Alaskan Oil Pipeline Now Up to Congress

The oil industry has been frustrated since 1970 in its efforts to build a hot oil trans-Alaskan pipeline across federal domain lands from Prudhoe Bay on Alaska's North Slope to the Pacific Port of Valdez 800 miles to the southwest. Environmentalists maintain that pipeline ruptures across earthquake prone Alaska could cause lasting ecological damage in the last large wilderness in North America, and that the tankers required to carry the oil from Valdez to the West Coast could cause serious marine pollution.

In the first court challenge, the Wilderness Society and other environmental organizations obtained a preliminary injunction against the issuance of a construction permit by the Department of the Interior until all environmental factors and alternatives had been explored in an adequate NEPA impact statement.¹ At the time the first injunction was issued, commentators tended to overlook a second ground for the court's terse order, the Mineral Leasing Act of 1920, which prohibits rights-of-way in excess of 25 feet on either side of the pipe itself. The pipeline consortium does not possess the technology which would enable it to carry out construction in a right-of-way of less than 100 feet. Along some sections, up to eight times the maximum allowable width would be required.In a lengthy recent opinion, the District of Columbia Circuit reversed a district court order dissolving the injunction on both the NEPA and Mineral Leasing Act grounds and confirmed that the statutory maximum [3 ELR 10043] was in fact a bar to pipeline construction.² The Supreme Court appeared to sanction this result by denying certiorari only a few weeks later.³ By deciding the Alaskan pipeline case on the narrow technical grounds of a 1920 statute limiting maximum permissible rights-of-way over federal lands, and hence avoiding the policy-laden NEPA arguments, the courts have left the method of exploitation of the North Slope oil fields squarely up to Congress. How, and whether, this Alaskan oil will be developed has in effect been "remanded" to Congress for decision.

This "legislative remand" is similar to the result in Citizens Committee for the Hudson Valley v. Volpe,⁴ where the court voided permits for landfill for a proposed expressway along the Hudson River because the project violated the Rivers and Harbors Act and the Transportation Act of 1966. The earth and rock fill for the expressway constituted a "dike" within the meaning of the Rivers and Harbors Act and was prohibited until the express consent of Congress had been obtained. In Hudson Volley the existing statute required that Congress itself consider certain classes of projects. In the pipeline case the proposed action supersedes the bounds of existing legislation, and a remand to Congress will require an amendment to the Mineral Leasing Act or a new act before construction can begin.

Also similar is the Presiding Examiner's initial decision on remand in the High Mountain Sheep controversy.⁵ There the FPC's Examiner recommended licensing the hydroelectric project at issue in the proceeding, but also recommended staying actual construction for four-and-a-half years until Congress had had an opportunity to place the river to be dammed, the Snake River, in the federal Wild and Scenic Rivers System.⁶ A decision by Congress to designate the Snake as a wild and scenic river would of course require congressional debate on the merits of the alternative possible uses of the River.

The Presiding Examiner's recommended decision is commendable for its approach to the dilemma of the administrative agency faced with making a critical resources decision worthy of congressionalattention. Although on the one hand the Examiner appears to recommend ducking a tough issue without explicitly acknowledging that Congress was being handed the problem, on the other he avoided the major criticism to be leveled at the Hudson River Expressway and Alaskan pipeline cases, which is that the courts there have degraded the judicial function by relying upon the merest technicalities without forthrightly stating that Congress should decide.

Direct judicial intervention to protect the legislative process, thereby achieving a kind of remand, occurred in an unreported case involving the Florissant Fossil Beds near Colorado Springs, Colorado. In Defenders of Florissant v. Park Land Co.⁷ the court granted interim relief which allowed Congress time to consider legislation which would prevent the destruction of the prehistoric Florissant Fossil Beds. The court was aided in its task because the federal legislation had been before Congress for some time and had already passed the Senate. Passage by the House appeared imminent.⁸

The most desirable approach to the legislative remand, in the absence of a judge-made equitable doctrine, is a prior legislative statement by Congress of the instances in which it wants to review substantive decisions. The Wilderness Act of 1964,⁹ for example, provides that Congress itself will make the final decision whether a particular tract of federal land shall be protected in the National Wilderness Preservation System. Federal agencies, primarily the Forest Service, the Park Service and the Bureau of Land Management, are required by the Wilderness Act to conduct studies of areas suitable for wilderness protection and to submit recommendations to Congress according to a statutorily-prescribed schedule. But Congress has reserved to itself the power to make final decisions.

The legislative remand in the pipeline controversy illustrates how judicial intervention by advocates of public uses can be used to protect public rights. Whatever the disadvantages to the judicial process of having courts decide momentous issues on what appear to be minor technicalities, the courts have in effect thrust upon the oil industry the affirmative obligation to return to the legislature and obtain specific authorization which will make clear a decisive public policy to subordinate traditional public use to private use. Without infringing the ultimate right of the legislature to make public policy decisions, the courts are ensuring a wider ventilation of decisions affecting public rights.

As a result of the remand, Congress has been encouraged to employ a national perspective and hopefully to concern itself with the broader policy issues involved. Where the limits of the administrative process are exceeded, as in the pipeline case, legislative remand places before Congress broad public policy issues, which is where they belong. Congress must now decide where the balance [3 ELR 10044] actually lies between the public and the oil industry.

Action has already begun on the floors of Congress. Environmentalists are seeking a comprehensive examination by Congress of the pipeline's environmental effects before it is allowed to go forward. Groups such as the Wilderness Society, the Environmental Defense Fund and Friends of the Earth are urging a thorough and objective re-evaluation of the pipeline route and its alternatives, an evaluation which they feel Interior failed to conduct in its impact statement. The groups want Congress to study all alternatives, although they feel that the trans-Canadian route is superior. Paralleling the gas line already planned through Canada, this alternative would bring the reserves to the oil-short Midwest by an all-land route. Marine oil pollution would be avoided, as would threats to the delicate Alaskan tundra. (Even if Congress does not consider the substantive issues, the environmentalists will still be able to take the controversy back to court. Interior expects that this would require at least an additional year of litigation.)

The Nixon Administration has made it clear, however, that it considers the trans-Alaskan route "vital to the national interest." The Administration feels that reliance on foreign oil sources must be reduced and that this can best be accomplished by the trans-Alaskan pipeline, which Secretary Morton estimates will take only three years to complete, compared with his estimate of seven or eight years for the Canadian route. Various bills which have already been introduced will probably be the focus of debate. The Administration's bill (S. 1041) and Senator Jackson's bill (S. 1081) have similar provisions giving Interior authority to grant rights-of-way for any width pipeline, transmission line, or canal. The two bills are expected to be the vehicles for the oil industry's effort, and are designed to draw upon the support of other pro-pipeline interests, such as utilities, which also will benefit from this exceptionally broad grant of power. The Mondale-Aspin bill (S. 993 and H.R. 4707) would exempt a trans-Canadian pipeline route from any right-of-way limit, but would first require a feasibility study of such an alternative. The sponsors of this proposal stress Interior's failure to terminate the pipeline where it will provide maximum benefit — in the Midwest, where oil supplies are short and prices high. Alaskan Senators Stevens and Gravel have sponsored S. 970, which would exempt the trans-Alaskan route from NEPA, the Mineral Leasing Act and other laws and would bar any further judicial review. This bill is thought to be a foil to make the Administration and Jackson bills look moderate by comparison.

1. 1 ELR 20042 (D.D.C. 1970).

2. 3 ELR 20085 (D.C. Cir. Feb. 9, 1973).

3. 41 U.S.L.W. 3527 (April 2, 1973).

4. 1 ELR 20006 (2d Cir. 1970). See Sax, Defending the Environment 175ff. (1971).

5. Presiding Examiner's Initial Decision on Remand, Etc., Before the Federal Power Comm'n, 1 ELR 30017 (Feb. 23, 1971). on remand from Udall v. Federal Power Comm'n, 387 U.S. 428, 1 ELR 20117 (1967).

6. Wild and Scenic Rivers Act of 1968, 16 U.S.C. § 1276 (d).

7. Civil Action No. C 1539 (10th Cir. July 10, 1969, renewed July 30, 1969). Congress acted to make the Florissant Fossil Beds a national monument on August 20, 1969, thereby giving them lasting protection.

8. The Denver Post, p. 1, Friday, July 11, 1969

9. 16 U.S.C. § 1131 et seq.