Order Code IB10136
CRS Issue Brief for Congress
Received through the CRS Web
Arctic National Wildlife Refuge (ANWR):
Controversies for the 109th Congress
Updated January 26, 2006
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
New Maps
Revenue Disposition
Project Labor Agreements (PLAs)
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 109th Congress
SUMMARY
One major element of the energy debate
conference. The conference report (H.Rept.
is whether to approve energy development in
109-362) omitted ANWR development. The
the Arctic National Wildlife Refuge (ANWR)
House and Senate have passed different ver-
in northeastern Alaska, and if so, under what
sions of the report, but neither contains
conditions, or whether to continue to prohibit
ANWR provisions.
development to protect the area’s biological
recreational, and subsistence values. ANWR
Development advocates then added
is rich in fauna, flora, and commercial oil
ANWR development to the conference report
potential. Its development has been debated
for the Defense appropriations bill (H.R.
for over 40 years, but sharp increases in gaso-
2863). While the House passed the confer-
line and natural gas prices from late 2000 to
ence report with the ANWR provision, the
early 2001, terrorist attacks, further increases
ANWR title was removed after failure of a
in 2004-2005, and infrastructure damage from
cloture motion in the Senate.
hurricanes have intensified the debate. Few
onshore U.S. areas stir as much industry
Development advocates argue that
interest as the northern area of ANWR. At the
ANWR oil would reduce U.S. energy mar-
same time, few areas are considered more
kets’ exposure to crises in the Middle East;
worthy of protection in the eyes of conserva-
lower oil prices; extend the economic life of
tion and some Native groups. Current law
the Trans Alaska Pipeline; and create jobs in
forbids energy leasing in the Refuge.
Alaska and elsewhere in the United States.
They maintain that ANWR oil could be devel-
The FY2006 Budget Resolution
oped with minimal environmental harm, and
(H.Con.Res. 95, H.Rept. 109-62) required that
that the footprint of development could be
the House Resources and Senate Energy
limited to a total of 2,000 acres.
Committees achieve savings targets that
would be difficult without including ANWR
Opponents argue that intrusion on this
legislation. The Senate Budget Committee
ecosystem cannot be justified on any terms;
reported a title in S. 1932 (reconciliation) to
that economically recoverable oil found (if
open ANWR; supporters designed it to meet
any) would provide little energy security and
the savings target and Senate procedural
could be replaced by cost-effective alterna-
restrictions on matters included in reconcilia-
tives, including conservation; and that job
tion bills.
claims are exaggerated. They maintain that
development’s footprints, being scattered
ANWR provisions were struck from the
across the landscape, would have a greater
House version of reconciliation (H.R. 4241)
impact than is implied by any limit on total
before floor consideration at the insistence of
acreage. They also argue that limits on foot-
a group of Republican Members, according to
prints have not been worded to apply to exten-
press reports. The House then substituted its
sive Native lands in the Refuge, which could
text for the Senate version of S. 1932. The
be developed if the Refuge were opened.
difference on ANWR was a major issue in
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MOST RECENT DEVELOPMENTS
The House and Senate agreed in conference on reconciliation (S. 1932, H.Rept. 109-
362) from which ANWR development provisions (contained only in the Senate version)
were removed. (The House passed the conference report, but the Senate amended it. The
measure is unresolved.) Senate supporters then added an ANWR title to the conference
report for Defense appropriations (H.R. 2863, H.Rept. 109-359). Opponents of ANWR
development filibustered the measure; failure of a cloture motion (yeas 56, nays 44, Roll Call
#364) led to striking the provision from the Defense appropriations bill (P.L. 109-148).
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), and there is a small
chance that, taken together, the fields on this federal land could hold 10.7 billion bbl of
economically recoverable oil (at $55/bbl in 2003 dollars). That amount 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, Arctic National
Wildlife Refuge: Background and Issues, by M. Lynne Corn (coordinator). For legal
background, see CRS Report RL31115, Legal Issues Related to Proposed Drilling for Oil
and Gas in the Arctic National Wildlife Refuge (ANWR), by Pamela Baldwin. 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
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[http://www.alaskawild.org/], [http://www.dfait-maeci.gc.ca/can-am/washington/
shared_env/default-en.asp], [http://www.protectthearctic.com/], or [http://www.tws.org/
OurIssues/Arctic/index.cfm?TopLevel=Home].
Legislative History of the Refuge
The energy and biological resources of northern Alaska have been controversial for
decades, from legislation in the 1970s, to a 1989 oil spill, to more recent efforts to use
ANWR resources 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. 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.” The potential for oil and gas leasing was expressly preserved.
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, nor
the newer portions of the Refuge. Instead, Congress postponed decisions on the development
or further protection of the coastal plain. Section 1002 directed a study of ANWR’s “coastal
plain” (therefore often referred to as the “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 1980 map — language that was later
administratively interpreted as excluding many 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, Arctic National Wildlife Refuge: Background and
Issues, by M. Lynne Corn, coordinator; for legal issues, see CRS Report RL31115, Legal
Issues Related to Proposed Drilling for Oil and Gas in the Arctic National Wildlife Refuge
(ANWR), by Pamela Baldwin. For specific actions, including key votes, see CRS Report
RL32838, Arctic National Wildlife Refuge: Legislative Actions Through the 108th Congress,
by Anne Gillis, M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.)
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Actions in the 109th Congress. The ANWR debate has taken two legislative routes
in the 109th Congress: (a) the reconciliation bill (S. 1932 and H.R 4241), which is not subject
to Senate filibusters; and (b) legislative bills (H.R. 6 and S. 2863). The budget resolution and
reconciliation have been a focus of attention, particularly in the Senate.1 (See also Omnibus
Energy Legislation, below.) 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 FY2006, and $2,658,000,000 for the period of fiscal years 2006
through 2010.” The resolution assumed that the committee would report legislation to open
ANWR to development, and that leasing would generate $2.5 billion in revenues for the
federal government over five years. Senator Cantwell offered a floor 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.
In the end, the budget resolution (H.Con.Res. 95, H.Rept. 109-62) approved by the
House and Senate on April 28, 2005, contained reductions in spending targets of $2.4 billion
over FY2006 to FY2010 for House Resources and Senate Energy Committees that will be
difficult to achieve unless ANWR development legislation is passed. The inclusion of the
Senate target particularly set the stage for including ANWR development legislation in a
reconciliation bill, since reconciliation bills cannot be filibustered.
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. The Senate Energy and
Natural Resources Committee did choose to meet its target by recommending ANWR
legislation, and the Budget Committee incorporated the recommendation as Title IV of S.
1932, the Deficit Reduction Act of 2005. The House Resources Committee included
ANWR development legislation, and other spending reductions and offsetting collections,
thereby more than meeting the Committee’s targets. These measures were incorporated by
the House Budget Committee into an omnibus reconciliation bill. However, before the
House bill came to the floor, considerable opposition to the ANWR provision developed
among a number of House Republicans, 24 of whom signed a letter to the Speaker opposing
its inclusion. The provision was removed before floor consideration; S. 1932 (with the text
of H.R. 4241 inserted in lieu — minus an ANWR provision — passed the House on Nov.
18, 2005 (yeas 217, Nays 215; Roll call #601).
There was some question procedurally as to whether ANWR legislation could be part
of a reconciliation bill.2 ANWR provisions were struck from the House version of
reconciliation (H.R. 4241) before floor consideration at the insistence of a group of
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, Budget Resolution Enforcement, both
by Bill Heniff, Jr. For ANWR and reconciliation, see CRS Report RS22304, ANWR and FY2006
Budget Reconciliation Legislation, by Bill Heniff, Jr., and M. Lynne Corn.
2 See CRS Report RL30862, The Budget Reconciliation Process: The Senate’s “Byrd Rule”, by
Robert Keith.
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Republican Members, according to press reports. The House then substituted its text for the
Senate version of S. 1932. The difference on ANWR was a major issue in conference. In
the end, the conference report (H.Rept. 109-362) omitted ANWR development. The House
passed the conference report, but since Senate approved the report with an amendment,
reconciliation is unresolved, but now appears very unlikely to contain ANWR provisions.
ANWR in the Defense Appropriations Bill? As Congress moved toward the
December recess, and the chance of an agreement on reconciliation with an ANWR provision
seemed to fade, Senator Stevens (Chair of the Defense Appropriations Subcommittee) added
an ANWR development title to the FY2006 Defense appropriations bill (H.R. 2863) in
conference. Since most observers held that the Defense appropriations bill was “must-pass”
legislation, Senators opposing ANWR were forced to choose between filibuster of the
popular measure or acquiescing to opening the Refuge. Members began a filibuster, and a
cloture motion failed (yeas 56, nays 44, Roll Call #364). The relevant two Divisions (C and
D) were removed through House and Senate passage of S.Con.Res. 74, correcting the
enrollment of the bill (P.L. 109-148).
Omnibus Energy Legislation. On April 13, 2005, the House Resources Committee
considered and marked up its portion of the omnibus energy bill, before the bill was
introduced. The provisions approved by the committee were then incorporated into the
House version of H.R. 6, and introduced by Representative Barton, Chair of the Energy and
Commerce Committee, on April 18. During House consideration on April 20,
Representatives Markey and Johnson offered an amendment (H.Amdt. 73) to strike the title;
it was rejected (yeas 200, nays 231, Roll Call #122). The House passed H.R. 6 on April 21
(yeas 249, nays 183, Roll Call #132). The Senate passed its version of H.R. 6 on June 28,
2005 (yeas 85, nays 12, Roll Call #158). The Senate version contained no ANWR
development provisions. (See CRS Report RL32936, Omnibus Energy Legislation, 109th
Congress: Assessment of H.R. 6 as Passed by the House for details of this bill.) The ANWR
title was omitted in the final measure (P.L. 109-58).
The Energy Resource
The developed parts of Alaska’s North Slope hold promise for ANWR. 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, Arctic
National Wildlife Refuge: Background and Issues, by M. Lynne Corn, coordinator.) The
most recent government geologic 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
3 U.S. Department of the Interior, Geological Survey (USGS), 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.
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are present on federal lands in the 1002 area. (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, and
crude oil prices have increased substantially in the last two years — ranging between $60 and
$65 per barrel in the spot market in early November 2005, and reflecting the effects of Gulf
hurricanes on energy markets. In its latest assessment, USGS estimated that, at $55/bbl in
2003 dollars, there is a 95% chance that 3.9 billion bbl or more could be economically
recovered and a 5% chance of 10.7 billion bbl or more.4 These estimates reflect field
development practices introduced and cost and price changes since USGS’s 1998
assessment. Roughly one-third more oil may be under adjacent state waters and Native lands
— areas that could be difficult to develop without access through federal land.
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 at the slower
rate would peak about 25 years after the start 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, ANWR Development: Economic
Impacts, by Bernard A. Gelb.)
Natural Gas. Large quantities of natural gas are estimated to be in the 1002 area.
Being able to sell this gas probably would enhance prospects of the 1002 area and the rest
of the North Slope — oil as well as gas. However, there currently is no way to deliver the
gas to market. Higher gas prices in the last 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. The 108th Congress acted to facilitate such a pipeline.
Advanced Technologies. As North Slope development proceeded after the initial
discovery at Prudhoe Bay, oil field operators developed less environmentally intrusive ways
to develop arctic oil, primarily through innovations in technology. New drilling bits and
fluids and advanced forms of drilling — such as extended reach, horizontal, and “designer”
wells — permit drilling to reach laterally far beyond a drill platform, with the current record
being seven miles at one site in China. (See CRS Report RL31022, Arctic Petroleum
Technology Developments for more information.)
Reducing the footprints of development has been a major goal of development.
Improved ice-based transportation infrastructure serves remote areas during the exploratory
drilling phase on 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. But in addition to ice technology, industry has been experimenting with
essentially modified offshore platforms mounted on supporting legs to hold exploration rigs
4 USGS, Economics of 1998 U.S. Geological Survey’s 1002 Area Regional Assessment: An
Economic Update, Open-File Report 2005-1359 (Washington, DC: 2005).
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above the tundra. These rigs may offer access for exploration in areas lacking sufficient
water or too hilly to permit ice technology. At the same time, warming trends in arctic
latitudes have already shortened winter 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. 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. Moreover, fields that begin with few roads may expand their gravel road network
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 was considered innovative
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
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 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.
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
were outweighed by harmful effects.
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
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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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.
(For an extensive discussion of the biological resources of the 1002 area, see CRS Report
RL31278.)
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 memo7 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. Any impacts that might occur when the herd subsequently
moves into the area were not discussed in the memo.
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 the ANWR title of the reconciliation recommendations as submitted
by the House Committee on Resources (and later dropped before floor consideration), the
provisions of Division C of the conference report on H.R. 2863 (the “Defense bill”), and
§4001 of S. 1932, the Senate reconciliation bill. Because of the lack of detail in §4001, many
6 U.S. Department of the Interior, Geological Survey, Arctic Refuge Coastal Plain Terrestrial
Wildlife Research Summaries, Biological Science Report, USGS/BRD/BSR-2002-0001.
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.
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aspects of ANWR leasing would be left to administrative decisions, with levels of public
participation in some instances curtailed along with judicial review, as noted below.
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.
The House bill as reported would have named BLM as the lead agency. Section 6107(a)
as reported would require the Secretary to administer the leasing program so as to “result in
no significant adverse effect on fish and wildlife, their habitat, and the environment, [and to
require] the application of the best commercially available technology....” Section 6103(a)(2)
would also have required that this program be done “in a manner that ensures the receipt of
fair market value by the public for the mineral resources to be leased.” It is unclear how the
two goals of environmental protection and fair market value are to relate to each other (e.g.,
if environmental restrictions might make some fields uneconomic). Subsections 6106(a)(3)
and (5) would require lessees to be responsible and liable for reclamation of lands within the
Coastal Plain (unless the Secretary approves other arrangements), and the lands must support
pre-leasing uses or a higher use approved by the Secretary. There were requirements for
mitigation, development of regulations, and other measures to protect the environment.
These included prohibitions on public access to service roads and other transportation
restrictions. Other provisions might also affect environmental protection. (See “Judicial
Review,” below.) The Defense bill (§7) was similar to the House bill. The Senate bill
(§4001(b)(1)(B)) directs the Secretary to establish and implement an “environmentally
sound” leasing system, but does not provide further direction.
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., the inclusion of exploratory structures, roads, gravel mines, port facilities,
etc.). (See CRS Report RL32108, North Slope Infrastructure and the ANWR Debate, by M.
Lynne Corn, which describes development features on the North Slope.) In addition, it is
unclear whether exploratory structures, or structures on Native lands, would be included
under any provision limiting footprints. (See CRS Report RS22143, Oil and Gas Leasing
in the Arctic National Wildlife Refuge (ANWR): The 2,000-Acre Limit, by Pamela Baldwin
and M. Lynne Corn, for a discussion of an acreage limit.) The new map accompanying the
Senate bill includes the Native lands in the Coastal Plain leasing area, but how the federal
leasing program will apply to those lands is not clear. See New Maps, below.
Development advocates have emphasized the acreage of surface disturbance, while
opponents have emphasized the dispersal of not only the structures themselves but also their
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impacts over much of the 1.5 million acres of the 1002 area. One single facility of 2,000
acres (3.1 square miles) 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 (seven miles) were matched,
only about 11% of the 1002 area could be accessed from a single compact 2,000-acre facility.
In addition, drilling opponents argue that energy facilities have impacts on vegetation and
wildlife well beyond areas actually covered by development.
The House bill as reported (§6107(d)(9)) would have provided for consolidation of
leasing operations to reduce environmental impacts of development. House §6107(a)(3)
further would have required, “consistent with the provisions of section 6103” (which include
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 and therefore the range of structures covered by the restriction is arguable
(e.g., whether roads, gravel mines, causeways, and water treatment plants would be included
under this provision). In addition, the wording may not apply to structures built during the
exploratory phase. An essentially identical provision (§4001(f)) is found in the Senate bill.
The Defense bill (§7(f)) called for the Secretary to develop a consolidation plan, but does not
explicitly require consolidation.
Native Lands. ANCSA resolved aboriginal claims against the United States by
(among other things) creating Village Corporations that could select surface lands and
Regional Corporations that could select surface and subsurface rights as well. Kaktovik
Inupiat Village (KIC) selected surface lands (originally approximately three townships) along
the coastal plain of ANWR, but these KIC lands were administratively excluded from being
considered as within the administratively defined “1002 Coastal Plain.” These lands and a
fourth township that is within the administratively 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 or claimed individual Native allotments in the 1002 area that are
not expressly subject to its regulations. Were oil and gas development authorized for the
federal lands in the Refuge, development would then be allowed or become feasible on the
approximately 100,000 acres of Native lands, possibly free of any acreage limitation applying
to development on the federal lands, depending on how legislation is framed. 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 (ANWR), by Pamela Baldwin, and New Maps, below.)
New Maps. Both the House and Senate have created new maps of the “Coastal Plain”
that will be the subject of leasing. See CRS Report RS22326, Legislative Maps of ANWR,
by M. Lynn Corn and Pamela Baldwin. The Coastal Plain was defined in § 1002 of
ANILCA as the area indicated on an August, 1980 map. This map is now missing. An
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administrative articulation of the boundary was authorized by §103(b) of ANILCA, and has
the force of law. This legal description was completed in 1983 (48 Fed. Reg. 16838), but
questions also surround this description. (See CRS Report RL31115.) The description
excluded three Native townships from the articulated coastal plain. Some bills in various
Congresses also have excluded these same Native lands by referring to the 1980 map and the
administrative description. However, if the 1980 map is missing, evaluating whether the
administrative description properly excluded the Native lands is impossible, and, as noted,
the fourth Native township (selected later) was not excluded from the coastal plain by that
description. The Senate Energy Committee bill (§4001(a)) provided a new map, dated
September 2005, to accompany its submission to the Budget Committee for reconciliation.
This map includes in the “Coastal Plain” all Native lands (see Figure 1 in CRS Report
RS22326, Legislative Maps of ANWR). However, the bill text remains unchanged and it is
not clear what extent of federal control of Native lands was intended or accomplished by the
map change. For example, language is retained that “notwithstanding any other provision
of law” directs a 50/50 revenue split between the state of Alaska and the federal government,
thereby possibly giving rise to Native claims for compensation for revenues from their lands.
If this provision was not intended to apply to Native lands, it is not clear whether other
provisions also might not apply. Also, some of the terms in the 1983 Agreement call for an
express congressional override to negate their effects, and the text of the bill does not discuss
the Native lands. The Defense bill also used a USGS map dated September 2005 (§2(4)).
The House also adopted a new map, one that appears to follow the 1983 administrative
articulation of the coastal plain. The map appears to exclude the three Native townships, but
leave the fourth within the coastal plain to which the leasing provisions would apply.
Revenue Disposition. Another issue is whether Congress may validly provide for
a disposition of revenues formula other than the 90% state - 10% federal split mentioned in
the Alaska Statehood Act. A court in Alaska v. United States (35 Fed. Cl. 685, 701 (1996))
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, but that 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.
Several sections of the House bill as reported related to revenues. Section 6109 would
have provided that 50% of adjusted revenues be paid to Alaska, and the balance be deposited
in the U.S. Treasury as miscellaneous receipts, except for a portion (not to exceed $11
million in an unspent balance, with $5 million available for annual appropriation). Under
§6112, this portion was to assist Alaska communities in addressing local impacts of energy
development. Under §6103(a), the Secretary was to establish and implement a leasing
program under the Mineral Leasing Act, yet “notwithstanding any other provision of law,”
§6112 directed a revenue sharing program different from that in the MLA. Establishing a
leasing program under the MLA, yet providing for a different revenue disposition, may again
raise validity questions. If the alternative disposition were struck down and the revenue
provisions were determined to be severable, Alaska could receive 90% of ANWR revenues.
In a different subtitle, §6514 would create the Federal Energy Natural Resources
Enhancement Fund and apply a portion of moneys received under the revenues section of the
MLA to certain wildlife and habitat purposes. It is not clear whether moneys from ANWR
leasing would be eligible for this use, since leasing in ANWR while under the MLA, would
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have special revenue splitting provisions. The Senate bill does not refer to leasing being
under the MLA, and “notwithstanding any other provision of law” directs receipts from
leasing and operations “authorized under this section” to be divided equally between the state
of Alaska and the federal government. Because of the change in the Senate definition of
“Coastal Plain,” this provision may include revenues from Native lands. The Defense bill
(Division D, §1) also provided for a 50/50 split, and the Division contained various
provisions for distribution of certain percentages of the federal share to various purposes,
including hurricane relief. In addition, §14 of Division C provided explicitly that if any
portion of either Division Cor D were held to be unconstitutional, the remainder of the two
divisions would not be affected.
Project Labor Agreements (PLAs). A recurring issue in federal and federally
funded projects is whether project owners or contractors should be required, by agreement,
to use union workers. PLAs establish the terms and conditions of work that will apply for
the particular project, and may also specify a source to supply the craft workers. Proponents
of PLAs, including construction and other unions, argue that PLAs ensure a reliable, efficient
labor source, help keep costs down and ensure access for union members to federal and
federally funded projects. Opponents, including nonunion firms and their supporters, believe
that PLAs inflate costs, reduce competition, and unfairly restrict access to those projects.
There is little independent information to sort out the conflicting assertions.
The House bill (§6106(b)) as reported would have directed the Secretary to require
lessees in the 1002 area to “negotiate to obtain a project labor agreement” — “recognizing
the Government’s proprietary interest in labor stability and the ability of construction labor
and management to meet the particular needs and conditions of projects to be developed....”
The Defense bill (§6(b)) contained similar provisions, but the Senate bill had no similar
provision.
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. 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. Most North Slope oil
went to the West Coast; the rest was shipped to the Gulf Coast through Panama. In the early
to mid-1990s, California, North Slope, and federal offshore production, plus imports,
combined to produce large crude oil supplies relative to demand. California prices fell,
causing complaints from California and North Slope producers. In 1995, P.L. 104-58
amended the MLA 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
interest (30 U.S.C. §185(s)). North Slope exports rose to a peak of 74,000 bbl/day in 1999,
to 7% of North Slope production. North Slope oil exports ceased voluntarily in May 2000,
and have since been minimal.
If Congress wished to limit export of any oil from the 1002 area, it might again apply
the restriction to ANWR 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. The
House bill as reported (§6106(a)(8)) would have prohibited the export of oil produced in the
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1002 area as a condition of a lease. The Senate bill (§4001(g) contained a similar provision,
as did the Defense bill (§12).
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.
Development opponents, and NEPA supporters, argue that the 18-year gap since the last
analysis necessitates a thorough update, and stress the flaws they found in the 1987 FLEIS.
Section 6103(c) of the House bill as reported would have deemed the 1987 FLEIS to
satisfy NEPA requirements with respect to prelease activities and the development and
promulgation of leasing regulations, and requires the Secretary to prepare an EIS of all other
actions authorized by the subtitle before the first lease sale. Consideration of alternatives is
to be limited to two choices, a preferred leasing action and a “single leasing alternative.”
(Generally, an EIS must analyze several alternatives, including a “no action” alternative.)
Compliance with the subsection is deemed to satisfy all requirements to analyze the
environmental effects of proposed leasing. The Defense bill (§c) was essentially identical.
S. 1932 (§4001(c)) has similar provisions, but does not expressly require an EIS for leasing.
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. Section
6103(c) of the House bill as reported, the Defense bill (§3(c)), and §4001(c) of S. 1932 state
that the energy leasing program and activities in the coastal plain are deemed to be
compatible with the purposes for which ANWR was established and that no further findings
or decisions are required to implement this determination. This language appears 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 is
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, avoiding some level of
review, curtailing the scope of the review, or increasing the burden imposed on challengers.
The House bill as reported (§6108) required that any complaints seeking judicial review be
filed within 90 days. Sections 6108(a)(1) and (a)(2) appeared to contradict each other as to
whether suits are to be filed in “any appropriate district court” or in the Court of Appeals in
Washington, DC. The Defense bill (§8(a)) specified the latter. The House bill (§6108(a)(3))
would also have limited the scope of review by stating that review of a secretarial decision,
including environmental analyses, would be limited to whether the Secretary complied with
the terms of the ANWR subtitle, that it would be based on the administrative record, and that
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the Secretary’s analysis of environmental effects is “presumed to be correct unless shown
otherwise by clear and convincing evidence to the contrary.” This standard is unclear, but
in this context arguably would make overturning a decision more difficult. S. 1932 and the
Defense bill are similar, but requires complaints to be filed only in the U.S. Court of Appeals
in Washington, DC (§4001(c) and §8(a) respectively), the Senate bill omits the presumption
concerning the Secretary’s analysis of environmental effects.
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 that 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. The House bill as reported (§6103(e)) would have
allowed the Secretary to set aside up to 45,000 acres (and names one specific special area)
in which leases, if permitted, would forbid surface occupancy. As mentioned above, the
FLEIS identified four special areas that together total more than 52,000 acres, so the
Secretary would be required to select among these areas or any others that may seem
significant. Section 6103(f) also stated that the closure authority in the ANWR title is to be
the Secretary’s sole authority, which might limit possible secretarial actions under the
Endangered Species Act. The Defense bill (§3(e)) was essentially identical. The Senate bill
has no provision for special areas.
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, Arctic National Wildlife Refuge: Background and Issues, coordinated by M.
Lynne Corn, 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.” H.R. 567 and S. 261 would designate the 1002 area as part of the
National Wilderness System.
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LEGISLATION
P.L. 109-148 (H.R. 2863)
Provides for Defense appropriations. Conference report (H.Rept. 109-359) filed Dec.
18, 2005 (Division C & D provided for ANWR development and revenue disposition).
Cloture motion on filibuster on ANWR provision failed Dec. 22, 2005 (yeas 56, nays 44,
Roll Call #364). Signed by President, Dec. 30, 2005.
H.Con.Res. 95 (Nussle)
FY2006 budget resolution, included spending targets for Committee on Resources.
Introduced March 11, 2005; referred to Committee on Budget. Reported March 11, 2005
(H.Rept. 109-17). Passed House March 17, 2005 (yeas 218, nays 214, Roll Call #88).
Passed (amended) in Senate in lieu of S.Con.Res. 18 (no report). April 28, 2005, conference
report filed (H.Rept. 109-62), House approved conference report (yeas 214, nays 211, Roll
Call #149), and Senate approved conference report (yeas 52, nays 47, Roll Call #114).
H.R. 6 (Barton)
An omnibus energy act; Title XXII opens ANWR coastal plain to energy development.
Introduced April 18, 2005; considered and marked up by Committee on Resources April 13,
2005 (no report). Considered by House April 20-21, 2005. Markey/Johnson amendment
(H.Amdt. 73) to strike ANWR title rejected (yeas 200, nays 231, Roll Call #122) April 20.
Passed April 21, 2005 (yeas 249, nays 183, Roll Call #132). Passed Senate, with no ANWR
development provision, June 28, 2005 (yeas 85, nays 12, Roll Call #158). Conference
agreement omits ANWR title; signed by the President August 8, 2005 (P.L. 109-58).
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 January 4, 2005; referred to
Committee on Resources.
H.R. 567 (Markey)
Designates Arctic coastal plain of ANWR as wilderness. Introduced February 2, 2005;
referred to Committee on Resources.
H.R. 4241 (Nussle)
FY2006 Reconciliation. Title to open ANWR struck before floor consideration.
Introduced November 7, 2005; passed House November 18, 2005 (yeas 217, nays 215, Roll
Call #601). Inserted in lieu of the text of S. 1932.
S.Con.Res. 18 (Gregg)
FY2006 budget resolution; includes spending targets for Committee on Energy and
Natural Resources. Introduced January 31, 2005; referred to Committees on Budget, and
Rules and Administration. Reported March 10, 2005 (no written report). Cantwell
amendment (S.Amdt. 168, relating to ANWR) defeated March 16, 2005 (yeas 49, nays 51,
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Roll Call #52). Passed Senate March 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.Con.Res. 74 (Cantwell)
Corrected enrollment of the bill H.R. 2863 (P.L. 109-148) to delete Divisions C and D.
Passed Senate Dec. 21, 2005 (yeas 48, nays 45, Roll Call. #365). Passed House Dec. 22,
2005 on voice vote.
S. 261 (Lieberman)
Designates Arctic coastal plain of ANWR as wilderness. Introduced February 2, 2005;
referred to Committee on Environment and Public Works.
S. 1891 (Murkowski)
Authorizes energy development and economically feasible oil transportation in ANWR.
Introduced October 19, 2005; referred to Committee on Energy and Natural Resources.
S. 1932 (Gregg)
Omnibus budget reconciliation; Title IV would open ANWR. Introduced, referred to
Committee on Budget, and reported October 27, 2005 (no written report). Passed Senate
November 3, 2005 (yeas 52, nays 47, Roll Call #303). Passed House (amended) November
18, 2005.
FOR 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. 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.
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.
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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. Department of the Interior. Geological Survey. Economics of 1998 U.S. Geological
Survey’s 1002 Area Regional Assessment: An Economic Update. USGS Open File
Report 2005-1359. Washington, DC, 2005.
U.S. General Accounting Office. Arctic National Wildlife Refuge: An Assessment of
Interior’s Estimate of an Economically Viable Oil Field. Washington, DC. July, 1993.
GAO/RCED-93-130.
U.S. National Energy Policy Development Group. National Energy Policy. Washington,
DC. May, 2001.
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