Order Code IB10111
CRS Issue Brief for Congress
Received through the CRS Web
Arctic National Wildlife Refuge (ANWR):
Controversies for the 108th Congress
Updated November 1, 2004
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
Legislative History of the Refuge
Legislation in the 107th Congress
Legislation in the 108th Congress
The Energy Resource
The Biological Resources
Major Legislative Issues in the 108th Congress
The Size of the Footprint
Natural Gas Pipeline
Project Labor Agreements
Oil Export Restrictions
Compatibility with Refuge Purposes
FOR ADDITIONAL READING
Arctic National Wildlife Refuge (ANWR):
Controversies for the 108th Congress
One major element of the energy debate
in the 108th Congress has been 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 to protect the area’s biological
resources. The Refuge 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, and further
increases in 2003-2004, renewed the ANWR
debate for the first time in eight 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.
The first key vote in the 108th Congress
came in the Senate. On March 19, 2003, the
Senate passed an amendment by Senator
Boxer to strip language from the Senate Budget Resolution that would have facilitated
subsequent passage of ANWR development
legislation. The second group of votes came
April 10, 2003 in the House on the way to
passage of a comprehensive energy bill (H.R.
6). The House adopted an amendment by
Representative Wilson (NM) to limit certain
features of federal leasing development to no
more than 2,000 acres. It rejected an amendment by Representative Markey to delete
ANWR development from the bill. The
Senate passed its version of H.R. 6 by adopting the provisions of the Senate’s version of
omnibus energy legislation from the 107th
Congress. The Senate version contained no
provision to open the Refuge to development.
The conference committee did not include
ANWR development in the conference report.
The Senate bill has since been superseded by
a new bill (S. 2095) which also does not
include ANWR development provisions. On
June 4, 2004, Representative Pombo introduced H.R. 4514, to open ANWR to development, as part of a leadership effort to spotlight
energy issues. There has been no further
action on the bill. Few observers feel that
enactment of ANWR development legislation
in the remainder of the 108th Congress is
likely. Current law prohibits development
unless Congress acts.
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 Trans Alaska Pipeline
System; and create many jobs in Alaska and
elsewhere in the United States. They maintain
that ANWR oil could be developed with
minimal environmental harm, and that the
footprint of development could be limited to
2,000 acres. Opponents argue that intrusion
on this ecosystem cannot be justified on any
terms; that oil found (if any) would provide
little energy security and could be replaced by
cost-effective alternatives; and that job claims
are overstated. They also maintain that proposals to limit any footprint size have not been
worded so as to apply to Native lands, which
could then be developed if the Arctic Refuge
MOST RECENT DEVELOPMENTS
On June 2, 2004, House Majority Leader Tom DeLay told reporters that the House
Republican leadership planned a near-term focus on energy legislation and, in support of that
goal, Representative Pombo introduced H.R. 4514. This bill is virtually identical to the
ANWR title in the House version of H.R. 6. Observance of the death of former President
Reagan delayed consideration of the measure, and no further action has been taken on it.
Despite House floor action in the first session of Congress on ANWR as part of an energy
bill, most observers believe that ANWR development bills are now unlikely to be enacted
in the 108th Congress.
BACKGROUND AND ANALYSIS
The Arctic National Wildlife Refuge (ANWR) consists of 19 million acres in northeast
Alaska. It is administered by the Fish and Wildlife Service (FWS) in the Department of the
Interior (DOI). Its 1.5 million acre coastal plain is viewed as one of the most promising U.S.
onshore oil and gas prospects. According to the U.S. Geological Survey (USGS), there is
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
barrels (billion bbl).
At the same time, the Refuge, 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 other species in a nearly undisturbed state has led some to call the area “America’s
Serengeti.” The Refuge and two neighboring parks in Canada have been proposed for an
international park, and several species found in the area (including polar bears, caribou,
migratory birds, and whales) are protected by international treaties or agreements. The
analysis below covers, first, the economic and geological factors that have triggered new
interest in development, followed by the philosophical, biological, and environmental quality
factors that have triggered opposition to it.
The conflict between high oil potential and nearly pristine nature in the Refuge creates
a dilemma: should Congress open the area for energy development or should the area’s
ecosystem be given permanent protection from development? What factors should determine
whether to open the area? If the area is opened, to what extent can damages be avoided,
minimized, or mitigated? To what extent should Congress legislate special management of
the area if it is developed, and to what extent should federal agencies be allowed to manage
the area under existing law?
Basic information on the Refuge can be found in CRS Report RL31278. For legal
background, see CRS Report RL31115. State lands on the coastal plain are shown at
[http://www.dog.dnr.state.ak.us/oil/products/maps/maps.htm]. An extensive presentation
of development arguments can be found at [http://www.anwr.org], sponsored by a
consortium of groups. Opponents’ arguments can be found variously at [http://www.
alaskawild.org], [http://www.protectthearctic.com/], or [http://www.tws.org/OurIssues/
Legislative History of the Refuge
The energy and biological resources of northern Alaska have been controversial for
decades, from legislation in the 1970s, to a 1989 oil spill, to more recent efforts to use
ANWR resources to address energy needs or to help balance the federal budget. In
November 1957, an application for the withdrawal of lands in northeastern Alaska to create
an “Arctic National Wildlife Range” was filed. The first group actually to propose to
Congress that the area become a national wildlife range, in recognition of the many game
species found in the area, was the Tanana Valley (Alaska) Sportsmen’s Association in 1959.
On December 6, 1960, after statehood, the Secretary of the Interior issued Public Land Order
2214 reserving the area as the “Arctic National Wildlife Range.”
In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA, P.L. 92203) 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, 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 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 Arctic Range as the Arctic National Wildlife Refuge, and expanded
the Refuge, mostly south and west, to include another 9.2 million acres. Section 702(3)
designated much of the original Refuge as a wilderness area, but not the coastal plain.
(Newer portions of the Refuge were not included in the wilderness system.) Instead,
Congress postponed decisions on the development or further protection of the coastal plain.
Section 1002 directed a study of ANWR’s “coastal plain” (therefore often referred to as the
“1002 area”) and its resources to be completed within five years and nine months of
enactment. The resulting 1987 report was called the 1002 report or the Final Legislative
Environmental Impact Statement (FLEIS). ANILCA defined the “coastal plain” as the lands
on a specified map — language that was interpreted as excluding most Native lands, even
though these lands are geographically part of the coastal plain.
Section 1003 of ANILCA prohibited oil and gas development in the entire Refuge, or
“leasing or other development leading to production of oil and gas from the range” unless
authorized by an act of Congress. (For more history of legislation on ANWR and related
developments, see CRS Report RL31278; for legal issues, see CRS Report RL31115.)
In more recent years, the 104th Congress attempted to authorize the opening of ANWR
in the FY1996 reconciliation bill (H.R. 2491, §§5312-5344), but the measure was vetoed.
President Clinton cited the Arctic Refuge sections as one of his reasons for vetoing the
measure. (For key provisions of that legislation, see archived CRS Issue Brief IB95071,
available from the authors.) While bills were introduced, the ANWR issue was not debated
in the 105th Congress. In the 106th Congress, bills to designate the 1002 area of the Refuge
as wilderness and others to open the Refuge to energy development were again introduced.
Assumptions about ANWR revenues were included in the FY2001 budget resolution
(S.Con.Res. 101) as reported by the Senate Budget Committee on March 31, 2000. An
amendment to remove the language was tabled. However, conferees rejected the language.
The conference report on H.Con.Res. 290 did not contain this assumption. The report was
passed by both Houses on April 13.
Only three recorded votes relating directly to ANWR development occurred from the
101st to the 106th Congress. All were in the Senate. First, in the 104th Congress, on May 24
1995, there was a motion to table an amendment that would have removed ANWR
development titles from the Senate version of H.R. 2491, the reconciliation bill. The motion
passed (Roll Call No.190), leaving ANWR development in the bill. Second, in the same
Congress, on October 27, 1995, there was another motion to table a similar amendment to
H.R. 2491. This motion also passed (Roll Call No.525). Third, in the 106th Congress, the
vote to table an amendment to strip ANWR revenue assumptions from the budget resolution
(S.Con.Res. 101; see above) was passed (April 6, 2000, Roll Call No.58), leaving those
assumptions in the bill.
Legislation in the 107th Congress. H.R. 4, with ANWR development provisions,
passed the House on August 2, 2001 (yeas 240, nays 189; Roll Call No. 320). Title V of
Division F was the text of H.R. 2436 (H.Rept. 107-160, Part I), which would have opened
ANWR to exploration and development. The previous day, an amendment to limit specified
federal surface development to 2,000 acres was passed (yeas 228, nays 201; Roll Call No.
316). An amendment to strike the title was defeated (yeas 206, nays 223; Roll Call No. 317).
There were a few recorded votes in the Senate on Refuge development in the first
session. Senator Lott offered S.Amdt. 2171 to an amendment on pension reform (S.Amdt.
2170) to H.R. 10, a bill also on pension reform. The amendment included the ANWR
development title in H.R. 4 as passed by the House. A cloture motion failed (1-94, Roll Call
No. 344) on December 3, 2001. Instead, the Senate voted the same day to invoke 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) that it was
not germane to the underlying amendment.
In the second session, S. 517, as reported, concerned only energy technology
development. Senator Daschle offered S.Amdt. 2917, an omnibus energy bill. It did not
contain provisions to develop the Refuge, but S.Amdt. 3132 and S.Amdt. 3133 to do so were
offered on April 16. The language of the two amendments was similar to that of the Housepassed version of H.R. 4 (Division F, Title V). 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 S.Amdt. 3132, which would have
ended debate and moved the chamber to a direct vote on the ANWR issue. Conferees could
not reconcile the many differences between the two bills. (For a more extensive history of
congressional action, see CRS Report RL31725, Arctic National Wildlife Refuge: Legislative
Issues Through the 107th Congress.)
Legislation in the 108th Congress. Work began on FY2003 Interior
Appropriations in the 107th Congress but was not completed until the next Congress. In the
107th Congress, for the FY2003 Interior Appropriations bill, the House Committee on
Appropriations had agreed to report language on the Bureau of Land Management (BLM)
energy and minerals program in general, and stated that no funds were included in the
FY2003 funding bill “for activity related to potential energy development within [ANWR]”
(H.Rept. 107-564, H.R. 5093). But §1003 of ANILCA contained the prohibition on leasing
“or other development leading to production of oil and gas” unless authorized by Congress.
Thus, the Committee’s report language was viewed by some as barring the use of funds for
preleasing studies and other preliminary work related to oil and gas drilling in ANWR. The
report of the Senate Committee on Appropriations did not contain this prohibition. A series
of continuing resolutions provided for DOI into the 108th Congress.
Conferees on the FY2003 Consolidated Appropriations Resolution (P.L. 108-7)
included language in the joint explanatory statement stating that they “do not concur with the
House proposal concerning funding for the energy and minerals program.” This change from
the House report language was interpreted by some as potentially making available funds for
preliminary work for development in ANWR. However, as noted, the prohibition contained
in ANILCA remains in effect, so the ability to use money in the bill for particular pre-leasing
activities may not be clear.
FY2004 Reconciliation. During the 108th Congress, development proponents sought
to move ANWR legislation through the FY2004 budget reconciliation process in order to
avoid a possible Senate filibuster later in the session. (Reconciliation bills in the Senate are
considered under special rules that do not permit filibusters. See CRS Report 98-814,
Budget Reconciliation Legislation: Development and Consideration and CRS Report
RL30862, Budget Reconciliation Procedures: The Senate’s ‘Byrd Rule.’) The House agreed
to the FY2004 budget resolution (H.Con.Res. 95) on March 21 (yeas 215, nays 212, Roll Call
No. 82). The resolution contained reconciliation instructions to the House Resources
Committee for reductions, but did not specify the expected source of the savings. If the
House language had been adopted, ANWR development language might have been
considered as part of a reconciliation measure to achieve the savings. S.Con.Res. 23, as
reported by the Senate Budget Committee, stated:
The Senate Committee on Energy and Natural Resources shall report a reconciliation bill
not later than May 1, 2003, that consists of changes in laws within its jurisdiction
sufficient to decrease the total level of outlays by $2,150,000,000 for the period of fiscal
years 2004 through 2013.
To meet this directive, the Committee would very likely have reported legislation to open
ANWR to development. On March 19, 2003, Senator Boxer offered S.Amdt. 272 to delete
this provision. Floor debate indicated that the Boxer amendment was clearly seen as a vote
on developing ANWR. The amendment passed (Roll Call No. 59, yeas 52, nays 48). The
amended Senate version of the resolution was ultimately accepted by both House and Senate.
As a result, while the Committee on Energy and Natural Resources could still report
legislation to authorize opening the Refuge, such legislation would not be eligible for
inclusion in a reconciliation bill. Without the procedural protections associated with
reconciliation, a filibuster could be used to prevent a vote on a authorization bill. (See CRS
Report RS20368 for an overview of the congressional budget process.)
In the end, the conferees on the budget resolution included no instructions to the House
Resources and Senate Energy and Natural Resources Committees. As a result, reconciliation
is less likely to be a vehicle for authorizing Refuge development.
Comprehensive Energy Legislation. The House passed H.R. 6, a comprehensive
energy bill on April 11, 2003. Division C, Title IV would have opened the 1002 area to
energy development. On April 10, the House passed the Wilson (NM) amendment to H.R.
6 to limit certain features of development to a total of 2,000 acres (Roll Call No. 134, yeas
226, nays 202), without restricting the total number of acres that could be leased. H.R. 4514
is identical to the ANWR title of the House version of H.R. 6 except in one provision on
revenue disposition. (See Major Legislative Issues, below.) In addition, one bill (H.R. 39)
has been introduced to open the 1002 area to development and two bills (H.R. 770 and S.
543) have been introduced to designate the 1002 area as wilderness.
The initial version of the Senate energy bill (S. 14) had no provision to open the Refuge,
and Chairman Domenici stated that he did not plan to include one. After many weeks of
debate in the Senate, as prospects of passage seemed to be dimming, Senators agreed to drop
the bill they had been debating and to go back to the bill passed in the Democratic-controlled
107th Congress. On July 31, 2003, they substituted the language of that bill for that of the
House-passed H.R. 6. There was widespread agreement that the unusual procedure was a
means of getting the bill to conference. Members, including Chairman Domenici, indicated
at the time their expectation that the bill that emerged from conference would likely be
markedly different from the bill that had just been passed by the Senate. One of the key
differences between the two bills was the presence of ANWR development language in the
House version, and its absence in the Senate version. (See CRS Issue Brief IB10116.)
Conference Chairman Domenici included the House title on ANWR in his working draft; but
in the end the conference committee deleted ANWR development features in the conference
report (H.Rept. 108-375); the conference report was agreed to by the House on November
18, 2003; the Senate considered the measure, but a cloture vote failed on November 21,
The Senate has focused in the second session on a reduced energy bill (S. 2095) that
might then go to a second conference with the House; like its version of H.R. 6, this new bill
does not contain ANWR development provisions. In any event, no scenario for energy
legislation that has been discussed publicly includes provisions that would open the Refuge
to development. (See CRS Issue Brief IB10116 for the status of national energy legislation
generally.) However, the President’s proposed FY2005 budget assumed legislation would
be passed that would open the Refuge and would therefore produce revenues. This proposal
would have assisted efforts to assume ANWR revenues in a budget resolution, and therefore
aided its inclusion in a reconciliation package, as was attempted in the first session. The
features of the bills mentioned above and the issues most commonly arising in the current
legislative debate are described below under Major Legislative Issues in the 108th Congress.
The Energy Resource
Parts of Alaska’s North Slope (ANS) coastal plain have proved abundant in oil and gas
reserves, and its geology holds promise for ANWR. The oil-bearing strata extend eastward
from structures in the National Petroleum Reserve-Alaska past the Prudhoe Bay field, and
may continue into and through ANWR’s 1002 area.
Oil. Estimates of ANWR oil potential, both old and new, depend upon limited data and
numerous assumptions about geology and economics. The most recent government study
of oil and natural gas prospects in ANWR, completed in 1998 by the USGS,1 found that there
is an excellent chance (95%) that at least 11.6 billion bbl of oil are present on federal lands
in the 1002 area. There also is a small chance (5%) that 31.5 billion bbl or more are present.
USGS estimates there is an excellent chance (95%) that 4.3 billion bbl or more are
technically recoverable (costs not considered); and there is a small chance (5%) that 11.8
billion bbl or more are technically recoverable. But the amount that would be economically
recoverable depends on the price of oil. The USGS estimated that, at $24/bbl (in 1996
dollars), there is a 95% chance that 2.0 billion bbl or more could be economically recovered
and a 5% chance of 9.4 billion bbl or more. Roughly one-third more oil may be under
adjacent state waters and Native lands. However, these areas would be difficult to develop
without access through federal land. (At this writing, in a tight and volatile market that is
concerned about supply disruptions, average spot prices for domestically produced crude oil
are approaching $50 per barrel, or about $43 per barrel in 1996 dollars. In the last half of
2003, crude oil spot prices ranged narrowly around $30 per barrel, or about $26.50 in 1996
Oil prices, geologic characteristics, cash flow, and any transportation constraints would
be among the most important factors affecting the development rates and production levels
associated with given volumes of oil resources. The U.S. Energy Information Administration
estimated that at a relatively fast development rate, production would peak 15-20 years after
the start of development, with maximum daily production rates of roughly 0.015% of the
resource. Production associated with 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. U.S. petroleum consumption is about 19 million bbl per
day. (For economic impacts of development, see CRS Report RS21030.)
Natural Gas. Large quantities of natural gas are estimated to be in the 1002 area.
Being able to sell this gas probably would enhance the commercial prospects of the 1002 area
and the rest of the 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, pipeline construction costs combined with relatively low natural gas prices
precluded serious consideration of pipeline construction. Higher gas prices in the last few
years have 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.
Advanced Technologies. As development has proceeded since the discovery of
Prudhoe Bay, North Slope oil field operators have developed less environmentally intrusive
ways to develop arctic oil, primarily through innovations in technology.
Field exploration has benefitted from new seismic technology. Advanced analytical
methods generate high resolution images of geologic structures and hydrocarbon
accumulations. And improved ice-based transportation infrastructure serves remote areas
during exploration drilling on newly developed insulated ice pads. (However, for safety
reasons, use of ice roads and pads may be limited in the more hilly terrain of the 1002 area;
U.S. Dept. of the Interior, Geological Survey. The Oil and Gas Potential of the Arctic National
Wildlife Refuge 1002 Area, Alaska. USGS Open File Report 98-34. (Washington, DC: 1999).
Summary and Table EA4.
gravel structures could be required for greater safety.) More powerful computers allow the
manipulation of vastly more data, yielding more precise well locations and, consequently,
reduce the number of wells needed to find hydrocarbon accumulations.
Recent advances in drilling also lessen the footprint of petroleum operations. New
drilling bits and fluids and advanced forms of drilling — such as extended reach, horizontal
and “designer” wells — permit drilling to reach laterally far beyond a drill platform, with the
current record being seven miles at one site in China. Other advances reduce the space
needed for a drilling rig, reduce equipment volume and weight, and lessen the generation of
drilling waste. Modules that perform many functions also make production facilities more
compact. Production drilling techniques using slim-hole technology such as coiled tubing
and multilateral drilling also decrease the footprint, reduce waste, and increase recovery of
hydrocarbons per well.
Proponents of opening ANWR note that these technologies would mitigate the
environmental impact of petroleum operations, but not eliminate it. Opponents maintain that
facilities of any size would still be industrial sites and would change the character of the
Refuge, in part because the sites would be spread out in the 1002 area and connected by
pipelines. They argue that whether environmental impacts would be minimized would
depend in part on the wording of legislation, and that there still would be the need for gravel
and the scarce water resources of the 1002 area; and that permanent roads, port facilities, and
airstrips would follow the initial roadless construction. They further note that warming
trends in the arctic have already shortened winter access across the tundra in developed areas,
suggesting that ice technologies alone may be insufficient for exploration in the 1002 area
if warming trends continue. They note that spills may occur, and that advanced technologies
might not be mandated on Native lands.
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 bowhead whale migration, in distribution and
reproduction of caribou, and in populations of predators and scavengers that prey on birds.
NAS noted beneficial economic and social effects of oil development in northern Alaska and
credited industry for its strides in decreasing or mitigating environmental impacts. It also
said that some social and economic impacts have not been beneficial. The NAS report
specifically avoided determining whether any beneficial effects (to Alaska residents, or to
the economy, etc.) were outweighed by harmful effects (to other Alaska residents,
subsistence resources, the environment, etc.).
The Biological Resources
The FLEIS rated the Refuge’s biological resources highly: “The Arctic Refuge is the
only conservation system unit that protects, in an undisturbed condition, a complete spectrum
of the arctic ecosystems in North America” (p. 46). It also said “The 1002 area is the most
biologically productive part of the Arctic Refuge for wildlife and is the center of wildlife
activity” (p. 46). The biological value of the 1002 area rests on the intense productivity in
the short arctic summer; many species arrive or awake from dormancy to take advantage of
this richness, and leave or become dormant during the remainder of the year. Caribou have
long been the center of the debate over the biological impacts of Refuge development, but
other species have also been at issue. Among the other species most frequently mentioned
are polar bears, musk oxen, and the 135 species of migratory birds that breed or feed there.
The Porcupine Caribou Herd (PCH) calves in or near the 1002 area in most years, and
winters south of the Brooks Range in Alaska or Canada; it is the subject of a 1987 executive
Agreement Between the United States and Canada on the Conservation of the Porcupine
Caribou Herd. The herd is currently estimated at 130,000, but caribou population numbers
fluctuate markedly. In both countries, it is an important food source to Native people and
others — especially since other meat is either expensive or unavailable.
Some scientists cite studies that show a reduction in density of cows with calves near
roads and developed areas around Kuparuk (Nellemann and Cameron, 1998). They fear that
development and production in the 1002 area could cause cows to calve in less desirable
locations or prevent the herd’s access to sites providing relief from voracious insects. Based
on the Prudhoe Bay experience, it appears that individual animals, especially adult males,
habituate to the disturbance, and sometimes seek out gravel pads and roads for insect relief.
However, cows with young calves appear to be more sensitive, and avoid roads and other
human disturbance for distances of a mile or more. The preferred calving area for the PCH
is more confined than for the herd around Prudhoe Bay and vicinity, and nearby similar
habitat may not be available.
When cows are slowed by late thaws or heavy snows, they may not reach the 1002 area
before calving. In the narrow coastal plain of the 1002 area, displacement to the south puts
calving in or near the Brooks Range, where bears, golden eagles, and wolves (all calf
predators) are more abundant; it could also force newborn calves to attempt to ford swollen
rivers. In 2000, heavy snowfall delayed cows in reaching the 1002 area, and certain calf
survival statistics were the lowest ever recorded. The reduced calving highlighted the
importance of the herds use of the area.
An updated assessment of an array of biological resources in the coastal plain was
published in 2002 by the Biological Research Division of USGS.2 The report analyzed new
information about caribou, musk oxen, snow geese and other species in the Arctic Refuge,
and concluded that development impacts would be significant. A follow-up memo by one
of the authors to the director of USGS clarified that if development were restricted to the
western portion of the refuge (an option that was being considered by the Administration),
the PCH would not be affected during the early calving period, since the herd is not normally
found in the area at that time.3 Any impacts that might occur when the herd subsequently
moves into the area were not discussed in the memo.
Effects on polar bear dens in the Refuge have also been an issue. Modern winter
exploration technology, while an improvement over the environmental impacts of previous
technologies in many respects, would be more likely to affect polar bears’ winter dens, or
conversely, the mitigation required to protect bear dens could increase the cost of
exploration, development, and production. Polar bears are the subject of the international
U.S. Dept. of the Interior. Geological Survey. Arctic Refuge Coastal Plain Terrestrial Wildlife
Research Summaries. Biological Science Report. USGS/BRD/BSR-2002-0001. 75 p.
Griffith, Brad. Memorandum to Director, USGS. “Evaluation of additional potential development
scenarios for the 1002 Area of the Arctic National Wildlife Refuge.” April 4, 2002. 2 p.
Agreement on the Conservation of Polar Bears, to which the United States is a party. Musk
oxen, snow geese, and other species have also been featured in the ANWR debate. (For
more about these species, see CRS Report RL31278.)
For opponents of development, the central issue is whether the area should be
maintained as an intact ecosystem — off limits to development — not whether development
can be accomplished in an environmentally sound manner. In terms that emphasize deeply
held values, supporters of wilderness designation argue that few places as untrammeled as
the 1002 area remain on the planet, and fewer still on the same magnificent scale. Any but
the most transitory intrusions (e.g., visits for recreation, hunting, fishing, subsistence use,
research) would, in their view, damage the “sense of wonder” they see the area as instilling.
The mere knowledge that a pristine place exists, whether one ever visits it, can be important
to those who view the debate in this light.
Major Legislative Issues in the 108th Congress
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 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.) The analysis below describes features of H.R. 6 as passed by the House and H.R.
4514 (identical, except as noted in “Revenue Disposition,” below). S. 2095 and the Senate
version of H.R. 6 have no provision to develop the 1002 area, but any provisions
corresponding to issues below are also described.
Environmental Direction. If Congress authorizes development, it could choose to
leave environmental matters to administrative agencies under existing laws. Alternatively,
Congress could impose a higher standard of environmental protection because the 1002 area
is in a national wildlife refuge or because of the fragility of the arctic environment, or it could
legislate a lower standard to facilitate development. The 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 standards. Congress could also
limit judicial review of environmental standards. Other issues could include regulating the
use of gravel and water resources essential for oil exploration and development; limitations
on miles of roads or other surface occupancy; the adequacy of existing pollution standards;
prevention and treatment of spills; the adequacy of current environmental requirements; and
The House bill did not name a lead agency, but since §30403(a) stated that the program
would be administered under the Mineral Leasing Act, BLM seemed likely to lead. The
House bill (§30407(a)) required 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
....” The House bill (§30403(a)(2)) also 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 of fair market value were to
relate to each other (e.g., if environmental restrictions might make some fields uneconomic).
The House bill (§30406(a)(3), and (5)) required 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 have affected
environmental protection. (See “Judicial Review,” below.) H.R. 770 and S. 543 would
designate the area as wilderness, as discussed below.
The Size of the Footprint. Newer technologies permit greater consolidation of
leasing operations, which would tend to reduce environmental impacts of development. On
this issue, the debate in Congress has focused on the size of the footprint in the development
and production phases of energy leasing. The term footprint does not have a universally
accepted definition, and therefore the types of structures falling under a “footprint restriction”
are arguable (e.g., whether to include roads, gravel mines, and port facilities). (See CRS
Report RL32108, North Slope Infrastructure and the ANWR Debate, for a description of
development features on the North Slope.) In addition, it has been unclear whether structures
on Native lands would be included under any provision limiting footprints. Development
advocates have emphasized the total acreage of surface disturbance, while opponents have
emphasized the dispersal of not only the structures themselves but also their impacts over the
1.5 million acres of the 1002 area. One single facility of 2,000 acres (3.1 square miles, a
limit currently supported by some development advocates) would not permit full
development of the 1002 area: the current record for lateral drilling technology is 7 miles
from the wellhead. Even if that record could be matched on all sides of a single pad, at most
about 11% of the Coastal Plain could be developed. Instead, full development of the 1002
area would require that facilities, even if limited to 2,000 acres total, be dispersed.
The House bill (§30407(d)(9)) provided for consolidation of leasing operations; among
other things, consolidation tends to reduce environmental impacts of development. The
House bill (§30407(a)(3)) would further have required, “consistent with the provisions of
section 30403” (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 by Representative Wilson (NM) to the House bill with this limit
was passed on April 10, 2003 (yeas 226, nays 202; Roll Call No. 134). The terms used were
not defined in the bill (nor discussed in the committee report), and therefore the range of
structures covered by the restriction was arguable (e.g., whether roads, gravel mines,
causeways, and water treatment plants would be included under this provision). Floor debate
focused on the extent to which the facilities would be widely distributed around the Refuge.
In addition, Native lands might not have been limited by this provision. (See “Native
Native Lands. ANCSA resolved aboriginal claims against the United States by
(among other things) creating Village Corporations that could select lands to which they
could hold the surface estate, and Regional Corporations that could select surface and
subsurface rights as well. The surface lands (originally approximately three townships)
selected by Kaktovik Inupiat Village (KIC) are along the coastal plain of ANWR, but were
administratively excluded from being considered as within the “1002 Coastal Plain.” These
lands and a fourth township that is within the defined Coastal Plain (these four totaling
approximately 92,000 acres) are all within the Refuge and subject to its regulations. The
Arctic Slope Regional Corporation (ASRC) obtained subsurface rights beneath the KIC lands
pursuant to a 1983 land exchange agreement. In addition, there are currently more than
10,000 acres of conveyed and individually owned Native allotments in the 1002 area that are
not subject to its regulations. Were oil and gas development authorized for the federal lands
in the Refuge, development would be allowed on the more than 100,000 acres of Native
lands, arguably free of any acreage limitation applying to development on the federal lands.
The extent to which the Native lands could be regulated to protect the environment is
uncertain, given the status of allotments and some of the language in the 1983 Agreement
with ASRC. The House bill would have repealed the ANILCA prohibition on oil and gas
Revenue Disposition. Another issue that has arisen during debates over leasing in
ANWR is that of disposition of possible revenues — whether Congress may validly provide
for a disposition of revenues formula other than the 90% -10% split mentioned in the Alaska
Statehood Act. A court in Alaska v. United States (35 Fed. Cl. 685, 701 (1996)) has
indicated that the language in the Statehood Act means that Alaska is to be treated like other
states for federal leasing conducted under the Mineral Leasing Act (MLA), which contains
(basically) a 90 - 10 split. However, Congress can establish a non-MLA leasing regimen —
for example, the separate leasing arrangements that govern the National Petroleum ReserveAlaska, where the revenue sharing formula is 50/50.
In the past, a number of ANWR bills have specified the disposition of the federal
portion of the revenues. Among the spending purposes have been federal land acquisition,
energy research, and federal assistance to local governments in Alaska for impact of energy
development. Amounts have been either permanently or annually appropriated. In the latter
case, there would be little practical distinction between annually appropriating funds based
on ANWR revenues and annually appropriating funds from the General Treasury. If there
is no particular purpose specified for leasing revenues, the resulting revenues would be
deposited in the Treasury where they would be available for any general government use.
Several sections of the House bill related to revenues. Section 30409 would have
provided that 50% of adjusted revenues be paid to Alaska, and the balance 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). The fund was to
assist Alaska communities in addressing local impacts of energy development under §30412.
However, under §30403(a), the Secretary was to establish and implement a leasing program
under the Mineral Leasing Act, yet §30412 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 raise validity questions. If the alternative disposition were
struck down and the revenue provisions were determined to be severable, Alaska could have
received 90% of ANWR revenues.
In addition, in the House version of H.R. 6, §30409(c) would allow certain revenues
from bids for leasing to be appropriated for energy assistance for low-income households.
This provision is lacking in H.R. 4514 — the only difference between the two bills.
Natural Gas Pipeline. Construction of a natural gas pipeline from Alaska to North
American markets entails risk and a routing decision. The Senate’s revised bill S. 2095
provides a loan guarantee not to exceed 80% of the total capital cost of the project, nor to
exceed $18 billion indexed for inflation, and has a tax credit mechanism that effectively
would guarantee a minimum price for natural gas transported through the pipeline. The
House’s H.R. 6 would provide no means of reducing risk nor other economic incentive to
build. Regarding the route, the House’s bill, both Senate bills, and the conference report
prohibit the licensing of a route that enters Canada north of 68º latitude. Canadian energy
interests oppose a production tax credit for Alaskan gas producers, which would tend to give
a price advantage over Canadian producers. They also object to the prohibition of a northern
route through Canada because a southern route would bypass gas reserves in far northwest
Canada. In fact, Canadian interests are moving to build a pipeline from that area.
Project Labor Agreements. A recurring issue in federal and federally-funded
projects is whether project owners or contractors should be required, by agreement, to use
union workers. Project labor agreements (PLAs) are agreements between a project owner
or main contractor and the union(s) representing the craft workers for a particular project that
establish the terms and conditions of work that will apply for the particular project. The
agreement may also specify a source (such as a union hiring hall) to supply the craft workers.
Typically, the agreement is binding on all project contractors and subcontractors, and
specifies wage rates and benefits, discusses procedures for resolving labor and jurisdictional
disputes, and includes a no-strike clause. Proponents argue that PLAs ensure a reliable,
efficient labor source and help keep costs down. Opponents say that PLAs inflate costs and
reduce competition. Construction and other unions and their supporters strongly favor PLAs
because they believe that PLAs help ensure access for union members to federal and
federally funded projects. Nonunion firms and supporters believe that PLAs unfairly restrict
their access to those projects. There is little independent information to sort out the
conflicting assertions and show whether PLAs contribute to lower or higher project costs.
The House’s H.R. 6 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 gas pipeline
provisions in the House and Senate bills and in the conference report simply urge the
sponsors of the pipeline project “to negotiate a project labor agreement to expedite
construction of the pipeline.”
Oil Export Restrictions. Export of North Slope oil in general, and any ANWR oil
in particular, has been an issue, beginning at least with the authorization of the Trans Alaska
Pipeline System (TAPS) and continuing into the current ANWR debate. Much of the
pipeline’s route is on federal lands and the Mineral Leasing Act of 1920 prohibits export of
oil transported through pipelines granted rights-of-way over federal lands (16
U.S.C.§185(u)). The Trans-Alaska Pipeline Authorization Act (P.L. 93-153, 43 U.S.C.§1651
et seq.) specified that oil shipped through it could be exported but only under restrictive
conditions. Subsequent legislation strengthened the TAPS export restrictions further.4 Oil
shipments through the pipeline increased as North Slope development grew through the late
1980s. With exports effectively banned, much of this oil went to the West Coast; the rest
was shipped to the Gulf Coast through Panama.
In the early to mid-1990s, the combination of California and federal offshore
production, North Slope oil, and imports resulted in large crude oil supplies relative to
demand. California prices fell below those in other states, causing complaints from
California and North Slope producers. By 1995, three or four years of low world oil prices
and relative calm in the Mideast had reduced concern about petroleum. These market forces
created pressure to change the law.
On November 28, 1995, P.L. 104-58 (109 Stat. 557) was enacted; its Title II amended
the Mineral Leasing Act to provide that oil transported through the Pipeline may be exported
unless the President finds, after considering stated criteria, that it is not in the national
interest. The President may impose terms and conditions; and authority to export may be
modified or revoked. Beginning with 36,000 bbl/day in 1996, ANS exports rose to a peak
of 74,000 bbl/day in 1999, representing 7% of North Slope production. ANS oil exports
ceased voluntarily in May 2000.
If Congress wished to limit export of any oil from the 1002 area, it might apply the
restriction to oil transported through 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 might not be sufficient to prevent export of any ANWR oil. The House bill
(§30406(a)(8)) would have required the prohibition on the export of oil produced 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, and to provide public involvement in agency decisions.
The last full EIS examining the effects of leasing development in ANWR was completed in
1987, and some observers assert that a new EIS is needed to support development now.
Generally, an EIS analyzes several alternatives, including a “no action” alternative. Some
development supporters would like to see the process truncated, in light of past analyses and
to hasten production. Opponents of energy development argue that a 15-year gap since the
last analysis would necessitate a thorough update and stress the flaws they found in the 1987
Section 30403(c) of the House bill would have deemed the 1987 EIS to satisfy the
requirements of NEPA with respect to actions by the Secretary to develop and promulgate
leasing regulations, yet required 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 was to be limited to two choices, a preferred option and a
“single leasing alternative.” (Generally, an EIS analyzes several alternatives, including a “no
Energy Policy and Conservation Act of 1975 (P.L. 94-163), the 1977 amendments to the Export
Administration Act (P.L. 95-52; P.L. 95-223), and Export Administration Act of 1979 (P.L. 96-72).
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 30403(c) of the House bill stated 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 extent of leasing
“activities” that might be included as compatible is debatable and arguably might encompass
necessary support activities, such as construction and operation of port facilities, staging
areas, and personnel centers.
Judicial Review. Leasing proponents urge that any ANWR leasing program be put
in place promptly; expediting judicial review may be one means to that goal. Judicial review
can be expedited through procedural changes such as reducing the time limits within which
suits must be filed, by avoiding some level of review, by curtailing the scope of the review,
or by increasing the burden imposed on challengers. In the past, bills before Congress have
combined various elements. The House bill (§30408) required that any complaints seeking
judicial review be filed within 90 days. Sections 30408(a)(1) and (a)(2) appeared to
contradict each other as to where suits were to be filed and it is possible part of a sentence
may have been omitted. The House bill (§30408(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 Title, 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 is unclear, but in this context arguably would have made
overturning a decision more difficult.
Special Areas. Some have supported setting aside certain areas described in the
FLEIS for 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. Development of such areas could be forbidden and/or surface occupancy
could be limited. The House bill (§30403(e)) would have allowed the Secretary to set aside
up to 45,000 acres (and named one specific special area) 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 have been required to select among these areas or
any others that may seem significant. Section 30403(f) also stated that the closure authority
in the ANWR title was to be the Secretary’s sole authority, which might limit possible
secretarial actions under the Endangered Species Act. H.R. 770 and S. 543 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 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 energy resources, a better decision could be made about opening
the 1002 area for leasing. This idea has had little support over the years. (See CRS Report
RL31278 for a discussion of the pros and cons of this approach.) Various advocates see
insufficient gain from such a proposal. While an exploration bill has been mentioned in the
past, none has been introduced in the 108th Congress.
Energy development is not permitted in wilderness areas, unless there are pre-existing
rights or unless Congress specifically allows it or reverses the designation. Development of
the surface and subsurface holdings of Native corporations is precluded as long as oil and gas
development is not allowed on the federal lands in the Refuge. Wilderness designation
would tend to preserve existing recreational opportunities and jobs, as well as the existing
level of protection of subsistence resources, including the Porcupine Caribou Herd. H.R. 770
and S. 543 would designate the 1002 area as wilderness. 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. 6 (Tauzin)
Title IV, Division C repeals current prohibition against ANWR development, creates
energy leasing program, and provides for distribution of revenues. Introduced April 7, 2003;
referred to eight committees, including Committee on Resources. Passed House April 11,
2003 (yeas 247, nays 175: Roll no. 145). Passed Senate (amended, no ANWR development
provisions) July 31, 2003 (yeas 84, nays 15: Roll no. 317). Conference report (H.Rept. 108375) filed November 18, 2003. Conference report agreed to in House November 18, 2003
(yeas 246, nays 180, Roll no. 630). Cloture motion failed in Senate November 21, 2003
(yeas 57, nays 40, Roll no. 456).
H.R. 39 (D. Young)
Repeals current prohibition against development in ANWR; and for other purposes.
Introduced January 7, 2003; referred to Committee on Resources.
H.R. 770 (Markey)
Designates the 1002 area of ANWR as wilderness. Introduced February 13, 2003;
referred to Committee on Resources.
H.R. 4514 (Pombo)
Virtually identical to House-passed version of H.R. 6; see “Revenue Disposition” above
for only difference. Introduced June 4, 2004; referred to Committee on Resources.
S. 543 (Lieberman)
Designates the 1002 area of ANWR as wilderness. Introduced March 5, 2003; referred
to Committee on Environment and Public Works.
FOR ADDITIONAL READING
National Academies of Science. Cumulative Environmental Effects of Oil and Gas Activities
on Alaska’s North Slope (March 2003). 452 p. (See [http://www.nas.edu/].)
Nellemann, C. and R. D. Cameron. Cumulative Impacts of an Evolving Oil-field Complex
on the Distribution of Calving Caribou. Canadian Jour. of Zoology. 1998. Vol. 76, p.
U.S. Department of the Interior. Bureau of Land Management. Overview of the 1991 Arctic
National Wildlife Refuge Recoverable Petroleum Resource Update. Washington, DC,
April 8, 1991. 8 p., 2 maps.
U.S. Department of the Interior. Fish and Wildlife Service, Geological Survey, and Bureau
of Land Management. Arctic National Wildlife Refuge, Alaska, Coastal Plain Resource
Assessment. Report and Recommendation to the Congress of the United States and
Final Legislative Environmental Impact Statement. Washington, DC, 1987. 208 p.
U.S. Department of the Interior. Geological Survey. The Oil and Gas Resource Potential
of the Arctic National Wildlife Refuge 1002 Area, Alaska. 1999. 2 CD set. USGS Open
File Report 98-34.
U.S. Department of the Interior, Geological Survey. Arctic Refuge Coastal Plain Terrestrial
Wildlife Research Summaries. Biological Science Report USGS/BRD/BSR-2002-0001.
U.S. Department of the Interior, Geological Survey. “Evaluation of additional potential
development scenarios for the 1002 Area of the Arctic National Wildlife Refuge.”
Memorandum from Brad Griffith, Assistant Leader, Alaska Cooperative Fish and
Wildlife Research Unit, to Charles D. Groat, Director, U.S. Geological Survey. April
U.S. General Accounting Office. Arctic National Wildlife Refuge: An Assessment of
Interior’s Estimate of an Economically Viable Oil Field. Washington, DC. July, 1993.
31 p. GAO/RCED-93-130.
CRS Issue Brief IB10116. Energy Policy: The Continuing Debate.
CRS Report RL32108. North Slope Infrastructure and the ANWR Debate.
CRS Report RL31725. Arctic National Wildlife Refuge: Legislative Issues Through the
CRS Report RL31278. Arctic National Wildlife Refuge: Background and Issues.
CRS Report RS21170. ANWR Oil: Native Lands and State Waters.
CRS Report RS21030. ANWR Development: Economic Impacts.
CRS Report RL31115. Legal Issues Related to Proposed Drilling for Oil and Gas in the
Arctic National Wildlife Refuge.
CRS Report RL31022. Arctic Petroleum Development: Implications of Advances in
CRS Report RL31317. Natural Gas Markets: Overview and Outlook.