DISSENTING VIEWS OF SENATORS BINGAMAN, DORGAN, WYDEN, JOHNSON, FEINSTEIN, CANTWELL, CORZINE, AND SALAZAR
"The Arctic National Wildlife Refuge has long stirred deep emotions and strong passions. To some it is the most promising place to look for oil in the . To others it is "the Last Great Wilderness," a vast and beautiful natural wonder, which deserves permanent protection for its wildlife, scenic, and recreational values. These two viewpoints are held with equal passion by roughly equal parts of the Senate and the nation as a whole. For a quarter of a century, neither side has been able to enact legislation either opening the area to oil and gas development or permanently preserving it as wilderness.
"We come down squarely in favor of preserving the Arctic National Wildlife Refuge. Opening the Refuge to oil and gas development will do little to meet our energy needs and nothing to reduce our energy prices. Not one drop of oil will come from the Refuge for ten years. And even at its peak production-twenty years from now-it will reduce our reliance on imports by only 4 percent. We believe we should tap alternative sources of oil and gas and develop alternative energy technologies, rather than sacrifice the Refuge's unique wildlife and wilderness values.
"Years ago, Senator Clinton P. Anderson said that our willingness to protect wilderness areas showed "that we are still a rich Nation, tending our resources as we should-not a people in despair searching every last nook and cranny of our land for ... a barrel of oil." We believe we still are a rich Nation, rich in untapped oil and gas resources in other areas that can be developed consistent with environmental protection, and rich in the intellectual capital needed to develop new alternative energy technologies. We do not believe we need to sacrifice our wildlife refuges or other environmentally sensitive areas to fuel our cars or heat our homes.
"But even if the day should come when we do need to exploit the Arctic National Wildlife Refuge for oil, we should approach the task with care. If we must open the Refuge to oil and gas development, we should do so in accordance with existing mineral leasing laws and regulations, existing environmental protections, and existing rules of administrative procedure and judicial review. We should, in short, afford the Arctic Refuge no less protection than current law affords any other refuge or public land that is open to oil and gas development. In addition, we should ensure that any oil that comes from the Arctic Refuge goes to Americans, and is not sold overseas; and that the Federal Treasury receives the full amount of royalties and bonus bids that we are promised. Regrettably, the legislation recommended by a majority of the Committee fails in every one of these respects.
"1. The Mineral Leasing Act and rules. Oil and gas leasing on the public lands, including wildlife refuges, is currently conducted under the Mineral Leasing Act of 1920 and regulations adopted by the Bureau of Land Management under that Act. Among other things, they require minimum royalties, maximum lease sizes, and various performance standards and environmental protections. Oil and gas development on wildlife refuges can only take place with the concurrence of the Fish and Wildlife Service and subject to stipulations prescribed by the Fish and Wildlife Service that protect wildlife.
"It is unclear from the legislation recommended by the Committee whether any of the mineral leasing laws or regulations will apply to the leasing program for the Arctic Refuge. The legislation directs the Secretary to administer an "environmentally sound" leasing program in the refuge's Coastal Plain, but does not explicitly require it to be in accordance with the existing statutory and regulatory framework. The Secretary is directed to administer the program through "regulations, lease terms, conditions, restrictions, prohibitions, stipulations, and other provisions" of the Secretary's choosing that will ensure that the leasing program is "carried out in a manner that will ensure the receipt of fair market value by the public for the mineral resources to be leased." The legislation leaves it up to the Secretary, and ultimately the courts, to decide whether existing mineral leasing regulations and procedures will still apply or whether the new system is meant to supersede it.
"2. The "compatibility" determination. Under current law, the Secretary of the Interior may permit oil and gas development in a national wildlife refuge if it is "compatible" with the purposes for which the refuge was established. If oil and gas development can take place in the Arctic Refuge without harm to the wildlife populations and habitats it was established to protect, as proponents believe, the Secretary should make the compatibility determination. Instead, the legislation recommended by the Committee "deems" the leasing program to be compatible and absolves the Secretary of any responsibility for determining whether it is or is not, in fact, compatible.
"3. NEPA compliance. The National Environmental Policy Act of 1969 requires federal agencies contemplating a major federal action to prepare an environmental impact statement. The requirement is a continuing one. Agencies must supplement environmental impact statements if they make substantial changes in their proposed action or if there are significant new circumstances or information bearing on the proposed action or its impacts. The Department of the Interior last prepared an environmental impact statement on oil and gas development in ANWR in 1987, 18 years ago. In 1992, a federal court held that significant new information was available that required the Department to supplement the 1987 environmental impact statement. If a court thought that a supplement was required 13 years ago, one must surely be needed today. Yet the legislation recommended by the Committee "deems" the 1987 statement to satisfy the requirements of NEPA "with respect to prelease activities," including the development of the regulations establishing the new leasing program.
"NEPA also requires that environmental impact statements consider reasonable alternatives to a proposed action. Consideration of alternatives is said to be "the heart of the environmental impact statement." The courts have said this requirement is governed by a "rule of reason," and common sense, "bounded by some notion of feasibility." The legislation recommended by the Committee waives even this common sense requirement, and limits the Secretary to consideration of only her "preferred action for leasing and a single leasing alternative."
"4. Judicial review. Under current law, a person harmed by agency action is entitled to judicial review. A person can bring suit either in the District of Columbia or where he resides. The reviewing court is empowered to "decide all relevant questions of law," and set aside agency actions found to be arbitrary, capricious, or unsupported by substantial evidence. Review is generally limited to the administrative record compiled by the agency when it made its decision, though the court may sometimes look beyond the record in NEPA cases to make sure the decision maker adequately considered environmental impacts and alternatives.
"The legislation recommended by the Committee restricts the right of judicial review. It does so by requiring anyone seeking to challenge the Secretary's actions to file suit in the District of Columbia Circuit, by limiting judicial review of the Secretary's decision to conduct a lease sale and the environmental analysis of that decision solely to whether the Secretary has complied with the new legislation, and by strictly limiting review to the administrative record. It is unclear to what extent the narrow scope of review imposed by the new legislation will be read to preempt to the broad scope of review afforded under the Administrative Procedure Act. The Committee leaves that question to the courts.
"5. Roads, pipelines, and other rights-of-way. Current law provides a comprehensive process for approving rights-of-ways for roads, pipelines, airstrips, and other transportation and utility systems in conservation system units in Alaska. The principal purpose of this process was to provide access to and from resource development areas, but to do so in an orderly way that would avoid or minimize harm to the environment. The legislation recommended by the Committee exempts all rights-of-way for the exploration, development, production, or transportation of oil and gas on the Coastal Plain from this process.
"6. 2,000-acre limitation. The legislation recommended by the Committee restricts the surface acreage covered by oil and gas production within the Arctic Refuge to a maximum of 2,000 acres on the Coastal Plain. This limitation is cited by leasing proponents as evidence that oil and gas development will occupy a tiny footprint on the Coastal Plain. This provision contains so many loopholes, however, that exploration and development activities could impact much of the Coastal Plain. There is no requirement that the developed surface lands be contiguous or even consolidated. The limitation only applies literally to the actual ground covered, ignoring the effect on nearby lands. As example of the hollowness of the limitation, it only counts the area occupied by the footings of a pipeline support structure towards the acreage limitation, even though the pipeline itself may run many miles across the Coastal Plain.
"7. Alaska Native lands. Over 100,000 acres (over 150 square miles) that are within both the boundaries of the Refuge and the definition of the Coastal Plain are owned by Alaska Natives. The surface of over 90,000 of these acres is owned by the Kaktovik Inupiat Corporation, and their subsurface is owned by the Arctic Slope Regional Corporation. The remaining approximately 10,000 acres are owned by individual Alaska Natives. Under a 1983 agreement between the Arctic Slope Regional Corporation and the , oil and gas development on the Arctic Slope Regional Corporation's lands is prohibited "until Congress authorizes such activities on Refuge lands within the coastal plain or on ASRC Lands, or both." Enactment of the legislation recommended by the Committee will plainly "authorize such activities on Refuge lands within the coastal plain," enabling the Arctic Slope Regional Corporation and the individual Alaska Native owners to develop oil and gas resources on their lands within the Refuge. However, the Alaska Native lands are within the defined Coastal Plain covered by the leasing program, and thus are subject to the overall 2,000 acre limitation. But including the Native lands within this limitation appears to abrogate the Arctic Slope Regional Corporation's right to develop all of its lands under its 1983 contract with the .
"Moreover, it is unclear what effect the Committee recommendation will have on revenues derived from oil and gas development on Native lands within the Refuge. The legislation plainly states that all receipts derived from oil and gas development on the Coastal Plain, which is defined to include the Native lands, are to be divided equally between the State of Alaska and the U.S. Treasury, though neither would have any right to revenues derived from oil and gas development on Native lands.
"8. Division of receipts. The Congressional Budget Office estimates that oil and gas leasing in the Arctic Refuge will generate $5 billion in bonus, rental, and royalty receipts. Under current law, 90 percent of those receipts ($4.5 billion) are to be paid to the State of Alaska, and the remaining 10 percent ($500 million) to the U.S. Treasury. The legislation recommended by the Committee changes the allocation in current law, to permit the Federal Government to retain 50 percent ($2.5 billion) of the receipts.
"This change is necessary for the Committee to meet its reconciliation instructions. The State of Alaska contends that any such reduction of its share of receipts violates the Alaska Statehood Act and apparently intends to challenge it in court. The Committee believes that Congress has the power to reduce the State's share and that the provision will ultimately be upheld by the courts. If, however, the State should prevail, opening the Arctic Refuge to oil and gas leasing may produce only one-fifth of the receipts the Committee expects.
"9. Exports. The Mineral Leasing Act of 1920 generally prohibits the export of oil transported through pipelines over rights-of-way over public lands unless the President finds the export to be in the national interest. A 1995 amendment to the Mineral Leasing Act makes an exception for oil transported through the Trans-Alaska Pipeline. Oil moved through the Trans-Alaska Pipeline can be exported unless the President finds the export to not be in the national interest. Thus, since oil produced from the Arctic Refuge is likely to be transported through the Trans-Alaska Pipeline, it can be exported rather than used here in the .
"During consideration of the Committee recommendation, Democrats offered a series of amendments to address many of the problems in the legislation. Regrettably, all of them were rejected. Although we continue to oppose oil and gas development in the Arctic National Wildlife Refuge, adoption of our amendments would have at least ensured that development would have proceeded in accordance with the laws governing oil and gas development in other wildlife refuges, ensured that the Treasury would receive 50 percent of the receipts, and ensured that the oil would be used in the United States.
"Our efforts to improve the legislation were thwarted by the fact that it is being considered under the extraordinary rules for budget reconciliation measures. All of our amendments were met with the argument that they might either reduce the amount of estimated receipts or delay their collection, or that they might not have any effect on the receipts at all, and thus would be extraneous. Such arguments only serve to remind us why important policy legislation of this sort should not be considered under the strictures of the reconciliation process.
"The Senate's quarter-century debate over the future of the Arctic National Wildlife Refuge has never been about money. It has been, and continues to be, about two different sets of priorities: whether we should sacrifice a pristine wilderness to exploit the energy resources it may contain; or whether we should forego a much-needed energy resource to save a remote and frigid wilderness. Such a fundamental, deep-seated, philosophical controversy requires the deliberative process of the Senate.
"Many years ago, when he introduced the bill that would become the Wilderness Act of 1964, Senator Anderson compared our wilderness areas to "our museums and our art galleries." They were "part of our cultural resource as well as our natural heritage," he said. "We should regard them as such and cherish them." We would all do well to keep Senator Anderson's words in mind as we consider the future of the Arctic National Wildlife Refuge."