Natural Resources Defense Council, Inc. v. Hodel, 87-1432
| Decision Date | 30 December 1988 |
| Docket Number | No. 87-1432,87-1432 |
| Citation | 865 F.2d 288 |
| Parties | , 275 U.S.App.D.C. 69, 57 USLW 2419, 19 Envtl. L. Rep. 20,386 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. Donald P. HODEL, Secretary of the Interior, Respondent, the American Petroleum Institute, et al., Intervenors. , et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James Thornton, Natural Resources Defense Council, Inc., et al., New York City, and John A. Saurenman, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., with whom Mary Gray Holt, Deputy Gen. Counsel, State of Cal., Long Beach, Cal., Joseph Spicola, Gen. Counsel, Tampa, Fla., and Louis F. Hubener, Asst. Atty. Gen., State of Fla., Tallahasse, Fla., James M. Shannon, Atty. Gen., and Lee P. Breckenridge, Asst. Atty. Gen., State of Mass., Boston, Mass., Michael D. Reynolds and Philip Schradle, Asst. Attys. Gen., State of Or., Salem, Ore., Jerry A. Ackerman, Asst. Atty. Gen., State of Wash., Roger Beers, County of Mendocino, et al., San Francisco, Cal., and Sarah Chasis, Natural Resources Defense Council, Inc., et al., New York City, were on the brief, for petitioners.
Rebecca A. Donnellan and Wells D. Burgess, Attys., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Dirk D. Snel, Atty., Dept. of Justice, and Susan Hoven, Atty., Dept. of Interior, Washington, D.C., were on the brief, for respondent.
E. Edward Bruce, with whom Richard H. Seamon, G. William Frick, and James K. Jackson, Washington, D.C., were on the brief, for Intervenors, The American Petroleum Institute, et al. Bobby R. Burchfield, Washington, D.C., Philip K. Verleger and Donna R. Black, Los Angeles, Cal., also entered appearances for American Petroleum Institute, et al.
Robert S. Venning, with whom Gregory S. Gilchrist, San Francisco, Cal., was on the brief, for amici curiae, Rep. Leon Panetta, et al.
Before RUTH BADER GINSBURG, STARR, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judges RUTH BADER GINSBURG, STARR, and SENTELLE.
TABLE OF CONTENTS
Page
I. BACKGROUND ........................................ 291
II. MOTION TO SUPPLEMENT THE RECORD ................... 293
III. NEPA ISSUES ....................................... 294
A. Standard of Review .......................... 294
B. Conservation as Partial Alternative ......... 295
C. Cumulative Impact on Migratory Species ...... 297
IV. OCSLA ISSUES ...................................... 300
A. Standard of Review .......................... 300
B. Area Issues ................................. 300
1. Administrative planning areas ...... 300
2. Area exclusion ..................... 302
a. Ripeness and standing ... 303
b. Criteria for decision ... 304
c. Adequacy of explanation . 305
d. Political considerations 305
C. Section 18(a)(3): Cost Benefit Analysis ..... 306
1. Calculation of Net Economic Value .. 306
2. Calculation of Social Costs ........ 309
D. Section 18(a)(4): Minimum Bid Analysis ...... 312
1. Minimum Bid Price .................. 313
2. Secretarial Discretion ............. 314
3. Presidential Letter ................ 314
V. PUBLIC LAW 99591 ................................. 316
VI. CONCLUSION ........................................ 319
This case requires the court, for the third time, to review a five-year schedule of offshore oil and gas leasing activity proposed by the Secretary of the Interior. For the reasons stated in this opinion, we hold that the Secretary failed to perform an adequate analysis of the cumulative impacts of the program on migratory species. We remand that matter to the Secretary but uphold the program in all other respects.
The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. Secs. 1331-1356 (1982), enacted in 1953, authorizes the Secretary of the Interior to sell leases to develop oil and gas deposits in the OCS. Congress amended the statute in 1978 to promote the rational development of OCS resources. As delineated in the amended Act, the purposes of OCSLA include the "expedited exploration and development of the Outer Continental Shelf in order to achieve national economic and energy policy goals assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade," but these objectives are to be balanced with "protection of the human, marine, and coastal environments." Id. Sec. 1802(1)-(2).
OCSLA, as amended, describes and governs a five-step process: (1) the promulgation of a five-year leasing program, id. Sec. 1344; (2) lease sales, id. Sec. 1337; (3) exploration, id. Sec. 1340; (4) development and production, id. Sec. 1351; and (5) sale of recovered minerals. Id. Sec. 1353. At various points throughout the development of the leasing program, OCSLA provides for participation by Congress, affected state and local governments, relevant federal agencies, and the public. Id. 1344(c)-(d), (f).
Section 18 of OCSLA, id. Sec. 1344, requires the Secretary to prepare, maintain, and periodically revise a leasing program consisting of a schedule of proposed lease sales. Under section 18(a), the Secretary is to indicate "as precisely as possible, the size, timing and location of leasing activity."
Section 18(a), in addition, prescribes four guiding principles for the program. (1) Impact on other resources and on "economic, social, and environmental values" must be considered. (2) "Timing and location of exploration, development, and production of oil and gas among the oil- and gas-bearing physiographic regions" of the OCS shall be based on eight factors: (A) "existing information concerning the geographical, geological, and ecological characteristics of such regions"; (B) "an equitable sharing of developmental benefits and environmental risks among the various regions"; (C) "the location of such regions" with respect to energy markets; (D) "the location of such regions" with respect to other uses of the sea; (E) the interest of producers in development; (F) such laws and policies of affected states as the governors of those states specifically identify as relevant; (G) "the relative environmental sensitivity and marine productivity" of different areas; and (H) "relevant environmental and predictive information for different areas" of the OCS. (3) Timing and location of leasing shall obtain, "to the maximum extent practicable, ... a proper balance" between the risk of environmental damage and the potential for oil and gas discovery. (4) Leasing "shall be conducted to assure receipt of fair market value for the lands leased." Id. Sec. 1344(a).
Subsections 18(c) and (d) require the Secretary to invite and consider comments from governors of affected states and to state his reasons for accepting or rejecting their recommendations. Id. Sec. 1344(c)-(d). Subsection 18(e) requires the Secretary to review the leasing program at least annually; any significant revision he proposes is to proceed for adoption "in the same manner" as the original development of the plan. Id. Sec. 1344(e).
In 1980 the Secretary adopted a five-year leasing program for 1980-1985. This program, largely prepared by Secretary Andrus, was challenged in this court by various state and local governments and several environmental groups. Petitioners claimed that the program failed to meet the requirements of OCSLA and other statutes. In California v. Watt, 668 F.2d 1290 (D.C.Cir.1981) (Watt I ), this court noted several deficiencies in the program and remanded to Secretary Watt for revision consistent with its opinion.
Secretary Watt revised the program in the course of his annual review pursuant to section 18(e). In January 1982 the court approved the Secretary's proposed timetable for completing the revision, and in July 1982 the Secretary approved a five-year program for 1982-1987. Again various states and environmental groups challenged the plan for alleged violations of OCSLA and the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347 (1982). These claims were all rejected in California v. Watt, 712 F.2d 584 (D.C.Cir.1983) (Watt II ).
Beginning in fiscal year 1982, in response to Secretary Watt's plan, Congress imposed a series of moratoria against leasing parts of the California OCS and other regions. 1 This protracted dispute with the Secretary eventually prompted Public Law 99-591, section 111, reprinted in 1986 U.S.Code Cong. & Admin.News at 100 Stat. 3341, 3341-261 to -262, which requires the Secretary to explain "in detail" why he rejected proposals regarding California submitted by designated members of Congress and by the governor of California.
Meanwhile, the Secretary began the development of the five-year plan for 1987-1992. 49 Fed.Reg. 28,332 (1984). The draft Proposed Program was released in March 1985; the Proposed Program, in February 1986; a Draft Proposed Final Program for Offshore California, in February 1987; the Proposed Final Program (PFP) along with a Secretarial Issue Document (SID), in April 1987; and on July 2, 1987, Secretary Hodel approved the program at issue in this case. Comments were received throughout this administrative process.
Petitioners National Resources Defense Council (NRDC), the states of California, Florida, 2 Massachusetts, Oregon, and Washington, and various environmental groups, challenged Secretary Hodel's program on a variety of grounds, including alleged violations of NEPA, OCSLA section 18, and section 111 of Public Law...
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