State of Alaska v. Andrus

• Decision Date: 24 April 1978
• Docket Number: No. 76-1829,76-1829
• Citation: 580 F.2d 465,188 U.S.App.D.C. 202
• Parties: , 188 U.S.App.D.C. 202, 8 Envtl. L. Rep. 20,237 STATE OF ALASKA et al., Appellants, v. Cecil D. ANDRUS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 465

580 F.2d 465

11 ERC 1321, 188 U.S.App.D.C. 202, 8

Envtl. L. Rep. 20,237

STATE OF ALASKA et al., Appellants, v. Cecil D. ANDRUS et al.

No. 76-1829.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 17, 1977.

Decided Feb. 24, 1978.

Rehearing Denied April 24, 1978.

Appeal from the United States District Court for the District of Columbia (D.C.Civil 76-0368).

Sanford Sagalkin, Asst. Atty. Gen. of Alaska, Juneau, Alaska, Supreme Court of Alaska pro hac vice by special leave of Court and Bruce J. Terris, Washington, D. C., with whom Avrum M. Gross, Atty. Gen. of Alaska, Juneau, Alaska, was on the brief, for appellants.

Kathryn A. Oberly, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Raymond N. Zagona and William M. Cohen, Attys., Dept. of Justice, Washington, D. C., were on the brief, for federal appellees. Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for federal appellees.

E. Edward Bruce, Washington, D. C., for appellees, Western Oil & Gas Ass'n, et al.

Before BAZELON, Chief Judge, and LEVENTHAL and WILKEY, Circuit Judges.

Opinion for the Court filed by Chief Judge BAZELON.

BAZELON, Chief Judge:

On April 13, 1976, the Department of the Interior (DOI) offered for bid over one million acres of oil and gas leases in the Gulf of Alaska (GOA) Outer Continental Shelf (OCS). Appellants challenge the legality of that lease sale and seek to have it set aside. They argue both that the Environmental Impact Statement (EIS) prepared by DOI in connection with the sale does not satisfy the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 Et seq., and that the Secretary of the Interior's decision to proceed with the sale in April, 1976 was itself a violation of the Act, because of the alleged inadequacy of the information available to the Secretary at that time. Appellants originally sought to enjoin the sale; however, the district court denied their motion for a preliminary injunction, and this court refused to grant appellants an injunction pending appeal. DOI was thus able to conduct the sale on April 13 as planned. Thereafter, the parties agreed to submit the case on the merits to the district court on the basis of the record compiled at the preliminary injunction stage of the proceedings; the district court concluded that the appellees had complied with all applicable statutes, and entered a final judgment dismissing the complaint.

We have determined that, on the facts of this case, it would be inappropriate for us to set aside the lease sale and to enjoin the exploratory drilling now underway in the Gulf of Alaska. However, this is on the premise that the Secretary's undertaking prior to the sale, to confine environmental damage through departmental operating orders governing exploration and drilling, will be given meaningful effect through prompt reconsideration of the operating orders already issued, with an environmental impact statement that presents discussion of alternatives.

I. BACKGROUND OF LEASE SALE NO. 39

On January 23, 1974, former President Nixon announced that as part of "Project Independence" ¹ he was directing the Secretary of the Interior "to increase the acreage leased on the Outer Continental Shelf to 10 million acres beginning in 1975, more than tripling what had originally been planned." ² The President ordered the Secretary, in carrying out this directive, "to ensure that . . . environmental safeguards are observed." ³ In addition, the President pointed out that there would be "no decision on leasing on the Outer Continental Shelf in the Atlantic and in the Gulf of Alaska until the Council on Environmental Quality (CEQ) completes its current environmental study of those areas." ⁴

The CEQ study to which the President referred was released on April 18, 1974. ⁵ That study concluded that the environmental risks associated with OCS development varied from region to region but that of the regions studied, development in the Eastern Gulf of Alaska would post the Highest level of environmental risks. ⁶ Indeed, CEQ concluded that the "conditions in the Gulf of Alaska are more severe than the (oil and gas) industry has yet experienced anywhere in the world." ⁷

On October 18, Interior published a draft programmatic EIS (PEIS) analyzing the President's proposed acceleration of OCS leasing to 10 million acres per year. ⁸ The Environmental Protection Agency (EPA) reviewed the draft and informed Interior that "in accordance with the EPA rating system for environmental statements, we have classified this statement as Category 3, Inadequate." ⁹ The statement, in EPA's view, had failed to address "key policy options and managerial issues pertaining to an accelerated OCS oil and gas leasing program." ¹⁰ EPA was especially critical of the proposed inclusion of Alaskan OCS areas in the leasing schedule:

The CEQ Task Force on the OCS, in which DOI participated, states that the petroleum industry would encounter a higher environmental risk in the development of the Gulf of Alaska than in any other area. DOI has not been able to demonstrate that the benefit in oil development outweighs the environmental cost. In fact, DOI's own data . . . show conclusively that because of material constraints, there is no relative advantage to leasing Alaskan OCS areas at this time despite the magnitude of Alaska's reserves. EPA's position is therefore that leasing in Alaskan waters should not be considered at this time and that substantial technical and biological research is required. Although we expect that as a result of that research, exploration and subsequent production will be feasible at some point in the future, EPA believes that the point cannot be predicted at this time. In our opinion, it is therefore neither necessary nor prudent for Alaskan OCS areas to be placed on the leasing schedule at this time. We think that the future decision should be based on (1) baseline and biological effects research, most of which has not been funded or planned at this time, (2) coastal zone planning, and (3) assessment of operating experience with advanced technologies which can be tested in other OCS areas. ¹¹

In response to these comments from EPA, and to comments from the State of Alaska and others, Interior indicated that it fully concurred in CEQ's analysis of the relative environmental risks associated with OCS development in various regions, ¹² and agreed that development in the Gulf of Alaska would be "highly hazardous." ¹³ "The Gulf of Alaska," it said, "is a high risk area." ¹⁴ Nonetheless, Interior's "Proposed Planning Schedule," issued in November, 1974, scheduled the Gulf of Alaska for leasing earlier than any of the other lower-risk areas examined in the CEQ Study. ¹⁵

A draft "site-specific" EIS (EIS or Sale No. 39 EIS) focusing on this proposed sale in the GOA, was next prepared. The following steps were taken in the preparation of that EIS:

a. On November 27, 1974, notice of a call for nominations of tracts suitable for oil and gas leasing in the Northern Gulf of Alaska was published in the Federal Register. . . .

b. In this same notice, Interior requested comments from all interested parties on possible oil and gas leasing in the general area of the call for nominations. Interior asked that such comments include, but need not be limited to, environmental, technical, and socioeconomic aspects of potential oil and gas leasing and development in the area.

c. After receipt of numerous nominations and comments pursuant to this notice, the BLM (Bureau of Land Management) Alaska OCS Office and the U.S. Geological Survey (USGS) field office prepared joint tentative tract recommendations.

d. On March 20, 1975, the Secretary publicly announced that certain identified tracts, totaling 3.5 million acres, had been tentatively selected for further environmental study to be made in connection with the Department's on-going consideration of a possible OCS lease sale offshore the Northern Gulf of Alaska in 1975.

e. Studies and analyses of potential oil and gas leasing and development of the proposed sale area were undertaken to provide an information base for a draft EIS. BLM's Alaska OCS Office then prepared a draft EIS for proposed lease sale No. 39, which was submitted to the Council on Environmental Quality (CEQ) and made available to federal, state, and local agencies and interested members of the public on June 27, 1975. . . .

f. In the course of its consideration of the OCS oil and gas lease sale proposal in the Northern Gulf of Alaska, the Department involved the State of Alaska in the various procedures followed by the Department in considering that lease sale. State and local agencies and citizens groups were invited to designate experts to work with BLM's staff in the preparation of the draft EIS for the lease sale.

Findings of Fact by the District Court, J.A. at 44-45.

Public hearings were held on the draft site-specific EIS in Anchorage, Alaska. Government officials, environmental groups, and members of the public were invited to testify and to submit written comments on the draft EIS. Pursuant to this request, comments were received from a number of departments of the State of Alaska. Id. at 46. In its comments on the draft, EPA again stressed the lack of reliable information on the environmental hazards that would be encountered in the GOA, and urged that exploration and development in that region be delayed:

In view of the substantial environmental risks of proceeding at this time with the proposed sale, we strongly urge the Department to more actively consider delaying the proposed action while, at the same time pursuing the biological baseline studies and other studies which would provide a better information base for designing and implementing technology to mitigate the environmental hazards. We believe the sale should be delayed at least until the...