What does the Willow Project approval mean for the future of public lands policy?

Tuesday, December 26, 2023
  • The following is the opinion and analysis of the writer.
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On November 9th, a federal judge upheld the Biden Administration’s approval of the Willow Project in the National Petroleum Reserve in Alaska (NPR-A). This order by the court is related to two cases challenging the Bureau of Land Management’s March 2023 Record of Decision (ROD) for the Willow Project, which approved oil production on leases held by ConocoPhillips Alaska.[1]


Background on the Willow Project


The NPR-A on Alaska’s North Slope consists of 23.6 million acres and is the United States’ single largest unit of public land. Previously known as the Naval Petroleum Reserve No. 4, in 1923, then-President Warren Harding had set aside the area as an emergency oil supply for the U.S. Navy.[2] In 1976, administration of the Reserve was transferred to the Department of the Interior’s Bureau of Land Management (BLM) and renamed the National Petroleum Reserve in Alaska. In 1980, Congress authorized leasing and development of the area.[3] The area is home to “two caribou herds, many raptors, millions of migratory birds, tens of thousands of molting geese, large concentrations of beluga whales and other marine mammals, vast wilderness landscapes, wild rivers, and rich geological, scientific, archaeological, and paleontological sites.”


Between 1999 and 2019, the BLM offered almost vast amounts of land in the NPR-A for oil and gas leasing. With the leases that ConocoPhillips obtained came broad authorization to conduct oil and gas exploration and development. The BLM imposes regulations which provide that oil and gas lessees must file plans of operations before conducting activities pursuant to the lease, including drilling and site development activities, which the BLM must approve. ConocoPhillips filed a Master Development Plan (MDP) for the Willow Project to comply with those requirements, which was then approved by the BLM. This being a major federal action subject to the requirements of National Environmental Policy Act, the BLM and ConocoPhillips prepared and published an Environmental Impact Statement (EIS). The EIS is a document that outlines the impact of a proposed project on its surrounding environment.[4] The agency later published the ROD approving the MDP with some reductions to the scope of the Willow Project.[5]


According to ConocoPhillips, “Willow is the ideal project for a rational energy policy that supports the energy transition and U.S. energy security by producing reliable, low emissions-intensity oil from a petroleum reserve.”[6] The project would produce up to 180,000 barrels of oil per day at its peak.[7] According to the federal government, it could release over 260 million metric tons of greenhouse gas emissions. The Willow Project will be the largest oil development on federal land in decades.[8]According to the ROD, the Willow Project will consist of three drilling sites and related infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads connecting the Project infrastructure, and pipelines.[9]


The Lawsuit Trying to Stop the Willow Project


Plaintiffs Sovereign Inupiat for a Living Arctic and the Center for Biological Diversity brought the suit pursuant to the Administrative Procedure Act. Under the Act, a reviewing court shall set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”[10] The court looked at the National Environmental Policy Act, the Naval Petroleum Reserves Production Act, the Alaska National Interest Lands Conservation Act, and the Endangered Species Act when making its decision. Judge Gleason, in charge of the decision, found that the government’s analysis was consistent as to both the environmental laws and the goals Congress established for the NPR-A.[11] 


In its legal briefs, ConocoPhillips notes the benefits of the project, including an estimated $7.6 billion in revenue for the U.S. Treasury over the life of the project, and 2,500 local jobs during construction. Some of Alaska’s largest Native associations and for-profit Native corporations have endorsed the project along with most local and regional governments on Alaska’s North Slope. On the other hand, climate activists have said that allowing the Project to go forward would breach President’s Biden’s campaign promise to stop new oil drilling on federal lands.[12] Although Biden has been forced to sign some limited oil and gas leases through the courts or Congress, the Willow Project would be one of the few oil projects that Biden has freely approved.[13] In addition, local groups worry that the project may harm local animal populations that are key to the environment, degrade the region’s air quality, and lead to spills, leaks and blowouts that can come with major oil development.[14]


Can This Action Change?


In response, Biden administration officials have said that their options were limited by the law that governs the NPR-A and the leases that ConocoPhillips has held since long before the Biden Administration took office. The lease grants the lessee the “exclusive right to drill for, mine, extract, remove and dispose of all the oil and gas…in the lands described.”[15] Additionally, in a court case, Mobil Oil Exploration and Producing Southeast v. United States, the Supreme Court found that “the government’s failure to grant lessees permission to conduct oil and gas exploration and production activities may be a breach of the lease requiring compensation.” If the project was blocked, the company could have sued and still been able to develop the project anyway.


One group particularly angered by the Biden administration’s decision are young people. According to the Sunrise Moment, a youth-led climate change advocacy group, “President Biden’s decision to move forward with the Willow Project abandons the millions of young people who overwhelmingly came together to demand he stop the project and protect our futures.” Specifically on TikTok, many videos were posted by young activists with the Hashtag #StopWillow and #StoptheWillowProject which got hundreds of millions of views.[16] By approving the Project, Biden risks losing the support of young people who were a strong point for him in the 2020 election. Prior to the election, Biden campaigned on an ambitious climate platform which led to him signing the Bipartisan Infrastructure Law and the Inflation Reduction Act, both of which made major investments to tackle the climate and environment.[17] One thing to note is that although climate change is at the forefront of young people’s minds, polls show that climate change lags behind other subjects like traditional pocketbook economic issues and other social issues that will motivate voters.


However, efforts to stop the Willow Project have not ceased. The Project can only be built during the winter construction season as it needs ice roads to build the rest of the oil pipeline and other infrastructure.[18] Depending on the weather, the construction season could end sometime in April. On December 1, Judge Gleason rejected requests by interested groups to block winter construction work while an appeal of the case is pending.[19]


[1] Sovereign Inupiat for a Living Arctic v. Bureau of Land Management, No. 3:23-CV-0058-SLG, 2023 WL 7410730, at *1 (D. Alaska Nov. 9, 2023).

[2] Bureau of Land Management, National Petroleum Reserve in Alaska, https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about/alaska/NPR-A.

[3] Audubon, Alaska’s National Petroleum Reserve, https://www.audubon.org/conservation/alaskas-national-petroleum-reserve.

[4] Tiffany Middleton, What is an Environmental Impact Statement?, American Bar Association (March 2, 2021) https://www.americanbar.org/groups/public_education/publications/teaching-legal-docs/teaching-legal-docs--what-is-an-environmental-impact-statement-/

[5] U.S. Department of the Interior, Interior Department Substantially Reduces Scope of Willow Project, https://www.doi.gov/pressreleases/interior-department-substantially-reduces-scope-willow-project.

[7] Clark Mindock, ConocoPhillips’ $8 billion Willow project approvals upheld by US judge, Reuters (Nov. 10, 2023), https://www.reuters.com/legal/government/conocophillips-8-billion-willow-project-approvals-upheld-by-us-judge-2023-11-10/.

[8] Trine Jonassen, Judge Upholds Biden Administration’s Approval of the Massive Willow Oil-Drilling Project in Alaska, High North News (Nov. 15, 2023), https://www.highnorthnews.com/en/judge-upholds-biden-administrations-approval-massive-willow-oil-drilling-project-alaska.

[9] Sovereign Inupiat for a Living Arctic v. Bureau of Land Management, No. 3:23-CV-0058-SLG, 2023 WL 7410730, at *3 (D. Alaska Nov. 9, 2023).

[10] 5 U.S.C. § 706(2)(A).

[11] Liz Ruskin, Judge rules Willow oil project in Alaska’s Arctic can proceed, NPR (Nov. 9, 2023), https://www.npr.org/2023/11/09/1212016595/judge-rules-willow-oil-project-in-alaskas-arctic-can-proceed

[12] Becky Bohrer, Judge in Alaska upholds Biden administration’s approval of the massive Willow oil-drilling project, Associated Press (Nov. 9, 2023), https://apnews.com/article/alaska-willow-oil-drilling-project-upheld-abf128e53eaf053005bffe771b7af574.

[13] Lisa Friedman, How Biden Got From ‘No More Drilling’ to Backing a Huge Project in Alaska, New York Times (March 13, 2023), https://www.nytimes.com/2023/03/13/climate/willow-biden-oil-climate.html#:~:text=%E2%80%9CPresident%20Biden's%20decision%20to%20move,led%20climate%20change%20advocacy%20group.

[14] Timothy Puko, What is Willow? How an Alaskan oil project could affect the environment, Washington Post (April 22, 2023), https://www.washingtonpost.com/climate-environment/2023/03/17/willow-project-alaska-oil-drilling-explained/#SBIYMR6DYZGWZPJGMZNY5Z4TI4-3.

[15] Congressional Research Service, The Willow Project: History and Litigation (2023).

[16] Julia Jacobo, Alaska oil drilling Willow Project approved, despite viral protests, ABC News (March 14, 2023), https://abcnews.go.com/US/willow-project-confirmed-despite-protests-experts-explain-young/story?id=97742724

[17] Ximena Bustillo, Young People think climate change is a top issue but when they vote, it’s complicated, NPR (Sept. 18, 2022), https://www.npr.org/2023/09/18/1200068222/climate-change-young-voters-biden-trump-economy.

[18] Ella Nilsen, The Willow Project has been approved. Here’s what to know about the controversial oil-drilling venture, CNN (March 14, 2023), https://www.cnn.com/2023/03/14/politics/willow-project-oil-alaska-explained-climate/index.html

[19] Becky Bohrer, Judge rejects calls to halt winter construction work on Willow oil project during appeal, Anchorage Daily News (Dec. 2, 2023), https://www.adn.com/business-economy/energy/2023/12/01/judge-rejects-calls-to-halt-winter-construction-work-on-willow-oil-project-during-appeal/.