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Greenpeace, Inc. v. State (10/16/2003) sp-5743
Greenpeace, Inc. v. State (10/16/2003) sp-5743
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GREENPEACE, INC., )
) Supreme Court No. S-10040
Appellant, )
) Superior Court No.
v. ) 3AN-99-3350 CI
)
STATE OF ALASKA, OFFICE OF )
MANAGEMENT AND BUDGET, )
DIVISION OF GOVERNMENTAL ) O P I N I O N
COORDINATION AND ALASKA )
COASTAL POLICY COUNCIL, and ) [No. 5743 - October 16, 2003]
BRITISH PETROLEUM )
EXPLORATION (ALASKA), INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John E. Reese, Judge.
Appearances: Nancy S. Wainwright, Law
Offices of Nancy S. Wainwright, Anchorage,
for Appellant. Kirsten Swanson, Assistant
Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee State
of Alaska. Jeffrey M. Feldman, Susan
Orlansky, and Ruth Botstein, Feldman &
Orlansky, Anchorage, for Appellee BP
Exploration (Alaska), Inc.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Greenpeace Inc. appeals a determination by the State of
Alaska that the Northstar Project - a plan to develop an offshore
oilfield in the Beaufort Sea near Prudhoe Bay - is consistent
with the Alaska Coastal Management Program. Greenpeace
challenges the state's consistency ruling on two legal grounds,
arguing that it is deficient as a matter of law because it fails
to conduct an analysis of the Northstar Project's cumulative
impacts and because it improperly "phases" the project. We
reject these arguments, holding that Alaska law did not require a
formal cumulative impacts analysis and that the state's
consistency review did not improperly treat Northstar as a phased
project.
II. FACTS AND PROCEEDINGS
This appeal arises from a plan to develop Alaska's
first offshore oil facility and subsea oil pipeline in the
Northstar Unit, an oilfield in the Beaufort Sea near Prudhoe Bay.1
In 1995 British Petroleum Exploration (Alaska), Inc., bought four
oil and gas leases in the Northstar Unit from another oil company
and renegotiated the existing leases with the state.2 In March
1995 BP and the Department of Natural Resources reached an
agreement, contingent on legislative approval, that gave BP
better earnings potential but allowed the state to terminate the
leases if BP failed to begin development in three years.3 The
legislature passed a bill approving the arrangement, and Governor
Knowles signed the bill into law in July 1996.4
Because of the Northstar Project's magnitude, BP needed
permits from at least four state agencies and five federal
agencies. Under the Alaska Coastal Management Program (ACMP),5
any project having impacts in a coastal area of Alaska and
requiring multiple permits must undergo a comprehensive review to
determine its consistency with Alaska's coastal management
standards.6 The Division of Governmental Coordination (DGC) - a
division of the Governor's Office of Management and Budget - is
responsible for conducting the review and issuing the consistency
determination.7 Under federal law, BP additionally needed to
submit the project to the United States Army Corps of Engineers
for an Environmental Impact Statement under the National
Environmental Policy Act. To simplify this overall process, DGC
and the Corps of Engineers coordinated their reviews of BP's
Northstar development plan.
BP completed the first step in the Northstar Project's
ACMP review process by submitting a completed Coastal Project
Questionnaire in October 1996 and a final project description in
early 1997. DGC issued a letter initiating the consistency
review in June 1998, soliciting public comment on the Northstar
Project, which by then was described in detail in the Appendix to
the Draft Environmental Impact Statement. Greenpeace submitted
extensive comments on the project. In early 1999, DGC issued a
Proposed Consistency Determination finding the Northstar Project
to be consistent with the ACMP's standards. Greenpeace
petitioned the Alaska Coastal Policy Council for review to
determine whether the proposed consistency ruling fairly
considered Greenpeace's comments. On February 4, 1999,
immediately after the Council unanimously upheld the proposed
consistency ruling, DGC issued its Final Consistency
Determination.
Greenpeace appealed to the superior court. After
extensive briefing, Superior Court Judge John Reese affirmed
DGC's consistency determination.
Greenpeace appeals the superior court's ruling.
III. DISCUSSION
Greenpeace frames two legal questions on appeal: (1)
whether DGC violated the ACMP as a matter of law by failing to
address the Northstar Project's cumulative impacts, and (2)
whether DGC unlawfully phased Northstar by allowing BP to
commence the project with certain previously issued permits that
received no ACMP review and by finding certain aspects of the
project consistent with the ACMP despite a lack of adequate
available information essential to the consistency determination.
A. Standard of Review
In reviewing ACMP consistency decisions to determine if
the record supports the DGC's rulings, we usually apply a highly
deferential standard, asking only if the agency has taken a "hard
look at the salient problems and has genuinely engaged in
reasoned decisionmaking."8 But here, Greenpeace insists that its
two points on appeal pose legal questions involving statutory and
constitutional interpretation, so that we owe no deference to the
agency and must use our independent judgment on review. We
agree: neither of Greenpeace's points on appeal challenges the
sufficiency of specific evidence or the reasonableness of the
agency's findings on substantive grounds; both simply ask us to
determine as a matter of law whether the DGC followed the
procedural requirements for cumulative impacts analysis and
phasing that, according to Greenpeace, are mandated by the law
governing ACMP review. We use our independent judgment when
deciding procedural issues involving legal interpretation.9
B. Cumulative Impacts
Greenpeace first contends that the DGC's consistency
determination is legally flawed because it fails to evaluate or
analyze the Northstar Project's cumulative impacts. In advancing
this argument, Greenpeace advocates the broad definition of
cumulative impacts that federal agencies apply in preparing
environmental impact statements under the National Environmental
Policy Act (NEPA).10 As Greenpeace describes it, this
commonly understood definition of cumulative
impact is: the impact on the environment
which results from the incremental impacts of
the action when added to other past, present,
and reasonably foreseeable future actions.[11]
According to Greenpeace, Alaska law required the Northstar
Project's consistency determination to include a formal
discussion applying this definition of cumulative impacts.
BP and the DGC eschew NEPA's definition of cumulative
impacts, maintaining that, "[a]s used in the [Alaska] statutes
and cases, the concept of `cumulative impacts' is better
described as `whole-project analysis.' " As BP puts it, under
Alaska law, "DGC is not required to assess the possible effects
of future development projects. DGC is required to undertake a
whole-project analysis of a project under review, and it
diligently completed such an assessment for Northstar." In BP's
view,
[n]o authority supports Greenpeace's
expansive interpretation of the term
"cumulative impacts." Rather, applicable
statutes and regulations, agency practice,
and the existing decisional law all mandate a
contrary result: DGC must carefully evaluate
the combined impacts of all aspects of the
project under review, but it need not examine
the project in light of hypothetical or
proposed future development in the region.
In our judgment, BP's and DGC's arguments are
persuasive. Greenpeace argues that a legal mandate for
cumulative impacts analysis can be gleaned from many sources:
various ACMP standards; an Alaska Attorney General's opinion; DGC
agency practice; our own prior holdings; the Alaska Constitution
and the state's traditional public trust responsibilities; and
various federal-law mandates. Yet these sources provide no
convincing support for Greenpeace's theory that ACMP consistency
determinations must formally analyze a project's cumulative
impacts, applying the federal definition of cumulative impacts.
Apart from a recently enacted provision of Alaska's
coastal management act that applies exclusively to phased-project
review,12 Alaska's statutes and regulations are largely silent
concerning the need for cumulative impacts analysis during ACMP
consistency review.
Greenpeace notes that the federal government's Final
Environmental Impact Statement evaluating the Alaska Coastal
Management Program described the ACMP's standards as encompassing
a "general balancing process taking account of public need,
alternatives, cumulative effects and effects on wetlands, fish
and wildlife, water quality, scenic and recreational values,
public safety, water dependence, and access to coastal waters."13
Moreover, for various purposes arising under the ACMP,
AS 46.40.210(7) defines a "use of direct and significant impact"
in a way that considers the cumulative effects of the use.14 Yet
neither of these general provisions adopts NEPA's rigorous
definition of cumulative impacts or purports to require that a
formal cumulative impact analysis be a regular part of the ACMP
consistency review process.15
Nor can we glean such a requirement from the ACMP's
broad statement of objectives,16 or from regulatory standards
implementing those objectives.17 One standard may at first
glance seem to require a NEPA-like cumulative impacts analysis:
6 AAC 80.040's coastal development standard provides that "[t]he
placement of structures and the discharge of dredged or fill
material into coastal water must, at a minimum, comply with the
standards contained in Parts 320-323, 33 C.F.R. (Vol. 42 of the
Federal Register, pp. 37133 - 47 (July 19, 1977))."18 The federal
regulation referred to in this provision requires a formal
cumulative impacts analysis.19 But the activities covered by
these two regulations - construction and discharge in coastal
waters - require federal permitting; the requirement of a federal
permit, in turn, ensures that the minimum level of compliance
required under Alaska's coastal development standard will be
achieved upon approval of a federal permit. We thus find no
reasonable basis for construing Alaska's regulatory standard to
require a separate layer of cumulative impacts analysis as part
of DGC's consistency review process.20
To be sure, we have previously emphasized that Alaska's
ACMP standards are "extremely protective of the environment."21
We have thus recognized that the ACMP's standards require the
consistency review process to consider a project's known and
predictable effects. For example, the standards require projects
to be managed and designed to ensure resource protection,22
sometimes to the maximum extent feasible and prudent.23
"Feasible and prudent" is defined as "consistent with sound
engineering practice and not causing environmental, social, or
economic problems that outweigh the public benefit to be derived
from compliance with the standard which is modified by the term
`feasible and prudent.' " 6 AAC 80.900(a)(20). Some standards
expressly contemplate consideration of adjacent uses;24 one even
explicitly refers to consideration of "subsequent adjacent uses,"
and so directly calls for a look into the future.25
But these references to consideration of a project's
broader effects hardly suggest that the ACMP review process
incorporates NEPA's rigorous definition of cumulative impacts or
its requirement of a formal cumulative impacts analysis. To the
contrary, they seem more compatible with BP's suggestion that
Alaska law simply folds certain features of the federal law's
rigorous, multi-project approach to cumulative impacts analysis
into a less formal and somewhat narrower approach that uses a
"whole-project analysis." This approach considers cumulative
effects as an integral part of the consistency review process,
not as an independent criterion requiring separate analysis; it
takes into account "all aspects of a project, considered as a
whole" and its "existing development context"; but it does not
require DGC to speculate about unknown and unpredictable future
events.
Greenpeace points to this court's case law as an
alternative source of its proposed cumulative impacts analysis
requirement. But our cases require nothing more than the kind of
"whole-project" approach that BP and the DGC advocate.26 We have
usually discussed cumulative impacts as they relate to phased
projects - projects divided into discrete developmental phases
and subjected to a new ACMP consistency review as each successive
phase of development approaches.27 In this procedural context,
our discussion of cumulative impacts analysis has primarily
focused on the need to look beyond a project's current phase so
that the overall consistency of the entire project does not elude
examination.28
The legislature addressed this issue in 1994 by
enacting AS 46.40.094, which sets out substantive requirements
and procedural guidelines for phased ACMP consistency review.29
As we recently held in Kachemak Bay Conservation Society v.
State, Department of Natural Resources, the 1994 enactment
requires discussion of cumulative impacts at each level of phased
consistency review, but it limits the required scope of analysis
for future developments and events to a consideration of
information that is known by DGC or brought to its attention.30
Our decision in Kachemak Bay thus confirms the relatively modest
role that our earlier case law assigned to cumulative impacts
analysis: DGC need only assess available information to take a
hard look at a project's overall impacts, including known and
readily foreseeable future impacts.31
Greenpeace argues, though, that the federal Coastal
Zone Management Act (CZMA), its Reauthorization Amendments of
1990, and actions by DGC in promoting cumulative impacts analysis
under the ACMP support a NEPA-like formal cumulative analysis
requirement. But these arguments are unavailing. Congress
undeniably passed the CZMA to address concerns about the
potential environmental impacts of future coastal development.32
The CZMA offers incentives to encourage states to manage their
coastal areas by making determinations of the balance between
development and conservation.33 Once a state receives program
approval, it may request grants to improve its program; the
federal government may suspend further funding or, as a last
resort, withdraw program approval for noncompliance with a
grant's terms.34 Alaska promulgated the ACMP and submitted it for
program approval under the CZMA. In its most recent review,
Alaska was found to be in compliance with the CZMA.35
Greenpeace cites no provision in the CZMA or in
regulations enacted under the act's authority that requires
Alaska to adopt NEPA-defined cumulative impacts analysis.36 And
we are aware of no relevant provision of this kind.37 Greenpeace
separately argues that the CZMA's purposes mandate analysis of
cumulative impacts.38 But at most, the act's statement of
purposes merely encourages states to consider cumulative impacts.
Greenpeace similarly points to DGC handbooks and federal grant
applications, arguing that the agency itself has effectively
adopted a policy of conducting rigorous cumulative impacts
analysis. But the cited materials adopt no clear policy: they
simply encourage coastal districts to develop cumulative impacts
analysis guidelines, or outline DGC's hopes - still unrealized
- to adopt regulations providing more definite cumulative impacts
guidelines.
Last, Greenpeace advances a cursory argument that a
NEPA-like cumulative impacts analysis requirement can be inferred
from various sections of article VIII of the Alaska Constitution39
and from the "public trust" responsibility implicit in those
provisions.40 Yet none of these sources directly or indirectly
suggests the need for such an analysis.
In summary, as we recently observed in Kachemak Bay,
" `analyses comparable to those generally required by [NEPA] for
the preparation of an environmental impact statement . . . are
not required,' " in an ACMP consistency determination.41 Thus, if
DGC's final consistency determination fails in its consideration
of the Northstar Project's cumulative impacts, its failure does
not reflect a lack of compliance with mandatory ACMP procedures
for cumulative impacts analysis; instead, the flaw would lie in
failing to take a hard look at the issue and failing to render a
reasoned decision - a flaw that would be subject to challenge
only under the deferential standard that we commonly apply in
administrative appeals challenging DGC's substantive findings.42
Because Greenpeace chose not to claim a breach of this "hard-
look" standard as a point on appeal - raising only the narrow
procedural question of whether DGC violated the ACMP as a matter
of law by failing to conduct a formal cumulative impacts analysis
- we decline to consider whether DGC's ruling would pass muster
under the more deferential test.43
C. Phasing
Greenpeace similarly frames its second point on appeal
exclusively as a legal issue, arguing that DGC erred as a matter
of law by improperly phasing its review of the Northstar Project;
specifically, Greenpeace complains that illegal phasing occurred
because DGC improperly issued certain permits prematurely,
thereby allowing work on the project to begin before the
consistency review was completed, and because DGC also approved
"major aspects" of Northstar's future development without
sufficient information to make a reasoned ACMP consistency
determination.
In response, DGC and BP deny that the Northstar Project
was phased, maintaining that DGC's consistency review encompassed
the Northstar Project in its entirety. This response is
persuasive.
A short but complete answer to Greenpeace's claim of
improper phasing is that the Northstar Project simply was not
phased. As previously mentioned, phased ACMP review is now
governed by the provisions of AS 46.40.094. DGC did not purport
to conduct its consistency review under this phasing statute. To
the contrary, although BP requested phased consideration, DGC
ruled that Northstar did not qualify for phasing under AS
46.40.094 and expressly undertook to review the complete
Northstar Project.
Tacitly acknowledging this fact, Greenpeace
nevertheless attempts to portray DGC's consistency review as "de
facto improper phasing." But this portrayal sweeps too broadly.
It attempts to mask as a simple procedural issue of law a point
that actually would challenge the merits of a complex, technical,
and fact-intensive administrative decision enforcing standards
rooted in agency expertise and discretion. This is precisely the
kind of administrative decision that we may review only under the
deferential "hard-look" standard. Because Greenpeace restricts
its appeal on this point to its contention that DGC's review
amounted to improper phasing as a matter of law, it is enough
for present purposes to reject this claim as unfounded. We
decline to reach the broader issue that Greenpeace failed to
preserve: whether DGC's consistency determination could withstand
deferential scrutiny under the "hard-look" standard of review.
IV. CONCLUSION
Because the ACMP does not require a rigorous, NEPA-like
cumulative impacts analysis and Northstar's consistency review
was not improperly phased, we AFFIRM the state's final
consistency determination.
_______________________________
1We discussed the history of the Northstar Project in detail in
Baxley v. State, 958 P.2d 422, 425-28 (Alaska 1998); see also
Edwardsen v. United States Dep't of the Interior, 268 F.3d 781,
783 (9th Cir. 2001).
2Baxley, 958 P.2d at 427.
3Id. at 426.
4Id. at 427.
5AS 46.40.010 et seq. (1977) (amended 2003) (making no relevant,
substantive changes).
6See 6 Alaska Administrative Code (AAC) 50.070(a) (1984)
(repealed 2003).
7See 6 AAC 50.030 (1984) (repealed 2003).
8Kachemak Bay Conservation Soc'y v. State, Dep't of Natural Res.,
6 P.3d 270, 275 (Alaska 2000); Ninilchik Traditional Council v.
Noah, 928 P.2d 1206, 1210 (Alaska 1996); Trustees for Alaska v.
State, Dep't of Natural Res., 851 P.2d 1340, 1347 (Alaska 1993).
9Kachemak Bay Conservation Soc'y, 6 P.3d at 275-76. Because we
ultimately affirm the DGC's consistency determination under the
independent judgment standard, we need not decide whether the
issues on appeal implicate specialized agency expertise,
knowledge, or experience of the kind that would justify deference
to the DGC's interpretation of applicable regulations or
statutes. See, e.g., Northern Timber Corp. v. State, Dep't of
Transp. & Pub. Facilities, 927 P.2d 1281, 1284 n.10 (Alaska
1996).
10Federal regulations applying NEPA define a cumulative impact as
the impact on the environment which results
from the incremental impact of the action
when added to other past, present, and
reasonably foreseeable future actions
regardless of what agency (Federal or non-
Federal) or person undertakes such other
actions. Cumulative impacts can result from
individually minor but collectively
significant actions taking place over a
period of time.
40 C.F.R. 1508.7 (2002); see also 40 C.F.R. 1508.1 (stating
terminology under NEPA is uniform throughout federal government).
11(Emphasis in original.) Greenpeace describes this definition as
"consistent with that found in NEPA regulations at 40 C.F.R.
1508.7." We have quoted that regulation in note 10 above.
12See AS 46.40.094 (2002) (amended 2003).
13Office of Coastal Management, State of Alaska & Office of
Coastal Zone Management, U.S. Dep't of Commerce, State of Alaska
Coastal Management Program and Final Environmental Impact
Statement (1979).
14AS 46.40.210 (1995) thus defines a "use of direct and
significant impact" as a
use, or an activity associated with the use,
which proximately contributes to a material
change or alteration in the natural or social
characteristics of a part of the state's
coastal area and in which (A) the use, or
activity associated with it, would have a net
adverse effect on the quality of the
resources of the coastal area; (B) the use,
or activity associated with it, would limit
the range of alternative uses of the
resources of the coastal area; or (C) the use
would, of itself, constitute a tolerable
change or alteration of the resources within
the coastal area but which, cumulatively,
would have an adverse effect.
15The definition of "use of direct and significant impact" set out
in AS 46.40.210 applies under the ACMP in various circumstances,
as, for example, in determining which coastal districts should
comment on a project, AS 46.40.096; when a proposed project
should be submitted to voters, AS 46.40.160; when state agencies
should keep coastal management districts informed of projects, 6
AAC 50.040 (2000); whether to send out public notice for a
project, 6 AAC 50.070 (am. 5/20/93); and when to diverge from
initial coastal boundaries, 6 AAC 85.040(c)(1) (am. 8/18/79).
But Alaska's statutes and regulations do not employ the phrase
"use of direct and significant impact" in any particular context
that would require a formal discussion of cumulative impacts in
an ACMP consistency determination.
16See AS 46.40.020.
17See, e.g., 6 AAC 80.040(b) (coastal development standard); 6 AAC
80.050 (geophysical hazards standard); 6 AAC 80.070 (energy
facilities standard); 6 AAC 80.110 (mining and mineral processing
standard); 6 AAC 80.120 (subsistence standard); 6 AAC 80.130
(habitat standard); 6 AAC 80.140 (air, land, and water quality
standard).
186 AAC 80.040(b) (2000) .
1933 C.F.R. 320.4(a) (2002) states, in relevant part:
The following policies shall be applicable to
the review of all applications for [Corps']
permits. Additional policies specifically
applicable to certain types of activities are
identified in 33 C.F.R. Parts 321-324.
(a) Public Interest Review.
(1) The decision whether to issue a permit
will be based on an evaluation of the
probable impacts, including cumulative
impacts, of the proposed activity and its
intended use on the public interest. . . .
All factors which may be relevant to the
proposal must be considered including the
cumulative effects thereof . . . .
The current provision has been amended but, in terms of the
cumulative impacts requirement, remains identical to 320.4(a)
(1977), the provision referred to in 6 AAC 80.040(b). See
General Regulatory Policies, 42 Fed. Reg. 37,133, 37,136 (July
19, 1977) (codified as amended at 33 C.F.R. pt. 320).
20Our recent decision in Cook Inlet Keeper v. State, Office of
Mgmt. & Budget, 46 P.3d 957 (Alaska 2002) strengthens this
conclusion by confirming that federally permitted activities
cannot properly be omitted from ACMP consistency review as being
outside the scope of a project merely because those activities
have already been federally permitted. Id. at 962-63. By making
it clear that the federally permitted activity remains within the
scope of a project's ACMP review process, Cook Inlet Keeper
ensures that, in making its ACMP consistency determination, DGC
will review and consider any cumulative impacts analysis prepared
by a federal agency under 33 C.F.R. 320.4(a). In conducting
its own review, of course, DGC remains free to accept or reject
the federal cumulative impacts analysis. But given the
availability of the federal analysis to DGC, we see no need to
create a second tier of formal cumulative impacts review. Cf.
Kachemak Bay Conservation Soc'y v. State, Dep't of Natural Res.,
6 P.3d 270, 290 (Alaska 2000) (holding state did not have to
perform same level of analysis as federal environmental impact
statement).
21Trustees for Alaska v. State, Dep't of Natural Res., 851 P.2d
1340, 1344 (Alaska 1993) (citing Hammond v. North Slope Borough,
645 P.2d 750, 761 (Alaska 1982)).
226 AAC 80.050 (2000) (requiring that geophysical hazards be taken
into account in "siting, design"); 6 AAC 80.070(b) (requiring
siting of energy facilities to "consider the concurrent use," and
"select sites" to fulfill various factors); 6 AAC 80.110(a)
(directing that mining and mineral processing be "regulated,
designed"); 6 AAC 80.120(a) (addressing subsistence issues, with
language such as "recognize and assure," "designate areas"); 6
AAC 80.130(b), (d) (requiring that habitats be "managed").
236 AAC 80.070(b) (energy facilities); 6 AAC 80.130(d) (habitats);
see also 6 AAC 80.110(b) (mining and mineral processing).
246 AAC 80.070(b)(2) (energy facilities); 6 AAC 80.070(b)(7)
(same); 6 AAC 80.110(a) (mining and mineral processing).
256 AAC 80.070(b)(2).
26Relatedly, Greenpeace cites an opinion issued by the Attorney
General in 1982 advising that the ACMP "requires consideration of
cumulative impacts." Ops. Atty Gen. File No. J-66-502-81
(7/16/82). But the Attorney General's opinions do not have
precedential effect, and the opinion at issue here is entitled to
minimal persuasive weight: it was issued shortly after the ACMP's
adoption, cites no authority to support its position on
cumulative impacts, and fails to explain the nature and scope of
the cumulative impacts analysis that the act is supposed to
require.
27E.g., Thane Neighborhood Ass'n v. City & Borough of Juneau, 922
P.2d 901 (Alaska 1996), superseded in part by statute as stated
in Kachemak Bay Conservation Soc'y, 6 P.3d at 276-79. But see
Trustees for Alaska v. State, Dep't of Natural Res., 851 P.2d
1340, 1344 (Alaska 1993) (noting that state agency's delay of
specific findings of geophysical hazards "means that
particularized geophysical hazards will be considered on a lease-
site-by-lease-site basis").
28See, e.g., Trustees for Alaska v. State, Dep't of Natural Res.,
851 P.2d 1340, 1347 (Alaska 1993); see also Trustees for Alaska
v. Gorsuch, 835 P.2d 1239, 1245-46 (Alaska 1992) (agency must
consider "the probable cumulative impact of all anticipated
activities which will be a part of a `surface coal mining
operation,' whether or not the activities are part of the permit
under review"); cf. Kachemak Bay Conservation Soc'y, 6 P.3d at
276 (discussing our prior phasing cases in light of AS 46.40.094,
a 1994 enactment expressly allowing phased consistency review in
certain categories of cases).
29See AS 46.40.094.
306 P.3d at 278-79.
31As already noted, see note 20 above, our most recent case on the
topic, Cook Inlet Keeper v. State, Office of Mgmt. & Budget, 46
P.3d 957 (Alaska 2002), does not expand this role, focusing on
the need for a realistic appraisal of available information
concerning the whole of a project and its overall effects,
including surrounding circumstances and known and readily
foreseeable future impacts, but drawing the line at speculative
inquiry into the possible consequences of unpredictable future
developments.
3216 U.S.C. 1451, 1452 (2000).
33See Martin J. LaLonde, Note, Allocating the Burden of Proof to
Effectuate the Preservation and Federalism Goals of the Coastal
Zone Management Act, 92 Mich. L. Rev. 438, 439, 462-63, 466-70
(1993).
3416 U.S.C. 1454 (requiring submittal for approval); 1458(c)
(addressing suspension of funding), (d) (providing for withdrawal
of approval).
35Evaluation of State Coastal Management Programs and National
Estuarine Research Reserves, 64 Fed. Reg. 17,624, April 12, 1999
(stating that Alaska was "found to be implementing and enforcing"
its program, "addressing the national coastal management
objectives identified in [16 U.S.C. 1452(2)(A)-(K)], and
adhering to the programmatic terms of their financial assistance
awards").
36Greenpeace cites two federal regulations that are inapposite.
One gives states discretion to consider cumulative impacts "[i]n
identifying uses and their appropriate management," and urges
that states "should consider potential individual and cumulative
impacts of uses on coastal waters." 15 C.F.R. 923.11(b) (2002)
(emphasis added). The other simply requires applicants for
consistency review to include information addressing cumulative
impacts criteria. 15 C.F.R. 930.58(a)(3).
37Cf. 16 U.S.C. 1455(d) (listing requirements of state
management programs).
38See, e.g., 16 U.S.C. 1452(1), (2)(A), (2)(B), (2)(C), (6).
39Greenpeace mentions Alaska Constitution, article VIII, sections
1, 3, 4, 6, 8, 13, 14, 16, and 17 but fails to set out any
meaningful discussion of their language or its contextual
significance.
40Greenpeace cites Owsichek v. State, Guide Licensing & Control
Board, 763 P.2d 488, 493 (Alaska 1988), and cursorily claims that
its " `public trust' approach to management of the State's
resources cannot be effectuated without an analysis of cumulative
impacts such as Northstar."
416 P.3d at 278, 290 n.37 (quoting with approval the Alaska
Legislature's findings in Ch. 38, 1(7), SLA 1994).
42See, e.g., Kachemak Bay Conservation Soc'y, 6 P.3d at 275;
Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1210
(Alaska 1996); Trustees for Alaska v. State, Dep't of Natural
Res., 851 P.2d 1340, 1347 (Alaska 1993).
43In its reply brief, Greenpeace does argue the issue of DGC's
compliance with the "hard-look" standard, contending that, even
under DGC's and BP's proposed "whole-project" approach to
cumulative impacts analysis, "a review of the record confirms
DGC's failure to consider the incremental contribution of
Northstar, in the context of past, present and reasonably
foreseeable actions and renders the DGC decision arbitrary and
capricious." Greenpeace implies that its new argument on this
issue is properly raised in its reply brief because it responds
to new arguments that DGC and BP assertedly raised in responding
to Greenpeace's opening brief. According to Greenpeace, DGC's
and BP's proposed "whole-project" approach and their claim that
DGC actually used this approach in reviewing the Northstar
Project amount to "new positions" that DGC and BP "never
presented to the superior court." Below, Greenpeace asserts, DGC
and BP simply insisted that, under Alaska law, no cumulative
impacts analysis was needed.
But Greenpeace mischaracterizes the record. The record
establishes that DGC's and BP's current positions on the
cumulative impacts issue are substantially identical to the ones
they asserted and briefed before the superior court. In
describing its consideration of the Northstar Project's impacts
under the ACMP's energy facilities standard, for example, DGC
argued in its superior court brief:
The [consistency] evaluation considers
other activities as necessary to determine
project consistency with the standard.
However, neither this provision nor any other
ACMP or district program standard mandates an
analysis of the cumulative impacts of a
proposed project in conjunction with other
development activities. Rather, the
standards address the consistency of the
project under review. The requirement to
evaluate the Northstar Project for
consistency with ACMP is fulfilled by an
evaluation of the project against each
standard as exemplified above.
BP's superior court brief argued the same theory:
Greenpeace's broad theory of cumulative
impacts analysis is not authorized by any
statute, regulation, agency practice, case,
or constitutional provision. Rather, the
statutes, regulations, agency practice, and
Alaska decisional law all reach a different
conclusion: DGC must evaluate the total
impacts of the project it is reviewing, but
not of any other undefined development
projects. As the discussion below indicates,
DGC unquestionably did conduct a thorough
review of all aspects of the Northstar
Project. This court should reject
Greenpeace's allegation that DGC's analysis
was inadequate because it failed to consider
the cumulative impacts of the Northstar
Project together with other projects.
Apart from the fact that DGC's and BP's current briefs
explicitly call this "whole-project" approach a cumulative
impacts analysis, their briefing of the point is virtually
indistinguishable from their positions below. It thus appears to
us that Greenpeace - not DGC or BP - is the party advancing a new
position and that it waived its right to raise its new claim of
error by failing to include the issue as a point on appeal or to
argue it in its opening brief. Tenala, Ltd. v. Fowler, 921 P.2d
1114, 1124 (Alaska 1996).
