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False Pass, Village of v. Watt

ELR Citation: 13 ELR 20905
Nos. No. A83-176 Civ., 565 F. Supp. 1123/18 ERC 2129/(D. Alaska, 05/06/1983)

The court enjoins the Secretary of the Interior from issuing outer continental shelf oil and gas leases in Alaska pending compliance with the National Environmental Policy Act and the Endangered Species Act (ESA). The court rules that the Secretary fully complied with the Outer Continental Shelf Lands Act. Applying the rule of reason, the court holds that for the most part, the environmental statement (EIS) for the lease sale adequately discusses the environmental impacts. The EIS contained sufficient detail on the effect of oil spill size on a spill's biological consequences. In addition, the discussion of the long-term toxic effects and persistence of oil, effects on the food chain, the impacts of transportation of oil by pipeline, and the effects of subsurface blowouts are adequate.

The court also rules that the Secretary erred in preparing no worst-case analysis of the impacts of the lease sale. Although there is almost a total lack of information on the effects of oil spills on endangered whales, a worst-case analysis of spills need not be prepared. An analysis of these impacts is not essential for a reasoned choice of alternatives at the lease sale stage since environmental information on whales may become available at the other lease stages. However, the Secretary must prepare a supplemental EIS or, if information is lacking, a worst-case analysis of the impacts of preliminary leasing and seismic exploration activities on whales.

The court rules that the Secretary complied in part with the ESA. First, the Secretary considered, as required by §7(a)(2) of the Act, information contained in the biological opinion before issuing the final notice of sale. Second, the Secretary took protective measures suggested in the biological opinion that will assure compliance with §7(a)(2). And third, since the lease sale does not constitute an "irreversible or irretrievable commitment of resources," the Secretary did not violate §7(a)(2) by issuing the final notice. However, the Secretary failed to adopt alternatives to protect whales against noise pollution, and thus has not insured, as required by §7(a)(2), that his actions will not jeopardize the continued existence of the whales.

Finally, the court concludes that although injunctions are not mandatory for a violation of the ESA, one is appropriate in this case. Public interest in full disclosure of dangers to whales outweighs the inconvenience of delaying the lease sale.

Counsel for Plaintiff
Eric Smith
Trustees for Alaska
833 Gambell St., Suite B, Anchorage AK 99501
(907) 276-4344

Sarah Chasis
Natural Resources Defense Council, Inc.
122 E.42d St., New York NY 10017
(212) 949-0049

Counsel for Defendants
Cynthia Christianson, Ass't U.S. Attorney
701 C St., Box 9, Anchorage AK 99513
(907) 271-5071

Michael W. Reed, James M. Spears
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5288

Counsel for Intervenors
Carl J.D. Bauman
Hughes, Thorsness, Gantz, Powell & Brundin
509 W. 3d Ave., Anchorage AK 99501
(907) 274-7522

E. Edward Bruce
Convington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000