Gov. Sean Parnell and Interior Secretary Ken Salazar are still waging a war of words in federal court over whether there is some sort of moratorium in place preventing oil exploration and drilling in the Arctic.
Parnell says there is; Salazar says there is not. Salazar would be the one to put in place any moratorium.
The question is at the heart of a lawsuit filed by the state against the Interior Department last year, seeking to force the Obama administration to overturn a moratorium - even a de facto moratorium. At a press conference in September announcing the lawsuit, Parnell said the case was based on statements Salazar had made to reporters when he was in Alaska earlier in the summer and testimony he'd given to the U.S. Senate in June.
The Alaska offshore program was thrown into limbo along with offshore drilling elsewhere off the U.S. coast with the Deepwater Horizon blowout in the Gulf of Mexico in April. President Obama imposed a moratorium on deepwater drilling and there's been confusion over whether that included Alaska, which is considered shallow drilling operations.
Shell Offshore Inc. is waiting for federal approval so it can move forward with a plan to sink an exploratory well in Camden Bay near Kaktovik this summer. The proposed drilling site is in the Beaufort Sea and is also within an area the federal government recently designated as critical habitat for polar bears, triggering a separate legal debate over Shell's permit application.
Since the state filed its lawsuit in September, the federal government has insisted there is no moratorium, while the state has filed briefs insisting there is, even if federal officials are denying it.
In late December, U.S. District Court Judge Ralph Beistline issued a single-page order requiring the state and the federal government to document, one way or the other, whether there is or isn't a moratorium. He said there ought to be a straightforward answer to that question and he wants to know what it is.
Now, both sides have filed their responses and little has changed. Federal attorneys offered affidavits and briefs on Monday that reiterated what agency officials have always said: there is no moratorium. They also point to work that the Bureau of Ocean Energy Management, Regulation and Enforcement is doing to process Shell's permit as evidence that the agency is moving forward and has not halted work as a moratorium would imply.
"The Department of the Interior has no moratorium, actual or implied, on the permitting of oil and gas exploration and development, including shallow well drilling, in the Alaska Outer Continental Shelf," Walter D. Cruikshank, deputy director of BOEMRE, said in an affidavit.
The state says it still doesn't believe that. On Friday, state attorneys said in a response to the judge's question that an affidavit from a mid-level Interior official -- Cruikshank -- is inadequate and that the agency needs to address Salazar's remarks. Moreover, the state said, "the processing of one application does not address the moratorium" because the agency could be processing the permit without any intention of making a decision on it.
"The State would like nothing more than for there to be no moratorium," assistant attorney general Rebecca Kruse wrote in the response. "But as it stands, DOI's top official has stated in testimony and to the public that there is a moratorium. Secretary Salazar has not reversed this position. The opinion of a subordinate does not reverse Secretary Salazar's official DOI position. And whether or not BOEMRE is processing a lone application does not indicate that the blanket moratorium on approving drilling in the future has been lifted."
Shell has said it needs to get approval to drill soon or it won't be able to put logistics in place, in time to catch the short, summer Arctic drilling season. In a Dec. 17 letter to BOEMRE Director Michael Bromwich, Pete Slaiby, vice president of Shell Alaska, said Shell would need to see by Jan. 31 "substantial progress by the federal permitting agencies and substantial certainty that all permits will be issued in a timely manner."
"Absent such progress and certainty, additional investment decisions will not be possible for a 2011 program," he said.
Besides the issue of whether a moratorium covering the Alaska OCS exists, Shell faces legal opposition from environmental groups and Native organizations. The federal Environmental Appeals Board, acting in a case brought by opponents of drilling, recently invalidated air quality permits Shell had already secured and that are needed in order to drill this summer. In addition, environmental groups are intent on pressing their legal options in regard to protecting the polar bear and other Arctic species from potential harm.
Contact Patti Epler at patti(at)alaskadispatch.com