Order Code IB10111
Issue Brief for Congress
Received through the CRS Web
Arctic National Wildlife Refuge (ANWR):
Controversies for the 108th Congress
Updated March 12, 2003
M. Lynne Corn and Bernard A. Gelb
Resources, Science, and Industry Division
Pamela Baldwin
American Law Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Legislative History of the Refuge
Legislation in the 107th Congress
Legislation in the 108th Congress
The Energy Resource
Oil
Natural Gas
Advanced Technologies
The Biological Resources
Major Legislative Issues in the 108th Congress
Environmental Direction
The Size of the Footprint
Native Lands
Revenue Disposition
Project Labor Agreements
Natural Gas Pipeline
Oil Export Restrictions
NEPA Compliance
Compatibility with Refuge Purposes
Judicial Review
Special Areas
Non-Development Options
LEGISLATION
FOR ADDITIONAL READING

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Arctic National Wildlife Refuge (ANWR):
Controversies for the 108th Congress
SUMMARY
One major element of the energy debate
hensive energy bill) passed both chambers.
in the 108th Congress is whether to approve
The House version contained provisions to
energy development in the Arctic National
open the refuge to development, while the
Wildlife Refuge (ANWR) in northeastern
Senate version did not. The bill did not
Alaska, and if so, under what conditions, or
emerge from conference.
whether to continue to prohibit development
to protect the area’s biological resources. The
Development advocates argue that
Refuge is an area rich in fauna, flora, and
ANWR oil would reduce U.S. energy mar-
commercial oil potential. Sharp increases in
kets’ exposure to crises in the Middle East;
prices of gasoline and natural gas from late
boost North Slope oil production; extend the
2000 to early 2001, followed by terrorist
economic life of the TransAlaska Pipeline
attacks, and further increases in 2003, have
System; and create many jobs in Alaska and
renewed the ANWR debate for the first time
elsewhere. They maintain that ANWR oil
in 5 years; however, its development has been
could be developed with minimal environ-
debated for over 40 years. Few U.S. locations
mental harm, and that the footprint of
onshore stir as much industry interest as the
development could be limited to 2,000 acres.
northern area of ANWR. Current law forbids
Opponents argue that intrusion on this ecosys-
energy leasing in the Refuge.
tem cannot be justified on any terms; that oil
found (if any) would provide little energy
In the 108th Congress, one bill, H.R. 39,
security and could be replaced by cost-effec-
to open the refuge to development, has been
tive alternatives; and that job claims are over-
introduced in the 108th Congress. Two bills
stated. They also maintain that proposals to
(H.R. 770 and S. 543) have been introduced to
limit any footprint size have not been worded
designate the area as wilderness.
so as to apply to Native lands, which could
then be developed if the Arctic Refuge were
Six bills were introduced in the 107th
opened.
Congress that would have directly affected the
future of the Refuge. Four bills would have
If Congress does not act, the status quo,
opened the refuge to development. Two
which prohibits development unless Congress
would have designated the coast of ANWR as
acts, will continue.
wilderness. Only one bill (H.R. 4, a compre-

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MOST RECENT DEVELOPMENTS
President Bush continues to support ANWR development as part of a national energy
strategy. However, some Members of Congress have indicated their continuing opposition
to such proposals. In the Omnibus Appropriations Act (P.L. 108-7) for FY2003, Congress
arguably left the door open to pre-leasing studies in the Refuge. One bill, H.R. 39, has been
introduced to authorize energy development in the Refuge. Two bills (H.R. 770 and S. 543)
have been introduced to designate the area as wilderness. A March 2003 report by the
National Academy of Sciences analyzed harmful and beneficial effects of existing
development on the North Slope, and considered possible effects of expansion of
development.
BACKGROUND AND ANALYSIS
The Arctic National Wildlife Refuge (ANWR) consists of 19 million acres in northeast
Alaska. 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 and gas prospects. According to the U.S. Geological Survey (USGS), there is
even a small chance that taken together, the fields on this federal land could hold as much
economically recoverable oil as the giant field at Prudhoe Bay, found in 1967 on the state-
owned portion of the coastal plain west of ANWR, now estimated to have held 11-13 billion
barrels.
At the same time, the Refuge, and especially the coastal plain, is home to a wide variety
of plants and animals. The presence of caribou, polar bears, grizzly bears, wolves, migratory
birds, and many other species in a nearly undisturbed state has led some to call the area
“America’s Serengeti.” The Refuge and two neighboring parks in Canada have been
proposed for an international park, and several species found in the area (including polar
bears, caribou, migratory birds, and whales) are protected by international treaties or
agreements. The analysis below covers, first, the economic and geological factors that have
triggered new interest in development, followed by the philosophical, biological, and
environmental quality factors that have triggered opposition to it.
The conflict between high oil potential and nearly pristine nature in the Refuge creates
a dilemma: should Congress open the area for oil and gas development or should the area’s
ecosystem be given permanent protection from development? What factors should determine
whether 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 of
the area if it is developed, and to what extent should federal agencies be allowed to manage
the area under existing law?
(Basic information on the Refuge can be found in CRS Report RL31278 and at the FWS
web site, [http://www.r7.fws.gov/nwr/arctic], which includes links to a number of other
organizations interested in the area. Maps of the state’s portion of the coastal plain showing
e x i s t i n g o i l d e v e l o p m e n t a r e a s c a n b e f o u n d a t
[http://www.dog.dnr.state.ak.us/oil/products/maps/maps.htm]. An extensive presentation of
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development arguments can be found at [http://www.anwr.org], sponsored by a consortium
of groups. Opponents’ arguments can be found variously at [http://www.alaskawild.org],
[http://www.protectthearctic.com/], or [http://www.tws.org/arctic/].)
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 to address energy needs or to help balance the federal budget. In
November 1957, an application for the withdrawal of lands in northeastern Alaska to create
an “Arctic National Wildlife Range” was filed. The first group actually to propose to
Congress that the area become a national wildlife range, in recognition of the many game
species found in the area, was the Tanana Valley (Alaska) Sportsmen’s Association in 1959.
On December 6, 1960, after statehood, the Secretary of the Interior issued Public Land Order
2214 reserving the area as the “Arctic National Wildlife Range.”
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
for monetary payments and also created Village Corporations that received the surface estate
to approximately 22 million acres of lands in Alaska. Village selection rights included the
right to choose the surface estate in a certain amount of lands within the National Wildlife
Refuge System. Under §22(g) of ANCSA, the chosen lands were to remain subject to the
laws and regulations governing use and development of the particular Refuge. Kaktovik
Inupiat Corporation (KIC, the local corporation) received rights to three townships along the
coast of ANWR. ANCSA also created Regional Corporations which could select subsurface
rights to some lands and full title to others. Subsurface rights in National Wildlife Refuges
were not available, but in-lieu selections to substitute for such lands were provided.
In 1980, Congress enacted the Alaska National Interest Lands Conservation Act
(ANILCA, P.L. 96-487, 94 Stat. 2371), which included several sections about ANWR. The
Arctic Range was renamed the Arctic National Wildlife Refuge, and was expanded, mostly
southward and westward, to include an additional 9.2 million acres. Section 702(3) of
ANILCA designated much of the original Refuge as a wilderness area, but not the coastal
plain.1 Instead, Congress postponed decisions on the development or further protection of
the coastal plain. Section 1002 of ANILCA directed a study of ANWR’s “coastal plain”
(which therefore is often referred to as the “1002 area”) and its resources to be completed
within 5 years and 9 months of enactment. The resulting 1987 report was called the 1002
report or the Final Legislative Environmental Impact Statement (FLEIS). ANILCA defined
the “coastal plain” as the lands on a specified map – language that was interpreted as
excluding most Native lands, even though these lands are geographically part of the coastal
plain.
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
authorized by 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.)
1 Newer portions of the Refuge were not included in the wilderness system.
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In more recent years, the 104th Congress attempted to authorize the opening of ANWR
in the FY1996 reconciliation bill (H.R. 2491, §§5312-5344), but the measure was vetoed.
President Clinton cited the Arctic Refuge sections as one of his reasons for vetoing the
measure. (For key provisions of that legislation, see archived CRS Issue Brief IB95071,
available from the authors.)
While bills were introduced, the ANWR issue was not debated in the 105th Congress.
In the 106th Congress, bills to designate the 1002 area of the Refuge as wilderness and others
to open the Refuge to energy development were again introduced. Assumptions about
ANWR revenues were included in the FY2001 budget resolution (S.Con.Res. 101) as
reported by the Senate Budget Committee on March 31, 2000. An amendment to remove the
language was tabled. However, conferees rejected the language. The conference report on
H.Con.Res. 290 did not contain this assumption. The report was passed by both Houses on
April 13.
Only three recorded votes relating directly to ANWR development occurred from the
101st to the 106th Congress. All were in the Senate:
! In the 104th Congress, on May 24 1995, there was a motion to table an
amendment that would have removed ANWR development titles from the
Senate version of H.R. 2491, the reconciliation bill. The motion passed
(Roll Call No.190), leaving ANWR development in the bill.
! In the same Congress, on October 27, 1995, there was another motion to
table a similar amendment to H.R. 2491. This motion also passed (Roll Call
No.525).
! In the 106th Congress, the vote to table an amendment to strip ANWR
revenue assumptions from the budget resolution (S.Con.Res. 101; see
above) was passed (April 6, 2000, Roll Call No.58), leaving those
assumptions in the bill.
(For a more extensive history of congressional actions concerning ANWR, see CRS Report
RL31725, Arctic National Wildlife Refuge: Legislative Issues Through the 107th Congress.)
Legislation in the 107th Congress. H.R. 4, containing ANWR development
provisions, passed the House on August 2, 2001 (yeas 240, nays 189; Roll Call No. 320).
Title V, Division F, was the text of H.R. 2436 (H.Rept. 107-160, Part I), which would have
opened ANWR to exploration and development. The previous day, an amendment by
Representative Sununu to limit specified surface development to 2,000 acres was passed
(yeas 228, nays 201; Roll Call No. 316). Representatives Markey and Johnson (CT) offered
an amendment to strike the title; this was defeated (yeas 206, nays 223; Roll Call No. 317).
The House appointed conferees on June 12, 2002.
There were a few recorded votes in the Senate on Refuge development in the first
session. Senator Lott (on behalf of himself and Senators Murkowski and Brownback)
offered an amendment (S.Amdt. 2171) to an amendment on pension reform (S.Amdt. 2170)
to H.R. 10, a bill also on pension reform. Their amendment included, among other energy
provisions, the ANWR development title in H.R. 4 as passed by the House, along with
provisions prohibiting cloning of human tissue. A cloture motion was filed on the Lott
amendment, and the Senate failed to invoke cloture (1-94, Roll Call No. 344) on December
3, 2001. Instead, the Senate voted the same day in favor of invoking cloture on the
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underlying amendment (S.Amdt. 2170), by a vote of 81-15 (Roll Call No. 345). Because
cloture was invoked on the underlying amendment, Senate rules required that subsequent and
pending amendments to it be germane. The Senate’s presiding officer subsequently
sustained a point of order against the Lott amendment, which was still pending, on the
grounds that it was not germane to the underlying amendment, and thus the amendment fell.
In the second session, the vehicle for Senate floor consideration was S. 517, which, as
reported, concerned only energy technology development. On February 15, 2002, Senator
Daschle offered an amendment (S.Amdt. 2917), an omnibus energy bill. It did not contain
provisions to develop the Refuge, but two amendments (S.Amdt. 3132 and S.Amdt. 3133)
to do so were offered on April 16. The language of the two amendments was, in most
sections, identical to that of the House-passed version of H.R. 4 (Division F, Title V). Key
differences included a requirement for a presidential determination before development could
proceed, an exception for exports to Israel in the oil export prohibition, and a number of
changes in allocation of any development revenues, as well as allowing some of those
revenues to be spent without further appropriation. On April 18, the Senate essentially voted
to prevent drilling for oil and gas in the Refuge. The defeat came on a vote of 46 yeas to 54
nays on a cloture motion to block a threatened filibuster on Senator Murkowski’s amendment
to S. 517, which would have ended debate and moved the chamber to a direct vote on the
ANWR issue. The Senate appointed conferees on May 1, 2002.
Conferees met repeatedly in an attempt to reconcile the many differences between the
two bills, but did not succeed. (See CRS Report RL31725 for further actions during the 107th
Congress and for details of these bills.)
Finally, H.R. 770 and S. 411 would have designated the 1002 area as wilderness, but
no action was taken on either bill. The issues most commonly arising in the current
legislative debate are described below under Major Legislative Issues.
Legislation in the 108th Congress. In the 107th Congress, for the FY2003 Interior
Appropriations bill, the House Committee on Appropriations agreed to report language on
the BLM energy and minerals program in general, and stated that no funds were included in
the FY2003 funding bill “for activity related to potential energy development within the
Arctic National Wildlife Refuge [ANWR]” (H.Rept. 107-564, H.R. 5093). But §1003 of
ANILCA contained the prohibition on leasing “or other development leading to production
of oil and gas” unless authorized by Congress. Thus, the Committee’s report language
generally was viewed as barring the use of funds for preleasing studies and other preliminary
work related to oil and gas drilling in ANWR. The report of the Senate Committee on
Appropriations did not contain this prohibition.
Conferees on the FY2003 Omnibus appropriations bill (P.L. 108-7) included language
in the joint explanatory statement stating that they “do not concur with the House proposal
concerning funding for the energy and minerals program.” This change from the House
report language has been interpreted by some as potentially making available funds for
preliminary work related to development in ANWR. However, as noted, the prohibition
contained in ANILCA remains in effect, so the ability to use money in the bill for particular
pre-leasing activities may not be clear.
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One bill (H.R. 39) has been introduced to open the 1002 area to development and two
bills (H.R.770 and S. 543) have been introduced to designate the 1002 area as wilderness.
In addition, widespread press reports have suggested that Members may seek to include
ANWR development provisions in a budget reconciliation bill, perhaps during the summer
of 2003, in order to avoid a possible filibuster in the Senate. (Reconciliation bills are subject
to special rules in the Senate which do not permit filibusters. See CRS Report 98-814,
Budget Reconciliation Legislation: Development and Consideration and CRS Report 97-695,
The Senate’s Byrd Rule Against Extraneous Matter in Reconciliation Measures: A Fact
Sheet.)
The Energy Resource
Parts of Alaska’s North Slope (ANS) coastal plain have proved abundant in oil and gas
reserves, and its geology holds promise for ANWR. The oil-bearing strata extend eastward
from structures in the National Petroleum Reserve-Alaska past the Prudhoe Bay field, and
may continue into and through ANWR’s 1002 area.
Oil. Estimates of ANWR oil potential, both old and new, depend upon limited data and
numerous assumptions about geology and economics. The most recent government study
of oil and natural gas prospects in ANWR, completed in 1998 by the USGS,2 found that there
is an excellent chance (95%) that at least 11.6 billion barrels of oil are present on federal
lands in the 1002 area. There also is a small chance (5%) that 31.5 billion barrels or more
are present. USGS estimates there is an excellent chance (95%) that 4.3 billion barrels or
more are technically recoverable (costs not considered); and there is a small chance (5%) that
11.8 billion barrels or more are technically recoverable. But the amount that would be
economically recoverable depends upon the price of oil. The USGS estimated that, at
$24/barrel (in 1996 dollars), there is a 95% chance that 2.0 billion barrels or more could be
economically recovered and a 5% chance of 9.4 billion barrels or more. (Spot prices for
crude oil averaged about $35/barrel (bbl) in February 2003, or about $32 in 1996 dollars.
However, crude oil prices have been rising in reaction to reduced production by Venezuela
and in nervous anticipation of a war against Iraq.) Roughly one-third more oil may be under
adjacent state waters and Native lands.3 However, these areas would be difficult to develop
without access through federal land.
Oil prices, geologic characteristics such as permeability and porosity, cash flow, and any
transportation constraints would be among the most important factors affecting the
development rates and production levels that would be associated with given volumes of oil
resources. The U.S. Energy Information Administration estimated that at a relatively fast
development rate, production would peak 15-20 years after the start of development, with
maximum daily production rates of roughly 0.00015 (0.015%) of the resource. Production
associated with the slower rate would peak about 25 years after the start of development at
a daily rate equal to about 0.000105 (0.0105%) of the resource. Peak production associated
2 U.S. Dept. of the Interior, Geological Survey. The Oil and Gas Potential of the Arctic National
Wildlife Refuge 1002 Area, Alaska. USGS Open File Report 98-34. (Washington, DC: 1999).
Summary and Table EA4.
3 Statement based upon data in USGS, Frontier Areas and Resource Assessment: the Case of the
1002 Area of the Alaska North Slope, by Emil D. Attanasi and John D. Scheunemeyer. USGS Open
File Report 02-119, March 2002.
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with a technically recoverable resource of 5.0 billion barrels (billion bbls) at the faster
development rate would be 750,000 bbls per day. U.S. petroleum consumption is about 19
million bbls per day. (For economic impacts of development, see CRS Report RS21030.)
Natural Gas. Substantial quantities of natural gas are estimated to be in the 1002 area
as well. Being able to sell this gas probably would enhance the commercial prospects of the
1002 area and the rest of the ANS — oil as well as gas. However, as with the abundant
natural gas discovered at Prudhoe Bay, there currently is no way to deliver the gas to market.
Until recently, the combination of pipeline construction costs and relatively low natural gas
prices precluded serious consideration of pipeline construction. Higher gas prices in the last
two years have increased interest in the construction of a pipeline to transport natural gas to
North American markets — directly and/or via a warm-water port for shipment in tankers.
Advanced Technologies. As development has proceeded since the discovery of
Prudhoe Bay, North Slope oil field operators have developed less environmentally intrusive
ways to develop arctic oil, primarily through innovations in technology.
Field exploration has benefitted from new seismic technology. Advanced analytical
methods generate high resolution images of geologic structures and hydrocarbon
accumulations. And improved ice-based transportation infrastructure serves remote areas
during exploration drilling on newly developed insulated ice pads. (However, for safety
reasons, use of ice roads and pads may be limited in the more hilly terrain of the 1002 area;
gravel structures would be required for greater safety.) More powerful computers allow the
manipulation of vastly more data, yielding more precise well locations and, consequently,
reduce the number of wells needed to find hydrocarbon accumulations.
Recent advances in drilling also lessen the footprint of petroleum operations. 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
current record being seven miles at one site in China. Other advances reduce the space
needed for a drilling rig, reduce equipment volume and weight, and lessen the generation of
drilling waste. Modules that perform many functions also make production facilities more
compact. Production drilling techniques using slim-hole technology such as coiled tubing
and multilateral drilling also decrease the footprint, reduce waste, and increase recovery of
hydrocarbons per well.
Proponents of opening ANWR note that these technologies would mitigate the
environmental impact of petroleum operations, but not eliminate it. Opponents maintain that
facilities of any size would still be industrial sites and would change the character of the
Refuge, in part because the sites would be spread out in the 1002 area and connected by
pipelines. They argue that whether environmental impacts would be minimized would
depend in part on the wording of legislation, and that there still would be the need for gravel
and the scarce water resources of the 1002 area; and that permanent roads, port facilities, and
airstrips would follow the initial roadless construction. They further note that warming
trends in the arctic have already shortened the season for winter travel across the tundra in
developed areas, suggesting that ice technologies alone may be insufficient for exploration
in the 1002 area if warming trends continue. They note that spills may occur, and that
advanced technologies might not be mandated on Native lands.
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A March 2003 report by the National Academy of Sciences (NAS) has highlighted
impacts of existing development at Prudhoe Bay on arctic ecosystems. The NAS committee
also noted beneficial economic and social effects of oil development in northern Alaska and
credited industry for its strides in decreasing or mitigating environmental impacts. It said
that some social and economic impacts have not been beneficial. Among the harmful
environmental impacts observed were changes in migration patterns of bowhead whales, in
the distribution and reproduction of caribou, and in populations of predators and scavengers
that prey on bird populations. The NAS report specifically avoided an attempt to determine
whether any beneficial effects (to Alaska residents, to the larger society, or to the economy,
etc.) were outweighed by harmful effects (to other Alaska residents, subsistence resources,
the environment, etc.).
The Biological Resources
The FLEIS rated the Refuge’s biological resources highly: “The Arctic Refuge is the
only conservation system unit that protects, in an undisturbed condition, a complete spectrum
of the arctic ecosystems in North America” (p. 46). It also said “The 1002 area is the most
biologically productive part of the Arctic Refuge for wildlife and is the center of wildlife
activity” (p. 46). The biological value of the 1002 area rests on the intense productivity in
the short arctic summer; many species arrive or awake from dormancy to take advantage of
this richness, and leave or become dormant during the remainder of the year. Caribou have
long been the center of the debate over the biological impacts of Refuge development, but
other species have also been at issue. Among the other species most frequently mentioned
are polar bears, musk oxen, and the 135 species of migratory birds that breed or feed there.
The Porcupine Caribou Herd (PCH) calves in or near the 1002 area in most years, and
w i n t e r s s o u t h o f t h e B r o o k s R a n g e i n A l a s k a o r C a n a d a
[http://www.r7.fws.gov/nwr/arctic/pchmaps.html]; it is the subject of a 1987 executive
Agreement Between the United States and Canada on the Conservation of the Porcupine
Caribou Herd (PCH). The herd is currently estimated at 130,000, but caribou population
numbers fluctuate markedly. In both countries, it is an important food source to Native
people and others — especially since other meat is either expensive or unavailable.
Some scientists cite studies that show a reduction in density of cows with calves near
roads and developed areas around Kuparuk (Nellemann and Cameron, 1998). They fear that
development and production in the 1002 area could cause cows to calve in less desirable
locations or prevent the herd’s access to sites providing relief from voracious insects. Based
on the Prudhoe Bay experience, it appears that individual animals, especially adult males,
habituate to the disturbance, and sometimes seek out gravel pads and roads for insect relief.
However, cows with young calves appear to be more sensitive, and avoid roads and other
human disturbance for distances of a mile or more. The preferred calving area for the PCH
is more confined than for the herd around Prudhoe Bay and vicinity, and nearby similar
habitat may not be available.
When cows are slowed by late thaws or heavy snows, they may not reach the 1002 area
before calving. In the narrow coastal plain of the 1002 area, displacement to the south puts
calving in or near the Brooks Range, where bears, golden eagles, and wolves (all calf
predators) are more abundant; it could also force newborn calves to attempt to ford swollen
rivers. In 2000, heavy snowfall delayed cows in reaching the 1002 area, and certain calf
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survival statistics were the lowest ever recorded. The reduced calving highlighted the
importance of the preferred area.
An updated assessment of an array of biological resources in the coastal plain was
published in 2002 by the Biological Research Division of USGS.4 The report analyzed new
information about caribou, musk oxen, snow geese and other species in the Arctic Refuge,
and concluded that development impacts would be significant. A follow-up memo by one
of the authors to the director of USGS clarified that if development were restricted to the
western portion of the refuge (an option that was being considered by the Administration),
the PCH would not be affected during the early calving period, since the herd is not normally
found in the area at that time.5 Any impacts that might occur when the herd subsequently
moves into the area were not discussed in the memo.
Effects on polar bear dens in the Refuge have also been an issue. Modern winter
exploration technology, while an improvement over the environmental impacts of previous
technologies in many respects, would be more likely to affect polar bears’ winter dens, or
conversely, the mitigation required to protect bear dens could increase the cost of
exploration, development, and production. Polar bears are the subject of the international
Agreement on the Conservation of Polar Bears, to which the United States is a party. Musk
oxen, snow geese, and other species have also been featured in the ANWR debate. (For
more about these species, see CRS Report RL31278.)
For opponents of development, the central issue is whether the area should be
maintained as an intact ecosystem — off limits to development — not whether development
can be accomplished in an environmentally sound manner. In terms that emphasize deeply
held values, supporters of wilderness designation argue that few places as untrammeled as
the 1002 area remain on the planet, and fewer still on the same magnificent scale. Any but
the most transitory intrusions (e.g., visits for recreation, hunting, fishing, subsistence use,
research) would, in their view, damage the “sense of wonder” they see the area as instilling.
The mere knowledge that a pristine place exists, whether one ever visits it, can be important
to those who view the debate in this light.
Major Legislative Issues in the 108th Congress
A primary energy-related issue in the 108th Congress is whether to approve energy
development in the ANWR, and if so, under what restrictions; or whether to continue to
prohibit energy development to protect the area’s biological resource and wilderness values.
Some of the issues that have been raised most frequently in the current ANWR debate are
described briefly below. In addition to the issue of whether development should be permitted
at all, key aspects of the current debate include specifications that might be provided in
legislation, including the physical size, or footprint, of development; the activities that might
be permitted on Native lands; the disposition of revenues; labor issues; oil export restrictions;
4 U.S. Dept. of the Interior. Geological Survey. Arctic Refuge Coastal Plain Terrestrial Wildlife
Research Summaries. Biological Science Report. USGS/BRD/BSR-2002-0001. 75 p.
5 Griffith, Brad. Memorandum to Director, USGS. “Evaluation of additional potential development
scenarios for the 1002 Area of the Arctic National Wildlife Refuge.” April 4, 2002. 2 p.
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compliance with the National Environmental Policy Act, and other matters. (References
below to the “Secretary” refer to the Secretary of the Interior, unless stated otherwise.)
Environmental Direction. If Congress authorizes development, it could choose to
leave environmental matters to administrative agencies under existing laws. Alternatively,
Congress could impose a higher standard of environmental protection because the 1002 area
is in a national wildlife refuge or because of the fragility of the arctic environment, or it could
legislate a lower standard to facilitate development. The degree of discretion given to the
administering agency could also affect the stringency of environmental protection. For
example, Congress could include provisions requiring use of “the best available technology”
or “the best commercially available technology” or some other general standards. Congress
could also limit judicial review of environmental standards. Other issues could include
regulating the use of gravel and water resources essential for oil exploration and
development; limitations on miles of roads or other surface occupancy; the adequacy of
existing pollution standards; prevention and treatment of spills; the adequacy of current
environmental requirements; and aircraft overflights.
The Size of the Footprint. Newer technologies permit greater consolidation of
leasing operations; among other things, consolidation would tend to reduce environmental
impacts of development. On this issue, the debate in Congress has focused on the size of the
footprint 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 falling
under a “footprint restriction” are arguable (e.g., whether to include roads, gravel mines, and
port facilities). In addition, it has been unclear whether structures on Native lands would be
included under any provision limiting footprint size.
Development advocates have emphasized the total acreage of surface disturbance, while
opponents have emphasized the dispersal of not only the structures themselves but also their
impacts over the 1.5 million acres of the 1002 area. One single compact facility of 2,000
acres (3.1 square miles, a limit supported by some development advocates during the 107th
Congress) would not permit full development of the 1002 area: the current record for lateral
drilling technology is 7 miles from the wellhead. Even if that record could be matched on
all sides of a single pad, at most about 11% of the Coastal Plain could be developed. Instead,
full development of the 1002 area would require that facilities, even if limited to 2,000 acres
total, be dispersed around the Coastal Plain.
Native Lands. ANCSA resolved aboriginal claims against the United States by
(among other things) creating Village Corporations that could select lands to which they
could hold the surface estate, and Regional Corporations that could select surface and
subsurface rights as well. The surface lands (originally approximately three townships)
selected by Kaktovik Inupiat Village (KIC) are along the coastal plain of ANWR, but were
administratively excluded from being considered as within the “1002 Coastal Plain.” These
lands and a fourth township that is within the defined Coastal Plain (these four totaling
approximately 92,000 acres) are all within the Refuge and subject to its regulations. The
Arctic Slope Regional Corporation (ASRC) obtained subsurface rights beneath the KIC lands
pursuant to a 1983 land exchange agreement. In addition, there are currently more than
10,000 acres of conveyed and individually owned Native allotments in the area of the Refuge
that are not subject to its regulations.
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Once oil and gas development is authorized for the federal lands in the Refuge,
development would be allowed on the more than 100,000 acres of Native lands, arguably free
of any acreage limitation applying to development on the federal lands. The extent to which
the Native lands could be regulated to protect the environment is uncertain, given the status
of allotments and some of the language in the 1983 Agreement with ASRC.
Revenue Disposition. Another issue that has arisen during debates over leasing in
ANWR is that of disposition of possible revenues — whether Congress may validly provide
for a disposition of revenues formula other than the 90% -10% split mentioned in the Alaska
Statehood Act. A court in Alaska v. United States (35 Fed. Cl. 685, 701 (1996)) seems to
have indicated that the language in the Statehood Act means that Alaska is to be treated like
other states for federal leasing conducted under the Mineral Leasing Act (MLA), which
contains (basically) a 90 - 10 split. However, Congress can establish a non-MLA leasing
regimen — for example, the separate leasing arrangements that govern the National
Petroleum Reserve-Alaska, where the revenue sharing formula is 50/50.
Project Labor Agreements. A recurring issue in federal and federally-funded
projects is whether project owners or contractors effectively should be required, by
“agreement,” to use union workers. Project labor agreements (PLAs) are agreements
between a project owner or main contractor and the union(s) representing the craft workers
for a particular project that establish the terms and conditions of work that will apply for the
particular project. The agreement may also specify a source (such as a union hiring hall) to
supply the craft workers for the project. Typically, the agreement is binding on all
contractors and subcontractors working on the project, and specifies wage rates and benefits,
discusses procedures for resolving labor and jurisdictional disputes, and includes a no-strike
clause. Proponents argue that PLAs ensure a reliable, efficient labor source and help keep
costs down. Opponents contend that PLAs inflate project costs and decrease competition.
Construction and other unions and their supporters strongly favor PLAs because they believe
that PLAs help ensure access for union members to federal and federally funded projects.
Nonunion firms and their supporters believe that PLAs unfairly restrict their access to those
projects. There is little independent information to sort out these conflicting assertions and
demonstrate whether PLAs contribute to lower or higher project costs.
Natural Gas Pipeline. A decision to construct a pipeline to transport natural gas
from Alaska to North American markets entails risk as well as a decision on the route. Most
congressional supporters of a natural gas pipeline have preferred to prohibit the licensing of
a route that enters Canada north of 68 degrees latitude. Canadian energy industry interests
have objected to the prohibition of a northern route through Canada because a southern route
would bypass gas reserves in far northwest Canada; they also oppose a proposed production
tax credit for Alaskan gas producers that effectively would tend to give a price advantage
over Canadian producers.
Oil Export Restrictions. Export of North Slope oil in general, and any ANWR oil
in particular, has been an issue, beginning at least with the authorization of the TransAlaska
Pipeline and continuing into the current ANWR debate. Much of the pipeline’s route is on
federal lands and the Mineral Leasing Act of 1920 prohibits export of oil transported through
pipelines granted rights-of-way over federal lands (16 U.S.C. 185(u)). The Trans-Alaska
Pipeline Authorization Act (P.L. 93-153, 43 U.S.C. 1651 et seq.) specified that oil shipped
through it could be exported but only under restrictive conditions. Subsequent legislation
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strengthened the TransAlaska Pipeline export restrictions further.6 Oil began to be shipped
through the pipeline in increasing amounts as North Slope oilfield development grew through
the late 1980s. With exports effectively banned, much of North Slope oil went to West Coast
destinations; the rest was shipped to the Gulf Coast via the Panama Canal or overland across
the isthmus.
However, market forces eventually created pressure to change the law. In the early and
mid-1990s, the combination of California and federal offshore production, North Slope oil,
and imports resulted in such large quantities relative to demand that crude oil prices in
California fell below those elsewhere in the United States, eliciting complaints from
Californian and North Slope producers. By 1995, three or four years of low world oil prices
and relative calm in the Mideast had reduced concern about petroleum.
On November 28, 1995, P.L. 104-58 (109 Stat. 557) was enacted, Title II of which
amended the Mineral Leasing Act to provide that oil transported through the Pipeline may
be exported unless the President finds, after considering stated criteria, that it is not in the
national interest. The President may impose terms and conditions; and authority to export
may be modified or revoked. Beginning with 36,000 bbl/day in 1996, ANS exports rose to
a peak of 74,000 bbl/day in 1999, representing 7% of North Slope production. ANS oil
exports ceased voluntarily in May 2000.
If Congress wished to limit export of any oil from the 1002 area, it might apply the
restriction to oil transported through the TransAlaska Pipeline (TAPS). However, there are
a number of indicators of warming trends in the Arctic, and if these continue, oil shipment
via tanker could become practical. If high crude oil prices on the world market provided
sufficient incentive for such shipments, an export ban that applies only to oil transported
through TAPS might not be sufficient to prevent export of any ANWR oil.
NEPA Compliance. The National Environmental Policy Act (NEPA) requires the
preparation of an environmental impact statement (EIS) to examine the effects of major
federal actions on the environment, and to provide public involvement in agency decisions.
The last full EIS examining the effects of leasing development in ANWR was completed in
1987 and some observers assert that a new EIS is needed to support development now.
Generally, an EIS analyzes several alternatives, including a “no action” alternative. Some
development supporters would like to see the process truncated, in light of past analyses and
to hasten production. Opponents of energy development argue that a 15-year gap since the
last analysis would necessitate a thorough update and stress the flaws they found in the 1987
EIS.
Compatibility with Refuge Purposes. Under current law for the management of
national wildlife refuges (16 U.S.C. §668dd), an activity may be allowed in a refuge only if
it is compatible with the purposes of the particular Refuge and with those of the Refuge
System as a whole. Past development bills have “deemed” that the oil and gas leasing
program and activities in the coastal plain are compatible with the purposes for which the
ANWR was established and that no further findings or decisions are required to implement
6 The Energy Policy and Conservation Act of 1975 (P.L. 94-163), the 1977 amendments to the
Export Administration Act (P.L. 95-52 and P.L. 95-223), and the Export Administration Act of 1979
(P.L. 96-72).
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this determination. This language appears to answer the compatibility question and to
eliminate the usual compatibility determination processes. The extent of leasing “activities”
that might be included as compatible is debatable and arguably might encompass necessary
support activities, such as construction and operation of port facilities, staging areas, and
personnel centers.
Judicial Review. Leasing proponents urge that any ANWR leasing program be put
in place promptly; expediting judicial review may be one means to that goal. Judicial review
can be expedited through procedural changes such as reducing the time limits within which
suits must be filed, by avoiding some level of review, by curtailing the scope of the review,
or by increasing the burden imposed on challengers. In the past, bills before Congress have
combined various elements.
Special Areas. Some have raised the possibility of setting aside certain special areas
described in the FLEIS for their ecological or cultural values. This could be done either by
designating the areas specifically in legislation, or by authorizing the Secretary to set aside
areas to be selected after enactment. Development of such areas could be forbidden and/or
surface occupancy could be limited.
Non-Development Options. Several options are available to Congress that would
either postpone or forbid development, unless Congress were later to change the law. These
options include allowing exploration only, designating the 1002 area as wilderness, and
taking no action.
Exploration Only. Some have argued that the 1002 area should be opened to
exploration first, before a decision is made on whether to proceed to leasing. Those with this
view hold that with greater certainty about the presence or absence of energy resources, a
better decision could be made about whether to open the coastal plain for full leasing. This
idea has had relatively little support over the years. (See CRS Report RL31278 for a
discussion of the pros and cons of this approach.) Various advocates see insufficient gain
from such a proposal. While an exploration bill has been mentioned in the past, none has
been introduced in the 108th Congress.
Wilderness Designation. Energy development is not permitted in wilderness areas,
unless there are pre-existing rights or unless Congress specifically allows it or later reverses
the designation. Development of the surface and subsurface holdings of Native corporations
is precluded as long as oil and gas development is not allowed on the federal lands in the
Refuge. Wilderness designation would tend to preserve existing recreational opportunities
and jobs, as well as the existing level of protection of subsistence resources, including the
Porcupine Caribou Herd.
No Action. Because current law prohibits development unless Congress acts, this
option also prevents energy development. Those supporting delay often argue that not
enough is known about either the probability of discoveries or about the environmental
impact if development is permitted. Others argue that oil deposits should be saved for an
unspecified “right time.”
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LEGISLATION
H.R. 39 (D. Young)
Repeals current prohibition against development in ANWR; and for other purposes.
Introduced January 7, 2003; referred to Committee on Resources.
H.R. 770 (Markey)
Designates the 1002 area of ANWR as wilderness. Introduced February 13, 2003;
referred to Committee on Resources.
S. 543 (Lieberman)
Designates the 1002 area of ANWR as wilderness. Introduced March 5, 2003; referred
to Committee on Environment and Public Works.
FOR ADDITIONAL READING
National Academies of Science. Cumulative Environmental Effects of Oil and Gas Activities
on Alaska’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 the Distribution of Calving Caribou. Canadian Jour. of Zoology. 1998. Vol. 76, p.
1425.
Revkin, Andrew C. Hunting for Oil: New Precision, Less Pollution. New York Times.
January 30, 2001. p. D1-D2.
U.S. Department of the Interior. Bureau of Land Management. Overview of the 1991 Arctic
National Wildlife Refuge Recoverable Petroleum Resource Update. Washington, DC,
April 8, 1991. 8 p., 2 maps.
U.S. Department of the Interior. Fish and Wildlife Service, Geological Survey, and Bureau
of Land Management. Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource
Assessment. Report and Recommendation to the Congress of the United States and
Final Legislative Environmental Impact Statement. Washington, DC, 1987. 208 p.
U.S. Department of the Interior. Geological Survey. The Oil and Gas Resource Potential
of the Arctic National Wildlife Refuge 1002 Area, Alaska. 1999. 2 CD set. USGS Open
File Report 98-34.
U.S. Department of the Interior, Geological Survey. Arctic Refuge Coastal Plain Terrestrial
Wildlife Research Summaries. Biological Science Report USGS/BRD/BSR-2002-0001.
U.S. Department of the Interior, Geological Survey. “Evaluation of additional potential
development scenarios for the 1002 Area of the Arctic National Wildlife Refuge.”
Memorandum from Brad Griffith, Assistant Leader, Alaska Cooperative Fish and
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Wildlife Research Unit, to Charles D. Groat, Director, U.S. Geological Survey. April
4, 2002.
U.S. General Accounting Office. Arctic National Wildlife Refuge: An Assessment of
Interior’s Estimate of an Economically Viable Oil Field. Washington, DC. July, 1993.
31 p. GAO/RCED-93-130.
CRS Issue Brief IB10116, Energy Policy: The Continuing Debate. Updated periodically.
CRS Report RL31725, Arctic National Wildlife Refuge: Legislative Issues Through the
107th Congress. December 17, 2002. 13 p.
CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues. June 11,
2002. 119 p.
CRS Report RS21170. Alaska Oil: Native Lands and State Waters. March 12, 2002. 6 p.
CRS Report RS21030, ANWR Development: Economic Impacts. December 3, 2001. 6 p.
CRS Report RL31115, Legal Issues Related to Proposed Drilling for Oil and Gas in the
Arctic National Wildlife Refuge. April 26, 2002. 28 pages.
CRS Report RL31033. Energy Efficiency and Renewable Energy Fuel Equivalents to
Potential Oil Production from the Arctic National Wildlife Refuge (ANWR). June 22,
2001. 21 p.
CRS Report RL31022. Arctic Petroleum Development: Implications of Advances in
Technology. June 19, 2001. 29 p.
CRS Report RL31317. Natural Gas Markets: Overview and Outlook. February 20, 2002.
23 p.
CRS Report RL30459. Coping With High Oil Prices: A Summary of Options. March 9,
2000.
CRS Report RS20540. Alaska Oil Exports. October 16, 2000. 5 p.
CRS Report 98-814 GOV. Budget Reconciliation Legislation: Development and
Consideration. March 5, 2001. 2p.
CRS Report 97-695 GOV. The Senate’s Byrd Rule Against Extraneous Matter in
Reconciliation Measures: A Fact Sheet. Sept. 9, 1998. 2 p.
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