Environmental Defense Fund, Inc. v. Andrus

• Decision Date: 06 May 1980
• Docket Number: No. 78-1809,78-1809
• Citation: 619 F.2d 1368
• Parties: , 14 ERC 1444, 10 Envtl. L. Rep. 20,252 ENVIRONMENTAL DEFENSE FUND, INC.; Colorado Open Space Council, Inc.; and Friends of the Earth, Inc., Plaintiffs-Appellants, v. Cecil D. ANDRUS, as Secretary of the United States Department of the Interior; Peter A. Rutledge, as Area Oil Shale Supervisor, United States Geological Survey; Dale R. Andrus, as Director, Colorado State Office, United States Bureau of Land Management; Gulf Oil Corporation; Standard Oil Company (Indiana); Ashland Oil Inc.; and Occidental Oil Shale, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1368

619 F.2d 1368

14 ERC 1181, 14 ERC 1444, 10 Envtl.

L. Rep. 20,252

ENVIRONMENTAL DEFENSE FUND, INC.; Colorado Open Space Council, Inc.; and Friends of the Earth, Inc. Plaintiffs-Appellants, v. Cecil D. ANDRUS, as Secretary of the United States Department of the Interior; Peter A. Rutledge, as Area Oil Shale Supervisor, United States Geological Survey; Dale R Andrus, as Director, Colorado State Office, United States Bureau of Land Management; Gulf Oil Corporation; Standard Oil Company (Indiana); Ashland Oil Inc.; and Occidental Oil Shale, Inc., Defendants-Appellees.

No. 78-1809.

United States Court of Appeals Tenth Circuit.

Argued Nov. 29, 1979.

Decided March 3, 1980.

Rehearing Denied May 6, 1980.

Paula C. Phillips, Denver, Colo. (David Mastbaum and Craig S. Barnes, Denver, Colo., with her on the brief), for plaintiffs-appellants.

Martin Green, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist, Atty., Dept. of Justice, Washington, D. C., and Joseph F. Dolan, U. S. Atty., Jerry B. Tompkins, Asst. U. S. Atty., Denver, Colo., with him on the brief), for defendants-appellees.

Thomas H. Truitt of Wald, Harkrader & Ross, Washington, D. C. (Thomas C. Matthews, William R. Weissman and Carol Kinsbourne of Wald, Harkrader & Ross, Washington, D. C., Robert H. Harry of Davis, Graham & Stubbs, Denver, Colo., Lawrence J. LaBrie, Ashland, Ky., and Daniel R. Hale, Bakersfield, Cal., of counsel, with him on the brief), for defendants-appellees Ashland Colorado, Inc. and Occidental Oil Shale, Inc.

Christopher Lane of Dawson, Nagel, Sherman & Howard, Denver, Colo. (Don H. Sherwood of Dawson, Nagel, Sherman & Howard, Kent R. Olson, David E. Brody and Rebecca McGee, Denver, Colo., with him on the brief), for defendants-appellees Gulf Oil Corporation and Standard Oil Company (Indiana).

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

The Court has learned of the tragic and untimely death shortly before oral argument of this case of one of the lead counsel for appellee, C-b lessees, Thomas C. Matthews, Jr., a distinguished member of the bar of the District of Columbia. Mr. Matthews' last professional undertaking was the preparation of C-b's brief in this case.

This appeal is taken by Environmental Defense Fund, Inc., Colorado Open Space Council, Inc., and Friends of the Earth, Inc., hereinafter jointly referred to as Appellants or Environmental Defense, from the District Court's grant of Summary Judgment, following filing of cross motions therefor, to Cecil D. Andrus, Secretary of the United States Department of the Interior, Peter A. Rutledge, Area Oil Shale Supervisor, United States Geological Survey, Dale D. Andrus, Director, Colorado State Office, United States Bureau of Land Management, Gulf Oil Corporation, Standard Oil Company of Indiana, Ashland Colorado, Inc. and Occidental Oil Shale, Inc., hereinafter collectively referred to as Appellees or Secretary. No contention is raised that the case was not ripe for summary judgment. Jurisdiction of this Court vests pursuant to 28 U.S.C. § 1291.

The District Court did not enter formal, written findings and conclusions. The Court did, however, render a detailed oral bench ruling properly identifying the primary concern as ". . . the sufficiency of an environmental impact statement prepared in connection with the prototype oil shale leasing program, a program which has a goal of developing commercial oil shale technology by private industry through the leasing of certain designated tracts of Federally-owned land". (Joint Appendix, pp. 452, 453).

On appeal, Environmental Defense presents three basic issues: (1) whether the District Court, in addressing the issues presented by the summary judgment motions, erred (1) in failing to apply the proper standard of review required by this Circuit and (ii) in according overriding deference to the conclusory allegations of the federal defendants where those allegations are refuted by the undisputed facts in the record; (2) whether the District Court erred in holding that the federal defendants complied with the National Environmental Policy Act on the basis of (i) a programmatic environmental impact statement that was patently deficient in its analyses of the subsequent, site-specific actions at issue, and (ii) assorted other documents none of which could meet, individually or collectively, the Act's mandatory requirements, and (3) whether the federal defendants' clear and continuing violations of the National Environmental Policy Act require the issuance of an injunction pending preparation of the required environmental impact statements.

Some general background is helpful in placing the contentions before us in proper perspective. The issues before the District Court were presented under Sec. 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C), 1970, and implementing regulations and guidelines. The complaint, filed December 6, 1977, sought an order: compelling defendants to comply with NEPA, the implementing regulations and guidelines; to enjoin and restrain the federal defendants from approving detailed development plans (DDPs) prepared and submitted by defendant lessees in lieu of an environmental impact statement (EIS) which Environmental Defense contends must be prepared and circulated by Secretary; to enjoin granting certain rights-of-way by Secretary to Tracts C-a and C-b (covering tracts of land situate entirely in Colorado) until the required EIS is completed and evaluated; and restraining any further activities on the subject leases by defendant lessees until the EIS is prepared, evaluated and approved.

Oil shale deposits in the western United States came into critical focus some nine years ago when domestic reserves of oil and gas substantially diminished. This necessitated a quest for other sources of domestic oil which could be produced and marketed in a commercially feasible setting. This quest involved a policy determination that private firms should be encouraged to lend their capital and expertise in the development of commercial oil shale technology. As a result, the United States Government undertook a Prototype Oil Shale Leasing Program in 1969, designed to further the development of publicly owned oil and shale resources, providing environmental concerns could be satisfactorily recognized, considered and resolved. ¹

During 1971, the Department of Interior formulated an oil shale leasing program encompassing seven steps: (1) promulgation of an EIS, (2) approval of an overall prototype program based on the environmental description and analysis of the EIS, (3) solicitation of competitive bids and awarding of leases for the tracts reviewed in the EIS, (4) filing by the lessees of Detailed Development Plans ("DDPs"), supplements and modifications thereto, if needed, (5) review and approval of the DDPs by the Area Oil Shale Supervisor ("AOSS"), (6) specific site authorizations, such as rights-of-way, and (7) development of deposits on leased tracts in compliance with the terms of the lease and the DDP.

Prior to undertaking these steps, the Secretary prepared a draft environmental impact statement in September, 1972, in three volumes. It described various processes used to extract and reduce oil from the oil shale along with the environmental impacts which might result from those actions. The draft EIS was subject to exhaustive review, including panel studies on the environmental impact of underground mining, surface mining, and/or in situ operations.

The first and most painstaking, comprehensive of the seven steps, that of preparation of the EIS, was pursued by the Secretary with meticulous care following preparation and circulation of the three volume "Draft Environmental Statement for the Proposed Prototype Oil Shale Leasing Program". Numerous public hearings, invitations for comments and input preceded publication by the Secretary of this six (6) volume "Final Environmental Impact Statement for the Prototype Oil Shale Leasing Program" on August 30, 1973. Recognizing that § 102(2)(C), (42 U.S.C. § 4332(2)(C)) is at the heart of NEPA, the Secretary undertook a comprehensive study of the environmental effects of the proposed project and various alternatives which included a point-by-point analysis of the public comments submitted at the various public hearings held on the draft EIS. The first three volumes of the final EIS consist of 1,669 pages; the fourth volume, 265 pages containing analysis of public comments on the draft environmental impact statements; and the fifth and sixth volumes, respectively, contain 202 letters received relating to the draft EIS and a transcript of the hearings held on the draft EIS. The final EIS considered in detail the possible environmental consequences anticipated from the development of the six specific tracts of land to be leased, two each in Colorado, Utah and Wyoming. The EIS also considered the differing environmental impacts which might result from either surface or underground mining of oil shale, as well as from either surface or underground a/k/a in situ retorting of oil shale. In addition, the EIS considered the environmental effects of roads and power lines, which would have to be constructed in order to develop oil shale, on these particular tracts.

The final EIS carefully noted that various individuals and organizations urged that the approval of the lessees' DDPs be preceded by the preparation of a subsequent (or new) EIS. This suggestion was rejected by the Secretary in favor of the procedure originally proposed in the draft EIS.

On November 28, 1973, the Secretary approved the Prototype Oil Shale Leasing Program. Thereafter, the Secretary pursued the detailed procedure leading to the issuance of the subject leases based upon substantial bonus bid payments. ² Each of the leases contains, in Section 10, a requirement that the...