(CN) — An Alaskan regulatory commission asked the Ninth Circuit to toss a federal injunction on Monday that blocks the release of drilling data relating to ConocoPhillips Alaska’s massive Willow project on the North Slope.
Aimed at encouraging oil and gas development on the North Slope, an Alaska state statute allows the Alaska Oil and Gas Conservation Commission to publish its permittees’ drilling data two years after a new well is established.
But just before the Biden administration approved ConocoPhillips’ Willow project in 2023, U.S. District Judge Sharon Gleason ruled that the company’s five wells in the National Petroleum Reserve are derived from federal oil leases, which prevent such disclosures until the leases expire.
“It would make no sense for Congress to prohibit the federal government from publicly disclosing well data for the duration of an NPR-A lease but permit a state to disclose such information prior to the end of the lease,” the Barack Obama appointee wrote in the order.
Gleason also added that allowing Alaska to disclose ConocoPhillips’ well data after two years would impede Congress’s intent to “expeditiously advance private oil and gas development" on the 23.6-million-acre National Petroleum Reserve in Alaska.
In its appeal Monday, the commission argues the state statute is not preempted by federal law and does not undermine any congressional purpose.
At the Ninth Circuit Monday, Alaska Assistant Attorney General David Wilkinson represented the commission and argued that Alaska state law takes precedence over the Interior Department’s leasing policies for the National Petroleum Reserve.
“We don’t have any statute or any regulation here that indicates that Congress or even the Interior intended their lease terms to override independent state laws,” Wilkinson said. “Moreover, there’s no grounds to look to legislative history here to try to find preemptive purpose.”
According to Wilkinson, ConocoPhillips’ case falls within the U.S. Supreme Court’s 2019 warning in Virginia Uranium v. Warren “that looking to legislative history for preemptive purposes can end up displacing state laws with purposes that lack the democratic provenance that the Constitution demands for the Supremacy Clause to take place.”
Attorney Kevin Cuddy, representing ConocoPhillips, maintained the company’s stance that federal oil leases protect the confidentiality of oil exploration data and that state laws requiring early public disclosure would render those confidentiality agreements meaningless.
U.S. Circuit Judge Michelle Friedland, an Obama appointee, joined Senior U.S. Circuit Judge Jay Bybee — a George W. Bush appointee — in voicing skepticism around ConocoPhillips’ arguments.
“I mean, some of the language you want to rely on comes from the Outer Continental Shelf [Act] where it is purely federal,” Friedland said.
The National Petroleum Reserve, Friedland noted, has concurring jurisdiction between Alaska and the federal government.
“That seems significant, doesn’t it?” Friedland asked. “I mean, Congress set this up that state law would also govern this land.”
Cuddy disagreed, explaining that Congress didn’t intend to have Alaska law governing the reserve and that it adopted provisions from other related acts to protect leasing companies. He also added that sharing sensitive drilling data can unfairly benefit competitors when it can take up to 10 years — not two — for leasing companies to find resources and produce oil.
“There can be no doubt that the state laws as applied undermine that purpose,” Cuddy said. “Confidentiality only matters if the data is actually confidential.”
U.S. Circuit Judge Eric Miller, a Donald Trump appointee, rounded out Monday’s panel. The judges did not indicate how they would rule.
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