1 

ALASKA WILDERNESS LEAGUE—AUDUBON ALASKA 

CENTER FOR BIOLOGICAL DIVERSITY—DEFENDERS OF WILDLIFE 

EARTHJUSTICE—GREENPEACE—NATIONAL WILDLIFE FEDERATION 

NATURAL RESOURCES DEFENSE COUNCIL 

NORTHERN ALASKA ENVIRONMENTAL CENTER—OCEAN CONSERVANCY 

OCEANA—PACIFIC ENVIRONMENT—RESISTING ENVIRONMENTAL 

DESTRUCTION ON INDIGENOUS LANDS (REDOIL)—SIERRA CLUB 

THE WILDERNESS SOCIETY—WORLD WILDLIFE FUND 

 November 23, 2011 

VIA FEDERAL ERULEMAKING PORTAL

Dr. James Kendall 

Regional Director 

BOEM Alaska OCS Region 

3801 Centerpoint Dr. 

Anchorage AK 99503-5820 

Re: National Environmental Policy Act Scoping for Shell Gulf of Mexico Inc.’s Revised 

Outer Continental Shelf Exploration Plan Chukchi Sea, Alaska

Dear Regional Director Kendall: 

On November 16, 2011, the Bureau of Ocean Energy Management (BOEM)1

 deemed Shell Gulf 

of Mexico Inc.’s (Shell) Revised Outer Continental Shelf Exploration Plan Chukchi Sea, Alaska 

(Chukchi Exploration Plan) submitted. BOEM simultaneously announced it was accepting 

comments on the issues that should be considered when the agency analyzes the effects of the 

proposed drilling pursuant to the National Environmental Policy Act (NEPA). The undersigned 

groups provide the following comments on the appropriate scope of the NEPA analysis and the 

need for careful scrutiny and full public participation through the preparation of an 

environmental impact statement (EIS). 

The Chukchi Exploration Plan is the second part of the largest Arctic Ocean drilling proposal 

ever contemplated in this country. The drilling proposal includes simultaneous drilling in the 

Chukchi and Beaufort seas over multiple years using separate drilling units and accompanying 

vessel and aircraft fleets. The potential effects of the plan differ from those Shell proposed 

previously, as Shell itself acknowledges. Further, since BOEM last approved a Shell proposal to 

 

1

 BOEM, as used in this comment letter, includes the Bureau of Ocean Energy Management Regulation 

and Enforcement and the Minerals Management Service, as appropriate. 
2 

drill in the Chukchi Sea, new information relevant to the decision about whether and how to 

approve drilling in the Arctic Ocean has emerged: the Deepwater Horizon spill occurred, 

followed by numerous investigations and reports, including reports by the National Commission 

on the BP Deepwater Horizon Oil Spill and Offshore Drilling (the Commission), and the 

Deepwater Horizon Joint Investigation Team (JIT); the U.S. Geological Survey (USGS) 

completed an assessment of the myriad data gaps that hinder full assessment of Arctic Ocean oil 

and gas activities; and, climate change has continued to have dramatic effects in the Arctic. It is 

clearer than ever before that the country is not prepared to respond to a spill, particularly one in 

Arctic waters. As the first offshore exploration drilling in the Chukchi in more than 20 years, the 

first in the Chukchi since the Deepwater Horizon disaster, and a dramatic expansion of prior 

Shell drilling plans, Shell’s proposed exploration drilling warrants careful scrutiny and public 

participation in an EIS process. 

If, however, BOEM decides first to prepare an environmental assessment to determine whether 

Shell’s operations threaten significant effects, the agency must provide an opportunity for the 

public to comment on the agency’s analysis itself—opportunities to provide scoping comments 

and comments on the Chukchi Exploration Plan do not suffice. 

Moreover, as these groups have stressed repeatedly, the review and approval of oil spill response 

plans also requires NEPA review. To date it is unclear whether the Bureau of Safety and 

Environmental Enforcement (BSEE) will conduct a NEPA review with regard to its review of 

Shell’s Chukchi Sea Regional Exploration Oil Discharge Prevention and Contingency Plan. The 

undersigned groups reiterate their prior comments that NEPA requires a review of the 

environmental consequences of, and alternatives to, Shell’s proposed spill response measures, 

techniques, and priorities. 

I. BOEM MUST PREPARE AN ENVIRONMENTAL IMPACT STATEMENT 

Pursuant to NEPA, “‘[a]n [environmental impact statement (EIS)] must be prepared if substantial 

questions are raised as to whether a project ... may cause significant degradation of some human 

environmental factor.’” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) 

(citation omitted, emphasis in original). Accordingly, “NEPA may require an environmental 

impact statement at each stage: leasing, exploration, and production and development.” Village 

of False Pass v. Watt, 733 F. 2d 605, 614 (9th Cir. 1984).2

 

To inform its decision regarding the Chukchi Exploration Plan, BOEM must prepare an EIS to 

analyze and disclose the effects of the proposed drilling. Shell’s program constitutes a massive 

industrial undertaking involving a 514-foot drill-ship, ice-breakers, other support ships, and 

aircraft traveling to and through the Arctic Ocean from July through October. These activities 

 

2

 OCSLA’s requirement that BOEM must approve or disapprove an exploration plan within thirty days of 

the date on which the plan is fully submitted, 43 U.S.C. § 1340(c)(1), does not modify NEPA’s EIS 

requirement. 43 U.S.C. § 1886 (noting that nothing in OCSLA amends, modifies, or repeals any 

provision of NEPA); Alaska Wilderness League v. Kempthorne, 548 F.3d 815, 829 (9th Cir. 2008), 

withdrawn 559 F.3d 916 (9th Cir., Mar. 6, 2008), dismissed as moot 571 F.3d 859 (9th Cir., June 30, 

2009) (“There is flexibility built into the regulatory scheme so that the agency can perform its full duties 

under NEPA.”). 
3 

would generate substantial noise in the water, increase vessel and aircraft traffic, create the risk 

of an oil spill, emit tons of pollutants into the air, and release a variety of wastes into the water. 

Pursuant to NEPA, “‘[a]n EIS must be prepared if substantial questions are raised as to whether a 

project ... may cause significant degradation of some human environmental factor.’”3

 Shell’s 

proposed exploration drilling activity threatens a number of significant effects, including effects 

to threatened and endangered species, effects from oil spills, and cumulative effects, and has the 

potential to harm subsistence activities that are of central cultural significance to Arctic coastal 

communities. NEPA requires these effects to be analyzed in an EIS. 

The Chukchi Exploration Plan also implicates a number of factors that the Council on 

Environmental Quality’s (CEQ) regulations require agencies to consider when determining 

whether an action may significantly affect the environment, thus warranting an EIS.4

 The project 

affects sensitive areas like Kasegaluk Lagoon and Ledyard Bay.5

 There is a high degree of 

controversy about the impacts of the project.6

 There are many unknowns regarding species in 

the Arctic Ocean and the potential effects of industrial activity in the region.7

 The project affects 

endangered species,8 and there is a potential for cumulatively significant impacts.9 Any “one of 

these factors may be sufficient to require preparation of an EIS in appropriate circumstances.”10 

The Commission’s recommendations also support preparation of an EIS. The Commission 

concluded that BOEM should prepare EISs when considering exploration plans in the Arctic and 

other frontier areas.11 The Chukchi Sea is a frontier area and, therefore, BOEM should follow 

the Commission’s recommendation and prepare an EIS to inform its decision regarding the 

Chukchi Exploration Plan. 

 

3 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (citation omitted, emphasis in 

original). 

4 See 40 C.F.R. § 1508.27(b). 

5 Id. § 1508.27(b)(3). 

6 Id. § 1508.27(b)(4). 

7 Id. § 1508.27(b)(5). 

8 Id. § 1508.27(b)(9). 

9 Id. § 1508.27(b)(7). 

10 Ocean Advocates v. United States Army Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2004). 

11 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Deep Water: The 

Gulf Oil Disaster and the Future of Offshore Drilling Report to the President at 262 (January 2011) 

(Commission Report), available at http://www.oilspillcommission.gov/final-report (stating “Interior 

should require . . . environmental impact statements for . . . specific lease sales before plans for 

exploration, development, and production are approved in areas with complex geology, in ultradeepwater, and in the Arctic and other frontier areas.”). A compact disc of the sources cited in this letter 

was provided separately to BOEM. BOEM should consider those sources in assessing the impacts of the 

Chukchi Exploration Plan and the sources should be included in the administrative record for the decision 

to approve, deny, or ask for modification of the plan. 
4 

The lack of basic scientific information about the Arctic Ocean further compels BOEM to 

prepare an EIS because missing information precludes the agency from assessing effects of the 

proposed action and designing alternatives that minimize those effects. In circumstances such as 

this—where missing data renders an agency unable to assess effects and thereby unable to 

reasonably support a conclusion that effects will not be significant—NEPA compels preparation 

of an EIS so that the agency can obtain information essential to the decision at hand.12

II. ISSUES BOEM MUST CONSIDER IN CONDUCTING ITS NEPA ANALYSIS 

Missing information is a major obstacle to proper management of offshore oil and gas activities 

in the Arctic Ocean. The USGS Report,13 the culmination of a year-long study by the USGS 

designed specifically to analyze data gaps and research needs for the Arctic Ocean in connection 

with oil and gas activities in the region, underscores this problem.14 It concluded that there are 

large information gaps about the Arctic Ocean, and these gaps are a “major constraint to a 

defensible science framework for critical Arctic decision making.”15 Gaps exist for nearly every 

species in the Arctic Ocean.16 Similar gaps exist in understanding of the effects of industrial oil 

activities on species.17 

 

12 See, e.g., Nat’l Parks & Conservation Ass’n v. Babbit, 241 F.3d 722, 731-32 (9th Cir. 2001); 40 C.F.R. 

§ 1502.22. 

13 Holland-Bartels, Leslie, and Pierce, Brenda, eds., 2011, An evaluation of the science needs to inform 

decisions on Outer Continental Shelf Energy Development in the Chukchi and Beaufort Seas, Alaska: 

U.S. Geological Survey Circular 1370 (USGS Report), available at http://pubs.usgs.gov/circ/1370/. 

14 In May 2010, Secretary Salazar cancelled the remaining Arctic Ocean leases in the 2007-2012 Five 

Year OCS Leasing Program, stating “that the country must take a cautious approach in the Arctic, and 

gather additional scientific information about resources, risks, and environmental sensitivities before 

making decisions about potential future lease sales in frontier areas.” Department of the Interior, Fact 

Sheet, A Comprehensive, Science-Based Offshore Energy Plan at 1 (May 27, 2010). He directed the 

USGS to conduct an evaluation of scientific needs in the region “[t]o better understand the resilience of 

Arctic coastal and marine ecosystems to potential OCS resource extraction activities . . . .” Id.

15 USGS Report at 151. 

16 USGS Report at 59 (“Trophic interactions of marine mammals were first studied 30 years ago. 

Although trophic structure generally is understood for most species (for example, general prey types, 

where they feed in the food web), seasonal, annual, and geographic variability in diet are poorly 

quantified and foraging areas are poorly described.”); id. (“Population enumeration is poor, even nonexistent, for many [marine mammal] species, and relatively good for a few. Without information on stock 

structure, however, which is poorly known for many species but fundamental to management, data are 

difficult to interpret even for species where abundance estimates exist.”); id. at 182 (for bowhead whales, 

“the understanding of essential spatial and temporal habitat needs . . . particularly the oceanographic 

parameters that most influence foraging, breeding, raising young, and migrating is not yet sufficient to 

confidently determine the times and places where whales might be most impacted by anthropogenic 

sounds”); id. at 184 (for beluga whales, the “present understanding of the essential spatial and temporal 
5 

The following comments address the types of issues BOEM must assess when conducting a 

NEPA analysis of the Chukchi Exploration Plan. 

A. Missing Information 

One of the lessons we have learned from the Gulf spill is that BOEM must conduct meaningful 

environmental review, including a full analysis of impacts and alternatives, at all stages of the 

OCSLA process, before offshore oil and gas activities occur.18 The BOEM and the Secretary of 

the Interior recently affirmed Lease Sale 193 pursuant to which Shell obtained the leases on 

which it proposes to drill in the Chukchi Sea. In affirming Lease Sale 193, BOEM concluded 

that, although the EIS for the lease sale identified literally hundreds of data gaps for the Chukchi 

Sea relevant to potentially significant effects, none of that information was essential to the lease 

sale stage. 19 In reaching that decision, BOEM conceded that the information it dismissed as not 

essential to the lease sale decision “may, in fact, be essential at a later stage of OCS Lands 

Act.”20 BOEM is now at that next stage—just over a month after it affirmed the lease sale—and 

it must now analyze what information is essential to the drilling decision. 

 

habitat needs . . . in the Arctic is limited and constrains the ability to confidently understand and 

efficiently mitigate potential anthropogenic noise impacts”); id. at 185 (same for gray whales); id. at 187 

(“Key information about the abundance, distribution, and vital aspects of ice seals is incomplete”); id. at 

69 (for fish “[i]nformation about status and trends, habitat requirements, relative distribution and 

abundance, and knowledge of life history stages . . . is incomplete and unavailable for large expanses of 

Arctic nearshore and shelf waters”); id. at 66 (for birds, “[s]tudies to examine seasonal dynamics of 

seabirds in the Chukchi Sea related to oceanography, climate, sea-ice dynamics, primary and secondary 

productivity and movements of birds from breeding colonies (for example, Cape Lisburne)” are 

necessary). 

17 As just one example relevant to the Chukchi Exploration Plan, the USGS Report confirms that 

information about how ice-breaker noise affects marine mammals is missing. It states that “[t]he paucity 

of data on icebreaker-generated noise is particularly critical because of sea ice’s importance as habitat for 

many marine mammals. It is difficult at present, if not impossible, to know how to define ‘takes’ from 

icebreaking or how to predict its impact on marine mammals.” USGS Report at 175. 

18 See, e.g., Nuka Research and Planning Group, LLC, Pearson Consulting LLC. 2010. Oil Spill 

Prevention and Response in the U.S. Arctic Ocean: Unexamined Risks, Unacceptable Consequences. 

Commissioned by the Pew Environment Group, U.S. Arctic Program, November 2010. Philadelphia, PA, 

USA (Pew Report), available at http://oceansnorth.org/arctic-oil-spill-report. 

19 See BOEM, Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 in the Chukchi Sea, Alaska, SEIS, 

OCS EIS/EA BOEMRE 2011-041 (SEIS) at App. A (Aug. 2011). Many of the undersigned groups have 

challenged this conclusion in the Alaska Federal District Court. See Native Vill. Of Point Hope v. 

Salazar, Case No. 1:08-cv-0004-RRB. 

20 SEIS, supra note 17, at App. A at A3. 
6 

The undersigned groups provided extensive comments to BOEM regarding the nature and scope 

of missing information during the Lease Sale 193 remand and SEIS process.21 Groups 

incorporate those comments herein and offer a brief summary of the type of information that 

must inform BOEM’s decision regarding the Chukchi Exploration Plan. 

BOEM lacks basic information about species that inhabit the region and their habitat needs over 

both time and space.22 Critical information is missing for nearly every species that inhabits the 

Chukchi Sea. Additionally, the agency lacks a basic understanding of the effects of oil and gas 

activities on species and habitats in the Chukchi Sea. BOEM needs information about the 

physical environment and the unique challenges it poses to offshore oil and gas drilling in the 

Arctic. 

BOEM must address the many areas of missing data about the basic ecology of the Chukchi Sea 

and the effects of oil and gas activities before it can make informed decisions regarding whether, 

where, when, and under what conditions to allow Shell’s proposed exploration drilling activities. 

The following nonexclusive list of questions illustrates the types of issues BOEM must address 

before making decisions regarding the Chukchi Exploration Plan. 

 Where will Pacific walrus be during summer and fall? In 2010, a number of walrus hauled 

out along the U.S. Chukchi coast, yet walrus also used the region around Hanna Shoal 

extensively, which is near Shell’s proposed drill sites.23 In 2007 and 2009, walrus hauled out 

on land in large numbers in northern Alaska. Prior to 2007, walrus spent summers on sea ice 

in the Chukchi Sea. Without scientifically projecting where walrus will be, BOEM cannot 

evaluate the environmental effects from Shell’s proposed drilling activity.24 

 

21 Letter from Alaska Wilderness League, et al. to BOEM Alaska OCS Regional Director (Nov. 30, 

2010); Letter from Alaska Wilderness League, et al. to BOEM Alaska OCS Regional Director (July 11, 

2011); Letter from Alaska Wilderness League, et al. to BOEM Alaska OCS Regional Director (Sept. 26, 

2011). 

22 See, e.g., Coastal Response Research Center, Natural Resources Damage Assessment (NRDA) in 

Arctic Waters: The Dialogue Begins at 1, University of New Hampshire, Durham, NH (2010); MBC 

Applied Environmental Sciences, Proceedings of a Workshop on Chukchi Sea Offshore Monitoring in 

Drilling Area, OCS Study MMS 2007-002 (Prepared by MBC Applied Environmental Sciences, Costa 

Mesa, CA for the U.S. Dept. of the Interior, Minerals Management Service, Alaska OCS Region) (MBC, 

2007). 

23 Although Hanna Shoal is thought to provide important habitat for a variety of Chukchi Sea species, 

much remains unknown about the area and its role in the ecosystem. Indeed. BOEM just recently 

announced a five-year study to obtain some of the critical missing data about the areas. See

http://boem.gov/BOEM-Newsroom/Press-Releases/2011/press09202011.aspx. BOEM should assess 

what information it must obtain about the Hanna Shoal before permitting potentially harmful oil and a gas 

exploration to move forward in the area. 

24 See e.g., USGS 2010. Walrus tracking and telemetry data acquired from walruses instrumented on the 

Alaska shores of the Chukchi Sea in September 2009. Radio-tagging field report. USGS Alaska Science 

Center, Walrus research project, available at 

http://alaska.usgs.gov/science/biology/walrus/pdfs/EC09_Radio_Tagging_Field_Report.pdf; C.V. Jay and 
7 

 Which areas near Shell’s proposed drill sites are crucial for various life stages of marine 

mammals? Satellite telemetry has shown that the movements of bowhead whales, beluga 

whales, walrus, spotted seals, ringed seals, bearded seals, and polar bears are more complex 

and variable than previously anticipated. Without an understanding of which areas are 

crucial and why, it is impossible to understand the project-specific effects of drilling. 

 What trajectories would spilled oil follow? The general atmospheric and circulation patterns 

of the Chukchi Sea have been mapped, but patterns and variability at the scale of an oil spill 

are not well known and are difficult to predict based on current understanding. In addition 

while general circulation patterns are known, there is relatively little understanding of the 

currents at the ocean’s surface where the majority of oil collects in a spill. Without that 

knowledge, the placement of response equipment and the ability to respond promptly are 

hindered, reducing the ability to contain and recover spilled oil. Furthermore, there is 

insufficient information or monitoring capacity to project fine scale trajectories of spilled oil 

in real time during a spill event, making it difficult or impossible to respond quickly and 

protect critical wildlife habitat areas, such as Kasegaluk Lagoon or Ledyard Bay. 

 How will oil behave in the Arctic environment? An assessment of the localized impacts of 

spilled oil in Arctic waters must take into account the behavior of oil in an environment with 

sea ice, the varying characteristics of sea ice throughout the year, Arctic weather conditions, 

the long-term fate of oil in cold water and the specific vulnerabilities of Arctic marine 

species and ecosystems. As the USGS cautioned explicitly: “Understanding what 

combination of [oil spill] countermeasures will likely be available under the temporal and 

spatial variability of the Arctic is essential to assess environmental risks from any potential 

spilled oil.”25 

BOEM must address these questions and others like them to inform its decisions regarding the 

Chukchi Plan. It cannot, as it improperly did at the lease sale stage, defer these questions until 

later. 

B. Oil Spills 

The Deepwater Horizon disaster underscored the risks inherent in exploration drilling in 

challenging conditions and the need for full NEPA review of oil spill risks at the exploration 

stage. The CEQ’s report setting out NEPA practice following the Deepwater Horizon spill 

cautioned that “[w]here . . . information regarding the effects of a catastrophic spill from 

exploratory drilling can be obtained without excessive costs, a Federal agency proposing to 

approve such activity is obliged to consider such information.”26 BOEM should be mindful of 

 

A.S. Fishbach, Pacific walrus response to Arctic sea ice losses. U.S. Geological Survey Fact Sheet 2008-

3041 (2008), available at http://pubs.usgs.gov/fs/2008/3041/. 

25 USGS Report at 130. 

26 Council on Environmental Quality, Report Regarding the Minerals Management Service’s National 

Environmental Policy Act Policies, Practices, Procedures as They Relate to Outer Continental Shelf Oil 
8 

the CEQ’s recommendations27 and conclude that Shell’s exploration drilling in the challenging 

conditions of the Chukchi Sea presents a foreseeable risk of a catastrophic oil spill that must be 

analyzed. 

1. BOEM must analyze the environmental effects of a significant oil spill 

caused by Shell’s exploration drilling. 

In connection with previous exploration plans submitted by Shell, BOEM concluded that oil 

spills larger than 1000 barrels were not reasonably foreseeable from exploration drilling for 

purposes of NEPA and declined to analyze impacts, mitigation, or alternatives relevant to such 

spills. The previous conclusions that exploration drilling presents no foreseeable risk of a 

catastrophic spill are untenable after the Deepwater Horizon spill, which occurred during 

exploration drilling. Indeed, the risk of well-control incidents is substantially higher during 

exploration drilling activities than it is during development, as BOEM has acknowledged in the 

Revised SEIS for Lease Sale 193.28 BOEM should, therefore, conduct a full site-specific 

analysis of oil spill impacts to inform its decision at the exploration stage. 

The agency’s Oil Spill Risk Analysis (OSRA) model estimates the risk of contact to coastlines 

and other sensitive areas from oil spills. This model, however, fails to capture important aspects 

of the actual behavior of oil spills. Spilled oil spreads. But OSRA treats an oil spill—even a 

very large oil spill—as a single point.29 It also assumes that an oil spill stops moving after it 

contacts land.30 BOEM must address the fact that the model understates the consequences of 

spreading oil, discontinuous coastal impacts, changes through time, and risks to sensitive 

resources from oil spills. 

NOAA’s Office of Response and Restoration oil spill modeling highlights several considerations 

BOEM should consider in its analysis. NOAA separately analyzes both nearshore and offshore 

trajectories, recognizing that spills in the varying environments behave differently.31 NOAA’s 

model also accounts for degrees of oil coverage, meaning that more heavily oiled areas are 

 

and Gas Exploration and Development at 27-28 (Aug. 16, 2010); accord id. at 26-27 (“[A]n agency must 

foresee those consequences which have a low probability of occurrence but could be potentially 

catastrophic based on credible scientific support.”). 

27 Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372 (1989). 

28 SEIS, Appendix B at B2-B3. 

29 MMS, Final EIS, Beaufort Sea Planning Area, Oil and Gas Lease Sales 186, 195, and 202 at IV-68 

(2003) (2003 Multi-Sale EIS), Appendix A at A-1-9. 

30 Id. at A-1-10. 

31 See, e.g., NOAA’s National Ocean Service / Office of Response and Restoration, Interpreting NOAA’s 

Trajectory Prediction Maps for the Deepwater Horizon Oil Spill at 3, available at

http://response.restoration.noaa.gov/book_shelf/2056_NOAATrajectoryMaps.pdf. 
9 

distinguishable from those with only minimal coverage.32 NOAA includes an “uncertainty 

boundary” to illustrate areas of uncertainty in the modeling.33 NOAA also includes variation 

through time, recognizing that spill behavior is a dynamic phenomenon. OSRA fails to account 

for any of these factors. 

BOEM also should employ more sophisticated modeling of currents to predict the trajectory of 

spilled oil. As the USGS has noted, the agency’s model of currents in the Chukchi Sea is less 

sophisticated than the one used in the Gulf of Mexico.34 Ongoing work has yielded 

improvements in modeling of currents in the Arctic seas, including some that take better account 

of coastal circulation, small-scale eddies, and land-fast ice.35 In the view of some scientists, 

those influences can be “crucial” to understanding coastal currents.36 BOEM should assess those 

more sophisticated models and account for the effects of coastal circulation, small-scale eddies, 

and changes in land-fast ice in its oil spill analysis of the Chukchi Exploration Plan. 

BOEM should analyze the real risk that a blown-out well from one of Shell’s wells could flow 

overwinter. In such an overwintering spill, oil could flow unchecked into the Chukchi Sea for 

many months. Even if the flow is stopped before freeze-up, the spilled oil that is left behind can 

travel considerable distances, either with the pack ice or carried by currents underneath it.37 By 

way of illustration, “[a] scenario developed in the mid-1980s for the Chukchi Sea estimated that 

spilled oil trapped in ice could move as much as 300 to 500 miles.”38 That oil could re-emerge 

directly in the path of bowhead whales during their spring migration, an event the National 

Marine Fisheries Service (NMFS) recognized “has the potential to impact a significant number 

of bowheads.”39 BOEM should disclose and address these effects in a project-specific analysis. 

 

32 Id. at 5. 

33 Id. at 6. 

34 USGS Report at 119 (comparing the Arctic model to the Princeton-Dynalysis Ocean Model). 

35 USGS Report at 120‒22; Wang, et al, Coastal Marine Institute Report: Sea Ice-Ocean-Oil Spill 

Modeling System (2010). 

36 Wang at 13. 

37 National Research Council, Committee on Oil in the Sea: Inputs, Fates, and Effects, Oil in the Sea III: 

Inputs, Fates, and Effects 104-05 (2003) (“Because the outer edge of the ice pack is very dynamic as is 

the first year ice upon breakup, oil ice can spread over a long distance (perhaps as much as 100 km), and 

as the ice melts to release the oil, oil is spread over a wide area.”). 

38 Pew Report at 97. 

39 NMFS, Biological Opinion for Oil and Gas Leasing and Exploration Activities in the U.S. Beaufort and 

Chukchi Seas, Alaska, and Authorization of Small Takes Under the Marine Mammal Protection Act at 99 

(July 2008) (2008 BiOp) 
10 

BOEM should address the weaknesses of the SINTEF Oil Weathering Model when making 

predictions about the behavior of oil in the water, including evaporation and dispersion.40

Weathering processes may be very different in Arctic conditions, and the SINTEF model has 

never been field-tested beyond five days, in any location.41 In addition, as the USGS noted in its 

recent survey of science gaps, the SINTEF model fails to incorporate currents, beaching, and the 

effect of slush ice on spreading and weathering.42 The presence of ice has been known to 

promote oil emulsification, which in turn slows biodegradation.43 The lack of knowledge of 

microbial communities in the Arctic further constrains adequate forecasting of biodegradation.44 

Finally, on August 29, BOEM released a report, “Evaluation of the Use of Hindcast Model Data 

for Oil Spill Risk Analysis (OSRA) in a Period of Rapidly Changing Conditions,” evaluating 

how climate change is affecting the environmental conditions used in modeling oil spill 

trajectories and analyses in the Arctic. The report recommends that the agency improve data 

coverage and modeling tools, and consider the Intergovernmental Panel on Climate Change 

scenarios in its analysis of oil spills. 45 BOEM should address these issues in its analysis of the 

Chukchi Exploration Plan. 

2. BOEM should analyze measures to mitigate against the threat of a 

significant oil spill caused by Shell’s exploration drilling. 

“[O]ne important ingredient of an EIS is the discussion of steps that can be taken to mitigate 

adverse environmental consequences.”46 “An essential component of a reasonably complete 

mitigation discussion is an assessment of whether the proposed mitigation measures can be 

effective.”47 BOEM must consider and analyze mitigation measures to inform its decision on the 

 

40 See generally 2003 Multi-Sale EIS, Appendix A, at A-1-5‒6. 

41 USGS Report at 116. 

42 Id. at 116-17. 

43 Id. at 117. 

44 Id. at 118. 

45 Evaluation of the Use of Hindcast Model Data for OSRA in a Period of Rapidly Changing Conditions 

Final Workshop Report, 2 (“As reported in the literature (McPhee et al., 2009; Overland et al., 2008), 

recent climate variability in the Arctic Ocean has caused significant changes in the circulation of sea ice 

and the upper layers of the Arctic Ocean. ... The majority of the circulation datasets used in the OSRA 

model do not account for these recent changes, thus there is a need to assess how forecast ice/ocean 

model results influence oil spill trajectories and associated risk assessments.”). 

46 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). 

47 S. Fork Band Council Of W. Shoshone of Nevada v. U.S. Dept. of Interior, 588 F.3d 718, 727 (9th Cir. 

2009). 
11 

Chukchi Exploration Plan.48 For example, BOEM must analyze the mitigation of oil spill risks 

through well-control. 

A major question in the aftermath of the Deepwater Horizon spill was why the failsafe 

mechanisms of the blowout preventer failed.49 At BOEM’s request, Det Norske Veritas 

completed an eight-month forensic examination of the Deepwater Horizon blowout preventer 

(BOP), which, like the one Shell proposes to use in the Chukchi,50 was manufactured by 

Cameron.51 The forensic examination determined that the force of the blowout bent the drill 

pipe, knocking it off-center and the blind shear rams, which are intended to cut through the drill 

pipe, were unable to sever the bent pipe.52 Far from unusual, “[e]vidence . . . suggests that it is 

unlikely that these problems are unique to the Deepwater Horizon event; for example, most 

BOPs used in drilling on the OCS are of similar design and are produced by a limited number of 

manufacturers.”53 In the words of Elmer P. Danenberger III, who oversaw BOEM’s drilling 

rules until he retired in December 2009: “They have to rethink the whole design [of the 

BOPs.]”54 BOEM should not approve exploration drilling in the challenging Chukchi Sea 

environment until it analyzes the potential for mitigating that risk in the Arctic, including 

determining for itself the extent to which Shell’s approach to blowout prevention mitigates oil 

spill risk. 

 

48 See, e.g., A. E. Perring, et al., Characteristics of black carbon aerosol from a surface oil burn during the 

Deepwater Horizon oil spill, Geophysical Research Letters, Vol. 38, L17809, 

doi:10.1029/2011GL048356 (2011) (finding that in situ burning soot plumes during the Deepwater 

Horizon reached much higher into the atmosphere than ship emissions normally rise, the average size of 

the soot particles was larger than normally emitted from other sources, and the soot particles were almost 

all black carbon); WWF-Canada Letter to Canadian National Energy Board (Sept. 7, 2011) (finding that 

oil spill clean-up will be impossible 44 to 84 per cent of time during the short Arctic drilling season and 

completely impossible the other seven to eight months of the year). 

49 Commission Report, Foreword at xi. 

50 Chukchi Exploration Plan, 1-13. 

51 Final Report for United States Department of the Interior Bureau of Ocean Energy Management, 

Regulation, and Enforcement, Forensic Examination of Deepwater Horizon Blowout Preventer, Vol. I 

Final Report 2 (March 2011) (BOP Final Report), available at

http://www.boemre.gov/pdfs/maps/DNVReportVolI.pdf. 

52 BOP Final Report at 5-6, 171-174 

53 Increased Safety Measures for Energy Development on the Outer Continental Shelf, 75 Fed. Reg. 

63,346, 63,350. 

54 B. Casselman and R. Gold, Device’s Design Flaw Let Oil Spill Freely, Wall Street Journal (Mar. 24, 

2011), available at 

http://online.wsj.com/article/SB10001424052748704050204576218653335935720.html. 
12 

Shoddy well-cement work was likely a major contributor to the Deepwater Horizon blowout. 

The Commission traced the failure of well cement to inadequate testing and lax regulations.55

The Commission also cited the need for automated alarms to serve as a failsafe mechanism in the 

event of human error; a lack of coordination among lessees and contractors; and overreliance on 

standards promulgated by the American Petroleum Institute, an advocate for industry.56 More 

generally, the Commission determined that the absence of integrated safety management 

practices by operators in the United States, “practices that most other countries . . . embraced 

decades [ago],” undermined drilling safety on the U.S. outer continental shelf.57 It noted that, 

compared to its international peers, the U.S. has both the highest rate of offshore oil and gas 

fatalities and the lowest reporting of injuries.58 

The Commission also determined that the former Minerals Management Service was “an agency 

systematically lacking the resources, technical training, or experience in petroleum engineering 

that is absolutely critical to ensuring [safety].”59 Its training was “abysmal,” its ethical culture 

“degenerate,” and its staff “demoralized.” Its salaries were too low to attract personnel 

with sufficient expertise to oversee industry.60 In response to these problems, the Commission 

recommended a “comprehensive overhaul” of regulatory policies and institutions.61 These 

regulatory oversight issues are essential for evaluating the potential for mitigating spill risk. 

BOEM should address them in an EIS before approving the Chukchi Exploration Plan. BOEM 

apparently has taken some steps to improve training of employees responsible for oversight of 

drilling operations. The agency should assess whether these measures will remedy the problem 

before commencement of Shell’s planned drilling. 

BOEM made several changes to the regulatory regime governing drilling safety since the 

Deepwater Horizon spill, including a rule on Increased Safety Measures for Energy 

Development, a Safety and Environmental Management Systems Rule, and two Notices to 

Lessees.62 Shell’s compliance with these regulatory changes should be considered in an EIS.63 

 

55 Commission Report at 100‒02, 106, 119. 

56 Id. at 121, 224, 225. 

57 Id. at 71. 

58 Id. at 251. 

59 Id. at 57. 

60 Id. at 76‒78; see also General Accountability Office, Additional Guidance Would Help Strengthen the 

Minerals Management Service’s Assessment of Environmental Impacts in the North Aleutian Basin at 24, 

26 (March 8, 2010), available at 

http://www.eenews.net/public/25/15077/features/documents/2010/04/07/document_pm_03.pdf. 

61 Commission Report at 79. 

62 75 Fed. Reg. 63346 (October 14, 2010); 75 Fed. Reg. 63610 (October 15, 2010); SEIS at 135‒36. 

63 See SEIS at 134‒36 (surveying these changes). 
13 

BOEM should assess whether the Chukchi Exploration Plan addresses the problems identified by 

the Commission and others and evaluate Shell’s readiness to mitigate oil spill risk. 

Finally, BOEM should consider the JIT’s conclusions and recommendations as part of its NEPA 

process. The JIT released its Final Report on September 14, 2011.64 In particular, BOEM 

should address the problems posed by lack of oversight of foreign-flagged vessels engaged in 

offshore drilling operations. BOEM should ensure that each vessel Shell will use in carrying out 

its exploration in the Chukchi Sea is subject to rigorous safety inspection and “suitable for the 

service in which it is to be employed” in challenging Arctic conditions.65

C. Air Pollution Effects 

The fleet of vessels and aircraft Shell plans to use for its Chukchi Sea operations will emit large 

amounts of air pollution that could harm human health and the environment and significantly 

degrade the Arctic’s air quality. Shell will emit these pollutants into a rapidly changing Arctic. 

NEPA requires BOEM to analyze the effects of these emissions. 

As an initial matter, BOEM has an obligation to consider both the emissions covered by Shell’s 

Clean Air Act permit66 and the emissions that are not covered by the permit. The air permit 

issued by EPA for the Discoverer in the Chukchi Sea does not address air emissions during 

certain periods of the Discoverer’s planned operations. EPA’s air analysis did not address, and 

the permit does not in any way limit, the following emissions: (1) emissions of the Discoverer

drillship and associated vessels before the drillship becomes an “OCS source”; (2) emissions of 

the Discoverer drillship and associated vessels after the drillship ceases to constitute an “OCS 

source”; and (3) during the period that the Discoverer constitutes an OCS source, emissions from 

associated vessels operating at a distance of more than 25 miles from the drillship. Additionally, 

EPA’s analysis in support of the permit did not meaningfully consider all kinds of air pollution 

 

64 Joint Cover Memo on Joint Investigation Team Report of Investigation (Sept. 14, 2010), available at

http://www.boemre.gov/pdfs/maps/JointMemo092011.pdf; United States Coast Guard, Report of 

Investigation into the Circumstances Surrounding the Explosion, Fire, Sinking and Loss of Eleven Crew 

Members Aboard the Mobile Offshore Drilling Unit Deepwater Horizon in the Gulf of Mexico, April 20-

22, 2010 (Sept. 14, 2011), available at http://www.scribd.com/doc/53653055/Report-of-Investigationinto-the-Circumstances-Surrounding-the-Explosion-Fire-Sinking-and-Loss-of-Eleven-Crew-MembersAboard-the-MOBILE-OFFSHORE-DRI; The Bureau of Ocean Energy Management, Regulation and 

Enforcement, Report Regarding the Causes of the April 20, 2010 Macondo Well Blowout (Sept. 14, 

2010), available at http://www.boemre.gov/pdfs/maps/DWHFINAL.pdf. 

65 46 U.S.C. § 3305. 

66 Alaska Wilderness League, et al Letter to Environmental Protection Agency Region 10, Proposed Outer 

Continental Shelf Prevention of Significant Deterioration Permit Number R10OCS/PSD-AK-09-01(Feb. 

17, 2010); Alaska Wilderness League, et al Letter to Environmental Protection Agency Region 10 

Revised Draft Air Permits for Shell’s Proposed Oil and Gas Exploration Drilling in the Beaufort Sea and 

Chukchi Sea, Alaska (Aug. 5, 2011). 
14 

emitted by the Discoverer and associated fleet. EPA, for example, did not address the impacts of 

black carbon pollution. 

Shell acknowledges it will emit up to 336 tons per year of NOX and up to 23 tons per year of 

PM2.5.

67 Both of these pollutants are harmful to human health. According to EPA, NOX/NO2

acts mainly as an irritant affecting the eyes, nose, throat, and respiratory tract.68 “Continued 

exposure to high NO2 levels can contribute to the development of acute or chronic bronchitis. 

Low level NO2 exposure may cause increased bronchial reactivity in some asthmatics, decreased 

lung function in patients with chronic obstructive pulmonary disease and increased risk of 

respiratory infections, especially in young children.”69 Exposure to elevated levels of particulate 

matter, especially fine particulate matter (PM2.5), can cause adverse health effects even in healthy 

individuals.70 However, people with heart or lung disease, children, and the elderly are most 

vulnerable.71 “Numerous scientific studies have linked particle pollution exposure to a variety of 

problems,” including development of chronic bronchitis, irregular heartbeat, nonfatal heart 

attacks, and premature death in people with heart or lung disease.72 Shell’s impact on PM2.5 air 

quality could be substantial, as PM2.5 levels could easily exceed the allowable increase under the 

new 24-hour PM2.5 increments and which are designed to keep clean air-sheds clean.73 Shell’s 

expected impacts upon coastal communities in the Arctic are particularly worrisome as these 

communities already exhibit markedly higher rates of pulmonary disease than the general 

population, making them especially vulnerable to morbidity and mortality from air pollution.74 

 

67 Chukchi Exploration Plan at 7-4. 

68 Health Effects Associated with Nitrogen Dioxide, available at http://www.epa.gov/iaq/no2.html#. 

69 Id.

70 EPA, Particulate Matter Health Effects, available at 

http://www.epa.gov/oar/particlepollution/health.html. 

71 Id.

72 Id.

73 Shell’s emissions could increase 24-hour PM2.5 concentrations 12.4 μg/m3 for the Chukchi Sea. EPA 

Region 10, Supplemental Statement of Basis for Proposed Prevention of Significant Deterioration 

Permits, Noble Discoverer Drillship, Shell Offshore Inc., Beaufort Sea Drilling Program, Permit No. 

R10OCS/PSD-AK-2010-01, Shell Gulf of Mexico Inc. Chukchi Sea Exploration Drilling Program, 

Permit No. R10OCS/PSD-AK-09-01 at 58 (July 6, 2011). This increase easily exceeds EPA’s newly 

enacted 24-hour PM2.5 increment of 9 μg/m3. 75 Fed. Reg. 64,864, 64,865 (Oct. 20, 2010). 

74 See Air Permit Supplemental Statement of Basis for Proposed Outer Continental Shelf Prevention of 

Significant Deterioration Permits Noble Discoverer Drillship, Shell Offshore Inc., Beaufort Sea 

Exploration Drilling Program, Permit No. R10OCS/PSD-AK-2010-01, Shell Gulf of Mexico Inc., 

Chukchi Sea Exploration Drilling Program, Permit No. R10OCS/PSD-AK-09-01 at 65 (July 6, 2011) (Air 

Permit Supplemental Statement of Basis). 
15 

“Airborne emissions from OCS activities could contribute incrementally to the risk of [chronic] 

health problems,”75 and BOEM must determine whether this risk exists here. The agency should 

carefully analyze potential effects, and may not simply rely on the Clean Air Act permitting 

process to prevent significant effects.76 Indeed, BOEM recognized this in the past, stating that 

[e]missions [that] cause an increase in pollutants over an area of at least a few tens of 

square kilometers that exceeds half the increase permitted under the Prevention of 

Significant Deterioration [(PSD)] criteria or the National Ambient Air Quality Standards 

[(NAAQS)] for nitrogen dioxide, sulfur dioxide, or particulate matter less than 10 

microns in diameter; or exceeds half the increase permitted under the [NAAQS] for 

carbon monoxide or ozone 

are significant for purposes of NEPA.77

Further, Shell will emit pollutants that drive regional and global warming. Dramatic warming is 

already occurring in the Arctic at almost twice the rate of the rest of the globe,78 resulting in 

visible changes to Alaska’s land, water, wildlife, and people.79 Perhaps the most dramatic 

change has been the disappearance of sea ice. “As a result of receding and thinning sea ice 

scientists have observed polar bears drowning and going hungry, walruses forced onto land, and 

sharp declines in numbers of ice-dependent sea birds.”80 The warming is also threatening 

indigenous cultures. Arctic animals and subsistence hunts play a central part in Alaska Native 

cultures. Today, subsistence hunters have to travel farther to access animals.81 Also, melting 

permafrost is accelerating coastal erosion and forcing communities to relocate.82

NEPA requires that BOEM analyze the potential effects of Shell’s emissions on regional and 

global warming. Shell will emit roughly 70,000 tons of greenhouse gases.83 Draft guidance 

from the Council on Environmental Quality identifies 25,000 tons of annual CO2 emissions as a 

 

75 BOEM, Draft Environmental Impact Statement for Beaufort and Chukchi Sea Planning Areas Oil and 

Gas Lease Sales 209, 212, 217 and 221 at J-12 (2008) (2008 Multi-Sale DEIS). 

76 S. Fork Band, 588 F.3d at 726 (“A non-NEPA document . . . cannot satisfy a federal agency's 

obligations under NEPA.”). 

77 2003 Multi-Sale EIS at IV-3-5. 

78 Impacts of a Warming Arctic: Arctic Climate Impact Assessment, Executive Summary at 10 (2004), 

available at http://amap.no/acia/. 

79 Anne E. Gore & Pamela A. Miller, Broken Promises: The Reality of Oil Development in America’s 

Arctic (2nd Ed.) at 40 (Sep. 2009). 

80 Id. at 41. 

81 Id.

82 Id. 

83 Air Permit Supplemental Statement of Basis at 29; see also Chukchi Exploration Plan, App. F at 3-4. 
16 

“useful indicator” of environmental significance when evaluating a project’s contribution to 

climate change for purposes of NEPA.84 BOEM must evaluate the impacts of Shell’s 

greenhouse gas emissions. 

Also, a substantial proportion of Shell’s PM2.5 emissions will be black carbon.85 Black carbon 

contributes to global and regional warming in multiple ways. In the atmosphere, it captures heat 

energy by absorbing sunlight, and after falling to earth, it accelerates melting by darkening snow 

and ice. Black carbon is generally regarded as the second most important contributor to Arctic 

warming after CO2. Emissions of black carbon from sources in the Arctic itself are particularly 

troubling because Arctic emissions can cause substantially more regional warming than similar 

amounts of black carbon emitted outside the Arctic.86 Thus, due to the importance of the 

location of Shell’s emissions, BOEM should analyze potential warming effects through a 

regional lens, in addition to a global one. 

D. Effects in the Context of Climate Change 

As described above, BOEM must analyze the effects of Shell’s operations in contributing to 

climate change. It must also analyze Shell’s operations in the context of climate change. BOEM 

must recognize that climate change is already dramatically affecting the Arctic Ocean, its 

species, and its coastal communities and factoring in those effects when assessing the effects of 

Shell’s operations. The recently published USGS report provides important information about 

climate change effects on the Arctic.87 CEQ’s draft climate change NEPA guidance instructs 

agencies to consider climate change as part of the affected environment and baseline condition 

against which it evaluates impacts.88 For instance, “[c]limate change can increase the 

vulnerability of a resource, ecosystem, or human community, causing a proposed action to result 

in consequences that are more damaging than prior experience with environmental impacts 

analysis might indicate.”89 Rapid climate change in the Arctic is stressing species, particularly 

ice-dependent marine mammals such as polar bears, seals, and walrus. BOEM must consider the 

 

84 Council on Environmental Quality, Memorandum for Heads of Federal Departments and Agencies re: 

Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions 

at 3 (February 18, 2010) (CEQ Climate Guidance). 

85 Venkatesh Rao & Joseph H. Somers, Black Carbon as a Short-Lived Climate Forcer: A Profile of 

Emission Sources and Co-Emitted Pollutants at 2, available at

http://www.epa.gov/ttnchie1/conference/ei19/session5/rao.pdf (“Some sources (such as diesel engines) 

can have 80% of the PM2.5 being black carbon . . . .”). 

86 D. Hirdman et al., Source identification of short-lived air pollutants in the Arctic using statistical 

analysis of measurement data and particle dispersion model output, 10 Atmos. Chem. Phys. 669 (2010). 

87 See USGS Report at Ch. 4. 

88 CEQ Climate Guidance at 6-7. 

89 Id. at 6. 
17 

heightened vulnerability of the Arctic ecosystem and those dependent upon it when assessing the 

potential effects of the Chukchi Exploration Plan. 

E. Water Pollution Effects 

BOEM must analyze the effects of Shell’s ocean water discharges. It cannot rely simply on the 

existence of the Arctic Ocean National Pollutant Discharge Elimination System general permit 

(the General Permit) to avoid conducting a NEPA analysis of ocean discharge effects.90 The 

general permit system only addresses Shell’s drilling vessel, the Discoverer, not Shell’s support 

vessels.91 BOEM cannot limit its analysis to the discharges from the Discoverer because it will 

be ignoring wastes and ocean discharges from all of Shell’s other vessels. 

The General Permit, moreover, has already expired, and in any case it does not contemplate the 

levels of discharges Shell’s operations would generate.92 For example, in issuing the General 

Permit, EPA stated that non-contact cooling water discharges would be less than 210,000 gallons 

per day,93 but Shell’s discharges will far exceed this amount.94 Cooling water discharges can 

pose threats to the marine environment by increasing water temperature. The damage 

temperature changes can cause to aquatic life is well documented. For aquatic organisms, water 

temperature regulates metabolism and affects the ability to survive and reproduce effectively.95 

For fish, temperature shifts can kill adults or fry, affect activity levels, or limit reproduction.96 

Further, organisms stressed by toxic materials are even less capable of tolerating temperature 

changes;97 because Shell’s operations will discharge other toxic pollutants,98 those operations 

 

90 S. Fork Band, 588 F.3d at 726. 

91 Chukchi Exploration Plan at 6-1 (“The projected wastes and discharges listed in these tables are 

applicable only to the Discoverer. Discharges from drilling support vessels will be pursuant to the 

International Convention for the Prevention of Pollution from Ships (Marine Pollution or MARPOL) 

standards, and requirements as well as the NPDES Vessel General Permit.”) 

92 EPA, Authorization to Discharge under the National Pollution Discharge Elimination System (NPDES) 

for Oil and Gas Exploration Facilities on the Outer Continental Shelf and Contiguous State Waters at 1 

(Jun. 26, 2006) (expired on June 26, 2011). 

93 EPA, Final Ocean Discharge Criteria Evaluation of the Arctic NPDES General Permit for Oil and Gas 

Exploration at 2-15 (Jan. 24, 2006) (ODCE). 

94 Chukchi Exploration Plan at 6-2, 6-4, 6-6, 6-8. 

95 EPA, Quality Criteria for Water 1986 at 276 (May 1, 1986). 

96 Id. at 279. 

97 Id. 

98 See, e.g., Chukchi Exploration Plan at 6-4 (indicating that Shell will discharge deck drainage); ODCE 

at 2-11 (stating that deck drainage “may include drilling fluids, ethylene glycol, lubricants, fuels, 

biocides, surfactants, detergents, corrosion inhibitors, cleaners, solvents, paint cleaners, bleach, 

dispersants, coagulants, and any other chemical used in the daily operations of the facility . . . .”) 
18 

potentially could expose Arctic organisms to a lethal combination of temperature changes and 

toxic pollution, particularly those organisms with limited mobility. Shell indicates that the 

volume of its deck drainage discharge would be dependent on rainfall.99 BOEM should examine 

the potential impacts of this discharge, because deck drainage, depending on the chemicals used 

in daily operations, can be toxic.100 

Finally, Shell plans to discharge large amounts of drilling muds and drilling cuttings. The drill 

cuttings discharge typically is contaminated with mercury and other toxins. These cuttings will 

be placed on the ocean floor and could be contaminated with significant amounts of pollutants. 

Additionally, the area where the sediments are piled will be subject to benthic smothering. 

Water discharge issues are a major concern of residents of the Arctic coast, who depend on 

wildlife harvested from the sea for their cultural and nutritional subsistence. BOEM must 

analyze and disclose the potential impacts of these discharges from Shell’s entire fleet. 

F. Marine Mammals 

BOEM must analyze and disclose the potentially significant effects that noise and disturbance 

from Shell’s drilling activities will have on marine mammals. As an initial matter, there are 

several cross-cutting issues that are relevant to each of the species discussed below. 

As highlighted above, baseline information for marine mammals in the Arctic is limited, which 

severely compromises BOEM’s ability to assess the environmental effects of Shell’s drilling 

operations.101 Second, BOEM must adequately consider the project specific effects of a 

significant oil spill. As discussed supra, BOEM’s existing analysis is flawed in a number of 

respects that could dramatically affect conclusions about the degree to which different Arctic 

species would be affected by a large-scale spill. Third, BOEM must consider the fact that Shell’s 

various exploration activities (including, seismic surveying, ice management, drilling, and vessel 

movements) may produce noise simultaneously and in close proximity, potentially contributing 

to larger disturbance zones and adverse synergistic effects. 

1. Effects on Bowhead Whales 

Shell’s prospects are located within the bowhead whale migratory corridor and the drilling will 

substantially overlap in time with the whales’ fall westward migration across the Chukchi Sea. 

 

99 Chukchi Exploration Plan at 6-2, 6-4, 6-6, 6-8. 

100 ODCE at 2-11. 

101 USGS Report at 59 (listing information gaps and research needs for marine mammals); see, e.g., id. at 

182 (for bowhead whales, “the understanding of essential spatial and temporal habitat needs . . . 

particularly the oceanographic parameters that most influence foraging, breeding, raising young, and 

migrating is not yet sufficient to confidently determine the times and places where whales might be most 

impacted by anthropogenic sounds”); id. at 185 (for gray whales, more information is needed for spatial 

and temporal habitat needs, particularly for the summer months). 
19 

During migration, bowhead whales are known to react to levels of sound of 120 dB.102 Shell 

concludes that impacts to the bowhead population will be minor in part because it estimates that 

few bowheads will be present near the prospects when Shell is drilling.103 The methodology 

Shell used to determine the number of bowhead whales its operations will potentially harass, 

however, does not withstand scrutiny. BOEM should not adopt Shell’s approach. 

Shell uses a strict “density” measure to evaluate the effects of the drilling activities on bowheads 

in the Chukchi Sea – a method that has been recognized to be inappropriate for determining the 

number of bowhead whales present in an area during migration.104 As Shell succinctly stated in 

the incidental harassment authorization application for its Beaufort Sea exploration drilling, 

when “most bowhead whales will be migrating . . . so it is less accurate to assume that the 

number of individuals present in the area from one day to the next will be static.”105 The same 

holds true for the Chukchi Sea prospects where Shell plans to drill – bowheads will be migrating 

through that area during the time of the proposed operation.106 It is similarly inaccurate to 

assume that the same bowhead whales will be present near Shell’s operations from one day to the 

next. 

When bowhead whales are migrating through an area, they are “exposed to noise as they 

approach the noise source. Rather than estimating takes based on density in the ensonified area, 

it is more appropriate to draw a line across the ensonified area and estimate the number of 

individuals that would be expected to cross that line” during the activity. Using a density 

calculation artificially reduces the number of bowheads that will likely be affected. BOEM must 

consider the number of bowheads that will encounter Shell’s operations using a method that 

accounts for the fact that these animals will be constantly moving through the Chukchi Sea. 

Although the particular methodology may be a matter of discretion, the need to address the issue 

in some fashion is not. 

BOEM must also consider the potential effects of ice management. Shell’s documentation may 

underestimate the amount of ice management that could occur in connection with its drilling and 

thus underestimate the level of disturbance. Shell assumes that its ice breakers would be actively 

 

102 Southall, et al., Marine Mammal Noise Exposure Criteria: Initial Scientific Recommendations, 33(4) 

Aquat. Mamm. 411 at 458 (2007) (Southall 2007). Migrating bowheads may respond at even lower 

thresholds: the recent USGS report notes reactions to drillship noise at 110-115 dB. USGS Report at 181. 

See also National Research Council, Ocean Noise and Marine Mammals at 92 (2003) (NRC Report). 

Shell’s vertical seismic profiling will also have effects on migrating bowheads well beyond the 160-dB 

threshold assumed by Shell. See Southall 2007 at 452. 

103 See, e.g., Chukchi Exploration Plan, App. F Environmental Impact Analysis (Chukchi EIA) at 4-98. 

104 See Taking Marine Mammals Incidental to Beaufort and Chukchi Seismic Surveys, 73 Fed. Reg. 

66,106, 66,115 (Nov. 6, 2008). 

105 Beaufort IHA App. at 31, 34. 

106 See Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 in the Chukchi Sea, Alaska, Final 

Environmental Impact Statement, OCS EIS/EA MMS 2007-026 (LS 193 FEIS) at III-51-52 (May 2007); 

Chukchi EIA at 3-99 (“The EP lease blocks in Shell[’s] Burger Prospect are located within the 

generalized fall migration route.”). 
20 

managing ice no more than 38 percent of the drilling season, concentrated in the early summer 

and fall.107 Shell states that this figure is based on recent ice conditions, but the data are from the 

Sivulliq drill-site in the Beaufort Sea, hundreds of miles from Shell’s proposed Chukchi Sea 

drilling.108 In its Clean Air Act application to the Environmental Protection Agency, Shell states 

only that the “Chukchi Sea is expected to have less ice” but provides no basis for its assertion.109 

BOEM must analyze the impacts of Shell’s operations using relevant ice data. 

Even assuming that the 38 percent figure is correct, there may be significant effects on bowhead 

whales. The fall migration through the Chukchi Sea can last late into October, meaning that any 

ice management during the fall could affect a large number of whales.110 Further, BOEM cannot 

assume that ice management will be confined to the beginning and end of Shell’s operations. As 

Shell recognizes, “ice floe frequency and intensity are unpredictable and could range from no ice 

to ice densities that exceed ice-management capabilities[.]”111 

Including ice management could greatly increase the estimated number of potentially harassed 

bowhead whales. As with drilling noise, ice management noise can result in disturbance at very 

low levels. Shell indicates that it prefers to manage ice by “pushing” floes, but concedes that ice 

breaking would be conducted if there is a safety risk.112 BOEM previously cautioned that the 

noise and disturbance associated with ice management is a major concern, and any NEPA 

analysis must consider the operations of Shell’s two ice management vessels breaking as well as 

pushing ice.113 Even when vessels are limited to pushing ice they will often operate at 

“continuous” high speed involving the “highest continuous power production.”114 This could 

 

107 See Chukchi EIA at 2-24. 

108 Outer Continental Shelf Pre-Construction Air Permit Application Revised, Frontier Discoverer

Chukchi Sea Exploration Drilling Program at 15 (Feb. 23, 2009) (Discoverer Air. App.). 

109 Id. 

110 Chukchi EIA at 3-99 (noting that the “main part” of the migration in 2006 extended through October 

25). 

111 Chukchi Exploration Plan, App. C (Chukchi IHA) at 11. 

112 Chukchi EIA at 2-23. In a prior exploration plan, Shell candidly noted that it is “likely that during the 

period covered by this EP that a well may be started, temporarily abandoned due to ice conditions and 

finished later in the same drilling season.” Shell Oil, Exploration Plan 2010 Exploration Drilling Program 

Posey Blocks 6713, 6714, 6763, 6764, and 6912 Karo Blocks 6864 and 7007 Burger, Crackerjack, and 

SW Shoebill Prospects OCS Lease Sale 193 Chukchi Sea, Alaska at 2 (July 2009). 

113 See MMS, Final EIS, Beaufort Sea Planning Area, Oil and Gas Lease Sales 186, 195, and 202 at IV-68 

(2003) (2003 Multi-Sale EIS) (noting that drillship noise “frequently may be masked by icebreaker noise, 

which often is louder”); id. at IV-69 (the effects of icebreaker noise on migrating bowheads, especially 

mothers and calves, “could be biologically significant”); Chukchi EIA at 4-56 (noting that migrating 

bowheads may avoid icebreaking at a distance of 25 kilometers). Of course, BOEM must adequately 

examine the potential for ice management activities to disrupt the behavior of other marine life in the 

Arctic as well. 

114 Discoverer Air App. at 16 (noting that “first-year ice is most common and is most efficiently broken at 

continuous high speed which involves the highest continuous power production” (footnote omitted)); 
21 

significantly expand the sonic footprint of the project whenever drilling and ice management 

take place simultaneously, exposing a larger number of whales to potentially disturbing 

anthropogenic noise.115 

 

Finally, the effect of Shell’s proposed drilling on bowhead cows and calves is critical to any 

assessment. Bowhead whales are a long-lived, late-maturing species with relatively low 

reproductive rates and extremely high maternal investment in their young. As BOEM 

recognized, any potential impacts on females and calves merit “special consideration.”116 The 

ability of the female bowhead whale to provide adequate care to her offspring during its period 

of dependency is “critical to the continued recovery and the long-term viability of the 

population.”117 Bowhead cow-calf pairs are thought to be more sensitive to noise and, therefore, 

more likely to respond to disturbances at lower thresholds.118 As a consequence, NMFS has in 

the past required a 120 dB “safety zone” for multiple migrating cow-calf pairs in order to avoid 

significant effects when issuing harassment authorizations pursuant to the Marine Mammal 

Protection Act.119 A similar level of protection should be considered here to avoid potentially 

serious effects. 

2. Effects on Gray Whales 

Shell proposes to drill its wells on the Burger prospect near the Hanna Shoal, historically 

considered important gray whale feeding habitat.120 Shell’s operation may block the access of 

gray whales to this habitat or cause them to abandon their feeding.121 Such consequences 

 

Chukchi EIA at 2-24 (Table 2.9-6) (estimating area exposed to 120 dB from ice management); 2003 

Multi-Sale EIS at IV-68 (noting a study predicting “that roughly half of the bowhead whales would show 

avoidance response to an icebreaker pushing ice at a range of 4.6-20 kilometers . . . when the sound to 

noise ratio is 30 decibels”). Nevertheless, Shell elsewhere maintains that ice management will take place 

using “lower power and therefore slower propeller rotation[.]” Chukchi IHA App. at 12. 

115 Shell intends to include a “minimum” of 8 support vessels, including the primary and secondary ice 

breakers, adding to the overall noise and disturbance both at the drilling site and during transit across the 

Chukchi Sea. There is also the risk that a vessel could collide with a whale, resulting in serious injury or 

death. 

116 Minerals Management Service, Final Programmatic Environmental Assessment, Arctic Outer 

Continental Shelf Seismic Surveys – 2006 at 110 (June 2006). 

117 Id. 

118 See 2008 BiOp at 86 (noting that in other species “females with young are more responsive to noise 

and human disturbance than other segments of the population”); BOEM, Final Programmatic 

Environmental Assessment, Arctic Outer Continental Shelf Seismic Surveys – 2006 at 111 (June 2006) 

(noting heightened response of female baleen whales accompanied by calves). 

119 See, e.g., 71 Fed. Reg. 66,912, 66,913 (Nov. 17, 2006) (stating that in 2006 “the 120-dB mitigation 

measure was essential to allow NMFS to conclude with a FONSI”). 

120 Chukchi EIA at 3-80. 

121 NRC Report at 14 (noting that gray whales have been shown to abandon habitat in response to 

anthropogenic noise). 
22 

increase the risk that gray whales may lose essential energy acquisition opportunities and as a 

result, may cause harm to the population. Shell recognizes that feeding disruptions could result 

from ice management close to Hanna Shoal and that the ice that “often” accumulates between the 

Burger drillsites and the Shoal can require active ice management.122 

Gray whale numbers have declined since Endangered Species Act (ESA) protections were 

removed in 1994, and there is speculation that the population is responding to environmental 

limitations.123 BOEM must conduct a thorough analysis of the potential effects of Shell’s 

operations on gray whales to satisfy NEPA. 

 

3. Effects on Polar Bears 

BOEM must consider the effects of Shell’s operations on polar bears, particularly in the context 

of a rapidly warming environment. In 2008, the Fish and Wildlife Service (FWS) listed the polar 

bear as threatened under the ESA and subsequently designated critical habitat.124 The declining 

health and size of the polar bear population is in large part a result of the disappearance of seaice due to climate change.125 Polar bears increasingly are forced to abandon the pack ice as it 

retreats over deeper water, raising the likelihood that polar bears may be swimming in the open 

water during Shell’s operations.126 

BOEM must consider how disturbances like oil spills, ice management, and overflights would 

affect the polar bear population. A large oil spill would result in serious and long-lasting harm to 

the species, and even a small spill could have adverse effects. Ice breaking activities can pose a 

direct risk to polar bears, and Shell’s ice breakers are predicted to be most active during the 

summer when many polar bears will be present on the sea-ice.127 Ice management can 

destabilize ice or cause polar bears to abandon an ice floe.128 Ice breaking, aircraft flights, and 

other activities could affect the availability of polar bear prey: “Studies have shown that seals 

can be displaced from certain areas, such as pupping lairs or haulouts, and may abandon 

breathing holes near [i]ndustry activity.”129 Overflights may affect polar bear denning as well. 

Female polar bears will begin denning toward the end of Shell’s operation, and there is evidence 

that denning polar bears are vulnerable to even relatively minor disturbances.130 Due to the 

 

122 Chukchi EIA at 4-57. NMFS has found that ice management / ice breaking could occur as far as 19 

kilometers from the drillship. 76 Fed. Reg. 69,958, 69,962 (Nov. 9, 2011). Hanna Shoal is located just 

40 kilometers from the proposed drill sites. Id. at 69,983. 

123 LS 193 EIS III-79. 

124 73 Fed. Reg. 28,212 (May 15, 2008); 75 Fed. Reg. 76,086 (Dec. 7, 2010). 

125 73 Fed. Reg. at 28,223. 

126 Id. at 28,275; id. at 28,257-58. 

127 Chukchi EIA at 2-24 (noting “weighted average” that emphasizes early summer ice management). 

128 73 Fed. Reg. 33,212, 33,227 (June 11, 2008). 

129 Id. at 33,229. 

130 Chukchi EIA at 3-94; 73 Fed. Reg. at 33,228. 
23 

importance of denning to the life cycle of polar bears, particular attention should be given to 

preventing the disturbance of this essential activity. 

BOEM must consider these effects in the context of climate change and how the resulting 

decreases in habitat and prey availability will have on the health of the population. Alreadystressed bears may be more susceptible to suffering significant effects from disturbances 

associated with Shell’s operations. 

4. Effects on Seals 

BOEM must analyze the potential effects of all of Shell’s operations on ribbon, ringed, spotted, 

and bearded seals and must do so considering the distinct habitats and life histories for each. 

BOEM should apply a cautionary approach given the recognition that “[t]here is a basic lack of 

information about ice seals.”131 

An additional complicating factor is a recent outbreak of skin lesions and sores among ringed 

seals, accompanied by higher than normal levels of mortality.132 To date, most reports have 

come from the Chukchi Sea area, from Barrow to Wainwright, and the weakened state of the 

population should be considered as part of BOEM’s analysis.133 

Even if all the seal populations were robust, allowing additional offshore industrial activity risks 

harm. Low-frequency noise can mask biologically significant sounds, and Shell’s operations – 

including drilling, ice breaking, vessel movements, and low-flying aircraft – could also disrupt 

normal behavior, causing seals not only to flee preferred habitat but to require the expenditure of 

extra energy. 134 BOEM also should consider whether Shell’s ice management efforts might 

injure seals during molt or when resting on pack ice.135

5. Effects on Walrus 

BOEM must fully analyze the potential effects of all of Shell’s operations on the Pacific walrus. 

“Pacific walruses range throughout the shallow continental shelf waters of the ... Chukchi Sea[], 

where their distribution is linked closely with the seasonal ... pack ice.”136 They are a migratory 

species, following the advancing ice south in the fall and back north as the ice recedes in 

 

131 USGS Report at 187 (“Key information about the abundance, distribution, and vital aspects of ice seals 

is incomplete”). Portions of the ringed and bearded seal populations have also been proposed for listing 

pursuant to the ESA. See 75 Fed. Reg. 77,476 (Dec. 10, 2010) (ringed); 75 Fed. Reg. 77,496 (Dec. 10, 

2010) (bearded). The ribbon seal is considered a ‘‘species of concern’’ under the ESA. 

132 NOAA, 2011 Arctic Seal Disease Outbreak Fact Sheet (updated Nov. 10, 2011) (Disease Fact Sheet), 

available at http://www.fakr.noaa.gov/protectedresources/seals/ice/diseased/factsheet.pdf 

133 Id. 

134 2008 Multi-Sale DEIS at 4-185-86. 

135 Id. at 4-181 

136 LS 193 FEIS III-74. 
24 

spring.137 During the summer months, “the majority of the subadults, females, and calves move 

into the Chukchi Sea.”138 Walrus prefer to forage in waters less than 80 meters to access the 

bottom habitat of the Chukchi Sea.139 Shell’s Burger drilling sites are found at a depth of 

approximately 45 meters, and as acknowledged by Shell, occurrences of walrus around the 

Burger prospect “are regular and common.”140 Indeed, on one day in 2008, approximately 900 

walrus were sighted in the area of the proposed drilling.141 

Additionally, the drill sites are close to Hanna Shoal, which provides important habitat for walrus 

and other benthic feeders because of its productive shallow bottom habitat.142 Hanna Shoal may 

also provide a source of ice in an increasingly ice-free Arctic. Walrus are associated with pack 

ice, and as noted in the bowhead whale discussion, supra, Shell’s assumptions about ice 

management activities require additional scrutiny by BOEM.143 Walrus are known to react to 

icebreaking noise as far as 20 to 25 kilometers away, and Shell acknowledges that the waters 

between Hanna Shoal and the Burger Prospect “may be an area where active ice management is 

required.”144 The effects of ice management could be especially severe were a large number of 

walrus located on a smaller floe, a not uncommon response to the rapid retreat of ice in recent 

years.145 Walrus also congregate onshore, and due to the tendency of walrus to collect in large 

 

137 Id. 

138 Id. 

139 Id. 

140 Chukchi EIA at 3-108. See also Brueggeman, Marine Mammal Surveys at the Klondike and Burger 

Survey Areas in the Chukchi Sea During the 2008 Open Water Season (September 2009) (Brueggeman) 

at 3 (noting survey of benthic communities around Burger sites); Chukchi EIA at 3-27 (noting the 

common benthic species around the Burger Prospect). 

141 See Brueggeman at 19; Chukchi EIA at 4-103 (noting that “several thousand” walrus could be in the 

project area depending on the time of year and amount of ice); id. at 4-107 (noting that if large rafts of 

walrus are disturbed it could affect 1,000 or more animals). 

142 Chukchi EIA at 4-107. 

143 LS 193 FEIS at III-74. 

144 See, e.g., LS 193 FEIS IV-153 (walrus reactions); Chukchi EIA at 4-107 (Shell ice management); id. at 

3-70 (noting that “the presence of sea ice in the prospect area has varied greatly in past years”). As noted, 

ice management / ice breaking could occur as far as 19 kilometers from the drillship and Hanna Shoal is 

located just 40 kilometers away. 76 Fed. Reg. at 69,962, 69,983. 

145 Chukchi EIA at 4-107. 
25 

groups, “they are particularly vulnerable to disturbance events.”146 Walrus have come ashore in 

large numbers in 2007, 2009, and 2010.147 

There is evidence indicating that the Pacific walrus population has declined, although much 

remains unknown about the population.148 On February 8, 2011, the FWS announced that listing 

the Pacific walrus under the ESA was warranted but precluded due to other higher priority listing 

actions.149 Reports indicate that walrus have also been found to be suffering and dying from the 

same mysterious ailment that is currently plaguing ringed seals.150 Disturbance caused by 

industrial activities in walrus habitat, even at considerable distance, will further stress walrus. 

The effects on walrus from prolonged disturbance include displacement from preferred feeding 

areas, increased stress and energy expenditures, and impaired thermoregulation in the young 

when forced to spend too much time in the water.151 Females with dependent young are 

considered the “least tolerant” of disturbances, and potential effects on that segment of the 

population must be thoroughly considered.152 

6. Effects on Beluga Whales 

BOEM must analyze the potential effects of Shell’s operations on beluga whales. Belugas can 

have strong reactions to low levels of anthropogenic noise. As the USGS Report observes, 

beluga reactions to icebreakers “are among the most cited and dramatic in the literature.”153 

Responses have been detected greater than 80 kilometers away.154 Like walrus, beluga whales 

are closely associated the ice edge and thus would be more likely to be in the vicinity of Shell’s 

drilling operations if ice encroaches.155 BOEM must also consider potential effects on beluga 

 

146 LS 193 FEIS at IV-153; see also id. at IV-147 (“Behavioral reaction to noise or other disturbance 

stimuli also can cause animals to flee a land or ice haulout en masse, potentially causing physical injuries 

or mortalities.”). 

147 USGS Report at 46. 

148 Chukchi EIA at 3-108 (noting that the population is “more than likely” declining); USGS Report at 57 

(noting the multiple information gaps related to walrus). 

149 76 Fed. Reg. 7,634, 7,634 (Feb. 8, 2011) 

150 Disease Fact Sheet at 2. 

151 LS 193 FEIS at IV-148. 

152 Id. at IV-153. 

153 USGS Report at 183. 

154 Id. 

155 See 2008 Multi-Sale DEIS at 3-130 – 3-132. Moreover, fall migrating belugas can be found in pods of 

500 or more individuals, increasing the likelihood of large-scale disturbances. Chukchi EIA at 3-76. 
26 

mothers and calves and evaluate whether enough is known about beluga habitat use to 

confidently predict the degree of harm from Shell’s multi-year drilling operation.156 

Furthermore, belugas whales—like bowhead whales—migrate through the Chukchi Sea during 

the fall. Shell has, however, used a simple density method of estimating the number of animals 

that will be potentially exposed to elevated noise levels.157 As discussed in the context of 

bowhead whales, simply looking at density and the area exposed to noise can underestimate the 

number of affected marine mammals because the method does not consider the animals’ natural 

movements or the time period over which the activity occurs. This flaw is magnified when the 

population is migrating through the area and is not an appropriate approach for estimating the 

number of beluga whales potentially subject to harassment. 

7. Effects on Harbor Porpoise 

BOEM must analyze the potential effects of all of Shell’s operations on harbor porpoises. 

Harbor porpoises have been shown to be exceptionally sensitive to noise, and received levels of 

90-110 dB can cause behavioral changes, including exclusion from an area.158 There is evidence 

that short-term exclusion may actually result from levels as low as 70 dB.159 BOEM must also 

consider the fact that the unofficial Bering Sea “stock” is based on “arbitrarily set geographic 

boundaries.”160 A smaller stock would be more vulnerable to harm.161 

G. Effects on Other Species 

Shell’s operations may encounter a number of bird species, including loons, gulls, and sea ducks, 

like the threatened spectacled eider and Steller’s eider.162 A major oil spill would have a 

devastating effect on bird populations. 

 

156 USGS Report at 184 (for beluga whales, the “present understanding of the essential spatial and 

temporal habitat needs . . . in the Arctic is limited and constrains the ability to confidently understand and 

efficiently mitigate potential anthropogenic noise impacts”). 

157 Chukchi IHA App. at 27-28. 

158 See Ex. 1. 

159 Id. 

160 LS 193 FEIS at III-78 – III-79. 

161 See Ex. 1. For seismic surveying effects, any assessment of disturbance to harbor porpoise must 

consider the fact that NMFS uses 120 dB as the appropriate threshold when authorizing marine mammal 

take for Navy sonar activities. 73 Fed. Reg. 60,754, 60,806 (Oct. 14, 2008) (noting harbor porpoise data 

suggesting “a very low threshold level of response [to a variety of sound sources] for both captive and 

wild animals”). 

162 U.S. Fish and Wildlife Service, Spectacled Eider Fact Sheet 

http://alaska.fws.gov/media/SpecEider_FactSheet.htm; U.S. Fish and Wildlife Service, Steller’s Eider 

Fact Sheet http://alaska.fws.gov/media/StellEider_FactSheet.htm. 
27 

Physical contact with oil destroys the insulation value . . . feathers, causing birds . . . to 

die of hypothermia. In cold climates, an inch diameter oil drop can be enough to kill a 

bird. Heavily oiled birds can loose their ability to fly and their buoyancy, causing 

drowning. In efforts to clean themselves, birds . . . ingest and inhale oil. Ingestion can kill 

[them] immediately, but more often results in lung, liver, and kidney damage and 

subsequent death. Long-term or chronic effects on birds . . . are less understood, but oil 

ingestion has been shown to cause suppression to the immune system, organ damage, 

skin irritation and ulceration, damage to the adrenal system, and behavioral changes. 

Damage to the immune system can lead to secondary infections that cause death and 

behavioral changes may affect an individual’s ability to find food or avoid predators.163

Anthropogenic disturbances, like aircraft and vessels, can disturb birds, causing stress and 

ultimately harm.164 In particular, BOEM should consider whether Shell could disturb some 

activity that is essential to the health of the species, like mating. Also, birds are sometimes 

attracted to lights, and as a result, Shell’s operations create the risk of bird-strikes. Shell’s 

onshore support activities could attract predators that prey on birds or their eggs.165

Marine fish in the Chukchi include “lampreys, sleeper sharks, dogfish sharks, herrings, smelts, 

whitefishes, trouts and salmons, lanternfishes, cods, sticklebacks, greenlings, sculpins, sailfin 

sculpins, fathead sculpins, poachers, lumpsuckers, snailfishes, eelpouts, pricklebacks, gunnels, 

wolffishes, sand lances, and righteye flounders.”166 Noise from Shell’s operations, including 

noise from its icebreakers, could harm fish. BOEM should carefully consider whether Shell 

could create noise that could mask communication, or impair the ability to listen for predators 

and prey. Fish also would be affected by an oil spill in a number of ways. 

Fish can be impacted directly through uptake by the gills, ingestion of oil or oiled prey, 

effects on eggs and larval survival, or changes in the ecosystem that support the fish. 

Adult fish may experience reduced growth, enlarged livers, changes in heart and 

respiration rates, fin erosion, and reproductive impairment when exposed to oil. Oil has 

the potential to impact spawning success, as eggs and larvae of many fish species, 

including salmon, are highly sensitive to oil toxins.167

 

163 U.S. Fish and Wildlife Service, Effects of Oil Spills on Wildlife and Habitat (Effects of Oil Spills on 

Wildlife and Habitat), available at

http://alaska.fws.gov/media/unalaska/Oil%20Spill%20Fact%20Sheet.pdf. 

164 Audubon Alaska, Birds and Oil Development in the Arctic Refuge at 3. 

165 Id. at 5. 

166 LS 193 FEIS at III-33. 

167 Effects of Oil Spills on Wildlife and Habitat, supra n. 166, at 2.. 
28 

As explained above, Shell’s discharges into the ocean could harm or kill fish by changing the 

water temperature and adding toxins to the environment. Further, if exploration activities bring 

invasive species to Arctic waters, the nonnative species could “compete with or prey on Arctic 

marine fish . . . species, which may disrupt the ecosystem and predators that may depend on 

indigenous species.”168 

H. Effects of Introducing Invasive Species 

Shell’s proposed exploration activities could result in the introduction of invasive species to the 

Arctic marine environment. BOEM must fully analyze the potential effects of such introduction. 

BOEM acknowledged that exploration activities, such as those proposed in Shell’s plan, could 

contaminate Alaska’s waters with invasive species.169 Other federal agencies and experts also 

recognize that oil and gas activities, including exploration drilling, could bring invasive species 

to Alaska’s waters.170 “Once brought to Alaska, alien species contaminating a rig/vessel may 

subsequently disperse into Alaska’s ecosystems.”171

As BOEM recognized previously, “[t]he introduction of aquatic invasive species . . . into a 

marine ecosystem can result in adverse impacts.”172 “For example, vessels engaged in 

transportation and oil exploration may introduce invasive species that could disrupt the balance 

of predator and prey relationships and diversity within the ecosystem.”173 If exploration 

activities bring invasive species to Arctic waters, the nonnative species could “compete with or 

prey on Arctic marine fish or shellfish species, which may disrupt the ecosystem and predators 

that may depend on indigenous species.”174 Invasive species could “impact the biological 

structure of bottom habitat” or change habitat diversity,175 or “could compete with marine 

 

168 NMFS, Environmental Assessment for the Arctic Fishery Management Plan (August 2009) (Arctic 

FMP EA) at 76. 

169 See, e.g., MMS, 2007-2012 OCS Leasing Program Final Environmental Impact Statement (2007) 

(2007-2012 FEIS) at IV-15 (noting that exploratory drilling uses rigs and/or vessels that could harbor 

invasive species “attached to the hull structure,” “on the vessel,” or in ballast water); 2008 Multi-Sale 

DEIS at 2-20 (noting that invasive species could be introduced through “ballast-water discharge, hull 

fouling, and equipment placed overboard (e.g., anchors, seismic airguns, hydrophone arrays, oceanbottom-survey cables).”). 

170 See, e.g., Arctic FMP EA at 76 (“With the increase of vessels traveling through the Arctic 

Management Area and the use of oil rigs from locations outside the Arctic Ocean, the risk of introducing 

an invasive species increases.”); see also S. Gollasch, The Importance of Ship Hull Fouling as a Vector of 

Species Introductions into the North Sea, Biofouling 18(2):105-121 (2002). 

171 2007-2012 FEIS at IV-15. 

172 2008 Multi-Sale DEIS at 2-20. 

173 Arctic FMP EA at 205. 

174 Id. at 76. 

175 Id. at 141. 
29 

mammal prey, such as an invasive mollusk replacing the indigenous mollusk that walrus feed 

on.”176 Other invasive species, such as rats, could prey upon seabirds or their eggs. Because “a 

significant portion of Alaska’s economy . . . depends upon the pristine and natural quality of its 

aquatic ecosystems,” establishment of a harmful invasive species could also threaten Alaska’s 

economic well-being.177 BOEM experts previously warned that the introduction of nonnative 

species to Arctic waters “may very well yield much greater significant adverse impacts than a 

large oil spill.”178 

BOEM cannot assume that U.S. Coast Guard regulations would reduce the risk of the 

introduction of invasive species by exploration activities or that cold Arctic waters would be too 

harsh to support invasive species.179 These assertions are unsupported and inadequate. The 

Coast Guard’s regulatory scheme suffers from gaps and deficiencies and may not provide 

adequate protection against aquatic invasive species.180 Moreover, BOEM may not simply 

assume that Arctic waters are not susceptible to threats posed by invasive species. This is 

especially true when rapid climate change has made the Arctic more vulnerable to invasive 

species.181

I. Cumulative Effects 

NEPA requires an analysis of the incremental effects of Shell’s proposed Chukchi Sea drilling 

when added to other past, present, and reasonably foreseeable future actions.182 BOEM must 

consider Shell’s request in the context of Shell’s own multi-sea, multi-year drilling plans, 

including adverse noise and disturbance, air and water quality impacts caused by Shell’s 

simultaneous drilling operations (e.g., cumulative NOX, PM2.5, CO2 contributions to the Arctic). 

BOEM must also consider the myriad other industrial activities reasonably foreseeable in the 

 

176 Id. at 188. 

177 2007-2012 FEIS at IV-14. 

178 E-mail from Jeff Childs, MMS, to Paul Stang, MMS, “RE: invasive species reassignment,” (June 14, 

2006). 

179 See, e.g., 2007-2012 FEIS at IV-15; 2008 Multi-Sale DEIS at 2-20. 

180 See generally E-mail exchange among Jeff Childs, MMS; Gregory Ruiz, Marine Invasions Research 

Lab, Smithsonian Environmental Research Center; and Robert Piorkowski, Invasive Species Program 

Coordinator, Alaska Department of Fish and Game (March 16, 17, 19 & 21, 2006) (noting shortcomings 

in Coast Guard regulations). 

181 See Arctic FMP EA at 76 (“[R]ising ocean temperatures, and sea ice retreat may allow the colonization 

of invasive species that otherwise would not have been able to survive in the Arctic.”); see also 2007-

2012 FEIS at IV-10 (“Ocean ecosystems and fisheries are highly vulnerable to changes in sea temperature 

and sea-ice conditions.”). See also USGS Report at 211 (noting that invasive species are one of the issue 

that must be addressed when evaluating the cumulative impacts of offshore oil and gas activities). 

182 40 C.F.R. § 1508.7; Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmnt., 387 F.3d 989, 993-

94 (9th Cir. 2004). 
30 

Arctic Ocean. Viewed in that light, it is all the more clear that Shell’s proposed drilling will 

have potentially significant effects. 

In Natural Resources Defense Council v. Hodel, the D.C. Circuit remanded the EIS for an 

OCSLA five-year leasing plan that evaluated geographic regions in isolation despite the presence 

of migrating species.183 In doing so, the court provided guidance for how the agency should 

approach its task: 

The Secretary could, first of all, examine cumulative impacts of simultaneous 

inter-regional OCS development in a single, coherent section rather than fragment 

his analysis by area. This comprehensive section could then . . . identify the 

various migratory species and the full range of their routes of migration, describe 

the OCS and non-OCS activities along those routes, and state the synergistic 

effect of those activities on the migratory species.184

The cumulative effects of multiple noise disturbances from oil and gas activities in the Arctic 

Ocean on marine mammals, particularly endangered bowhead whales, are a major concern.185 

Where and when those activities occur is critical to assessing their incremental effects, and this is 

particularly true here, where activities are planned to take place proximate to a key feeding and 

resting area for bowhead whales in the Beaufort Sea.186 

If Shell drills its wells in both the Beaufort and Chukchi seas in 2012 and beyond, as it intends, 

bowheads may encounter Shell’s exploration activities in both seas over consecutive years. 

Thousands of bowheads will be potentially affected by the drilling, ice management, borehole 

seismic surveying, and vessel traffic, and the danger of a biologically significant impact will be 

especially high if cows and calves are exposed to the multiple disturbances. 

Moreover, both ConocoPhillips and Statoil have indicated that they are preparing for exploratory 

drilling in the Chukchi Sea beginning in 2013, which – combined with Shell’s efforts – could 

result in three drilling operations in close proximity to one another.187 The State of Alaska 

 

183 865 F.2d 288 (D.C. Cir. 1988). 

184 Id. at 299-300. 

185 2008 BiOp at 98 (“concern is warranted for cumulative noise and multiple disturbance; the 

consequences of which might include long-term shifts in migrational paths or displacement from 

nearshore feeding habitats” for bowhead whales); id. at 99 (“Concern is warranted over the distribution in 

time and space of several noise-producing activities.”); see also id. at 48 (noting uncertainty about 

potentially significant effects from long-term cumulative sound impacts to marine mammals). 

186 See, e.g., 2008 BiOp at 86 (stating that whether noise disturbances from oil and gas activities 

potentially will result in a biologically significant impact on the bowhead population depends on the 

“timing, location, and number” of the disturbances). 

187 ConocoPhillips has already submitted its exploration plan to BOEM. See

http://alaska.boemre.gov/ref/ProjectHistory/2011_Chukchi_COP/draftEP/draftEPx.HTM. 
31 

recently expressed a strong interest in having companies exploit oil and gas reservoirs that can be 

accessed in state waters. The State’s decision could prompt seismic surveying as companies 

determine potential locations for exploration. Any exploration activities in Canadian and 

Russian waters must be considered as well.188 

J. Alternatives 

BOEM must consider alternatives to Shell’s proposed drilling. Shell’s plan would permit it to 

drill wells in six separate locations, operating between July 10 and October 31.189 BOEM should 

consider in its NEPA analysis alternatives to Shell’s proposal that are more protective of the 

Chukchi Sea. These alternatives could include an alternative that reduces the risk of an 

overwintering oil spill by, for example, requiring Shell to stop drilling earlier in the season, well 

before October 31; an alternative that limits Shell to drilling two wells per summer, like the 

company is proposing in the Beaufort Sea; and an alternative that would restrict waste disposal 

similar to Shell’s plans in the Beaufort Sea. 

K. Incorporation of Local and Traditional Knowledge 

BOEM must incorporate local and traditional knowledge into its analysis of Shell’s drilling plan. 

Local and traditional knowledge is a different but equally valid knowledge system that can help 

expand understanding of the effects of Shell’s drilling plan and supplement and enhance existing 

knowledge. Indigenous peoples who have lived in the Arctic Ocean region for millennia have 

developed a wealth of knowledge about the region. They depend on local plants and animals for 

food, clothing, and shelter, and know a great deal about the species they use and see. In recent 

years, an increasing amount of research has focused on traditional knowledge in the Arctic. 

Major projects, such as the Arctic Council’s Arctic Climate Impact Assessment,190 have 

incorporated traditional knowledge in efforts to understand what is taking place in the region. 

Outreach to local governments, tribes, co-management organizations, and other Alaska Native 

organizations is one way of incorporating not just knowledge, but the holders of that knowledge 

into the decision-making process. Greater involvement by Arctic peoples in the governance of 

their regions and communities allows their knowledge to benefit modern institutions and 

increases the likelihood of lasting solutions. BOEM should ensure adequate outreach to Arctic 

 

188 The need to accurately assess cumulative effects has been emphasized by the recent expert panel 

reviews conducted in conjunction with the annual Open Water Meetings. See Expert Panel Review of 

Monitoring Protocols in Applications for Incidental Harassment Authorizations Related to Oil and Gas 

Exploration in the Chukchi and Beaufort Seas, 2011: Statoil and ION Geophysical at 4-5 (March 9, 

2011), available at http://www.nmfs.noaa.gov/pr/pdfs/permits/openwater/peer_review_report2011.pdf. 

It is also discussed extensively in the recent USGS report on the Arctic. 

189 Chukchi Exploration Plan at 1-1. 

190 Arctic Climate Impact Assessment, Impacts of a Warming Arctic: Arctic Climate Impact Assessment. 

Arctic Council and the International Arctic Science Committee (IASC) (2004), available at

http://www.acia.uaf.edu. 
32 

communities and incorporation of local and traditional knowledge into its analysis of the effects 

of Shell’s drilling. 

L. Environmental Justice Analysis 

BOEM must address environmental justice concerns and analyze the disproportionate impacts of 

Shell’s exploration on Arctic coastal communities. Executive Order 12898, “Federal Actions to 

Address Environmental Justice in Minority Populations and Low-Income Populations,” provides 

that “each Federal agency shall make achieving environmental justice part of its mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of its programs, policies, and activities on minority populations and lowincome populations.”191 The Executive Order requires agencies to work to ensure effective 

public participation and access to information: each agency should work to “ensure that public 

documents, notices, and hearings relating to human health or the environment are concise, 

understandable, and readily accessible to the public.”192 

In the memorandum to heads of departments and agencies that accompanied Executive Order 

12898, the President specifically recognized the importance of procedures under the NEPA for 

identifying and addressing environmental justice concerns. The memorandum states that “each 

Federal agency shall analyze the environmental effects, including human health, economic and 

social effects, of Federal actions, including effects on minority communities and low-income 

communities, when such analysis is required by [NEPA].” The memorandum particularly 

emphasizes the importance of NEPA’s public participation process, directing that “each Federal 

agency shall provide opportunities for community input in the NEPA process.” Agencies are 

further directed to “identify potential effects and mitigation measures in consultation with 

affected communities, and improve the accessibility of meetings, crucial documents, and 

notices.”193

Arctic communities have consistently expressed concerns about the human health impacts from 

proposed oil and gas activities in the Beaufort and Chukchi seas. Community members have 

voiced concerns about air quality issues and subsequent increases in respiratory problems as well 

as contamination of subsistence resources through water and air pollution. BOEM is obligated 

by Executive Order 12898 and subsequent guidance from CEQ194 to study possible human health 

 

191 Executive Order No. 12898, 59 Fed. Reg. 7,629 (Feb. 16, 1994) (Section 1-1). 

192 Id. at Section 5.5. 

193 Council for Environmental Quality, Environmental Justice: Guidance under the National 

Environmental Policy Act 1 (Dec. 10, 1997), available at

http://www.epa.gov/compliance/ej/resources/policy/ej_guidance_nepa_ceq1297.pdf. 

194 Id. 
33 

impacts (including impacts on wildlife that would affect subsistence users) and to address 

community concerns. 

Additionally, Shell’s drilling may negatively affect Alaska Native subsistence hunting in the 

Chukchi Sea. Shell’s drilling also threatens subsistence fishing and hunting of whales, seals and 

walrus. These threats extend beyond simple loss of food or human life. For the Inupiat, there is 

a direct connection between the continued health of the marine environment and the health of 

their food supply and culture. Coastal peoples in the Arctic use marine plants and animals for 

food, clothing, and other necessities. The whale hunt is a centerpiece of their culture. These 

communities prepare for the hunt year-round, celebrate successful hunts, and share food 

throughout the village. 

Environmental justice compels a full public process before BOEM makes decisions about the 

Chukchi Plan. NEPA requires effects on subsistence to be analyzed in an EIS. 

III. CONSULTATION WITH NMFS AND FWS PURSUANT TO THE 

ENDANGERED SPECIES ACT 

BOEM’s assessment of the Chukchi Plan also triggers the agency’s obligations pursuant to the 

ESA. A number of listed species may be affected by the activities associated with Shell’s plan, 

including bowhead whales, polar bears, spectacled and Steller’s eiders, humpback and fin 

whales. It also may destroy or adversely modify polar bear critical habitat. 

The ESA states that agencies shall, “in consultation with” the Services, “insure that any action 

authorized, funded, or carried out” is “not likely to jeopardize the continued existence of any 

endangered species or threatened species or result in the destruction or adverse modification of 

habitat of such species[.]”195 The Ninth Circuit has emphasized that an agency cannot “‘abrogate 

its responsibility to ensure that its actions will not jeopardize a listed species; its decision to rely 

on a . . . biological opinion must not have been arbitrary or capricious.’”196 The court in 

Pyramid found that while consultation may satisfy procedural obligations under the ESA, the 

action agency could “not rely solely” on a biological opinion “to establish conclusively its 

compliance with its substantive obligations[.]”197 Moreover, BOEM is obligated to reinitiate 

consultation whenever new information reveals that the action “may affect” listed species in a 

manner or to an extent not previously considered.198 Although biological opinions exist for 

listed species that may be affected by oil and gas activities in the Chukchi Sea, none adequately 

consider the effects of Shell’s planned exploratory activities. 

 

195 16 U.S.C. § 1536(a)(2). 

196 Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1994) (quoting Pyramid Lake Paiute 

Tribe v. U. S. Dep’t of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990)). 

197 Pyramid Lake Paiute Tribe, 898 F.2d at 1415 (emphasis in original). 

198 50 C.F.R. § 402.16(b). 
34 

For endangered bowhead whales, NMFS issued a regional biological opinion in July 2008 for oil 

and gas leasing and exploration.199 Although it concludes that jeopardy is not likely to occur 

based on a consideration of potential effects at the programmatic level, it also notes that there is 

the possibility of greater harm from site-specific exploration activities, including icebreaker 

operations and drilling. In summarizing the effects of noise and disturbance, the opinion states: 

Depending on their timing, location, and number, these activities potentially could 

produce sufficient noise and disturbance that whales might avoid an area of high value to 

them and suffer consequences of biological significance. These consequences would be 

of particular concern if such areas included those used for feeding or resting by large 

numbers of individuals or by females and calves.200

The point is reiterated in the opinion’s conclusion: Due to “the potential for noise disturbance to 

displace whales from important feeding areas, special scrutiny should be given to seismic and 

drilling operations which may impact those areas.”201 

In 2010, NMFS recognized the need for a site-specific ESA consultation based on industry 

requests to conduct surveys in the Arctic and Shell’s plans to drill multiple exploration wells. 

NMFS continued to self-consult on the surveying activities even after the Secretary of the 

Interior and the President made clear that review of Shell’s proposal in the wake of the Gulf of 

Mexico spill would require more time. In the subsequently issued biological opinion, NMFS 

found that, in the period since previous ESA reviews in 2006 and 2008, there has been 

considerable research focused on the bowhead whale in the Beaufort and Chukchi seas.202 

The need for a site-specific analysis is equally clear given the 2008 opinion’s conclusions about 

the potential effects of an oil spill. When discussing production, NMFS recognizes that were a 

large amount of fresh oil to come into contact with a large aggregation of feeding whales, 

“effects could be greater than typically would be assumed.”203 With Shell’s drilling operations 

planned in the whales’ migration corridor, within an area that is favored for feeding, and during a 

period that will overlap with the fall migration, the probabilities that underlie NMFS’s 

conclusions as to the possible harm from a spill must also be reconsidered.204 

 

199 See 2008 BiOp. 

200 Id. at 86. 

201 Id. at 99. 

202 NMFS, Authorization of Small Takes Under the Marine Mammal Protection Act for Certain Oil and 

Gas Exploration Activities in the U.S. Beaufort and Chukchi Seas, Alaska for 2010 at 11 (July 13, 2010). 

203 2008 BiOp at 113. 

204 See id. at 99, 115 (estimating the potential for harm based on uncertainties as to when and where 

drilling would occur). 
35 

For polar bears, and spectacled and Steller’s eiders, FWS issued a biological opinion on 

September 3, 2009 covering leasing and exploration in the Beaufort and Chukchi seas.205 

However, BOEM is obligated to reinitiate consultation if new information reveals that an action 

will affect a listed species in a manner not previously considered.206 BOEM must consider 

whether new information from the BP Deepwater Horizon oil spill and subsequent investigations 

and reports and new information about the status of polar bears and the continued retreat of 

summer sea-ice requires re-initiation of consultation with FWS. 

On December 7, 2010, approximately 187,157 square miles of polar bear critical habitat in and 

around the Beaufort and Chukchi seas was designated under the ESA.207 The rule became 

effective on January 6, 2011, triggering all the affirmative obligations and prohibitory 

restrictions of the ESA. Exploration drilling in the Chukchi Sea may destroy or adversely 

modify polar bear critical habitat through direct disturbance of sea ice, the water column, and 

onshore habitat from vessels, aircraft, and drilling platforms, impacts on prey, and the risks of 

catastrophic oil spills. Furthermore, the primary threat to the polar bear’s sea-ice habitat is from 

the past, current and future impacts of global warming. Therefore, the direct, indirect and 

cumulative impacts of greenhouse gas emissions including carbon dioxide, methane, and black 

carbon emissions associated with and flowing from exploration drilling activities in the Chukchi 

Sea destroy and adversely modify the polar bear’s critical habitat. Accordingly, BOEM must 

reinitiate consultation on the effects of Shell’s drilling to polar bear critical habitat. 

***** 

For the reasons stated above, BOEM must prepare a full EIS pursuant to NEPA that analyzes and 

discloses the potentially significant effects of the Chukchi Plan, and it must engage in and 

complete consultation with NMFS and FWS pursuant to the ESA before making decisions to 

approve, disapprove, or require modifications of the plan. 

Respectfully, 

Cindy Shogan 

Executive Director 

ALASKA WILDERNESS LEAGUE 

Eric F. Myers 

Policy Director 

AUDUBON ALASKA 

 

Rebecca Noblin 

Alaska Director 

CENTER FOR BIOLOGICAL DIVERSITY 

Sierra Weaver 

Senior Staff Attorney 

DEFENDERS OF WILDLIFE 

 

 

205 FWS, Final Biological Opinion For Beaufort And Chukchi Sea Program Area And Associated Seismic 

Surveys and Exploratory Drilling (Sept. 3, 2009). 

206 50 C.F.R. § 402.16(b) (2011). 

207 75 Fed. Reg. 76,086 (Dec. 7, 2010). 
36 

Holly A. Harris 

Attorney 

EARTHJUSTICE 

Dan Howells 

GREENPEACE 

 

Jim Adams 

Director, Pacific Region 

NATIONAL WILDLIFE FEDERATION 

Charles M. Clusen 

Alaska Project Director 

NATURAL RESOURCES DEFENSE 

COUNCIL 

 

Pamela A. Miller 

Arctic Program Director 

NORTHERN ALASKA ENVIRONMENTAL 

CENTER 

Andrew Hartsig 

Director, Arctic Program 

OCEAN CONSERVANCY 

 

Susan Murray 

Director, North Pacific 

OCEANA 

Shawna Larson 

Alaska Program Director 

PACIFIC ENVIRONMENT 

 

Faith Gemmill 

Executive Director 

REDOIL 

Dan Ritzman 

Alaska Program Director 

SIERRA CLUB 

 

Lois N. Epstein, P.E. 

Engineer & Arctic Program Director 

THE WILDERNESS SOCIETY 

Layla Hughes 

Senior Program Officer for Arctic Oil, Gas, 

and Shipping Policy 

WORLD WILDLIFE FUND