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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Wednesday, September 9th, 2020

Bob Ferguson, Maura Healey lead multi-state legal challenge to block Arctic Refuge drilling

The Trump regime is mov­ing at bureau­crat­ic break­neck speed to set in place oil leas­es in Alaska’s Arc­tic Refuge, hop­ing to cement into place a long­time goal of Big Oil before pow­er in our nation’s cap­i­tal poten­tial­ly changes.

A pro­vi­sion buried in the Repub­li­cans’ 2017 tax scam bill at the request of oil lob­by­ists opened the door to devel­op­ment, with­out hear­ings or con­sid­er­a­tion of envi­ron­ment or cli­mate impacts. The leas­ing would be allowed over 1.6 mil­lion acres — the Coastal Plain of America’s great­est wilderness.

Fif­teen states on Wednes­day filed a fed­er­al law­suit in the Dis­trict of Alas­ka to block oil and gas leas­ing in the Refuge, or “ANWR”, as the indus­try calls it.

Wash­ing­ton and Mass­a­chu­setts are in the lead on the lawsuit.

Law­suit to pro­tect the Arc­tic Refuge from drilling

Per­haps not since Ferguson’s first chal­lenge to the Trump regime, which con­cerned the ille­gal trav­el ban aimed at Mus­lims, have stakes in a suit against the incum­bent been this high. We were then talk­ing about a racist immi­gra­tion pol­i­cy. We are now talk­ing about the fate of the Earth, our com­mon home.

Arctic Refuge panoramic view

The Arc­tic Nation­al Wildlife Refuge, by Zodi­ac in Demar­ca­tion Bay in Alas­ka (Pho­to: Danielle Brigi­da, U.S. Fish and Wildlife Service)

“There is not a cli­mate cri­sis,” the Trump-con­trolled Bureau of Land Man­age­ment claimed in its envi­ron­men­tal review of the drilling plan.

Liars.

The Arc­tic is warm­ing up and melt­ing faster than any place on the plan­et, with con­se­quences felt in our far-away back­yard. The ice pack is shrink­ing. Per­mafrost is melt­ing. Methane is being emit­ted into the atmos­phere at an alarm­ing rate. Giant fires are scorch­ing Siberia. The shrink­ing ice pack no longer forms in time to pro­tect native vil­lages from fall storms off the Bering Sea.

As to direct impacts, we can draw on the exam­ple of the Can­ning Riv­er, which forms the west­ern bound­ary of the Arc­tic Refuge, and is in the direct path for haul roads, drilling plat­forms and future pipelines.

The west­ern side of the riv­er, where indus­try has explored, is a kind of tun­dra waste­land. Emp­ty oil bar­rels lit­tler the land­scape. CAT tracks remain years after rigs plowed through. By con­trast, on the pris­tine east shore, cari­bou appear out of and dis­ap­pear into the mists. Musk oxen plowed through our camp at the con­clu­sion of a raft trip. A snowy plover flapped about, try­ing to draw the atten­tion of a fox and pro­tect the eggs in her nest.

The Coastal Plain is calv­ing ground for more than 100,000 ani­mals of the Por­cu­pine Cari­bou herd. Beau­fort Sea breezes mean few­er bugs. In turn, the herd sup­ports one of the Earth’s last great preda­tor-prey rela­tion­ships, with wolves and bar­ren ground griz­zly bears always seek­ing out strag­glers and the weak.

Caribou in the Arctic Refuge

Cari­bou graze on the coastal plain of the Arc­tic Nation­al Wildlife Refuge, with the Brooks Range as a back­drop. (USFWS)

The law­suit filed by the fif­teen states in Anchor­age charges that a rushed Trump regime drilling plan vio­lates mul­ti­ple laws, from the land­mark Nation­al Envi­ron­men­tal Pol­i­cy Act to the Admin­is­tra­tive Pro­ce­dure Act. Fer­gu­son has caught the admin­is­tra­tion before in fast, slop­py pro­ce­dur­al work.

“Pres­i­dent Trump and [Inte­ri­or] Sec­re­tary Bern­hardt – a for­mer lob­by­ist for Big Oil – unlaw­ful­ly cut cor­ners in their haste to allow drilling in this pris­tine, untamed wildlife refuge to oil and gas devel­op­ment,” Fer­gu­son said Wednesday.

“I’m lead­ing a coali­tion of states to hold the Trump admin­is­tra­tion account­able to the rule of law and block this unlaw­ful drilling plan.”

Fer­gu­son has won or shared in two dozen legal vic­to­ries against Trump admin­is­tra­tion efforts to roll back envi­ron­men­tal pro­tec­tion and ener­gy effi­cien­cy laws. The Refuge suit is his sev­en­ty-sev­enth legal challenge.

Over­all, Fer­gu­son has notched thir­ty-three wins.

State Repub­li­cans have often claimed he is grandstanding.

“Aren’t you tired of Bob Fer­gu­son suing con­ser­v­a­tives to impress lib­er­als?” scam­mer Tim Eyman likes to say to his followers.

But it is refresh­ing to have an Attor­ney Gen­er­al who doesn’t con­tent him­self to suing used car deal­ers caught rolling back odome­ters. Dit­to with Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healy, Ferguson’s fre­quent collaborator.

Gov­er­nor Jay Inslee, in a fre­quent role, is play­ing Ferguson’s wing man. “Hard to say what’s worse – destroy­ing the nation’s largest wildlife refuge, or fur­ther inflam­ing the cli­mate cri­sis with new oil and gas drilling so a few fos­sil fuel com­pa­nies can prof­it at the people’s expense,” Inslee said in a statement.

The states are also mak­ing com­mon cause with Alaskan Gwi’chin natives, who depend on the Por­cu­pine Herd for sus­te­nance and cloth­ing. The Arc­tic Vil­lage Coun­cil and Venetie Vil­lage Coun­cil have filed a sep­a­rate lawsuit.

The states claim that Trump’s folks vio­lat­ed NEPA by fail­ing to ade­quate­ly ana­lyze the impacts its oil and gas leas­ing pro­gram will have on the world’s climate.

They also argue that the Trump regime failed to think about a rea­son­able alter­na­tive plan that would min­i­mize impacts on the Can­ning Riv­er and Coastal Plain. As if that weren’t bad enough, the Trump folks did not both­er to fol­low NEPA require­ments to assess impacts on migra­to­ry birds.

Willow Ptarmigan

Wil­low ptarmi­gan with­in the Can­ning Riv­er cor­ri­dor. USFWS/Katrina Liebich

The Arc­tic Refuge has been the object of a polit­i­cal bat­tle for more than 60 years.

The wild north slope of the Brooks Range was explored by pio­neer nat­u­ral­ists Olaus and Mardy Murie, who wel­comed the leg­endary Unit­ed States Supreme Court Jus­tice William O. Dou­glas to camp one year.

“Wild Bill” cel­e­brat­ed his stay in his 1960 book “My Wilder­ness:  The Pacif­ic West.” Two Fair­banks-based pilot/conservationists, Gin­ny Wood and Celia Hunter, lob­bied the Eisen­how­er Admin­is­tra­tion to pro­tect the area.

In 1960, just before leav­ing office, Ike des­ig­nat­ed an eight mil­lion acre Arc­tic Nation­al Wildlife Range. The area became a major bone of con­tention as Con­gress passed the 1980 Alaskan Lands Act.

Con­gress enlarged to nine­teen mil­lion acres what it renamed the Arc­tic Nation­al Wildlife Refuge, or Arc­tic Refuge for short. It pro­tect­ed eight mil­lion acres as wilder­ness. But it punt­ed on the Coastal Plain. A pro­vi­sion of the act gave Con­gress pow­er to approve drilling in the Coastal Plain.

The George H.W. Bush admin­is­tra­tion was on the verge of push­ing through leas­ing, when in 1989 the tanker Exxon Valdez hit Bligh Reef in Prince William Sound. Big Oil had to retreat for a time.

George W. Bush’s admin­is­tra­tion took up the cause, along with Alaska’s oil-behold­en polit­i­cal class. Inte­ri­or Sec­re­tary Gale Nor­ton dis­missed the Coastal Plain as “flat white noth­ing­ness.” Con­ser­v­a­tive pun­dit Jon­ah Gold­berg flew over the area and pro­duced fuzzy pic­tures of fog. The decline in pro­duc­tion at Prud­hoe Bay, just west of the Refuge, inten­si­fied the lob­by­ing campaign.

Polar bears in the Refuge

A polar bear keeps close to her young along the Beau­fort Sea coast in Arc­tic Nation­al Wildlife Refuge. (Pho­to: Susanne Miller/USFWS)

The Refuge had its defend­ers. Celia Hunter died of a heart attack at her desk in Fair­banks, send­ing out appeals to lob­by sen­a­tors against drilling. A young Boe­ing employ­ee, Sub­hankar Baner­jee, spent a win­ter in the Refuge, pro­duc­ing a book “The Arc­tic Nation­al Wildlife Refuge: Sea­sons of Light and Life.”

Baner­jee’s pho­tographs were going on dis­play at the Smithsonian’s Nation­al Muse­um of Nat­ur­al His­to­ry, when sud­den­ly the exhib­it was moved to a low­er cor­ri­dor lead­ing to a load­ing dock.

Quo­ta­tions, even from ex-Pres­i­dent Jim­my Carter, were censored.

It turns out Alaska’s pow­er­ful Sen­a­tor Ted Stevens was angered when Sen. Bar­bara Box­er put up an easel with Banerjee’s pho­tos dur­ing Sen­ate floor debate.  Muse­ums around the coun­try rushed to sign up exhibits of Banerjee’s work.

Sen. Maria Cantwell, D‑Washington, has been a fore­most defend­er of the Refuge.  In 2006 she blocked a back­door effort by Sen. Stevens to attach Refuge drilling to a defense autho­riza­tion bill. Nobody fil­i­busters a defense bill, but Cantwell and then Sen­a­tor Joe Lieber­man, of Con­necti­cut, threat­ened to do just that.

Stevens respond­ed with fury on the Sen­ate floor, threat­en­ing to come to Wash­ing­ton State and cam­paign against Cantwell.

He did, and she was reelect­ed with almost fifty-sev­en per­cent of the vote.

Maria Cantwell hosting a healthcare town hall

Maria Cantwell smiles as she lis­tens to a con­stituent ques­tion at a town hall (Pho­to: Andrew Villeneuve/NPI)

Dur­ing debate on the Repub­li­cans’ tax scam bill, Cantwell lost a close 52–48 vote in attempt­ing to remove pro­vi­sions for drilling in the Coastal Plain.

The Refuge is an awe­some place.

Cantwell was there a few years ago, she peered into a spot­ting scope and spot­ted both a wolver­ine and a bar­ren ground griz­zly bear. Turn­ing to her host, Zumiez cofounder and NPI sup­port­er Tom Cam­pi­on, the Sen­a­tor asked: “Is this unusual?”

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2 Comments

  1. Why would the Wash­ing­ton State Attor­ney Gen­er­al get involved in a mat­ter than has noth­ing to do with Wash­ing­ton State at exact­ly the same time as the state is burn­ing up and has its own legal prob­lems? This sounds like pol­i­tics, and not doing the state’s legal work.

    # by Marc Brenman :: September 9th, 2020 at 5:14 PM
    • What hap­pens in the Arc­tic affects the whole world, Marc. This is not a local con­cern. The cli­mate cri­sis is a glob­al prob­lem. The destruc­tion of wild, unspoiled majes­tic places hurts the entire world com­mu­ni­ty. Not sure why you can’t appre­ci­ate this point. It’s artic­u­lat­ed clear­ly in Joel’s post, and we even pro­vid­ed for you the orig­i­nal com­plaint in its entire­ty, which, like any good legal plead­ing, lays out who the plain­tiffs are and why they have standing. 

      For instance, this pas­sage from the suit (com­plete with cita­tions) explains for the court what Wash­ing­ton’s inter­est is in bring­ing the action: 

      Plain­tiff STATE OF WASHINGTON is a sov­er­eign enti­ty and brings this action to pro­tect its sov­er­eign and pro­pri­etary rights over its nat­ur­al resources, includ­ing approx­i­mate­ly three mil­lion acres of trust lands, 2.6 mil­lion acres of aquat­ic lands, and thou­sands of birds. Wash­ing­ton has pro­pri­etary rights for wildlife, fish, shell­fish, and tide­lands. Wash. Con­st. art. XVII, § 1; Wash. Rev. Code § 77.04.012. Wash­ing­ton also has statu­to­ry respon­si­bil­i­ty to con­serve, enhance, and prop­er­ly uti­lize the State’s nat­ur­al resources. Wash. Rev. Code §§ 77.110.030, 90.03.010, 90.58.020; see also Wash. Con­st. art. XVI, § 1. The Attor­ney Gen­er­al is the chief legal advi­sor to the State of Wash­ing­ton, and his pow­ers and duties include act­ing in fed­er­al court on mat­ters of pub­lic con­cern. This chal­lenge is brought pur­suant to the Attor­ney General’s statu­to­ry and com­mon law author­i­ty to bring suit and obtain relief on behalf of Washington.

      If you read the suit, you’ll find a descrip­tion of the harms that Wash­ing­ton and the oth­er states would suf­fer if the project is not stopped. 

      Bob Fer­gu­son does­n’t file mer­it­less law­suits. He files law­suits only when he is con­fi­dent that he can demon­strate that the law or the Con­sti­tu­tion is not being fol­lowed, and obtain relief to pro­tect our democ­ra­cy, our peo­ple, and our envi­ron­ment. Mul­ti­ple laws were vio­lat­ed by the Trump folks in their rush to open the Arc­tic Refuge to drilling. That law­break­ing must not stand. 

      # by Andrew Villeneuve :: September 9th, 2020 at 5:38 PM