Natural Resources Defense Council, Inc. v. Morton

• Decision Date: 13 January 1972
• Docket Number: No. 71-2031.,71-2031.
• Citation: Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 148 U.S.App.D.C. 5 (D.C. Cir. 1972)
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Appellees, v. Rogers C. B. MORTON, in his official capacity as Secretary of the Department of Interior, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

458 F.2d 827 (1972)

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Appellees, v. Rogers C. B. MORTON, in his official capacity as Secretary of the Department of Interior, et al., Appellants.

No. 71-2031.

United States Court of Appeals, District of Columbia Circuit.

Argued December 20, 1971.

Decided January 13, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Edmund B. Clark, Atty. for the Department of Justice, with whom Messrs. Shiro Kashiwa, Asst. Atty. Gen., and Thomas L. McKevitt, Atty., Department of Justice, were on the pleadings for appellants.

Mr. Thomas B. Stoel, Jr., Washington, D.C., for appellees.

Mr. John H. Pickering, Washington, D.C., Attorney for Chevron Oil Company, by special leave of Court was permitted to file a suggestion as amicus curiae.

Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This appeal raises a question as to the scope of the requirement of the National Environmental Policy Act (NEPA)¹ that environmental impact statements contain a discussion of alternatives. Before us is the Environmental Impact Statement filed October 28, 1971, by the Department of Interior with respect to its proposal, under § 8 of the Outer Continental Shelf Lands Act,² for the oil and gas general lease sale, of leases to some 80 tracts of submerged lands, primarily off eastern Louisiana. The proposal was finally structured so as to embrace almost 380,000 acres, about 10% of the offshore acreage presently under Federal lease. Opening of bids for the leases was scheduled for December 21, 1971, and three conservation groups³ brought this action on November 1, to enjoin the proposed sale. On December 16, the District Court held a hearing and granted a preliminary injunction enjoining the sale of these leases pending compliance with NEPA. The Government appealed, and filed a motion in this court for summary reversal and immediate hearing. We granted the immediate hearing, and on December 20, heard the presentations and issued an order permitting the bids to be received on condition they remain unopened pending further order of the court. As to the motion for summary reversal, we conclude that this must be denied.

I. BACKGROUND

A. Chronology and Impact Statements

On June 15, 1971, Secretary of Interior Rogers Morton, a defendant in this litigation, announced that a general oil and gas lease sale of tracts on the Outer Continental Shelf (OCS) off eastern Louisiana would take place in December, 1971. This was responsive to the directive in President Nixon's June 4, 1971, Message on Supply of Energy and Clean Air.⁴ On July 31, 1971, Mr. Burton W. Silcock, Director of the Bureau of Land Management, also a defendant, promulgated and circulated for comment a "Draft Environmental Impact Statement" pursuant to § 102(2)(C) of NEPA and § 10(b) of the Guidelines of the Council on Environmental Quality.⁵ Plaintiffs submitted comments on this draft statement. Hearings were held in September, 1971, in New Orleans, at which oral testimony was presented. On October 28, 1971, Mr. Silcock promulgated the "Final Environmental Impact Statement," (hereafter Statement), 36 Fed.Reg. 20707 (1971). On November 20, 1971, the Interior Department announced that the proposed lease sale would take place, that 80 tracts would be offered for leasing, and that sealed bids would be received until December 21.

Statement — Adverse Environmental Impact Disclosed

While the Statement presents questions, subsequently delineated, this document-67 pages in length, exclusive of appendices — is not challenged on the ground of failure to disclose the problems of environmental impact of the proposed sale. On the contrary, these problems are set forth in considerable range and detail. Indeed, the complaint voiced by the Audubon Society's witness in testimony was that the draft Statement gives a green light for the sale while its contents seem to cry out for the opposite conclusion. Without purporting to summarize, we identify some of the Statement's highlights:

Adjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory waterfowl, wading birds and fur-bearing animals. This complex provides rich nutrient systems which make the Gulf of Mexico, blessed also with warm waters and shallow depths, the most productive fishing region of the country. It yielded $71 million of fish and shellfish to Louisiana and Mississippi commercial fishermen in 1970, and some 9 million man-days of sport fishing.

The coastal regions of Louisiana and Mississippi contain millions of acres suitable for outdoor recreation, with a number of state and federal recreation areas, and extensive beach shorelines (397 miles for Louisiana, and 100 miles for Mississippi). These serve millions — not only the residents of the seven-state region (23 million in all; 10 million within 250 miles of the coast), but visitors attracted to the beaches in increasing numbers (estimated at 3.5 millions within five years and ultimately 10 millions).

As to probable impact of issuance of leases on the environment the Statement did not anticipate continuation of debris from drilling operations, in view of recent regulations prohibiting dumping of debris on the OCS. The Statement acknowledged some impact from construction of platforms, pipelines and other structures. A concluding section (III D) on "Unavoidable Adverse Environmental Effects" particularly noted the destruction of marsh and of marine species and plants from dredging incident to pipeline installation, and the effect of pipeline canals in e. g., increasing ratio of water to wetlands and increasing salt water intrusion.

Oil pollution is the problem most extensively discussed in the Statement and its exposition of unavoidable adverse environmental effects. The Statement acknowledges that both short and long term effects on the environment can be expected from spillage, including in that term major spills (like that in the Santa Barbara Channel in 1969); minor spills from operations and unidentified sources; and discharge of waste water contaminated with oil.

These adverse effects relate both to the damage to the coastal region — beaches, water areas and historic sites; and the forecast that oil pollution "may seriously damage the marine biological community" — both direct damage to the larger organisms, visible more easily and sooner, and to smaller life stages which would lead one step removed to damage later in the food chain.

The Statement noted the diverse conclusions and comments in existing reports on oil spills, some minimizing damage done, others stressing that oil spillage has effects beyond the period of visible evidence; that oil may mix with water, especially in a turbulent sea, and disperse downward into the sea; that emulsifiers used to remove surface oil may have toxic consequences, etc.

The Statement asserted that while past major spills in the Gulf resulted in minimal damage, this was due to a fortunate combination of offshore winds and surface currents. The Statement rates blocks in the sale on an estimated probability of impact basis, calculated principally on proximity to high value/critically vulnerable area.

C. Statement — Discussion of Alternatives

Section IV of the Statement, containing its discussion of Alternatives, is attached as an Appendix. Subsection A deals with possible modifications to delete tracts with higher environmental risks. Government counsel advises that, in order to lessen environmental risk, the acreage covered by the proposed sale was reduced from that originally contemplated, with the withdrawal of eight of the tracts most nearly located to the Delta Migratory Waterfowl Refuge.

Subsection IV B ("Withdraw Sale"), containing the material principally involved in this case, will be discussed subsequently in this opinion.

D. Ruling of District Court

The District Court recognized both that there is a profound national energy crisis and that the Outer Continental Shelf has been a prolific source of oil and gas. But it further noted that the Shelf, in President Nixon's words, "has been the source of troublesome oil spills in recent years." The Court found that the Statement failed to provide the "detailed statement" required by NEPA of environmental impact and alternatives. The Court stated:

The Court finds that the defendants failed to comply with NEPA by failing to discuss some alternatives at all, such as meeting energy demands by federal legislation or administrative action freeing current onshore and state-controlled offshore production from state market demand prorationing or a change in the Federal Power Commission\'s natural gas pricing policies. In addition the defendants only superficially discussed the alternatives listed in their Final Impact Statement, and they failed to discuss in detail the environmental impacts of the alternatives they listed in the statement. The Court does not wish to give the impression that it believes the alternatives are better than the proposed lease sale, but it believes that these alternatives must be explored and discussed thoroughly in order to comport with the intent and requirements of Section 4332(2) (C) of NEPA.

E. Scope of Appellate Consideration

We pause before our discussion of the meaning of NEPA to take note of plaintiffs' contention that the Government's motion should be denied because the granting or denial of a preliminary injunction calls for the exercise of judicial discretion, and is not to be disturbed on appeal except on a finding of abuse or improvident exercise of judicial discretion.⁶ And a party moving in an appellate court for a summary reversal — i.e., on motion papers, without usual briefs and full argument — has a "heavy burden of demonstrating both that his remedy is proper and that the merits...