THRESHOLD SEASON THREE | EXTRA 2

“Arbitrary and Capricious?” Latest Update on the Refuge

AMY: 2020 was a year full of weird. And those four days between Tuesday, November 3rd and Saturday, November 7th were some of the weirdest. Remember that? Everything felt so...tense. Around the country, and around the world, everyone was waiting to find out who the next president of the United States would be.

VEBJØRN: So, yeah, there's a lot of discussion about what's going on in the United States.

AMY: Welcome to Threshold, I’m Amy Martin, and this is Vebjørn Aishana Reitan, he's talking to me from Norway, where he lives part of the time. His other home is Kaktovik, Alaska. The only village located inside the Arctic National Wildlife Refuge. I talked to Vebjørn on November 6th, about 24 hours before it became clear that Joe Biden had won.

VEBJØRN: And with the election right now, there is 24/7 coverage on the national television and that's what everybody's talking about. So, yeah, it's big, big news over here.

AMY: This episode is a follow-up to our full series about the Arctic National Wildlife Refuge and if you’ve already listened to that, you might remember Vebjørn. He was in Kaktovik when we did our reporting there, and he was the one who took us out in his boat, over to the coastal plain, where the drill rigs might go up someday. Vebjørn’s Iñupiaq on his mom’s side. The lands of the refuge are the ancestral home of both Iñupiaq and Gwich’in people.

VEBJØRN: It would completely change the way Kaktovik is to me if there was oil development there. I don't think it would be the way I remember being when I grew up.

AMY: Vebjørn is certainly not the only person from Kaktovik who’s against drilling in the refuge, but there are plenty of people there who want drilling, too. The village is divided on this issue. And so is the country. For more than 40 years, Americans have been arguing over this, and in December of 2017, the pro-oil side scored a big victory. The Republican-controlled Congress passed a law that made it legal to drill for oil in the refuge. Since then, the Trump administration has been moving that ball down the field, aiming for the goal of a lease sale. That’s an auction, where rights to drill on this federal land are sold to the highest bidder. When I called Vebjørn on November 6th, it seemed clear that a lease sale would be held very soon—if Donald Trump remained in the White house. Joe Biden, on the other hand, had pledged to stop Arctic drilling. So among all of the other uncertainties of those four days in early November, I could feel the future of the refuge hanging in the balance. And even though Vebjørn is kind of the king of chill, I could feel the tension in him, too.

VEBJØRN: The way I remember Kaktovik, like, I can't connect that with oil development in, in any way. Like that would no longer be, no longer be home to me in some way. Just because of the way I grew up, I was very connected to the land and the surrounding area. The exact area that they're planning to do seismic exploration and maybe the development of some sort in the near future.

And then the day after we talked, this happened.

FOX NEWS: The Fox News decision desk can now project that former vice president Joe Biden will win Pennsylvania and Nevada putting him over the 270 electoral votes he needs to become the 46th president of the United States.

MUSIC

AMY: So what does the change in administration mean for the future of the Arctic National Wildlife Refuge? Well, a lot. And the story is unfolding as we speak. Instead of putting the lease sale process on hold in the wake of the election loss, the Trump administration has been moving it forward as fast as they can in their final months in office. Opponents to drilling are pushing back just as hard. There have been a lot of twists and turns, and a lot of unknowns still remain, but there's no doubt that the November election was a pivotal moment in the story of this place. In this episode, we’re going to bring you up to speed on what’s happening, what it means, and what might happen next.

INTRO MUSIC

AMY: This episode has four voices in it, and three of them are lawyers. That’s the weird thing about the Arctic National Wildlife Refuge. It’s this big, beautiful place in northern Alaska, the country’s largest and most remote wildlife refuge, and yet, really important parts of its story play out in the courts and in the halls of Congress. And because of that, it can be easy to forget that the place itself is actually the central character in this story. So before we do anything else, let’s go there. This is a short clip from our Peabody Award-winning season about the refuge, when my colleague Nick Mott and I had just stepped out of Vebjørn’s boat and onto the coastal plain for the first time.

AMBI: ocean, wind

AMY: Uh, we're on a little spit of land, um...gravelly beach and ah...a little blustery, windy, dewy, wet. And in front of us is the green tundra of the coastal plain. It's gorgeous.

My first impression is just wide open space. The Arctic National Wildlife Refuge is huge – almost 20 million acres, or about 30 thousand square miles. So if we were to hike from this spot on the coastal plain down to the southern boundary of the refuge, it would be like walking across the state of South Carolina, or the entire country of Austria, without seeing a single town, or house, or road. Birds from as far away as India and central Africa fly in to nest here. Salmon, grayling and char swim in the rivers. And in terms of northern mammals, there's an all-star cast. Wolves, Arctic foxes, wolverines, Canada lynx, moose, and all three types of North American bears: black, brown and polar. Plus, the Porcupine caribou herd, named after the Porcupine River, one of the largest and healthiest herds of caribou in the world. This is wild country.

AMY: I've heard people say this thing about oh, the coastal plain it's just a wasteland. It's just tundra. As if this is like, not worth anything, I don't know. What is your response to that?

VEBJORN: Huh. They've probably never been here. Or they haven't been here in a way that they get to appreciate all the life that lives here. This is the home of, uh, thousands of different animals and a whole bunch of different species. And this...this is what people from here are. People from Kaktovik, they're from here.

MUSIC

AMY: So, as we dive into the politics and legal machinations currently shaping the future of the refuge, keep this image in mind: a rolling plain, lapped by the Arctic Ocean, with dramatic mountains in the distance, and no roads, houses, electric lights, or other signs of human impact to be seen or heard.

And now, allow me to introduce you to the first of our three lawyers for this episode: Sarah Krakoff [KRAY-koff].

SARAH: I am on the faculty at the University of Colorado at the law school.

AMY: I’ve been wanting to talk to Sarah since the late summer, when this conflict over drilling in the refuge started to heat up. That’s when the Department of the Interior signed off on their required environmental review, signaling that a lease sale in the refuge might be held soon. And then, four lawsuits were filed, claiming that review was bungled. Sarah's not directly involved with any of those lawsuits, but she's very familiar with these kinds of cases.

SARAH: I teach American Indian law and natural resources law, and public land law, and I write in those fields and also sort of in their intersections around the issues of environmental justice that are crossovers between natural resources and issues that affect Native nations.

AMY: I wanted to get Sarah’s take on these cases even before the November election. But after the election, things got a little kooky, and I had even more questions. So let’s start with the lawsuits. There are four of them, brought by a bunch of different plaintiffs, including the Gwich'in Steering Committee, several other Gwich'in tribal entities, a slew of environmental groups, and 15 U.S. states. They all name David Bernhardt, President Trump’s Secretary of the Interior, as one of the defendants, they were all filed in federal court in Alaska. And the heart of each of these four cases is the claim that the government violated the National Environmental Policy Act, or NEPA. 

AMY: It feels like it's important just to back up for a minute and explain to listeners what NEPA is and why it's so important in this controversy.

SARAH: Sure, so the National Environmental Policy Act was one of the most significant federal environmental laws passed in that environmental lawmaking moment in the early 1970s, and it requires the federal government to stop, look, and consider, essentially, the environmental effects of any significant federal action before the federal government will approve that course of action. 

AMY: And the action meaning in this case, proposing selling resources.

SARAH: Right.

AMY: And because that's a big deal, because we're saying, like, something we all own, you, BP or Exxon or whomever gets to make money off of, then there should be this big process of public input and environmental review and rigorous scientific analysis. All of that.

SARAH: Right.

AMY: Okay

AMY: The four lawsuits claim the government violated other laws too, like the Endangered Species Act. But NEPA is the common denominator.

SARAH: In the NEPA process, the agencies are supposed to cough up a lot of information, including the effect on threatened or endangered species. So that's a way to bring in the Endangered Species Act concerns, and in this case, it's about habitat for the polar bears, right? So there's sort of these overlapping NEPA-ESA claims, like, hey, in your environmental review you didn't think about the cumulative impact of these leases, and the long term impacts of these leases, on polar bear habitat. That's just to give one example. So NEPA is powerful in this way. it's a way to say, hey, agency, you know, across the board, you just didn't think hard enough about this. You didn't provide us enough information, and you didn't yourselves engage in a rigorous enough analysis so that you, the decision maker, and we, the public, could understand the effects of what you did.

AMY: Sarah says it’s hard to overestimate the importance of NEPA.

SARAH: It's the signature environmental review statute and it's been copycatted by other countries around the world.

AMY: And this is one of the major laws that was signed by Nixon, is that right?

SARAH: Yes. (laughter) It was a different time, Amy.

MUSIC

AMY: So in the case of the Arctic National Wildlife Refuge, the decision-making agency is the Bureau of Land Management, often called the BLM, which is part of the Department of the Interior. They wrapped up their environmental review in August of 2020, these four lawsuits were filed over the next month or so, and then...not much happened until November. The election was on November 3rd, by November 7th, it was clear that Donald Trump had lost, and then ten days later, on November 17th, the BLM pressed go on the lease sale process. 

And this is the second thing I wanted to ask Sarah about, because they didn’t only press go, they seemed to put the leasing process into overdrive. I’m going to get a little technical for a minute, but bear with me, because the details here matter. So before a lease sale, the government has to go through two final steps. Each of these steps typically takes at least 30 days, with a few days or weeks in between them. So, let’s say 65 days minimum. But the BLM didn’t launch those last two steps until November 17th. Count forward 65 days from that date, and a lease sale in the refuge would have been scheduled after January 20th—Inauguration Day. So that’s what the situation would have been if they’d followed their typical process. But they didn’t. Before the first part of that two-step process was over, the Bureau of Land Management broke with precedent and suddenly initiated phase two: they announced that they were going to hold a lease sale on January 6th. To simplify, before step one had a chance to play out, the government launched step two.

AMY: So they basically cut that first 30-day period in half. And can they do that? Is that legal?

SARAH: They certainly can, I would say it's on the outer edge of what would be defensible. So what it does is, I think, leave the agency even more open than it already was to the allegation that they're acting in an arbitrary and capricious manner.

AMY: “Arbitrary and capricious.” That language is based on a sort of legal test that applies here. 

MUSIC

AMY: And the idea is pretty simple. A government agency is supposed to have rational, evidenced-based reasons for its decisions. It can't pick an outcome ahead of time and then basically run a sham process that leads to whatever conclusion it wants. For example, an agency can’t count the public comments submitted on one side of an issue, and ignore all the comments on the opposing side. But that’s kind of an outlandish scenario. A more realistic demonstration of an agency acting in an arbitrary and capricious way is if they ignore or downplay scientific evidence. Or if they seem to be rushing to judgement.

SARAH: So that that often is a little tip off for a court reviewing the case to think, OK, they didn't do this right. When the agency starts cutting corners, providing a record that just makes it easier for the court to say, oh, that was arbitrary and capricious.

AMY: So here’s how these two things I wanted to discuss with Sarah come together: where the unusual post-election maneuvers meet the lawsuits filed earlier in the year.

AMY: Do you think that these lawsuits have a shot?

SARAH: I mean, I think they do because when the agency is sort of tipping its hand that it had a predetermined outcome and rushed the review, that makes, I think, the plaintiff's case easier. And so that's how to get back to your first set of questions about the seeming shortcut the agency just took cutting off this the customary comment period that takes place before the lease announcement, right? Overlapping those two periods and saying, eh, you know, the heck with it, we're not going to finish up that business of taking feedback from interested parties. Boom, we're just going to announce the lease sale now, it just makes it all seem rushed, and like what they were interested in was not conducting the proper review, but rather, again, just getting to the outcome they wanted politically. So that helps the plaintiffs a lot.

AMY: Mmm-hmm.

SARAH: So it doesn't immediately make what they're doing illegal in a way that you and I can say right now, 'that was illegal,' but it certainly exposes them, and makes the process look fishy.

AMY: And Sarah says the plaintiffs are likely to argue that these events are part to whole: that the entire process of environmental review has been plagued by “arbitrary and capricious” decisions, and the administration’s actions in the last few months here are just the latest examples. And there’s more. Some of the plaintiffs also say that the government didn’t do adequate consultation with tribes.

AMY: What are the what are the agencies required to do? Like what are they supposed to do?

SARAH: They are supposed to, you know, pursuant to executive orders, engage in consultation with tribes affected by federal projects that touch on tribal rights and sacred sites.

AMY: Consultation means not just informing the tribes about what's going on, but actually listening to and incorporating their input. Sarah says some of the pending lawsuits allege that the Bureau of Land Management didn't do that. And, as an attorney with expertise in American Indian law—she's a co-author of a book by that title in fact–she says those allegations are easy for her to believe, because unfortunately, it's rare that the agencies do tribal consultation right.

AMY: One of the interesting dynamics that we reported on in terms of the refuge is, obviously there's, you know, the Gwich'in are deeply invested, but so are the Iñupiat, and the people of Kaktovik in particular. And, you know, sometimes this story gets really reduced down to a simple binary of like Gwich'in are against oil drilling, Iñupiaq people are pro. And, you know, we talked to a lot of people in Kaktovik who are anti drilling, too. There's a, there's a mixture of opinion there. And I guess I just wonder what you know about all of, all of that situation. And what about the argument that, yeah, we want consultation, and, and if you consult us, we're going to say we want drilling. 

SARAH: Right, that's that is that's that's a really, really good point. I'm glad you raised it. People in Native communities are as diverse as people outside of Native communities, even if they have a collective identity that is coherent and very distinct from non-Indigenous identities. And so what a better and more robust consultation, and an administration truly committed to that, I think would yield would be the kind of complicated reactions that people in different communities have all the time to proposed environmental action. The answer is it's complicated, just like it is for everybody, and that doesn't mean that the voices of the Gwich'in should somehow be discounted or written off just because you can find an opposing view somewhere else.

AMY: Or vice versa. 

But while these lawsuits aim to poke holes in the process leading up to this lease sale, there’s an elephant in the room here: the Tax Cuts and Jobs Act of 2017. That's the law that Alaska Senator Lisa Murkowski used as a vehicle to move the drilling process forward. Although that law was mostly about taxes, Murkowski and other Republicans managed to write in a mandate to hold a lease sale in the coastal plain of the refuge. Like, the law doesn't say, “hey Bureau of Land Management, you can have a lease sale or not as you see fit.” It says: “you will hold a lease sale.” So I asked Sarah, even though the plaintiffs in these four lawsuits are questioning the validity of the government’s environmental review...

AMY: ...can't the other side just say, “hey, we're just following the law, we're just doing what Congress told us to do?

SARAH: Yes, I know that's a that's a good point. And I'm sure they will say that. And, and as you noted, the Tax Cuts and Jobs Act required a lease sale, but they required it by December of 202. So why are they wanting to win the eager beaver award and have a lease sale?

AMY: I can't imagine why.

SARAH: Yeah, it's strange.

AMY: This is probably an unnecessary clarification, but just to make sure you’re following us, we’re talking about the election. Sarah says the plaintiffs in these four lawsuits have quite a bit of evidence to back up the idea that the BLM is trying to get the lease sale done before the Biden administration takes over.

SARAH: Yeah, exactly. And and so that will be the response: well, this is different from other major federal actions. This one is, in fact required by Congress. But I think that the plaintiff's response is: yes, but it wasn't required until December '21. And let's take a look at your timeline. You know, the rush to announce, the rush to get the date for the lease sale, all timed towards not December of 2021, but January 21 of '21.

AMY: I reached out to the Bureau of Land Management and asked if that was indeed what was going on here—if they were trying to push the lease sale forward before Biden’s inauguration. They declined to make anyone available for an interview, but they did send me a written response, emphasizing that they are required by law to establish an oil and gas leasing program in the refuge, and saying—quote— “Our science-based decisions are legally compliant and based on an extensive process involving input from BLM career subject matter experts and the public.” End quote. They didn’t specifically answer the question about the acceleration of the process in the wake of the election, but it strains credulity to imagine there’s no connection. The bottom line here is that ten days after it was clear that Trump had lost the election, the lease sale process went into overdrive. Does that help demonstrate “arbitrary and capricious” decision-making? That will be for the court to decide.

AMY: Do the plaintiffs have to have like a smoking gun or two? Like, do they have to have, here is scientist A from Fish and Wildlife Service who was told, “get that polar bear study done. I don't care if it's done or not. Turn in the data. We need to get this done.” Like, do they have to have somebody like that?

SARAH: No, no. They don't have to have someone like that. And that is good because that's very difficult to get in litigation. I mean, it almost would be a whistleblower type scientist you would need and you don't need that to establish a really solid and winnable NEPA claim.

AMY: Mm-hmm. But if there were whistleblowers out there who wanted to blow the whistle, now would be a good time to do it.

SARAH: Yes. Yeah.

AMY: But, whatever happens with these lawsuits, the fact remains that in 2017, Congress mandated a lease sale in the Arctic National Wildlife Refuge before the end of December 2021.

SARAH: Right.

AMY: So if this one were stopped and it doesn't happen, then it would take an act of Congress, then Congress would have to pass a law to undo that part of the Tax Cuts and Jobs Act, or we would have to have another lease sale before the end of next year. Is that right? 

SARAH: That's right.

AMY: Wow.

SARAH: It's strange. And you know, what's what's what's strange, and your question just makes me really think about this, is it's often a conservative position and I mean conservative, both in the partisan sense, but also in the more traditional sense, like it's a cautious position and a politically conservative position not to have the federal government pick winners, as they say, right? Like pick winners technologically, pick winners in terms of a particular outcome, right, that that sort of conservative economists say “that's a bad way to run,” which like competition, yield results. And so this is in some ways exactly a picking a winner kind of piece of legislation that boxes everybody in. What if the market is like, eh, that's over, right. We still have to, we have to have a lease sale. Why? Just, you know, maybe the market will be going gangbusters and it will make sense in just purely economic terms. Fine. But then why should Congress pick a date? It's strange.

AMY: Yeah. I never thought about that way either, but, yeah, you're right, it's very much government putting its thumb on the scale, saying this needs to happen. Economics be damned, free market be damned. 

SARAH: Yes.

AMY: Government wants this.

MUSIC

BILL: I think that the state needs to be more active and actually be a bidder on the tracts that have been made available.

AMY: Bill Walker was the governor of Alaska from 2014 to 2018. And far from thinking the government has put its thumb too hard on the scale here—he thinks they should do more. He and former governor Frank Murkowski—Lisa’s father—are publicly advocating for the State of Alaska to bid on the leases that the federal government is selling. 

We’ll have more after this short break.

BREAK #1

AMY: Welcome back to Threshold, I’m Amy Martin, and in this episode we’re getting caught up on what’s happened in the last few months with the Arctic National Wildlife Refuge. And we’re starting to look ahead about how the change in presidential administrations might affect plans to drill for oil there. One of the people I wanted to talk to about that was former Alaska governor Bill Walker. Bill’s life has been heavily impacted by oil. And some of those impacts have been pretty devastating.

AMY: Where were you in 1989, and how was all that for you?

BILL: I was the city attorney for Valdez in in ‘89 and so I was sort of up close and personal with what took place and whatnot. And so we learned a lot from that. A lot.

AMY: 1989 was the year of the Exxon Valdez oil spill. At the time, it was the worst oil spill the country had ever had. And like Bill said, he was the city attorney in the small town of Valdez, at the very end of the Trans-Alaska Pipeline.

BILL: And so that changed me. That changed me, because before we always heard we got this. It’s never going to happen, and if it does, we got this. Well, it did happen and they didn’t have it. And so, you know, we learned from that.

MUSIC

AMY: Oil also had a big impact on Bill’s experience as governor. He first ran in 2010 as a Republican, but lost in the primary. So in 2014 he ran as an Independent, and after convincing his Democratic rival to become his running mate, they won. But shortly after he took office, oil prices took a nose dive of historic proportions. Then, and now, Alaska’s state government is funded primarily from taxes and other revenue from oil operations, and the plummeting prices took Alaskans by surprise. Bill tried to stop the bleeding by reducing expenditures, and he proposed instituting a state income tax to try to replace some of the lost revenue. But these moves were deeply unpopular, and his re-election bid in 2018 was unsuccessful. Today, oil prices are still in the dumper, and Alaska’s state budget is in an extremely tenuous position. With this fiscal crisis looming, and getting worse year by year, Bill says...

BILL: I fear for the future of Alaska. I absolutely fear for the future of Alaska financially. I really do.

AMY: But one of the things that’s fascinating to me about Bill, is that these experiences have not turned him against oil. Not at all. He continues to see it as the lifeblood of his state. And in fact, he’s currently advocating hard for drilling in the Arctic National Wildlife Refuge.

BILL: I think that we have the most to gain, the most to lose and the most to protect. I don't think anybody cares more about the Alaskan environment than Alaskans. I really I really, honestly believe that. I don't think anybody cares more about how things are done taking into consideration the impact of those in the region than Alaskans will.

AMY: And like I said before the break, Bill is so convinced that oil drilling should happen in the refuge, that he thinks the State of Alaska should take an unprecedented role, and become an active bidder in the lease sale. He made this position known in a December op-ed, where he wrote—quote—“There is some speculation that the upcoming lease sale will not attract a sufficient number of bidders and that the federal government will maintain the control over the area that we have fought long and hard to responsibly develop.” A similar op-ed by another former governor, and former senator, Frank Murkowski, put it a little more plainly. Murkowski wrote, quote—“So far, there has been no indication from the producers of an intent to bid on the tracts.” And then later, he wrote, “After all our efforts, hope and aspirations, Alaska will look like the proverbial paper tiger.” End quote.

AMY: These op-eds were remarkable to me for a couple of reasons. One, they are making it public that there’s little to no interest in drilling in the refuge coming from private industry. And secondly, their proposed solution is for the government to step in.

BILL: My concern is that we have this auction takes place and there are no bidders. If there are bidders I would hope they're responsible. And I assume that they would be, the rules would require them to be. But if there are none, please let's not let this opportunity go by to help fund us into the future.

AMY: How would that actually work, though, if the state were to bid? Because the state isn't a, isn't an oil drilling company. Are you then proposing that the state would set up a state-run oil company in order to fulfill the bids if you did get them, or if the state did get them?

BILL: Yeah. Actually there's already an organization somewhat like that. And of course, Norway does that very successfully. It's not insurmountable for the state to to do that. We certainly have the financial wherewithal to do that.

AMY: It seems important to pause here and reflect for a second about what this proposal from former governors Walker and Murkowski means. For more than 40 years, the oil industry and many politicians, mostly but not exclusively on the right, have thrown huge amounts of time, resources, and effort into the project of selling the right to drill on the coastal plain of the Arctic National Wildlife Refuge. And now, just a few weeks away from that long-sought-after prize becoming real, two state leaders are saying they’re very worried that no one is going to want those rights anymore. It’s like spending four decades fighting to go to a dance, only to get there and realize no one wants to dance with you. Bill said some potential bidders might be deterred from participating in this lease sale because of protest from citizens who don’t want the refuge disturbed. One of the places they’ve applied that pressure is on banks, and they succeeded in getting the largest banks in the U.S. and Canada to pledge not to finance drilling in the refuge. But public pressure is just one part of that story. In a November 2020 piece in Oil Price dot com, analyst Irina Slav made the argument that big banks wouldn’t have wanted to finance drilling in the refuge no matter what the public thought, because it doesn’t make economic sense. She wrote that the barrels of oil lying beneath the coastal plain of the refuge—quote— “may have been attractive a decade ago. Now, nobody needs them, which makes drilling in the Arctic largely a moot point. All forecasts about the near, medium, and long term point towards falling oil demand, and the prospect of falling oil demand is not exactly conducive to deciding to spend more money on new drilling, especially in high-cost regions such as the Arctic National Wildlife Refuge.” End quote. But despite that, Alaska’s state-owned economic development corporation has heeded Bill’s advice, and may spend up to 20 million dollars bidding on leases in the refuge. 

AMY: This is a high risk area to start doing new drilling and that I mean, we're in the middle of an oil glut. And it's not like we like these companies are like, yeah, we really need to go get more oil. They're having a hard time getting the oil moving that they already have. Why should the State of Alaska, why should the people of the state of Alaska, put their money on the line for something that private industry is saying “you know what, we don't really think it's a good risk.”

BILL: It's all we have. You know, we don't evaluate, do we go to Russia and do some exploration over there, or do we go to the U.S. Gulf Coast? We don't have that. This is our only show. And so so we can't really equate us with for-profit companies because they have all the options and you know, that they want as far as where they want to go. This is the only show we've got.

AMY: But then you're asking the state to act like a for profit company in order to get involved in the leasing process. I guess it's a little hard for me to compute how in a, in a pretty conservative leaning state like Alaska, we're going to have the state come in and say, you know what, forget, forget the free market. The free market doesn't want this. We government are going to come in and take action.

BILL: Yeah, and we're absolutely not saying that. What we're saying is if there are if there somebody that outbid us, hallelujah, that's great. But if there are no bidders at all. We need we need to step up and be and be part of that.

AMY: Maybe I’m being dense here, but I just don’t see how that’s not the government deciding to place a bet that the free market has decided is not worth the risk. And maybe there are times the government should do that—but is a high-cost, high-risk drilling in an undeveloped wildlife refuge to get at a commodity that’s in a state of oversupply one of those times? Bill said he believes Alaska needs to diversify its economy, and it’s trying to do that, but he also believes they need more oil to fund that process. He talked a lot about life in rural Alaska, where there’s a dire need for things that oil money helps to pay for. Education. Flights coming in with food and medicines. And even just basic services like running water, or a sewer system. Things that most people in the United States would not tolerate living without even just for a few days.

BILL: So I look at us trying to catch up with what's available, just taken for granted someplace else. I want to make sure that we continue to maintain that level or as close as we can, that level of service to all of Alaska, regardless of where you live.

AMY: And this is how the battle over drilling in the refuge becomes about something much bigger. Because we’re having this same debate on a planet-wide scale. Bill wants Alaska to catch up with the rest of the country, and feels justified in drilling for more oil to make that happen. And that’s exactly what developing countries around the world are saying to the wealthier countries: you all already burned a bunch of oil, and pulled yourselves up to a higher standard of living in the process. Now it’s our turn. It’s a legitimate argument—in fact, it’s one of the issues at the heart of the decades-long global climate change talks. But it’s also an argument that can be abused. It can be used as an excuse for continuing down a familiar path, even if it’s a dead-end, and perpetually putting off facing the hard truth that we simply have to get off of oil. And the longer we wait, the harder it will be for everyone.

AMY: Do you believe that human-caused climate change is happening and is is a thing that is affecting Alaska?

BILL: Oh, without a doubt. Absolutely. There's no question, we are ground zero on that. There's no question about that.

AMY: Then how do you square that with putting more money into getting more fossil fuels out of the ground? Because I know that there's the concern about getting enough money for Alaska, but it isn't the only way that Alaska could get money. 

BILL: What are the other ways, Amy? What are the other ways we're going to get money?

AMY: I didn’t have a good answer to that. But I don’t think it’s because there aren’t any. It’s just that economic development possibilities in Alaska is not my area of expertise. Still, I take Bill’s point. Solving a massive budget shortfall is really hard, and if the state fails to solve this, people will suffer. But if we just continue with the status quo, people will suffer too. They are suffering. And there’s the conundrum of the climate crisis in a nutshell: this problem asks us to accept some amount of suffering now in order to minimize suffering later. And one thing all of us humans have in common is that we’re not very good at that.

MUSIC

AMY:So let’s reconnect to our timeline here: we’ve got four lawsuits in motion, a lease planned for January 6th, two Alaska leaders saying publicly that nobody seems to want those leases, and a new presidential administration coming in on January 20th. I asked law professor Sarah Krakoff what she thought was going to happen next.

AMY: Is there any chance that one of these lawsuits could, could before January 6th be something could happen, there could be some kind of injunction or some other fancy legal word that I don't understand, that says no more action possible on this until something else gets seen by the courts?

SARAH: I've wondered about that. And I was wondering if the plaintiffs would file some sort of motion for a temporary restraining order. And they might, they might do that as a way to call the court's attention to what's going on. I don't know, so we'll see. It'll be interesting to see what happens in the next days and weeks with the litigation.

AMY: I talked to Sarah on December 4th 2020. Eleven days later, on December 15th, I called up Brook Brisson [BRIS-uhn], an attorney in Alaska.

AMY: Can you walk me through what your day has been like? What happened today?

BROOK: We just filed a motion for a preliminary injunction on behalf of the Gwich'in Steering Committee and 12 allied groups asking the court to stop the Bureau of Land Management from issuing leases in the coastal plain of the Arctic National Wildlife Refuge or from authorizing seismic on the coastal plain of the refuge.

AMY: So, pretty much exactly what Sarah said might happen, did happen. Where does that leave us? Find out after this short break.

BREAK #2

PROMO SWAP: THE WILD read by Nick

AMY: Welcome back, I’m Amy Martin, and this is our end of 2020 look at what’s going on with the fight over drilling for oil in the Arctic National Wildlife Refuge. I’m talking to Brook Brisson, the senior staff attorney at Trustees for Alaska, a public interest law firm based in Anchorage. They represent the Gwich'in Steering Committee and 12 supporting groups in one of the lawsuits aiming to stop drilling in the refuge. On December 15th, she asked the court in Alaska for a preliminary injunction and a temporary restraining order. I asked her to explain what that means in layman’s terms.

BROOK: I think the easiest way to think about these is the court pauses any action and just puts a hold on it while they decide the case.

AMY: Brook says they asked for this pause because events on the ground are moving quickly. 

MUSIC

AMY: Not only has the lease sale been scheduled for January 6th, there's also been an accelerated push for seismic exploration in the coastal plain. We talked about seismic exploration back in season three of our show—it's what you do before you drill, to figure out where pockets of oil are buried underground. It involves big trucks moving in a grid-like pattern across the tundra, sending shockwaves down through the ground. This past fall, the Kaktovik Iñupiat Corporation submitted an application to do seismic exploration this winter. The application covers an area of 847 square miles—that's a little bigger than the Great Smoky Mountains National Park, just for reference. It describes a mobile camp for up to 180 people, seven to nine fuel tanks holding thousands of gallons of fuel each, a temporary airstrip, thumper trucks, and more. That's a whole lot of big machines and people moving around on a pristine landscape used by denning polar bears in the winter, newborn caribou calves in the summer, and a host of other Arctic creatures of the land, water, and air. So Brook's motion asks the court to stop this seismic exploration, and the lease sale planned for January 6th, until her clients have had their day in court.

AMY : What's the next step? When will you know what the judge is thinking?

BROOK: Well, we won't know until we see a ruling.

AMY: OK.

BROOK: You kind of wait and watch your email until and hopefully see a ruling come through for you.

AMY: And, by the end of the day on the 15th, it was clear that Brook wasn't going to be the only watching for that email. Attorneys for three out of the four cases underway here filed motions for temporary restraining orders, preliminary injunctions, or both that day. So in order for the seismic exploration and the lease sale to proceed, the judge in federal district court in Alaska would have to say no to three different requests to press the pause button. But that could happen. The court could say no to all three of the motions that were filed. I asked Brook what would happen then.

BROOK: So if the court doesn't grant the motion, our case still proceeds. And this is not this is not an ultimate ruling on the case. And we'll still have to present all of our arguments about why the program violates the law. And a court will still be able to issue a ruling and in our complaint when we first filed the case, we asked that the court vacate the leasing program and any decisions issued based on it, including leases and permit authorizations, so those are, those are absolutely still on the table either way. 

AMY: But if the court rules against these motions, and the lease sale and seismic exploration proceed as planned until the cases are heard, things could get a lot more complicated. If a company or the State of Alaska ends up holding a lease, it could be hard for the plaintiffs to get that revoked. And if seismic exploration moves forward, it could impact the land, water and all the life on the coastal plain for a long time. For Vebjørn Aishana Reitan, those impacts are personal. The permit to do seismic exploration is officially called “the Marsh Creek Seismic Proposed Action.” For most of us, that title doesn’t mean much, but when I read it to Vebjørn, here's what it called to mind for him.

VEBJØRN: I remember when, when I was young, we would go there and we'd camp out there, hunt caribou. When my grandfather was alive too, we were maybe three boats there the last time I remember, and we harvested a bunch of caribou. I was really, really young, shot a bunch of ptarmigan, saw something we thought was muskox, if not a brown bear. So that was very interesting.

AMY: Yeah, I think that this is so interesting to hear you talk about it, because most people well, I think most people...you see this name on a government document that says Marsh Creek. And it's like, it's just, what is that? You know? But for you, it's these really tangible memories of animals and people and, and the place. If it does go through and they're able to do seismic this winter, what do you know about just from your own experience of how that will affect denning polar bears or other animals that are there in the wintertime? Do you think it will have much effect or do you think the animals will be just all right, kind of doing their thing?

VEBJØRN: From my understanding of polar bears, they're very sensitive to. What happens under their feet, like they walk on ice a lot and they're able to to sense a lot through vibration and movement that they that they feel when they're moving around. So they are very sensitive animals. Like you, you also experienced that, I'm sure when we were, we were on the plains that it's very quiet at times. So the plains are a place with very little input like for your senses. It's like a very quiet place, then you, you sense more, perhaps. And I don't know if that's factual or anything, but I just feel like that would be, that would make sense for me at least. I would count on them being very sensitive animals and disturbing them would be quite easy.

MUSIC

AMY: Polar bears don’t hibernate, but mother bears do stay in their dens with their newborn cubs during the long winter months. Over the last couple of years, an entire subplot of the refuge story has been unfolding around the impact of exploration and drilling on these maternal dens. Studies have been done, and withheld, and then released only, some say, to be ignored. We’ll share some links about all of that on our website, but here’s what we can say for sure, according to a 2020 study by the US Geological Survey: as sea ice declines, polar bears in northern Alaska are increasingly making their dens on land instead of ice, and a lot of them are making those dens on the coastal plain of the Arctic National Wildlife Refuge. Polar bears are listed as threatened under the Endangered Species Act, and the coast of the refuge is turning out to be key habitat for them. For Vebjørn, the thought of losing these iconic animals is just one of the reasons drilling feels wrong, even though it's his own village corporation, the Kaktovik Iñupiat Corporation, or KIC, that submitted the application for seismic exploration.

AMY: I just wonder how that, that feels to you or your family, just like does that make it harder or is it some way maybe easier to accept it? Because it's like, well, I guess some people in our community actually want this? Or how does that feel?

VEBJØRN: The way I see it, our community is divided on the issue of oil development. The leadership of KIC, the way, the way I understand it is mostly for oil development. But there is a large portion of the population of Kaktovik that is against oil development. I'm not exactly sure how KIC decided that it would pursue a seismic exploration. But like my mom, for example, as a shareholder, and I'm also a shareholder of KIC And I don't remember us being asked if we would like our corporation that were shareholders of to pursue a seismic exploration.

AMY: I have to jump in here with another one of these “I tried” statements. I reached out multiple times to Matthew Rexfor d of KIC, who I also spent time with for season three of our show. And I tried to talk to one of the leaders of the Arctic Slope Regional Corporation, the much bigger Native corporation with a lot of influence on oil and gas projects in northern Alaska. Neither of them responded to me. I'll admit, that's frustrating. But at least in Matthew's case, because he lives right there in Kaktovik, I sort of get it, too. The village is small. Like, 250-ish people. And the eyes of the world are on this place. I'm sure it gets exhausting to explain yourself to outsiders. And to each other.

VEBJØRN: There are some people that would that would happily drive a bulldozer and tearing up the tundra. But I would never be happy with a job like that.

AMY: I wonder what it will do, what it could do to the community just in terms of friendships and other relationships? I mean, do you feel like you would feel...if you picture drilling happening on the coastal plain in two years, say, and you go back and you run into friends and family members and just other people there, like, what it would to your relationships if drilling goes forward.

VEBJØRN: I guess a lot of people would be happy that they finally got through with their or with their wish wish of getting development, I would be I would be very sad and I imagine a lot of other people would be sad as well. But I think that would be kind of end of the discussion in some way about that. I think Inupiat people are very….they shy away from conflict a lot more than I think other people do. Or it's very traditional not to not to talk about problems in public, I guess. So I imagine it would go quietly and some people would be sad.

AMY: I asked him to imagine the opposite outcome, that oil development in the refuge gets shut down for good.

AMY: Do you think that the people who want oil development would be able to still be kind to you and be open to you, or would there be a real barrier there?

VEBJØRN: I would, I would invite them to have a discussion about another subject and leave matters where they were, and continue as friends and family. I hope that there wouldn't be sore losers or winners in the community, no matter what way the decision goes.

AMY: You don't feel like it would, like, ruin your relationships necessarily.

VEBJØRN: No, I want to have a good relationship with everybody in Kaktovik or that would be ideal.

AMY: That'd be possible even if drilling goes forward, it wouldn't it wouldn't make you feel like betrayed and like, I can't talk to these people. You could still be open hearted to them in that scenario.

VEBJØRN: They're they're family, I guess. You can disagree and you might say things that are hurtful, but I wouldn't, I wouldn't wish anything bad upon anybody, anybody in Kaktovik, just because we got oil development.

AMY: That's really touching to me, actually, when everything is so ugly and divided, I wish more people had that generosity of spirit.

MUSIC

AMY: Again, we were talking in that intense four days in early November between election day on Tuesday, and Saturday, when the definitive results came in. The tension was just building, you could feel people getting pulled even further to their opposing camps than they already were. And here's 24-year-old Vebjørn, with a place he loves dearly hanging in the balance, saying he's not going to let this controversy ruin his relationships if things don't go his way.

MUSIC

AMY: This story continues to unfold in real time. Just while we’ve been finishing this episode, the Bureau of Land Management has removed about a third of the land they originally made available for leases on the coastal plain. And President-Elect Joe Biden announced that he planned to nominate Representative Deb Haaland to lead the Department of the Interior. If confirmed, she would be the first Native American cabinet member, ever, and both she and Biden have been very clear about their opposition to drilling in the refuge. But, the Congressional mandate for a lease sale before the end of 2021 still stands, and we don't know which party will be controlling the U.S. Senate yet. Here at Threshold, we’ve invested a lot trying to understand this story and communicate all the different layers to you as best we can, and there’s no way we’re going to let this drop now. So, stay tuned. And thanks for listening.

CREDITS

Funding for this episode was provided by  Montana Public Radio, the Park Foundation, the High Stakes Foundation,  and by you, our listeners. Join our community at threshold podcast dot org.

Our team here at Threshold includes Eva Kalea, Nick Mott Caysi Simpson, Taliah Farnsworth and Angela Swatek. Special thanks to our board members: Caroline Kurtz, Dan Carreno, Hana Carey, Kara Cromwell, Katie deFusco and Matt Herlihy. Our music is by Travis Yost.