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Alaskan Oil Pipeline Now Up to Congress

April 1973

Citation: ELR 10042

The oil industry has been frustrated since 1970 in its efforts to build a hot oil trans-Alaskan pipeline across federal domain lands from Prudhoe Bay on Alaska's North Slope to the Pacific Port of Valdez 800 miles to the southwest. Environmentalists maintain that pipeline ruptures across earthquake prone Alaska could cause lasting ecological damage in the last large wilderness in North America, and that the tankers required to carry the oil from Valdez to the West Coast could cause serious marine pollution.

In the first court challenge, the Wilderness Society and other environmental organizations obtained a preliminary injunction against the issuance of a construction permit by the Department of the Interior until all environmental factors and alternatives had been explored in an adequate NEPA impact statement.1 At the time the first injunction was issued, commentators tended to overlook a second ground for the court's terse order, the Mineral Leasing Act of 1920, which prohibits rights-of-way in excess of 25 feet on either side of the pipe itself. The pipeline consortium does not possess the technology that would enable it to carry out construction in a right-of-way of less than 100 feet. Along some sections, up to eight times the maximum allowable width would be required. In a lengthy recent opinion, the District of Columbia Circuit reversed a district court order dissolving the injunction on both the NEPA and Mineral Leasing Act grounds and confirmed that the statutory maximum was in fact a bar to pipeline construction.2 The Supreme Court appeared to sanction this result by denying certiorari only a few weeks later.3 By deciding the Alaskan pipeline case on the narrow technical grounds of a 1920 statute limiting maximum permissible rights-of-way over federal lands, and hence avoiding the policy-laden NEPA arguments, the courts have left the method of exploitation of the North Slope oil fields squarely up to Congress. How, and whether, this Alaskan oil will be developed has in effect been "remanded" to Congress for decision.

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