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North Slope Borough v. Andrus

Citation: 10 ELR 20115
No. Nos. 79-3126 et al., 486 F. Supp. 332/14 ERC 1001/(D.D.C., 01/22/1980) Preliminary injunction granted

The court enjoins the Secretary of the Interior from issuing leases to oil and gas development tracts in the Beaufort Sea area of the outer continental shelf (OCS) off the shore of Alaska. This opinion follows the court's earlier denial of preliminary relief, 10 ELR 20054.

Plaintiffs' motion for summary judgment alleged first that by proceeding with the lease sale the Secretary violated the federal government's trust responsibility to indigenous Indian tribes. The court rules that this trust responsibility, which arises from provisions within several environmental statutes, was violates through the Secretary's noncompliance with the Endangered Species Act (ESA). The Secretary violated § 7(b) of the ESA by failing to obtain from the National Marine Fisheries Service (NMFS) a proper biological opinion as to the likely impact of the oil and gas drilling activities upon the Bowhead whale and other endangered species. The court finds that as yet there has been no violation of § 7(a) of the Act, which forbids the taking of actions that are likely to jeopardize the existence or habitat of an endangered species. However, because no valid biological opinion under § 7(b) has been prepared, it cannot be determined whether § 7(a) is likely to be violated in the future. In such circumstances, § 7(a) forbids the Secretary from continuing preexploration activities because he cannot ensure that the Bowhead will not be jeopardized. Contrary to defendants' suggestion, the ESA requires the court to focus not just on leasing and preexploratory activities but on the entire program.

The court also determines that the environmental impact statement (EIS) prepared for the project is unsatisfactory under the National Environmental Policy Act (NEPA). There is no merit to plaintiffs' claim that the EIS's "worst case" analysis of the effects of a major oil spill is deficient. Because a "worst case" analysis was not required by Council on Environmental Quality regulations at the time the EIS was prepared, it was reasonable for the Secretary to limit the scope of the analysis to the effects of the lease sale rather than the entire drilling project. Rejecting plaintiffs' claims of additional deficiencies in the analysis, the court finds it to be a reasonable means of alerting the decision maker to the dangers of proceeding in the face of uncertainty. The EIS is fatally defective, however, for failing to explore the possible cumulative adverse effects of oil production in the entire North Slope region. It is not permissible to address the cumulative effects on some species while ignoring the effects on others. Nor is it sufficient to note, as the EIS did with respect to birds, simply that cumulative effects will result; the nature of those effects must be identified. Further, while the Secretary fulfilled his obligation to investigate alternative sources of energy, he inadequately considered the possible use of alternative measures, such as operating orders and lease stipulations, to mitigate the environmental effects of the project. It was not enough merely to list the planned lease stipulations and provide the rationale underlying them; new alternatives which are not planned must also be investigated. The Secretary also violated NEPA by failing to consider management of the Beaufort Sea under other statutory schemes, such as the Marine Sanctuaries Act.

The court goes on to reject plaintiffs' claims of violations of the Outer Continental Shelf Lands Act (OCSLA). The studies required by § 20(a) are not rendered inadequate because they do not predict environmental consequences with certainty, because they are not accompanied by a study of possible cleanup efforts, nor because the scope of the studies was substantially modified several months after they were initiated. Nor does the fact that the State of Alaska claims some of the tracts subject to leasing contravene § 7, which calls for joint federal/state management responsibility through interim agreements. The state's claims are now before the Supreme Court, and there is no reason to believe that the requirements of federal law will be avoided. Further, defendants have not violated § 21 of the OCSLA by failing to have promulgated regulations identifying the best and safest technologies (BAST) for OCS drilling activitis and by failing to have inserted a BAST provision in the notice of sale. Section 21 envisions the development of BAST standards over time, and lessees are aware that as these standards are developed they will become applicable to all OCS drilling activity, even if authorized previously. The court also rejects plaintiffs' arguments that continued progress with the lease sale will amount to a taking or otherwise violate the Marine Mammal Protection Act, the Migratory Bird Treaty Act, § 9(a)(1) of the ESA, and the regulations of the Fish and Wildlife Service and NMFS.

In shaping final relief, the court rejects defendants' claims that it does not have jurisdiction over tracts claimed by the state and that in any event relief may be had only in the courts of appeals, in which certain powers of judicial review are vested by the OCSLA. NEPA empowers and obligates the court to enjoin the Secretary from accepting, but not receiving, bids for OCS tracts. The ESA requires the court to enjoin the issuance of leases until a § 7(b) biological opinion has been prepared and on that basis it has been determined under § 7(a) that the proposed action will not jeopardize the existence of the Bowhead and other species.

In a supplemental opinion issued on February 1, the court subjects the state-managed Dinkum Sands tracts to the January 22 order. Defendants argued that the Interim Agreement under the OCSLA between the Secretary of the Interior and the State of Alaska gave complete control of the Dinkum Sands area to the state and that lessees could therefore conduct exploratory activities notwithstanding the January 22 order. The court finds that the Interim Agreement cannot deprive the federal government of its continued responsibilities under NEPA and the ESA. Thus, in order to maintain the status quo without undermining congressional mandates, the court enjoins any exploratory or production activity in Dinkum Sands pending compliance with the ESA and NEPA. The court also rejects defendants' motion to permit the Secretary to accept lease bids for Dinkum Sands but to withhold written notification thereof until the January 22 order is satisfied. The court exercises its equity authority to frame appropriate relief by tolling the effect of 43 C.F.R. § 3316.5(e), which would otherwise void the lease sale, pending compliance with the January 22 order.

Counsel are listed at 10 ELR 20055.