Gulls forage on the Norton Sound beach at Nome on Oct. 2, 2020. Norton Sound is part of the Northern Bering Sea. Former Presidents Joe Biden and Barack Obama took action to prevent oil leasing in the Northern Bering Sea, but President Donald Trump revoked those actions in an executive order that is now the subject of a lawsuit. (Photo by Yereth Rosen/Alaska Beacon)
Environmental groups on Wednesday sued President Donald Trump’s administration to overturn an executive order seeking to open Arctic waters off Alaska, as well as waters in the Atlantic and Pacific Oceans, to oil drilling.
Trump’s Inauguration Day executive order, which revoked protective actions taken by Presidents Joe Biden and Barack Obama, violated the federal Outer Continental Shelf Lands Act, the plaintiffs argue in their lawsuit.
The law “authorizes the President to withdraw unleased lands of the outer continental shelf from disposition. It does not authorize the President to re-open withdrawn areas to disposition,” said the complaint, which was filed in U.S. District Court in Anchorage and which the plaintiffs said is the first environmental lawsuit filed against the new Trump administration.
A spokesperson for the Department of the Interior declined to comment, citing a policy of avoiding comments on pending litigation.
Trump’s order seeking to open more areas to leasing, which was followed by an order by Interior Secretary Doug Burgum with the same purpose, comes at a time when previous ideas for remote offshore drilling in Alaska appear stalled or fizzled.
New lawsuit mirrors previous fight against Trump drilling plans
The new lawsuit revives a legal fight that played out in the first Trump administration. The administration lost that fight.
At that time, the first Trump administration tried to sell oil and gas leases in nearly all federal waters of Alaska, from the Gulf of Alaska in the south to the Arctic in the north. Trump, in his first term, tried to reverse Obama’s 2016 withdrawals of the Chukchi Sea and more remote parts of the Beaufort Sea from the leasing plan, as well as Obama’s withdrawals of Atlantic Ocean areas.
Several of the same parties that filed Wednesday’s lawsuit sued in 2017, and they won in federal court. U.S. District Court Judge Sharon Gleason in 2019 struck down the Trump plan as a violation of the Outer Continental Shelf Lands Act. Presidents may not unilaterally revoke past leasing withdrawals, she ruled.
The five-year leasing Trump administration plan that proposed auctions in almost all the nation’s federal marine areas never went into effect.
The Bureau of Ocean Energy Management continued to work through most of the Biden administration under a 2017-22 plan issued by the Obama administration.
The Biden administration in December 2023 approved a new five-year plan to run through 2029. Under that plan, three lease sales are scheduled, all in the Gulf of Mexico.
Environmentalists say the new Trump effort to open the Arctic and other areas to offshore leasing should meet the same fate as did the first Trump effort.
There is no need to wait for the new administration to roll out a new leasing plan before suing, said Steve Mashuda, managing attorney for oceans at Earthjustice, the environmental law firm representing the environmental plaintiffs.
“The action that the president took on Day One was so blatantly illegal that there’s no future developments that are going to make it more illegal,” he said.
Past offshore Arctic failures
There has never been any oil produced from the federally managed Alaska outer continental shelf, other than a small portion of the Northstar unit, a field located mostly on state territory.
Exploration of federal Arctic offshore territory, though tried multiple times over past decades, largely flopped.
The most recent attempt was an ambitious campaign mounted by Shell. In the early 2000s, the company spent over $2 billion acquiring leases in the Chukchi and Beaufort seas. The company spent billions more trying to drill sites in both seas.
That program came to an end after Shell wrecked one of its drill rigs on Dec. 31, 2012, while trying to move it during a Gulf of Alaska storm. Subsequent drilling in the Chukchi turned up what the company characterized as disappointing findings. Shell abandoned the program in 2015.
Practical challenges face potential projects
There is one oil development project that was pending in federal Arctic waters, but it is now stalled and possibly dead: a Beaufort Sea field called Liberty.
The Liberty project, with 150 million barrels of oil, was being pursued by Hilcorp. But Biden administration regulators last month rejected Hilcorp’s request for extra time to pursue a new development concept. It would have been the 12th extension for leases that were originally sold decades ago and that Hilcorp’s predecessor, BP Exploration (Alaska) Inc., in the early 2000s tried to develop into a producing field.
Hilcorp, in its application for a “suspension of production” approval that effectively halts lease development deadlines, said it is dropping its plan to build an artificial island as the new drill site. Instead, it is seeking to return to a plan to use ultra-extended-reach wells to drill from existing land. BP had tried that concept but found it unfeasible.
One Alaska oil and gas expert said Hilcorp’s reversion to the BP plan is puzzling.
“I don’t know why they walked away from the island,” said Mark Myers, a former commissioner of the Alaska Department of Natural Resources, former director of the Alaska Division of Oil and Gas and director of the U.S. Geological Survey.
Myers was commenting after the Bureau of Safety and Environmental Enforcement denied Hilcorp’s request but before Trump issued his executive orders.
Myers, who is now a member of the U.S. Arctic Research Commission, said geology is one reason why the BP plan did not work. There is a layer of shale, a formation called Kingak, that poses extraordinary challenges to any directional drilling, he said.
Myers said the Bureau of Safety and Environmental Enforcement, the federal agency that denied Hilcorp’s extension request, was probably justified in that decision. “It looks to me like Hilcorp could have been more diligent, and BSEE got fed up,” he said.
The Bureau of Ocean Energy Management now lists the Liberty leases as “expired.”
A Hilcorp representative did not respond to queries about the company’s Liberty plans. In January, a company spokesman, Matt Shuckerow, said by email that Hilcorp “will continue to pursue this opportunity and are currently evaluating all available options.”
Northern Bering Sea
The Northern Bering Sea was added to the no-leasing list through a withdrawal announced by President Biden on Jan. 6.
Hydrocarbon reserves in the Northern Bering Sea are negligible, according to resource estimates. Tribes in Western Alaska since the 1980s have opposed oil development there.
In the past, Alaska politicians also opposed the idea. When oil leasing was proposed there during the first Trump administration, the all-Republican congressional delegation, which at the time included the late U.S. Rep. Don Young, objected. Objections also came from then-Gov. Bill Walker, the North Pacific Fishery Management Council and other organizations.
This time, however, several Republican politicians in Alaska have shown themselves to be receptive to having the Northern Bering Sea open to oil development.
U.S. Rep. Nick Begich, the newly elected Republican representing Alaska’s at-large district, issued a social media post that called Biden a “son of a bitch” for withdrawing the Northern Bering Sea from the leasing program. Begich cited a need for more drilling in Cook Inlet, source of the natural gas that powers Southcentral Alaska – even though Cook Inlet is hundreds of miles away from the Northern Bering Sea and was unaffected by Biden’s withdrawal.
In the Alaska Legislature, minority-caucus Republicans have introduced a resolution, House Joint Resolution 2, that backs the revocation of Biden’s order on the Northern Bering Sea. The resolution proclaims that “offshore oil and gas development is essential for maintaining the state’s economy, sustaining family-supporting jobs, ensuring affordable energy for residents,” and, like Begich, invokes Cook Inlet’s role as the source of natural gas for Alaska’s population center.
Kawerak, a consortium of Bering Strait-region tribal governments and organizations, criticized the lawmakers’ effort as wrongheaded.
“Protecting the Northern Bering Sea, a delicate ecosystem, has a history of broad bipartisan support,” Melanie Bahnke, Kawerak’s president, said in a statement.
The resolution “seeks to increase energy production in Cook Inlet and does not need to open leasing in the Northern Bering Sea to accomplish that goal. We invite the sponsors of this resolution to our region to speak with us about why we have opposed leasing in the Northern Bering Sea for over four decades,” Bahnke continued.
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