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Biden faces uphill battle to 'permanently' protect Alaska wildlife refuge

Biden faces uphill battle to 'permanently' protect Alaska wildlife refuge
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President-elect Joe BidenJoe BidenMinnesota certifies Biden victory Trump tells allies he plans to pardon Michael Flynn: report Biden says staff has spoken with Fauci: 'He's been very, very helpful' MORE faces several obstacles to fulfilling his pledge to work toward “permanently protecting” the Arctic National Wildlife Refuge, but he’ll also have a few executive tools at his disposal that could thwart drilling across large parts of the Alaskan wilderness.

Biden’s climate plan, released during the campaign, included a promise to protect the 1.6 million acres in Alaska that were opened up to oil drilling during the Trump administration.

But unlike many Trump-era policies that Biden aims to undo unilaterally through executive action, the authorization for drilling along the Alaskan refuge’s coastal plain became federal law through the GOP’s 2017 tax-cut bill, which required two oil and gas lease sales in the refuge by the end of 2024.

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Still, there are some avenues Biden can pursue to reduce drilling or make it more difficult for the fossil fuel industry.

Some of those options will be determined by whether the Trump administration is successful in completing one of the lease sales before Biden takes office on Jan. 20.

This past week, the administration published a “call for nominations” that sought input on which pieces of land should be leased for drilling, noting that a sale was “upcoming.”

That came a month after it proposed allowing a company to test for oil deposits in the refuge, home to grizzly bears, polar bears, gray wolves and more than 200 species of birds.

Asked if the administration planned to hold a lease sale before Inauguration Day, Bureau of Land Management (BLM) spokesperson Richard Packer said in an email that “a sale may take place after the nomination period has closed and a notice of sale [is] published in the Federal Register.”

Legal experts say that if no sale takes place before Biden takes office, there are a range of actions the new administration can take to limit drilling there.

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The most desirable, though seemingly unlikely, is to sign legislation repealing the provision in the 2017 tax law that required the lease sales. But that would require Democrats winning both runoff elections in Georgia on Jan. 5 to gain control of the Senate.

If the leases are sold after Biden is in the White House, he would have more discretion over what land is sold and could also decide the terms of the lease.

“They could basically not sell any leases that they think are going to compromise in some significant way the wildlife resources on the refuge and...they can also impose stipulations on the lessee that will make development much harder and much more expensive, but will also be designed presumably to protect the wildlife resources that are on the refuge,” said Mark Squillace, a natural resources law professor at the University of Colorado.

Environmentalists have also suggested Biden should revisit the initial environmental impacts statement behind the record of decision (ROD) that opened up the area to drilling.

“What the new administration needs to do...is completely reassess what’s gone on here,” said Garett Rose, an attorney with the Natural Resources Defense Council. “Go back to the drawing board and take a whole new look at the kind of impact analysis that was completed."

Even if the Trump administration completes a lease sale before Jan. 20, Biden could still attempt to put restrictions on drilling.

Lessees would be required to apply for drilling permits, which would trigger another round of studies of the environmental impact.

Sara Gosman, an environmental law professor at the University of Arkansas, said the drilling permits would require additional analyses under the National Environmental Policy Act and the Endangered Species Act (ESA).

“The BLM could add restrictions on development at this stage based on the environmental impact assessment and/or the ESA mandate, if the restrictions do not conflict with the terms of the lease,” she said in an email.

Squillace added that an environmental impact statement could be used to create new hurdles for drillers.

“One of the things that you can do in conjunction with an environmental impact statement is insist upon mitigation of the adverse impacts,” he said. “If a Biden administration were to decide that they were going to require the developer to mitigate the adverse impacts, that could be a fairly expensive proposition and it could further make the prospects for developing that resource expensive and complicated and maybe not worth the effort.”

Opponents of the drilling plans are already pursuing court challenges. Environmental and indigenous groups, as well as 15 states, have sued over the decision to open up the entirety of the refuge's coastal plain to leasing.

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Gosman said that even if the Trump administration holds a lease sale, those leases may be voided if a court determines that the decision to sell them was based on flawed environmental analyses.

“While the Tax Act directed the BLM to conduct two lease sales, Congress did not exempt the leasing program or the lease sales from compliance with environmental laws such as the National Environmental Policy Act and the Endangered Species Act,” she said.

“The Trump Administration has lost a number of environmental lawsuits over the past four years because of its failure to properly follow procedures and engage in reasoned decision-making. The same issues may well doom its decision here.”

A court ruling that sides with opponents could require the Biden administration to reassess the environmental impacts, giving it the opportunity to come to a different conclusion on the effect of opening up parts of the refuge to drilling.

In light of the complications and low demand for oil, Squillace said he’s not sure many companies will even want to purchase leases.

"Given the projections, or at least my expectations about the projection for oil and gas prices, I'm skeptical that we're going to see that area develop," he said.