1 ALASKA WILDERNESS LEAGUE—AUDUBON ALASKA CENTER FOR BIOLOGICAL DIVERSITY—DEFENDERS OF WILDLIFE EARTHJUSTICE—GREENPEACE

— NATIONAL WILDLIFE FEDERATION NATURAL RESOURCES DEFENSE COUNCIL NORTHERN ALASKA ENVIRONMEN TAL 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 Scopin g for Shell Gulf of Mexico Inc.’s Revised Outer Continental Shelf Explor ation 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 Continen tal 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 Envi ronmental Policy Act (NEPA). The undersigned groups provide the following comments on the appr opriate scope of the NEPA analysis and the need for careful scrutiny and full public pa rticipation 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 drilli ng 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 itsel f 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 Mana gement Service, as appropriate.2 drill in the Chukchi Sea, new information rele vant 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 repor ts, 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, clim ate change has continued to have dram atic effects in the Arctic. It is clearer than ever before that the country is not prepared to respond to a sp ill, particularly one in Arctic waters. As the first offs hore exploration drilling in the Chukc hi in more than 20 years, the first in the Chukchi since the Deepwater Horizon disaster, and a drama tic expansion of prior Shell drilling plans, Shell’s proposed explora tion drilling warrants care ful 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 signi ficant 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 repeated ly, 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 rega rd to its review of Shell’s Chukchi Sea Regional Exploration Oil Di scharge Prevention and Contingency Plan. The undersigned groups reiterate their prior commen ts that NEPA requires a review of the environmental consequences of, and alternatives to, Shell’s proposed sp ill response measures, techniques, and priorities.

I. BOEM MUST PREPARE AN EN VIRONMENTAL IMPACT STATEMENT

Pursuant to NEPA, “‘[a]n [envir onmental impact st atement (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). A ccordingly, “NEPA may requi re an environmental impact statement at each stage: leasing, e xploration, 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 E xploration Plan, BOEM must prepare an EIS to analyze and disclose the effects of the proposed drilling. Shell’s progra m constitutes a massive industrial undertaking in volving a 514-foot drill-ship, ice- breakers, other support ships, and aircraft traveling to and through the Arctic Ocean from July th rough October. These activities

2 OCSLA’s requirement that BOEM must approve or disapprove an explora tion 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 sch eme so that the agency can perform its full duties under NEPA.”).3 would generate substantial noise in the water, in crease vessel and aircraft traffic, create the risk of an oil spill, emit tons of polluta nts into the air, and release a vari ety of wastes into the water. Pursuant to NEPA, “‘[a]n EIS must be prepared if substantial quest ions are raised as to whether a project ... may cause significant degradation of some human envir onmental factor.’” 3 Shell’s proposed exploration drilling activit y threatens a number of signifi cant effects, including effects to threatened and endangered species, effects fr om oil spills, and cumula tive effects, and has the potential to harm subsistence activities that are of central cultural significance to Arctic coastal communities. NEPA requires these effect s to be analyzed in an EIS.

The Chukchi Exploration Plan also implicates a number of factors that the Council on Environmental Quality’s (CEQ) re gulations 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 Ka segaluk Lagoon and Ledyard Bay. 5 There is a high degree of controversy about the im pacts of the project. 6 There are many unknowns regarding species in the Arctic Ocean and the potential effect s of industrial activ ity 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 prepar ation 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 c onsidering exploration pl ans 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 Dr illing 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 wi th 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 cons ider 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 precl udes the agency from assessing effects of the proposed action and designing alternatives that minimi ze those effects. In circumstances such as this—where missing data renders an agency una ble 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 in formation 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 re search needs for the Arctic Ocean in connection with oil and gas activ ities in the region, unde rscores 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 fo r critical Arctic decision making.” 15 Gaps exist for nearly every species in the Arctic Ocean. 16 Similar gaps exist in understandi ng 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 th e science needs to inform decisions on Outer Continental Shelf Energy Devel opment 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 re maining Arctic Ocean leases in the 2007-2012 Five Year OCS Leasing Program, stating “that the country mu st take a cautious approach in the Arctic, and gather additional scientific information about res ources, 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 ec osystems to potential OCS resource extraction activities . . . .” Id.

15 USGS Report at 151.

16 USGS Report at 59 (“Trophic interactions of ma rine 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, annua l, 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 rela tively 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 speci es where abundance estimates exist.”); id. at 182 (for bowhead whales, “the understanding of essential spatia l 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 wh ales might be most impacted by anthropogenic sounds”); id . at 184 (for beluga whales, the “present unders tanding of the essential spatial and temporal5 The following comments address the types of issues BOEM must assess when conducting a NEPA analysis of the Chukc hi Exploration Plan.

A. Missing Information

One of the lessons we have learned from the Gu lf 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 th e Chukchi Sea. In affirming Lease Sale 193, BOEM concluded that, although the EIS for the leas e sale identified litera lly hundreds of data gaps for the Chukchi Sea relevant to potentially signifi cant effects, none of that inform ation 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 f act, be essential at a later stage of OCS Lands Act.” 20 BOEM is now at that next stage—just ov er 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 a nd 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 abundan ce, 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, Un acceptable Consequences. Commissioned by the Pew Environment Group, U.S. Ar ctic 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 (A ug. 2011). Many of th e 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 Leas e Sale 193 remand and SEIS process. 21 Groups incorporate those comments herein and offer a br ief summary of the type of information that must inform BOEM’s decision regardi ng 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 ba sic 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 Sh ell’s proposed explorati on 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 co ast, yet walrus also used the region around Hanna Shoal extensively, which is near Sh ell’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 fr om 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, Minera ls Management Service, Alaska OCS Region) (MBC, 2007).

23 Although Hanna Shoal is thought to provide importa nt 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-Releas es/2011/press09202011.aspx. BOEM should assess what information it must obtain about the Hanna Shoa l 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/EC 09_Radio_Tagging_Field_Report.pdf; C.V. Jay and7  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, be arded seals, and polar bears are more complex and variable than previously anticipated. Without an unde rstanding of which areas are crucial and why, it is impossibl e to understand the project-sp ecific effects of drilling.

 What trajectories would spilled oil follow? The general atmos pheric 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 difficu lt to predict based on curren t understanding. In addition while general circulatio n patterns are known, there is relati vely 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 equipmen t and the ability to respond promptly are hindered, reducing the ability to contain and r ecover spilled oil. Furthermore, there is insufficient information or monitoring capacity to project fine scale trajec tories of spilled oil in real time during a spill event, making it difficult or impossible to respond quickly and protect critical wildlife habitat areas, su ch 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 ic e 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 info rm 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 i nherent in exploration drilling in challenging conditions and the need for full NEPA review of oil spill ri sks at the exploration stage. The CEQ’s report setting out NEPA practice following the Deepwater Horizon spill cautioned that “[w]here . . . information regard ing the effects of a catastrophic spill from exploratory drilling can be obtai ned 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 Regard ing the Minerals Management Service’s National Environmental Policy Act Policies, Practices, Procedur es as They Relate to Outer Continental Shelf Oil8 the CEQ’s recommendations 27 and conclude that Shell’s expl oration drilling in the challenging conditions of the Chukchi Sea presents a foreseeabl e 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 plan s submitted by Shell, BOEM concluded that oil spills larger than 1000 barrels we re 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 explorat ion drilling presents no foreseeable risk of a catastrophic spill are untenable after the Deepwater Horizon spill, which occurred during exploration drilling. Indee d, the risk of well-control incidents is substantially higher during exploration drilling activities th an 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) mode l estimates the risk of contact to coastlines and other sensitive areas from oil spills. This m odel, however, fails to capture important aspects of the actual behavior of oil spills. Spilled o il 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 th e 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 sp ill modeling highlights several considerations BOEM should consider in its analysis. NOAA se parately analyzes both nearshore and offshore trajectories, recognizing that spills in the vary ing 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 proba bility 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 mode ling of currents to pred ict the trajectory of spilled oil. As the USGS has noted, the agency’s mode l 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-s cale 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 e ffects 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 blow n-out well from one of Sh ell’s wells could flow overwinter. In such an overwintering spill, o il could flow unchecked into the Chukchi Sea for many months. Even if the flow is stopped before freeze-up, the spilled oil th at is left behind can travel considerable distances, either with th e 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 m ove as much as 300 to 500 miles.” 38 That oil could re-emerge directly in the path of bowh ead whales during their spring mi gration, 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 thes e effects in a project -specific analysis.

32 Id . at 5.

33 Id . at 6.

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

35 USGS Report at 120

‒ 22; Wang, et al, Coastal Marine Institute Re port: 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 w eaknesses of the SINTEF Oil Weathering Model when making predictions about the behavior of oil in the water, including evapor ation 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, th e SINTEF model fails to incor porate 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 cons trains adequate forecasting of biodegradation. 44

Finally, on August 29, BOEM released a report, “E valuation of the Use of Hindcast Model Data for Oil Spill Risk Analysis (OSRA) in a Peri od of Rapidly Changing Conditions,” evaluating how climate change is affecting the environm ental conditions used in modeling oil spill trajectories and analyses in the Arctic. The re port recommends that the agency improve data coverage and modeling tools, a nd consider the Intergovernmental Panel on Climate Change scenarios in its analysis of oil spills. 45 BOEM should address these i ssues 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 di scussion 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 mitiga tion 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 Rapi dly Changing Conditions Final Workshop Report, 2 (“As reported in the litera ture (McPhee et al., 2009; Overland et al., 2008), recent climate variability in the Arc tic Ocean has caused significant cha nges in the circulation of sea ice and the upper layers of the Arctic Ocean. ... The majo rity of the circulation datasets used in the OSRA model do not account for these recent changes, thus there is a need to asses s how forecast ice/ocean model results influence oil spill trajector ies 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 pr oposes 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 ra ms, 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 sim ilar design and are produced by a limited number of manufacturers.” 53 In the words of Elmer P. Danenbe rger III, who oversaw BOEM’s drilling rules until he retired in December 2009: “T hey have to rethink the whole design [of the BOPs.]” 54 BOEM should not approve exploration drilling in the cha llenging 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, Geophysi cal 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 sh ip 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, Fore nsic 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 Developmen t on the Outer Continental Shelf, 75 Fed. Reg. 63,346, 63,350.

54 B. Casselman and R. Gold, Device’s Design Flaw Le t Oil Spill Freely, Wall Street Journal (Mar. 24, 2011), available at http://online.wsj.com/article/SB100014 2405274870405020457621 8653335935720.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 al arms to serve as a failsafe mechanism in the event of human error; a lack of coordination among lessees and contract ors; and overreliance on standards promulgated by the American Pe troleum 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, “pract ices 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 res ources, technical traini ng, 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.” It s salaries were too lo w 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 ev aluating 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 trai ning 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 Increas ed Safety Measures for Energy Development, a Safety and Environmental Ma nagement Systems Rule, and two Notices to
Lessees. 62 Shell’s compliance with th ese 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 Asse ssment of Environmental Impacts in the North Aleutian Basin at 24, 26 (March 8, 2010), available at http://www.eenews.net/public/25/15077/featur es/documents/2010/04/07/document_pm_03.pdf.

61 Commission Report at 79.

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

‒ 36.

63 See SEIS at 134

‒ 36 (surveying these changes).13 BOEM should assess whether th e Chukchi Exploration Plan addr esses the problems identified by the Commission and others and evaluate Sh ell’s readiness to m itigate oil spill risk.

Finally, BOEM should consider th e JIT’s conclusions and recomme ndations 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 ove rsight of foreign-fla gged 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 employe d” in challenging Arctic conditions. 65

C. Air Pollution Effects

The fleet of vessels and aircraft Shell plans to use for its Chuk chi Sea operations will emit large amounts of air pollution that could harm huma n 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 permit 66 and the emissions that are not c overed 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 drills hip becomes an “OCS source”; (2) emissions of the Discoverer drillship and associated vessels after th e 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 E xplosion, 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 athttp://www.scribd.com/doc/53653055/Report-of-Investigationinto-the-Circumstances-Surroundi ng-the-Explosion-Fire-Sinking-an d-Loss-of-Eleven-Crew-MembersAboard-the-MOBILE-OFFSHORE-DRI; The Bureau of Ocean Energy Management, Regulation and Enforcement, Report Regarding the Causes of th e 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 Environm ental Protection Agency Region 10, Proposed Outer Continental Shelf Prevention of Significant Dete rioration 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 ex ample, did not address the impacts of black carbon pollution.

Shell acknowledges it will emit up to 336 tons per year of NO X and up to 23 tons per year of
PM 2.5
. 67 Both of these pollutants are harmful to human health. According to EPA, NO X /NO 2 acts mainly as an irritant affecting the eyes, nose, throat, and respiratory tract. 68 “Continued exposure to high NO 2 levels can contribute to the developm ent of acute or chronic bronchitis. Low level NO 2 exposure may cause increased bronchial r eactivity in some asthmatics, decreased lung function in patients with chronic obstruc tive pulmonary disease and increased risk of respiratory infections, es pecially in young children.” 69 Exposure to elevated levels of particulate matter, especially fine particulate matter (PM 2.5 ), can cause adverse health effects even in healthy individuals. 70 However, people with heart or lung di sease, children, and the elderly are most vulnerable. 71 “Numerous scientific stud ies have linked particle pollu tion exposure to a variety of problems,” including development of chronic br onchitis, irregular he artbeat, nonfatal heart attacks, and premature death in pe ople with heart or lung disease. 72 Shell’s impact on PM 2.5 air quality could be substantial, as PM 2.5 levels could easily exceed th e allowable increase under the new 24-hour PM 2.5 increments and which are designed to keep clean air-sheds clean. 73 Shell’s expected impacts upon coastal comm unities in the Arctic are part icularly 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 μ g/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 μ g/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 Discovere r 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 increm entally 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 polluta nts 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 di oxide, or particulate matter less than 10 microns in diameter; or exceeds half th e increase permitted under the [NAAQS] for carbon monoxide or ozone

are significant for purposes of NEPA. 77

Further, Shell will emit pollutant s 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 la nd, 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, wa lruses forced onto land, and sharp declines in numbers of ice-dependent sea birds.” 80 The warming is also threatening indigenous cultures. Arctic animals and subsiste nce 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 erosi on 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 Qua lity identifies 25,000 tons of annual CO 2 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 Promis es: 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 environm ental significance when evaluati ng 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 PM 2.5 emissions will be black carbon. 85 Black carbon contributes to global and regional warming in multip le 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 im portant contributor to Arctic warming after CO 2 . Emissions of black carbon from sources in the Arctic itself are particularly troubling because Arctic emissions can cause subs tantially 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 warmi ng effects through a regional lens, in addition to a global one.

D. Effects in the Contex t of Climate Change

As described above, BOEM must analyze the eff ects 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 alrea dy 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 ch ange 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 Effect s 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-liv ed air pollutants in the Arctic using statistical analysis of measurement data and particle disper sion 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 th e Arctic ecosystem and those de pendent 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 NE PA analysis of ocean discharge effects. 90 The general permit system only addres ses 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 expire d, and in any case it doe s 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 wate r 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 in creasing water temperature. The damage temperature changes can cause to aquatic life is well documented. For aquatic organisms, water temperature regulates metabolism and affects th e 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 Nationa l Pollution Discharge Elimination System (NPDES) for Oil and Gas Exploration Facilities on the Outer C ontinental 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 inhibito rs, 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 discharg e 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 w ith mercury and other toxins. These cuttings will be placed on the ocean floor and could be contam inated with significant amounts of pollutants. Additionally, the area wher e 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 cultu ral 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 ma rine 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 ma rine 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 consid er the project speci fic 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 de gree 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 migr ation 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 essen tial spatial and temporal habitat needs . . . particularly the oceanographic parameters that most influence foraging, breeding, raising young, and migrating is not yet sufficient to confidently dete rmine the times and places where whales might be most impacted by anthropogenic sounds”); id . at 185 (for gray whales, more in formation 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 w ill 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 dri lling activities on bowheads in the Chukchi Sea – a method that has been reco gnized to be inappropriate for determining the number of bowhead whales pres ent in an area during migration. 104 As Shell succinctly stated in the incidental harassment authorization applica tion 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 presen t in the area from one day to the next will be static.” 105 The same holds true for the Chukchi Sea prospects where Sh ell plans to drill – bowheads will be migrating through that area during the tim e 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 estimati ng 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 act ivity. Using a density calculation artificially reduces the number of bowh eads that will likely be affected. BOEM must consider the number of bowhead s 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 effect s of ice management. Shell’s documentation may underestimate the amount of ice management that could occur in connecti on with its drilling and thus underestimate the level of dist urbance. Shell assumes that it s 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 Environmen tal 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 She ll[’s] Burger Prospect are located within the generalized fall migration route.”).20 managing ice no more than 38 percent of the dr illing 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 Beau fort 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 rele vant ice data.

Even assuming that the 38 percent figure is corr ect, 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 fre quency and intensity are unpredicta ble 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 mana gement noise can result in disturbance at very low levels. Shell indicates that it prefers to mana ge 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 ma nagement is a major concern, and any NEPA analysis must consider the opera tions 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-Constr uction Air Permit Application Revised, Frontier Discoverer Chukchi Sea Exploration Drilling Pr ogram 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 starte d, temporarily abandoned due to ice conditions and finished later in the same drilling season.” Shell O il, 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 significan t”); Chukchi EIA at 4-56 (noting that migrating bowheads may avoid icebreaking at a distance of 25 k ilometers). Of course, BOEM must adequately examine the potential for ice manageme nt 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 foot print of the project whenever drilling and ice management take place simultaneously, exposing a larger num ber of whales to potentially disturbing anthropogenic noise. 115

Finally, the effect of Shell’s pr oposed drilling on bowhead cows and calves is critical to any assessment. Bowhead whales are a long-live d, late-maturing species with relatively low reproductive rates and extremel y 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 o ffspring during its period of dependency is “critical to the continued recovery and the long-te rm viability of the population.” 117 Bowhead cow-calf pairs are thought to be more sensitive to noise and, therefore, more likely to respond to distur bances at lower thresholds. 118 As a consequence, NMFS has in the past required a 120 dB “safety zone” for multip le migrating cow-calf pa irs in order to avoid significant effects when issuing harassment aut horizations 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 ma y 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 ar ea exposed to 120 dB from ice management); 2003 Multi-Sale EIS at IV-68 (noting a study predicting “t hat 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 elsew here maintains that ice management will take place using “lower power and therefore slower propelle r 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 bot h at the drilling site and during transit across the Chukchi Sea. There is also the risk that a vessel c ould collide with a whale, resulting in serious injury or death.

116 Minerals Management Service, Final Progra mmatic 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 Continenta l 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 acquisiti on 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 th at the ice that “often” accumulates between the Burger drillsites and the Shoal can require active ice management. 122

Gray whale numbers have declined since Enda ngered 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 operati ons on polar bears, partic ularly 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 s ubsequently designated critical habitat. 124 The declining health and size of the polar bear population is in large part a re sult of the disappearance of seaice due to climate change. 125 Polar bears increasingly are forc ed 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 distur bances like oil spills, ice management, and overflights would affect the polar bear popul ation. A large oil spill would result in serious and long-lasting harm to the species, and even a small spill could have ad verse effects. Ice breaking activities can pose a direct risk to polar bears, a nd Shell’s ice breakers are predicted to be most active during the summer when many polar bears wi ll be present on the sea-ice. 127 Ice management can destabilize ice or cau se polar bears to abandon an ice floe. 128 Ice breaking, airc raft flights, and other activities could affect the av ailability 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 operatio n, 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 su mmer 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 atten tion should be given to preventing the disturbance of this essential activity.

BOEM must consider these effects in the cont ext of climate change and how the resulting decreases in habitat and prey av ailability will have on the heal th of the population. Alreadystressed bears may be more susceptible to su ffering significant effect s from disturbances associated with Shell’s operations.

4. Effects on Seals

BOEM must analyze the potential effects of all of Shell’s op erations 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, a llowing additional offshore industrial activity risks harm. Low-frequency noise can mask biologica lly significant sounds, and Shell’s operations – including drilling, ice breaking, ve ssel movements, and low-flying aircraft – could also disrupt normal behavior, causing seals not only to flee pref erred habitat but to requi re 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 poten tial effects of all of Shell’s operations on the Pacific walrus. “Pacific walruses range throughout the shallow con tinental 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 th e 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 bearde d 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/protectedres ources/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 wate rs less than 80 meters to access the bottom habitat of the Chukchi Sea. 139 Shell’s Burger drilling si tes 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 Shoa l, 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 ic e-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 Burg er 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 re sponse to the rapid retr eat 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 a ffect 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); Chukc hi 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 vul nerable to disturbance events.” 146 Walrus have come ashore in large numbers in 2007, 2009, and 2010. 147

There is evidence indicating th at the Pacific walrus populatio n 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 othe r 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 habi tat, even at considerable dist ance, will further stress walrus. The effects on walrus from prolonged disturbance include displacement from preferred feeding areas, increased stress and ener gy 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 Sh ell’s operations on beluga whales. Belugas can have strong reactions to low le vels of anthropogenic noise. As the USGS Report observes, beluga reactions to icebreaker s “are among the most cited and dramatic in the literature.” 153 Responses have been detected gr eater 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 ha ulout 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 larg e-scale disturbances. Chukchi EIA at 3-76.26 mothers and calves and evaluate whether e nough 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 wh ales—migrate through the Chukchi Sea during the fall. Shell has, however, used a simple de nsity 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 th e 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 no t 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 op erations on harbor porpoises. Harbor porpoises have been shown to be exceptiona lly 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 S ea “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, incl uding 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 limite d 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 appr opriate 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 insulati on 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 thei r ability to fly a nd their buoyancy, causing drowning. In efforts to clean themselves, birds . . . ingest and inhale oil. Ingestion can kill [them] immediately, but more often resu lts in lung, liver, and kidney damage and subsequent death. Long-term or chronic effect s on birds . . . are less understood, but oil ingestion has been shown to cause suppre ssion to the immune system, organ damage, skin irritation and ulceration, damage to th e adrenal system, and behavioral changes. Damage to the immune system can lead to secondary infections that cause death and behavioral changes may affect an individua l’s ability to find food or avoid predators. 163

Anthropogenic disturbances, like aircraft and ve ssels, can disturb bird s, causing stress and ultimately harm. 164 In particular, BOEM should consid er whether Shell could disturb some activity that is essential to the health of th e species, like mating. Also, birds are sometimes attracted to lights, and as a resu lt, Shell’s operations create the risk of bird-strikes. Shell’s onshore support activities coul d attract predators that pr ey on birds or their eggs. 165

Marine fish in the Chukchi include “lampreys, sleeper sharks, dogfish sharks, herrings, smelts, whitefishes, trouts and salmons, lanternfishes, co ds, sticklebacks, greenli ngs, sculpins, sailfin sculpins, fathead sculpins, poachers, lumpsucker s, 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 ma sk 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 cha nges 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 th e ocean could harm or kill fish by changing the water temperature and adding toxins to the environm ent. Further, if expl oration activities bring invasive species to Arctic wate rs, the nonnative species could “comp ete 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 explora tion activities could result in the intr oduction of invasive species to the Arctic marine environment. BOEM must fully an alyze the potential effect s of such introduction. BOEM acknowledged that exploratio n activities, such as those pr oposed in Shell’s plan, could contaminate Alaska’s waters with invasive species. 169 Other federal agencies and experts also recognize that oil and gas activit ies, including exploration drilli ng, could bring invasive species to Alaska’s waters. 170 “Once brought to Alaska, alien sp ecies contaminating a rig/vessel may subsequently disperse into Alaska’s ecosystems.” 171

As BOEM recognized previously, “[t]he introduc tion of aquatic invasive species . . . into a marine ecosystem can result in adverse impacts.” 172 “For example, vessels engaged in transportation and oil explorati on 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 Fina l Environmental Impact Statement (2007) (2007-2012 FEIS) at IV-15 (noting that exploratory dr illing 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., an chors, seismic airguns, hydrophone arrays, oceanbottom-survey cables).”).

170 See, e.g. , Arctic FMP EA at 76 (“With the increas e 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 repl acing 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 . . . de pends upon the pristine and natural quality of its aquatic ecosystems,” establishment of a harmful i nvasive species could al so threaten Alaska’s economic well-being. 177 BOEM experts previously warn ed 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 co ld Arctic waters would be too harsh to support invasive species. 179 These assertions are unsup ported 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 invasi ve 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 propos ed Chukchi Sea drilling when added to other past, present, an d reasonably foreseeable future actions. 182 BOEM must consider Shell’s request in the context of Sh ell’s own multi-sea, multi-year drilling plans, including adverse noise and di sturbance, air and water qua lity impacts caused by Shell’s simultaneous drilling operations (e.g., cumulative NO X , PM 2.5 , CO 2 contributions to the Arctic). BOEM must also consider the myriad other indu strial 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, MM S, “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 ha ve been able to survive in the Arctic.”); see also 2007- 2012 FEIS at IV-10 (“Ocean ecosystems and fisheries ar e 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 cumu lative 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 li ght, 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, exam ine cumulative impacts of simultaneous inter-regional OCS development in a single, coherent section rather than fragment his analysis by area. This comprehensiv e 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 thos e routes, and stat e the synergistic effect of those activitie s 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 endang ered 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 plan ned to take place proximate to a key feeding and resting area for bowhead whal es in the Beaufort Sea. 186

If Shell drills its wells in bot h the Beaufort and Chukchi seas in 2012 and beyond, as it intends, bowheads may encounter Shell’s exploration activ ities in both seas over consecutive years. Thousands of bowheads will be potentially aff ected by the drilling, ice management, borehole seismic surveying, and vessel traffic, and the danger of a biologically signif icant impact will be especially high if cows and calves are e xposed to the multiple disturbances.

Moreover, both ConocoPhillips and Statoil have i ndicated that they are pr eparing for exploratory drilling in the Chukchi Sea begi nning 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 sh ifts 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 cumu lative 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 compan ies 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 activit ies in Canadian and Russian waters must be considered as well. 188

J. Alternatives

BOEM must consider alternatives to Shell’s prop osed 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 ex ample, requiring Shell to stop dr illing 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 re strict 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 bu t equally valid knowledge system that can help expand understanding of the effects of Shell’s dr illing plan and supplemen t 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 tradi tional knowledge in the Arctic. Major projects, such as the Arctic Counc il’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-manag ement organizations, and other Alaska Native organizations is one way of incorporating not just knowledge, but the ho lders of that knowledge into the decision-making process. Greater invol vement by Arctic peoples in the governance of their regions and communities allows their knowledge to benefit modern institutions and increases the likelihood of lasti ng 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/ope nwater/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 lo cal and traditional knowledge into its analysis of the effects of Shell’s drilling.

L. Environmental Justice Analysis

BOEM must address environmental justice concer ns and analyze the disproportionate impacts of Shell’s exploration on Arctic co astal communities. Executive Or der 12898, “Federal Actions to Address Environmental Justice in Minority Popu lations and Low-Income Populations,” provides that “each Federal agency shall make achievi ng environmental justice part of its mission by identifying and addressing, as appropriate, disp roportionately high and adverse human health or environmental effects of its programs, policies, and activities on minor ity 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 hum an 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 pr ocedures under the NEPA for identifying and addressing environmental justi ce 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 partic ipation process, directing that “each Federal agency shall provide opportunities for community input in the NEPA pro cess.” Agencies are further directed to “identify potential effect s and mitigation measures in consultation with affected communities, and improve the accessi bility 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 subs equent increases in respiratory problems as well as contamination of subsistence resources through wate r and air pollution. BOEM is obligated by Executive Order 12898 and subsequent guidance from CEQ 194 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 woul d affect subsistence users) and to address community concerns.

Additionally, Shell’s drilling may negatively aff ect Alaska Native subsistence hunting in the Chukchi Sea. Shell’s drilling also threatens su bsistence fishing and hunting of whales, seals and walrus. These threats extend beyond simple loss of food or human lif e. 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 succe ssful hunts, and share food throughout the village.

Environmental justice compels a full public proc ess before BOEM makes decisions about the Chukchi Plan. NEPA requires effects on s ubsistence 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 tri ggers the agency’s obliga tions 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, specta cled 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 consul tation 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 no t jeopardize a listed species; its decision to rely on a . . . biological opinion must not ha ve 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 biol ogical opinion “to establ ish 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 ga s activities in the Chukchi Sea, none adequately consider the effects of Shell’s pl anned 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 re gional biological opini on in July 2008 for oil and gas leasing and exploration. 199 Although it concludes that je opardy is not likely to occur based on a consideration of potentia l effects at the programmatic leve l, it also notes that there is the possibility of greater harm from site-speci fic exploration activitie s, including icebreaker operations and drilling. In summar izing the effects of noise and di sturbance, the op inion states:

Depending on their timing, location, and numbe r, these activities potentially could produce sufficient noise and dist urbance that whales might a void 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 opi nion’s conclusion: Due to “the pot ential for noise disturbance to displace whales from important feeding areas, sp ecial 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 Shel l’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 cl ear that review of Shell’s proposal in the wake of the Gulf of Mexico spill would require more time. In th e 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 opini on’s conclusions about the potential effects of an oil spill. When discussing producti on, NMFS recognizes that were a large amount of fresh oil to come into contac t 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 ar ea that is favored for feeding, and during a period that will overlap with the fall migration, the probabi lities 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 C hukchi 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 explorat ion in the Beaufort and Chukchi seas. 205 However, BOEM is obligated to reinitiate consul tation 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 subse quent investigations and reports and new information about the status of polar bears and th e continued retreat of summer sea-ice requires re-initiat ion of consultation with FWS.

On December 7, 2010, approximately 187,157 square mile s of polar bear cri tical habitat in and around the Beaufort and Chukchi s eas was designated under the ESA. 207 The rule became effective on January 6, 2011, tr iggering all the affirmative obligations and prohibitory restrictions of the ESA. E xploration drilling in the Chukchi Sea may destroy or adversely modify polar bear critical habi tat 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. Furthermor e, 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 dr illing activities in the Chukchi Sea destroy and adversely modify the polar bear’s critical habi tat. 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 signifi cant effects of the Chukchi Pla n, and it must engage in and complete consultation with NMFS and FWS pursu ant 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 Chukch i 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