protect surface resources.”

Count IV: ESA – Unlawful NMFS Letter of Concurrence

Plaintiffs’ fourth claim is that the BoLM biological assessment to the National Marine Fisheries Service (NMFS) and the NMFS Willow Letter of Concurrence failed to analyze the possible taking of ringed and bearded seals, along with other listed species. Plaintiffs fear that the taking of these ESA-listed seals would occur as a result of the project’s greenhouse gas emissions affecting their critical habitats. The complaint is silent on the nexus between the emissions and the habitat effects. Still, it asserts that the NMFS conclusions failed to properly engage in ESA Section 7 formal consultation to determine the project’s effects on the listed seals and prepare the necessary incidental take statements. Thus, the letter’s analysis of the affected threatened species and their critical habitats was arbitrary and capricious.

Count V: ESA – Unlawful FWS Biological Opinion

The fifth and final claim in the complaint argues that the FWS’s biological opinion was arbitrary and capricious due to its failure to properly consider in view of the best available science the threats to polar bears brought on by climate change exacerbated by the Willow Oil Project’s greenhouse gas emissions. Polar bears, like the seals above, are a listed species under the ESA. Plaintiffs allege that the potential greenhouse gas emissions would increase sea ice melting, which will decrease the availability of ice seal prey in the polar bear’s critical hunting habitat. The agency did not prepare the necessary incidental take statement for polar bears either.

Requested Remedy

To remedy the violations asserted, plaintiffs request that the court vacate the BoLM’s project approval and supporting documents on the ground that the approval decision was arbitrary and capricious. Plaintiffs also seek a reward of costs and attorneys fees related to the action.

Defendants have not yet responded to the federal complaint, filed March 14, 2023.