Conservation Law Foundation of New England, Inc. v. Watt

Nos. 83-0506-MA, -0530-MA (D. Mass. March 28, 1983)

ELR Digest

The court preliminarily enjoins the Secretary of the Interior from conducting Lease Sale 52 in the Georges Bank region of the outer continental shelf. In 1982, the Department of the Interior issued an environmental impact statement (EIS) for the proposed sale. In 1983, it updated the EIS with an environmental assessment and issued a decision that the sale was consistent with Massachusetts' coastal zone management plan. The plaintiffs claim that these actions violate the National Environmental Policy Act (NEPA), the Endangered Species Act, the Coastal Zone Management Act (CZMA), and the Outer Continental Shelf Lands Act (OCSLA). The court rules that plaintiffs met the four standards for a preliminary injunction.

First, plaintiffs are likely to prevail on their claims. The EIS is inadequate because its informal cost-benefit analysis fails to reveal that the estimated recovery of oil and gas from the sale has decreased dramatically. As a result, the EIS fails to describe reasonably the alternatives to the proposed sale. The court also rules that a large change in benefits is a "substantial change" in the proposed action requiring a supplemental EIS. In addition, though an increase in benefits may not require a supplemental EIS since it reinforces the decision to go ahead with the proposed action, a substantial decrease must be analyzed to allow a reasoned decision since it weakens the support for the action.

Defendants also violated the procedural requirements of the Endangered Species Act by failing to consider the best available scientific information. Both the Biological Opinion and the EIS were inconsistent with and failed to include data from three research programs on endangered species in the Georges Bank area. In addition, defendants violated the substantive requirement that agency action not "jeopardize" endangered species. By failing to consider all available data, they violated their duty to use all methods at their disposal to avoid jeopardy. Information relied on in the biological opinion and the EIS to demonstrate that the sale would not jeopardize endangered species either provides insufficient support for that conclusion or suggests that jeopardy is possible.

The court rules that the sale is within the purview of the consistency provisions of the CZMA because oil and gas exploration "directly affects" the coastal zone. Both the Act and its legislative history indicate that the Act and the "directly affects" language are to be construed broadly. The court then rules that, while the Secretary met his procedural consistency obligations, he failed to substantiate his finding that the sale is consistent with the Massachusetts coastal zone management plan to the maximum extent practicable as required by the CZMA.

The Secretary also violated the OCSLA's requirement that the Secretary must accept recommendations of the governor of a state to be affected by a sale if the recommendations provide a reasonable balance between the national interest and the well-being of the citizens of the state. Since the Secretary based his decision to lease certain tracts only on the presence or absence of oil-bearing geologic structures, the court rules that he failed to consider the factors described in the OCSLA. Thus, his analysis of the governor's recommendations was arbitrary and capricious.

As to the second part of the preliminary injunction test, the court rules that plaintiffs will be irreparably harmed if the lease sale proceeds. Future access to administrative and judicial proceedings would not remedy violations of statutes and regulations that impose duties with respect to the decision to conduct the sale, especially in light of the significance of the Georges Bank fishery resource. Third, plaintiffs have demonstrated that the injury they would suffer if the injunction is not granted outweighs the harm of further delay to defendants. Finally, the court rules that the public interest will not be harmed by the injunction. The public interest in preservation of the proven, nationally significant Georges Bank fishery outweighs the public interest in the limited expansion of oil resources.

The full text of this opinion is available from ELR (55 pp. $7.50, ELR Order No. C-1295).

Counsel for Plaintiffs
Douglas I. Foy
Conservation Law Foundation of New England, Inc.
3 Joy St., Boston MA 02108
(617) 742-2540

Counsel for Defendants
Margaret N. Strand
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

Counsel for Defendants-Intervenors
George Marshall Moriarty
Ropes & Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

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

Counsel for Amici Curiae
Robert R. Ruddock
New England Legal Foundation
55 Union St., Boston MA 02108
(617) 367-0174

Mazzone, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]