Like wilderness, but need oil? Securing America's Future Energy Act puts little between accident-prone oil companies and the Arctic National Wildlife Refuge.

In May 2002 the Senate narrowly rejected Securing America's Future Energy (SAFE), a bill that would have lifted the oil drilling ban on an ecologically vital section of the Arctic National Wildlife Refuge (ANWR). However, the American drive for greater oil-and-gas-resource self-reliance and ANWR's relatively high yield potential combine to make future congressional noise about lifting the ban probable, if not inevitable. This Comment first tracks the history of ANWR and describes the two main positions in the vigorous debate on whether to partially lift the ANWR drilling ban. This Comment then evaluates SAFE's environmental protection language and its likely ability to protect ANWR from the risks inherent in the oil and gas recovery process. Third, this Comment spotlights the track record and environmental policy of BP Exploration (Alaska) (BPXA), one of the biggest Alaska oil developers, as illustrative of the danger development poses in the fragile arctic ecosystem--even development carried out with the best of possible environmental intentions. Finally, this Comment concludes that SAFE's environmental provisions are too loose and unspecific to afford the ANWR ecosystem much protection from oil and gas development, despite the oil companies' commitments to low-impact development.

I. INTRODUCTION

II. BACKGROUND OF ANWR COASTAL PLAIN CONTROVERSY
    A. Brief History of Oil and Federal Wildlife Reserves in
       Northern Alaska
        1. Creation of the Arctic National Wildlife Range
        2. Wilderness Act Creates Potential Safety Zone for 1002
           Area
        3. The Alaska National Interests Land Conservation Act
           of 1980
    B. America's Serengeti: ANWR's Ecological Significance and
       Fragility
        1. Porcupine River Caribou Herd
           a. Development Could Affect Porcupine Caribou Herd More
              Than Central Arctic Caribou
           b. Significance of the Porcupine Caribou Herd to
              Gwich'in Subsistence Lifestyle
        2. Polar Bears
        3. Migratory Bird Species
        4. Muskoxen
        5. Fragility of Life on the ANWR Coastal Plain
        6. Inherent Wilderness Character of Entire ANWR,
           Including the Coastal Plain
    C. Thirty Years of Saudi Oil: ANWR Coastal Plain Oil
       Potential
        1. Possible Oil Bonanza
        2. Increasing Domestic Production Will Reduce Dependence
           on Middle East Oil
        3. Technology Allows Greater Recovery with Less
           Environmental Impact
    D. War on Terror

III. PROPOSED SAFE ACT OF 2001
    A. SAFE Would Lift the Ban on ANWR Coastal Area Oil Production
    B. Interpreting the Language of SAFE
        1. "Significant Adverse Effect"
        2. "Best Commercially Available Technology"
        3. "Site-Specific Effect Assessments, Regulations,
           Conditions, and Restrictions
        4. "Oil and Gas Leasing Program "Required
        5. Oil Drilling is "Compatible" with the Purposes of ANWR

IV. BP EXPLORATION (ALASKA), INC. AND THE ANWR COASTAL PLAIN
    A. Greenwashing
    B. Prudhoe Bay Operations
    C. Interior Secretary Must Restrict BPXA's Prospective
       ANWR Activities

V. CONCLUSION

I. INTRODUCTION

In August 2001, the House of Representatives sent the Securing America's Future Energy Act of 2001 (SAFE) bill to the Senate for consideration. (1) The House's approval of the bill, (2) which would repeal (3) the ban (4) on oil and gas production on the Coastal Plain of the Arctic National Wildlife Refuge (ANWR), further stoked the already red-hot controversy surrounding prospective development of ANWR's coastal plain, (5) provoking jubilation (6) and condemnation. (7) The Inupiat Indians of northeast Alaska, (8) the Bush administration, (9) the state of Alaska, (10) and the Teamsters Union (11) hailed the bill and ANWR oil and gas development as sensible energy policy--a way to stimulate the economy and reduce United States dependence on foreign oil. These proponents of development argue that the SAFE bill limits drilling on the Coastal Plain to 2000 acres--a tiny fraction of the 19 million--acre refuge. (12) On the other hand, wilderness proponents (13) contend that the plain's size belies its unique ecological significance as the "biological heart" of the refuge. (14) Critics of the bill add that the negligible amount of economically recoverable oil in ANWR's coastal plain does not justify industrializing what former President Clinton called "one of the last truly wild places on earth ... the Serengeti of the Americas." (15)

Questions of national security were bandied about in reference to the ANWR oil issue at the time of SAFE's passage before September 11, 2001. (16) Such concerns took on increased urgency following the terrorist attacks, which seem to have been motivated partly by the oil-guarding U.S. military presence in the Middle East. (17) Two senators even sought to attach energy amendments that would have mandated oil and gas leasing in ANWR to the defense authorization bill Congress passed in response to the attacks. (18) The Trans-Alaska Pipeline is the only path by which ANWR oil could reach the rest of the world; its appeal and vulnerability as a terrorist target glare in the wake of both September 11 and subsequent intentional (though apparently not terrorist-related) damage to the pipeline. (19) In short, lawmakers cannot separate energy policy consideration from national security as easily as they could before September 11. The Senate nonetheless shelved SAFE, its energy policy bill, immediately after September 11 to enact emergency national security legislation. (20)

It was unclear before September 11 how the (barely) Democrat-controlled Senate would handle H.R. 4. But the events of that day, as well as the powerful coalition of interests aligned in favor of developing the Coastal Plain for oil and gas production, may have nudged the Senate toward opening ANWR. (21) As written, SAFE requires the Interior Secretary to implement a leasing program, and gives her near-exclusive authority to decide to which developers the government will sell leases. (22) SAFE requires lessees to be "responsible," and gives the Secretary broad discretion to determine whether a prospective bidder is environmentally "responsible." (23) If SAFE becomes law, the Secretary will have to ensure that development of the ANWR Coastal Plain does not result in significant adverse effects on wildlife and the environment. (24) She would also have exclusive authority to distinguish "significant adverse effects" from insignificant adverse effects, the latter of which would be acceptable under SAFE. (25) BP Exploration (Alaska), Inc. (BPXA), the company currently responsible for forty-three percent of Alaskan oil production, has an abysmal environmental record in Alaska, yet is the loudest pro-ANWR development voice in the oil industry. (26) The company's employees have criticized its policies as dangerous both to field employees and the Arctic environment (27)--it has paid more than $20 million in civil and criminal penalties for its failure to report in a timely manner a subcontractor's illegal toxic waste dumping. (28) It averages more than one spill a day as part of its production routine in Prudhoe Bay--Alaska's largest oil development and production complex. (29)

To provide context for an analysis of the SAFE bill, this Comment explores the history of ANWR, and the still-developing issue of oil and gas production in the Refuge. Part II recounts the history of ANWR, including how Congress prohibited leasing of the Refuge's coastal plain for oil and gas development, but retained authority to permit leasing in the future. Part II also emphasizes the two traits that make ANWR's development so controversial--its ecological significance and its potential for abundant oil reserves--and illuminates the positions of each side of the debate. Part III analyzes the purpose and environmental protection standards of SAFE, and ponders the future of the bill in light of heightened national security concerns following recent terrorist attacks. Part IV details the daily operations and criminal history of BPXA, and discusses likely environmental effects of oil production in ANWR if conducted by BPXA. This Comment concludes that SAFE would probably permit the leasing of ANWR lands to BPXA, despite the company's crude oil-drenched environmental record. (30) Finally, this Comment suggests that if and when Congress opens ANWR to oil drilling, it should provide the Secretary with more specific environmental protection guidelines than those in the SAFE bill. If SAFE is passed as written, the Interior Secretary should subject companies like BPXA to rigorous conditions and restrictions.

II. BACKGROUND OF ANWR COASTAL PLAIN CONTROVERSY

When Congress established ANWR in 1980, (31) it precluded oil and gas development on about 8 million acres of the Refuge by declaring those acres a wilderness, (32) and on an additional 9.5 million acres by declaring those a wildlife refuge. (33) At the same time, Congress withheld a decision on whether to declare the 1.55 million acres of ANWR's coastal plain a wilderness pending further investigation into the environmental ramifications of oil drilling on the Alaskan Northern Slope. (34) Congress included section 1002 of the Alaska National Interest Lands Conservation Act (ANILCA), (35) which requires the Interior Secretary to thoroughly research the environmental ramifications of developing the ANWR Coastal Plain, to help Congress decide whether to permit oil and gas leasing. (36) The ANWR Coastal Plain is commonly called the "1002 Area," a reference to section 1002 of the bill that became ANILCA. (37) The findings made pursuant to section 1002 will determine whether the plain will remain an untouched, federally protected wilderness or become an industrial oil development and production complex. ANILCA section 1002 represents an intense, twenty-year-plus divergence between those who urge Congress to permit oil drilling on the ANWR Coastal Plain (38) and those who urge Congress to declare the disputed area wilderness. (39) Both sides of this controversy have strong arguments because the 1002 Area possesses both tremendous ecological significance (40) and potential as an important source of oil and natural gas. (41)

A. Brief History of Oil and Federal Wildlife Reserves in Northern Alaska

1. Creation of the Arctic National Wildlife Range

The United States government originally chose not to permit drilling on what is now ANWR expressly to preserve the region's wilderness. In 1960, Fred Seaton, as Interior Secretary for the Eisenhower administration, designated 8.9 million acres in the northeastern corner of Alaska the Arctic National Wildlife Range---a sanctuary for wildlife and wilderness conservation. (42) Seaton, motivated by the findings of a survey conducted by government scientists in 1952 and 1953, (43) established the range "to protect the unique wildlife, wilderness and recreational values" present there. (44) Thus, the current oil-development-free condition of ANWR is no accident--it is the deliberate result of United States wilderness-preservation policy in place since the 1950s.

2. Wilderness Act Creates Potential Safety Zone for 1002 Area

Congress opened another possible path to greater protection of the Arctic Range by passing the National Wilderness System Preservation Act of 1964. (45) The Act established the National Wilderness Preservation System, composed of "wilderness areas" to be designated by Congress, for the purpose of assuring that "an increasing population ... does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition." (46) The Act prohibits "commercial enterprise, permanent or temporary roads, mechanical transports, and structures or installations" in designated wilderness areas. (47) It also prohibits appropriation of natural resources in such areas after January 1, 1984. (48) By declaring the Arctic Range a wilderness area, Congress would preclude the possibility of oil development and production in ANWR; (49) therefore, opponents of drilling on the northern ANWR slope argue that Congress should legislatively designate the Coastal Plain a wilderness. (50)

3. The Alaska National Interest Lands Conservation Act of 1980

In 1980, Congress reaffirmed the national interest in preserving the coastal area of the northern Alaskan slope by enacting ANILCA. (51) This Act more than doubled the size of what had been called the "Arctic National Wildlife Range"--from 8.9 million acres to 19 million acres. (52) The Act also designated most of the original 8.9 million acres wilderness (53) and changed the name of the area from the "Arctic National Wildlife Range" to the "Arctic National Wildlife Refuge." (54) ANILCA's goals were to preserve and protect the coastal area's unique scenic and geological values, (55) provide rural residents the opportunity to continue their traditional subsistence ways of life, (56) and obviate the need for future protective legislation. (57)

Congress could have achieved these goals with respect to the entire ANWR by designating all 19 million acres of it a wilderness, and in fact the House version of the bill that became ANILCA designated more ANWR acreage wilderness than the version ultimately enacted. (58) Congress, however, passed up the opportunity to confer wilderness status on the coastal tundra, and instead authorized seismic exploration of the ANWR Coastal Plain to determine the location and extent of probable oil and gas reserves. (59) A 1979 version of the SAFE bill probably would have been enacted if the Senate Energy and Natural Resources Committee had not issued a report concluding that "uncertain" and "conflicting" information about the environmental effects of coastal plain development weighed against opening the area to oil drilling. (60) Unconvinced that the benefits of ANWR oil drilling would outweigh environmental costs, Congress prohibited development and production activities on the Coastal Plain, and saved for itself power to lift the ban. (61) While Congress did not want to foreclose the possibility of producing oil from the Coastal Plain, it recognized the area's unique ecological significance, (62) and thus conditioned development of the plain on a showing that such development would not significantly impact the environment or interfere with the subsistence uses of rural Alaskans. (63) To this end, Congress commissioned the Secretary of the Interior to conduct a baseline study to assess the potential oil and gas resources of the Coastal Plain, and to issue reports continuously on how oil development would impact wildlife and the environment. (64)

While ANILCA prohibited oil and gas development and production, (65) it also authorized exploratory activities to assess oil and gas resource potential in the 1002 Area, (66) and reserved for Congress the exclusive power to lift the ban on development and production. (67) Therefore, this statutory shield confers less protection from oil development on the Coastal Plain than wilderness designation would. (68) ANILCA demonstrates congressional. recognition of the environmental significance of northeastern Alaska by declaring most of ANWR a wilderness. (69) However, by retaining the option to lease the Coastal Plain for oil production, Congress subjected itself to years of intense lobbying pressure--both from oil industry apologists to exercise its power and lift the ban, (70) and from environmental advocates to declare the plain a wilderness. (71)

If Congress approves ANWR drilling--as SAFE would do (72)--ANILCA requires the Secretary to determine whether an environmental impact statement is required prior to approving each lease. (73) If the Secretary approves a lease sale, ANILCA also requires her to issue a statement explaining why the sale is "compatible with the purpose of the refuge." (74) A major purpose of the Refuge is to prevent disturbance of ANWR's wildlife populations, (75) in order to enable native Alaskans--such as the Gwich'in Athabascan Indians of northeast Alaska and northwest Canada (76)--to maintain their subsistence lifestyles.

B. America's Serengeti: ANWR's Ecological Significance and Fragility

Nearly the size of Maine, (77) ANWR contains one of the world's largest complete spectrums of arctic ecosystems. (78) ANWR's terrain covers three regions (from south to north): rolling forest, two-hundred miles of mountains called the Brooks Range, and the North Slope, (79) which gently slopes "northward from the Brooks Range to the Arctic Ocean." (80) The North Slope, or Coastal Plain, ranges from sixteen to thirty-four miles wide within the refuge (81) and hosts many species. (82) Wildlife on the Coastal Plain includes caribou, muskoxen, polar bear, sheep, wolves, foxes, wolverine, and 135 recorded migratory bird species. (83) The plain is especially significant as a birthing ground for the Porcupine River caribou herd, (84) whose traditional calving grounds encompass the entire 1002 Area; (85) maternity denning habitat for polar bears; (86) and as the preferred year-round habitat for muskoxen. (87) Oil drilling activities on the plain would disrupt the gestation and migration patterns of all of these species. (88) Foliage and vegetation in the 1002 Area is also vulnerable to the impacts of exploration and production activities, which cut deeper and last longer in an arctic marine climate than in lower latitudes.

1. Porcupine River Caribou Herd

Scientists say the population of the Porcupine River caribou herd has fluctuated between 100,000 and 180,000 over the past 25 years, and currently is approximately 120,000. (89) Usually the herd is dispersed over hundreds of miles in Alaska and Canada; however, abundant and rapid growth of nutritious plants occurs in the 1002 Area during the porcupine caribou herd's calving season, and the area tends to be relatively free of predators. (90) For these reasons, the entire porcupine caribou herd congregates in the 1002 Area to give birth and nurse its young. (91) Porcupine caribou tend to have lower calf production and adult survival rates than other caribou, and their calf survival rate rises when they are able to give birth on the traditional calving ground. (92) Permitting drilling in the 1002 Area will mean putting oil wells in the middle of the porcupine caribou herd's maternity ward.

a. Development Could Affect Porcupine Caribou Herd More Than Central Arctic Caribou

Drilling proponents point to the advent of oil production in Prudhoe Bay to the east of ANWR and a concomitant increase in the Central Arctic caribou herd population (93) as support for the proposition that development activity is better than bad for caribou--it's good. (94) However, several significant traits distinguish the Central Arctic caribou near Prudhoe Bay from the Porcupine River caribou in ANWR. First, while the porcupine caribou herd includes about 100,000 more caribou than the Central Arctic herd, its preferred calving area is on a much narrower section of the Alaska North Slope than that of the Central Arctic. (95) In addition, porcupine caribou typically occur in much larger groups than have ever been disrupted by petroleum development in Prudhoe Bay. (96) Therefore, when the porcupine caribou give birth on the ANWR Coastal Plain, more caribou are packed into a smaller space. (97) As a result, the porcupine caribou herd would have more problems avoiding oil development infrastructure than the smaller Central Arctic herd experiences in Prudhoe Bay. (98)

Second, Prudhoe Bay development did disrupt the movements of Central Arctic caribou. (99) Development drove the herd almost entirely out of its preferred calving ground by the time oil began to flow south from Prudhoe Bay. (100) Studies of Central Arctic caribou during the 1980s and 1990s showed that caribou that spent more time in or near the Prudhoe Bay oil fields gained less weight in the summer, and had higher calf mortality and lower pregnancy rates than caribou exposed to less development. (101) In addition, the studies showed that the caribou abandoned preferred habitats while calving in order to avoid roads and pipelines. (102) Oil development disruptions did not affect the Central Arctic herd's population because the population's few caribou had ample extra, undeveloped land on the 150-mile-long central Northern Slope to calf. Unfortunately, the greater density of the porcupine caribou herd and smaller area of the ANWR Coastal Plain could make the herd more susceptible to substantial development impacts than the Central Arctic herd in Prudhoe Bay. (103)

Finally, unusually warm weather on the North Slope contributed to a spike in the Central Arctic herd's population in the mid to late 1990s. (104) When winters are harsh and summers dry, as is more frequently the case on the North Slope, development activities disrupt caribou calving patterns. (105) The stress of colder temperatures, combined with the herd's vulnerability to development disruption, would probably preclude an Arctic Caribou-type population increase for the dense porcupine caribou herd on the narrow ANWR Coastal Plain.

b. Significance of the Porcupine Caribou Herd to Gwich'in Subsistence Lifestyle

For at least 27,000 years, the Gwich'in Athabascan Indians of northeast Alaska have subsisted primarily on porcupine caribou, (106) which the village's steering committee (107) describes as "essential to meet the nutritional, cultural and spiritual needs of our people." (108) Today, about 140 Gwich'in form the community of Arctic Village, (109) located immediately south of the ANWR border on the southern slope of the Brooks Range. (110) Unlike the Inupiat Indians, whose village location (111) on an island at the northern edge of ANWR (112) allows for heavy subsistence on whale, seal, and ocean fish in addition to caribou, (113) the inland residents of Arctic Village--separated from the Arctic Ocean by more than one-hundred miles and the Brooks Range (114)--must rely almost exclusively on caribou. (115) ANILCA prohibits the Interior Secretary from approving any oil development plan that would interfere with the Gwich'in community's ability to maintain its subsistence way of life. (116) This prohibition does not appear to reassure the Gwich'in, who support declaring the 1002 Area a wilderness. (117)

2. Polar Bears

A "magnificent, powerful, and fearless" animal, (118) the polar bear could face greater mortality rates, and possible threats to its survival as a species, if oil companies develop the 1002 Area. (119) While the polar bears of northern Alaska live on the pack ice of the Arctic Ocean most of the year, (120) about half seek maternity den sites on land in October and November. (121) Of the females who leave the sea ice to den, one-third give birth on the ANWR Coastal Plain, where drilling activity is proposed. (122) The presence of humans can upset female polar bears during their denning period. Disturbed females often abandon their cubs to perish. (123) In addition to creating patently disturbing activity, (124) oil development unavoidably creates an industrial complex, no matter how small the drilling pads' "footprints," because of the need for pipelines and roads. (125) Scientists argue that female polar bears would likely find such activity sufficiently disturbing to abandon their young--increasing the mortality rate and threatening the survival of the species. (126) On the other hand, North Slope oil operations present in Alaska for more than thirty years continue to coexist with 22,000 to 27,000 polar bears, whose numbers have not significantly diminished in that time. (127)

3. Migratory Bird Species

The 1002 Area hosts more than 135 species of birds, mostly migratory, from May to September. (128) United States Representative Jay Inslee (D-Wash.) claims to have seen birds from all fifty states during a visit to ANWR. (129) Swans, geese, ducks, seabirds, shorebirds, raptors, graylings, and passerines all have nested there. (130) Oil production could disrupt these birds' use of their preferred habitats in the 1002 Area, especially snow geese, which inhabit the area frequently. (131) Snow geese, which feed on vegetation widely dispersed along the tundra, need a large area in which to feed. (132) The displacement of snow geese because of oil wells on the tundra would, in turn, affect their distribution and numbers. (133)

4. Muskoxen

Drilling in the 1002 Area would also likely affect muskoxen, (134) which live in the area during the winter, when proposed development activity would take place. (135) By the end of the nineteenth century humans had exterminated muskoxen from what is now the 1002 Area. (136) However, 64 muskoxen were reintroduced to ANWR from 1969 to 1970, (137) and today the United States Fish and Wildlife Service estimates 250 muskoxen reside in the 1002 Area. (138) The continued existence of muskoxen is precarious in the 1002 Area, even if no oil development occurs. Hunting, vehicle collisions, and other accidents associated with oil development would further decrease the muskoxen population. (139)

Unlike polar bears, muskoxen don't retreat to maternal dens during the winter. (140) They stand on the ANWR Coastal Plain year-round, and dramatically reduce their movements and activity during winter to conserve energy. (141) Muskoxen respond to the presence of humans as they do predators. (142) They form a compact defensive circle or line, (143) protecting calves by pointing their sharp horns outward. (144) When disturbed, groups of muskoxen will run to other areas, often leaving behind their young. (145) This flight response during winter also forces muskoxen to exert themselves during a period when reduced movement and energy conservation is crucial. (146) Finally, oil development in the 1002 Area would displace muskoxen from their historical habitat, and likely result in "major negative effects" on the 1002 Area muskoxen population. (147)

5. Fragility of Life on the ANWR Coastal Plain

Arctic ecosystems sustain the adverse consequences of human oil and gas activities (148) longer than ecosystems in lower latitudes. (149) In ANWR's arctic marine climate--characterized by a long, extremely cold winter, and short, cool growing season--decomposition occurs slowly, and plant growth is stunted. (150) Marks made by humans can last decades. (151) Seismic exploration tests (152) conducted on the ANWR Coastal Plain at Congress's behest in the winters of 1983-84 and 1984-85253 discovered a risk of adverse environmental effects because the tests involved "mechanized surface transportation," (154) that is, trailer-train-pulling D-7 Caterpillar tractors that drill into and vibrate the earth. (155) Although rerouting overland travel to avoid areas with sensitive vegetation and inadequate snow cover "effectively limited adverse environmental impacts," (156) some shallow, water-draining troughs left by exploratory vehicles in 1985 were still visible from the air in 1999 (157) and 2000 because of changes in vegetation caused by the disturbance. (158) Drilling proponents cannot deny that exploration activities are intrusive and have left permanent scars on the 1002 Area. (159)

6. Inherent Wilderness Character of Entire ANWR, Including the Coastal Plain

Wilderness proponents argue that long-lasting vehicle tracks in the 1002 Area--which resulted from mere exploratory activities--are the harbinger of severe environmental harm to come, should Congress permit full-scale development. (160) They cite the 800 miles of Alaska's wilderness that have already been altered by oil development, (161) and point out that of Alaska's 1100-mile northern coastline, only the 125-mile shore of the 1002 Area remains untouched by oil companies. (162) Leasing the 1002 Area to oil companies would permanently and dramatically alter its wilderness character (163) by introducing spills, roads, gravel digging, pipelines, noise, and air pollution--which "have incrementally altered the character" of Prudhoe Bay (164) despite "strict environmental regulations." (165)

Environmentalists contend that oil development will make the ANWR Coastal Plain look like Prudhoe Bay, which they characterize as "an industrial site." (166) Oil development would also be inconsistent with the wilderness preservation goals of the Eisenhower administration in establishing the original nature reserve. (167) United States Supreme Court Justice William O. Douglas, who in 1956 visited what is now ANWR (168) wrote: "this last remaining American wilderness must remain sacrosanct." (169) Wilderness proponents contend that the U.S. government set aside the northeast corner of Alaska to preserve its wilderness character permanently and that any development activity in the 1002 Area, no matter how "quiet" the technology, destroys the area's "essence of wildness." (170)

Perhaps wilderness proponents' strongest argument is that drilling in ANWR would do little to reduce U.S. dependence on foreign oil. Since 1996, oil companies have exported oil from Alaska to foreign countries; (171) BPXA has exported substantial amounts of crude oil to Asia with the enthusiastic approval of the Alaska state government. (172) While such exports help the economy of Alaska, they obviously do not help the oil self-sufficiency of the United States. As long as the American economy is oil-dependent, it will necessarily be foreign-oil-dependent, because less than three percent of the world's oil reserves are in the United States. (173) Scientists argue that conservation measures, such as heightened fuel efficiency standards (174) and development of alternative energy sources like wind and solar power, would do more to reduce dependency on foreign oil than drilling in ANWR. (175)

C. Thirty Years of Saudi Oil: ANWR Coastal Plain Oil Potential

1. Possible 0il Bonanza

The United States Geological Service (USGS) recently reevaluated seismic data gathered on the 1002 Area in 1984 and 1985. (176) The previous assessment (177) used a data-resolution technique USGS has since improved substantially. The improved technology accounts for the increase in the number of billions of barrels of oil (BBO) USGS now estimates may be recoverable from the 1002 Area. (178) In 1987, USGS estimated the amount of in-place (179) oil and gas resources in the 1002 Area at a range of 4.8 to 29.4 BBO; (180) the most recent assessment places the 1002 Area in-place oil at a range of 11.6 to 31.5 BBO. (181) The new assessment reveals that the 1002 Area may hold more recoverable oil than USGS scientists previously estimated. (182)

USGS assigns two classifications to the recoverability of petroleum (183) commodities: technically recoverable and economically recoverable. (184) A "technically recoverable" (185) figure includes crude oil (186) that could not be recovered at a profit. An estimate of "economically recoverable" oil (187) is necessarily smaller than an estimate of technically recoverable oil because the former figure is determined by considering the costs of petroleum production. (188) USGS uses probability curves to chart estimates of economically recoverable oil at three values: (189) the mean (expected value), a 95% probability, and a 5% probability. (190) Vertically, the chart displays a range of market prices ($0 to $40 per barrel), and horizontally, a range of barrels of oil in billions (0 to 10.5 billion barrels). (191) USGS accounts for production costs (192) in charting the curves' paths, so one may calculate an economically recoverable oil figure by tracing the horizontal line of a given market price to where the line of a curve intersects the vertical BBO figure. (193)

At the hypothetical market price of US$24 per barrel, USGS estimates between 2 BBO (95% probability) and 9.4 BBO (5% probability) may be economically recoverable from the 1002 Area. (194) According to the chart, if prices drop below $14.30 per barrel in current dollars, no oil in ANWR is economically recoverable. (195) Drilling proponents concentrate exclusively on technically recoverable figures in support of the proposition that oil reserves are abundant in ANWR; (196) they rarely mention how much oil would be profitable to recover from the 1002 Area at current market prices, (197) which have fallen as a result of the September 2001 terrorist attacks and general economic slowdown. (198) Because "recoverable oil" really means "economically recoverable oil," the enormity of 1002 Area drilling prospects depends completely on unpredictable market rates. More importantly, even if the estimated maximum amount economically recoverable is recovered from the ANWR Coastal Plain, it would reduce the percentage of imported oil used by United States consumers by only five percent. (199)

2. Increasing Domestic Production Will Reduce Dependence on Middle East Oil

Another argument for lifting the ANWR oil-drilling ban is that it will create a new domestic oil production source, slightly alleviating U.S. dependence on foreign oil. (200) Proponents argue that increasing petroleum production within the United States is vital, both to reduce costs and decrease dependence on the unstable, hostile Middle East. (201) They also cite statistics asserting the United States imports more than 60% of its needed petroleum, costs of which exceed $100 billion a year, (202) and that according to the most optimistic estimates, 1002 Area oil could provide the equivalence of 30 years of imported petroleum from Saudi Arabia. (203) The September 11, 2001 terrorist attacks on the United States appear to bolster this argument, (204) because they were carried out mainly by Saudis whose chief grievance with the United States seems to be its use of military pressure to ensure American access to Saudi Arabian oil. (205)

President Bush and pro-drilling lawmakers can probably achieve acceptance of ANWR oil drilling by exploiting the American fantasy of an economy dependent on oil but not dependent on the Organization of Petroleum Exporting Countries. (206) The current volatility of United States relations with the Middle East--heightened to a fever pitch by both the attacks and subsequent War on Terror--is further fodder for the arguments of drilling proponents, (207) who point out that national energy policy may be inseparable from national security policy. (208)

3. Technology Allows Greater Recovery with Less Environmental Impact

Drilling proponents also claim that recent technological advances enable oil drilling to co-exist comfortably with wildlife in the 1002 Area. (209) They point to the thirty-year-plus operation at nearby Prudhoe Bay, accompanied by a concurrent rise in the caribou population in the area, as evidence that wildlife can thrive in an industrialized area. (210) As long ago as 1986, technology and revegetation efforts enabled exploratory drilling in an area adjacent to ANWR with no apparent effect on wildlife. (211) Also, development and production facilities need not be permanent on the North Slope: Oil companies construct roads and runways of ice that melt during summer. (212) "Extended-reach" drilling technology enables oil companies to achieve a greater production level with fewer wells and lighter equipment, leaving a "smaller footprint" on the environment. (213) Finally, the "best commercially available technology" language in SAFE would require oil companies to use the least environmentally harmful methods possible for their development and production activities on the ANWR Coastal Plain. (214)

D. War on Terror 

Whether to open the ANWR Coastal Plain to oil and gas development was one of the most hotly contested issues of the 2000 presidential election campaign; (215) it was one of the few issues on which oilman George W. Bush and environmentalist Al Gore strongly disagreed. (216) The ANWR drilling question was the first issue to split post-September 11 bipartisan unity on Capitol Hill (217) when Senator James Inhofe (R-Okla.), in a "brazen display of political chutzpah," (218) attempted to attach the SAFE bill to the emergency defense authorization legislation Congress considered in the wake of the terrorist attacks. (219) The Senate ultimately passed the Defense Authorization bill, which approved $345 billion in military expenditures for the current fiscal year--without the ANWR drilling provisions. (220) Then-Senate Majority Leader Tom Daschle (D-SD) said the Senate will need to focus on the "myriad of issues that the energy policy debate will bring up" when it considers a separate energy bill at a later, unspecified time. (221)

The September 11 terrorist attacks provided both drilling and wilderness proponents with additional support for their respective positions. Drilling proponents have the following new arguments. First, they say, we must increase domestic oil production to assist the U.S. military as part of the war effort. (222) Second, we must do all we can to reduce our dependence on the volatile Middle East for oil. (223) Wilderness proponents can point out the vulnerability of the Trans-Alaska pipeline (which is currently the only way any oil pulled out of ANWR could be transported) as a terrorist target. (224)

III. PROPOSED SAFE ACT OF 2001

In response to increased gas and utility prices, rolling blackouts and brownouts, (225) and the President's call for a national energy policy "that develops our natural resources and protects our environment at the same time," (226) the House of Representatives voted on August 1, 2001 to pass a major energy bill. (227) The bill, Securing America's Future Energy Act of 2001 (SAFE), (228) endeavors to solve America's current "energy crisis" (229) by encouraging increased energy conservation, (230) reinvigorating nuclear (231) and hydroelectric power (232) as alternative energy sources, and increasing domestic energy production. (233) Some SAFE subsections provide incentives for developing alternative energy sources; (234) others provide incentives for conservation efforts. (235)

The bill takes its most ambitious stab at increasing domestic energy production with a lengthy section devoted to turning the ANWR Coastal Plain into an "industrial site." (236) SAFE's ANWR provisions provoked predictably strong and divergent reactions from proponents and opponents of opening ANWR to drilling. (237) Proponents cite reducing dependence on foreign oil, increasing domestic production, and strengthening the economy through job creation as the main justifications for allowing oil drilling on ANWR's Coastal Plain. (238) Opponents decried the bill's tax breaks for the oil industry, (239) lack of safety standards for production facilities and pipelines, (240) and overemphasis on ANWR oil and gas as the solution to the United States's energy woes. (241) Advocates for both sides of the issue tweaked figures in the most recent United States Geological Survey Petroleum Assessment (242) to reach dramatically different conclusions. Drilling proponents assert the ANWR Coastal Plain "is the most promising [domestic] area for the largest supply with the smallest physical impact." (243) Drilling opponents maintain that oil in the Coastal Plain would provide the United States with about six months' worth of oil at current intake levels, and would not be available for ten years. (244)

SAFE's "Automobile Fuel Economy" section aims to improve automobile fuel efficiency standards. (245) However, the House of Representatives voted against attaching an amendment (246) to the bill that would have required automakers to meet 46%-higher Corporate Average Fuel Economy (CAFE) standards (247) in four years. (248) Most members of the House agreed that this increase was too much, too soon to be realistically attainable; drilling proponents argued it would risk lives. (249) One representative who supported the amendment "simply [as] a statement of principle" acknowledged its timelines were "impossible" and likely to hurt automakers. (250) More realistic numbers in the Boehlert-Mackey amendment would not have improved the amendment's chances of becoming part of SAFE, mainly because of congressional reluctance to inconvenience

the politically powerful auto industry. (251) Opponents of the amendment expressed this reluctance as a cautious desire to adhere to the legislative tradition of CAFE standards, that is, "regular, orderly, responsible increases." (252) However, without the amendment or any similar provision imposing higher fuel-efficiency standards on automakers at least one representative felt the House missed a chance to both improve the U.S. economy's fuel efficiency and make drilling in ANWR unnecessary. (253)

A. SAFE Would Lift the Ban on ANWR Coastal Area OH Production

SAFE's "Arctic Coastal Plain Domestic Energy" section (254) would repeal the section of ANILCA that prohibits oil and gas development on the ANWR Coastal Plain, (255) and would require the Secretary of the Interior to lease ANWR lands to oil companies. (256) In addition, the bill would require the Secretary of the Interior to ensure that oil activity on the Coastal Plain results in "no significant adverse effect on fish and wildlife, their habitat, and the environment," (257) and that developers use "the best commercially available technology for oil and gas exploration, development, and production operations." (258)

SAFE would require the Secretary of the Interior to conduct a lease bidding program pursuant to the Mineral Leasing Act, (259) which gives the Secretary great discretion in determining what requirements a prospective driller must meet before and after the granting of a lease. (260) Such a program would distribute oil and gas leases through a competitive bidding process, (261) granting lease sales and drilling rights "to the highest responsible qualified bidder." (262)

While SAFE would require the Secretary to identify a "preferred" course of action for leasing and an "alternative" course of action for leasing, (263) the bill implicitly prohibits the Secretary from identifying any course of action that does not involve leasing. (264) The same subsection requires the Secretary to "analyze the environmental effects and potential mitigation measures" for the two leasing actions identified. (265) The subsection does not give the Secretary the option to deny lease sales as a potential mitigation measure; rather, it deems compliance with the aforementioned steps satisfactory "analysis and consideration of the environmental effects" of ANWR leasing. (266)

B. Interpreting the Language of SAFE

Like several Acts of Congress, SAFE would assign the Interior Secretary substantial discretion in protecting the environment from potentially damaging activities. (267) Courts apply a highly deferential standard when reviewing agency decisions and actions taken pursuant to legislative directives, (268) and generally only enjoin actions, contradict findings, or invalidate conclusions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." (269) An agency must adequately explain to a reviewing court the basis for its decision to establish that the decision was not arbitrary and capricious. (270) During Gale Norton's first year as Interior Secretary, three federal appellate court's found her explanations for declining to expand the list of endangered species inadequate. (271) Unlike the proposed SAFE Act, however, the Endangered Species Act (ESA) provides the Secretary extensive guidance on how to make endangered species determinations, including data standards and findings deadlines. (272) In contrast, SAFE requires the Secretary to jump through far fewer procedural hoops in approving lease sales than does the ESA in according a species protected status. (273) Because SAFE requires so little of the Secretary, future challengers of ANWR lease sales will have difficulty proving such sales violate SAFE. Under SAFE, to survive a challenge that an ANWR oil lease was arbitrary and capricious, the Secretary need only provide a minimal explanation and statement that the lease would not result in significant adverse environmental effects.

1. "Significant Adverse Effect"

Two subsections of SAFE use identical language to establish the environmental standard the Secretary of the Interior must meet in creating a leasing program for the Coastal Plain. (274) First, "Leasing Program for Lands within the Coastal Plain," (275) which explicitly repeals section 1003 of ANILCA, (276) includes the following provision:

   The Secretary [of the Department of the Interior] shall take such
   actions as are necessary ... to administer [a competitive leasing
   program of Arctic Coastal Plain lands] through regulations, lease
   terms, conditions, restrictions, prohibitions, stipulations, and
   other provisions that ensure the oil and gas exploration,
   development, and production activities on the Coastal Plain will
   result in no significant adverse effect on fish and wildlife,
   their habitat, subsistence resources, and the environment. (277)

Second, the Coastal Plain Environmental Protection provision (278) requires the Secretary to promulgate "regulations, lease terms, conditions, restrictions, prohibitions, stipulations, and other provisions" that would "ensure the oil and gas exploration, development, and production activities on the Coastal Plain will result in no significant adverse effect on fish and wildlife, their habitat, and the environment." (279) In short, SAFE would require the Secretary to develop the Coastal Plain, in effect, by any means necessary, and give the Secretary tremendous leeway in deciding how much protection to accord the environment in developing a program to lease the Coastal Plain.

The language "shall take such actions as are necessary" in SAFE's Leasing Program for Lands Within the Coastal Plain section imposes on the Secretary an affirmative legal duty to facilitate oil drilling on the Coastal Plain. (280) While the Secretary has to create a leasing and development program under SAFE, she does not have to hold lessees to a very high environmental standard: The language "no significant adverse effect" enables the Secretary to approve activities that have merely "adverse" effects on the Coastal Plain environment. SAFE's language indicates legislative intent to give the Secretary broad discretion in interpreting its terms. This places a heavy burden on future challengers of ANWR lease sales, despite the inarguable harm that will result to the environment from the leases. An action probably cannot survive on proof of "adverse effect" alone, because courts defer to the Secretary's determinations of which adverse effects rise to the level of "significant" when interpreting environmental protection statutes. (281) Current Secretary Gale Norton's public stance that oil drilling does not adversely affect caribou (282) and her close ties to the oil industry (283) indicate she will likely deem few, if any, of the many adverse effects of oil production on the Coastal Plain "significant." As long as the Secretary provides some kind of reasonable explanation, courts will have to defer to her determinations. (284)

2. "Best Commercially Available Technology"

In addition to directing the Secretary to ensure that the adverse environmental effects of ANWR drilling are not "significant," the Environmental Protection section of SAFE also directs her to "require the application of the best commercially available technology for oil and gas exploration, development, and production on all new exploration, development, and production operations." (285) Likewise, the Leasing Program section directs the Secretary to require "application of the best commercially available technology" in furtherance of the goal of ensuring oil development results in "no significant adverse effect" on the environment. (286) In a similar section, SAFE directs application of the "best commercially available technology" toward achieving the goal of "no significant adverse effect on ... the environment." (287) This is as specific as SAFE's environmental protection plan gets.

SAFE would entrust the Secretary with developing a comprehensive, effective set of rules to hold companies accountable for extracting oil from the ANWR Coastal Plain in a manner safe to the surroundings. Yet it holds the Secretary accountable for little more with regard to the environmental effects of ANWR drilling than assuring people that developers promise to avoid significant environmental harm through use of the "best commercially available technology." (288) Future challengers of the Secretary's leasing decisions will have to overcome a presumption of deference to her wisdom. (289) SAFE does not provide them much ammunition, beyond disputing the quality of technology the Secretary approved.

The Clean Water Act, by contrast, uses the term "best available technology" to give the Administrator of the Environmental Protection Agency (EPA) detailed guidance toward achieving a specifically identified goal: monitoring the level of toxic pollutants in water. (290) Although the Clean Water Act does not define "best available technology," the detailed context in which it uses the term to define "standard of performance" provides much greater guidance than SAFE:

   [A] standard for the control of the discharge of pollutants which
   reflects the greatest degree of effluent reduction which the
   Administrator determines to be achievable through application of
   the best available demonstrated control technology, processes,
   operating methods, or other alternatives, including, where
   practicable, a standard permitting no discharge of
   pollutants. (291)

Such precise statutory instruction helps courts determine whether government agencies and departments are doing what they are supposed to do. (292) SAFE's vague, general provisions do not require the Interior Secretary to do anything more specific to prevent pollutant discharge in ANWR than ensure the drilling technology is the "best commercially available." (293) SAFE provides the Secretary no guidance in determining what technology is the "best commercially available"; she can comply with SAFE's standards for environmentally friendly drilling technology by relying on oil companies' naked assurances that they drill with only the "best commercially available" technology.

3. "Site-Specific Effect Assessments, Regulations, Conditions, and Restrictions"

The heart of SAFE's environmental policy section imposes bold-sounding but meaningless duties on the Interior Secretary. (294) Titled "Site-Specific Assessment and Mitigation," it directs her to require unspecified persons (295) to conduct a "site-specific analysis" of any effects on "fish and wildlife, their habitat, and the environment" (296) and create a mitigation plan to "avoid, minimize, and mitigate (in that order and to the extent practicable)" such effects. (297) "[I]n that order"--that is, "avoid, minimize, and mitigate"--establishes an admirable first priority of completely avoiding environmental harm, followed by reducing the severity of regrettable but inevitable damage, and finally repairing damage already done. "[T]he extent practicable" implies that while Congress expects ANWR lease purchasers to anticipate and make efforts to avoid the environmental consequences of their activities, it does not want them to bend over backwards or strain themselves from the effort. Substituting the word "possible, for "practicable" would have conveyed the opposite message and required drillers to do everything in their power to avoid damage to the formerly protected American wilderness refuge. The word "practicable" makes clear Congress's intent to impose a light environmental impact mitigation burden on ANWR developers.

Although SAFE requires some input from other federal agencies, (298) it gives the Interior Secretary a great deal of freedom to decide what regulations to promulgate prior to implementing the SAFE leasing program. (299) The regulations must be "designed to ensure that activities undertaken on the Coastal Plain ... are conducted in a manner consistent with the purposes and environmental requirements" of the Arctic Coastal Plain Domestic Energy section of SAFE. (300) The chief purpose of this section is leasing the Coastal Plain to oil companies; (301) its primary environmental requirements are that developments have no significant adverse effect on fish, wildlife, habitat, or the environment, (302) Such general requirements are flexible; under a different administration, they could result in regulations that set stringent, detailed environmental standards for lease purchasers. However, with Gale Norton in charge of the Interior Department, more likely they will lead to vague proscriptions against having "significant adverse" effects--standards just as meaningless, and as easily complied with, as those found in SAFE. (303)

In addition to regulations, SAFE requires the Secretary to impose "conditions, restrictions, prohibitions, stipulations, and other measures" to ensure drilling activities in ANWR are consistent with SAFE's purpose and environmental requirements. (304) A similar section imposes the same requirements to prevent oil drilling activities from causing any "significant adverse effect on fish and wildlife, their habitat, subsistence resources, and the environment." (305) Although this language is more specific than most of SAFE's arctic environmental protection provisions, it still leaves the Secretary with tremendous leeway to condition lease sales on purchasers' clearing extremely low environmental impact mitigation hurdles.

SAFE does not require the Secretary to restrict oil developers from doing anything in particular to reduce environmental impacts. She need only tell them not to do anything that results in a "significant adverse effect" on the environment, which presumably does not include drilling itself, but does include inevitable side effects of drilling, such as spills. The developer who accidentally spills petroleum, causing significant harm to the ANWR Coastal Plain, will violate environmental requirements of SAFE and will be found in noncompliance with Interior Department regulations. The force of these laws will not undo the damage of the spill, however; the wilderness will already be permanently scarred.

4. "Oil and Gas Leasing Program Required

The SAFE bill does provide the Interior Secretary some specific guidance on what environmental standards to require of oil developers in ANWR. It would require her to prepare an environmental impact statement (EIS) pursuant to the National Environmental Policy Act of 1969 (NEPA) (306) before selling the first lease for ANWR Coastal Plain lands. (307) SAFE makes no further mention of this EIS or what use the Secretary should make of its findings. Rather, as discussed above, it requires the Secretary to establish an oil and gas leasing program for Coastal Plain lands, without regard to the results of the EIS. (308) Another SAFE subsection, which deems the comprehensive 1987 EIS "to satisfy the requirements" of NEPA, seems to render the EIS described above even less necessary and its purpose more mysterious. (309)

If enacted, SAFE will direct the Secretary to present in the EIS two different ideas for leasing the 1002 Area and "analyze the environmental effects and potential mitigation measures" for both. (310) However, it will not require the Secretary "to identify nonleasing alternative courses of action." (311) In other words, SAFE limits the Secretary's 1002 Area options to lease for drilling one way and lease for drilling in a slightly less preferable way. By enacting SAFE, Congress would establish an affirmative legal duty for the Secretary to facilitate oil drilling on the ANWR Coastal Plain, because it gives her no choice but to lease ANWR for oil and gas development and production.

In addition, the framers of SAFE apparently prefer the Secretary not dwell too long on the possible environmental effects of ANWR leasing, because SAFE limits the Secretary to considering "comments ... filed within 20 days after publication of [the EIS]." (312) Scientists and citizens will get less than three weeks under SAFE to evaluate the findings of the new EIS, draft suggestions and recommendations, and submit them to the Secretary. The abrupt deadline permits little time for thoughtful analysis; it will likely dissuade busy scientists from submitting any comments at all, and may entirely escape the notice of regular citizens. Thus, public comments on the Secretary's ANWR leasing plan will probably be deficient, both in terms of quality and quantity. They will satisfy the requirements of SAFE, however; identifying the effects and mitigation efforts of two leasing plans in an EIS and considering public comments filed up to twenty days after release of the EIS satisfy "all requirements for the analysis and consideration of the environmental effects" of ANWR leasing under SAFE. (313)

5. Oil Drilling is "Compatible" with the Purposes of ANWR

Some of SAFE's strongest language reconciles oil drilling on the Coastal Plain with the National Wildlife Refuge System Administration Act of 1966, which established the wilderness character of the Refuge. (314) The "Compliance with Requirements under Certain other Laws" subsection decrees the oil and gas leasing program it mandates "compatible with the purposes for which [ANWR] was established" (315) and shuts the door on further "findings or decisions" that might challenge this blunt conclusion. (316) This provision would resolve three and a half decades of controversy over whether to exploit ANWR's oil and gas resources, over strenuous objections from scientists and members of Congress, (317) by establishing that oil development and production activities will not alter the wilderness character of ANWR as a matter of law.

IV. BP EXPLORATION (ALASKA), INC. AND THE ANWR COASTAL PLAIN

If Congress passes SAFE, British Petroleum Amoco will likely be one of the first oil companies to bid for a lease--its head officer's coy disclaimers notwithstanding. (318) BP Amoco, the world's third largest oil company, (319) controls most of Prudhoe Bay through BPXA, its subsidiary in charge of oil and gas development and production in Prudhoe Bay. (320) BPXA produces about 43 percent of the oil in Prudhoe Bay, (321) pumps more than 300,000 barrels of oil out of Alaska every day, (322) and is the highest profile proponent of opening the ANWR Coastal Plain to oil and gas development. (323)

BPXA strives to distinguish itself from other oil companies by depicting itself as an environmentally friendly oil producer. (324) The company insists it can extract oil from the ANWR Coastal Plain "in a way that's compatible with healthy wildlife populations and with minimum impact to the environment." (325) However, if the company's history of environmental damage in the neighboring Prudhoe Bay complex is any indication of how it would develop ANWR, (326) BPXA will spill oil on the ANWR Coastal Plain-frequently and copiously. (327) If the Interior Secretary determines that the environmental effects of such spillage do not rise to the level of "significant," she may lease ANWR lands to BPXA under SAFE. (328)

A. Green washing

BPXA takes extreme public relations efforts to depict itself as an environmentally responsible, or "green," oil company. Its blindingly green web site (329) includes many nice pictures (330) of wildlife that would look at home at www.sierraclub.org. The slogan "No accidents, no harm to people and no damage to the environment" appears frequently on the web site, (331) and BPXA's emphasis on the slogan in its public relations materials gives the impression that this laudable policy, rather than oil profits, is its primary corporate goal. BPXA has a sunburst logo, and in 2000 introduced a new motto--"Beyond Petroleum"--to distinguish itself from other oil companies as being aware of global warming issues and the need for alternative energy sources. (332)

BPXA's parent company maintains a sophisticated set of policy directives called its "Health, Safety and Environmental Management System" (HSE). Applicable to all of its branches, the system's purpose is to further its "no accidents, no harm to people and no damage to the environment" goals. (333) BPXA declares itself "fully aligned" with this policy, (334) which also requires management to "[o]penly listen, consult and respond to [employees'] concerns." (335) Efforts to improve employee-management relations seem particularly prudent for BPXA, which recently pleaded guilty in a criminal prosecution based on the 1995 statements of a whistle-blowing BPXA North Slope oil field worker. (336)

B. Prudhoe Bay Operations

BPXA maintains substantial production facilities in Prudhoe Bay, Alaska's largest oil complex, located less than one hundred miles west of ANWR. (337) BPXA field employees in Prudhoe Bay long ago exhausted internal procedures for voicing concerns over worker and environmental safety problems in BPXA's operations; they have maintained a web site devoted to publicizing the danger of the company's Prudhoe Bay operations and the unresponsiveness of BPXA management to their concerns since 2001. (338) The web site functions as a platform for BPXA field employees to vent frustrations with BPXA management's unsafe environmental and worker safety policies and unresponsiveness to their concerns. (339)

In 1999, seventy-seven BPXA employees signed a letter to the head of parent-company British Petroleum, expressing their concern over the dangers staffing cuts posed to worker safety and the environment. (340) In response to both this letter and an April 13, 2001 front-page Wall Street Journal article, (341) BPXA developed a policy in favor of listening and responding to its employees' concerns. (342) The company dispatched a team of safety experts to investigate the danger faced by BPXA employees responsible for actually extracting the oil in northern Alaska. (343)

The team conducted a seven-week study (344) in which it interviewed approximately 250 BPXA employees and fifty contract and support personnel. (345) The report uncovered a backlogged equipment maintenance program, (346) outdated and unreliable fire and gas detection systems, (347) corroded and leaking safety valves, (348) and inadequate staffing in several key areas. (349) Many on-site BPXA employees in Prudhoe Bay opined that management gives achieving budget targets higher priority than maintaining "safety, regulatory compliance or delivering long-term operational integrity." (350) For example, most BPXA field employees oppose "open-air skids" (351) as a future facility design, because of the unreliability of exposed gauges, (352) operational and maintenance difficulties in the harsh arctic climate, (353) and the skids' inability to contain spills. (354) BPXA management favors open-air skid designs for new oil pads, (355) mainly because they are less expensive to build than enclosed skids. (356) If SAFE becomes law, the Interior Secretary should restrict BPXA from building any open-air skids in ANWR as a lease sale condition.

C. Interior Secretary Must Restrict BPXA's Prospective ANWR Activities

Encouragingly, BPXA management appears to be increasingly responsive to its field employees' safety and environmental concerns. (357) The materials on BPXA's web site indicate genuine determination to improve the company's safety performance in the coming year. (358) BP has voluntarily hired Ernst & Young LLP, a professional business services organization and independent third party, to "challenge and substantiate" the veracity of BP's assertions on its progress in improving environmental, safety, and health conditions in its operations. (359) Ernst & Young attests glowingly to BPXA management's commitment to health, safety, and the environment, noting "strong leadership and belief in the importance of non-financial policies" among its observations at BP-operated sites. (360) The company has also begun altering its policies with regard to its environmental protection performance standards by conducting studies on the impacts of its activities in Alaska (361) and inviting input from the general public in developing its environmental policy. (362) However, a strong belief in protecting the safety and health of workers and the environment will not be enough to protect ANWR from the danger and environmental impacts inherent in oil development and production.

V. CONCLUSION

Wilderness and drilling proponents can agree on one thing: Congress must eventually pass an energy plan that frees the United States from its dependence on oil from the Middle East. While drilling proponents focus on the phrase "from the Middle East" in that proposition, wilderness proponents focus on "oil." With less than 457 billion barrels of oil equivalent, compared to 1117 billion in the Middle East and North Africa, (363) the United States will depend on the Middle East as long as it depends on oil. The United States will depend on oil as long as Americans continue to produce and use automobiles ceaselessly. The American oil addiction can't go on forever, but it probably will go on long enough to empty every reserve on American soil, including the ANWR Coastal Plain. An act of Congress exposing an ecosystem as unique, significant, and fragile as ANWR to oil producers should severely restrict lease sales to purchasers like BPXA. Unfortunately, SAFE would provide no specific restrictions or conditions on lease sales; it would leave the regulation of development and production activities on the ANWR Coastal Plain up to an Interior Secretary who has spent most of her career attacking such regulation. By requiring the Secretary to lease ANWR for oil development, and giving her practically unlimited discretion in deciding how to do so in an environmentally safe way, SAFE places the demands of the oil industry far above wilderness preservation.

(1) Arctic Coastal Plain Domestic Energy Act of 2001, H.R. 4, 107th Cong. [subsections] 6501-12 (2001). This bill is part of the Securing America's Future Energy (or SAFE) Act of 2001; House Approves Broad Energy Bill, NAT'L ASS'N OF COUNTIES LEGIS. BULL. Aug. 3, 2001, at http://www.naco.org/leg/bulletin/01-08-03.cfm#3.

(2) Securing America's Future Energy Act of 2001 (SAFE), H.R. 4, 107th Cong. (engrossed in House Aug. 1, 2001, placed on Senate calendar Sept. 4, 2001).

(3) H.R. 4 at [section] 6503(b).

(4) Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. [section] 3143 (2000). (stating that "[p]roduction of oil and gas from the Arctic National Wildlife Refuge is prohibited ... until authorized by an Act of Congress").

(5) John Ritter, To Drill or not to Drill? USA TODAY, Aug. 6, 2001, at A4.

(6) "Rep. Don Young, R-Alaska, shouted and punched the air in victory when the vote on the ANWR provision was posted in the House chamber." Liz Ruskin, House Votes to Open ANWR, ANCHORAGE DAILY NEWS, Aug. 2, 2001, at A1.

(7) "Conceived by a secret cabal under Vice President Dick Cheney, the energy bill is expensive, intrusive, and environmentally unsound. The Senate should stop it cold." A Degrading Energy Plan, BOSTON GLOBE, Aug. 3, 2001, at A22.

(8) Benjamin P. Nageak, Inupiat Eskimos First, Best Environmentalists, at http://www.anwr.org/people/nageak.html (last visited Sept. 23, 2001).

(9) "Mr. Bush had made the vote a test of loyalty with Republicans. `We showed last night how we can break Washington gridlock,' the President said." Damian Whitworth, Bush Wins First Round to Drill in Arctic Refuge, TIMES (London), Aug. 3, 2001.

(10) Press Release, Alaska Governor Tony Knowles, Knowles Proposes 10-Point Gasline Strategy (Aug. 30, 2001), available at http://www.gov.state.ak.us/press/01197.html.

(11) Richard Simon, House OK's Energy Bill, Drilling in Arctic Refuge, L.A. TIMES, Aug. 2, 2001, at A1. Rep. Edward Markey (D-Mass.), whose amendment to delete the ANWR drilling provisions of SAFE was shot down, called it "an irony" that the influence of labor interests outweighs that of the environment in Congress. "If labor hadn't weighed in, the environment would have won." Elizabeth Shogren & Richard Simon, Bush Oil Victory Helped by Unlikely Ally, L.A. TIMES, Aug. 3, 2001, at A19.

(12) Charles Krauthammer, War and the Polar Bear, WASH. POST, Nov. 9, 2001, at A37 (asserting that "[d]rilling in the Arctic will involve less than 1 percent of the Arctic Refuge"); Supporting a Balanced and Comprehensive Energy Bill, 107th Congress, 1st Sess. (2001); 147 Cong: Rec. H5127, 5155 (daily ed. Aug. 1, 2001) (statement of Rep. Rehberg (R-Mont.) supporting Sununu amendment to limit placement of drilling wells in ANWR to 2000 acres). The House passed the amendment. See infra Part III.

(13) Hereinafter, "wilderness proponents" refers to activists who lobby Congress to declare the 1002 Area a wilderness, and "drilling proponents" refers to those who lobby Congress to lease the 1002 Area to oil and gas developers.

(14) NATURAL RESOURCES DEFENSE COUNCIL: LIFE ON THE COASTAL PLAIN OF THE REFUGE [hereinafter NRDC, LIFE], available at http://www.nrdc.org/land/wilderness/anwr/anwr1.asp (last modified Apr. 3, 2001).

(15) Press Release, Public Interest Research Group, Groups target BP Amoco with Arctic Shareholder Resolution (Jan. 30, 2001), available at http://www.uspirg.org/uspirgnewsroom.asp?id2=3858.

(16) See, e.g., Geneva Overholser, Green Light for Gas-Guzzlers, WASH. POST, Aug. 7, 2001, at A15.

(17) CNN, Bin Laden, Millionaire with a Dangerous Grudge, Sept. 27, 2001, at http://www.cnn.com/2001/US/09/12/binladen.profile.

(18) Alaska Wilderness League, Senate Invokes Unanimous Cloture on Defense Authorization Bill, Oct. 2, 2001, available at http://www.alaskawild.org /releases/ArcticTruthArchives/2001/OCT2001AT/ARCTICTRUTH10_02_01.pdf; Senator James Inhofe (R-Okla.) introduced the amendment; after some hedging, Senator Frank Murkowski (R-Alaska)--a long-time ANWR drilling advocate--joined him. Id.

(19) On October 4, 2001, the bullet of a local drunk pierced the Trans-Alaska Pipeline, causing an oil spill in excess of 150,000 gallons--one of the largest in the pipeline's history. Authorities denied it was an act of terrorism. "This is a case of an idiot with a gun, out along the pipeline with alcohol...." Sam Howe Verhovek, Pipeline Crews Tackle Huge Oil Spill Caused by Shooting N.Y. TIMES, Oct. 6, 2001, at All.

(20) Senate Majority Leader Tom Daschle (D-S.D.) put off consideration of SAFE for the next session in the wake of Sept. 11, citing the heaviness of a legislative load creaking with antiterrorism measures. William Neikirk, Energy Bill goes from Hot Issue to Back Burner, CHI. TRIB., Nov. 28, 2001, at 16.

(21) "[The SAFE bill] was pulled [from the Energy and Natural Resources Committee] for one reason--we had the votes...." Elizabeth Shogren, Alaska Oil still Stuck on Hill, L.A. TIMES, Oct. 13, 2001, at A21 (quoting Senator Frank Murkowski (R-Alaska)).

(22) Securing America's Future Energy Act of 2001, H.R. 4, 107th Cong. [section] 6504 (2001).

(23) Id. [section] 6505(a).

(24) Id. [section] 6503(a).

(25) See id. (referring only to "significant adverse effects").

(26) See generally Athan Manuel, Green Words, Ditty Deeds: A PIRG Expose of BP Amoco Greenwashing, U.S. Public Interest Research Group Education Fund (Oct. 1999) (comparing the company's public relations campaign with its actual practice) available at http://www.savethearctic.com/PDFS/bpamoco01.pdf.

(27) ANWR DEVELOPMENT NEWS, Revelations of Dangerous North Slope Operations--Faulty New Technology Proposed for Development of ANWR, available at http://www.anwrnews.com/reports/Faulty_New_Technology/ (last visited Sept. 23, 2002).

(28) Plea Agreement, United States v. BP Exploration (Alaska) Inc., (D. Alaska, 1999) (No. A99-0141C 12), http://www.anwrnews.com/docs/bp_plea_agreement.asp.

(29) Defenders of Wildlife, Issue in Detail: Saving America's Serengeti http://www.defenders.org/wildlife/arctic/print/issue.html (last visited Nov. 20, 2002).

(30) The bill, as currently written, directs the Secretary to ensure development causes no "significant adverse effects" to the ANWR Coastal Plain, but provides no further guidance in determining what effects are "significant." H.R. 4 [section] 6507. This Comment focuses on BPXA, to the exclusion of other prospective ANWR oil and gas lease purchasers, for several reasons. First, BPXA currently runs the largest oil production operation in northern Alaska; scrutiny of its activities there instructs on the problems any oil company is likely to encounter in ANWR. Second, BPXA has made substantial public relations efforts to establish itself as a progressive, environmentally conscious off company, yet its current activities in northern Alaska draw heavy criticism--not least from on-site employees and federal prosecutors. The chasm between BPXA's "talk" and its "walk" illustrates how difficult producing oil in a way that does not harm the environment can be, even for developers who sincerely wish to avoid damage and spills, as BPXA's directors undoubtedly do. This Comment focuses exclusively on BPXA, not to imply that BPXA is less environmentally responsible than other oil companies, but to show how even an oil company that "pledges to demonstrate respect for the natural environment" encounters difficulty meeting such a standard. BP EXPLORATION (ALASKA) INC., BP AND THE ENVIRONMENT ON ALASKA'S NORTH SLOPE, 2-1-1 (2001) (hereinafter BP AND THE ENVIRONMENT). For details on the abysmal environmental records of three other prospective ANWR developers, see ATHAN MANUEL, U.S. PUB. INT. RES. GROUP, THE DIRTY FOUR: THE CASE AGAINST LETTING BP AMOCO, EXXON MOBIL, CHEVRON, AND PHILLIPS PETROLEUM DRILL IN THE ARCTIC REFUGE (2001).

(31) Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. [section] 3101 (2000).

(32) National Wilderness System Preservation Act of 1964, 16 U.S.C. [section] 1133(c) (2000) (prohibiting establishment of roads and permanent structures within wilderness area).

(33) 16 U.S.C. [section] 3101; Sen. Frank H. Murkowski (R-Alaska), Editorial, Drilling Won't Make It Less of a Refuge, WASH. POST, Dec. 10, 2000 (editorial explaining composition of ANWR). A "wildlife refuge" is part of a "national network of lands and waters" administered by the Secretary of the Interior "for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." 16 U.S.C. [section] 668dd (a)(2) (2000).

(34) Section 1002 of ANILCA provides for

   a comprehensive and continuing inventory and assessment of the
   fish and wildlife resources of the coastal plain of the Arctic
   National Wildlife Refuge; an analysis of the Impacts of oil and
   gas exploration, development, and production, and exploratory
   activity within the coastal plain in a manner that avoids
   significant adverse effects on the fish and wildlife and
   other resources.

16 U.S.C. [section] 3142 (2000); see also Act of Aug. 18, 1980, Pub. L. No. 96-487, 1980 U.S.C.C.A.N. (94 Stat. 2371) 183 (emphasizing that "It]he value of this area for future scientific studies and baseline data analyses is of major importance. An area, left in its natural state such as the proposed Arctic Refuge, can serve as a `control'--an area to which we can compare developed areas elsewhere. In this way we can learn the extent of the effects of our activities on Arctic ecosystems.').

(35) 16 U.S.C. [section] 3142.

(36) Act of Aug. 18, 1980, Pub. L. No 96-487, 1980 U.S.C.C.A.N. (94 Stat. 2371) 183.

(37) This Comment uses the terms "ANWR Coastal Plain" and "1002 Area" interchangeably.

(38) Drilling proponents include President Bush, most Republicans, and some Democrats. See infra Part II. C.

(39) Wilderness proponents include many Democrats, a few Republicans, and environmental advocacy groups. See infra Part II.B.4. The events of Sept. 11, 2001 might decisively tip the Senate balance in favor of the pro-drilling contingent. See infra Part II.D.

(40) Letter from more than 500 scientists and natural resource managers from the United States and Canada to President George W. Bush, Mar. 20, 2001 [hereinafter Mar. 20, 2001 Letter].

(41) U.S. GEOLOGICAL SURVEY, U.S. DEP'T OF THE INTERIOR, ARCTIC NATIONAL WILDLIFE REFUGE, 1002 AREA, PETROLEUM ASSESSMENT, 1998, INCLUDING ECONOMIC ANALYSIS 6 (2001)[hereinafter 1998 ASSESSMENT].

(42) Pub. Land Order No. 2214, 22 Fed. Reg. 12,598 (1960); U.S. FISH & WILDLIFE SERV., POTENTIAL IMPACTS OF PROPOSED OIL AND GAS DEVELOPMENT ON THE ARCTIC REFUGE'S COASTAL PLAIN: HISTORICAL OVERVIEW AND ISSUES OF CONCERN, http://arctic.fws.gov/issues1.html [hereinafter POTENTIAL IMPACTS].

(43) George L. Collins & Lowell Sumner, Northeast Arctic: The Last Great Wilderness, SIERRA CLUB BULL., Oct. 12, 1953; POTENTIAL IMPACTS, supra note 42.

(44) Id.; Alaska Statehood Act, Pub. L. No. 85-508, [section] 6(e), 72 Stat. 339 (1958) (codified at 48 U.S.C. [section] 21 (2000)).

(45) National Wilderness System Preservation Act of 1964, Pub. L. No. 88-577, [section] 2, 78 Stat. 890-96 (codified at 16 U.S.C. [section] 1131-36 (2000)).

(46) Id. [section] 1131(a).

(47) Id. [section] 1133(c).

(48) Id. [section] 1133(d)(3).

(49) Danny L. Eidson, Why Congress Should Grant Wilderness Status to the Coastal Plain of the Arctic National Wildlife Refuge, 7 S.C. ENVTL. L. REV. 209, 210 (1998).

(50) Anthony R. Chase, Imminent Threat to America's Last Great Wilderness, 70 DENV. U. L. REV. 43, 68 (1992).

(51) 16 U.S.C. [section] 3101 et seq. (2000).

(52) Id. [section] 3103(a).

(53) U.S. DEP'T OF THE INTERIOR, ARCTIC NATIONAL WILDLIFE REFUGE, ALASKA, COASTAL PLAIN RESOURCE ASSESSMENT: REPORT AND RECOMMENDATION TO THE CONGRESS OF THE UNITED STATES AND FINAL ENVIRONMENTAL IMPACT STATEMENT 1 (1987) [hereinafter 1987 EIS].

(54) 16 U.S.C. [section] 3103(a).

(55) Id. [section] 3101(b).

(56) Id. [section] 3101(c).

(57) Id. [section] 3101(d).

(58) "The [Senate Energy and Natural Resources] Committee did reduce the size of the additions proposed by the House of Representatives." S. REP. No. 96-413g, at 180 (1979).

(59) Id.

(60) S. REP. No. 96-413, at 241 (1979).

(61) Alaska National Interest Lands Conservation Act, 16 U.S.C. [section] 3143 (2000).

(62) Id. [section] 3101 (b).

(63) Id.

(64) Id. [section] 3142(c).

(65) Id. [section] 3143.

(66) Id. [section] 3142(e).

(67) Id. [section] 3143.

(68) See National Wilderness System Preservation Act of 1964, 16 U.S.C. [section] 1133(c) (2000) (prohibiting establishment of roads and permanent structures within wilderness area).

(69) 16 U.S.C. [section] 3101 (2000).

(70) John Shanahan, Time to Permit Oil Drilling in the Arctic Refuge, THE HERITAGE FOUND. REP., Oct. 17, 1995, Executive Memorandum No. 432 at 1.

(71) Gwich'in Niintsyaa, Resolution to Prohibit Development in the Calving and Post-Calving Grounds of the Porcupine Caribou Herd (1988), at http://arcticcircle.uconn.edu/ANWR/anwrgwichinresolution.html.

(72) Securing America's Future Energy Act of 2001, H.R. 4, 107th Cong. [section] 6503(b) (2001).

(73) 16 U.S.C. [section] 3149(c) (2000).

(74) Id. [section] 3149(b).

(75) Id. [section] 3101(c).

(76) The Gwich'in have subsisted on the porcupine caribou herd, which uses the ANWR Coastal Plain as a calving ground, for thousands of years. Gwich'in Niintsyaa, supra note 71.

(77) Debbie S. Miller, An Arctic Dream, 20 ALASKA GEOGRAPHIC 3, 10 (1993). Drilling proponents like to describe ANWR as about the size of South Carolina, and the 1002 Area as one-fifth to one-sixth the size of Washington D.C.'s Dulles airport. Jay Ambrose, Case Now Stronger for Energy Plan, SCRIPPS HOWARD NEWS SERV., Sept. 17, 2001; Shanahan, supra note 70. Wilderness proponents counter that the 1002 Area's relatively small size belies its tremendous ecological significance.

(78) NATURAL RESOURCES DEFENSE COUNCIL ET AL., TRACKING ARCTIC OIL: THE ENVIRONMENTAL PRICE OF DRILLING THE ARCTIC NATIONAL WILDLIFE REFUGE (1991) (hereinafter TRACKING).

(79) Miller, supra note 77, at 10.

(80) BP AND THE ENVIRONMENT, supra note 30, at 1-1.

(81) 1987 EIS, supra note 53, at 8; March 20, 2001 Letter, supra note 40 (contrasting narrow (15- to 40-mile) coastal plain within refuge to broad (greater than 150 miles) coastal plain west of ANWR).

(82) March 20, 2001 Letter, supra note 40.

(83) 1987 EIS, supra note 53, at 21-31.

(84) The herd regularly travels from the Canadian Porcupine River area to the Coastal Plain in the spring, where the females give birth. NRDC, LIFE, supra note 14.

(85) 1987 EIS, supra note 53, at 21.

(86) Written testimony from Jack Lentfer, retired U.S. Fish and Wildlife Service biologist, to House Committee on Resources, Hearing on Republican Energy Bill "Energy Security Act" (July 11, 2001), http://www.defenders.org/wildlife/arctic/news/lentfer.pdf.

(87) 1987 EIS, supra note 53, at 27.

(88) NRDC, LIFE, supra note 14.

(89) Written testimony from Kenneth R. Whitten, retired Alaska Dept. of Fish and Game research biologist, to House Committee on Resources, Hearing on Republican Energy Bill "Energy Security Act" (July 11, 2001), http://www.defenders.org/wildlife/arctic/news/whitten.pdf.

(90) Id.

(91) ALASKA WILDERNESS LEAGUE, PROTECT AMERICA'S ARCTIC NATIONAL WILDLIFE REFUGE 6 (1997). The herd has migrated to what is now the ANWR Coastal Plain for thousands of years. Id. Scientists call this favored area the herd's "traditional calving" ground. See, e.g., Whitten, supra note 89 (discussing the survival rate of calves).

(92) Whitten, supra note 89 (citing S.G. Fancy & K.R. Whitten, Selection of Calving Sites by Porcupine Herd Caribou, 69 CAN. J. ZOOL 1736-43 (2001), and K.R. Whitten et al., Productivity and Early Calf Survival in the Porcupine Caribou Herd, 56 J. WILDLIFE MGMT. 201 (1991)).

(93) The Central Arctic caribou herd occupies central northern Alaska. Its traditional calving ground is the site of the Prudhoe Bay oil field. The herd consisted of about 5000 caribou when Prudhoe Bay oil development began in the 1970s. In 2000, scientists estimated its population at 27,000. Whitten, supra note 89.

(94) Paraphrasing the 1990s animated Nickelodeon television program, "The Ren & Stimpy Show:" "It's Log[TM], it's Log[TM], it's better than bad--it's good!" See David Limbaugh, Sounding False ANWR Alarms, WASH. TIMES, Apr. 26, 2001, at A17 (pointing out the impressive caribou population growth near Prudhoe Bay despite the negative predictions by naysayers).

(95) Whitten, supra note 89; March 20, 2001 Letter, supra note 40.

(96) Ken Whitten, Oil Drilling in ANWR poses risks, ANCHORAGE DALLY NEWS, Feb. 19, 2001, available at www.defenders.org/wildlife/arctic/news/whitten.html.

(97) Id.

(98) Id.

(99) Id.

(100) Id.

(101) Whitten, supra note 89, (citing R.D. CAMERON, ALASKA DEPT. OF FISH & GAME, DISTRIBUTION AND PRODUCTIVITY OF THE CENTRAL ARCTIC HERD IN RELATION TO PETROLEUM DEVELOPMENT: CASE HISTORY STUDIES WITH A NUTRITIONAL PERSPECTIVE (1995)).

(102) Id. (citing C. Nellemann & R.D. Cameron, Terrain Preferences of Calving Caribou Exposed to Petroleum Development, 49 ARCTIC 23-28 (1996)); C. Nellemann & R.D. Cameron, Cumulative Impacts of an Evolving Oilfield Complex on Calving Caribou, 76 CAN. J. ZOOL. 1425-30 (1998).

(103) Whitten, supra note 89.

(104) The herd's population jumped from 20,000 in 1995 to 27,000 in 2000. Id.

(105) Id.

(106) 1987 EIS, supra note 53, at 40; ALASKA WILDERNESS LEAGUE, PROTECT AMERICA'S ARCTIC NATIONAL WILDLIFE REFUGE 6 (1997).

(107) In 1988, the Gwich'in Nation chiefs called a meeting of the entire nation for the first time in one hundred years in Arctic Village, Alaska, and created the Gwich'in Steering Committee, which consists of eight tribal members chosen by the chiefs--four from Alaska and four from Canada. "The Gwich'in Steering Committee was established by consensus resolution `to protect our people, caribou, land, air and water'.... The primary goal of the Gwich'in Steering Committee is to `establish Gwich'in cultural survival as a major issue in the debate over oil development in the Arctic National Wildlife Refuge.'" Gwich'in Steering Committee home page, at http://www.alaska.net/~gwichin/(last visited Sept. 21, 2002).

(108.) GWICH'IN NIINTSYAA, RESOLUTION TO PROHIBIT DEVELOPMENT IN THE CALVING AND POST-CALVING GROUNDS OF THE PORCUPINE CARIBOU HERD (1998), available at http://arcticcircle.uconn.edu/ANWR/anwrgwichinresolution.html [hereinafter RESOLUTION].

(109.) The Official Web site of Arctic Village, Alaska, at http://members.aol.com/akatha/arcticvillage.htm (last visited Sept. 21, 2002).

(110.) L.J. Campbell, Arctic Village, 20 ALASKA GEOGRAPHIC 65 n.3 (1993).

(111) Kaktovik, Alaska, population 225.

(112) 1987 EIS, supra note 53, at 7.

(113) Id. at 37. The ready availability of subsistence resources besides caribou explains Inupiat support for opening the 1002 Area to oil drilling: Development activities nearby will provide jobs for Kaktovik residents, and the possibility of a decline in Porcupine caribou will not make much of a difference to the Inupiat. Note that the Inupiat vigorously oppose offshore drilling projects because of the risks such activities pose to bowhead whale. See Manuel, supra note 26, at 11, citing North Slope Borough, Office of the Mayor, reprinted UNITED STATES ARMY ENG. DIST., ALASKA, FINAL ENVIRONMENTAL IMPACT STATEMENT: BEAUFORT SEA OIL AND GAS DEVELOPMENT/NORTHSTAR PROJECT Vol. 6, App. K (1999) (describing the risks offshore oil development poses to subsistence resources and "the Inupiat physical and cultural environment" as "unacceptable").

(114) 1987 EIS, supra note 53, at 2.

(115) Id. at 40.

(116) No section of the SAFE bill repeals the subsistence sections of ANILCA, which mandates that any approved use of ANWR be compatible with the use for which ANWR is intended. Alaska National Interest Lands Conservation Act, 16 U.S.C. [section] 3112 (2000).

(117) RESOLUTION, supra note 108; Campbell, supra note 110, at 67.

(118) U.S. Fish & Wildlife Serv., Arctic National Wildlife Refuge, Bears: Polar Bears, at http://www.r7.fws.gov/nwr/arctic/bears.html (last visited Sept. 21, 2002).

(119) 1987 EIS, supra note 53, at 130.

(120) Id. at 30.

(121) Lentfer, supra note 86.

(122) Id. The caribou are some of the only large mammals on the Coastal Plain during the Arctic winter.

(123) Id.

(124) Seismic exploration, for example.

(125) Lentfer, supra note 86. A "footprint" is the amount of surface area occupied by oil facilities. Julie Asher, Alaska's North Shore a Study in Contrasts, FOX News, Dec. 28, 2001, available at http://www.foxnews.com/story/0,2933,41721,00.html.

(126) Id. The Interior Department under Secretary Gale Norton has concluded that drilling in the 1002 Area would not violate the five-nation International Agreement for the Conservation of Polar Bears, in spite of the Fish and Wildlife Service's conclusions to the contrary. Michael Grunwald, Interior: Drilling Won't Violate Polar Bear Pact; Stance Contradicts Wildlife Agency's Drafts, WASH. POST, Jan. 18, 2002, at A23.

(127) Michael Grunwald, New Species Enters Debate on Arctic Oil, WASH. POST, Oct. 30, 2001, at A3. A spokesperson for Alaska Senator Frank Murkowski said the Senator believes it "extremely unlikely, if not entirely impossible, that any polar bears would be harmed" by oil development of the 1002 Area. Id. (quoting Murkowski spokesman Chuck Kleeschulte).

(128) 1987 EIS, supranote 53, at 31.

(129) 147 CONG. REC. H4987, 4988 (daily ed. July 31, 2001) (statement of Rep. Inslee (D-Wash.)). Inslee described what he saw in ANWR as "the most prolific bird life I have ever seen. I have tramped around a lot of back country in this country." Id.

(130) 1987 EIS, supra note 53, at 31-33.

(131) Id. at 149.

(132) POTENTIAL IMPACTS, supra note 42, at 11.

(133) 1987 EIS, supra note 53, at 149.

(134) POTENTIAL IMPACTS, supra note 42, at 9.

(135) U.S. Fish & Wildlife Serv., Arctic National Wildlife Refuge: Muskoxen, at http://www.r7.fws.gov/nwr/arctic/muskox.html (modified Aug. 30, 2002) [hereinafter Muskoxen].

(136) 1987 EIS, supra note 53, at 26.

(137) Id.

(138) POTENTIAL IMPACTS, supra note 42, at 9. About 350 muskoxen live in the entire refuge. Muskoxen, supra note 135.

(139) 1987 EIS, supra note 53, at 125. Muskoxen calf production has declined in the 1002 Area over the past few years. POTENTIAL IMPACTS, supra note 42, at 9.

(140) Id.

(141) 1987 EIS, supra note 53, at 27.

(142) Id.

(143) Id. at 26, Muskoxen, supra note 135.

(144) POTENTIAL IMPACTS, supra note 42, at 9.

(145) Id.

(146) 1987 EIS, supra note 53, at 124.

(147) Id. at 125.

(148) Examples of such activities include driving trucks, flying helicopters, digging gravel, building roads, and withdrawing oil from the ground.

(149) TRACKING, supra note 78, at 15.

(150) 1987 EIS, supra note 53, at 9; Ritter, supra note 5 ("A willow bush may grow 3 feet in 40 years. Trampled vegetation takes years to recover").

(151) TRACKING, supra note 78, at 15.

(152) A seismic test produces an image of subsurface geology by interpreting the recorded reflections of sound waves sent through the ground. U.S. Fish & Wildlife Serv., Arctic Refuge: Seismic Exploration For Oil), http://www.r7.fws.gov/nwr/arctic/seismic.html (last modified Aug. 30, 2002) [hereinafter Seismic Exploration].

(153) 1987 EIS, supra note 53, at 3-4. These are the most comprehensive tests yet conducted of how much oil is in the ANWR Coastal Plain, and the only ones to have involved exploratory drilling.

(154) Id. at 3.

(155) Seismic Exploration, supra note 152.

(156) 1987 EIS, supra note 53, at 4.

(157) Seismic Exploration, supra note 152.

(158) Ritter, supra note 5.

(159) 147 CONG. REC. H5127, 5160 (daily ed. Aug. 1, 2001) (statement of Rep. Johnson (D-Conn.)).

(160) TRACKING, supra note 78, at 14.

(161) Id. at 16.

(162) Id. at 6.

(163) "There is one 100 percent sure bet--drilling will change everything on the Coastal Plain forever. It will never be wilderness again." 147 CONG. REC. H5127, 5165 (daily ed. Aug. 1, 2001)(statement of Rep. Udall (D-Colo.)).

(164) See infra Part IV (describing BPXA's Prudhoe Bay operations).

(165) March 20, 2001 Letter, supra note 40.

(166) 147 CONG. REC. H5127, 5167 (daily ed. Aug. 1, 2001) (statement of Rep. Markey (D-Mass.)).

(167) "[T]he bottom line is this: you are defacing an American wilderness established during the Eisenhower administration. We should not let George Bush put asunder what the Dwight David Eisenhower administration created. We should not put a mustache on this Mona Lisa." (147) CONG. REC. H5127, 5156 (daily ed. Aug. 1, 2001) (statement of Rep. Inslee (D-Wash.)).

(168) Douglas was photographed eating a fried grayling during his visit. Debbie S. Miller, An Arctic Dream, 20 ALASKA GEOGRAPHIC 3, 43 (1993).

(169) WILLIAM O. DOUGLAS, MY WILDERNESS 31 (1960).

(170) ROGER W. KAYE, U.S.D.A. FOREST SERV., THE ARCTIC NATIONAL WILDLIFE REFUGE: AN EXPLORATION OF THE MEANINGS EMBODIED IN AMERICA'S LAST GREAT WILDERNESS 74 (2000).

(171) Federal law permits the exporting of Alaska North Slope oil unless the President decides "that exploration of this oil is not in the national interest." Amendment to the Mineral Leasing Act, Pub. L. No. 104-58, 109 Stat. 560 (1995) (codified at 30 U.S.C. [section] 185(s)(1) (2000)).

(172) Press Release, Alaska Governor Tony Knowles, Innovative Fish Processing Company Wins Export Award (May 22, 1997), available at http://www.gov.state.ak.us/press/pr052297.html.

(173) THE WILDERNESS SOCIETY, OIL AND NATIONAL SECURITY: SECURITY DOES NOT REQUIRE DRILLING THE ARCTIC NATIONAL WILDLIFE REFUGE 2 (2001), available at http://www.wilderness.org/newsroom/pdf/nationalsecurity.pdf.

(174) Amory B. Lovins & Hunter L. Lovins, Fool's Gold in Alaska, FOREIGN AFFAIRS, July/Aug., 2001 at 1.

(175) See STEVEN CLEMMER ET AL., AMERICAN COUNCIL FOR AN ENERGY-EFFICIENT ECONOMY INSTITUTE, CLEAN ENERGY BLUEPRINT: A SMARTER NATIONAL ENERGY POLICY FOR TODAY AND THE FUTURE (Oct. 2001) (proposing a plan for increasing energy efficiency and reliance on renewable energy sources), available at http://www.uscusa.org/publication.cfm?publicationID=95.

(176) 1998 ASSESSMENT, supra note 41, at 2. The scientists also conducted new field studies and analyzed newly acquired well, sample, and geophysical data. Id.

(177) Id. at 6.

(178) Id.

(179) "In-place" refers to the "amount of petroleum contained in accumulations of at least 50 MMBO [million barrels of oil] without regard to recoverability." Id. at 4.

(180) 1987 EIS, supra note 53, at 75.

(181) 1998 ASSESSMENT, supra note 41, at 6.

(182) Id.

(183) The term "petroleum" includes crude oil, natural gas, and natural gas liquids. Id. at 2.

(184) Id. at 3.

(185) "Technically recoverable oil: That portion of the in-place oil that can be retrieved using current drilling techniques, regardless of cost." The Wilderness Society, At Current Market Price, Oil Under Arctic Refuge not Economically Recoverable, THE ARCTIC TRUTH (2001).

(186) Although USGS calculated potential for all petroleum commodities in the 1002 Area, it only reported on crude oil because the presence of crude oil "determines the economic viability of resources on the North Slope." Id. at 2.

(187) "Economically recoverable oil: That portion of technically recoverable oil that can be pumped given a certain market price (for the Arctic, it's usually the price for Alaskan crude in West Coast markets)." The Wilderness Society, supra note 185.

(188) 1998 ASSESSMENT, supra note 41, at 6.

(189) The values are based on technically recoverable oil volume estimates. Id.

(190) Id.

(191) Id.

(192) Including "the costs of finding, developing, producing, and transporting oil to lower [sic] 48 West Coast market based on a 12 percent after-tax return on investment all calculated in constant 1996 dollars." Id.

(193) Id.

(194) Id.

(195) Id.; The Wilderness Society, supra note 185.

(196) Arctic Power, ANWR Prospects are Enormous by US. Standards, at http://www.anwr.org/features/enormous.htm (last visited Nov. 23, 2001).

(197) In response to the question "Based on best available data, what is the oil and natural gas potential of the 1002 Area?" Secretary of the Interior Gale Norton gave Alaska Senator Frank Murkowski only USGS estimates of technically recoverable off for the 1002 Ares. Letter from U.S. Department of the Interior Secretary Gale Norton to Senator Frank Murkowski, Ranking Member, Committee on Energy and Natural Resources (July 11, 2001), available at http://www.peer.org/alaska/ANWR02.PDF.

(198) William Neikirk, Bush Directs U.S. to Increase Oil Stockpile; Low Prices Spur Plan to Fill Tanks, CHI. TRIB., Nov. 14, 2001, at 5.

(199) ENERGY INFORMATION ADMINISTRATION SERVICE REPORT, THE EFFECTS OF THE ALASKA OIL AND NATURAL GAS PROVISIONS OF H.R. 4 AND S. 1766 ON U.S. ENERGY MARKETS 2 (2002), available at http://tonto.eia.doe.gov/FTPROOT/service/sroiaf(2002)02.pdf.

(200) "[D]omestic supply is shrinking, with U.S. oil production at its lowest level in more than 40 years ... [a]lthough production on the frontier areas of Alaska's North Slope could take almost a decade, allowing careful and environmentally sensitive exploration and production would help meet U.S. energy security goals." Arctic Power, Oil and Gas Leasing in the National Petroleum Reserve-Alaska: Leasing now would Benefit U.S. Energy Security, at http://www/ anwr.org/features/NPRA.htm (Mar. 1998).

(201) Arctic Power, Making a Case for ANWR Development: Too Much Imported Oil: Bad for the Economy, at http://www.anwr.org/case.htm (last visited Nov. 23, 2002).

(202) Id.

(203) Jay Ambrose, Case Now Stronger for Energy Plan, SCRIPPS HOWARD NEWS SERV. www.anwr.org/features/casestrong.htm (Sept. 17, 2001).

(204) See Martin & Kathleen Feldstein, Launching Economic Welfare, BOSTON GLOBE, Oct. 16, 2001, at D4 (advocating drilling in ANWR to increase domestic production and reduce U.S. dependence on foreign oil).

(205) CNN, supra note 17.

(206) "[D]rilling for oil in Alaska's Arctic National Wildlife Refuge, which [President Bush] will do, has become an issue of national security, to make the U.S. more self-sufficient. Both arguments sit well with blue-collar voters." Roland Watson, Hello, Fawlty? Look, We're Having a Little Trouble with this Guy Bush ..., TIMES (London), Jan. 21, 2002.

(207) See Neikerk, supra note 198, at 2 ("International events may disrupt the supply of oil at any time, making this program critical for helping protect the country from such events.").

(208) Eric Pianin & Peter Behr, Daschle Stops Panel's Consideration of Energy Bill, WASH. POST, Oct. 11, 2001, at A4.

(209) 1987 EIS, in which Reagan's Secretary of the Interior recommended drilling on the ANWR Coastal Plain, includes a photograph of Central Arctic caribou grazing on a field, while an oil drilling complex looms in the background. 1987 EIS, supra note 53, at 184.

(210) See supra Part II.B.1 (explaining how development in ANWR could affect the porcupine caribou herd more significantly than Prudhoe Bay operations have affected the Central Arctic caribou herd).

(211) Arctic Power, Interaction of the Oil Industry and the Arctic Environment, at http://www.anwr.org/techno/interact.htm (last visited Nov. 23, 2002).

(212) Arctic Power, Oil and Gas Activity on the North Slope, at http://www.anwr.org/techno/activity.htm (last visited Nov. 23, 2002).

(213) Arctic Power, Arctic Technology, at http://www.anwr.org/techno/technol.htm (last visited Nov. 23, 2002).

(214) See Infra Part III (analyzing SAFE's environmental protection provisions).

(215) "During the presidential campaign, few issues were as starkly debated as the fate of the Arctic National Wildlife Refuge." Frank H. Murkowski (R-Alaska), Editorial, Drilling Won't Make It Less or a Refuge, WASH. POST, Dec. 10, 2000, at B5.

(216) Mark Trumbull, Presidential Candidates on the Issues, CHRISTIAN SCI. MONITOR, Nov. 3, 2000, at 3.

(217) Michael Grunwald, Departmental Differences Show Over ANWR Drilling: Interior's Norton Rebuffs Wildlife Service in Senate Testimony, WASH. POST, Oct. 19, 2001, at A3.

(218) Editorial, ORLANDO SENTINEL, Sept. 24, 2001, at A16.

(219) Elizabeth Shogren & Deborah Schoch, Drilling Dispute is Back; Policy Environmental Debate, Now Quiet, is Likely to Turn Hot Again over the Arctic Refuge Issue, L.A. TIMES, Sept. 30, 2001, at A37.

(220) Helen Dewar, Defense Spending Bill is Approved by Senate; GOP Drops Effort to Include Energy Proposals, WASH. POST, Oct. 3, 2001, at A3.

(221) Ellen Yan, America's Ordeal: Senate GOP Pushes for Arctic Drilling, NEWSDAY, Sept. 29, 2001, at A20.

(222) Eric Pianin, War Effort Pushes `Green' Efforts Aside, WASH. POST, Oct. 21, 2001, at A5.

(223) Don Feder, U.S. Security Demands Arctic Drilling, BOSTON HERALD, Nov. 12, 2001, at O21.

(224) H.R. SUBCOMM. ON WATER, POWER, AND OFFSHORE ENERGY RESOURCES, TRANS-ALASKA PIPELINE: ENSURING THE PIPELINE'S SECURITY 5 (1991).

(225) 147 CONG. REC. H4994 (daily ed. Aug. 1, 2001) (statement of Rep. Tiahrt (R-Kan.)).

(226) Id. at H4995 (statement of Rep. Hastings (R-Wash.)).

(227) Id. at H5176.

(228) H.R. 4, 107th Cong. (2001).

(229) Marie Cocco, The Real Energy Crisis is American Addiction to Oil, NEWSDAY, Jan. 24, 2002, at A39.

(230) H.R. 4, [subsections] 101-65.

(231) Id. [subsections] 301-09.

(232) Id. [subsections] 401-02.

(233) Id. at Div. F.

(234) Id. [subsections] 3101, 3104 (providing federal income tax credit for persons who acquire energy through alternatives to nonrenewable resources).

(235) Id. [section] 3107 et seq. (providing tax credits for energy efficiency).

(236) 147 CONG. REC. H5127, 5168 (daily ed. Aug. 1, 2001) (statement of Rep. Markey (D-Mass.)).

(237) Supra Part II (describing the positions in the ANWR drilling debate).

(238) See id. (describing the drilling proponent position).

(239) 147 CONG. REC. H4994 (daily ed. Aug. 1, 2001) (statement of Rep. Sherman (D-Cal.) decrying the SAFE bill for giving the oil industry "$30 billion in tax cuts and another $7 million in rollbacks and royalties"); 147 CONG. REC. H4987, 4987 (daily ed. July 31, 2001) (statement of Rep. Inslee (D-Wash.) decrying "[b]illions of dollars in tax incentives, not for a new industry but for something that we have been doing for over 100 years, drilling holes in the ground to get oil and gas").

(240) Id. at 4988 (statement of Rep. Inslee (D-Wash.) that "[i]t is in the [oil and gas] industry's interest to pass pipeline legislation").

(241) Id. (statement of Rep. Inslee).

(242) 1998 ASSESSMENT, supra note 41.

(243) Making a Case for ANWR Development, supra note 201.

(244) NATURAL RESOURCES DEFENSE COUNCIL, PARKS, FORESTS & WILDLANDS: WILDERNESS PRESERVATION: IN DEPTH: TECHNICAL BRIEF, THE ARCTIC NATIONAL WILDLIFE REFUGE: DRILLING IN THE REFUGE VS. ENERGY EFFICIENCY, available at http://www.nrdc.org/land/wilderness/anwr/anwr3.asp (last visited Nov. 23, 2002).

(245) H.R. 4, [subsections] 201-207.

(246) 147 CONG. REC. H5127, 5133 (daily ed. Aug. 1, 2001) (Boehlert-Markey Amendment No. 3, voted down 160 ayes to 269 nayes, with 4 not voting).

(247) Congress imposed these standards through the Energy Policy and Conservation Act of 1975, Pub. L. 94-163, [section] 2, 89 Stat. 874 (codified at 42 U.S.C. [section] 6201 (2000)).

(248) 147 CONG. REC. H5127, 5127 (daily ed. Aug. 1, 2001) (statement of Rep. Tauzin (R-La.)).

(249) "[I]f the Boehlert amendment passes, Americans will die in increasing numbers on the highways because the automobile industry will have no choice with this extreme, radical change in CAFE numbers but to lighten up the vehicles and downweight them." Id

(250) Id. at 5128 (statement of Rep. Ehlers (R-Mich.)).

(251) See id. at 5127 (statement of Rep. Kilpatrick (D-Mich.), arguing that fuel efficiency cannot be rushed because manufacturers, including General Motors and Ford, have already "established their production lines for the next five model years").

(252) Id. (statement of Rep. Tauzin (R-La.)).

(253) Id. Representative Inslee added:

   [E]ven in the optimistic assessments of what we could do by
   destroying this Arctic Refuge, destroying what I believe is
   the heart of a unique ecosystem, if we simply increased our
   CAFE standards, our average mileage standards for our cars,
   by 1 1/2 miles a gallon, just a tiny little scintilla of an
   improvement, we would save more oil and gas than we are ever
   going to get out of the Arctic Refuge over decades. We have a
   clear option.

147 CONG. REC. H4987, 4988 (daily ed. July 31, 2001) (statement of Rep. Inslee (D-Wash.)).

(254) Division F, Title V of SAFE is devoted entirely to the subject of leasing the ANWR Coastal Plain for public drilling. H.R. 4, 107th Cong. (2001).

(255) Id. [section] 6503(b).

(256) Id. [section] 6503(a).

(257) Id. [section] 6507(a)(1).

(258) Id. [section] 6507(a)(2).

(259) 30 U.S.C [section] 181 et seq. (2000).

(260) H.R. 4, 107th Cong., [section] 6503 (a)(1).

(261) Id. [section] 6504(c).

(262) Id. [section] 6505(a).

(263) Id. [section] 6503(c)(3).

(264) Id.

(265) Id.

(266) Id.

(267) See, e.g., Endangered Species Act of 1973, 16 U.S.C. [section] 1533(a)(1) (2000) (requiring Interior Secretary to determine whether a species is threatened or endangered); 43 U.S.C. [section] 2005(a) (2000) (requiring Interior Secretary to assess environmental impacts of crude oil transportation systems).

(268) See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (holding that the standard used by a court examining an agency decision is a narrow one and that "[t]he court is not empowered to substitute its judgment for that of the agency"); Id.; Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984) (holding that a court reviewing an agency's statutory interpretation must decide whether the agency's interpretation is permissible and not substitute its own interpretation for the agency's).

(269) Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2000).

(270) Asarco, Inc. v. United States Envtl. Prot. Agency, 616 F.2d 1153, 1159 (9th Cir. 1980) (declaring "[a] satisfactory explanation of agency action ... essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency's decision, but on whether the ... agency [reached its decision by considering] all the relevant factors").

(271) See Hill v. Norton, 275 F.3d 98, 105 (D.C. Cir. 2001) (finding Secretary Norton's failure to include mute swans on list of migratory birds protected by Migratory Bird Treaty Act "arbitrary and capricious"); Defenders of Wildlife v. Norton, 258 F.3d 1136, 1146 (9th Cir. 2001) (finding Secretary Norton's decision not to recommend flat-tailed lizard for Endangered Species Act (ESA) protection "arbitrary and capricious" because she failed to explain satisfactorily her conclusion that a reduction in lizard habitat was not "significant"); Cent. for Biological Diversity v. Norton, 254 F.3d 833, 840 (9th Cir. 2001) (finding Secretary Norton's response to petition requesting ESA protection for gila chub and chiricahua leopard frog violated ESA).

(272) See 16 U.S.C. [section] 1633(b) (2000) (setting out detailed requirements for how the Secretary determines whether to accord protected status to a species).

(273) See infra Part III B. 1-5 (detailing paucity of lease sale procedural hoops in SAFE).

(274) H.R. 4, 107th Cong. [subsections] 6503, 6507 (2001).

(275) Id. [section] 6503.

(276) 16 U.S.C. [section] 3143 (2000).

(277) H.R. 4, 107th Cong. [section] 6503(a)(2).

(278) Id. [section] 6507.

(279) Id. [section] 6507(a)(1) (emphasis added).

(280) H.R. 4, [section] 6503(a) (emphasis added).

(281) See Babbitt v. Sweet Home Chapter of Comtys. for a Great Or., 515 U.S. 687, 708 (1995) (declining to substitute the Court's views of wise policy for the Secretary of the Interior's where the Endangered Species Act entrusts the Secretary with broad discretion to interpret terms involving a complex policy choice); Chevron, 467 U.S. 837, 865-66 (1984) (according substantial deference to the Environmental Protection Agency's interpretation of the Clean Air Act).

(282) "Parturition and recruitment data do not support the hypothesis that oil fields adversely affect caribou productivity." Letter from United States Department of the Interior Secretary Gale Norton to Senator Frank Murkowski, Ranking Member, Committee on Energy and Natural Resources (July 11, 2001), available at http://www.peer.org/alaska/ANWR02.PDF.

(283) Bob Marshall, Bush's Energy Bill is a Threat to Outdoors People, TIMES PICAYUNE (New Orleans), Sept. 16, 2001, at 6.

(284) Asarco, 616 F. 2d 1153, 1159 (9th Cir. 1980).

(285) H.R. 4, 107th Cong. [section] 6507(a)(2) (2001).

(286) Id. [section] 6503(a)(2).

(287) Id. [section] 6507(a)(1)-(2).

(288) Id. [section] 6507(a)(2).

(289) See Chevon, 467 U.S. 837, 865-66 (1984) (invoking deferential standard in evaluating EPA's interpretation of the Clean Air Act).

(290) Federal Water Pollution Control Act, 33 U.S.C. [section] 1314 (b)(2)(B) (2000).

(291) Id. [section] 1316 (a)(1) (emphasis added).

(292) See, e.g., E.I. Du Pont de Nemours & Co. v. Train, 430 U.S. 112, 121 (1977) (applying the Clean Water Act's provisions to determine that EPA had acted within its scope of authority in setting uniform effluent limitations for categories of industrial plants).

(293) Securing America's Future Energy Act of 2001, H.R. 4 [section] 6507(a)(2) (2001).

(294) Id. [section] 6507(b).

(295) Presumably these persons include lease purchasers; the subsection that follows "Site-Specific Assessment and Mitigation" requires the Secretary to impose conditions and restrictions before implementing the leasing program. Id. [section] 6507(c).

(296) Id. [section] 6507(b)(1).

(297) Id. [section] 6507(b)(2) (emphasis added).

(298) Id. [section] 6507(b)(3) (requiring either the lease purchasers or the Secretary to consult with "the agency or agencies having jurisdiction over matters mitigated" before developing the plan).

(299) Id. [section] 6507(c).

(300) Id.

(301) Id. [subsections] 6503(a)(1), 6507(a)(1).

(302) Id.

(303) Secretary Norton, longtime lawyer for the Mountain States Legal Foundation (an industry-funded, free-market environmentalist think tank), will approach regulating oil and gas development in ANWR from the perspective of a frequent challenger of the environmental restrictions Washington places on entrepreneurs. She believes strongly in not overregulating timber, gas, and mineral exploration. She says: "I've always been concerned by the notion that you had to protect the environment only through strong government action. I crone to the realization that ... those in Washington who make the regulations very often have no understanding of the impact." Michael Powell, The Westerner's Interior Motives To Gale Norton, Ranchers and Environmentalists Don't Have to Be at Loggerheads, WASH. POST, Mar. 13, 2001, at C1.

(304) Securing America's Future Energy Act of 2001, H.R. 4 [section] 6507(c) (2001).

(305) Id. [section] 6503(a)(2).

(306) 42 U.S.C. [section] 4332(2)(C) (2000).

(307) H.R. 4 [section] 6503 (c)(3) (2001). The Secretary must pick a "preferred action" for leasing and present it in the EIS within eighteen months of the date of SAFE's enactment. Id.

(308) Id. [section] 6503(a)(2).

(309) Id. [section] 6503(c)(2).

(310) One leasing idea would be the "preferred action"; the other, "a single leasing alternative." Id. [section] 6503(c)(3).

(311) Id.

(312) Id. Most federal statutes that require agencies to consider public comments either entrust the time frame for accepting public comments to the discretion of the relevant agency, or provide a window of opportunity for public comments greater and more flexible than twenty days. See, e.g., 42 U.S.C. [section] 300g-4(a)(1)(A)(ii) (2000) (requiring a public water system administrator to provide notice and opportunity for public comment on unregulated contaminant listings on an ongoing basis); 19 U.S.C. [section] 2578(d) (2000) (requiring agencies representing the United States in setting international sanitary and phytosanitary standards to consider and take into account public comments, and leaving the time frame for submission of such comments to the discretion of the agency); 16 U.S.C. [section] 1862(c)(2) (2000) (requiring the Interior Secretary to accept public comments on proposed fisheries research plan for sixty days, and hold public hearings in affected states); 42 U.S.C. [section] 1395hh(b)(1) (2000) (requiring the Health and Human Services Secretary to provide a period of "not less than 60 days for public comment" on insurance plan regulations); 42 U.S.C. [section] 2022(c)(1) (2000) (requiring the EPA administrator to provide a period of "at least thirty days" for public comments on rules to protect public health and the environment from radioactive material hazards in inactive uranium mill tailings and depository sites).

(313) H.R. 4 [section] 6503(c)(3) (2001).

(314) The Act establishes the purpose of the National Wildlife Refuge System as administration of a "national network of lands and waters for the conservation, management, and ... restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. [section] 668dd(a)(2) (2000).

(315) H.R. 4 [section] 6503(c)(1).

(316) Id.

(317) See supra Part II.B (describing wilderness proponent objections to drilling ban lift).

(318) "It is not as clear as night following day that if somewhere is opened up, we would go in." David Buchan, Mergers Over, Now Primed for Economic Growth, FINANCIAL TIMES (London), Feb. 17, 2001, at 18 (quoting British Petroleum Amoco Chief Executive Officer Sir John Browne).

(319) Neela Banerjee, Can Black Gold ever Flow Green?, N.Y. TIMES, Nov. 12, 2000, at A1.

(320) Kim Clark, Danger in the Oil Patch, U.S. NEWS & WORLD REP., Aug. 6, 2001, at 21.

(321) Manuel, supra note 26, at 5.

(322) Banerjee, supra note 319, at 1.

(323) Buchan, supra note 318, at 18.

(324) See British Petroleum web site, at http://alaska.bp.com/alaska/ (last visited Nov. 23, 2002).

(325) Brad Knickerbocker, Above Arctic Oil Reserves: Old Ways, Satellite Dishes, CHRISTIAN SCI. MONITOR, Aug. 1, 2001, at 1 (quoting BPXA spokesman Ronald Chappel).

(326) See infa Part IV.B (detailing BPXA Prudhoe Bay operations).

(327) See id. (detailing BPXA oil spills in Prudhoe Bay).

(328) See supra Part III.B.1 (analyzing SAFE's "significant adverse effect" standard).

(329) British Petroleum web site, supra note 324.

(330) Id. at http://alaska.bp.com/alaska/index_env.htm/wildlife/.

(331) Id.

(332) Buchan, supra note 318.

(333) British Petroleum web site, supra note 324.

(334) Id.

(335) Id.

(336) Banerjee, supra note 319, at 1. On September 23, 1999, BPXA reached a plea agreement with the United States government, in which BPXA agreed to plead guilty to one felony count of knowingly failing to report crude oil dumping in violation of the Comprehensive Environmental Response, Compensation, and Liability Act, acknowledge responsibility for the acts and omissions constituting the crime, pay the maximum criminal fine of $500,000, and be placed on five years' probation. Plea Agreement, supra note 28.

(337) Infoplease Arias, Alaska, at http://www.infoplease.com/atlas/state/alaska.html (last visited Nov. 23, 2002).

(338) Historical Archive of Additions to ANWRNews.com, at http://anwrnews.com/whats_new.asp (last visited Nov. 23, 2002).

(339) A BPXA field employee who spent twenty-two years working in Prudhoe Bay compared BPXA management to "a drunk driver that is your boss and insists on driving you home." Tony Hopfinger, Second BP Vet Blows the Whistle, ANCHORAGE DAILY NEWS, Mar. 13, 2002, at F1.

(340) Letter to Sir John Brown regarding unsafe operations, http://www.anwrnews.com/reports/faulty_new_technology /letter_to_sir_john_browne.asp (last visited Nov. 23, 2002).

(341) Jim Carlton, In Alaskan Wilderness, `Friendlier Technology' gets Cold Reception, WALL ST. J., Apr. 13, 2001, at A1.

(342) BP AND THE ENVIRONMENT, supra note 30, at 2-2 (promising to "[o]penly listen, consult and respond to" employees' concerns in meeting BPXA's health, safety, and environmental performance policy).

(343) Duncan Campbell, Workers Join the Lobby War for Alaskan Oil: Staff Fears for Safety Set Against a Union's Hope of Jobs in Bush's Plan for Arctic Drilling, THE GUARDIAN (London), July 26, 2001, at 19.

(344) Jim Carlton, BP Gives Details of Problems at Prudhoe Bay, WALL ST. J., Nov. 9, 2001, at A11.

(345) BPXA, REVIEW OF OPERATIONAL INTEGRITY CONCERNS AT GREATER PRUDHOE BAY 4 (2001), available at http://www.anwrnews.com/archive/ORTFinalReport.pdf [hereinafter PRUDHOE BAY REPORT].

(346) Id. at 9-10.

(347) Id. at 10.

(348) Id. at 11.

(349) Id. at 12.

(350) Id. at 13.

(351) "Open-air skids" are oil development and production facilities constructed outside of modular buildings.

(352) Report to BP Management from Badami Engineers, at http://anwrnews.com/reports/Faulty_New_Technology/Example1 /Engineers_Report.asp (detailing problems with existing open-air skids) (last visited Nov. 23, 2002).

(353) Id.; PRUDHOE BAY REPORT, supra note 345, at 39.

(354) PRUDHOE BAY REPORT, supra note 345, at 40.

(355) "There are eight open-air skids of varying complexity in [BPXA's Prudhoe Bay facilities]. Two more are being installed." Id. at 39.

(356) "Many [BPXA Prudhoe Bay field personnel] believe open-air skid designs are driven by capital cost considerations alone." Id at 11.

(357) Tony Hopfinger, Workers Convinced BP Valve is Faulty, ANCHORAGE DAILY NEWS, Jan. 9, 2002, at A1 (reporting BPXA announcement that the company would replace a faulty oil and gas leak isolation valve nearly four years after workers first brought the problem to management's attention).

(358) Specifically, the company states:

   Safety in BP is a value not a programme. We are clear that the
   goal of `no accidents' stated in our HSE policy is where we
   want to get. To enable us to reach this goal, we have
   established programmes that encompass a wide range of activities
   and initiatives right across the organization. We have a
   continuous improvement strategy for safety through 2001 and
   this includes: Leadership and accountability; [p]eople, training
   and behaviours; assessment, assurance and improvement; [l]earning
   from incidents and near misses. This section provides information
   on the fatalities that we have experienced through 2000,
   additional information and data on our accident and illness
   incidents as well as discussions on road safety and process
   safety which are our two major incident causes."

British Petroleum, Corporate Reporting: HSE Performance: Safety Issue, at http://www.bp.com/corp_reporting/hse_perform/safety/index.asp (also on file with the author).

(359) British Petroleum, Corporate Reporting: Environmental and Social Attestation, at http://www.bp.com/corp_reporting/gov_policy /audit_sys/rpt_attestation/index.asp (also on file with the author).

(360) British Petroleum, Corporate Reporting: Conclusions, at http://www.bp.com/corp_reporting/gov_policy/audit_sys /rpt_attestation/conclusions.asp (also on file with the author).

(361) See British Petroleum, Welcome to BP's North Slope Environmental Studies, at http://www.bp.com/alaska/index_envstudies.htm (detailing the work of BP's Environmental Studies Group) (last visited Nov. 23, 2002).

(362) Press Release, British Petroleum, BP to Hold Enviroumental Studies Symposium, http://www.bp.com/alaska/index_qa.htm (last visited Nov. 23, 2002) (press release on file with author).

(363) T.R. KLETT et al., RANKING OF THE WORLD'S OIL AND GAS PROVINCES BY KNOWN PETROLEUM VOLUMES, U.S. Geological Survey Open File Report 97-463, available at http://energy.cr.usgs.gov/oilgas/wep/index.htm (last visited Nov. 23, 2002).

[c] Samuel Stanke, 2002. Associate Editor, Environmental Law 2002-2003, J.D. expected May 2003, Lewis & Clark Law School; B.A. 1998, University of Wisconsin-Madison. Thanks to Christine Fisher, Professor Don Large, and Kyle Riley.