Roosevelt Campobello Intern. Park Com'n v. U.S. E.P.A., Nos. 81-1548

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, BOWNES and BREYER; COFFIN
• Citation: 684 F.2d 1041
• Parties: , 12 Envtl. L. Rep. 20,903 ROOSEVELT CAMPOBELLO INTERNATIONAL PARK COMMISSION, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, The Pittston Company, et al., Intervenors. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, The Pittston Company, et al., Intervenors. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, The Pittston Company, et al., Intervenors.
• Docket Number: 81-1560 and 81-1773,Nos. 81-1548
• Decision Date: 10 August 1982

Page 1041

684 F.2d 1041 17 ERC 2023, 12 Envtl. L. Rep. 20,903 ROOSEVELT CAMPOBELLO INTERNATIONAL PARK COMMISSION, et al.,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
The Pittston Company, et al., Intervenors.
CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
The Pittston Company, et al., Intervenors.
CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
The Pittston Company, et al., Intervenors. Nos. 81-1548, 81-1560 and 81-1773. United States Court of Appeals,
First Circuit. Argued April 6, 1982.
Decided Aug. 10, 1982.

Page 1043

Bruce J. Terris, Washington, D. C., and Alan Wilson, Boston, Mass., with whom Karen H. Edgecombe, Washington, D. C., Kenneth T. Hoffman, Douglas I. Foy, and Kathleen C. Farrell, Boston, Mass., were on brief, for petitioners.

Gregory W. Sample, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., and Kay R.H. Evans, Asst. Atty. Gen., Augusta,

Page 1044

Me., were on brief, for the State of Maine, amicus curiae.

Jonathan B. Hill, with whom John P. Schnitker, Dow, Lohnes & Albertson, Washington, D. C., Bruce W. Chandler, and Marden, Dubord, Bernier & Chandler, Waterville, Me., were on brief, for the Pittston Co., intervenor.

Rosanne Mayer, Atty., Dept. of Justice, with whom Carol E. Dinkins, Asst. Atty. Gen., Land and Natural Resources Div., Donald W. Stever, Jr., Atty., Dept. of Justice, Washington, D. C., and Susan Studlien, Atty., E. P. A., Boston, Mass., were on brief, for U. S. E. P. A., respondent.

Wayne S. Henderson, Boston, Mass., for New England Legal Foundation, et al., intervenor.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

COFFIN, Chief Judge.

In these three consolidated appeals petitioners challenge the final decision of the EPA Administrator to issue a National Pollutant Discharge Elimination System (NPDES) permit to the Pittston Company pursuant to § 402 of the Clean Water Act, 33 U.S.C. § 1342. The permit authorizes the Pittston Co. to construct and operate a 250,000 barrel per day oil refinery and associated deep water terminal at Eastport, Maine, in accordance with specified effluent limitations, monitoring requirements, and other conditions. Petitioners contend that EPA's actions violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq.

Pittston proposes to construct an oil refinery and marine terminal in Eastport, Maine, a relatively pristine area of great natural beauty near the Canadian border. The area is known for being the foggiest on the East Coast, experiencing some 750-1000 hours of fog a year; daily tides approximate twenty feet. The plan contemplates that crude oil shipments will arrive several times a week in supertankers, or Very Large Crude Carriers (VLCCs), as long as four football fields, or slightly less than a quarter of a mile. The tankers will travel through Canadian waters ¹ around the northern tip of Campobello Island, where the Roosevelt Campobello International Park is located, see 16 U.S.C. § 1101 et seq., down Head Harbor Passage to a refinery near Eastport where they will be turned and berthed. Numerous barges and small tankers will carry the refined product from Eastport to destination markets in the Northeast.

The protracted procedural history of this case begins in April 1973, when Pittston applied to the Maine Board of Environmental Protection (BEP) for permission to locate the refinery in Eastport. After public hearings, the BEP approved the proposal under the Maine Site Location of Development Law, 38 M.R.S.A. § 481 et seq., subject to a number of pre-construction and pre-operation conditions designed primarily to reduce the risk of oil spills. Pittston subsequently filed an application with EPA to obtain an NPDES permit, and submitted an Environmental Assessment Report to aid EPA in its duty to prepare an Environmental Impact Statement (EIS) pursuant to NEPA. See 33 U.S.C. § 1371(c)(1); 42 U.S.C. § 4332(2)(C). EPA promulgated a draft EIS recommending issuance of the permit as conditioned by the Maine BEP, held a joint public hearing with the Army Corps of Engineers in Eastport, and received approximately 600 responses during a public comment period. In September 1977, the Maine Department of Environmental Protection certified, under § 401(a)(1) of the Clean Water Act, 33 U.S.C. § 1341(a)(1), that the proposed discharge would satisfy the appropriate requirements of state and federal law. In June 1978, the final EIS was issued, again recommending that the permit be issued pursuant to the BEP conditions.

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Several months later, the National Marine Fisheries Service (NMFS) of the Department of Commerce and the Fish and Wildlife Service (FWS) of the Department of Interior initiated consultations with EPA concerning the proposed refinery's impact on endangered species-the right and humpback whales, and the northern bald eagle, respectively-under § 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536. In November, the NMFS issued a threshold determination that there were insufficient data to conclude that the project was not likely to jeopardize the continued existence of the endangered whales. In December, the FWS concluded that the project was likely to jeopardize the bald eagle. In light of these opinions and of the value of the natural resources in the Eastport area as noted in the EIS, EPA's Region I issued a notice of determination to deny Pittston's application for an NPDES permit in January 1979. Pittston thereafter sought an adjudicatory hearing and administrative review of this decision. ²

Prior to the hearing, extensive consultation between EPA, NMFS, FWS, and Pittston took place to consider mitigation measures proposed by Pittston. In May, NMFS concluded on the basis of the best scientific data available that EPA was unable to comply with the statutory mandate that it "insure that (the project) is not likely to jeopardize the continued existence of" endangered whales. 16 U.S.C. § 1536(a)(2). In June FWS reaffirmed its previous determination that the refinery was likely to jeopardize the bald eagle. EPA Region I amended its decision to include these new findings.

The adjudicatory hearing took place over five weeks in January and February of 1980. More than fifty witnesses testified and were cross-examined; several hundred exhibits were introduced. In January 1981, the ALJ rendered EPA's Initial Decision, overturning EPA Region I and ordering that the NPDES permit issue. He concluded that the EIS was adequate to comply with NEPA, and that no supplemental EIS was necessary; that the risk of oil spills was "minute" and that the refinery was therefore not likely to jeopardize any endangered species; and that the conditions imposed by the Maine BEP, and assumed by the EIS, were not required to be conditions of the federal permit. Petitioners subsequently sought review before the EPA Administrator, and also moved to reopen the record to admit a recent study showing an increased number of endangered whales in the Eastport region. Both motions were denied, and in September 1981 EPA Region I issued the NPDES permit to the Pittston Company. Petitioners now seek review in this court pursuant to § 509(b)(1)(F) of the Clean Water Act, 33 U.S.C. § 1369(b)(1)(F).

I. The National Environmental Policy Act

A. The Standard of Review

It is now well settled that there are two aspects to a court's review of agency action subject to the requirements of NEPA:

"First, the court makes a substantive review of the agency's action to determine if such action is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns.

Second, a reviewing court must assess the agency's compliance with the duties NEPA places upon it. These duties are 'essentially procedural'. The primary procedural mechanism embodied in NEPA is the requirement that an agency prepare 'a detailed statement' discussing,

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inter alia, 'alternatives to the proposed action', 42 U.S.C. § 4332(2)(C). Requiring an agency to discuss alternatives within the EIS serves numerous goals. The detailed statement aids a reviewing court to ascertain whether the agency has given the good faith consideration to environmental concerns discussed above, provides environmental information to the public and to interested departments of government, and prevents stubborn problems or significant criticism from being shielded from internal and external scrutiny." Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) (citations & footnote omitted). See also Silva v. Lynn, 482 F.2d 1282, 1283-84 (1st Cir. 1973).

B. The Need for the Project

In order to weigh the benefits of the project against the potential environmental costs, the EIS contained an analysis of the justification for the project and the anticipated economic benefits. The project was deemed consistent with a longstanding federal policy of encouraging the construction of domestic refining capacity in order to promote national security. New England, heavily dependent on imported oil, had no regional refining capacity. The project was designed to accommodate VLCCs, thus taking advantage of the cost savings offered by economies of scale. Constructing a refinery in the United States rather than abroad had the additional advantage of retaining jobs and investments in this country. Finally, the...