594 F.2d 872 (1st Cir. 1979), 78-1036, Com. of Mass. v. Andrus

Docket Nº:78-1036, 78-1037.
Citation:594 F.2d 872
Party Name:COMMONWEALTH OF MASSACHUSETTS et al., and Conservation Law Foundation of New England, Inc., et al., Plaintiffs, Appellees, v. Cecil D. ANDRUS et al., Defendants, Appellants, Atlantic Richfield Company et al., Intervenors. COMMONWEALTH OF MASSACHUSETTS et al., and Conservation Law Foundation of NewEngland, Inc., et al., Plaintiffs, Appellees, v. Cec
Case Date:February 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 872

594 F.2d 872 (1st Cir. 1979)

COMMONWEALTH OF MASSACHUSETTS et al., and Conservation Law

Foundation of New England, Inc., et al.,

Plaintiffs, Appellees,

v.

Cecil D. ANDRUS et al., Defendants, Appellants,

Atlantic Richfield Company et al., Intervenors.

COMMONWEALTH OF MASSACHUSETTS et al., and Conservation Law

Foundation of NewEngland, Inc., et al.,

Plaintiffs, Appellees,

v.

Cecil D. ANDRUS et al., Defendants,

Atlantic Richfield Company et al., Intervenors, Appellants.

Nos. 78-1036, 78-1037.

United States Court of Appeals, First Circuit

February 20, 1979

Argued March 7, 1978.

Page 873

Peter R. Steenland, Jr., Atty., Dept. of Justice, Washington, D.C., with whom James W. Moorman, Asst. Atty. Gen., John J. Zimmerman, Bruce C. Rashkow, Irwin L. Schroeder, and William B. Morrison, Attys., Dept. of Justice, Washington, D.C., were on brief, for federal defendants-appellants.

E. Edward Bruce, Washington, D.C., with whom Mark D. Nozette, Covington & Burling, Washington, D.C., J. Berry St. John, Jr., Liskow & Lewis, New Orleans, La., G. Marshall Moriarty and Ropes & Gray, Boston, Mass., were on brief, for defendants-appellants Atlantic Richfield Co., et al.

Douglas I. Foy, Boston Mass., with whom Sarah M. Bates, Cambridge, Mass., and Sarah Chasis, New York City, were on brief, for plaintiffs-appellees Conservation Law Foundation of New England, Inc., et al.

Stephen M. Leonard, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Charles Corkin, II, Chief Asst. Atty. Gen., Jose R. Allen and Frank A. Gaynor, III, Asst. Attys. Gen., Environmental Protection Division, Boston, Mass., were on brief, for appellees Commonwealth of Massachusetts, et al.

Harrison A. Fitch and Peter D. Kinder, Boston, Mass., on brief for amicus curiae, New England Legal Foundation, New England Council for Economic Development, The Boston Chamber of Commerce, The New Bedford Chamber of Commerce, The Greater Providence Chamber of Commerce and Mayor John A. Markey, New Bedford, Mass., on behalf of the City of Bedford, Massachusetts.

Emilie Benoit, Legal Counsel, and Allen P. Rubine, Spec. Asst. Atty. Gen., Providence, R.I., on brief for amicus curiae, The State of Rhode Island, J. Joseph Garrahy, Governor.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MURRAY, District Judge. [*]

LEVIN H. CAMPBELL, Circuit Judge.

The Commonwealth of Massachusetts and various conservation groups filed suit in the district court on January 19, 1978, seeking to enjoin the Secretary of the Interior from proceeding with the proposed sale of leaseholds in the Outer Continental Shelf off the coast of New England, styled OCS Sale No. 42. The Secretary had scheduled the opening of bids to take place on January 31. At the end of the day on Saturday, January 28, 1978, after three days of hearings, the district court issued a preliminary injunction forbidding the Secretary from taking further steps to consummate the sale. The sale was, as a result, cancelled, 1 and the Secretary and various oil companies that had been permitted to intervene appealed.

Subsequent to argument of the appeal in this court last spring and, indeed, at about the time that our decision in this case would have been anticipated, Congress adopted major amendments to the Outer Continental Shelf Lands Act, Pub.L.No. 95-372, 92 Stat. 629 (Amending 43 U.S.C. § 1331 Et seq.). These complex amendments provided for an oil spill fund and other safeguards whose absence figured largely in the district court's decision to enjoin the sale. They also added considerably to the law under which the leasing activity is to take place. We accordingly withheld any decision premised on the prior law, and invited supplemental briefing addressed to the effects of the amendments on this appeal.

In this opinion we now deal with the preliminary injunction in a legal and factual context that is altogether different from that which existed when the injunction was first issued.

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I. Background

This dispute concerns the first step toward the commencement of oil drilling in Georges Bank a region described in the final environmental impact statement as "one of the most productive fishing grounds in the world." The offering of Georges Bank leaseholds is one of several similar transactions involving possible oil fields in the Outer Continental Shelf, each of which has produced its own history of litigation. 2 These sales received their impetus in 1974, when the President directed the Secretary of the Interior to increase the amount of acreage to be made available for oil and gas development as part of a national effort to reduce dependency on foreign energy sources. The Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, Et seq., enacted in 1953, had earlier spelled out this nation's jurisdiction over offshore seabeds. Extending "(t)he Constitution and laws and civil and political jurisdiction of the United States . . . to the subsoil and seabed of the Outer Continental Shelf," § 1333(a)(1), the Act authorized the Secretary to grant oil and gas leases in the outer shelf by competitive bidding. § 1337. In response to the President's 1974 directive, the Secretary called for positive and negative nominations of tracts in the North Atlantic region. After receiving extensive comments and consulting with various interested parties, including officials of the states affected, the Secretary in January 1976 designated 206 tracts in the Georges Bank area for potential leasing.

A draft environmental impact statement covering this sale was published by the Secretary in October 1976. In December 1976, the Secretary withdrew 28 of the tracts from the proposed sale pending resolution of a boundary dispute with Canada. Discussion of the sale of the remaining 178 tracts focused on the conflict between oil drilling and fishing and on concerns about the possible impact of oil contamination on the aquatic and onshore environment. The Environmental Protection Agency, in its written response to the draft environmental statement, concluded,

"The integration of petroleum development with the highly productive fishing industry of Georges Bank represents a critical balancing of the nation's immediate energy needs and its long term usage of the renewable living resources of this area. In order to successfully pursue the simultaneous exploitation of both these resources, it is essential that a full appraisal of the environmental consequences of the proposed action be made. The DEIS on the proposed sale fails to accomplish this purpose; despite the wealth of information presented, there are a number of important areas with unsupported conclusions regarding the actual environmental impacts of oil and gas development (both primary and secondary) on the specific resources of Georges Bank, and on the onshore environment. Therefore we have rated this environmental statement as Category 3 Inadequate."

Specific concerns of the EPA were the lack of integration of the statement's discussion of environmental hazards, which obscured the analysis of particular risks, and the failure of the statement to follow through in its discussion of certain hazards, thereby not fully exposing the risks involved. The long-term consequences of the project, including pollution of estuaries used by support facilities and the increase of petroleum in the marine food supply over time, were not adequately addressed. In spite of these criticisms, however, the EPA did not find

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that the proposed sale was environmentally "unsatisfactory", a finding which would have triggered further review of the project by the Council on Environmental Quality. 42 U.S.C. § 1857h-7; See Alaska v. Andrus, 188 U.S.App.D.C. at 207-08, 580 F.2d at 470-71.

The Department of Commerce also had "serious reservations about the adequacy of the draft in some respects." Perhaps its most telling criticism concerned the statement's discussion of long-term effects on the marine population:

"The statement is devoid of support conclusions regarding the probable impact of gas and oil development on the environment and resources of Georges Bank and adjacent waters. No acknowledgement is readily apparent regarding our limited capability for assessing catastrophic, lethal, or sublethal effects of petroleum hydrocarbons (refined/unrefined) on the four million metric tons of fish biomass estimated to inhabit the area. No quantitative estimate is given of the magnitude of the fish populations that could be affected by petroleum hydrocarbon spills."

Other comments touched on inadequate biological data and, in one instance, inaccurate information depreciating the danger of small quantities of petroleum to fish spawning.

Representatives of all of the states immediately affected by the sale responded to the draft statement; a substantial share of the comments and criticisms were made by the Commonwealth of Massachusetts. The Commonwealth recommended that 26 of the proposed tracts be removed from the sale because of their proximity to the coast and consequent increased danger to the shore from oil spills. It also recommended various lease stipulations and operating orders governing development operations to decrease the environmental risks from operating the wells. Among the measures recommended were a requirement of unitization where the number of structures would thereby be reduced, the burial of pipelines whenever technologically feasible, and a commitment to require another environmental impact statement before development of the fields, if marketable quantities of oil and gas were discovered. The Commonwealth also endorsed various measures suggested in the draft statement as possible steps to mitigate harmful consequences of drilling operations...

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