Suffolk County v. Secretary of Interior

• Citation: 562 F.2d 1368
• Decision Date: 25 August 1977
• Docket Number: D,Nos. 1187,1258,s. 1187
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: , 7 Envtl. L. Rep. 20,637 COUNTY OF SUFFOLK, County of Nassau, Town of Islip, Town of Hempstead, Town of North Hempstead, Town of Oyster Bay, Town of Huntington, and the Board of Trustees of the Town, of Huntington and Concerned Citizens of Montauk, Inc., Plaintiffs-Appellees, v. SECRETARY OF the INTERIOR et al., Defendants-Appellants, National Ocean Industries Association et al., and New York Gas Group, Intervenor-Defendants-Appellants. The NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff-Appellee, v. SECRETARY OF the INTERIOR et al., Defendants-Appellants, National Ocean Industries Association, National Supply Company, Continental Oil Company, Diamond M. Drilling Company, Digicon, Inc., Dresser Industries, Inc., Houston Oil & Minerals Corporation, Levingston Shipbuilding Company, Murphy Oil Corporation, Ocean Production Company, Transco Companies, Inc. and Zapata Corporation, Intervenor-Defendants-Appellants. ockets 77-6049 and 77-6050.

Page 1368

562 F.2d 1368

10 ERC 1513, 7 Envtl. L. Rep. 20,637

COUNTY OF SUFFOLK, County of Nassau, Town of Islip, Town of

Hempstead, Town of North Hempstead, Town of Oyster Bay, Town

of Huntington, and the Board of Trustees of the Town, of

Huntington and Concerned Citizens of Montauk, Inc., Plaintiffs-Appellees, v. SECRETARY OF the INTERIOR et al., Defendants-Appellants,

National Ocean Industries Association et al., and New York

Gas Group, Intervenor-Defendants-Appellants.

The NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff-Appellee, v. SECRETARY OF the INTERIOR et al., Defendants-Appellants,

National Ocean Industries Association, National Supply

Company, Continental Oil Company, Diamond M. Drilling

Company, Digicon, Inc., Dresser Industries, Inc., Houston

Oil & Minerals Corporation, Levingston Shipbuilding Company,

Murphy Oil Corporation, Ocean Production Company, Transco

Companies, Inc. and Zapata Corporation,

Intervenor-Defendants-Appellants.

Nos. 1187, 1258, Dockets 77-6049 and 77-6050.

United States Court of Appeals Second Circuit.

Argued April 25, 1977.

Decided Aug. 25, 1977.

Irving Like, Babylon, N. Y., Sp. Counsel for County of Suffolk (Patricia A. Dempsey, Atty., Richard C. Hand, Babylon, N. Y., of counsel), for plaintiff-appellee County of Suffolk.

William Gitelman, County Atty. of Nassau County, Mineola, N. Y. (John F. Picciano, Deputy County Atty., Mineola, N. Y., of counsel), for plaintiff-appellee County of Nassau.

William F. Dudine, Jr., New York City, for plaintiff-appellee Concerned Citizens of Montauk, Inc.

J. Christopher Jensen, Asst. U. S. Atty., Brooklyn, N. Y., John J. Zimmerman, Atty., Dept. of Justice, Washington, D. C. (David G. Trager, U. S. Atty., for the Eastern District of New York, Bernard J. Fried, Cyril Hyman, Asst. U. S. Attys., Brooklyn, N. Y., Lawrence R. Hoese, Atty., Dept. of Interior, Washington, D. C., of counsel), for Federal defendants-appellants.

Jon M. Kaufman, New York City (Kommel, Rogers, Kaufman, Lorber & Shenkman, Sarah Chasis, Atty., Natural Resources Defense Council, Inc., New York City, of counsel), for plaintiff-appellee Natural Resources Defense Council, Inc. E. Edward Bruce, Washington, D. C. (Mark D. Nozette, Covington & Burling, Washington, D. C., Gene W. Lafitte, J. Berry St. John, Jr., Liskow & Lewis, New Orleans, La., George A. Burrell, New York City, of counsel), for intervenor-defendants-appellants National Ocean Industries Association, et al.

Shearman & Sterling, New York City (Robert L. Clare, Jr., W. Foster Wollen, Joseph T. McLaughlin, Kenneth M. Kramer, New York City, of counsel), for amici curiae Exxon Corp., Gulf Oil Corp., Mobil Oil, Shell Oil; Robert M. Perry, Houston, Tex., of counsel for Exxon Corp.; James A. Boone, A. Paul Brandimarte, Jr., New Orleans, La., of counsel for Gulf Oil Corp.; E. M. Sutter, R. B. Shaw, New Orleans, La., of counsel for Shell Oil Corp.; Arthur Aitkens, New York City, of counsel for Mobil Oil Corp.

Baker & Botts, Washington, D. C. (Gordon Gooch, John P. Mathis, Thomas B. Hudson, Washington, D. C., Gray Castle, Gen. Counsel, John T. Rafferty, NL Industries, Inc., New York City, of counsel), for amicus curiae NL Industries, Inc.

David J. Muchow, Gen. Counsel, American Gas Association, Arlington, Va. (Kevin B. Belford, Asst. Gen. Counsel, Arlington, Va., of counsel), for amicus curiae American Gas Association.

Willcox, Pirozzolo & McCarthy, Boston, Mass. (Jack R. Pirozzolo, Richard F. McCarthy, Boston, Mass., of counsel), for amicus curiae New England Council.

Rosenman Colin Freund Lewis & Cohen, New York City (Samuel H. Lindenbaum, Martin S. Baker, Thomas J. DeZure, New York City, of counsel), for amicus curiae Association For A Better New York, Inc.

Vinson & Elkins, Washington, D. C. (Rush Moody, Jr., Michael J. Henke, Washington, D. C., of counsel), for amicus curiae The Business Roundtable.

Stanley C. Van Ness, Public Advocate of the State of New Jersey, Trenton, N. J. (Robert P. Corman, Asst. Deputy Public Advocate, Division of Public Interest Advocacy, Dept. of the Public Advocate, Trenton, N. J., of counsel), for amicus curiae Tri-County Committee.

Winer, Neuburger & Sive, New York City (David Sive, William Ginsberg, New York City, of counsel), for amici curiae Friends of the Earth, Inc., The Sierra Club and its Atlantic Chapter, The Wilderness Society, Long Island Sound Task Force, Inc., Long Island Environmental Council, Inc., Group for America's South Fork, Inc.

Drexel D. Journey, Gen. Counsel, F. P. C., Washington, D. C. (Robert W. Perdue, Deputy Gen. Counsel, Allan Abbot Tuttle, Sol., John J. Lahey, Atty., F. P. C., Washington, D. C., of counsel), for amicus curiae F. P. C.

Before MANSFIELD, Circuit Judge, SMITH, Chief Judge, ^* and PALMIERI, District Judge. ^**

MANSFIELD, Circuit Judge:

As our energy demands escalate, so does the running battle between the environmentalists and the exploiters of our natural resources. This appeal represents another skirmish in that confrontation. The principal issue is whether an Environmental Impact Statement (EIS) prepared by the Department of Interior for the purpose of determining whether to authorize a program for exploitation of our oil and gas resources contained sufficient information with respect to the environmental consequences of the proposed action and alternatives to satisfy the requirements of § 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C). The genesis of the appeal lies in the decision of the Executive Branch of the United States, as part of this nation's development of new sources of urgently needed energy, to accelerate the leasing to private industry of our federally-owned Outer Continental Shelf (OCS) for oil and gas exploration Following the President's proposal in January, 1974, that off-shore leasing be accelerated to the extent consistent with environmental safeguards, a "programmatic environmental impact statement" (PEIS) was prepared by the Department of Interior which focused generally on the basic environmental impacts of such a major program and analyzed alternative energy sources (onshore oil and gas resources, oil shale, geothermal energy, solar energy and conservation). After nine days of hearings in Alaska, California and New Jersey, at which the testimony of some 344 witnesses was taken, the PEIS was revised and published in final form in three volumes on July 11, 1975. On September 29, 1975, the Secretary of Interior (Secretary) adopted a proposed accelerated leasing schedule.

development, and production, provided such operations might be undertaken in compliance with our National Environmental Policy Act, 42 U.S.C. § 4321, et seq.

Steps were soon taken to implement the Secretary's action. With respect to the mid-Atlantic OCS area, the Bureau of Land Management of Interior (BLM) designated a broad area off the New Jersey-Delaware-Maryland coast known as the Baltimore Canyon Trough for consideration, obtaining from 13 different government agencies reports as to the potential mineral resources in the area and the effect of exploitation on the resources and environment. Out of the designated area BLM selected 1,151 tracts (6.5 million acres) and asked private industry to specify those tracts which it might be willing to lease and state and local governments to designate those tracts which they believed should not be offered for leasing. Industry nominated 557 tracts (3.2 million acres), and the coastal states offered various comments. BLM then consulted with representatives of private industry and of Geological Survey to determine which tracts were believed to have the highest hydrocarbon potential and which posed environmental hazards, such as dangers to navigation and shipping, marine resources and habitat. On August 20, 1975, the BLM announced that 154 tracts located some 50 to 90 miles off the coast of New Jersey had tentatively been selected out of the 557 for proposed leases to be known as Sale 40.

Pursuant to this decision BLM prepared a draft site-specific Sale 40 Environmental Impact Statement (EIS) evaluating the environmental consequences of opening up this first offshore field in the Atlantic coastal area for oil and gas development. During August to October, 1975, interested parties, state representatives and those representing various federal agencies and bureaus were given an opportunity to review the working draft, which was published in December and became the subject of hearings in January, 1976, at which the testimony of 137 witnesses was taken and written comments were received and studied. On May 25, 1976, the Final EIS, consisting of four volumes totalling some 1,998 pages (not including some exhibits) which had been revised and amplified as a result of the testimony and comments, was published.

On June 30, 1976, the Secretary, after reviewing a Program Decision Option Document (PDOD) prepared by his staff, and after holding meetings to discuss the issues with his staff, announced his decision to go forward with lease Sale 40 on August 17, 1976. Within a matter of days the National Resources Defense Council, the State of New York, ¹ and a number of Long Island counties and towns, in an action consolidated with an earlier action by the Counties of Suffolk and Nassau before Judge Weinstein of the United States District Court for the Eastern District of New York, brought suit to enjoin the proposed sale, alleging that the EIS did not comply with the requirements of § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C). ² On August 13, 1976, Judge Three days later we stayed enforcement of the preliminary injunction, finding no reason to believe that irreparable harm would occur pending the ultimate resolution of the lawsuit if the lease sale were allowed to take place. Justice Thurgood Marshall refused to vacate our stay, noting in his written opinion issued August 19, 1976, that the sale could always be voided in the event...