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Massachusetts v. Andrus

ELR Citation: 9 ELR 20162
Nos. Nos. 78-1036, -1037, 594 F.2d 872/12 ERC 1801/(1st Cir., 02/20/1979) Injunction lifted

The first Circuit Court of Appeals lifts a preliminary injunction, 8 ELR 20187, restraining the Secretary of the Interior from proceeding with a planned sale of oil and gas development leases for outer continental shelf (OCS) lands off the coast of New England. The court finds that injunctive relief is inappropriate because the grounds forming he principal bases for the district court's order are no longer applicable. Regardless of the merit in the trial judge's interpretation of the Secretary's duty to delay the sale pending the imminent enactment of environmentally protective amendments to the OCS Lands Act, the passage of those amendments has rendered this issue moot. The lower court's finding that the environmental impact statement (EIS) prepared for the sale was inadequate for insufficiently considering the alternative of delaying the sale is thus no longer pertinent. The asserted inadequacy of the EIS for its lack of proper analysis of the possibility of designating the lease area as a marine sanctuary has apparent merit, but this is a defect which can be remedied prior to any future federal action precluding that option. If the Secretary fails to cure this possible deficiency in the EIS on his own initiative, the district court should consider the matter fully. In addition, the court reviews the lower court's ruling that the EIS was deficient for failure to assess fully the impact on the shores of Martha's Vineyard and Cape Cod of potential oil spills. It was sufficient for the impact statement to describe the vulnerable areas and to demonstrate a recognition of thier importance; a quantitative estimate of the likely damage is not required. The court expresses its further view that, contrary to the opinion of the lower court, the Environmental Protection Agency's unfavorable comments on the Department of the Interior's EIS are not to be deemed an authoritative condemnation of the statement's adequacy. The effect of such comments is limited to creating an obligation on the part of the project agency to make reasonable responses. It is inappropriate for federal courts to use their equitable powers to exert continuing supervision over public officials to assure future compliance with the law except in rare and compelling circumstances. The injunction is therefore lifted. Finally, the court adds that as clarified by the recent amendments to the OCS Lands Act, the Secretary's duty under the Act is not to avoid any possibility of injury to the fishing resources on the OCS, but simply to exercise due diligence to prevent an unreasonable risk of irreparable harm to such resources from oil exploration and development.

Counsel for Appellants
Peter R. Steenland, Jr.; John J. Zimmerman, Bruce C. Rashkow, Irwin L. Schroeder, William B. Morrison; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2808

E. Edward Bruce, Mark D. Nozette
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6216

John Berry St. John Jr.
Liskow & Lewis
One Shell Sq., 50th Floor, New Orleans LA 70139
(504) 581-7979

G. Marshall Moriarty
Ropes & Gray
225 Frankin St., Boston MA 02110
(617) 423-6100

Counsel for Appellees
Douglas I. Foy, Sarah M. Bates, Sarah Chasis
Conservation Law Foundation of New England
3 Joy St., Boston MA 02114
(617) 742-2540

Stephen M. Leonard, Ass't Attorney General; Francis X. Belloti, Attorney General; Charles Gorkin, II, Jose R. Allen, Frank A. Gaynor, III, Ass't Attorneys General
100 Ashburton Pl., Boston MA 02108
(617) 727-2265

Counsel for Amici Curiae
Peter D. Kinder, Harrison A. Fitch, John A. Markey
New England Legal Foundation
110 Tremont St., Boston MA 02108
(617) 482-1410

Emilie Benoit; Allen P. Rubine, Ass't Attorney General
State of Rhode Island
250 Benefit St., Providence RI 02903
(401) 831-6850

Coffin, Campbell, and Murray,* JJ.