Com. of Mass. v. Watt, s. 83-1258

Citation716 F.2d 946
Decision Date16 September 1983
Docket NumberNos. 83-1258,83-1265,s. 83-1258
Parties, 13 Envtl. L. Rep. 20,893 COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, Appellees, v. James G. WATT, et al., Defendants, Appellants. COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, Appellees, v. James G. WATT, et al., Defendants, Appellees. Atlantic Richfield Company, et al., Intervenor-Defendants, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Anne S. Almy, Atty., Dept. of Justice, Washington, D.C., with whom Carol E. Dinkins, Asst. Atty. Gen., Peter R. Steenland, Jr., Margaret Strand and Nancy B. Firestone, Attys., Dept. of Justice, Washington, D.C., were on brief, for James G. Watt, et al.

E. Edward Bruce, Washington, D.C., with whom Richard A. Meserve, David K. Flynn, Covington & Burling, Washington, D.C., G. Marshall Moriarty and Ropes & Gray, Boston, Mass., were on brief, for Atlantic Richfield Co., Conoco, Inc., Gulf Oil Corp., Shell Oil Co., Texaco, Inc., Chevron, U.S.A., Inc., Exxon Corp., Mobil Oil Corp. and Tenneco Oil Exploration and Production.

Robert R. Ruddock, Boston, Mass., on brief, for the New England Legal Foundation, the Greater Boston Chamber of Commerce, and the New England Council, amicus curiae.

Stephen M. Leonard, Asst. Atty. Gen., Chief, Environmental Protection Div., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass. and Lee Breckenridge, Asst. Atty. Gen., Environmental Protection Div., Nashville, Tenn., were on brief, for Com. of Mass.

Douglas I. Foy, Boston, Mass., with whom Steven D. Stark, Alan Wilson, R. Alan Fryer, Donald S. Berry and Nancy Marks, Boston, Mass., were on brief, for appellees Conservation Law Foundation, et al.

Irwin I. Kimmelman, Atty. Gen., James J. Ciancia, Asst. Atty. Gen., Mary C. Jacobson, and John M. Van Dalen, Deputy Attys. Gen., Trenton, N.J., on brief, for State of N.J., amicus curiae.

John K. Van De Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., Theodora Berger, Asst. Atty. Gen. and John A. Saurenman, Deputy Atty. Gen., Los Angeles, Cal., on brief, for the People of the State of Cal. ex rel. John K. Van De Kamp., and the State of Cal. on behalf of the California Coastal Com'n, amicus curiae.

Before COFFIN and BREYER, Circuit Judges, and SELYA, * District Judge.

BREYER, Circuit Judge.

The government asks us to set aside a preliminary injunction stopping it from auctioning rights to drill for oil on 488 tracts near Georges Bank, a fishing area in the North Atlantic off the New England Coast. The district court, 560 F.Supp. 561, acting at the request of the Commonwealth of Massachusetts and the Conservation Law Foundation, issued the injunction (after a brief hearing) on March 28, 1983--sixteen days after the Commonwealth and the Conservation Law Foundation asked for a preliminary injunction and one day before the scheduled oil lease sale was to take place. The court based its order on four separate grounds, namely that the proposed sale was likely to violate four separate statutes: the National Environmental Policy Act, 42 U.S.C. Secs. 4321 et seq., the Endangered Species Act, 16 U.S.C. Secs. 1531 et seq., the Coastal Zone Management Act, 16 U.S.C. Secs. 1451 et seq., and the Outer Continental Shelf Lands Act, 43 U.S.C. Secs. 1331 et seq., 1801 et seq. Appellant challenging the issuance of a preliminary injunction must carry the heavy burden of proving that the district court abused its discretion. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 823 (1st Cir.1979). On this appeal, we conclude that the district court was correct at least as to its finding of a likely violation of NEPA. Because the likelihood of a violation of NEPA, in the circumstances of this case, is sufficient to support a preliminary injunction, we need not consider the other alleged statutory violations. We affirm the district court's order.

I

NEPA requires that the Department of the Interior, before auctioning its oil leases, prepare a statement that describes "the environmental impact of the proposed action, ... any adverse environmental effects which cannot be avoided ..., [and] alternatives to the proposed action ...." 42 U.S.C. Sec. 4332(C). Further regulations, binding throughout the Executive Branch, Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979), require the Department to prepare a supplement to this Environmental Impact Statement (EIS) if there are "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. Sec. 1502.9(c). In this case, after the Department prepared its Final Environmental Impact Statement (FEIS), it radically revised its estimates of oil likely to be found on the tracts it intended to lease. It lowered its mean estimate from 1.73 billion barrels to 55.7 million barrels--a 97% reduction. The NEPA issue is whether the fact that the Department now believes there is only 1/31 as much oil to be found off Georges Bank is a "significant new circumstance" sufficient to require an EIS supplement.

We judge the lawfulness of the Department's decision not to supplement the EIS by asking whether that decision was reasonable under the circumstances. California v. Watt, 683 F.2d 1253, 1267 (9th Cir.1982) ("[a]n agency's decision not to supplement an EIS will be upheld if it was reasonable"), cert. granted on other grounds, --- U.S. ----, 103 S.Ct. 2083, 77 L.Ed.2d 295 (1983); cf., e.g., Sierra Club v. Froehlke, 534 F.2d 1289, 1299 (8th Cir.1976) ("courts must employ a rule of reason in the examination for adequacy of these statements, lest the litigation have no end"); Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C.Cir.1973) (rule of reason applies); Village of False Pass v. Watt, 565 F.Supp. 1123 (D.Alaska, 1983) (same). Having read the approximately five-hundred-page FEIS and the various decision documents placed before the Secretary, we conclude that the Department of Interior's decision not to supplement was not reasonable. Without a supplement, the FEIS did not describe the likely environmental harms well enough to allow the Secretary to make an informed decision. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Alaska v. Andrus, 580 F.2d 465, 474-75 (D.C.Cir.1978); County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir.1977); Silva v. Lynn, 482 F.2d 1282, 1284-85 (1st Cir.1973); Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C.Cir.1971).

Our reading of the FEIS shows us that it was written with the 1.73 billion barrel mean in mind, and suggests that an FEIS written with a 56 million barrel mean expectation would be a very different document. We can best demonstrate the inadequacy of the FEIS--showing why, and how, expecting 31 times as much oil significantly affected the description of environmental consequences--by choosing as an example a key decision that the Secretary had to make: the decision whether or not to accept the Conservation Law Foundation's preferred choice, "Alternative Five." That alternative would have removed 207 blocks from the sale and left 333 for leasing. Did the FEIS adequately inform the Secretary about the adverse environmental consequences of not adopting this alternative?

The Secretary had before him a Secretarial Issue Document (SID) that framed the relevant issues for his choice. The SID was based upon the new (97% reduced) oil recovery estimates. It stated that by rejecting Alternative Five--by leasing 540 blocks instead of 333--the Secretary would create only about $35 million in additional oil benefits, instead of the hundreds of millions of dollars previously thought possible. Had the Secretary simply balanced this $35 million benefit against the serious environmental harms described in the FEIS, he might well have chosen Alternative Five, and taken 207 tracts out of the sale.

The SID, however, goes on to tell him not to balance the "FEIS described" harms against this new benefit. It correctly tells him (in two sentences) that the new resource recovery estimates imply that the likely environmental harms have changed too. It states:

Since the revised resource estimates for this option are much lower than those assumed for the basis of the FEIS, a corresponding smaller number of platforms, wells, and pipelines needed to explore for and develop these resources should be assumed. This would significantly lower the expected impacts.

Although the SID thereby tells the Secretary that the likely environmental harm is less than described in the FEIS, it does not tell him by how much the previous FEIS estimate of likely environmental harm should be reduced, (nor does it purport to do so).

The Secretary, alerted by the SID's reference to a "corresponding smaller" amount of drilling and "significantly lower" impacts, might have looked to another document before him--an Environmental Assessment (EA)--for further explanation. But the EA contains only a very limited amount of further information. The EA states, as to Alternative Five:

The revised oil and gas resource estimates for Georges Bank mean fewer production platforms but ... approximately the same exploration and delineation structures.... [R]eductions would occur in estimated volumes of drill muds and cuttings, chronic and acute discharges, air emissions, number of spills and number of pipelines needed. Reduced activity results in a reduction of estimated impacts as described in the FEIS (see Table II.D.1).... While estimated impacts on all resources are reduced, impact severity for fisheries and biological resources are only slightly lower.

The reference to a table is presumably a reference to Table II.B.10 of the FEIS, for we could not find a Table II.D.1. Table II.B.10...

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