Sierra Club v. Morton

• Citation: 510 F.2d 813
• Decision Date: 27 March 1975
• Docket Number: No. 74--3092,74--3092
• Parties: , 5 Envtl. L. Rep. 20,249 SIERRA CLUB et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON et al., Defendants-Appellees, Shell Oil Company et al., Intervenors-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 813

510 F.2d 813

7 ERC 1768, 5 Envtl. L. Rep. 20,249

SIERRA CLUB et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON et al., Defendants-Appellees, Shell Oil Company et al., Intervenors-Appellees.

No. 74--3092.

United States Court of Appeals,

Fifth Circuit.

March 27, 1975.

Bruce J. Terris, Helen Cohn Needham, Washington, D.C., John D. Hoffman, San Francisco, Cal., for plaintiffs-appellants.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Irwin L. Shroeder, William M. Cohn, U.S. Dept. of Justice, Washington, D.C., J. Berry St. John, Jr., Gene W. Lafitte, New Orleans, La., Thomas A. Clark, John W. Boult, A. Broaddus Livingston, William M. Register, Jr., Tampa, Fla., Wallace H. Johnson, Asst. Attys. Gen., Edmund B. Clark, Raymond N. Zagone, Neil T. Proto, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GEWIN, BELL and CLARK, Circuit Judges.

CLARK, Circuit Judge:

This case involves yet another clash between a federal agency and environmentalists over a proposed development of the nation's resources. The judicial focus, blurred as usual by the lack of technical and scientific expertise, is upon whether the impact statement compiled during consideration of the federal action satisfies the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 et seq.

At issue here is a lease sale by the Department of Interior (Interior) of 147 tracts on the Outer Continental Shelf along the coasts of Mississippi, Alabama and Florida consisting of a band of underwater coastal land lying from the tidal zone to roughly thirty miles off shore, extending from the Mississippi Delta to Tampa Bay and including offshore islands and enclosed bays. This leasing is referred to as the MAFLA sale. ¹

Plaintiffs, who attack Interior's decision to proceed and its predicate environmental impact statement, are national, state and local environmental organizations and certain individuals. This action seeks a declaratory judgment, injunctive relief, and a writ of mandamus to prohibit the sale of oil and gas leases by Interior on the MAFLA sale area. Intervenors are 17 oil companies who, at the December 1973 MAFLA sale, along with several other parties, made bonus bids of more than 1.5 billion dollars for The sale was made pursuant to the provisions of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1337. Interior's Bureau of Land Management first called for nominations of desired tracts. A draft environmental statement was later issued. After discussions and revisions, the final environmental impact statement (EIS) under attack here was filed with the Council on Environmental Quality (CEQ). The notice of lease offer was then published in the Federal Register and, finally, the leases were awarded between December 27, 1973 and January 18, 1974.

the right to explore for oil and gas on these submerged federal lands.

The district court found the EIS to be sufficient under NEPA requirements and the decision to proceed on the basis thereof to be reasonable. We affirm.

On appeal plaintiffs assert that (1) the EIS is inadequate under Section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C); (2) Interior failed to fully study, analyze, and evaluate the effects of the leasing program on the environment in violation of Section 102 subsections A, B and D of NEPA and Interior's own regulations; (3) the decision to consummate the sale violated the substantive requirements of NEPA and is arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. § 702 et seq.; and (4) the decision to leave to adjacent states the responsibility to safeguard the environment from the effects of construction of pipelines and onshore facilities violates the NEPA requirement that federal agencies protect the environment from harmful effects resulting from their actions.

Under existing jurisprudence, plaintiffs were required to establish by a preponderance of the evidence, rather than by a prima facie showing of deficiencies, that the EIS for MAFLA was inadequate. ² The additional attack on the Secretary of Interior's decision to proceed with the leasing must be founded on proof that it was arbitrary and capricious. Since the basic legal premises on which the district judge based his determination that the federal agency actions passed muster were correct, plaintiffs must shoulder a more imposing burden in this Court. Having failed to convince the trial court that the EIS was inadequate, the plaintiffs must now demonstrate that the lower court's findings accepting the EIS as adequate and the decision to proceed as permissible were clearly erroneous.

Section 102(2) contains the procedural requirements designed to compel all federal agencies contemplating actions having a significant impact on the environment to consider NEPA's substantive policies and goals as enunciated in Section 101. ³ The effectiveness of Section 102(2) depends upon compliance with procedural duties 'to the fullest extent

                possible,' i.e., a compliance, the completeness of which is only limited by the agency's statutory obligations.  4  While no agency may properly adopt a less demanding standard for their effort, judicial review is based on a pragmatic standard.  In determining whether an agency has complied with Section 102(2), we are governed by the rule of reason, i.e., we must recognize 'on the one hand that the Act mandates that no agency limit its environmental activity by the use of an artificial framework and on the other that the act does not intend to impose an impossible standard on the agency.'  5  The court's task is to determine whether the EIS was compiled with objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors.  6
                

TESTING THE EIS

Plaintiffs submit that the EIS fails to comply with Section 102(2)(C) of the Act ⁷ since it: does not adequately describe and analyze the present environment of the area; fails to adequately describe and analyze the most significant impacts that will result from the MAFLA sale; fails to analyze the cumulative effect of oil development in the Gulf of Mexico; and fails to adequately analyze reasonable alternatives to the MAFLA sale.

The purposes of an environmental impact statement are to detail the environmental and economic effects of proposed federal action 'to enable those who did not have a part in its compilation to understand and consider meaningfully the factors involved,' ⁸ and to compel the decisionmaker to give serious weight to environmental factors in making discretionary choices. ⁹ 'The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action.' ¹⁰ To carry out this statutory mandate, every relevant environmental effect of the project must be given appropriate consideration. ¹¹ Section 102(2)(C) seeks these goals by specifically requiring a detailed statement.

The purposes served by this 'detailed statement' requirement have been succinctly enumerated by the First Circuit in Silva v. Lynn, 482 F.2d 1282, 1284--85 (1st Cir. 1973). The Silva court stated:

The 'detailed statement' required by § 4332(2)(C) serves at least three purposes. First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must 'explicate fully its course of inquiry, its analysis and its reasoning.' . . . Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it 'must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.' . . . It cannot be composed of statements 'too vague, too general and too conclusory.' . . . Finally and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.

Id. (Citations omitted.) Again, the courts have approached their review of claims that congressionally specified detail of environmental effects was lacking in an EIS with a view that Congress did not intend to mandate perfection, ¹² or intend 'for an impact statement to document every particle of knowledge that an agency might compile in considering the proposed action.' ¹³

Present Environment

Plaintiffs contend that a most serious shortfall of the EIS is its lack of necessary baseline environmental studies upon which any reasoned decision on the environmental effect of the proposed sale must be based. Four specific omissions are asserted.

First, the statement does not include sufficient analysis of present air and water quality in the area. For the most part, plaintiffs are correct in this censure. While the statement does include an analysis of the impact of lease operations on water quality it does not describe the present quality of these environmental factors although it does contain a brief discussion of water quality degradation which previously occurred in the Mississippi Sound, Mobile Bay and along the Florida Gulf and of climatological and oceanographic conditions.

Second, the statement fails to assess each ecosystem as to its unique character, productivity, and the manner in which it operates. This attack is hypercritical. The statement discusses significant portions of the biological environment. Descriptions of the communities of Phytoplankton, Zooplankton, Benthic invertebrates and the active swimmers (Nekton) of the Gulf, embracing an analysis of factors affecting the distribution...