Alaska Energy & Environmental Policy Update - March 19, 2010

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Article by Chuck Sensiba, Jonathan Simon, Julia Wood, Andrea Campbell, Tracy Nagelbush, Henry Stern and Andrew VanderJack

Commentary

Alaskans who traveled to Washington, D.C. earlier this month experienced an 80 degree variation in temperature. It may be 40 below in Alaska, but it's springtime in D.C., and as partisan politics heat up we can expect a strong push to enact federal energy and climate change initiatives by summer's end.

Looking to advance climate change and energy legislation, President Obama met with 14 key U.S. Senators, including Senator Murkowski, to focus on developing a legislative package, while a bipartisan trio of Senators pushed their vision for a new compromise on Capitol Hill. Meanwhile, Senator Murkowski delayed plans to remove EPA's authority to regulate GHGs under the Clean Air Act pending movement by Senator Rockefeller on legislation that would delay EPA regulation by two years.

While federal legislators and Administration officials mull over national climate change policy, the City of Kivalina and the Alaska Native Village of Kivalina appealed their claim for damages the Village claims it has suffered as a result of climate change to the Ninth Circuit Court of Appeals.

Energy developers are looking to the Federal Energy Regulatory Commission (FERC) to help move major energy initiatives in Alaska. The federal "open season" process for the Alaska Pipeline Project will move forward this spring, with the Project's open season plan now before FERC. FERC has also granted a second three-year preliminary permit for the Chakachamna Hydroelectric Project, while suggesting that the agency likely will exercise "a greater standard of oversight" over the project.

With the future of Alaska hydro development a focal point of the National Hydropower Association's first-ever regional meeting in Alaska last week, the Department of Energy announced its intent to fund new research and development of ocean, wave, tidal, current, free-flowing river and ocean thermal technologies.

Our report also covers issues associated with the proposed regulation of soot under the federal Clean Water Act, denial of ConocoPhillips' CD-5 permit application, the Department of the Interior's plans to issue a revised environmental assessment for the five-year leasing plan for Alaska's outer continental shelf, the National Marine Fisheries Service's proposed authorization of five-year incidental take regulations for Arctic offshore development, a new emphasis on consideration of GHG emissions for development proposals subject to the National Environmental Policy Act, and the Obama Administration's plans for the future of the Tongass National Forest.

Administration

CEQ Issues Draft NEPA Guidanceon Consideration of the Effects of Climate Change and Green House Gas Emissions NMFS and MMS Working on EIS for Authorizing Incidental Take of Marine Mammals During Oil and Gas Exploration in Alaska's Beaufort and Chukchi Seas Open Season Process for Alaska Natural Gas Pipeline Project Moving Forward FERC Grants Successive Preliminary Permit and License Application Priority Status for Chakachamna Hydroelectric Project Funding Available for Development of Marine and Hydrokinetic Power Corps of Engineers Denies Permit for NPR-A Development Interior Due to Re-Issue Environmental Assessment for Five-Year Oil and Gas Leasing Program for Alaska's Outer Continental Shelf EPA Petitioned to Regulate Deposit of Black Carbon Soot On Glaciers and Sea Ice Congress

Senator Murkowski Asks Forest Service to Consider Survival of Tongass Timber Alaska Congressional Delegation Meets with NOAA on Marine Planning Obama Meets with 14 Key Senators including Senator Murkowski on Climate Change Legislation While Bipartisan Trio of Senators Pushes New Compromise Senator Murkowski Delaying Disapproval Vote Judiciary

Native Alaskan Village Urges Ninth Circuit to Allow GHG Relief in Kivalina v. Exxon Administration

CEQ Issues Draft NEPA Guidance on Consideration of the Effects of Climate Change and Green House Gas Emissions

On February 18, 2010, the Council on Environmental Quality ("CEQ") released, for public review and comment, a draft "Guidance Memorandum" on the consideration of greenhouse gas ("GHG") emissions and climate change impacts as part of compliance with the National Environmental Policy Act ("NEPA").

NEPA requires federal agencies to review the environmental effects of proposed federal actions. The NEPA review process, which may require the development of either an environmental assessment ("EA") or a more detailed environmental impact statement ("EIS"), is often determinative of the timing and completion of federal permitting and authorization decisions.

Development of an EA or EIS is a familiar hurdle for project sponsors in Alaska, because projects within the state or offshore of Alaska often occur on federal lands or waters or require a federal permit, triggering NEPA review.

The Guidance Memorandum addresses two related issues in the context of NEPA reviews:

The treatment of GHG emissions that may directly or indirectly result from the proposed federal action; and The analysis of potential climate change impacts upon the proposed federal action. CEQ has announced a ninety-day comment period for the draft Guidance Memorandum, with public comments due May 24, 2010.

Van Ness Feldman Members Sam Kalen, Joe Nelson, and Jonathan Simon summarize and review the Guidance Memorandum in greater detail on our website at http://www.vnf.com/news-alerts-441.html (http://tinyurl.com/ykor29o).

Van Ness Feldman Attorneys Speak on Endangered Species Act Issues in Anchorage

On February 25, Van Ness Feldman co-sponsored an in-depth seminar in Anchorage on the impacts of the Endangered Species Act ("ESA") in Alaska. In recent years, the ESA has gained increased prominence in Alaska. The conference examined evolving legal and policy issues associated with species listings and critical habitat designations, climate change, fisheries, and incidental take authorizations. Three attorneys with the firm-John Iani, Matt Love, and Tyson Kade-spoke at the event.

The agenda is available at http://www.lawseminars.com/detail.php?SeminarCode=10ESAAK (http://tinyurl.com/yzutb3f).

NMFS and MMS Working on EIS for Authorizing Incidental Take of Marine Mammals During Oil and Gas Exploration in Alaska's Beaufort and Chukchi Seas

The National Marine Fisheries Service ("NMFS") announced in early February its intent to prepare, in cooperation with the Minerals Management Service ("MMS"), an environmental impact statement ("EIS") to analyze the environmental impacts of issuing Incidental Take Authorizations ("ITAs") pursuant to the Marine Mammal Protection Act ("MMPA") to the offshore oil and gas industry. Comments, statements, and questions regarding the scoping process and preparation of the EIS are due April 9, 2010.

The MMPA directs the Secretary of Commerce, who acts through NMFS, to permit, upon request, the incidental, but not intentional "take" of small numbers of marine mammals by citizens who engage in a specified activity within a specified geographical region under certain conditions. A "take" under the MMPA includes actions which "harrass, hunt, capture or kill" marine mammals or that have the potential to injure a marine mammal or marine mammal stock in the wild or the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns. NMFS must authorize a taking if the taking will have a negligible impact on the species or stock and will not have an "unmitigable adverse impact" on the availability of the species or stock for subsistence uses.

The proposed EIS will assess the environmental impact of issuing ITAs in Alaska's Beaufort and Chukchi Seas for purposes of permitting future offshore oil and gas exploratory activities, including seismic surveys and exploratory drilling operations.

The EIS also will...