Doing it Wrong, Alaska-Style: State Coastal Protection Laws
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Doing it Wrong, Alaska-Style

On May 3 2002, the Alaska Supreme Court unanimously ruled that the State of Alaska’s approval of Forest Oil Company’s exploratory drilling project in Cook Inlet violated the state’s coastal management law because the State did not analyze all of the environmental impacts of the drilling project. The Alaska Legislature’s reaction? It quickly pushed through a bill—with very little debate and no Senate hearing—creating new exemptions from state coastal protection laws that work to the benefit of polluting industries. What’s more, the coastal protection exemptions were packaged with another piece of last-minute legislation, SB 371, that exempts toxic pollution from munitions ranges from state waste permitting laws. Thus, in a single bill, the Legislature weakened two laws that were designed to protect Alaska’s fisheries, water quality, and other coastal resources.

Forest Oil’s “Osprey” oil exploration project was originally planned to include four exploration wells, discharging hundreds of thousands of gallons of toxic drilling wastes and other wastewater every day into the fisheries of Cook Inlet. The Alaska Coastal Management Program (ACMP) is a federally-funded program that requires the State to review every project in Alaska’s coastal zone according to standards established to protect coastal ecosystems and fisheries. The State reviewed the Osprey project for consistency with these coastal standards, but failed to consider the ACMP habitat standards and excluded from its review the toxic wastewater discharges. Trustees for Alaska attorneys Mike Frank and Becca Bernard represented Cook Inlet Keeper, a watershed protection group based in Homer, in a legal challenge to this review. Just a few weeks ago, Forest Oil began work on a fifth exploration well without any ACMP consistency review at all, but was stopped by an emergency injunction issued by the Alaska Supreme Court at Cook Inlet Keeper’s request. The Court then unanimously decided the case in our favor and vacated the contested consistency review. The court’s decision was hailed by conservationists as an important precedent for future Cook Inlet oil development projects—and then the oil lobbyists went to the Legislature.

Within a week after the Supreme Court decision, Senator Gene Therriault introduced an amendment to S.B. 371 that allows the State to exempt wastewater discharges like those from the Osprey project from ACMP review. “Today’s vote was a textbook example of powerful interests pushing their agenda quickly through a cooperative legislature,” said Bob Shavelson, Executive Director of Cook Inlet Keeper. “The oil industry came to Juneau with a ‘sky-is-falling’ appeal after losing its case before the state’s highest court. They totally misrepresented the issue, saying coastal homeowners would be unable to build a basement without a mountain of red tape. In the process, they carved out a gaping hole in a body of law designed to protect salmon fisheries and coastal resources.” The bill as amended passed quickly with minimal debate through both the Senate and the House, and is now awaiting the Governor’s signature.

Even before the amendment, the bill was another blow to conservationists and the health of Cook Inlet habitat and wildlife. Trustees, acting as co-counsel with Scott Allen of Cox and Moyer, recently filed a lawsuit on behalf of Cook Inlet Keeper, Alaska Community Action on Toxics, the Military Toxics Project and the Chickaloon Village Traditional Council challenging Fort Richardson’s unregulated use of a bombing range at the mouth of Eagle River. For years, Fort Richardson has used the tidal flats of Eagle River as a firing range and refused to obtain a permit or to pick up and safely dispose of unexploded ordnance. Over time, heavy metals and other toxins have leached into the surrounding estuarine environment. Massive waterfowl die-offs caused the military to do a partial clean-up of one contaminant, but so far they continue to deny that unexploded ordnance contains other toxins. We argued that the Army must obtain a state solid waste disposal permit to continue this practice. S.B. 371 “fixes” this requirement by exempting military firing ranges (and all other public and private ranges in Alaska) from state waste disposal laws, giving the military a green light from the state legislature and the Alaska Department of Environmental Conservation to continue poisoning the Inlet. We also argued that the Army must have a federal Clean Water Act permit and continue its clean-up of the tidal flats under CERCLA. Since this lawsuit was filed, the Army has filed a Clean Water Act petition with the Environmental Protection Agency.