Today’s Key Takeaways: 9th circuit says “no” to Berkeley natural gas hookups. Alaskans ask 9thcircuit to back Willow project. North Slope and Northwest Arctic boroughs sign joint resolution in favor of Ambler. Pentagon concerned about offshore wind.
NEWS OF THE DAY:
Berkeley Ban on Natural Gas Hookups Tossed by Ninth Circuit
Maya Earls, Samantha Hopkins, Bloomberg Law, April 17, 2023
- Ordinance preempted by federal law, restaurant group argued
- Law doesn’t apply to gas distribution, city said
A California city’s ordinance banning natural gas hookups in new buildings was toppled Monday by the Ninth Circuit, which said that the ordinance is preempted by federal law.
The panel’s decision was a win for the California Restaurant Association, which argued the Berkeley, Calif., ordinance was preempted by the Energy Policy and Conservation Act. The city said the ordinance would help control emissions and “eliminate obsolete natural gas infrastructure.” But it effectively amounted to a ban on natural gas appliances, the CRA told the US Court of Appeals for the Ninth Circuit.
“Berkeley can’t bypass preemption by banning natural gas piping within buildings rather than banning natural gas products themselves,” the panel wrote.
The US District Court for the Northern District of California ruled in July 2021 that it couldn’t read the EPCA to preempt the ordinance when the ordinance “does not directly regulate either the energy use or energy efficiency of covered appliances.” Berkeley’s ban on natural gas infrastructure in new buildings is “clearly outside the preemption provision of the EPCA,” the court said.
Alaska lawmakers call on 9th Circuit to back Willow
Niina H. Farrah, Energywire, April 17, 2023
Supporters of the Biden-approved Alaska oil project urged the court to allow construction to proceed.
Alaska’s congressional delegation urged a prominent West Coast appeals court late Friday to reject efforts to halt construction of ConocoPhillips’ controversial Willow project in a remote portion of Alaska’s North Slope.
The 9th U.S. Circuit Court of Appeals is weighing a request from environmentalists to reverse an order from a lower bench that cleared the way for limited winter construction on the $8 billion oil project in the National Petroleum Reserve-Alaska after an approval from the Biden administration.
Alaska Republican Sens. Lisa Murkowski and Dan Sullivan, Democratic Rep. Mary Peltola and state lawmakers warned in a “friend of the court” brief that a 9th Circuit order blocking the project “would do considerable harm to the public interest — including at the local, state, and national levels.”
The Interior Department’s Bureau of Land Management, ConocoPhillips and the project’s other supporters also urged the 9th Circuit in a series of filings late Thursday to allow work that began earlier this month to continue.
“Plaintiffs fail to show that the district court abused its discretion or clearly erred in its factual findings” when it issued its preliminary order earlier this month, BLM told the 9th Circuit.
State officials and Alaska Native corporations also warned of broader consequences for Willow if the already-delayed project were pushed back until the next winter construction season.
A court order preventing ConocoPhillips from working on a gravel mine, gravel roads and other initial construction could prompt ConocoPhillips to defer millions — or even billions — of dollars in investments away from Alaska, “perhaps permanently,” said Derek Nottingham, director of the state’s oil and gas division, in a filing to the court.
“Given the delays to the project to date, the viability of the development as a whole is subject to the project schedule proceeding as designed,” Nottingham said.
ConocoPhillips said reversing the lower court’s order no longer makes sense, given the company’s progress on its winter construction targets.
Environmental groups had sued to prevent work on a 10-acre gravel mine, but the company has now completed surface excavation at the gravel site. The company is now extracting gravel, building a safety berm and constructing a road, ConocoPhillips told the 9th Circuit.
“An order halting that work now cannot provide Plaintiffs any relief and instead would create environmental and public safety hazards,” ConocoPhillips said. “Equity is not served by such a result.”
Indigenous and environmental groups sued the BLM after it approved construction of three oil drilling areas in the 23-million-acre reserve in March.
The Trump administration initially approved a larger version of Willow, but Judge Sharon Gleason of the U.S. District Court for the District of Alaska blocked the project in a 2021 order. She ruled BLM’s analysis of the project’s impacts fell short of the agency’s duties under the National Environmental Policy Act.
It was also Gleason, an Obama appointee, who issued the order last month allowing the latest version of the project to move forward.
The Kuukpik Corp., which is close to Willow and had previously opposed the Trump-approved project, said the 9th Circuit should now allow ConocoPhillips to continue its work, since the newly approved design incorporated changes the corporation had long advocated.
The project “may come as close to minimizing impacts and maximizing benefits as is practically achievable,” the corporation said. “That is why Kuukpik, after not supporting the 2021 Project, supports Willow as approved and wants to see this version of Willow go forward without delay.”
Two Arctic boroughs support Ambler Road
Shane Lasley, North of 60 Mining News, April 14 2023
North Slope and Northwest Arctic boroughs ink joint resolution in favor of Ambler access.
The Northwest Arctic and North Slope borough have put their combined political weight behind an effort to push the U.S. Department of Interior to expediently reapprove a road to the copper- and zinc-rich Ambler Mining District in Northwest Alaska.
Located about 200 miles west of the Dalton Highway, a lone transportation artery that connects Alaska’s North Slope with the rest of the state, the Ambler Mining District is rich in high-grade deposits of copper, zinc, and other metals critical to a world transitioning to clean energy.
A proposed industrial access road that runs 211 miles west from the Dalton Highway would provide an economical means of delivering mineral concentrates enriched with copper, zinc, silver, and cobalt to markets demanding reliable supplies of these energy transition metals.
In 2020, the U.S. Bureau of Land Management and National Park Service, both of which fall under the Interior Department, approved the federal authorizations needed to build this road formally known as the Ambler Access Project.
Roughly a year ago, however, BLM notified the Alaska Industrial Development and Export Authority, which would build the road and recoup expenses from tolls charged to mining companies, that it had suspended its Ambler Road authorizations for further review.
The federal land manager cited a lack of adequate consultation with Alaska tribes and evaluation of potential impacts the road might have on subsistence uses as reasons to remand the previously issued authorizations.
The Northwest Arctic and North Slope boroughs, which represent a combined 19 Alaska Native communities across 135,500 square miles of Alaska’s northernmost reaches, contend that responsible development can go hand-in-hand with protection of subsistence culture and resources.
The joint resolution approved by both borough assemblies also underscores the importance of copper, zinc, cobalt, and other metals found in the Ambler District to manufacturing electric vehicles, renewable energy infrastructure, high-tech devices, and defense systems.
“Resource development, when carried out in a way that respects our subsistence lifestyle, culture, and the wellbeing of the land has the potential to create progressive economic and employment outcomes for the people of our communities,” said Northwest Arctic Borough Mayor Dickie Moto.
PENTAGON RAISES CONCERN ON MID-ATLANTIC OFFSHORE WIND PROJECTS: The Pentagon is raising concerns about the Biden administration’s planned offshore wind project locations in the mid-Atlantic, citing the areas as “highly problematic” in a threat to Biden’s larger goal of reaching 30 GW of offshore wind power by 2030.
The areas in question include real estate off the coasts of North Carolina, Delaware, Virginia, and Maryland, according to documents reported by Bloomberg—all sites that were earmarked for offshore leasing by DOI last year.
The Pentagon has cited concerns with its ability to operate around the turbines, noting that the installations would be located near several of its facilities, including the Dare County bombing range in North Carolina and a Yorktown, Virginia weapons station. Per Bloomberg, the areas deemed highest concern by DOD span a “large portion” of potential lease areas off the coasts of Maryland and North Carolina. (Neither DOD nor BOEM responded to requests for comment.)
Past is prologue: The clash is reminiscent of 2010, when the two agencies went head-to-head over a proposed offshore oil leasing site near Virginia. The Defense Department concerns ultimately helped derail the plans—and similarly, their objections over the offshore wind locations are causing industry jitters. It will certainly be an area to watch…
From the Washington Examiner Daily on Energy