Whales vs. Oil and Gas Exploration - Showdown in the Arctic Circle

A number of oil and gas companies, including Shell Oil and British Petroleum, have received permits for seismic surveying in the Chukchi and Beaufort Seas, above the Arctic Circle, off the coast of Alaska. However, conservation groups are up in arms, claiming that the noise from the underwater air guns used for such surveying is dangerous and harassing to marine mammals in the area.

It is estimated that the area contains 15 billion barrels of conventionally recoverable oil and 77 trillion cubic feet of conventionally recoverable natural gas. While most U.S. citizens are tormented by gas pump prices and hoping for more domestic gas production to assuage their pain, the environmentalist groups are concerned that the noise from the seismic surveying (which is necessary to explore for domestic oil and gas) could drive away tens of thousands of whales, affecting their feeding, breeding, and migratory routes, and hurting local Native Americans’ ability to hunt for these subsistence food sources.

Inspired by a temporary injunction issued by the Ninth Circuit Court of Appeals in September of 2007, which temporarily stopped Shell Oil from drilling in the Beaufort Sea, Native Alaskans and conservation groups file two related lawsuits against the federal government in the federal district court in Juneau, Alaska: Native Village of Point Hope et al v. Kempthorne et al, 1:08-cv-00004-RRB, filed January 31, 2008 (in which Shell and ConocoPhillips have intervened); and Native Village of Point Hope et al v. Minerals Management Service et al, 1:08-cv-00011-RRB, filed May 5, 2008 (in which Shell and BP have intervened).

The groups seek preliminary injunctions, claiming that the permits issued to the oil companies were premature, in that an Environmental Impact Statement had not been completed in accordance with the National Environmental Policy Act. They also cite to the Marine Mammal Protection Act, which the plaintiffs claim was violated when the National Marine Fisheries Service (“NMFS”) issued an Incidental Harassment Authorization allowing Shell Oil to “take by harassment” (defined by the Act as harassment by “pursuit, torment, or annoyance”) several species of seals and whales incident to the exploration. Such Authorizations, the conservation groups claim, should only be issued for the incidental “taking” of “small numbers” of marine mammals, with a negligible effect on the ecosystem. Plaintiffs claim the NMFS has unlawfully defined “small numbers,” and estimate that the exploration could harass over 40,000 marine mammals. Defendants assert that several major environmental studies have been performed that show only limited or insignificant environmental impacts.

As of the date of this publication, a hearing date for either of the temporary injunctions has not been scheduled. Regardless, a significant precedent may be established when either of these matters proceeds to a hearing and beyond, especially since drilling in the Arctic is likely to remain a hot topic in the coming years with rapidly increasing demand for oil and natural gas.