Aug 18, 2020 - Energy & Environment

How Biden could thwart Trump's Arctic push

Biden, Trump and the earth

Photo illustration: Sarah Grillo/Axios. Photos: Bastiaan Slabbers/NurPhoto via Getty Images

The decadeslong fight over drilling in the Arctic National Wildlife Refuge is nowhere near over, despite the Interior Department taking a big step Monday toward allowing development.

Catch up quick: The Interior Department issued a final plan — called a record of decision (ROD) — to allow exploration in the refuge's 1.6-million-acre coastal plain.

Why it matters: There could be billions of barrels of recoverable oil there, and backers say it can be tapped with manageable effects. But it's an ecologically sensitive place, and opponents call safe development a fantasy.

  • Interior could begin selling leases before the end of this year, although any actual production is likely a decade off.

The intrigue: Former Vice President Joe Biden's campaign says it would look to thwart drilling if he's elected. But that's tricky, given that a 2017 law requires leasing in the Arctic National Wildlife Refuge.

  • Nonetheless, there are several levers Biden could pull to impose lengthy delays or reimpose restrictions, attorneys and others who oppose drilling tell Axios.

The big picture: One thing to keep in mind is that litigation over Interior's environmental analyses and decisions is a certainty.

  • That means a Biden administration could abandon its predecessor's legal posture in the cases.
  • And tapping oil on federal lands is a multiphase thing, with administrative decisions needed around leasing plans, issuance of drilling permits and more.

How it works: "[P]laintiffs will almost certainly seek a preliminary injunction in court to stop any sale from going forward. And a new administration could decline to defend the ROD in court," Jayni Foley Hein, an adjunct law professor at NYU, tells Axios in an email.

  • "Second, it seems very likely that a Biden administration could seek to reopen the [National Environmental Policy Act] analysis, and it could also decline to issue permits to drill based on flaws in the ROD and underlying analysis," says Hein, who is with the school's Institute for Policy Integrity.
  • Kristen Monsell, a lawyer with the Center for Biological Diversity, offers a similar take, and also notes that a future administration could "order rejection of bids and a cessation of the issuing of relevant permits."

Yes, but: Interior Secretary David Bernhardt, on a call yesterday with reporters, declined to predict what the courts will do.

  • But, Bernhardt, who's also a lawyer, added: "I would not be going forward if I was not very comfortable" with how the agency crafted the plans.

What to watch: There are other fronts in the fight.

  • Hein says it's possible that a new administration could use the Antiquities Act to designate the region as a national monument.
  • And look for legislative efforts to reimpose restrictions if Democrats take control of the Senate.

The bottom line: For supporters and opponents of ANWR development, the election will have big consequences.

  • A Biden White House could do plenty to slow or stop development, while officials in a second Donald Trump term would have considerable power and time to move it much closer to reality.
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