Order Code IB10094
Issue Brief for Congress
Received through the CRS Web
Arctic National Wildlife Refuge:
Updated October 22, 2002
M. Lynne Corn and Bernard A. Gelb
Resources, Science, and Industry Division
American Law Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
History of the Refuge
Legislation in the 107th Congress
The Energy Resource
The Biological Resources
Major Legislative Issues in the 107th Congress
The Size of the Footprint – Federal Lands
Project Labor Agreements
Natural Gas Pipeline
Oil Export Restrictions
Compatibility with Refuge Purposes
FOR ADDITIONAL READING
Arctic National Wildlife Refuge: Legislative Issues
One important element of the energy
debate in the 107th Congress is whether to
approve energy development in the Arctic
National Wildlife Refuge (ANWR) in northeastern Alaska, and if so, under what conditions, or whether to continue to prohibit
development in order to protect the area’s
biological resources. ANWR is an area rich
in fauna, flora, and commercial oil potential.
Sharp increases in prices of gasoline and
natural gas from late 2000 to early 2001,
followed by terrorist attacks, renewed the
ANWR debate for the first time in 5 years;
however, its development has been debated
for over 40 years. Few U.S. locations onshore
stir as much industry interest as the northern
area of ANWR. Current law forbids energy
leasing in the Refuge.
Six bills have been introduced in the
107th Congress that would directly affect the
future of ANWR. Four of these (H.R. 4, H.R.
39, H.R. 2436, and S. 388) would open the
refuge to development; they share many overlapping provisions. Two (H.R. 770 and S.
411) would designate the coast of ANWR as
wilderness. The following actions have been
taken on these bills.
On July 25, 2001, the House Resources
Committee reported H.R. 2436. Its Title V
would open ANWR to exploration and development. These provisions were incorporated
into H.R. 4, an omnibus energy bill. An
amendment was passed to limit some types of
surface development to a total of 2,000 acres;
another amendment to strike Title V was
defeated. H.R. 4 passed the House on August
2, 2001. Hearings were held on S. 388. H.R.
39, H.R. 770, and S. 411 have had no hearings
A comprehensive energy bill, but one
that lacks refuge development provisions, was
Congressional Research Service
offered by Senator Daschle as an amendment
(S.Amdt. 2917) to S. 517, the bill which
served as the vehicle for Senate floor consideration of omnibus energy legislation. An
amendment package to open the Refuge by
Senators Murkowski and Stevens was filibustered; cloture motions on the amendments
lost, and the amendments were withdrawn.
The text of S. 517 (amended) was passed in
lieu of the House version of H.R. 4. Conferees have been meeting to reconcile the two
versions of H.R. 4, but press reports suggest
that conferees are likely to drop ANWR
Development advocates argue that
ANWR oil would reduce U.S. energy markets’ exposure to crises in the Middle East;
boost North Slope oil production, extend the
economic life of the TransAlaska Pipeline
System, and create many jobs in Alaska and
elsewhere. They maintain that ANWR oil
could be developed with minimal environmental harm, with a footprint limited to 2000
acres. Opponents argue that intrusion on this
ecosystem cannot be justified on any terms;
that the footprint would be scattered like a
web; that oil found (if any) would provide
little energy security and could be replaced by
cost-effective alternatives; and that job claims
If Congress does not act, the status quo,
which prohibits development unless Congress
acts, will continue.
On April 18, the Senate essentially voted
to prevent energy drilling in ANWR. The
defeat came on a 46 to 54 vote against a
cloture motion to block a threatened filibuster
on Senator Murkowski’s amendment to S.
517, which would have ended debate and
moved the chamber to a direct vote on the
˜ The Library of Congress
MOST RECENT DEVELOPMENTS
On February 15, 2002, the Senate began floor consideration of S. 517, to which Senator
Daschle offered S.Amdt. 2917, an omnibus energy bill. On April 16, Senators Murkowski
and Stevens introduced two amendments (S.Amdt. 3132 and S.Amdt. 3133) to open the
Refuge to development. On April 18, the Senate essentially voted to prevent drilling for oil
and gas in the Refuge. The action came on vote of 46 yeas to 54 nays on a cloture motion
to block a threatened filibuster on Senator Murkowski’s amendment to the Senate energy
bill, which would have ended debate and moved the chamber to a direct vote on the ANWR
issue. Lacking a provision to develop ANWR, the text of S. 517, as amended, was substituted
for the text of the House-passed H.R. 4, and passed the Senate (88 yeas to 11 nays) on April
25. Conferees are attempting to iron out the substantial differences between the two
versions in the time remaining in the second session. Recent press reports indicate that
conferees seem likely to drop provisions to develop the Refuge, but some observers suggest
the possibility of an unspecified compromise during the lame duck session. Interior
Secretary Norton has stated that she would recommend veto of a bill lacking ANWR
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 currently viewed as one of the most likely
U.S. onshore oil and gas prospects. According to the U.S. Geological Survey, there is even
a small chance that taken together, the fields on this federal land could hold as much
economically recoverable oil as the giant field at Prudhoe Bay, found in 1967 on the stateowned portion of the coastal plain west of ANWR, now estimated to have held 11-13 billion
At the same time, the Refuge, and especially the coastal plain, is home to a wide variety
of plants and animals. The presence of caribou, polar bears, grizzly bears, wolves, migratory
birds, and many other species in a nearly undisturbed state has led some to call the area
“America’s Serengeti.” The Refuge and two neighboring parks in Canada have been
proposed for an international park, and several species found in the area (including polar
bears, caribou, migratory birds, and whales) are protected by international treaties or
agreements. The analysis below covers, first, the economic and geological factors that have
triggered new interest in development, followed by the philosophical, biological, and
environmental quality factors that have triggered opposition to it.
The conflict between high oil potential and nearly pristine nature creates a dilemma:
should Congress open the area for oil and gas development or should the area’s ecosystem
be given permanent protection from development? What factors should determine whether
to open the area? If the area is opened, how 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 and at the FWS web site,
[http://www.r7.fws.gov/nwr/arctic], which includes links to a number of other organizations
interested in the area. A presentation of development arguments can be found at
[http://www.anwr.org], sponsored by a consortium of groups. Opponents’ arguments can
be found at [http://www.alaskawild.org], [http://www.protectthearctic.com/], or [http://www.tws.org/arctic/]. Maps of the coastal plain showing existing oil development areas on state
land can be found at
History of the Refuge
The energy and biological resources of northern Alaska have raised controversy 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) to
resolve all Native aboriginal land claims against the United States. ANCSA provided for
monetary payments and also created Village Corporations that received the surface estate
to approximately 22 million acres of lands in Alaska. Village selection rights included the
right to choose the surface estate in a certain amount of lands within the National Wildlife
Refuge System. Under §22(g) of ANCSA, the chosen lands were to remain subject to the
laws and regulations governing use and development of the particular Refuge. Kaktovik
Inupiat Corporation (KIC, the local corporation) received rights to three townships along the
coast of ANWR. ANCSA also created Regional Corporations which could select subsurface
rights to some lands and full title to others. Subsurface rights in National Wildlife Refuges
were not available, but in-lieu selections to substitute for such lands were provided.
In 1980, Congress enacted the Alaska National Interest Lands Conservation Act
(ANILCA, P.L. 96-487, 94 Stat. 2371), which included several sections about ANWR. The
Arctic Range was renamed the Arctic National Wildlife Refuge, and was expanded, mostly
southward and westward, to include an additional 9.2 million acres. Section 702(3) of
ANILCA designated much of the original Refuge as a wilderness area, but not the coastal
plain.1 Instead, Congress postponed decisions on the development or further protection of
the coastal plain. Section 1002 of ANILCA directed a study of the “coastal plain” (which
therefore is often referred to as the “1002 area”) and its resources be completed within 5
years and 9 months of enactment. The resulting 1987 report was called the 1002 report or
the Final Legislative Environmental Impact Statement (FLEIS). ANILCA defined the
“coastal plain” as the lands on a specified map – language that was interpreted as excluding
most Native lands, even though these lands are geographically part of the coastal plain.
Section 1003 of ANILCA prohibited oil and gas development in the entire Refuge, or
“leasing or other development leading to production of oil and gas from the range” unless
Newer portions of the Refuge were not included in the wilderness system.
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; for legal issues, see CRS Report RL31115, Legal Issues Related to Proposed Drilling
for Oil and Gas in the Arctic National Wildlife Refuge.)
In recent years, Congress attempted to authorize the opening of ANWR in the FY1996
reconciliation bill (H.R. 2491, §§5312-5344), but the measure was vetoed. President Clinton
cited the ANWR sections as one of his reasons for vetoing the measure. (For key provisions
of that legislation, see Archived Issue Brief 95071, available from the author.)
While bills were introduced, the ANWR issue was not debated in the 105th Congress.
In the 106th Congress, bills to designate the 1002 area of the Refuge as wilderness and others
to open the Refuge to energy development were introduced. Assumptions about ANWR
revenues were included in the FY2001 budget resolution (S.Con.Res. 101) as reported by
the Senate Budget Committee on March 31, 2000. An amendment to remove the language
was tabled. However, conferees rejected the language. The conference report on
H.Con.Res. 290 did not contain this assumption, and the report was passed by both Houses
on April 13. S. 2557 was introduced May 16, 2000; it included a title to open the Refuge to
Only three recorded votes relating directly to ANWR development occurred from the
101st to the 106th Congress. All were in the Senate:
! In the 104 Congress, on May 24 1995, there was a motion to table an
amendment that would have stripped ANWR development titles from the
Senate version of H.R. 2491. The motion passed (Roll Call #190).
! In the same Congress, on October 27, 1995 there was another motion to
table a similar amendment to H.R. 2491. This motion also passed (Roll Call
! In the 106 Congress, the vote to table an amendment to strip ANWR
revenue assumptions from the budget resolution (S.Con.Res. 101;see above)
was passed (April 6, 2000, Roll Call #58).
Legislation in the 107th Congress. The vehicle for Senate floor consideration was
S. 517, which concerns energy technology development. On February 15, 2002, Senator
Daschle offered an amendment (S.Amdt. 2917), an omnibus energy bill. It did not contain
provisions to develop the Refuge, but two amendments (S.Amdt. 3132 and S.Amdt. 3133)
to do so were offered on April 16. The language of the two amendments was, in most
sections, identical to that of H.R. 4 (Division F, Title V). Key differences included a
requirement for a presidential determination before development could proceed, a exception
for exports to Israel in the oil export prohibition, and a number of changes in allocation of
any development revenues, as well as allowing some of those revenues to be spent without
further appropriation. On April 18, the Senate essentially voted to prevent drilling for oil
and gas in the Refuge. The defeat came on a vote of 46 yeas to 54 nays on a cloture motion
to block a threatened filibuster on Senator Murkowski’s amendment to S. 517, which would
have ended debate and moved the chamber to a direct vote on the ANWR issue.
The language of H.R. 4, the two amendments, and S. 411 and H.R. 770 are compared
below. In the first session, Senator Lott (on behalf of himself and Senators Murkowski and
Brownback) offered an amendment (S.Amdt. 2171) to an amendment on pension reform
(S.Amdt. 2170) to H.R. 10, a bill also on pension reform. Their amendment included, among
other energy provisions, the ANWR development title in H.R. 4, as passed by the House.
Their amendment also included provisions prohibiting cloning of human tissue. A cloture
motion was filed on the Lott amendment, and the Senate failed to invoke cloture (1-94, Roll
Call No. 344) on December 3, 2001. Instead, the Senate voted the same day in favor of
invoking cloture on the underlying amendment (S.Amdt. 2170), by a vote of 81-15 (Roll Call
No. 345). Because cloture was invoked on the underlying amendment, Senate rules required
that subsequent and pending amendments to it be germane. The Senate’s presiding officer
subsequently sustained a point of order against the Lott amendment, which was still pending,
on the grounds that it was not germane to the underlying amendment, and thus the
amendment fell. The Senate appointed conferees on May 1, 2002.
H.R. 4, containing ANWR development provisions passed the House on August 2,
2002. Title V, Division F, was the text of H.R. 2436 (H.Rept. 107-160, Part I; yeas 240,
nays 189; Roll Call No. 320). The measure would open ANWR to exploration and
development. The previous day, an amendment by Representative Sununu to limit specified
surface development to 2,000 acres was passed (yeas 228, nays 201; Roll Call No. 316).
Representatives Markey and Johnson (CT) offered an amendment to strike the title; this was
defeated (yeas 206, nays 223; Roll Call No. 317). The House appointed conferees on June
12, 2002. Conferees have met repeatedly in an attempt to reconcile the many differences
between the two bills. Prospects for agreement on ANWR provisions in the short time left
seem doubtful, since some Senators have promised a filibuster if the conferees agree to
develop the Refuge.
Finally, H.R. 770 and S. 411 would designate the 1002 area as wilderness, but no action
has been taken on either bill. The issues most commonly arising in the current legislative
debate are described below under Major Legislative Issues in the 107th Congress, along with
the treatment of these issues by these four bills (H.R. 4, the proposed amendments to S. 517,
S. 411, and H.R. 770).
The Energy Resource
Parts of Alaska’s North Slope (ANS) coastal plain have proved abundant in oil and gas
reserves, and its geology holds promise for ANWR. The oil-bearing strata extend eastward
from structures in the National Petroleum Reserve-Alaska past the Prudhoe Bay field, and
may continue into and through ANWR’s 1002 area.
Oil. Estimates of ANWR oil potential, both old and new, depend upon limited data and
numerous assumptions about geology and economics. The most recent government study
of oil and natural gas prospects in ANWR, completed in 1998 by the U.S. Geological Survey
(USGS),2 found that there is an excellent chance (95%) that at least 11.6 billion barrels of
oil are present on federal lands in the 1002 area. There also is a small chance (5%) that 31.5
billion barrels or more are present. USGS estimates there is an excellent chance (95%) that
4.3 billion barrels or more are technically recoverable (costs not considered); and there is a
small chance (5%) that 11.8 billion barrels or more are technically recoverable. But the
proportion that would be economically recoverable depends upon the price of oil. The
U.S. Dept. of the Interior, Geological Survey. The Oil and Gas Potential of the Arctic National
Wildlife Refuge 1002 Area, Alaska. U.S.G.S. Open File Report 98-34. (Washington, DC: 1999).
Summary and Table EA4.
USGS estimated that, at $24/barrel (in 1996 dollars), there is a 95% chance that 2.0 billion
barrels or more could be economically recovered and a 5% chance of 9.4 billion barrels or
more. Roughly one-third more oil may be under adjacent state waters and Native lands.3
However, these areas would be difficult to develop without access through Federal land.
Oil prices, geologic characteristics such as permeability and porosity, cash flow, and
any transportation constraints, would be among the most important factors affecting the
development rates and production levels that would be associated with given volumes of oil
resources. The Energy Information Administration estimated that at a faster development
rate, production would peak 15-20 years after the start of development, with maximum daily
production rates of roughly 0.00015 (0.015%) of the resource. Production associated with
the slower rate would peak about 25 years after the start of development at a daily rate equal
to about 0.000105 (0.0105%) of the resource. Peak production associated with a technically
recoverable resource of 5.0 billion barrels (bbls) at the faster development rate would be
750,000 bbls per day. U.S. petroleum consumption is about 19 million bbls per day. (For
economic impacts of development, see CRS Report RS21030.)
Natural Gas. Substantial quantities of natural gas are estimated to be in the 1002 area
as well. Being able to sell this gas probably would enhance the commercial prospects of the
1002 area and of the rest of the ANS – oil as well as gas. However, as with the abundant
natural gas discovered at Prudhoe Bay, there currently is no way to deliver the gas to market.
Until recently, the combination of pipeline construction costs and relatively low natural gas
prices precluded serious consideration of pipeline construction. Higher gas prices in the last
two years has increased interest in the construction of a pipeline to transport natural gas to
North American markets – directly and/or via a warm-water port for shipment in tankers.
Advanced Technologies. As development has proceeded since the discovery of
Prudhoe Bay, North Slope oil field operators have developed less environmentally intrusive
ways to develop arctic oil, primarily through innovations in technology.
Field exploration has benefitted from new seismic technology. Advanced analytical
methods generate high resolution images of geologic structures and resolve hydrocarbon
accumulations. And improved ice-based transportation infrastructure serves remote areas
during exploration drilling on newly developed insulated ice pads. More powerful
computers allow the manipulation of vastly more data, yielding more precise well locations
and, consequently, reduce the number of wells needed to find hydrocarbon accumulations.
Recent advances in drilling also lessen the footprint of petroleum operations. New
drilling bits and fluids and advanced forms of drilling – such as extended reach, horizontal
and “designer” wells – permit drilling to reach laterally far beyond a drill platform, with the
current record being seven miles at one site in China. Other advances reduce the space
needed for a drilling rig, reduce equipment volume and weight, and lessen the generation of
drilling waste. Modules that perform many functions also make production facilities more
compact. Production drilling techniques using slim-hole technology such as coiled tubing
and multilateral drilling also decrease the footprint, reduce waste, and increase recovery of
hydrocarbons per well.
Statement based upon data in USGS. Frontier Areas and Resource Assessment: the Case of the
1002 Area of the Alaska North Slope. By Emil D. Attanasi and John D. Scheunemeyer. USGS Open
File Report 02-119, March 2002.
Proponents of opening ANWR note that these technologies could mitigate the
environmental impact of petroleum operations, but not eliminate it. Opponents maintain that
a facility of any size would still be an industrial site and change the character of the Refuge.
They argue that whether environmental impacts would be minimized would depend in part
on the wording of legislation, and that there still would be the need for gravel and the scarce
water resources of the 1002 area; and permanent roads, port facilities, and airstrips would
follow the initial roadless construction. They also note that spills may occur.
The Biological Resources
The FLEIS rated the Refuge’s 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 very 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
The species which has drawn the most attention in this debate is the caribou. The
Porcupine Caribou Herd (PCH) calves in or near the 1002 area in most years
[http://www.r7.fws.gov/nwr/arctic/pchmaps.html], and winters south of the Brooks Range
in Alaska or Canada; it is the subject of a 1987 executive Agreement Between the United
Sates and Canada on the Conservation of the Porcupine Caribou Herd. The herd is currently
estimated at 130,000, but caribou population numbers fluctuate markedly. In both countries
it is an important food source to Native people and others – especially since other meat is
either expensive or unavailable. Some scientists cite studies that show a reduction in density
of cows with calves near roads and developed areas around Kuparuk (Nellemann and
Cameron, 1998). They fear that development and production in the 1002 area could cause
cows to calve in less desirable locations or prevent the herd’s access to sites where they can
escape from the voracious insects common in early summer.
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,
where insect attacks may be less severe. However, cows with young calves appear to be
more sensitive, and during the first few weeks after calving, avoid roads and other human
disturbance for distances of a mile or more. The calving area of ANWR is more confined
than that of Prudhoe Bay and vicinity, and nearby areas of similar habitat may not be
When cows are slowed by late thaws or heavy snows, they may not reach the 1002 area.
This displacement, though natural, can have severe consequences. For example, in 2000,
when heavy snowfall delayed cows in reaching the 1002 area before calving, the June calf
survival rate and the July calf to cow ratio were the lowest ever recorded. This reduced
calving success served to highlight the importance of the preferred area. In the narrow
coastal plain of the 1002 area, any cows displaced southward would calve in or nearer the
Brooks Range, where bears, golden eagles, and wolves (all calf predators) are more abundant
than on the plain.
An updated assessment of an array of biological resources in the coastal plain was
recently published by the Biological Research Division of USGS. The report analyzed new
information about caribou, musk oxen, snow geese and other species in ANWR. The authors
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 then by the Administration) the
Porcupine Caribou Herd 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.
Effects on polar bear dens in the Refuge have been an issue. Modern winter exploration
technology, while an improvement on environmental impact over 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 featured in the ANWR debate. (For more about these species,
see CRS Report RL31278.)
For opponents of development, the central issue is whether the area should be
maintained as an intact ecosystem – off limits to development – not whether development
can be accomplished in an environmentally sound manner. In terms that emphasize deeply
held values, supporters of wilderness designation argue that few places as untrammeled as
the 1002 area remain on the planet, and fewer still on the same magnificent scale. Any but
the most transitory intrusions (e.g., visits for recreation, hunting, fishing, subsistence use,
research, etc.) would, in their view, damage the “sense of wonder” they see the area as
instilling. The mere knowledge that a pristine place exists, whether one ever visits it, can
be important to those who view the debate in this light.
Major Legislative Issues in the 107th Congress
The primary energy-related issue in the 107th Congress is whether to approve energy
development in the Arctic National Wildlife Refuge (ANWR) in northeastern Alaska, and
if so, under what restrictions, or whether to continue to prohibit energy development in order
to protect the area’s biological resource and wilderness values. Some of the issues that have
been raised most frequently in the current ANWR debate are described briefly below. In
addition to the issue of whether development should be permitted at all, key aspects of the
current debate include specifications that might be provided in legislation, including the
physical size, or footprint, of development; the activities that might be permitted on Native
lands; the disposition of revenues; labor issues; oil export restrictions; 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.)
H.R. 4, as passed by the House, was used as the model for two Senate amendments
(S.Amdt. 3132 and S.Amdt. 3133), with some important variations. H.R. 4 is analyzed
below, along with a few of the major features of the rejected Senate amendments to S. 517,
and the two wilderness bills.
Environmental Direction. Congress could choose to leave environmental matters
to administrative agencies under existing laws. Alternatively, Congress could impose a
higher standard of environmental protection because the area is in a national wildlife refuge
or because of the fragility of the arctic environment, or it could legislate a lower standard to
facilitate development. The degree of discretion given to the administering agency could
also affect the stringency of environmental protection. For example, Congress could include
provisions requiring use of “the best available technology” or “the best commercially
available technology” or similar general standards; alternatively it could limit judicial review
of environmental standards. One issue would be the use of gravel and water resources
essential for oil exploration and development. Other legislative issues include 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, among other things.
H.R. 4 (§6507(a)) requires the Secretary to administer the leasing program so as to
“result in no significant adverse effect on fish and wildlife, their habitat, subsistence
resources, and the environment, ... including ... requiring the application of the best
commercially available technology ....” H.R. 4 (§6503(a)(2)) also requires 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 of fair market value relate to each other (e.g., if environmental restrictions might make
some fields uneconomic). H.R. 4 (§6506(a)(3) and (5)) requires lessees to be responsible
and liable for reclamation of lands within the Coastal Plain to support pre-leasing uses or to
a higher use approved by the Secretary. There are requirements for mitigation, development
of regulations and other measures to protect the environment. These include prohibitions
on public access to service roads and other transportation restrictions. Other provisions may
also affect environmental protection. H.R. 770 and S. 411 would designate the area as
wilderness, as discussed below.
The Size of the Footprint – Federal Lands. H.R. 4 (§6507(d)(9)) provides for
consolidation of leasing operations; among other things, consolidation would tend to reduce
environmental impacts of development. H.R. 4 (§6507(a)(3)) would further require,
“consistent with the provisions of section 6503" (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.” A floor amendment to H.R. 4 with this acreage
restriction was passed on August 1, 2001(yeas 228, nays 201; Roll Call No. 316). The terms
used have not been defined in the bill (nor discussed in the committee report), and therefore
the full set of structures falling under the restriction is arguable (e.g., whether roads, gravel
mines, and structures on Native lands would be included under this provision). Floor debate
focused on the extent to which the facilities covered in the amendment would be widely
distributed around the Refuge. In this light, it is noteworthy that one single compact facility
of 2,000 acres (3.1 square miles) would not permit full development of the 1002 area, since
current technology under optimum circumstances permits directional drilling at most 7 miles
from the wellhead. The result would be that at most about 11% of the Coastal Plain could
be developed. Instead, full development of the 1002 area would require that facilities (even
if limited to 2,000 acres total) be more widely dispersed around the Coastal Plain. Also, the
acreage limitation appears not to apply to Native lands.
Native Lands. The Alaska Native Claims Settlement Act (ANCSA) of 1971 resolved
aboriginal claims against the United States by (among other things) creating Village
Corporations that could select lands to which they held 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 (totaling approximately 92,000 acres) are all within the Refuge and
subject to regulations of the Refuge. The Arctic Slope Regional Corporation (ASRC)
obtained subsurface rights beneath the KIC lands pursuant to a 1983 land exchange
agreement. In addition, there are currently more than 10,000 acres of conveyed and
individually owned Native allotments in the area of the Refuge that are not subject to Refuge
H.R. 4 would repeal the ANILCA prohibition on oil and gas development. Once oil
and gas development is authorized for the federal lands in the Refuge, development can
occur 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. After the cloture
vote on S.Amdt. 3132 on April 18, 2002, Senator Stevens publically stated his intent to offer
an amendment to open Native lands in this part of the Refuge to energy development, but
subsequently decided not to do so.
Revenue Disposition. Another issue that has arisen during debates over leasing in
the ANWR is that of disposition of possible revenues – whether Congress may validly
provide for a disposition of revenues formula other than the 90/10 percent split mentioned
in the Alaska Statehood Act. A court in Alaska v. United States (35 Fed. Cl. 685, 701 (1996)
seems to have indicated that the language in the Statehood Act means that Alaska is to be
treated like other states 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.
Several sections of H.R. 4 relate to revenues. Section 6512 would provide that 50% of
adjusted revenues be paid to Alaska. Then 50% of revenues from bonus payments go into
a Renewable Energy Technology Investment Fund; and 50% from rents and royalties go into
a Royalties Conservation Fund. It is not clear whether the basis for the shared revenues is
to be gross or net receipts. More fundamentally, under §6503(a), the Secretary is to establish
and implement a leasing program under the Mineral Leasing Act, yet §6512 directs 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, it is possible that Alaska could receive 90% of the revenues from
Project Labor Agreements. A recurring issue in federal and federally-funded
projects is whether project owners or contractors effectively should be required, by
“agreement,” to use union workers. Project labor agreements (PLAs) are agreements
between a project owner or main contractor and the union(s) representing the craft workers
for a particular project that establish the terms and conditions of work that will apply for the
particular project. The agreement may also specify a source (such as a union hiring hall) to
supply the craft workers for the project. Typically, the agreement is binding on all
contractors and subcontractors working on the project, and specifies wage rates and benefits,
discusses procedures for resolving labor and jurisdictional disputes, and includes a no-strike
clause. Proponents argue that PLAs ensure a reliable, efficient labor source and help keep
costs down. Opponents contend that PLAs inflate project costs and decrease competition.
There is little independent information and data to sort out these conflicting assertions and
demonstrate whether PLAs contribute to lower or higher project costs. Construction and
other unions and their supporters strongly favor PLAs because they believe that PLAs help
ensure access for union members to federal and federally funded projects. Nonunion firms
and their supporters believe that PLAs unfairly restrict their access to those projects.
H.R. 4 (§6506) directs the Secretary to require lessees “to negotiate to obtain a project
labor agreement.” The Secretary would do so “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 ....” In §714 of the Senate-passed
version of H.R. 4, the Senate “urges” the sponsors of any natural gas pipeline project “to
negotiate a project labor agreement to expedite construction of the pipeline.”
Natural Gas Pipeline. A decision to construct a pipeline to transport natural gas
from Alaska to North American markets entails risk as well as a decision on the route. The
Senate version of H.R. 4 attempts to address the former by providing for federal guarantees
of loans taken out for constructing a natural gas transport system. Guarantees may not
exceed 80% of a loan; and the total loan principal to which guarantees apply may not exceed
$10 billion. The Senate bill also provides for a tax credit for the production of Alaska North
Slope gas that effectively establishes a price floor of $3.25 per thousand cubic feet. Both the
House and the Senate versions address the route issue by prohibiting the licensing of a route
that enters Canada north of 68 degrees latitude. Canadian energy industry interests object
to the prohibition of the northern route through Canada (a southern route would bypass gas
reserves in far northwest Canada), and they say that the tax credit would give Alaskan gas
producers a price advantage over Canadian producers.
Oil Export Restrictions. Export of North Slope oil in general, and any ANWR oil
in particular, has been an issue, beginning at least with the authorization of the TransAlaska
Pipeline and continuing into the current ANWR debate. Much of the pipeline’s route is on
federal lands and the Mineral Leasing Act of 1920 prohibits export of oil transported through
pipelines granted rights-of-way over federal lands (16 U.S.C. 185(u)). The Trans-Alaska
Pipeline Authorization Act (P.L. 93-153, 87 Stat. 584, 43 U.S.C. 1651 et seq.), specified that
oil shipped through it could be exported only under very restrictive conditions. Subsequent
legislation strengthened the export restrictions further.4 Oil began to be shipped through the
pipeline in increasing amounts as North Slope oilfield development grew. With exports
effectively banned, much of North Slope oil went to West Coast destinations; the rest was
shipped to the Gulf Coast via the Panama Canal or overland across the isthmus. In the early
and mid-1990s, the combination of Californian and federal offshore production, North Slope
oil, and imports resulted in such large quantities relative to demand that crude oil prices in
The Energy Policy and Conservation Act of 1975 (P.L. 94-163), the 1977 amendments to the
Export Administration Act (P.L. 95-52 and P.L. 95-223), and the Export Administration Act of 1979
(P.L. 96-72), which replaced the Export Administration Act of 1969.
California fell below those elsewhere in the United States, eliciting complaints from
Californian and North Slope producers. By 1995, three or four years of low world oil prices
and relative calm in the Mideast had reduced concern about petroleum.
However, market forces eventually created pressure to change the law. On November
28, 1995, P.L. 104-58 (109 Stat. 557) was enacted, Title II of which amended the Mineral
Leasing Act to provide that oil transported through the Pipeline may be exported unless the
President finds, after considering stated criteria, that it is not in the national interest. The
President may impose terms and conditions; and authority to export may be modified or
revoked. Beginning with 36,000 bbl/day in 1996, ANS exports rose to a peak of 74,000
bbl/day in 1999, representing 7% of North Slope production. ANS oil exports ceased
voluntarily in May 2000.
H.R. 4, §6506 (a)(8)would require the prohibition of the export of oil produced under
a lease in the 1002 Area as a condition of a lease.
NEPA Compliance. The National Environmental Policy Act (NEPA) requires the
preparation of an environmental impact statement (EIS) to examine the effects of major
federal actions on the environment. 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. Both bills address the issue.
Section 6503(c) of H.R. 4 deems the 1987 EIS adequate with respect to actions by the
Secretary to develop leasing regulations, yet requires the Secretary to prepare an EIS with
respect to other actions, some of which might usually require only a (shorter) “environmental
assessment.” Consideration of alternatives is to be limited to two choices, a preferred option
and a “single leasing alternative.” (Generally, an EIS analyzes several alternatives,
including a “no action” alternative.)
Compatibility with Refuge Purposes. Under current law for the management of
national wildlife refuges (16 U.S.C. §668dd), an activity may be allowed in a refuge only if
it is compatible with the purposes of the particular Refuge and with those of the Refuge
System as a whole. Section 6503(c) of H.R. 4 states that the oil and gas leasing program and
activities in the coastal plain are deemed to be compatible with the purposes for which the
ANWR was established and that no further findings or decisions are required to implement
this determination. This language appears to answer the compatibility question and to
eliminate the usual compatibility determination processes. The general statement that
leasing “activities” are compatible arguably encompasses necessary support activities such
as construction and operation of port facilities, staging areas, personnel centers, etc.
Judicial Review. H.R. 4 contemplates prompt action to put a leasing program in place
and have sections on expedited judicial review. H.R. 4 requires that complaints be filed
within 90 days. Sections 6508(a)(1) and (a)(2) of H.R. 4 appear to contradict each other as
to where suits are to be filed and it is possible part of a sentence may have been omitted.
H.R. 4 (§6508(a)(3)) would also limit the scope of review by stating that review of a
Secretarial decision, including environmental analyses, shall be limited to whether the
Secretary complies with the terms of Division F of H.R. 4, be based on the administrative
record, and that 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
in this context arguably would make overturning a decision more difficult.
Special Areas. Some have raised the possibility of setting aside certain special areas
described in the FLEIS for their ecological or cultural values. This could be done either by
designating the areas specifically in legislation, or by authorizing the Secretary to set aside
areas to be selected after enactment. Development of such areas could be forbidden and/or
surface occupancy could be limited. H.R. 4 (§6503(e)) allows the Secretary to set aside up
to 45,000 acres of special areas, and names one specific area to be included in which leases,
if permitted, would forbid surface occupancy. The FLEIS identified four special areas which
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. H.R. 770 and S. 411 would designate
the entire 1002 area as wilderness.
Non-Development Options. Several options are available to Congress that would
either postpone or forbid development, unless Congress were later to change the law. These
options are allowing exploration only, designating the 1002 area as wilderness, and taking
Exploration Only. Some have argued that the 1002 area should be opened to
exploration first, before a decision is made on whether to proceed to leasing. Those with this
view hold that with greater certainty about the presence or absence of energy resources, a
better decision could be made about whether to open the coastal plain for full leasing. This
idea has had relatively little support over the years. For those opposed to energy
development, the reasons are fairly clear: if exploration results in no or insufficient economic
discoveries, any damage from exploration would remain. If there were economic
discoveries, support for further development might be unstoppable. Those who support
development see unacceptable risks in such a proposal. First, who would be charged with
carrying out exploration, who would pay for it, and to whom would the results be available?
Second, if no economic discoveries are made, would that be because the “best” places (in
the eyes of whatever observer) were not examined? Third, might any small discoveries
become economic in the future? Fourth, if discoveries did occur, could industry still be
foreclosed from development, or might sparse but promising data elevate bidding to
unreasonable levels? Fifth, if exploration is authorized, what provisions should pertain to
Native lands? In short, various advocates see insufficient gain from such a proposal. While
an exploration bill has been mentioned in the past, none has been introduced in the 107th
Wilderness Designation. Energy development is not permitted in wilderness areas,
unless there are pre-existing rights or unless Congress specifically allows it or later reverses
the designation. Development of the surface and subsurface holdings of Native corporations
would be precluded inside wilderness boundaries (though compensation might be owed).
It would also preserve existing recreational opportunities and jobs, as well as the existing
level of protection of subsistence resources, including the Porcupine Caribou Herd. H.R.
770 and S.411 would designate the 1002 area as wilderness.
Presidential Certification. Under the two Senate amendments to S. 517 (which
were ultimately rejected by the Senate), the leasing provisions would have taken effect upon
a determination and certification by the President that development of the Coastal Plain is
in the national economic and security interests of the United States. This determination and
certification were to be in the sole discretion of the President and are not reviewable. This
option has not been raised in other bills.
No Action. Because current law prohibits development unless Congress acts, this
option also prevents energy development. Those supporting delay often argue that not
enough is known about either the probability of discoveries or about the environmental
impact if development is permitted. Others argue that oil deposits should be saved for an
unspecified “right time.”
H.R. 4 (Tauzin)
Division F, Title V, contains the provisions of H.R. 2436, with the inclusion of a new
provision for a 50:50 federal:state revenue split. Introduced July 27, 2001; referred to
Committees on Energy and Commerce, Science, Ways and Means, Resources, Education and
the Workforce, Transportation and Infrastructure, the Budget, and Financial Services.
August 1, 2001, House passed Sununu amendment to limit specified surface development
to 2,000 acres (yeas 228, nays 201; Roll Call No. 316) and defeated Markey-Johnson (CT)
amendment to strike Title V defeated (yeas 206, nays 223; Roll Call No. 317). Passed House
August 2, 2001 (yeas 240, nays 189; Roll Call No. 320). House conferees appointed June
12, 2002. Senate struck all after enacting clause and substituted text of S. 517 (amended);
passed Senate April 25, 2002 (yeas 88, nays 11, Roll Call No. 94). Senate appointed
conferees May 1, 2002.
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 3, 2001; referred to
Committee on Resources.
H.R. 770 (Markey)
Designates Arctic coastal plain of ANWR as wilderness. Introduced February 28,
2001; referred to Committee on Resources.
H.R. 2436 (Hansen)
Title V 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 acreage for the first
lease sale and minimum royalty payments; prohibits ANWR oil export; specifies project
labor agreements; and for other purposes. Introduced July 10, 2001; referred to Committee
on Resources and on Energy and Commerce. Reported (amended) by Resources on July 25
(H.Rept. 107-160, Part I) and discharged by Energy and Commerce on July 25, 2001.
Provisions incorporated into H.R. 4.
S. 388 (Murkowski)
Title V opens the 1002 area to energy leasing; provides for the timing and size of lease
sales; specifies that the 1987 FLEIS is sufficient for compliance with the National
Environmental Policy Act; requires posting of bonds for reclamation; requires expedited
judicial review; authorizes set-asides up to 45,000 acres of Special Areas that restrict surface
occupancy; provides for a 50:50 revenue split with the State; requires on-site inspections,
provides for use of any federal revenues; and other purposes. Introduced February 26, 2001;
referred to Committee on Energy and Natural Resources.
S. 411 (Lieberman)
Designates Arctic coastal plain of ANWR as wilderness. Introduced February 28,
2001; referred to Committee on Environment and Public Works.
S. 517 (Bingaman)
Authorizes a program for technology transfer in the Department of Energy. Introduced
March 12, 2001; referred to Committee on Energy and Natural Resources. Reported June
6, 2001 (S.Rept. 107-30). February 15, 2002, laid before Senate by unanimous consent.
February 15, 2002, S.Amdt. 2917 (Daschle) proposed; authorizes an omnibus energy
program. S.Amdt. 3132 (Murkowski) and S.Amdt. 3133 (Stevens) would open the Refuge
to energy development; filed April 16, 2002; S.Amdt. 3133 failed cloture motion (36 yeas
to 64 nays, Roll call no. 70) and was withdrawn, April 18, 2002. S.Amdt. 3132 failed
cloture motion (46 yeas to 54 nays, Roll call no. 71) on April 18, 2002. A cloture motion
was filed on S.517 on April 18, 2002; cloture invoked April 23 (yeas 86, nays 13, Roll call
no. 77). Senate incorporated this measure in H.R. 4 as an amendment, April 25, 2002.
S. 1766 (Daschle)
Alters national energy programs in a variety of ways; lacks provisions to open ANWR.
Introduced Dec. 5, 2001; not referred to Committee.
FOR ADDITIONAL READING
Nelleman, 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.
Revkin, Andrew C. Hunting for Oil: New Precision, Less Pollution. New York Times.
January 30, 2001. p. D1-D2.
U.S. Department of the Interior. Bureau of Land Management. Overview of the 1991 Arctic
National Wildlife Refuge Recoverable Petroleum Resource Update. Washington, DC,
April 8, 1991. 8 p., 2 maps.
U.S. Department of the Interior. Fish and Wildlife Service, Geological Survey, and Bureau
of Land Management. Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource
Assessment. Report and Recommendation to the Congress of the United States and
Final Legislative Environmental Impact Statement. Washington, DC, 1987. 208 p.
U.S. Department of the Interior. Geological Survey. The Oil and Gas Resource Potential
of the Arctic National Wildlife Refuge 1002 Area, Alaska. 1999. 2 CD set.
USGS Open File Report 98-34.
U.S. Department of the Interior, U.S. Geological Survey. Arctic Refuge Coastal Plain
Terrestrial Wildlife Research Summaries.
Biological Science Report
U.S. Department of the Interior, U.S. 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.
CRS Issue Brief IB10080, Energy Policy: Setting the Stage for the Current Debate. Updated
CRS Report RL31278, Arctic National Wildlife Refuge: Background and Issues. June 11,
2002. 119 p.
CRS Report RS21030, ANWR Development: Economic Impacts. December 3, 2001. 6 p.
CRS Report RL31115, Legal Issues Related to Proposed Drilling for Oil and Gas in the
Arctic National Wildlife Refuge. September 6, 2001. 28 pages.
CRS Report RL31033. Energy Efficiency and Renewable Energy Fuel Equivalents to
Potential Oil Production from the Arctic National Wildlife Refuge (ANWR). June 22,
2001. 21 p.
CRS Report RL31022. Arctic Petroleum Development: Implications of Advances in
Technology. June 19, 2001. 29 p.
CRS Report RL30815. Natural Gas Prices: Overview of Market Factors and Policy
Options. January 23, 2001. 10 p.
CRS Report RL30459. Coping With High Oil Prices: A Summary of Options. March 9,
CRS Report RL30290. Domestic Oil and Gas Producers: Public Policy When Oil Prices
Are Volatile. November 12, 1999.
CRS Report RS20540. Alaska Oil Exports. October 16, 2000. 5 p.