Northern Alaska Environmental Center v. Kempthorne
457 F.3d 969 (9th Cir. 2006)

  • The Bureau of Land Management (BLM) wanted to open up a large area (4.6 million acres!) of Federal land in Alaska to oil drilling. They were required by National Environmental Policy Act (NEPA) to prepare an Environmental Impact Statement (EIS), which they did.
    • The EIS was not site specific because at the time, BLM had no idea where people were going to drill.
  • Environmental groups (led by NAEC) sued for an injunction.
    • NAEC argued that the EIS was inadequate because it lacked specific site analysis for particular drilling locations.
    • BLM argued that they would only know where drilling would occur after people bid on leases. They couldn't auction the leases until the EIS was done, so NAEC was putting them in a Catch-22.
  • The Trial Court found for BLM. NAEC appealed.
  • The Appellate Court affirmed.
    • The Appellate Court agreed that an EIS was required. However, the Court agreed with BLM's argument that it would be impossible to lease the land under the conditions NAEC was suggesting.
      • The Court agreed that there was considerable uncertainty in the EIS, but found that it had been prepared in good faith with the best information available at the time.
    • The Appellate Court noted that NEPA applies at all stages of the process and so any later plans for actual exploration are subject to review, once they are finalized.
      • NAEC unsuccessfully argued that it was important to perform the EIS early in the process because if you waited until leasing and exploration had occurred, it would be too late to halt the process.
      • Also, how many EISs are going to be required? Each one takes time and money.
  • What is the right time to write an EIS?
    • Four possibilities:
      • Planning Stage, Leasing Stage, Exploration by Lessee Stage, Drilling/Mining Stage.
    • As this case illustrates, you want to write the EIS early enough to be able to halt the process if need be, but if you write it too early, there aren't enough specifics available to write an effective EIS. How do you strike a balance?