Description: Challenge to fill permit for wetlands in National Petroleum Reserve in Alaska for drilling site.
Kunaknana v. United States Army Corps of Engineers
Filing Date Type File Action Taken Summary 05/04/2016 Motion Download Settlement reached and fees petition withdrawn. Plaintiffs and Federal Government Reached Settlement on Attorneys’ Fees in National Petroleum Reserve Wetlands Permit Case. On May 4, 2016, the plaintiffs in a lawsuit that succeeded in requiring the United States Army Corps on Engineers to conduct supplemental environmental analysis for a wetlands fill permit in the National Petroleum Reserve withdrew their petition for attorneys’ fees and other costs under the Equal Access to Justice Act. The plaintiffs said that reached an agreement with the federal defendants that settled their request for fees and costs. 08/27/2015 Petition Download Petition for costs and fees submitted by plaintiff. Plaintiffs Seek Attorney Fees from Corps of Engineers in Alaska Fill Permit Case. Plaintiffs who challenged issuance of a fill permit for a drill site in the National Petroleum Reserve in Alaska filed a petition for costs and fees under the federal Equal Access to Justice Act (EAJA). The federal district court for the District of Alaska upheld the permit in 2015, but only after it first remanded the proceeding to the United States Army Corps of Engineers (Corps) in 2014 for a reasoned explanation for the Corps’ decision not to conduct a supplemental environmental analysis. The supplemental analysis subsequently conducted by the Corps included a discussion of whether new information about climate change warranted preparation of a supplemental environmental impact statement and concluded that it did not. In their fees petition, the plaintiffs contended that they were prevailing parties for purposes of EAJA because the court was only satisfied that the Corps had satisfied its NEPA obligations after the Corps completed the supplemental analysis required by the court. 05/26/2015 Order Download Second order re motions for summary judgment issued. The federal district court for the District of Alaska upheld the approval by the United States Army Corps of Engineers (Corps) of a permit to fill wetlands in the National Petroleum Reserve in Alaska for development of a drilling site. The Corps prepared a supplemental information report (SIR) after the court held in 2014 that the Corps had not provided a reasoned explanation for its decision not to prepare a supplemental environmental impact statement (SEIS) to update a 2004 EIS. Pursuant to an agreement between the parties and an order of the court, the SIR included a discussion of whether new information about climate change necessitated preparation of an SEIS. The Corps considered both the impact of climate change on the project and the project’s impacts on climate change. The court agreed with plaintiffs that the Corps had conducted “only a minimalist review” of the impacts of climate change. Nevertheless, the court found that this assessment was adequate given the absence of detailed instructions from the court regarding the analysis the Corps should have performed and given that the
plaintiffs had not identified specific climate change information the Corps should have considered. The court also found that the Corps’ determinations that other new information and changes to the project did not require an SEIS were not arbitrary and capricious, and that the Corps had an adequate basis for its determination that the project was the Least Environmentally Damaging Practicable Alternative as required under Section 404 of the Clean Water Act. Judgment was entered for the defendants on May 29, 2015.
07/22/2014 Order Download Order re further proceedings issued. In July, the court issued an order regarding further proceedings in the case. The court opted not to vacate the permit because stopping ongoing construction would have disruptive consequences. On remand, the court directed the Corps to consider post-2004 information on how climate change could affect the project. The court denied the challengers’ request for a public hearing, noting that the National Environmental Policy Act did not require a public hearing for a determination of whether to prepare a supplemental environmental impact statement. The Corps was required to submit its determination on remand by August 27. 06/17/2014 Memorandum Download Memorandum submitted by ConocoPhillips Alaska, Inc. in support of motion regarding further proceedings. 06/17/2014 Motion Download Motion filed by ConocoPhillips Alaska, Inc. regarding further proceedings. The parties to the lawsuit challenging the granting of a wetlands permit to ConocoPhillips Alaska, Inc. by the United States Army Corps of Engineers could not
agree on a course for further proceedings after the federal district court for the District of Alaska ruled that the Corps had not provided an adequate explanation for its decision not to prepare an SEIS. ConocoPhillips requested a remand without vacatur, asking that the remand period be limited to 90 days and that the scope of the remand only include remedying the errors identified by the court in the Corps’ rationale and addressing post-2004 climate change information. The Corps also requested a 90-day limited remand. Plaintiffs, on the other hand, argued that vacatur of the permit was warranted.
06/17/2014 Motion Download Defendants' motion regarding additional proceedings submitted. 06/17/2014 Motion Download Submission on further proceedings submitted by plaintiffs. 05/27/2014 Order Download Plaintiff's motion for summary judgment granted. Plaintiffs commenced two actions in the federal district court for the District of Alaska alleging that the United States Army Corps of Engineers (Corps) did not comply with NEPA and Section 404 of the Clean Water Act in issuing a permit to fill wetlands in the National Petroleum Reserve in Alaska. The permit was required for ConocoPhillips Alaska, Inc. to develop a drill site. The court ruled that the Center for Biological Diversity did not have standing to bring the action. In the other action, the court granted partial summary judgment to the plaintiffs to the extent of finding that the Corps had not provided a reasoned explanation for its decision not to conduct a supplemental environmental analysis. The court did not resolve the Clean Water Act claim and asked the parties to conduct briefing on how the action should proceed. Among the issues the court will consider after further briefing is the extent to which the Corps should consider new information about the potential impacts of climate change on the project.