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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).