Jeremy C. Lieb
EARTHJUSTICE
441 W 5th Avenue, Suite 301
Anchorage, AK 99501
T: 907.277.2500
E: jlieb@earthjustice.org
Eric P. Jorgensen
EARTHJUSTICE
325 Fourth Street
Juneau, AK 99801
T: 907.586.2751
E: ejorgensen@earthjustice.org
Attorneys for Plaintiffs Center for Biological Diversity et al.
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ALASKA
CENTER FOR BIOLOGICAL DIVERSITY,FRIENDS OF THE EARTH, and GREENPEACE,
INC.,
Plaintiffs,v.
BUREAU OF LAND MANAGEMENT; UNITEDSTATES FISH AND WILDLIFE SERVICE;
UNITED STATES DEPARTMENT OF THE
INTERIOR; DAVID BERNHARDT, in his official
capacity as Secretary of the Interior; and CHAD B.
PADGETT, in his official capacity as Alaska State
Director of Bureau of Land Management,
Defendants.

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Case No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF(5 U.S.C. §§ 701-706; 42 U.S.C. § 4332; 16 U.S.C. § 1536)

INTRODUCTION
1.

This action arises from the Bureau of Land Management’s (BLM) approvalof ConocoPhillips Alaska Incorporated’s (ConocoPhillips) Willow Master Development
Plan (“Willow Project” or “Project”), a massive oil and gas development project in the
National Petroleum Reserve-Alaska (the “Reserve”). The final environmental impact
statement (EIS) prepared by BLM for the Project does not meet the requirements of the
National Environmental Policy Act (NEPA). The Project also relies on a biologicalopinion issued by United States Fish and Wildlife Service (“Fish and Wildlife Service” or“Service”) that fails to comply with the requirements of the Endangered Species Act(ESA).
2.

The 23-million-acre Reserve is recognized as a globally important

ecological resource. It is home to a diversity of species, including caribou, polar bears,
brown bears, muskoxen, and millions of migratory birds, among many other species.
This landscape and its values are central to the livelihood and traditional practices of theIñupiaq people living in the region.
3.

On October 26, 2020, BLM signed a record of decision (ROD) approving

ConocoPhillips’ Willow Project. The massive project could include five drill sites, acentral processing facility, an operations center, 37 miles of gravel roads, up to 700 milesof ice roads during construction, 263 miles of resupply ice roads during operations, one
or two airstrips, up to 386 miles of pipelines, and a gravel mine site in the Reserve. BLM
estimates the Project will produce 586 million barrels of oil, resulting in approximately
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259 million metric tons CO2 emissions over its 30-year life.
4.

The Willow Project will have far-reaching impacts across the Reserve, theNorth Slope, and beyond. The Project represents a significant expansion into previously
undeveloped areas of the Reserve, including large areas within the ecologically important
Judy Creek and Fish Creek watersheds, and areas within the Teshekpuk Lake andColville River Special Areas. The Project will disturb wildlife, destroy wetlands, andpermanently alter rural lifestyles and traditional cultural practices dependent on foodresources like fish and caribou. The Project will further imperil polar bears that are
already threatened from climate change and the expansion of oil and gas development in
the Arctic. And the Project’s enormous greenhouse gas emissions are inconsistent withthe urgent need to transition away from fossil fuels. Developing a massive new Arctic oil
formation is a threat to the global climate and an already dramatically warming Arctic
region.
5.

Defendants’ approval of the Willow Project is unlawful. BLM’s final

Environmental Impact Statement (EIS) violates NEPA by failing to consider reasonable
alternatives that could reduce adverse impacts, including any alternatives that aremeaningfully different from ConocoPhillips’ proposed project, failing to accurately
describe and analyze the significance of greenhouse gas emissions from the Willow
Project, and failing to adequately discuss the magnitude and nature of potential direct,
indirect, and cumulative impacts to caribou. The Fish and Wildlife Service’s polar bear
biological opinion violates the ESA by relying on uncertain, future compliance with the
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Marine Mammal Protection Act (MMPA). The Service also failed to issue an incidental
take statement as required by the ESA. Several of the agencies’ failures here—the failure
to account for foreign consumption in assessing climate change impacts caused by the
Project and the reliance on uncertain, future mitigation measures in the polar bear
biological opinion, in particular—mirror those the U.S. Court of Appeals for the Ninth
Circuit recently held unlawful in rejecting the approval of another oil development
project in the Arctic. See Ctr. for Biological Diversity v. Bernhardt, No. 18-73400, 2020
WL 7135484 (9th Cir. Dec. 7, 2020). The Court should vacate BLM’s Record ofDecision (ROD) approving the Willow Project and the Service’s biological opinion.
JURISDICTION AND VENUE
6.

The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331,

1361, 2201-02. Venue is appropriate under 28 U.S.C. § 1391(e).
PLAINTIFFS
7.

Plaintiff Center for Biological Diversity (the Center) is a national, non-profit organization, with offices across the country and in La Paz, Mexico. The Center’s
mission is to ensure the preservation, protection, and restoration of biodiversity, native
species, ecosystems, public lands, and public health. The Center has more than 81,800
members. The Center is actively involved in species and habitat protection issues
throughout the United States, including protection of the Arctic and wildlife threatenedby oil and gas leasing, exploration, and development. As part of these efforts, the Center

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works to protect Arctic wildlife that lives in and near the Reserve from the numerous
harms inherent in oil and gas leasing, exploration, and development, including noise
pollution, habitat destruction, oil spills, and greenhouse gas pollution that exacerbates theclimate crisis.
8.

Plaintiff Friends of the Earth is a tax-exempt, 501(c)(3) organization and a

not-for-profit corporation. Friends of the Earth is a membership organization consistingof nearly 120,000 members, including more than 300 members who live in Alaska, andmore than 1.5 million activists nationwide. Friends of the Earth is also a member of
Friends of the Earth-International, which is a network of grassroots groups in 74
countries worldwide. Friends of the Earth’s mission is to protect our naturalenvironment, including air, water, and land, and to create a more healthy and just world.
Friends of the Earth utilizes public education, advocacy, legislative processes, andlitigation to achieve its organizational goals. Friends of the Earth is concerned about thepotential adverse impacts that fossil fuel exploration and development activities in
Alaska’s Arctic, including in the Reserve, have on the climate and people, fish, birds, andother species that depend on this region. Therefore, on behalf of its members andactivists, Friends of the Earth actively engages in advocacy to influence U.S. energy andenvironmental policies affecting Alaska’s Arctic.
9.

Plaintiff Greenpeace, Inc., is a non-profit corporation organized under thelaws of the State of California, with its principal place of business in Washington, D.C.
Its mission is to promote the protection and preservation of the environment. Greenpeace
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is an independent campaigning organization that uses peaceful, creative action to expose
global environmental problems and to force solutions that are essential for a green andpeaceful future. Greenpeace has over 840,000 active supporters in the United States. For
more than a decade, Greenpeace has been a lead advocacy organization working to raiseawareness of global warming and the protection of wildlife, and to press for serious cutsin greenhouse gas emissions through local, national, and global action. In the UnitedStates, Greenpeace has run campaigns aimed at stopping global warming by phasing out
fossil fuel use and promoting renewable energy systems. As a part of these efforts,
Greenpeace has actively worked to protect the Arctic from the harmful effects of oil andgas activities.
10.

Members of Plaintiff groups use and enjoy—and intend to continue to use

and enjoy—the Reserve, including the Willow Project area and adjacent areas, forvarious purposes, including subsistence activities, recreation, wildlife viewing, education,
research, photography, and/or aesthetic and spiritual enjoyment. Members of Plaintiff
groups also use or otherwise enjoy migratory wildlife that depend on the region. The
Willow Project, as described and approved in BLM’s final EIS and ROD, will directly
and irreparably injure these interests.
11.

Plaintiffs submitted comments to BLM on the Project’s draft andsupplemental draft EISs. Each of the Plaintiff groups monitors the use of public lands inthe Reserve and compliance with the laws respecting these lands, educates its members
and the public concerning the management of these lands, and advocates policies and
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practices that protect the natural and cultural values and sustainable resources of theselands. It is impossible to achieve these organizational purposes fully without adequate
information and public participation in the processes required by law for the managementof these public lands. The interests and organizational purposes of the plaintiffs will bedirectly and irreparably injured by Defendants’ violations of law as described in thiscomplaint.
DEFENDANTS
12.

Defendant BLM is the agency of the United States Department of theInterior entrusted with the conservation and management of resources within the Reserveand that issued the EIS challenged in this action.
13.

Defendant Fish and Wildlife Service is the federal agency within the

Department of the Interior responsible for administration of the ESA as it relates toterrestrial animals and some marine mammals, including polar bears.
14.

Defendant United States Department of the Interior is agency of the UnitedStates responsible for oversight of BLM and the Service.
15.

Defendant David Bernhardt is sued in his official capacity as Secretary of

the United States Department of the Interior. Secretary of the Interior (Secretary) is thehighest position within the Department of the Interior, has ultimate responsibility foroverseeing the Department and its agencies and ensuring their compliance with allapplicable federal laws, and specific responsibilities related to the administration of the

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Reserve. Defendant Bernhardt signed the ROD challenged herein.
16.

Defendant Chad B. Padgett is sued in his official capacity as Alaska State

Director of BLM. Defendant Padgett signed the ROD challenged herein.
STATEMENT OF FACTSI.

The Reserve
17.

President Warren G. Harding set aside the 23-million-acre Reserve in 1923.

The Reserve is an extraordinary and ecologically important landscape of lakes, ponds,
rivers, floodplains, wetlands, upland areas, and sensitive coastal resources. It is home toa diversity of species, including polar bears, brown bears, muskoxen, caribou, moose, andmillions of migratory birds, among many other species. This landscape and wildlife are
central to the livelihood and traditional practices of Iñupiaq people living in the region.
18.

In 1976, Congress passed, and subsequently amended in 1980, the Naval

Petroleum Reserves Production Act (“Reserves Act”), which transferred jurisdiction overthe Reserve from the Navy to the Secretary of the Interior, in recognition of the area’s
significant ecological value and the need to protect it. Pub. L. 94-258, Title I §§ 102-03,
90 Stat. 303-04 (codified at 42 U.S.C. §§ 6502-6503). The Reserves Act created amanagement structure for the Reserve separate from other public land laws, including theMineral Leasing Act. 42 U.S.C. § 6502 (withdrawal from entry and disposition underpublic land laws).
19.

Because of the world-class wildlife and subsistence values of the Reserve,

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8the Reserves Act requires that the Secretary must protect and conserve these otherresources and uses in the Reserve any time the Secretary authorizes oil and gas leasing,
exploration, and development. Id. §§ 6504(a), 6506a(b). The Reserves Act requires the
Secretary to impose “conditions, restrictions, and prohibitions” on any activities
undertaken pursuant to the Act “as the Secretary deems necessary or appropriate to
mitigate reasonably foreseeable and significantly adverse effects on the surface
resources” of the Reserve. Id. § 6506a(b). Surface values of the Reserve may beprotected by limiting, restricting, or prohibiting the use of and access to lands within the
Reserve, including within Special Areas. 43 C.F.R. § 2361.1(e)(1). This includes theauthority to require a suspension of operations and production if BLM determines that it
is in the interest of conservation or “mitigates reasonably foreseeable and significantly
adverse effects on surface resources.” 43 C.F.R. § 3135.2(a)(1), (3).
20.

The Reserves Act further requires the Secretary to provide “maximum

protection” to areas containing “significant subsistence, recreational, fish and wildlife, or
historical or scenic value.” 42 U.S.C. § 6504(a). “Special [A]reas” are “areas within the[R]eserve identified by the Secretary of the Interior as having significant subsistence,
recreational, fish and wildlife, or historical or scenic value and, therefore, warranting
maximum protection of such values to the extent consistent with the requirements of the
Act for the exploration of the Reserve.” 43 C.F.R. § 2361.0-5(f).
21.

Pursuant to this authority, in 1977 the Secretary designated regions aroundTeshekpuk Lake and the Colville River, among others, as Special Areas within the
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Reserve. 42 Fed. Reg. 28,723, 28,723 (June 3, 1977).
22.

The Teshekpuk Lake Special Area protects essential caribou habitat,

subsistence resources and uses, and world-class water- and shorebird nesting, staging,and molting habitat. The Teshekpuk Lake Special Area provides calving, insect relief,
and wintering areas for the approximately 56,000 caribou of the Teshekpuk Caribou
Herd.
23.

The Colville River Special Area lies along the Colville River and two of its

larger tributaries, the Kogosukruk and Kikiakrorak rivers, and encompasses 2.44 million
acres. The Special Area was designated to assure maximum protection of its subsistence,
wildlife, recreational, and other identified values, such as the unique bluff and riparian
habitats associated with the Colville River and its tributaries. It protects the largest andmost productive river delta in Arctic Alaska, which supports populations of pink andchum salmon, burbot, broad whitefish, Arctic cisco, and other fish species, and provides
habitat for peregrine falcons, gyrfalcons, golden eagles, and rough-legged hawks.
II.

BLM’s Management of the Reserve24.

In 2013, the Department of the Interior issued a comprehensive

management plan covering the entire Reserve, which it called an Integrated Activity Plan
(2013 Integrated Activity Plan). This plan designated approximately 52 percent (11.8
million acres) of the Reserve as available for oil and gas leasing and development,
subject to requirements to protect other values.

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25.

Although portions of the Reserve have been available for oil and gas

leasing since 1980, BLM did not permit any development projects on federal lands within
the Reserve until 2015, when it approved ConocoPhillips’ Greater Mooses Tooth 1(GMT-1) development, which extended oil and gas infrastructure west from the existing
Alpine development.
26.

In 2018, BLM approved ConocoPhillips’ Greater Mooses Tooth 2 (GMT-2)

development. GMT-2 has extended the road and pipeline network further west into theReserve towards the Willow Project area and areas closed to leasing around Teshekpuk
Lake.
III.

The Willow Project27.

In May 2018, ConocoPhillips sent a letter to BLM requesting approval of

its proposed Willow Project, and in August 2018, BLM published notice of its intent to
prepare an EIS for the Project. 83 Fed. Reg. 38,725 (Aug. 7, 2018).
28.

The Willow Project would be located in the especially ecologicallysensitive and culturally important northeastern portion of the Reserve, including within
parts of the Teshekpuk Lake and Colville River Special Areas and immediately adjacent
to areas within the Teshekpuk Lake Special Area closed to oil and gas leasing under the2013 Integrated Activity Plan.
29.

On August 30, 2019, BLM released a draft EIS for the Willow Project.

83 Fed. Reg. 45,801 (Aug. 30, 2019).

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30.

The draft EIS considered a no-action alternative and three action

alternatives. Alternative B, ConocoPhillips’ proposed action, would include five drillsites, a central processing facility, an operations center, an air strip, and a gravel mine.
The drill sites would be connected to the processing center by a network of pipelines andgravel roads and the Project would be connected back to the existing GMT-2
development by a gravel access road.
31.

The two other action alternatives are not meaningfully different from

Alternative B. Alternative C would eliminate the gravel road connection between theprocessing facility and drill site BT1 and would add a second airstrip. Alternative D
would not include a gravel access road to GMT-2, but would instead include annual
construction of a resupply ice road.
32.

Under all action alternatives in the draft EIS, ConocoPhillips would

construct an artificial island in Harrison Bay to transport large sealift modules during
construction, and transport those modules over ice roads to the project area. BLM
concluded in the draft EIS that transport of construction modules from existing dockfacilities on ice roads crossing the Colville River was not feasible.
33.

On March 26, 2020, BLM released a supplemental draft EIS to evaluate a

new module delivery alternative that it had previously determined was not feasible—
delivering 3,000- to 4,000-ton modules via the existing Oliktok Dock and an ice roadcrossing the Colville River—along with constructing a freshwater reservoir and adding
three boat ramps for subsistence access. 85 Fed. Reg. 17,094 (Mar. 26, 2020).
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34.

Members of the public submitted detailed comments on BLM’s draft andsupplemental draft EISs, which, among other things, pointed out that the draft andsupplemental draft EISs failed to consider reasonable alternatives, failed to provide
adequate process for public involvement, and failed to take a hard look at the direct,
indirect, and cumulative impacts from the Project, including by failing to accurately
estimate and analyze the significance of greenhouse gas emissions from the Project, andfailing to adequately consider the impacts of the Project to caribou.
35.

Among other reasonable alternatives, Plaintiffs, and others, requested that

BLM consider an alternative that would prohibit permanent infrastructure in theTeshekpuk Lake and Colville River Special Areas, which would limit impacts to theseparticularly important areas that have been designated for maximum protection, and analternative that would permit drilling only during the winter season and eliminate
construction of permanent roads, which would mitigate disturbance to nesting birds,
caribou fall migration, and summer and fall subsistence activities, reduce the risk of well
blowout during the open water season, and significantly reduce the gravel needed for the
project.
36.

On August 14, 2020, BLM announced its publication of the final EIS for

the Willow Project. 85 Fed. Reg. 49,677 (Aug. 14, 2020). In the final EIS, BLM
identified ConocoPhillips’ proposal—Alternative B and Module Delivery Option 3 (theColville River ice crossing)—as its preferred alternative.
37.

Because the Willow Project may affect threatened or endangered species,

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including polar bears, BLM consulted with the Fish and Wildlife Service pursuant to
Section 7 of the ESA. The Service issued a biological opinion addressing the Willow
Project’s effects on Steller’s eiders, spectacled eiders, northern sea otters, and polar bears,
and areas designated as critical habitat, on October 16, 2020. The biological opinion
concluded that the Willow Project is not likely to adversely affect Steller’s eiders or
northern sea otters, and that it was likely to adversely affect, but not jeopardize thecontinued existence of, spectacled eiders and polar bears. The biological opinion also
concluded that the Willow Project is not likely to adversely affect critical habitat for any
listed species. On October 26, 2020, BLM signed a ROD approving ConocoPhillips’
Willow Project. The ROD approved ConocoPhillips’ proposed project—Alternative B
and Module Delivery Option 3.
38.

The Willow Project, as described in the final EIS and ROD, will include up

to five drill sites, a central processing facility, an operations center, up to 700 miles of iceroad during construction, including an 80-mile heavy-haul ice road crossing the ColvilleRiver, 263 miles of resupply ice roads during operations, an airstrip, up to 386 miles ofpipelines, and a gravel mine site in the Reserve. BLM predicts the Project will have peak
production of over 160,000 barrels of oil per day, producing approximately 586 million
barrels of oil over its 30-year life.

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A.

BLM’s Consideration of Alternatives

39.

BLM considered the same three action alternatives in the final EIS it

considered in the draft EIS. These alternatives are not meaningfully different. Eachalternative would permit ConocoPhillips to construct the core infrastructure it proposedin the locations it proposed, including the same number of well pads, the same pad sizeand placement, and the same road and/or pipeline alignment.
40.

BLM improperly limited the alternatives it considered based on

ConocoPhillips’ preferences, rather than BLM’s legal mandates and the Project’s public
purpose. It failed to consider any meaningfully different alternatives, including any
alternative that would reduce the number of drill pads or otherwise change the layout or
reduce the size of the Willow Project, an alternative that would eliminate infrastructure
within the Teshekpuk Lake and Colville River Special Areas, or a winter-only drilling
alternative.
41.

The Teshekpuk Lake and Colville River Special Areas have been

designated by the Secretary because of their extraordinary ecological and cultural values.
The Reserves Act requires that Special Areas be managed to ensure “maximum
protection” of their surface values. 42 U.S.C. § 6504(a). All alternatives considered in
the final EIS include drill pads and other infrastructure within Special Areas. An
alternative that prohibited infrastructure in Special Areas would reduce the impact tothese important areas.
42.

A roadless, seasonal drilling alternative, would mitigate disturbance to

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nesting birds, fall caribou migration, and summer and fall subsistence activities. It would
also reduce well blowout risks, eliminate the footprint of, and year-round barrier createdby, gravel roads, and would require significantly less gravel. The nearby CD-3
development is currently operated only seasonally, with ice road access, demonstratingthat this alternative is feasible.
B.

The Willow Project’s Greenhouse Gas Emissions

43.

Human activity, especially the burning of fossil fuels, has increased theconcentration of greenhouse gases in the atmosphere and caused Earth’s climate to warmat an accelerating rate over the past century. This warming is projected to continue, withpotentially catastrophic consequences, if left unchecked.
44.

The world is already experiencing impacts from climate change, withdrought and extreme weather events becoming increasingly common. Climatic change
and greenhouse gas emissions are having dramatic impacts on plant and animal species
and habitat, threatening both human and other species’ resiliency and ability to adapt tothese changes.
45.

The effects of warming in Arctic Alaska have been especially severe.

Alaska has warmed more than twice as fast as the rest of the United States over the past
60 years, and the Arctic is expected to warm by an additional 10°F to 12°F this century.
This rapid warming presents myriad disruptions to Arctic ecosystems, including in the
Reserve. In the Arctic, climate change is causing, and will continue to cause, sea-level

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rise, sea-ice melt, river flow changes, and permafrost thaw.
46.

Extensive research demonstrates the urgent need to reduce greenhouse gas

emissions on an enormous scale. According to the Intergovernmental Panel on Climate
Change, to limit warming below 2°C, a level beyond which impacts from warming may
be catastrophic to humans and other life on earth, global emissions must decline by 20%
relative to 2010 levels by 2030, and reach zero by 2075.
47.

This necessary transition leaves no room in the global carbon budget fordeveloping new fossil fuel discoveries, especially in the Arctic.
48.

The Willow Project will result in substantial greenhouse gas emissions—more than 258 million metric tons CO2 equivalent (CO2e) over the life of the project.
BLM estimates that the annual average greenhouse gas emissions resulting from theProject will be approximately equal to all other Alaska North Slope emissions combined.
49.

The final EIS, however, concludes that the preferred alternative will resultin a “net” change from baseline greenhouse gas emissions of only 35 million metric tons
CO2e, less than 14 % of the Project’s total direct and indirect emissions. BLM reachedthis implausible conclusion through a flawed application of a market simulation model(MarketSim) developed by BOEM, which attempts to predict how oil production from a
project would substitute for (or displace) production of other energy sources.
50.

BLM’s use of MarketSim arbitrarily excludes the project’s effects on

foreign oil and gas consumption, without justification and without any appropriate
adjustment. This error results in a substantial underestimate of emissions. The Ninth
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Circuit recently rejected BOEM’s nearly identical analysis of downstream greenhousegas emissions from burning oil that would be produced by another proposed Arctic oil
development project. Ctr. for Biological Diversity, No. 18-73400, 2020 WL 7135484.
BLM also has not disclosed its full analysis, key assumptions, and data used in its runs of
the market simulation tool, and it relies on unsupported assumptions, including thatdemand for oil will remain largely constant over the next 70 years.
51.

BLM’s conclusion that nearly all oil produced from the Project would

displace other energy sources is implausible and inconsistent with evidence from
BOEM’s market model and the consensus of credible scientific research on energy
substitution, which demonstrate a much more modest substitution effect of about 50% for
new fossil fuel production
52.

The final EIS also misleadingly compares peak annual emissions from theWillow Project to total U.S. emissions in 2017, disregarding evidence that U.S. emissions
have been falling and will continue to fall over the life of this project, thereby
understating the proportion of U.S. emissions the Project will likely produce. Emissions
from the Willow Project will be a much larger proportion of total annual U.S. emissions
than BLM estimates.
53.

Even this misleading comparison shows that annual emissions from theWillow Project will be approximately equal to 0.13 percent of all U.S. greenhouse gas
emissions in 2017, an enormous contribution to the U.S. greenhouse gas inventory from asingle project.
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54.

Despite the substantial emissions the Project will produce and the urgency

and severity of climate change, the final EIS includes no discussion of the actual
environmental effects of these emissions or their significance.
55.

Instead, the final EIS provides only volumetric totals of direct and indirectemissions, which it claims to assess “as a proxy for understanding the potential effects of
the [Willow] Project on climate change.”56.

This estimate of volume fails to account for the actual effects of theemissions, including among many other things, the contribution to sea-level rise, species
loss, property damage, and human health impacts. A volume estimate alone also cannot
account for the incremental increase in harm caused by emissions over time asgreenhouse gases continue to accumulate in the atmosphere and climate stress on thephysical environment and economy increases.
57.

In providing only estimated volumes of emissions, BLM ignored well-established methods for quantifying and assessing the potential effects of thoseemissions, including the social cost of greenhouse gases metric, a tool developed by afederal Interagency Working Group to evaluate the significance of a project’s greenhouseemissions by monetizing the damages caused by the emissions. BLM acknowledges thismetric is capable of assessing the economic cost of a project’s greenhouse gas emissions.
58.

In addition to its failure to use available science to quantify the effects of

the Willow Project’s emissions, BLM failed to use other available information andmethods to assess the significance of emissions, including a carbon budget analysis,
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which would assess the emissions from the Willow Project in the context of remaining
greenhouse gasses that may be emitted while maintaining warming below an acceptable
threshold. Moreover, the final EIS fails even to include a qualitative assessment of theeffects of direct and indirect emissions from the Project that acknowledges thesignificance of the threat of climate change and the cumulative nature of the problem.
C.

The Effects of the Willow Project on the Teshekpuk Caribou Herd59.

The Willow Project poses a particularly significant threat to the Teshekpuk

Caribou Herd and the communities that rely on it as a subsistence and cultural resource.
60.

Roads, vehicle traffic, pipelines, and air traffic all can disturb and displace

caribou.
61.

The Willow Project falls within the highest-use portion of the Teshekpuk

Caribou Herd’s range.
62.

The Teshekpuk Caribou Herd is the only Alaska caribou herd in which the

majority of individuals regularly overwinter on the coastal plain. The Teshekpuk
Caribou Herd uses areas within and near the Project area year round, including foroverwintering, migration, calving, postcalving, and insect relief.
63.

Winter is a critical time for caribou, and disturbance during this time canhave very significant consequences. Foraging opportunities are limited during the winterand caribou rely on body stores of energy for survival and gestation. Disturbances canlead to flight responses in caribou, causing them to expend additional energy. This

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additional energetic cost may lead to loss of body mass and depletion of vital energy
reserves. These effects can be greater in high-snowpack years, when energetic costs ofmovement are higher and foraging opportunities are reduced. High-snowpack years are
expected to become more frequent over the life of the project.
64.

Any extra expenditure of energy that caribou undertake as a result ofinteraction with oil and gas activity or development is of concern as reproductive successin caribou is strongly correlated with nutritional stress. Late winter body mass of female
caribou has been strongly linked to calf production and survival, potentially influencing
population growth rates.
65.

The Willow Project would be the first development project within the year-

round range of any Alaska caribou herd, creating unprecedented potential contact with oil
and gas development and activity throughout the year.
66.

The final EIS briefly acknowledges that the Project will disturb caribou

during winter, but it fails to analyze the significance of those effects or acknowledge thenovelty of the extent to which the Teshekpuk Caribou Herd will be exposed to oil and gas
development during winter as a result of the project. Nor does the final EIS acknowledge
or analyze the significance of the unprecedented year-round exposure to oil and gas
infrastructure and activity the Willow Project will cause.

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D.

The Fish and Wildlife Service’s Biological Opinion and Potential Harmto Polar Bears

67.

Polar bears are listed as threatened species under the ESA and are also

protected under the MMPA. 50 C.F.R § 17.40(q); 73 Fed. Reg. 28,212 (May 15, 2008).
68.

The Southern Beaufort Sea (SBS) polar bear population in the Willow

Project area has already declined significantly, and the remaining bears are underenormous stress because climate change is destroying their habitat, making it moredifficult for them to find food, and increasing their energy expenditure.
69.

As sea-ice extent and duration decreases, SBS population polar bears are

spending more time onshore, including increasingly denning on land. This trend is
expected to continue, with inland areas of the Reserve, including the Willow Project area,
becoming more critical to the SBS population.
70.

BLM and the Fish and Wildlife Service acknowledge that the Willow

Project may disturb both denning and non-denning bears. Disturbance of denning bears
is particularly problematic because it can cause premature den or den site abandonment
after cubs are born, leading to death of cubs.
71.

Given the precarious status of the SBS population of polar bears and theforeseeable significant cumulative effects from Arctic National Wildlife Refuge oil
exploration and development, disturbance of even one denning bear could havesignificant consequences for the population.
72.

The Service issued a biological opinion concluding that the Willow Project

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is not likely to jeopardize the continued existence of polar bears or adversely affect theircritical habitat. These conclusions rely in part on future compliance with mitigation
measures and take authorizations issued under the MMPA. Because these measures areunspecified, however, the Service has no basis on which to conclude that compliancewith any such measures will prevent jeopardy or adverse effects to critical habitat.
Moreover, incidental take authorizations under the MMPA are geared toward ensuring anactivity will have a negligible impact on the species over the five-year period covered by
the regulations, and without considering the cumulative impacts from other activities.
16 U.S.C. § 1371(a)(5)(A); 50 C.F.R. § 18.27. Compliance with these short-term
measures does not necessarily establish that a species will not be jeopardized over the lifeof a much longer-term project.
73.

The Service also estimates that the Willow Project will result in incidental

take of up to two bears from direct injury as a result of hazing over the life of the project.
This estimate fails to account for take resulting from disturbance and harassment that
does not cause direct injury or mortality, even though the biological opinion
contemplated disturbance rising to the level of take. It also fails to account for any takeresulting from mortality caused by den disturbance—the Service estimates a mean of 2.2
cubs could be killed by den disturbance over the life of the project.
74.

Despite concluding that the Willow Project will result in take of polar

bears, the biological opinion does not include an incidental take statement as required by
the ESA. Instead, the Service defers to future take authorization under the MMPA.
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These authorizations, which are uncertain and do not yet exist, fail to establish thepermissible level of take over the life of this project.
CLAIMS FOR RELIEF
I. First Claim for Relief (NEPA)
75.

Plaintiffs incorporate by reference each of the allegations in paragraphs 1

through 74.
76.

NEPA requires that federal agencies prepare a “detailed statement”

regarding all “major Federal actions significantly affecting the quality of the humanenvironment.” 42 U.S.C. § 4332(2)(C).
77.

An agency must “study, develop, and describe appropriate alternatives torecommended courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E); 40 C.F.R. §1502.14.1
78.

The range of alternatives must include reasonable alternatives to proposed

actions that will avoid or minimize adverse effects of these actions upon the quality of thehuman environment. 40 C.F.R. § 1500.2(e).
79.

An agency must “present the environmental impacts of the proposal and thealternatives in comparative form, thus sharply defining the issues and providing a clear

1

All citations to Chapter V, Subchapter A of Title 40 of the Code of Federal Regulations,
40 C.F.R. § 1500 et seq., are to the regulations in effect prior to September 14, 2020,
which are applicable to this action. See 40 C.F.R. § 1506.13 (Sept. 14, 2020).
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basis for choice among options by the decision maker and the public.” 40 C.F.R. §1502.14.
80.

The action alternatives considered in the final EIS are not meaningfully

different and would not have meaningfully different environmental impacts. Each action
alternative includes the same core infrastructure and layout, including the same number
of wells, the same pad size and placement, and the same road and/or pipeline alignment.
81.

The final EIS fails to consider appropriate, environmentally protective

alternatives, including any alternative that would reduce the size of the development,eliminate infrastructure in designated special areas, or limit drilling only to the winterseason and eliminate gravel road construction.
82.

BLM asserts that it may not consider meaningfully different alternatives

because it lacks authority to limit ConocoPhillips’ development of its leases and that it
must allow ConocoPhillips to extract all of the oil and gas possible within leased areas.
This assertion is contrary to its obligations and authority under the Reserves Act torestrict activity as it determines necessary to protect surface resources and is an unlawfulbasis on which to justify failure to consider reasonable alternatives which would reduce
environmental impacts.
83.

Defendants’ decision to permit the Willow Project without considering

reasonable alternatives that would reduce adverse impacts and without describing thecomparative environmental impacts of those alternatives was arbitrary, capricious, andnot in accordance with law in violation of NEPA, 42 U.S.C. § 4332(2)(C), its
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implementing regulations, 40 C.F.R. §§ 1500.2, 1502.14, and the Administrative
Procedure Act (APA), 5 U.S.C. §§ 702, 706.
II.

Second Claim for Relief (NEPA)
84.

Plaintiffs incorporate by reference each of the allegations in paragraphs 1

through 83.
85.

NEPA requires that federal agencies prepare a “detailed statement”

regarding all “major Federal actions significantly affecting the quality of the humanenvironment.” 42 U.S.C. § 4332(2)(C). The agency must take a hard look at theenvironmental consequences of a proposed action, including by disclosing and analyzing
the significance of all direct, indirect, and cumulative environmental impacts of eachalternative. 40 C.F.R. §§ 1502.14, 1502.16. The agency’s analysis must include accuratescientific analysis, expert agency comments, and public scrutiny. 40 C.F.R. § 1500.1(b).
86.

When an agency considers a decision that will result in greenhouse gas

emissions, NEPA requires the agency to analyze and disclose the effects of theseemissions, including emissions from fossil fuels that will be burned because they will be
produced or delivered to market as a result of the agency’s decision.
87.

The final EIS fails to fully consider and accurately describe the magnitude

and significance of greenhouse gas emissions from the Willow Project.
88.

BLM improperly excluded foreign oil consumption from the market

simulation model it used to estimate the project’s net greenhouse gas emissions. The

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final EIS’s conclusion that the Willow Project will have only negligible net greenhousegas emissions because nearly all the oil produced by the Project would replace otherenergy sources is therefore unsupported and arbitrary. The conclusion is also arbitrary
because the final EIS fails to disclose the full analysis, key assumptions, and data used inruns of the market simulation tool, and it relies on the unsupported assumption of nearconstant demand.
89.

The final EIS fails to disclose and analyze the environmental effects of the

Project’s direct and indirect greenhouse gas emissions or the significance of thoseemissions. In doing so, BLM ignored available science and well-established methods forassessing the effects of the Project’s greenhouse gas emissions.
90.

The final EIS misleadingly compares estimated emissions from the Willow

Project with total U.S. emissions in 2017. This misrepresents the significance of the
Project’s emissions, and the comparison wrongly assumes constant domestic greenhousegas emissions over the 30-year life of the Project, failing to account for the likelihood that
U.S. emissions will fall significantly over that time.
91.

Defendants’ failure to accurately disclose and adequately analyze

greenhouse gas emissions from the Willow Project is arbitrary, capricious, and not inaccordance with law, in violation of NEPA, 42 U.S.C. § 4332(2)(C), its implementing
regulations, 40 C.F.R. §§ 1502.9(c), 1502.14, and the APA, 5 U.S.C. §§ 702, 706.

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III.

Third Claim for Relief (NEPA)
92.

Plaintiffs incorporate by reference each of the allegations in paragraphs 1

through 91.
93.

NEPA requires that federal agencies prepare a “detailed statement”

regarding all “major Federal actions significantly affecting the quality of the humanenvironment.” 42 U.S.C. § 4332(2)(C). NEPA requires an agency to take a hard look at
the environmental consequences of a proposed action, including by disclosing andanalyzing the significance of all direct, indirect, and cumulative environmental impacts ofeach alternative. 40 C.F.R. §§ 1502.14, 1502.16. The agency’s analysis must include
accurate scientific analysis, expert agency comments, and public scrutiny. 40 C.F.R. §1500.1(b).
94.

BLM did not provide objective data, and other scientific information

relevant to its decision, concerning the Willow Project’s potential impacts on caribou.
95.

The final EIS fails to adequately discuss the magnitude and nature ofpotential direct, indirect, and cumulative impacts to caribou from year-round exposure tooil and gas infrastructure and activity caused by the Willow Project.
96.

Defendants’ failure to accurately disclose and adequately analyze impacts

from the Willow Project is arbitrary, capricious, and not in accordance with law, in
violation of NEPA, 42 U.S.C. § 4332(2)(C), its implementing regulations, 40 C.F.R. §§1502.9(c), 1502.14, and the APA, 5 U.S.C. §§ 702, 706.

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IV.

Fourth Claim for Relief (ESA)
97.

Plaintiffs incorporate by reference each of the allegations in paragraphs 1

through 96.
98.

Polar bears are protected under both the ESA and the MMPA. While the

ESA and MMPA both generally prohibit take of protected species, they establish distinct
processes and standards to exempt an activity from those general prohibitions.
99.

Under Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), federal agencies

considering any action that may affect threatened or endangered species or their critical
habitat are required to engage in consultation with the Secretary of the Interior and/orCommerce—depending on the species involved—to ensure that the action is not likely tojeopardize the continued existence of the species or adversely modify its critical habitat.
100.

After consultation and before initiation of the agency action, the Secretarymust, pursuant to 16 U.S.C. § 1536(b)(3)(A), issue a biological opinion detailing how theaction affects the listed species and critical habitat, and determining whether the action is
likely to jeopardize the continued existence of the species or adversely modify its critical
habitat. To accomplish this, the agency and the Secretary must use the best scientific andcommercial information available. 16 U.S.C. § 1536(a)(2). Mitigation measures
supporting a no jeopardy or no adverse modification conclusion must be reasonably
specific, certain to occur, and capable of implementation.
101.

The Fish and Wildlife Service issued a biological opinion concluding that

the Willow Project was likely to adversely affect, but not jeopardize the continued
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existence of polar bears. The Service’s biological opinion also concluded that the Willow
Project would not adversely affect polar bear critical habitat.
102.

The Service’s no jeopardy and no adverse effects to polar bear critical

habitat determinations rely on compliance with take authorization and terms andconditions issued under the MMPA. These authorizations do not yet exist and therefore
do not constitute specific and binding plans necessary to support a no jeopardy finding.
The Service cannot refer to future, unstated authorizations under the MMPA to fulfill its
obligations under Section 7 of the ESA. Moreover, MMPA take authorizations andmitigation measures are geared toward ensuring an activity will have a negligible impact
on the species over the five-year period covered by the regulations, and do not consider
the cumulative impacts from other activities. 16 U.S.C. § 1371(a)(5)(A); 50 C.F.R. §18.27. Compliance with these short-term measures does not necessarily establish that a
species will not be jeopardized over the life of a much longer-term project as required
under Section 7 of the ESA.
103.

A federal agency and any permittee may take listed species only inaccordance with an incidental take statement issued with a biological opinion. “Take” isdefined broadly under the ESA to include harming, harassing, trapping, capturing,wounding, or killing a protected species either directly or by degrading its habitat
sufficiently to impair essential behavior patterns. 16 U.S.C. § 1532(19). The Secretary is
required under Section 7(b)(4) of the ESA to issue an incidental take statement with abiological opinion that specifies the amount and extent of incidental take authorized to
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the action agency. 16 U.S.C. §§ 1536(b)(4), 1536(o).
104.

The Service has not issued an incidental take statement for polar bears,

despite acknowledging that the Willow Project is likely to result in take of up to twobears. Instead, the Service asserts that it cannot authorize take because take has not beenauthorized yet under the MMPA, and that the future MMPA authorization will substitutefor authorization of take in the biological opinion. While the ESA and MMPA bothgenerally prohibit take of protected species, they establish distinct processes andstandards to exempt an activity from those general prohibitions. For this reason,compliance with the MMPA does not fulfill the Service’s consultation obligations under
Section 7 of the ESA. The Service has failed to meet the separate requirements ofSection 7, including issuing an incidental take statement with its biological opinion thatspecifies the extent of incidental take permitted over the life of the project. 16 U.S.C. §1536(b)(4).
105.

Additionally, the Service’s estimate that the Willow Project could result intake of up to two bears over the life of the project improperly excludes take other thanfrom direct wounding bears from hazing, thereby failing to account for take fromdisturbance and harassment that does not cause direct injury. Moreover, the Service
improperly concluded that death or serious injury of polar bears from den disturbance is
not reasonably certain to occur, and otherwise underestimated the extent of den
disturbance. The Service’s conclusions are not based on the best available science andfail to consider relevant factors, including scientific studies indicating that more than 60
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31percent of polar bears now den on land and that this proportion will likely increase overthe life of the Willow Project as sea ice continues to diminish. The Service also
underestimated the extent of den disturbance by overestimating the effectiveness of den
detection methods, including by assuming a much higher den detection rate using
Forward-Looking Infrared Imagery than field data indicate.
106.

Defendant Fish and Wildlife Service’s reliance on uncertain, future MMPA

authorizations and conditions to support its no jeopardy and not likely to adversely affectcritical habitat determinations, its failure to properly consider and analyze the extent ofden disturbance, and its failure to issue an incidental take statement for polar bears isarbitrary, capricious, and not in accordance with law, in violation of the ESA, its
implementing regulations, and the APA. 5 U.S.C. §§ 702, 706; 16 U.S.C. § 1536(a)(2),(b)(3)(A), (b)(4).
PRAYER FOR RELIEF
Plaintiffs respectfully request that the Court:
1.

Enter declaratory judgment that Defendants’ decision to approve

ConocoPhillips’ Willow Project and Defendant Fish and Wildlife Service’s biologicalopinion for the Project was arbitrary, capricious, and/or not in accordance with the law;2.

Vacate Defendants’ Record of Decision approving the Willow Project;

3.

Vacate Defendants’ biological opinion for the Willow Project;

4.

Enter appropriate injunctive relief to ensure that Defendants comply with

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the NEPA and the ESA and to prevent irreparable harm to Plaintiffs and to theenvironment until such compliance occurs;
5.

Award Plaintiffs the costs of this action, including reasonable attorney’s

fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and6.

Grant such other relief as this Court deems just and proper.

Respectfully submitted this 21st day of December, 2020.
s/ Jeremy Lieb
Jeremy C. Lieb (Alaska Bar No. 1810088)
EARTHJUSTICE
441 W 5th Avenue, Suite 301
Anchorage, AK 99501
T: 907.277.2500
E: jlieb@earthjustice.org
s/ Eric Jorgensen
Eric P. Jorgensen (Alaska Bar No. 8904010)
EARTHJUSTICE
325 Fourth Street
Juneau, AK 99801
T: 907.586.2751
E: ejorgensen@earthjustice.org
Attorneys for Plaintiffs Center for Biological
Diversity, Friends of the Earth, andGreenpeace, Inc.

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