Order Code IB10136
CRS Issue Brief for Congress
Received through the CRS Web
Arctic National Wildlife Refuge (ANWR):
Controversies for the 109th Congress
Updated April 7, 2005
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
Actions in the 109th Congress
The Energy Resource
Oil
Natural Gas
Advanced Technologies
The Biological Resources
Major Legislative Issues in the 109th Congress
Environmental Direction
The Size of Footprints
Native Lands
Revenue Disposition
Natural Gas Pipeline
Project Labor Agreements
Oil Export Restrictions
NEPA Compliance
Compatibility with Refuge Purposes
Judicial Review
Special Areas
Non-Development Options
LEGISLATION
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Arctic National Wildlife Refuge (ANWR):
Controversies for the 109th Congress
SUMMARY
One major element of the energy debate
In the 108th Congress, legislation to open
in the 109th Congress is whether to approve
ANWR to development passed the House.
energy development in the Arctic National
The need to overcome a likely filibuster in the
Wildlife Refuge (ANWR) in northeastern
Senate led development proponents to attempt
Alaska, and if so, under what conditions, or
to tie ANWR development legislation to the
whether to continue to prohibit development
budget process and reconciliation, to avoid a
to protect the area’s biological resources,
filibuster. On March 19, 2003, a key amend-
along with its recreational and subsistence
ment by Senator Boxer to the budget resolu-
values. The Refuge is an area rich in fauna,
tion passed (52 yeas, 48 nays), preventing
flora, and commercial oil potential. Sharp
development supporters from pursuing a
increases in prices of gasoline and natural gas
strategy of later attaching ANWR legislation
from late 2000 to early 2001, followed by
to a reconciliation bill.
terrorist attacks, and increases again in 2004-
2005, have renewed the ANWR debate; how-
Development advocates argue that
ever, its development has been debated for
ANWR oil would reduce U.S. energy mar-
more than 40 years. Few onshore U.S. loca-
kets’ exposure to crises in the Middle East;
tions stir as much industry interest as the
boost North Slope oil production; lower oil
northern area of ANWR. At the same time,
prices; extend the economic life of the Trans
few areas are considered more worthy of
Alaska Pipeline System; and create many jobs
protection in the eyes of conservation and
in Alaska and elsewhere in the United States.
some Native groups. Current law forbids
They maintain that ANWR oil could be devel-
energy leasing in the Refuge.
oped with minimal environmental harm, and
that the footprints of development could be
On March 16, 2005, the Senate rejected
limited to a total of 2,000 acres.
the Cantwell amendment (striking certain
language related to ANWR development,
Opponents argue that intrusion on this
S.Amdt. 168, yeas 49, nays 51, Roll Call #52)
ecosystem cannot be justified on any terms;
to S.Con.Res. 18, the Senate budget resolu-
that economically recoverable oil found (if
tion. The amendment would have struck
any) would provide little energy security and
§102(a)(4), instructions to the Committee on
could be replaced by cost-effective alterna-
Energy and Natural Resources. By leaving the
tives, including conservation; and that job
section in the resolution, development propo-
claims are overstated. They also maintain that
nents may be able to include measures to
development’s footprints, being scattered in
develop ANWR in a reconciliation bill, since
many parcels across the landscape, would
reconciliation bills are not subject to filibus-
have a greater impact than is implied by any
ters. The House FY2006 budget resolution
limit on total acreage. They also argue that
(H.Con Res. 95) did not contain assumptions
past proposals to limit any footprints have not
regarding ANWR revenues.
been worded so as to apply to the extensive
Native lands in the Refuge, which could be
developed if the Arctic Refuge were opened.
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MOST RECENT DEVELOPMENTS
On March 16, 2005, during consideration of the Senate budget resolution (S.Con.Res.
18), an amendment to strike certain language related to ANWR development was defeated
(yeas 49, nays 51, Roll Call #52). Defeat of the amendment enhanced the prospects of
ANWR development by setting the stage to include a development provision in a possible
reconciliation bill, and thereby avoid a Senate filibuster. The House budget resolution
(H.Con.Res. 95, H.Rept. 109-17) did not contain assumptions regarding ANWR revenues;
it passed the House on March 17 (yeas 218, nays 214, Roll Call #88).
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), the mean
estimate of technically recoverable oil is 7.7 billion barrels (billion bbl), but there is a small
chance that, taken together, the fields on this federal land could hold 10.5 billion bbl of
economically recoverable oil (at an oil price of about $35 in 2004 dollars). That level would
be nearly as much 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 almost 14 billion bbl
of economically recoverable oil. (See “Oil,” below, for further discussion.)
The Refuge, especially the nearly undisturbed coastal plain, also is home to a wide
variety of plants and animals. The presence of caribou, polar bears, grizzly bears, wolves,
migratory birds, and other species in a de facto wilderness 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 interest in development, then the philosophical, 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
a dilemma: should Congress open the area for energy development or should the area’s
ecosystem continue to be protected from development, perhaps permanently? 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. For legal
background, see 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 of
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],
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[http://www.canadianembassy.org/environment/], [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 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 created Village Corporations that received the surface estate to
roughly 22 million acres of lands in Alaska. Village corporations obtained the right to select
the surface estate in a certain amount of lands within the National Wildlife Refuge System.
Under §22(g) of ANCSA, these 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 Refuges were not available, but selections
to substitute for such lands were provided.
The Alaska National Interest Lands Conservation Act of 1980 (ANILCA, P.L. 96-487,
94 Stat. 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 the original Refuge as a wilderness area, but not the coastal plain.
(Newer portions of the Refuge were not included in the wilderness system.) 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
“1002 area”) and its resources to be completed within five years and nine 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 later 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. For
specific actions, including key votes, from the 104th to the 108th Congresses, see archived
CRS Issue Briefs IB95071 and IB10111, available from the authors.)
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Actions in the 109th Congress. The budget resolution and reconciliation have been
a focus of attention in the ANWR debate in the 109th Congress, particularly in the Senate.1
The FY2006 Senate budget resolution (S.Con.Res. 18) passed by the Senate Budget
Committee included instructions to the Senate Committee on Energy and Natural Resources
to “report changes in laws within its jurisdiction sufficient to reduce outlays by $33,000,000
in fiscal year 2006, and $2,658,000,000 for the period of fiscal years 2006 through 2010.”
The resolution assumed that the committee will report legislation to open ANWR to
development, and that leasing will generate $2.5 billion in revenues for the federal
government over five years. When the measure reached the floor, Senator Cantwell offered
an amendment (S.Amdt. 168) on March 16 to remove these instructions. The amendment
was defeated (yeas 49, nays 51, Roll Call #52). The House budget resolution (H.Con.Res.
95, H.Rept. 109-17), while instructing the House Resources Committee to provide somewhat
smaller reductions in outlays, did not include assumptions about ANWR revenues.
Assuming conferees are able to reach agreement on a budget resolution and that it is passed
by both chambers, the inclusion of the Senate targets and the corresponding assumptions
would set the stage for including ANWR development legislation in a reconciliation bill, and
therefore help to avoid a threatened filibuster in the Senate.
However, a number of obstacles must be overcome before such an outcome can be
reached. First, many observers question the likelihood of Congress reaching an agreement
on a budget resolution, with or without ANWR assumptions. A growing deficit, and the
accompanying pressure to cut spending across a broad front, has helped prevent agreement
on a budget resolution twice in the last five years, and spending constraints in FY2006 are
also severe. The reconciliation procedure can be triggered only by the adoption of a budget
resolution by both chambers. Consequently, if no agreement is reached, legislation related
to ANWR could not be considered under reconciliation procedures.
Second, under the Congressional Budget Act of 1974 (CBA, Titles I-IX of P.L. 93-344,
as amended, 2 U.S.C. 601-688), while the target reductions of the budget resolutions are
binding on the committees, the associated assumptions are not. If committees are able to
reach their targets without following the Budget Committee’s assumptions, they are free to
do so. Consequently, the size of the proposed net reductions by the two committees (House
Resources and Senate Energy and Natural Resources) is also critical: if they do not pass
ANWR legislation, their net reductions must still be achieved, either by generating major
revenues elsewhere, or by reducing outlays, all within the committees’ jurisdictions. With
very large reduction targets, the committees may find this virtually impossible unless they
report ANWR legislation.
Third, there is some question as to whether ANWR legislation could be attached to a
reconciliation bill. Previous versions of ANWR development legislation have included
provisions that, for example, revise revenue distribution under the Mineral Leasing Act,
provide for Project Labor Agreements, limit the size of development footprints, require
certain environmental standards, limit judicial review, etc. (See below for discussion of
these issues.) Under §313 of the CBA (2 U.S.C. §644, also know as the “Byrd rule”), any
Senator may raise a point of order against the inclusion of “extraneous matter” in a
1 For more on the budget process and budget enforcement, see CRS Report RS20368, Overview of
the Congressional Budget Process, and CRS Report 98-815 GOV, Budget Resolution Enforcement.
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reconciliation measure.2 The provision gives six definitions of “extraneous matter,”
including material that has no budgetary effect, or material whose budgetary effect is “merely
incidental” to the non-budgetary components of the provision. If a Senator raises a point of
order against the inclusion of ANWR legislation as “extraneous matter” (i.e., as containing
certain material unrelated to budgetary effects), and if the point of order is sustained by the
chair of the Senate, a motion to waive the rule would require a three-fifths vote of the Senate.
The Energy Resource
Parts of Alaska’s North Slope reserves, and its geology holds promise for ANWR. The
oil-bearing strata extend eastward from structures in the National Petroleum Reserve-Alaska
through 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. Recent interest has centered especially
on parts of the 1002 area west and north of the Marsh Creek anticline, an area which
comprises roughly a third of the 1002 area. (See Figure 5 in CRS Report RL31278.) The
most recent government study of oil and natural gas prospects in ANWR, completed in 1998
by the USGS,3 found an excellent chance (95%) that at least 11.6 billion bbl of oil are present
on federal lands in the 1002 area. (There also is a small chance (5%) that 31.5 billion bbl or
more are present. USGS estimates there is an excellent chance (95%) that 4.3 billion bbl or
more are technically recoverable (costs not considered), and a small chance (5%) that 11.8
billion bbl or more are technically recoverable. (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.
The USGS estimated that, at $30/bbl in 1996 dollars (about $35 in 2004 dollars), there is a
95% chance that 3.0 billion bbl or more could be economically recovered and a 5% chance
of 10.5 billion bbl or more. Roughly one-third more oil may be under adjacent state waters
and Native lands; these areas would be difficult to develop without access through federal
land. Crude oil prices have been climbing, and in early March 2005, spot prices ranged from
$50 to $55 per barrel, or about $45 in 1996 dollars. However, the Department of Energy
projects the price of crude oil to decline by about $10 in constant dollars between 2004 and
2010.4
Oil prices, geologic characteristics, cash flow, and any instruction constraints would be
among the most important factors affecting the development rates and production levels
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 0.015% of the
resource. Production associated with a slower rate would peak about 25 years after the start
2 See CRS Report RL30862, The Budget Reconciliation Process: The Senate’s “Byrd Rule.”
3 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, 1999). Summary
and Table EA4.
4 U.S. Dept. of Energy, Energy Information Administration, “Annual Energy Outlook 2005 (Early
Release) — Overview,” viewed Dec. 16, 2004, at [http://www.eia.doe.gov/oiaf/aeo/prices.html].
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of development, at a daily rate equal to about 0.0105% of the resource. Peak production
associated with a technically recoverable resource of 5.0 billion bbl at the faster development
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.)
Natural Gas. Large quantities of natural gas are estimated to be in the 1002 area.
Being able to sell this gas probably would enhance the commercial prospects of the 1002 area
and the rest of the North Slope — 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, pipeline construction costs combined with relatively low natural gas prices
precluded serious consideration of pipeline construction. Higher gas prices in the last few
years increased interest in the construction of a pipeline to transport natural gas to North
American markets — directly and/or via shipment in liquified form in tankers, and Congress
acted to facilitate such a pipeline. (See also “Natural Gas Pipeline,” below.)
Advanced Technologies. As North Slope development has proceeded since the
discovery of Prudhoe Bay, 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. 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.
Advances in drilling also lessen the footprints 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 footprints, reduce waste, and increase recovery of
hydrocarbons per well.
Improved ice-based transportation infrastructure serves remote areas during exploratory
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 could
be required for greater safety. Also, warming trends in arctic latitudes have already shortened
winter access across the tundra and led to changes in the standards for use of ice roads; if
these trends continue, heavy reliance on ice technology could be infeasible. Alternatively,
rigid adherence to ice technology (instead of gravel construction) might put some marginal
fields out of reach due to the high cost of exploration, development, or operation. And fields
that begin with few roads may expand as the field expands.
Because it is held as a model of modern development, the history of the Alpine field,
along the border of the National Petroleum Reserve-Alaska (NPRA), is relevant. This field
is run by ConocoPhillips and located west of Prudhoe Bay. It is considered a model of
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“roadless” development, because of the short road connecting the two initial pads, and the
lack of connection with the remainder of North Slope development, except in winter via ice
road. However, with the recent approval of an additional 5 pads, the expansion 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 gravel structures.5
Approximately 150 miles of roads would be constructed if the field were fully developed.
If a similar pattern follows in ANWR development, it is unclear whether energy development
could be held indefinitely to a stringent limit on road or other gravel construction and still
allow producers to have access to otherwise economic fields.
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
coastal plain, in part because the sites would be spread out in the 1002 area and connected
by pipelines and (probably) roads. They argue that whether environmental impacts would
be minimized would depend in part on the wording of legislation; 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 spills may occur, and that advanced technologies might not be implemented on Native
lands.
A March, 2003 report by the National Academy of Sciences (NAS) highlighted impacts
of existing development at Prudhoe Bay on arctic ecosystems. Among the harmful
environmental impacts noted were changes in the migration of bowhead whales, in
distribution and reproduction of caribou, and in populations of predators and scavengers that
prey on birds. NAS 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 also said that some social and economic impacts have not been
beneficial. The NAS report specifically avoided determining whether any beneficial effects
(to certain Alaska residents, or local or national 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
5 See Figure 2.4.6-1, Alternative F, Preferred Alternative, in Alpine Satellite Development Plan
Environmental Impact Statement, Appendix 3, and p. S-8, S-19, and S-30 of Summary, available at
[http://www.alpine-satellites-eis.com/alpeis.nsf/?Open], visited on Dec. 13, 2004. Figures given here
do not represent full development of the field over the next 20 years.
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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
winters south of the Brooks Range in Alaska or Canada; it is the subject of a 1987 executive
Agreement Between the United States and Canada on the Conservation of the Porcupine
Caribou Herd. The Porcupine Caribou Management Board estimated the herd at 123,000 in
2001 (the most recent year available), 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.
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
survival statistics were the lowest ever recorded. The reduced calving success highlighted
the importance of the herd’s use of the 1002 area.
Some scientists cite studies that show a reduction in density of cows with calves near
roads and developed areas around Kuparuk (e.g., 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. 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 to PCH cows.
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. As a result, the presence (or
absence) of roads, gravel mines, drill pads, pipelines and other footprints of development
could limit the caribou cows’ access to portions of a preferred calving area or insect relief
areas during this early phase of calf development. If the gravel road network follows the
Alpine scenario and becomes more extensive over time, due to terrain, scattered discoveries,
need for economical access, or changing climate conditions, then displacement could
increase, forcing cow/calf pairs to less favorable areas.
An updated assessment of the array of biological resources in the coastal plain was
published in 2002 by the Biological Research Division of USGS.6 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
6 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.
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found in the area at that time.7 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.)
In a larger context, many opponents of development see the central issue as 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 in the area. The mere knowledge that a pristine place exists, regardless of whether one
ever visits it, can be important to those who view the debate 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
are described 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, including the physical size, or footprints, of development; the regulation of
activities on Native lands; the disposition of revenues; labor issues; oil export restrictions;
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.) The
analysis below describes features of recent congressional debate on ANWR development that
seem likely to recur in the 109th Congress.
Environmental Direction. If Congress authorizes development, it could address
environmental matters in several ways. 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 choice of administering agency and the degree of discretion given to it
could also affect the approaches to environmental protection. For example, Congress could
make either FWS or BLM the lead agency. It could include provisions requiring use of “the
best available technology” 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, including standards and implementation.
7 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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Regulations, Stipulations, and Other Issues. Congress could also leave
environmental protection largely up to the administering agency — to be accomplished
through regulations, or through lease stipulations. The former require public notice and
comment, while the latter do not involve public participation, and may provide fewer public
enforcement options. 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 Footprints. Newer technologies permit greater consolidation of leasing
operations, which tends to reduce the environmental impacts of development. On this issue,
the debate in Congress has focused on the size 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 falling under a “footprint restriction” are
arguable (e.g., whether to include roads, gravel mines, port facilities, etc.). (See CRS Report
RL32108, North Slope Infrastructure and the ANWR Debate, for a description of
development features on the North Slope.) In addition, it is unclear whether structures on
Native lands would be included under any provision limiting footprints.
Development advocates have emphasized the acreage of surface disturbance, while
opponents have emphasized the dispersal of not only the structures themselves but also their
impacts over much of the 1.5 million acres of the 1002 area. One single facility of 2,000
acres (3.1 square miles, a limit supported by some development advocates) would not permit
full development of the 1002 area. Instead, full development of the 1002 area would require
that facilities, even if limited to 2,000 acres in total surface area, be widely dispersed.
Dispersal is necessary due to the limits of lateral (or extended reach) drilling: the current
North Slope record for this technology is 4 miles. If that record were matched on all sides
of a single pad, at most about 4% of the Coastal Plain could be developed from that pad.
Even if the current world record (7 miles) were matched, only about 11% of the 1002 could
be accessed from a single compact 2,000-acre facility.
In the 107th and 108th Congresses, identical floor amendments on this subject were
offered in House floor consideration of ANWR development titles. (See archived CRS Issue
Brief IB10111, available from the authors, for other details of the bills.) The House bills
(see §30407(a)(3) in H.R. 6 of the 108th Congress) would have required, “consistent with the
provisions of section 30403” (which included ensuring receipt of fair market value), that the
Secretary administer the leasing program to “ensure that the maximum amount of surface
acreage covered by production and support facilities, including airstrips and any areas
covered by gravel berms or piers for the support of pipelines, does not exceed 2,000 acres
on the Coastal Plain.” The terms used were not defined in the bill, nor discussed in the
committee report, and therefore the range of structures covered by the restriction was
arguable (e.g., whether roads, gravel mines, causeways, and water treatment plants would be
included under this provision). Nor was there clarification on potential conflicts between
requiring receipt of fair market value and the acreage limitation. The latter could be a
significant issue, since marginal energy resources might not be developed if an acreage
limitation were inclusively defined in regulation or tightly enforced. Floor debate focused
on the extent to which the facilities would be widely distributed around the Refuge. In
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addition, Native lands did not appear to be limited by this provision. (See “Native Lands,”
below.)
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 1002 area that are
not subject to its regulations. Were oil and gas development authorized for the federal lands
in the Refuge, development would then be allowed or become feasible 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. (See also CRS Report RL31115, Legal Issues
Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge.)
Revenue Disposition. Another issue that has arisen during debates over leasing in
ANWR is disposition of possible revenues — whether Congress may validly provide for a
disposition of revenues formula other than the 90% federal - 10% state split mentioned in the
Alaska Statehood Act. A court in Alaska v. United States (35 Fed. Cl. 685, 701 (1996)) has
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. Past bills have not always been
clear on this issue.
A number of previous ANWR bills have specified the disposition of the federal portion
of the revenues. Among the spending purposes have been federal land acquisition, energy
research, and federal assistance to local governments in Alaska to mitigate the impact of
energy development. Amounts would have been either permanently or annually
appropriated. In the latter case, there would be little practical distinction between annually
appropriating funds based on ANWR revenues and annually appropriating funds from the
General Treasury. If there is no particular purpose specified for leasing revenues, the
resulting revenues would be deposited in the Treasury where they would be available for any
general government use.
Natural Gas Pipeline. Construction of a natural gas pipeline from Alaska to other
North American markets entails a routing decision and risk. Congressional debate during
the past few years concerned both. In P.L. 108-324, Division C (part of an appropriations
bill for Military Construction), Congress facilitated construction of the pipeline and specified
that the route chosen must not traverse the Beaufort Sea nor enter Canada above 68 degrees
north latitude — a route that bypasses gas reserves in far northwest Canada. As for risk, both
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the House and the Senate energy bills provided a loan guarantee not to exceed 80% of the
total capital cost of the project, nor to exceed $18 billion indexed for inflation, whereas only
the Senate bill had a tax credit mechanism that effectively would guarantee a minimum price
for natural gas transported through the pipeline. The final legislation, included a loan
guarantee, but not a tax credit. Canadian energy interests opposed a production tax credit,
which would likely have given Alaskan producers a price advantage over Canadian
producers. Canadian interests are moving to build a pipeline from the area bypassed by the
congressionally-mandated route.
Project Labor Agreements. A recurring issue in federal and federally-funded
projects is whether project owners or contractors 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.
Typically, the agreement is binding on all project contractors and subcontractors, 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. 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 supporters believe
that PLAs unfairly restrict their access to those projects. Opponents say that PLAs inflate
costs and reduce competition. There is little independent information to sort out the
conflicting assertions and show whether PLAs contribute to lower or higher project costs.
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 Trans Alaska
Pipeline System (TAPS) 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 strengthened the TAPS export restrictions further.8 Oil
shipments through the pipeline increased as North Slope development grew through the late
1980s. With exports effectively banned, much of this oil went to the West Coast; the rest
was shipped to the Gulf Coast through Panama.
In the early to mid-1990s, California and federal offshore production, North Slope oil,
and imports combined to produce large crude oil supplies relative to demand. California
prices fell below those in other states, causing complaints from California 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. These factors created pressure to change the
law. On November 28, 1995, P.L. 104-58 (109 Stat. 557) was enacted; Title II 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 exports are not in the national
8 Energy Policy and Conservation Act of 1975 (P.L. 94-163), 1977 amendments to the Export
Administration Act (P.L. 95-52; P.L. 95-223), and Export Administration Act of 1979 (P.L. 96-72).
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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, North Slope exports rose to
a peak of 74,000 bbl/day in 1999, representing 7% of North Slope production. North Slope
oil exports ceased voluntarily in May 2000. Any exports since then have been minimal.
If Congress wished to limit export of any oil from the 1002 area, it might apply the
restriction to oil transported through TAPS. However, if current warming trends in the Arctic
continue, oil shipment via tanker could become practical. If crude oil prices provided
sufficient incentive for such shipments, an export ban that applies only to oil transported
through TAPS would not be sufficient to prevent export of any ANWR oil.
NEPA Compliance. The National Environmental Policy Act of 1969 (NEPA, P.L.
91-190; 43 U.S.C. §§4321-4347) requires the preparation of an environmental impact
statement (EIS) to examine major federal actions with significant effects 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. NEPA requires an EIS to analyze an
array of 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 the 18-year gap since the last analysis
necessitates a thorough update, and stress the flaws they found in the 1987 FLEIS.
Compatibility with Refuge Purposes. Under current law for the management of
national wildlife refuges (16 U.S.C.§668dd), and under 43 C.F.R. §3101.5-3 for Alaskan
refuges specifically, 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. Several
earlier bills “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 were required to implement this determination. Such language
appeared 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 and argue that expediting, curtailing, or prohibiting judicial review may
be desirable to achieve 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 supported setting aside certain areas in the coastal plain
for protection of their ecological or cultural values. This could be done by designating the
areas specifically in legislation, or by authorizing the Secretary to set aside areas to be
selected after enactment. The FLEIS identified four special areas which together total more
than 52,000 acres. The Secretary could be required to restrict or prevent development in
these areas or any others that may seem significant, or to select among areas if an acreage
limitation on such set-asides is imposed.
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Non-Development Options. Several options are available to Congress that would
either postpone or forbid development, unless Congress were to change the law. These
options include allowing exploration only, designating the 1002 area as wilderness, and
taking no action. 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 any energy resources in the area, a better decision could be made
about opening some or all of the 1002 area for leasing. This idea has had little support over
the 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
wilderness areas, unless there are pre-existing rights or unless Congress specifically allows
it or reverses the designation. Wilderness designation would tend to preserve existing
recreational opportunities and related jobs, as well as the existing level of protection of
subsistence resources, including the Porcupine Caribou Herd. Under ANILCA and the 1983
Agreement, development of the surface and subsurface holdings of Native corporations in
the Refuge is precluded as long as oil and gas development is not allowed on the federal
lands in the Refuge. Because current law prohibits development unless Congress acts, the
no action 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.”
LEGISLATION
H.Con.Res. 95 (Nussle)
FY2006 budget resolution, includes spending targets for Committee on Resources.
Introduced Mar. 11, 2005; referred to Committee on Budget. Reported Mar. 11, 2005
(H.Rept. 109-17). Passed House Mar. 17, 2005 (yeas 218, nays 214, Roll Call #88). Passed
(amended) in Senate in lieu of S.Con.Res. 18; Senate conferees appointed Apr. 4, 2005.
H.R. 39 (D. Young)
Repeals current prohibition against ANWR leasing; directs Secretary to establish
competitive oil and gas leasing program; specifies that the 1987 FLEIS is sufficient for
compliance with the national Environmental Policy Act; authorizes set-asides up to 45,000
acres of Special Areas that restrict surface occupancy; sets minimum for royalty payments
and for tract sizes; and for other purposes. Introduced Jan. 4, 2005; referred to Committee
on Resources.
H.R. 567 (Markey)
Designates Arctic coastal plain of ANWR as wilderness. Introduced Feb. 2, 2005;
referred to Committee on Resources.
S.Con.Res. 18 (Gregg)
FY2006 budget resolution; includes spending targets for Committee on Energy and
Natural Resources. Introduced Jan. 31, 2005; referred to Committees on Budget, and Rules
and Administration. Reported Mar. 10, 2005 (no written report). Cantwell amendment
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(S.Amdt. 168, relating to ANWR) defeated Mar. 16, 2005 (yeas 49, nays 51, Roll Call #52).
Passed Senate Mar. 17, 2005 (yeas 51, nays 49, Roll Call #81). Senate incorporated measure
in H.Con.Res. 95 as an amendment; passed H.Con.Res. 95 in lieu.
S. 261 (Lieberman)
Designates Arctic coastal plain of ANWR as wilderness. Introduced Feb. 2, 2005;
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.
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
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.
U.S. National Energy Policy Development Group. National Energy Policy. Washington,
DC. May, 2001.
CRS Issue Brief IB10143. Energy Policy: Legislative Proposals in the 109th Congress.
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CRS Report RL32108. North Slope Infrastructure and the ANWR Debate.
CRS Report RL32838. Arctic National Wildlife Refuge: Legislative Actions Through the
108th Congress.
CRS Report RL31278. Arctic National Wildlife Refuge: Background and Issues.
CRS Report RS21170. ANWR Oil: Native Lands and State Waters.
CRS Report RS21030. ANWR Development: Economic Impacts.
CRS Report RL31115. Legal Issues Related to Proposed Drilling for Oil and Gas in the
Arctic National Wildlife Refuge.
CRS Report RL31022. Arctic Petroleum Development: Implications of Advances in
Technology.
CRS Report RL31317. Natural Gas Markets: Overview and Outlook.
CRS Report RL30862. The Budget Reconciliation Process: The Senate’s “Byrd Rule.”
CRS Report RS20368. Overview of the Congressional Budget Process.
CRS Report 98-815GOV. Budget Resolution Enforcement.
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