Arctic National Wildlife Refuge (ANWR): Controversies for the 109th Congress
Released: 2006-07-07T00:00:00

Most Recent Developments

On May 25, 2006, the House passed H.R. 5429 to open ANWR to development(yeas 225, nays 201, Roll Call #209). On March 16, 2006, the Senate passed the FY2007 budgetresolution ( S.Con.Res. 83 ; yeas 51, nays 49, Roll Call #74; no written report). Its solereconciliation instruction (Â§201) directed the Committee on Energy and Natural Resources to reducebudget authority by an amount equal to predicted revenues from ANWR development. The Housebudget resolution, as passed ( H.Con.Res. 376 , H.Rept. 109-402 ), did not have anyANWR language, nor direction for the House Resources Committee. If the Senate version isretained in the conference report, the language would facilitate inclusion of ANWR development ina reconciliation bill; reconciliation bills are not subject to Senate filibusters. However, it is unclearwhether agreement will be reached, and the House is proceeding on appropriations bills in theabsence of a final agreement.

Background and Analysis

The Arctic National Wildlife Refuge (ANWR) consists of 19 million acres in northeastAlaska. It is administered by the Fish and Wildlife Service (FWS) in the Department of the Interior(DOI). Its 1.5-million-acre coastal plain is viewed as one of the most promising U.S. onshore oil andgas prospects. According to the U.S. Geological Survey (USGS), the mean estimate of technically recoverable oil on the federally-owned land in the Refuge is 7.7 billion barrels (billion bbl), and thereis a small chance that over 11.8 billion bbl could be recovered on the federal lands. The meanestimate of economically recoverable oil (at $55/bbl in 2003 dollars) on the federal lands id 7.14billion bbl and there is a small chance that the federal lands could have over 10.7 billion bbl of economically recoverable oil. That amount would be nearly as much as the single giant field atPrudhoe Bay, found in 1967 on the state-owned portion of the coastal plain west of ANWR, nowestimated to have held almost 14 billion bbl of economically recoverable oil.

Moreover, if Congress opens federal lands in ANWR to development, current law would alsoopen Native lands. In addition, nearby onshore development would also make state lands (alreadylegally open to development) along the coast more economically attractive, and as a result, thesestate lands might also become more attractive to industry. While only the federal lands wouldproduce income from bonus bids, rents, and royalties, USGS figures show that when state and Nativelands are considered, the mean estimates of economically recoverable oil rises to 9.7 billion bbl, andthere is a small chance that economically recoverable oil in the three ownerships might total over14.6 billion bbl. (See "Oil," below, for further discussion.)

The Refuge, especially the nearly undisturbed coastal plain, also is home to a wide varietyof plants and animals. The presence of caribou, polar bears, grizzly bears, wolves, migratory birds,and other species in this wild area has led some to call the area "America's Serengeti." Someadvocates have proposed that the Refuge and two neighboring parks in Canada become aninternational park, and several species found in the area (including polar bears, caribou, migratorybirds, and whales) are protected by international treaties or agreements. The analysis below covers,first, the economic and geological factors that have triggered interest in development, then thephilosophical, biological, and environmental quality factors that have generated opposition to it.

The conflict between high oil potential and nearly pristine nature in the Refuge creates adilemma: should Congress open the area for energy development or should the area's ecosystemcontinue to be protected from development, perhaps permanently? What factors should determinewhether, or when, to open the area? If the area is opened, to what extent can damages be avoided,minimized, or mitigated? To what extent should Congress legislate special management to guidethe manner of development, and to what extent should federal agencies be allowed to manage thearea under existing law?

Basic information on the Refuge can be found in CRS Report RL31278 , Arctic NationalWildlife Refuge: Background and Issues , by [author name scrubbed], coordinator, (hereafter cited as CRS Report RL31278 ). For legal background, see CRS Report RL31115 , Legal Issues Related toProposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge (ANWR) , by PamelaBaldwin (hereafter cited as CRS Report RL31115 ). State lands on the coastal plain are shown at http://www.dog.dnr.state.ak.us/oil/products/maps/maps.htm . An extensive presentation ofdevelopment arguments can be found at http://www.anwr.org , sponsored by a consortium ofgroups. Opponents' arguments can be found variously at http://www.alaskawild.org/ , http://www.dfait-maeci.gc.ca/can-am/washington/shared_env/default-en.asp , http://www.protectthearctic.com/ , or http://www.tws.org/OurIssues/Arctic/index.cfm?TopLevel=Home .

Legislative History of the Refuge

The energy and biological resources of northern Alaska have been controversial for decades,from legislation in the 1970s, to a 1989 oil spill, to more recent efforts to use ANWR resources toaddress energy needs or to help balance the federal budget. In November 1957, an application wasfiled to the withdraw lands in northeastern Alaska to create an "Arctic National Wildlife Range " wasfiled. On December 6, 1960, after statehood, the Secretary of the Interior issued Public Land Order2214 reserving the area as the Arctic National Wildlife Range . The potential for oil and gas leasingwas expressly preserved at that time.

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA, P.L. 92-203)to resolve all Native aboriginal land claims against the United States. ANCSA provided formonetary payments and created Village Corporations that received the surface estate to roughly 22million acres of lands in Alaska, including some in the National Wildlife Refuge System. UnderÂ§22(g) of ANCSA, these lands in Refuges were to remain subject to the laws and regulationsgoverning use and development of the particular Refuge. Kaktovik Inupiat Corporation (KIC, theNative corporation in the ANWR area) received rights to three townships in the geographic coastalplain of ANWR (and a fourth was added later). ANCSA also created Regional Corporations whichcould select subsurface rights to some lands and full title to others. Subsurface rights in Refugeswere not available.

The Alaska National Interest Lands Conservation Act of 1980 (ANILCA, P.L. 96-487 , 94Stat. 2371) renamed the Range as the Arctic National Wildlife Refuge, and expanded the Refuge,mostly south and west, to include another 9.2 million acres. Section 702(3) designated much of theoriginal Refuge as a wilderness area, but not the coastal plain, nor the newer portions of the Refuge. Instead, Congress postponed decisions on the development or further protection of the coastal plain. Section 1002 directed a study of ANWR's "coastal plain" (therefore often referred to as the 1002area ) and its resources. The resulting 1987 report (by FWS, USGS, and the Bureau of LandManagement (BLM)) was called the 1002 report or the Final Legislative Environmental ImpactStatement (FLEIS). ANILCA defined the "coastal plain" as the lands specified on an August 1980map -- language that was later administratively interpreted as excluding many Native lands, eventhough these lands are geographically part of the coastal plain. (1)

Section 1003 of ANILCA prohibited oil and gas development in the entire Refuge, or "leasing or other development leading to production of oil and gas from the range" unless authorizedby an act of Congress. (For more history of legislation on ANWR and related developments, see CRS Report RL31278 ; for legal issues, see CRS Report RL31115 . For specific actions, includingkey votes, see CRS Report RL32838 , Arctic National Wildlife Refuge: Legislative Actions Throughthe 109th Congress, First Session , by Anne Gillis, [author name scrubbed], [author name scrubbed], and PamelaBaldwin.)

Actions in the 109th Congress, First Session. Asexplained below, the ANWR debate has taken two basic routes in the 109th Congress: (a)reconciliation bills ( S. 1932 and H.R. 4241 ) under the budget process,which cannot be filibustered; and (b) other bills ( H.R. 6 , an energy bill; H.R. 2863 , Defense appropriations; and H.R. 5429 , a bill in the secondsession to open the Refuge to development) which can be. (2) (See "Omnibus Energy Legislation," below.) The FY2006 Senatebudget resolution ( S.Con.Res. 18 ) passed by the Senate Budget Committee includedinstructions to the Senate Committee on Energy and Natural Resources to "report changes in lawswithin its jurisdiction sufficient to reduce outlays by $33,000,000 in FY2006, and $2,658,000,000for the period of fiscal years 2006 through 2010." This resolution assumed that the committee wouldreport legislation to open ANWR to development, and that leasing would generate $2.5 billion inrevenues for the federal government over five years. An amendment ( S.Amdt. 168 ) onMarch 16, 2005, to remove these instructions was defeated (yeas 49, nays 51, Roll Call #52). TheHouse FY2006 budget resolution ( H.Con.Res. 95 , H.Rept. 109-17 ), while instructingthe House Resources Committee to provide somewhat smaller reductions in outlays, did not includeassumptions about ANWR revenues.

The conference agreement ( H.Con.Res. 95 , H.Rept. 109-62 ) approved by theHouse and Senate on April 28, 2005, contained reductions in spending targets of $2.4 billion overFY2006 to FY2010 for the House Resources and Senate Energy Committees that would be difficultto achieve unless ANWR development legislation were passed. The inclusion of the Senate targetparticularly set the stage for including ANWR development legislation in a reconciliation bill, sincereconciliation bills cannot be filibustered. (Reconciliation bills require only a simple majority, ratherthan the 60 votes to stop a filibuster.)

Under the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344 , as amended; 2U.S.C. Â§Â§601-688), while the target reductions of the budget resolutions are binding on thecommittees, the associated assumptions are not. The Senate Energy and Natural ResourcesCommittee did choose to meet its target by recommending ANWR legislation, and the BudgetCommittee incorporated the recommendation as Title IV of S. 1932 , the DeficitReduction Act of 2005. (3) The House Resources Committee included ANWR legislation, and other spending reductions andoffsetting collections, thereby more than meeting the Committee's targets. These measures wereincorporated by the House Budget Committee into an omnibus reconciliation bill. However, beforethe House bill came to the floor, considerable opposition to the ANWR provision developed among a number of Republicans, 24 of whom signed a letter to the Speaker opposing its inclusion. Theprovision was removed before floor consideration; S. 1932 (with the text of H.R. 4241 inserted in lieu -- i.e., minus an ANWR provision) passed the House onNovember 18, 2005 (yeas 217, Nays 215; Roll Call #601). ANWR was a major issue in conference. In the end, the conference report ( H.Rept. 109-362 ) omitted ANWR development, and thePresident signed the measure on February 8, 2006 ( P.L. 109-171 ).

ANWR in the Defense Appropriations Bill. AsCongress moved toward the December recess, and the chance of an agreement on reconciliation withan ANWR provision seemed to fade, Senator Stevens (Chair of the Defense AppropriationsSubcommittee) added an ANWR development title to the "must-pass" FY2006 Defenseappropriations bill ( H.R. 2863 ) during conference. Senators opposing ANWR wereforced to choose between filibuster of the popular measure or acquiescing to opening the Refuge. Members began a filibuster, and a cloture motion failed (yeas 56, nays 44, Roll Call #364). Whilethe conference report was approved, the relevant two Divisions (C and D) were removed throughHouse and Senate passage of S.Con.Res. 74 , correcting the enrollment of the bill ( P.L.109-148 ).

Omnibus Energy Legislation. The House ResourcesCommittee considered and marked up its portion of the omnibus energy bill on April 13, 2005,before the bill was introduced. The provisions, including an ANWR development title, wereapproved by the committee and incorporated into the House version of H.R. 6 ,introduced on April 18. The House passed H.R. 6 on April 21 (yeas 249, nays 183, RollCall #132). The Senate passed its version of H.R. 6 on June 28, 2005 (yeas 85, nays 12,Roll Call #158). The Senate' bill contained no ANWR provisions. The ANWR title was omittedin the final measure ( P.L. 109-58 ).

Actions in the 109th Congress, Second Session. On May 25, 2006, the House passed H.R. 5429 , to open ANWR to development (yeas225, nays 201, Roll Call #209). In nearly all respects, the bill was similar to the ANWR title in theHouse version of H.R. 6 . (See "Major Legislative Issues," below, for details.)

Previously, the Senate passed the FY2007 budget resolution ( S.Con.Res. 83 ;yeas 51, nays 49, Roll Call #74; no written report) on March 16, 2006. Its sole reconciliationinstruction (Â§201) directs the Committee on Energy and Natural Resources to reduce budgetauthority by an amount equal to predicted bonus bids, royalties, and rental revenues from ANWRdevelopment. According to press reports, some Senators hoped that if the final budget resolutionhas such instructions -- on this topic alone -- there would be (a) an FY2007 reconciliation bill onANWR alone; and (b) sufficient bipartisan support for this single-purpose reconciliation bill in theHouse to counterbalance opposition of the 24 Republican Members who opposed its inclusion in amuch larger FY2006 reconciliation measure in the first session. The FY2007 budget resolution aspassed by the House on May 18, 2006, did not include any such instruction ( H.Con.Res. 376 , H.Rept. 109-402 ; yeas 218, nays 210, Roll Call #158). By late June 2006, no conferenceagreement had been reached on the FY2007 budget resolution, and a reconciliation bill will not beexpected without prior agreement on a budget resolution.

The Energy Resource

The developed parts of Alaska's North Slope suggest promise for ANWR's prospects. Oil-bearing strata extend eastward from structures in the National Petroleum Reserve-Alaska throughthe Prudhoe Bay field, and may continue into and through ANWR's 1002 area.

Oil. Estimates of ANWR oil potential, both oldand new, are based on limited data and numerous assumptions about geology and economics. Recent interest has centered especially on parts of the 1002 area west and north of the Marsh Creekanticline, roughly a third of the 1002 area. (See Figure 5 in CRS Report RL31278 .) The most recentgovernment geologic study of oil and natural gas prospects in ANWR, completed in 1998 by theUSGS, (4) found anexcellent chance (95%) that at least 11.6 billion bbl of oil are present on federal lands in the 1002area. (For comparison, annual U.S. oil consumption from all sources is about 7.5 billion bbl.)

But the amount that would be economically recoverable depends on the price of oil, andcrude oil prices have increased substantially in the last two years, bringing about $70/bbl in thefutures market in late June 2006. In its latest economic assessment, USGS estimated that, at $55/bblin 2003 dollars, there is a 95% chance that 3.9 billion bbl or more could be economically recoveredand a 5% chance of 10.7 billion bbl or more on the federal lands. (5) These estimates reflect newfield development practices, and cost and price changes since USGS's 1998 assessment. Moreover,as noted earlier, about one-third more oil may be under adjacent state waters and Native lands. (6) The state waters adjacent tothe 1002 area are far from any support system or land-based development and any oil under themis not presently economic. If onshore development were to occur, allowing leases in state waters tobenefit from onshore transportation systems (airstrips, haul roads, pipelines, etc.) and supply bases(gravel mines, water treatment plants, staging areas, etc.), these areas might become more attractiveto industry. In addition, a lifting of the statutory prohibition on oil and gas development in theRefuge would not only lift the ban on Native lands but might make smaller fields on Native landsmore attractive, if they were able to share facilities with nearby development, or if they becamepreferred locations for support facilities, due to fewer restrictions on surface development. (7)

The U.S. Energy Information Administration estimated that, at a relatively fast developmentrate, production would peak 15-20 years after the start of development, with maximum dailyproduction rates of roughly 0.015% of the resource. Production at the slower rate would peak about25 years after the start of development, at a daily rate equal to about 0.0105% of the resource. Peakproduction associated with a technically recoverable resource of 5.0 billion bbl at the fasterdevelopment rate would be 750,000 bbl per day, roughly 4% of current U.S. petroleum consumption(about 20.5 million bbl per day). (For economic impacts of development, see CRS Report RS21030 , ANWR Development: Economic Impacts , by [author name scrubbed].)

Natural Gas. Large quantities of natural gas arealso estimated to be in the 1002 area. Being able to sell this gas probably would enhancedevelopment prospects of the 1002 area and the rest of the North Slope -- oil as well as gas. However, there currently is no way to deliver the gas to market. Higher gas prices in the last fewyears increased interest in the construction of a pipeline to transport natural gas from the North Slopeto North American markets -- directly and/or via shipment in liquified form in tankers. The 108thCongress acted to facilitate such a pipeline through loan guarantees ( P.L. 108-324 ).

Advanced Technologies. As North Slopedevelopment proceeded after the initial discovery at Prudhoe Bay, oil field operators developed lessenvironmentally intrusive ways to develop arctic oil, primarily through innovations in technology. New drilling bits and fluids and advanced forms of drilling -- such as extended reach, horizontal, and"designer" wells -- permit drilling to reach laterally far beyond a drill platform, with the currentrecord being seven miles at one site in China. (See CRS Report RL31022(pdf) , Arctic PetroleumTechnology Developments , by [author name scrubbed], [author name scrubbed], and Terry R. Twyman, for moreinformation.)

Reducing the footprints of development has been a major goal of development. Improvedice-based transportation infrastructure can serve remote areas during the exploratory drilling phaseon insulated ice pads. However, for safety reasons, use of ice roads and pads may be limited in themore hilly terrain of the 1002 area: on a slope, gravel structures provide greater traction than icestructures, and have been permitted for exploration on state lands south of Prudhoe Bay. In additionto ice technology, industry has been experimenting with essentially modified offshore platformsmounted on supporting legs to hold exploration rigs above the tundra. These rigs may offer accessfor exploration in areas lacking sufficient water or too hilly to permit ice technology.

At the same time, warming trends in arctic latitudes have already shortened winter accessacross the tundra by 50% over the last 30 years and led to changes in the standards for use of iceroads. If these trends continue, heavy reliance on ice technology could be infeasible and might forcegreater reliance on gravel structures, with inherently longer-lasting impacts. Rigid adherence to icetechnology (instead of gravel construction) might put some marginal fields out of reach due to thehigh cost of exploration, development, or operation. Moreover, fields that begin with few roads mayexpand their gravel road network as the field expands.

Because it is held as a model of modern development, the history of the Alpine field, locatedalong the border of the National Petroleum Reserve-Alaska (NPRA) west of Prudhoe Bay, isrelevant. Run by ConocoPhillips, it was considered innovative because of the short road connectingthe two initial pads, and the lack of a road connection with the remainder of North Slopedevelopment, except in winter via ice road. However, with the approval of five additional pads, theexpansion of the field will add roughly 27.5 miles of gravel roads to the existing 3 miles of roads,and create 1,845 acres of disturbed soils, including 316 acres of gravel mines or gravelstructures. (8) Approximately 150 miles of roads would be constructed if the field is fully developed. If ANWRdevelopment follows a similar pattern, it is unclear whether energy development could be held toa stringent limit on road or other gravel construction and still allow producers to have access tootherwise economic fields.

Proponents of opening ANWR note that these technologies would mitigate the environmentalimpact of petroleum operations, but not eliminate it. Opponents maintain that facilities of any sizewould still be industrial sites and would change the character of the coastal plain, in part because thesites would be spread out in the 1002 area and connected by pipelines and (probably) roads.

The Biological Resources

The FLEIS rated the Refuge's biological resources highly: "The Arctic Refuge is the onlyconservation system unit that protects, in an undisturbed condition, a complete spectrum of the arcticecosystems in North America" (p. 46). It also said "The 1002 area is the most biologicallyproductive part of the Arctic Refuge for wildlife and is the center of wildlife activity" (p. 46). Thebiological value of the 1002 area rests on intense productivity in the short arctic summer; manyspecies arrive or awake from dormancy to take advantage of this richness, and leave or becomedormant during the remainder of the year. Caribou have long been the center of the debate over thebiological impacts of Refuge development, but other species have also been at issue. Among theother species most frequently mentioned are polar bears, musk oxen, and the 135 species ofmigratory birds that breed or feed there. (For more information on biological resources of the 1002area, see CRS Report RL31278 .)

An updated assessment of the array of biological resources in the coastal plain was publishedin 2002 by the Biological Research Division of USGS. (9) The report analyzed new information about caribou, musk oxen,snow geese and other species in the Arctic Refuge, and concluded that development impacts wouldbe significant. A follow-up memo (10) on caribou by one of the assessment's authors to the Director ofUSGS clarified that if development were restricted to the western portion of the refuge (an optionthat was being considered by the Administration), the Porcupine Caribou Herd (PCH) would not beaffected during the early calving period, since the herd is not normally found in the area at that time. Any impacts that might occur when the herd subsequently moves into the area were not discussedin the memo.

A March 2003 report by the National Academy of Sciences (NAS) highlighted impacts ofexisting development at Prudhoe Bay on arctic ecosystems. (11) Among the harmfulenvironmental impacts noted were changes in the migration of bowhead whales, in distribution andreproduction of caribou, and in populations of predators and scavengers that prey on birds. NASnoted beneficial economic and social effects of oil development in northern Alaska and creditedindustry for its strides in decreasing or mitigating environmental impacts. It also said that somesocial and economic impacts have not been beneficial. The NAS report specifically avoideddetermining whether any beneficial effects were outweighed by harmful effects.

FWS has recently begun a review to determine whether polar bears should be listed asthreatened under the Endangered Species Act (71 Fed. Reg. 6745, Feb. 9, 2006). Among theinformation to be considered are the effects of accelerated polar climate change on polar bears andtheir prey (primarily seals), threats to denning habitat, and effects of oil and gas development. Thelisting of polar bears could have a significant impact on energy development in ANWR, since theFLEIS stressed the unusual importance of the 1002 area as a location for dens of pregnant femalepolar bears.

In a larger context, many opponents of development see the central issue as whether the areashould be maintained as an intact ecosystem -- off limits to development -- not whether developmentcan be accomplished in an environmentally sound manner. In terms that emphasize deeply heldvalues, supporters of wilderness designation argue that few places as untrammeled as the 1002 arearemain on the planet, and fewer still on the same magnificent scale. Any but the most transitoryintrusions (e.g., visits for recreation, hunting, fishing, subsistence use, research) would, in their view,damage the integrity and the "sense of wonder" they see in the area. The mere knowledge that apristine place exists, regardless of whether one ever visits it, can be important to those who view thedebate in this light.

Major Legislative Issues in the 109th Congress

Some of the issues that have been raised most frequently in the current ANWR debate aredescribed briefly below. In addition to the issue of whether development should be permitted at all,key aspects of the current debate include restrictions that might be specified in legislation, includingthe physical size -- or footprints -- of development; the regulation of activities on Native lands; thedisposition of revenues; labor issues; oil export restrictions; compliance with the NationalEnvironmental Policy Act; and other matters. (References below to the "Secretary" refer to theSecretary of the Interior, unless stated otherwise.) The analysis below describes H.R. 5429 as passed by the House; the provisions of Division C of the conference report on H.R. 2863 (the Defense bill), and Â§4001 of S. 1932 , the Senatereconciliation bill. Because of the lack of detail in Â§4001, many aspects of ANWR leasing wouldbe left to administrative decisions, with levels of public participation in some instances curtailedalong with judicial review, as noted below.

Environmental Direction. If Congress authorizesdevelopment, it could address environmental matters in several ways. Congress could impose ahigher standard of environmental protection because the 1002 area is in a national wildlife refugeor because of the fragility of the arctic environment, or it could legislate a lower standard to facilitatedevelopment. The choice of administering agency and the degree of discretion given to it could alsoaffect the approaches to environmental protection. For example, Congress could make either FWSor BLM the lead agency (with many observers assuming that FWS management would give moresupport to protecting wildlife values.. It could include provisions requiring use of "the best availabletechnology" or "the best commercially available technology" or some other general standard. Congress could also limit judicial review of some or all of a development program, includingstandards and implementation. Or, Congress could leave much of the environmental direction to theSecretary.

H.R. 5429 would name BLM as the lead agency. Section 7(a) would require theSecretary to administer the leasing program so as to "result in no significant adverse effect on fishand wildlife, their habitat, and the environment, [and to require] the application of the bestcommercially available technology...." Section 3(a)(2) would also require that this program be done"in a manner that ensures the receipt of fair market value by the public for the mineral resources tobe leased." It is unclear how the two goals of environmental protection and fair market value are torelate to each other (e.g., if environmental restrictions make some fields uneconomic). Subsections6(a)(3) and (5) would require lessees to be responsible and liable for reclamation of lands within theCoastal Plain (unless the Secretary approves other arrangements), and the lands must supportpre-leasing uses or a higher use approved by the Secretary. There are requirements for mitigation,development of regulations, and other measures to protect the environment. These includeprohibitions on public access to service roads, and other transportation restrictions. Other provisionsmight also affect environmental protection. (See "Judicial Review," below.) H.R. 2863 (Â§7) was similar to H.R. 5429. S. 1932 (Â§4001(b)(1)(B)) directed theSecretary to establish and implement an "environmentally sound" leasing system, but did not providefurther direction.

The Size of Footprints. Newer technologiespermit greater consolidation of leasing operations, which tends to reduce the size and theenvironmental impacts of development. One aspect of the debate in Congress has focused on thesize of the footprints in the development and production phases of energy leasing. The term footprint does not have a universally accepted definition, and therefore the types of structures fallingunder a "footprint restriction" are arguable (e.g., the inclusion of exploratory structures, roads, gravelmines, port facilities, etc.). (12) In addition, it is unclear whether exploratory structures, orstructures on Native lands, would be included under any provision limiting footprints. (13) The new mapaccompanying S. 1932 includes the Native lands in its definition of the Coastal Plainleasing area, but how the federal leasing program will apply to those lands is not clear. See "NewMaps," below.

Development advocates have emphasized a limit on the acreage of surface disturbance, whileopponents have emphasized the dispersal of not only the structures themselves but also their impactsover much of the 1.5 million acres of the 1002 area. One single consolidated facility of 2,000 acres(3.1 square miles) would not permit full development of the 1002 area. Instead, full developmentof the 1002 area would require that facilities, even if limited to 2,000 acres in total surface area, bewidely dispersed. Dispersal is necessary due to the limits of lateral (or extended reach) drilling: thecurrent North Slope record for this technology is 4 miles. If that record were matched on all sidesof a single pad, at most about 4% of the Coastal Plain could be developed from the single pad. Evenif the current world record (7 miles) were matched, only about 11% of the 1002 area could beaccessed from a single compact 2,000-acre facility. In addition, drilling opponents argue that energyfacilities have impacts on recreation, subsistence, vegetation, and wildlife well beyond areas actuallycovered by development.

H.R. 5429 (Â§7(d)(9)) would provide for consolidation of leasing operations toreduce environmental impacts of development. Section 7(a)(3) would further require, "consistentwith the provisions of section 3" (which include ensuring receipt of fair market value for mineralresources), that the Secretary administer the leasing program to "ensure that the maximum amountof surface acreage covered by production and support facilities, including airstrips and any areascovered by gravel berms or piers for the support of pipelines, does not exceed 2,000 acres on theCoastal Plain." The terms used are not defined in the bill and therefore the range of structurescovered by the restriction is arguable (e.g., whether roads, gravel mines, causeways, and watertreatment plants would be included under this provision). In addition, the wording might not applyto structures built during the exploratory phase. An essentially identical provision is in S. 1932 (Â§4001(f)) and H.R. 2863 (Â§7(a)(3)). H.R. 2863 alsocalled for facility consolidation (Â§7(d)(4)) and for the Secretary to develop a consolidation plan(Â§7(f)).

Native Lands. Generally, the Alaska Natives(Inuit) along the North Slope have supported ANWR development, while the Natives of interiorAlaska (Gwich'in) have opposed it, though neither group is unanimous. ANCSA resolved aboriginalclaims against the United States by (among other things) creating Village Corporations that couldselect surface lands and Regional Corporations that could select surface and subsurface rights aswell. Kaktovik Inupiat Corporation (KIC) selected surface lands (originally approximately threetownships) on the coastal plain of ANWR, but these KIC lands were administratively excluded frombeing considered as within the administratively defined "1002 Coastal Plain." A fourth townshipwas added by ANILCA, and is within the defined Coastal Plain. The four townships, totalingapproximately 92,000 acres, are all within the Refuge and subject to its regulations. The ArcticSlope Regional Corporation (ASRC) obtained subsurface rights beneath the KIC lands pursuant toa 1983 land exchange agreement. In addition, there are currently thousands of acres of conveyed orclaimed individual Native allotments in the 1002 area that are not expressly subject to its regulations. Were oil and gas development authorized for the federal lands in the Refuge, development wouldthen be allowed or become feasible on the nearly 100,000 acres of Native lands, possibly free of anyacreage limitation applying to development on the federal lands, depending on how legislation isframed. The extent to which the Native lands could be regulated to protect the environment isuncertain, given the status of allotments and some of the language in the 1983 Agreement withASRC. None of the current bills address development on the Native lands in ANWR. (See also CRS Report RL31115 , and "New Maps," below.)

New Maps. During the 109th Congress, both theHouse and Senate have created new maps of the "Coastal Plain" that will be the subject of leasing. (See CRS Report RS22326 , Legislative Maps of ANWR , by [author name scrubbed] and [author name scrubbed](hereafter cited as "CRS Report RL22326").) The Coastal Plain was defined in Â§1002 of ANILCAas the area indicated on an August, 1980 map. An administrative articulation of the boundary wasauthorized by Â§103(b) of ANILCA, and has the force of law. The 1980 map is now missing. Sincethe 1980 map is missing, evaluating whether the administrative description properly excluded theNative lands is impossible, and, as noted, the fourth Native township (selected later) is not excludedfrom the Coastal Plain by that description. The legal description required under ANILCA wascompleted in 1983 (48 Fed. Reg. 16858, Apr. 19, 1983; 50 C.F.R. Part 37, App. I), but questions alsosurround this description. (See CRS Report RL31115 .) The description excluded three Nativetownships from the articulated Coastal Plain. Some bills in various Congresses also have excludedthese same Native lands by referring to the 1980 map and the administrative description.

S. 1932 (Â§4001(a)) provided a new map, dated September 2005, to accompanyits submission to the Budget Committee for reconciliation. This map included all Native lands inthe term Coastal Plain to which the leasing provisions would apply. (See Figure 1 in CRS Report RS22326 .) However, the bill text did not refer to the Native lands, and the extent of federal controlof Native lands intended or accomplished by the map change is not clear. For example, the billdirected a 50/50 revenue split between the State of Alaska and the federal government, therebypossibly giving rise to Native claims for compensation for revenues from their lands. If this revenueprovision was not intended to apply to Native lands, it is not clear whether other provisions alsomight not apply. Also, some of the terms in the 1983 Agreement call for an express congressionaloverride to negate some of its terms, and the text of the bill did not discuss the Native lands or theAgreement. The Defense bill also rested on a USGS map dated September 2005 (Â§2(4)); it is notclear whether the map is the one referred to in the Senate bill.

H.R. 5429 does not refer to a map, but instead defines the Coastal Plain as thearea described in 50 C.F.R. Part 37, App. I (the administrative articulation of the Coastal Plain). Asdiscussed, this regulation currently excludes three Native townships, but leaves the fourth within theCoastal Plain, and arguably the leasing provisions would apply to it. The House bill raises thepossibility that the defined Coastal Plain could be expanded or reduced at some later time throughrule-making procedures.

Revenue Disposition. Another issue is whetherCongress may validly provide for a disposition of revenues other than the (essentially) 90% state -10% federal split mentioned in the Alaska Statehood Act. A court in Alaska v. United States (35Fed. Cl. 685, 701 (1996)) indicated that the language in the Statehood Act means that Alaska is tobe treated like other states for federal leasing conducted under the Mineral Leasing Act (MLA),which contains (basically) a 90%- 10% split. Arguably, Congress can establish a different, non-MLA leasing regimen -- for example, the separate leasing arrangements that govern the National PetroleumReserve-Alaska, where the revenue sharing formula is 50/50 -- but this issue was not before the courtand hence remains an open issue. (For more on this issue, see CRS Report RL31115 .)

Under Â§3(a) of H.R. 5429 , the Secretary is to establish and implement a leasingprogram for ANWR in accordance with the bill, and Â§9 states that "notwithstanding any otherprovision of law," revenues are to be shared 50/50 between the federal government and Alaska (withsome special provisions on the federal share). It can be argued that the leasing program is not "underthe MLA" and hence the different revenue-sharing provisions are not contrary to the AlaskaStatehood Act. However, if a court struck down the revenue-sharing provision, it would then haveto determine if that provision was severable -- whether Congress would have enacted the rest of thestatute without the flawed provision. H.R. 5429 does not have a "severability" provisionthat states the intent of Congress in this regard. If a court both struck down the revenue-sharingprovision and found it to be severable, then Alaska could receive 90% of ANWR revenues.

Similarly, S. 1932 also did not state that leasing would be under the MLA, andalso set out many requirements that differ from those of the MLA. "Notwithstanding any otherprovision of law," it too directed that receipts from leasing and operations "authorized under thissection" be divided equally between the state of Alaska and the federal government. Because of thechange in the Senate definition of Coastal Plain and the accompanying map, the bill might haveincluded revenues from Native lands in the 50/50 split. The Defense bill (Division D, Â§1) alsoprovided for a 50/50 split, and contained various provisions for distribution of certain percentagesof the federal share to various purposes, including hurricane relief. In addition, Â§14 of Division Cof the Defense bill contained a severability provision that provided explicitly that if any portion ofeither Division C or D were held to be unconstitutional , the remainder of the two divisions wouldnot be affected. It is not clear to what provisions the severability language might have applied. Asdiscussed, some issues regarding the revenue split might remain, but those issues might rest oncontractual interpretations, rather than constitutional concerns. However, if the 50/50 revenue splitwere struck down, Alaska could receive 90% of the ANWR revenues and, if so, fewer federal fundswould be available for programs premised on the 50% federal share.

Project Labor Agreements (PLAs). A recurringissue in federal and federally funded projects is whether project owners or contractors should berequired, by agreement, to use union workers. PLAs establish the terms and conditions of work thatwill apply for the particular project, and may also specify a source to supply the craft workers. Proponents of PLAs, including construction and other unions, argue that PLAs ensure a reliable,efficient labor source, help keep costs down, and ensure access for union members to federal andfederally funded projects. Opponents, including nonunion firms and their supporters, believe thatPLAs inflate costs, reduce competition, and unfairly restrict access to those projects. There is littleindependent information to weigh the validity of the conflicting assertions.

H.R. 5429 (Â§6(b)) would direct the Secretary to require lessees in the 1002 areato "negotiate to obtain a project labor agreement" -- "recognizing the Government's proprietaryinterest in labor stability and the ability of construction labor and management to meet the particularneeds and conditions of projects to be developed...." H.R. 2863 (Â§6(b)) containedsimilar provisions, but S. 1932 had no similar provision.

Oil Export Restrictions. Export of North Slopeoil in general, and any ANWR oil in particular, has been an issue, beginning at least with theauthorization of the Trans Alaska Pipeline System (TAPS) and continuing into the current ANWRdebate. The Trans Alaska Pipeline Authorization Act ( P.L. 93-153 , 43 U.S.C.Â§1651 et seq.)specified that oil shipped through it could be exported, but only under restrictive conditions. WhenCalifornia prices fell in the mid-1990s, causing complaints from California and North Slopeproducers, Congress amended the MLA to provide that oil transported through the pipeline may beexported unless the President finds, after considering stated criteria, that exports are not in thenational interest ( P.L. 104-58 , 30 U.S.C. Â§185(s)). North Slope exports rose to a peak of 74,000bbl/day in 1999, or 7% of North Slope production. These exports ceased voluntarily in May 2000,and have since been minimal. If Congress wished to limit export of oil from the 1002 area byapplying the restriction to oil transported through TAPS, the restriction might not be effective: oilshipment via tanker could become practical if current warming trends in the Arctic continue and ifcrude oil prices provide sufficient incentive.

Recent proposed bans on export of ANWR oil have not been tied to shipment through TAPS. H.R. 5429 (Â§6(a)(8)) would prohibit any export of oil produced in the 1002 area as acondition of a lease. S. 1932 (Â§4001(g)) contained a similar provision, as did H.R. 2863 (Â§12). However, inasmuch as other North Slope oil is allowed to beexported, it would appear that prohibiting the export of ANWR oil could be moot: producers aimingto tap the export market would substitute other North Slope oil to meet the demand.

NEPA Compliance. The National EnvironmentalPolicy Act of 1969 (NEPA, P.L. 91-190; 43 U.S.C. Â§Â§4321-4347) requires the preparation of anenvironmental impact statement (EIS) to examine major federal actions with significant effects onthe environment, and to provide public involvement in agency decisions. The last full EISexamining the effects of leasing development in ANWR was completed in 1987, and some observersassert that a new EIS is needed to support development now. NEPA requires an EIS to analyze anarray of alternatives, including a "no action" alternative. Some development supporters would liketo see the process truncated, in light of past analyses and to hasten production. Developmentopponents, and NEPA supporters, argue that the 19-year gap and changed circumstances since thelast analysis necessitates a thorough update, and stress the flaws they found in the 1987 FLEIS.

Section 3(c) of H.R. 5429 would deem the 1987 FLEIS to satisfy NEPArequirements with respect to prelease activities and the development and promulgation of leasingregulations, and require the Secretary to prepare an EIS of all other actions authorized by the subtitlebefore the first lease sale. Consideration of alternatives would be limited to two choices, a preferredleasing action and a "single leasing alternative." Compliance with the subsection would be deemedto satisfy all requirements to analyze the environmental effects of proposed leasing. H.R. 2863 (Division C, Â§3(c)) was essentially identical. S. 1932 (Â§4001(c)) had similar provisions, but did not expressly require an EIS for leasing.

Compatibility with Refuge Purposes. Undercurrent law for the management of national wildlife refuges (16 U.S.C.Â§668dd), and under 43 C.F.R.Â§3101.5-3 for Alaskan refuges specifically, an activity may be allowed in a refuge only if it iscompatible with the purposes of the particular Refuge and with those of the Refuge System as awhole. Section 3(c) of H.R. 5429 , Â§3(c) of H.R. 2863 , and Â§4001(c) of S. 1932 state that the energy leasing program and activities in the coastal plain aredeemed to be compatible with the purposes for which ANWR was established and that no furtherfindings or decisions are required to implement this determination. This language appears toeliminate the usual compatibility determination processes. The extent of leasing "activities" thatmight be included as compatible is debatable and arguably might encompass necessary supportactivities, such as construction and operation of port facilities, staging areas, and personnel centers.

Judicial Review. Leasing proponents urge thatany ANWR leasing program be put in place promptly and argue that expediting, curtailing, orprohibiting judicial review is desirable to achieve that goal. Judicial review can be expeditedthrough procedural changes such as reducing the time limits within which suits must be filed,avoiding some level of review, curtailing the scope of the review, or increasing the burden imposedon challengers. H.R. 5429 (Â§8) would require that any complaints seeking judicialreview be filed within 90 days. Section 8(a)(2) provides that suits are to be filed in the Court ofAppeals in Washington, DC, as did H.R. 2863 (Â§8(a)). H.R. 5429 (Â§8(a)(3))would also limit the scope of review by stating that review of a secretarial decision, includingenvironmental analyses, would be limited to whether the Secretary complied with the terms of theANWR subtitle, that it would be based on the administrative record, and that the Secretary's analysisof environmental effects is "presumed to be correct unless shown otherwise by clear and convincingevidence to the contrary." This standard is unclear, but in this context arguably could makeoverturning a decision of the Secretary more difficult. S. 1932 and H.R. 2863(Â§4001(c) and Â§8(a) respectively) were similar. S. 1932 omitted the presumptionconcerning the Secretary's analysis of environmental effects.

Special Areas. Some have supported setting asidecertain areas in the Coastal Plain for protection of their ecological or cultural values. This could bedone by designating the areas specifically in legislation, or by authorizing the Secretary to set asideareas to be selected after enactment. The FLEIS identified four special areas that together total morethan 52,000 acres. The Secretary could be required to restrict or prevent development in these areasor any others that may seem significant, or to select among areas if an acreage limitation on suchset-asides is imposed. H.R. 5429 (Â§3(e)) would allow the Secretary to set aside up to45,000 acres (and names one specific special area) in which leases, if permitted, would forbid surfaceoccupancy. Because the four special areas are larger than this total, the Secretary would be requiredto select among these areas or any others that may seem significant. Section 3(f) also states that theclosure authority in the ANWR title is to be the Secretary's sole closure authority, which might limitpossible secretarial actions under the Endangered Species Act. H.R. 2863 (Â§3(e)) wasessentially identical. S. 1932 had no provision for special areas.

Non-Development Options. Several options areavailable to Congress that would either postpone or forbid development, unless Congress were tochange the law. These options include allowing exploration only, designating the 1002 area aswilderness, and taking no action. Some have argued that the 1002 area should be opened toexploration first, before a decision is made on whether to proceed to leasing. Those with this viewhold that with greater certainty about any energy resources in the area, a better decision could bemade about opening some or all of the 1002 area for leasing. This idea has had little support overthe years because various interests see insufficient gain from such a proposal. ( CRS Report RL31278 discusses the pros and cons of this approach.)

Another option is wilderness designation. Energy development is not permitted in wildernessareas, unless there are pre-existing rights or unless Congress specifically allows it or reverses thedesignation. Wilderness designation would tend to preserve existing recreational opportunities andrelated jobs, as well as the existing level of protection of subsistence resources, including thePorcupine Caribou Herd. H.R. 567 and S. 261 would designate the 1002area as part of the National Wilderness System.

Under ANILCA and the 1983 Agreement, development of the surface and subsurfaceholdings of Native corporations in the Refuge is precluded as long as oil and gas development is notallowed on the federal lands in the Refuge. Because current law prohibits development unlessCongress acts, the no action option also prevents energy development on both federal and Nativelands. Those supporting delay often argue that not enough is known about either the probability ofdiscoveries or about the environmental impact if development is permitted. Others argue that oildeposits should be saved for an unspecified "right time."

Selected Legislation in the 109th Congress

P.L. 109-58 ( H.R. 6 , Barton)

An omnibus energy act; Title XXII opens ANWR coastal plain to energy development. Introduced April 18, 2005; considered and marked up by Committee on Resources April 13, 2005(no report). Considered by House April 20-21, 2005. Markey/Johnson amendment( H.Amdt. 73 ) to strike ANWR title rejected (yeas 200, nays 231, Roll Call #122) April20. Passed April 21, 2005 (yeas 249, nays 183, Roll Call #132). Passed Senate, with no ANWRdevelopment provision, June 28, 2005 (yeas 85, nays 12, Roll Call #158). Conference agreementomits ANWR title; signed by President August 8, 2005.

P.L. 109-148 ( H.R. 2863 )

Provides for Defense appropriations. Conference report ( H.Rept. 109-359 ) filed December18, 2005 (Division C & D provided for ANWR development and revenue disposition). Cloturemotion on filibuster on ANWR provision failed December 21, 2005 (yeas 56, nays 44, Roll Call#364). S.Con.Res. 74 corrected enrollment of the bill to delete Divisions C and D. Passed Senate December 21, 2005 (yeas 48, nays 45, Roll Call #365). Passed House December 22,2005 on voice vote. Signed by President, December 30, 2005.

P.L. 109-171 ( S. 1932 )

Omnibus budget reconciliation; Title IV would have provided for ANWR development. Introduced, referred to Committee on Budget, and reported October 27, 2005 (no written report). Passed Senate November 3, 2005 (yeas 52, nays 47, Roll Call #303). Passed House (amended)November 18, 2005. (For House action, see also H.R. 4241 .) Title IV dropped inconference. House approved conference report ( H.Rept. 109-362 ; yeas 212, nays 206, Roll Call#670). Senate approved report with an amendment (yeas 51, nays 50, Roll Call #363), December21, 2005. House agreed to Senate amendment (yeas 216, nays 214, Roll Call #4), February 1, 2006. Signed by President, February 8, 2006.

H.Con.Res. 95 (Nussle)

FY2006 budget resolution, included spending targets for Committee on Resources. Introduced, referred to Committee on Budget, and reported March 11, 2005 ( H.Rept. 109-17 ). Passed House March 17, 2005 (yeas 218, nays 214, Roll Call #88). Passed (amended) Senate in lieuof S.Con.Res. 18 (no report). April 28, 2005, House approved conference report( H.Rept. 109-62 ; yeas 214, nays 211, Roll Call #149), and Senate approved conference report (yeas52, nays 47, Roll Call #114).

H.Con.Res. 376 (Nussle)

FY2007 budget resolution, included spending targets for Committee on Resources. Introduced, referred to Committee on Budget, and reported March 31, 2006 ( H.Rept. 109-402 ). Passed House May 18, 2006 (yeas 218, nays 210, Roll Call #158).

H.R. 4241 (Nussle)

FY2006 budget reconciliation. Title to open ANWR struck before floor consideration. Introduced November 7, 2005; passed House November 18, 2005 (yeas 217, nays 215, Roll Call#601). Inserted in lieu of the text of S. 1932 .

H.R. 5429 (Pombo)

Would create a leasing program to open ANWR to energy development. Introduced May 19,2006; referred to Committee on Resources; passed House May 25, 2006 (yeas 225, nays 201, RollCall #209).

S.Con.Res. 18 (Gregg)

FY2006 budget resolution; includes spending targets for Committee on Energy and NaturalResources. Introduced January 31, 2005; referred to Committee on Budget. Reported March 10,2005 (no written report). Cantwell amendment ( S.Amdt. 168 , relating to ANWR)defeated March 16, 2005 (yeas 49, nays 51, Roll Call #52). Passed Senate March 17, 2005 (yeas 51,nays 49, Roll Call #81). Senate incorporated measure in H.Con.Res. 95 as anamendment; passed H.Con.Res. 95 in lieu.

S.Con.Res. 83 (Gregg)

FY2007 budget resolution; direction for cuts in mandatory spending targets only forCommittee on Energy and Natural Resources. Introduced and reported by Committee on Budget onMarch 10, 2006 (no written report). Passed Senate March 16, 2006 (yeas 51, nays 49, Roll Call#74).

For Additional Reading

National Academy of Sciences Cumulative Environmental Effects of Oil and Gas Activities onAlaska's North Slope (March 2003). 452 p. (See http://www.nas.edu/ .)

Nellemann, C. and R. D. Cameron. Cumulative Impacts of an Evolving Oil-field Complex on theDistribution of Calving Caribou . Canadian Jour. of Zoology. 1998. Vol. 76, p. 1425.

U.S. Department of the Interior. Bureau of Land Management. Overview of the 1991 ArcticNational Wildlife Refuge Recoverable Petroleum Resource Update . Washington, DC, April8, 1991. 2 maps.

U.S. Department of the Interior. Fish and Wildlife Service, Geological Survey, and Bureau of LandManagement. Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource Assessment . Report and Recommendation to the Congress of the United States and Final LegislativeEnvironmental Impact Statement. Washington, DC, 1987.

U.S. Department of the Interior. Geological Survey. The Oil and Gas Resource Potential of theArctic National Wildlife Refuge 1002 Area, Alaska . 1999. 2 CD set. USGS Open FileReport 98-34.

U.S. Department of the Interior. Geological Survey. Arctic Refuge Coastal Plain TerrestrialWildlife Research Summaries . Biological Science Report USGS/BRD/BSR-2002-0001.

U.S. Department of the Interior. Geological Survey. "Evaluation of additional potentialdevelopment scenarios for the 1002 Area of the Arctic National Wildlife Refuge." Memorandum from Brad Griffith, Assistant Leader, Alaska Cooperative Fish and WildlifeResearch Unit, to Charles D. Groat, Director, U.S. Geological Survey. April 4, 2002.

U.S. Department of the Interior. Geological Survey. Economics of 1998 U.S. Geological Survey's1002 Area Regional Assessment: An Economic Update . USGS Open File Report 2005-1359. Washington, DC, 2005.

U.S. General Accounting Office. Arctic National Wildlife Refuge: An Assessment of Interior'sEstimate of an Economically Viable Oil Field . Washington, DC. July, 1993. GAO/RCED-93-130.

U.S. National Energy Policy Development Group. National Energy Policy . Washington, DC. May,2001.