Trump’s path to ‘energy dominance’ in Alaska has a key opponent: Lawyers

Erik Grafe at Earthjustice’s office in downtown Anchorage. (Photo by Elizabeth Harball/Alaska’s Energy Desk)

This March, lawyer Erik Grafe won a big case. And he didn’t win against just anyone, either.

Along with coalition of other environmental groups, Grafe won against the president of the United States.

Grafe is an attorney with Earthjustice in Anchorage. He was one of the lawyers behind a significant court decision in March, when a judge in Anchorage struck down Donald Trump’s executive order re-opening vast portions of the Arctic Ocean to oil leasing, after former President Barack Obama banned development there in 2016. The Trump administration is appealing. But for the time being, the ruling has effectively hobbled the administration’s push to expand oil drilling opportunities in some 125 million acres of the Beaufort and Chukchi seas.

Early on, the Trump administration made expanding oil development in Alaska’s federal lands and waters a priority, with former Interior Secretary Ryan Zinke proclaiming “the only path for energy dominance is a path through the great state of Alaska.”

Earthjustice, Grafe said, “is built for this moment.”

“We’re there to stop them by making sure that the laws that are meant to protect those areas, that are meant to allow the public to be involved in those decisions — that they’re upheld,” Grafe said.

The offshore drilling case highlights the key role of the courts as the Trump administration pursues its vision for Alaska. Two and a half years into this administration, when it comes to the “path for energy dominance,” lawyers in Alaska like Grafe have proven to be significant impediments.

But now, they’re gearing up for the most high-profile court battle yet: oil development in the Arctic National Wildlife Refuge’s Coastal Plain. The first major opportunity for groups to sue will come this fall, when Interior is slated to release its final environmental analysis on a planned oil lease sale there.

Legal teams working for environmental groups have been preparing for this fight from the minute Trump took the White House, according to Brook Brisson, a senior staff attorney at Trustees for Alaska.

Brook Brisson, an attorney with Trustees for Alaska, in the Arctic Refuge near the Kongakut River and Brooks Range foothills in 2012. (Photo courtesy Brook Brisson)

Drilling in the Refuge may now be legal, but it still must comply with a bevy of other laws, like the National Environmental Policy Act, the Endangered Species Act and the Alaska National Interest Lands Conservation Act, to name a few.

“The tax law did not wipe any of those off the books,” Brisson said. “What we do in our work now is to make sure that whatever program they are going to try to put in place complies with the law, and if they don’t, our role will be to hold them accountable.”

Environmental groups and their lawyers have been critical of the work Interior has done so far. In March, they sent an over 400-page letter to the Bureau of Land Management picking apart the agency’s draft environmental analysis for oil leasing on the Coastal Plain.

“BLM’s draft EIS is so lacking and its analysis so flawed that bringing it into compliance with legal mandates will require significant revisions,” the letter stated.

Another criticism often lodged against Interior’s efforts to hold an oil lease sale in the refuge has been speed.

“You just can’t create an oil and gas leasing program, much less analyze fully a potential lease sale in an area that hasn’t had a history of that in two years or even less, really. You’re not going to make the right call on that,” said Peter Van Tuyn, a longtime environmental attorney in Alaska. “When you have that kind of rush, you’re guaranteeing litigation — that’s no surprise to anybody. I also think you’re increasing the likelihood of being reversed in court.”

In response to that charge, Interior officials have asserted they are not cutting corners, claiming that because the Coastal Plain oil lease sale is a top priority, more staff time and resources are being devoted to the project.

As with the dispute over Arctic offshore drilling, the courts will likely determine who is right. And to be sure, lawyers on both sides acknowledge lawsuits over Arctic Refuge drilling are virtually guaranteed, no matter how long Interior works on it.

In response to an interview request for this story, Interior spokesperson Molly Block declined to comment on litigation directly. In an email, Block said, “Congress has given the Department clear direction to establish and administer a competitive oil and gas program on the Coastal Plain.”

Eric Fjelstad, a partner at the law firm Perkins Coie in Anchorage who often represents oil, gas and mining companies, cautioned against giving lawyers too much credit for influencing the fate of the Trump Administration’s plans in Alaska. Economics are key, he said.

“From my perspective in the trenches, the markets, what’s happening with the economics of a project, its marketability, its ability to get financed — those are still the outsize issues that primarily drive whether things happen or not,” Fjelstad said.

But Fjelstad acknowledged litigation “plays, certainly, a real role in things here” due to the vast amount of federal land in the state.

In Alaska, the pro-oil development side frequently points out that big green groups that sue to halt oil drilling are often based out of state. For that reason, environmental litigation is often cast as the work of interlopers, set on shutting down one of the state’s primary economic drivers, and who don’t have Alaska’s best interest at heart.

Grafe lives and works in Anchorage, but Earthjustice is a national group, headquartered in San Francisco. Still, he rejects that narrative.

“We are no more interlopers than the oil companies, for example, which are multinational corporations, after all, interested in extracting resources, which by its definition means taking wealth from the state, out of the state,” Grafe said.

Grafe added that public lands belong to all Americans, not just Alaskans.

And no matter what the White House’s agenda is — whether it’s to halt oil drilling to deal with climate change, or to pursue “energy dominance” — all Americans have a right to challenge that agenda in court.

Alaska has a lot going on right now.

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