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Conservation Law Found. of New England v. Andrus

Citation: 9 ELR 20767
No. Nos. 79-1585, -1586, 617 F.2d 296/13 ERC 1865/(1st Cir., 11/06/1979) Relief pending appeal denied

The First Circuit Court of Appeals denies appellants' request for injunctive relief pending review of the district court's denial, 9 ELR 20764, of their request for a preliminary injunction against the opening or acceptance by the Secretary of the Interior of bids for outer continental shelf (OCS) oil and gas leases in the Georges Bank fishing region of the Atlantic Ocean. At the outset, the court denies appellants' request for a lowering of the threshold of the likelihood of success which must be shown to obtain the stay. The court notes that where the balance of irreparable harms tilts sharply in favor of the movant, courts will frequently require a showing only of "serious questions of law." In this case, however, it does not appear that the mere acceptance of bids for oil and gas leases might cause appellants any injury that is so grave and irreparable that it meets the higher standard of likelihood of success. On the merits, the court rejects appellants' claim that the sale of the leases will violate the Endangered Species Act because it will jeopardize the existence of the humpback and right whales. On the contrary, the conditions of the sale are such that the Secretary retains wide discretion to impose environmentally protective restrictions on the leases as the need arises. The court also rejects the argument that the sale should be delayed until the Secretary promulgates regulations under the Outer Continental Shelf Lands Act, which will require use of best available and safest technology in offshore drilling activities; it is clear that when such regulations are issued they can and will be made retroactive. Further, the environmental impact statement prepared for the sale, along with other documents and sources, appears adequate to have performed its central function of assuring that the Secretary's decision to proceed with the sale was fully informed. Finally, the court agrees with the destrict court that the Secretary's failure to analyze fully the recent oil spill in the Bay of Campeche was not so serious as to justify the issuance to an injunction against the sale.

Counsel for Appellants Commonwealth of Massachusetts
Stephen Leonard, Jose R. Allen, Ass't Attorneys General; Francis S. Bellotti, Attorney General
Office of the Attorney General, Environmental Division
1 Ashburton Place, Boston MA 02108
(617) 727-2200

Counsel for Appellants State of Maine
Richard Cohen, Attorney General; Cabanne Howard, Ass't Attorney General
State House, Augusta ME 04333
(207) 289-3661

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

Counsel for Appellees
Mary Ann Walsh, Peter R. Steenland, Jr., William M. Cohen, Michael W. Reed, Patricia Young; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenors Atlantic Richfield Co.,et al.
E. Edward Bruce, Mark D. Nozette
Covington & Burling
888 16th St. NW, Washington DC 20016
(202) 452-6126

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

G. Marshall Moriarty, John C. Kane, Jr.
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Before Coffin and Campbell, JJ.