6 ELR 20479 | Environmental Law Reporter | copyright © 1976 | All rights reserved


Alaska v. Kleppe

No. 76-0368 (D.D.C. April 8, 1976)

The court refuses to enjoin the lease sale of outer continental shelf lands in the Gulf of Alaska, notwithstanding a referral by EPA under the Clean Air Act to the Council on Environmental Quality. The environmental impact statement (EIS) adequately weighs the relevant costs and benefits of the proposed sale. After issuance of the final impact statement, EPA formally determined, under § 309 of the Clean Air Act, that the sale was environmentally unsatisfactory, and the Council on Environmental Quality recommended a delay and a scaled-down lease offering. Notwithstanding these cautions, the Interior Secretary proceeded with the sale in light of his broader responsibility to balance energy and environmental concerns. Plaintiffs have failed to show that the EIS insufficiently weighed these concerns or provided a basis for the Secretary's decision. Plaintiffs have not shown the Secretary's determination that obtaining new energy supplies outweighs environmental interests to be arbitrary and capricious; nor have they demonstrated the absence of harm to the public interest if the injunction were granted.

Counsel for Plaintiff
Bruce J. Terris
1908 Sunderland Place, NW
Washington DC 20036
(202) 785-1992

Counsel for Defendant
Gary Bohlke
Department of Interior
Washington DC 20006
(202) 343-6848

[6 ELR 20480]

Waddy, J.:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Findings of Fact

1. This lawsuit was brought by the State of Alaska, the City of Yakutat, the United Fishermen of Alaska, and the Cordova District Fisheries Union.

2. The federal defendants are Thomas S. Kleppe, Secretary of the Interior, and Curtis Berklund, Director, Bureau of Land Management, Department of the Interior, who are sued in their official capacities. Intervening as defendants in this proceeding are the Western Oil & Gas Association — a trade association — and eleven petroleum companies who have indicated via affidavits that they have undertaken extensive preparations to bid on tracts to be offered in the proposed lease sale hereinafter described.

3. Plaintiffs seek preliminary injunction to enjoin the defendants from holding on April 13, 1976, an oil and gas lease sale (OCS Lease Sale No. 39) of about 1.1 million acres of outer continental shelf (OCS) lands in the Northern Gulf of Alaska. They do not seek to block the sale altogether — only to delay it.

4. Plaintiffs' primary allegation is that the sale will violate the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. In their complaint they charged the federal defendants with procedural and substantive violations of law but at the hearing on the motion for a preliminary injunction they conceded that there is no defect in the procedure by which the environmental impact statement (EIS) was prepared. In sum, their contentions are (1) that the EIS is insufficient to support the Secretary's decision to proceed with the proposed sale; (2) that the sale should be delayed pending further environmental research and studies; and (3) that the Secretary's decision to proceed with the sale without such further environmental research and studies is arbitrary and capricious.

5. Defendants contend that the EIS is sufficient to support the Secretary's decision; that the sale should not be delayed; that the Secretary adequately weighed the costs and benefits, and that his decision to proceed with the sale at this time is not arbitrary and capricious.

6. The Secretary of the Interior scheduled OCS Lease Sale No. 39 pursuant to his authority under 43 U.S.C. § 1337 to grant oil and gas leases on the submerged lands of the outer continental shelf "[i]n order to meet the urgent need for exploration and development of the oil and gas deposits" contained thereon.

7. In making his decision to proceed with Lease Sale No. 39 the Secretary is required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., to consider the environmental ramifications of the sale and therefore, pursuant to 42 U.S.C. § 4332, had an environmental impact statement compiled.

8. Defendants prepared a draft environmental statement (EIS) for proposed lease sale No. 39, which was filed with CEQ and made available to federal, state, and local agencies and interested members of the public on June 27, 1975, 40 Fed. Reg. 27064.

9. Public hearings were held on the draft EIS in Anchorage, Alaska, on August 12-13, 1975.

10. On November 18, 1975, defendants filed a final EIS for the proposed OCS lease sale in the Northern Gulf of Alaska with CEQ and made it available to federal, state, and local agencies and interested members of the public (40 Fed. Reg. 53413).

11. On December 18, 1975, the Administrator of the Environmental Protection Agency (EPA), pursuant to the EPA's responsibilities under § 309 of the Clean Air Act, 42 U.S.C. § 1857h-7, communicated to the Council on Environmental Quality (CEQ) a determination that the proposed Lease Sale No. 39 was unsatisfactory from the standpoint of environmental quality. EPA urged a delay in the offering of the leases pending: (1) preparation of adequate Operating Orders for the Gulf of Alaska, (2) further progress in State Coastal Zone planning, and (3) completion of environmental baseline and other special studies. Subsequently, the EPA stated that if it were imperative to proceed with the sale in 1976, the sale should be severely limited in acreage offered.

12. On December 22, 1975, the Chairman of CEQ requested a study in connection with the § 309 referral to consider the objections raised by EPA. A one-month interagency study followed. The study group included the Department of the Interior, CEQ, EPA, the National Oceanographic and Atmospheric Administration (NOAA) and the Federal Energy Administration (FEA).

13. On January 23, 1976, following completion of the one-month study, the Chairman of CEQ recommended that the Secretary give careful consideration to a delay of the lease sale or alternatively to consider a lease sale offering of approximately .15 million acres.

14. Although Sale No. 39 as originally proposed in the EIS included tracts totaling 1.8 million acres, the Secretary, stating that he had taken into consideration the views of CEQ and EPA, decided on February 17, 1976, to reduce the sale to 1.1 million acres. At the same time the Secretary adopted some of the mitigating measures recommended by EPA and CEQ, and rejected others.

15. Certain of the impacts of this action cannot be assessed at this time, but must await until after exploratory drilling has disclosed whether there is oil, how much oil, and where it is located. Furthermore, the many natural hazards in the Gulf will not change if there is a delay in the sale. The Secretary has some continuing authority to make adjustments to leasing operations after the leases are executed if later studies disclose environmental hazards.

16. The Secretary states that he considered the environmental concerns of CEQ, but that he decided to proceed with the lease sale in light of his broader responsibility to balance the nation's energy needs against potential environmental and socio-economic impacts. The Secretary knew that certain or even many impacts could only be generally assessed at this time and weighed that in the balance.

17. The Secretary found that the prospect in the Northern Gulf of Alaska for substantially increasing our domestic energy supply outweighs the potential environmental and socio-economic impacts. The Secretary stated that domestic production of oil in the United States peaked in 1972 at 11.2 million barrels per day (bpd), declined to about 9.2 million bpd in 1973, to 8.8 million bpd in 1974 and an estimated 8.5 million bpd in 1975. Meanwhile, demand in 1975 was about 16 million bpd. He also found that it is inevitable that domestic production will continue to decline without additional leasing and exploration on the OCS and that if OCS exploration areas are not made available, imports of oil could reach 70 percent of demand by 1990 and that such a volume could raise serious questions of national security and balance of trade.

18. The court has also considered the other legal claims of plaintiffs as appear in their complaint and memoranda of law.

II. Conclusions of Law

1. For this court to issue a preliminary injunction, plaintiffs must satisfy four requirements:

(1) A substantial likelihood of prevailing on the merits;

(2) Imminent and irreparable harm to themselves unless the injunction is granted;

(3) Absence of substantial harm to other interested parties; and

(4) Absence of harm to the public interest.

Virginia Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).

2. Plaintiffs have failed to show that the EIS was insufficient to enable the Secretary to make the decision and determination as to whether and when to proceed with OCS Lease Sale No. 39, and have failed to establish that the Secretary did not adequately weigh the costs and benefits relevant to said Lease Sale. Accordingly, plaintiffs have failed to show a substantial likelihood of prevailing on the merits.

3. Plaintiffs have not shown that the determination by the Secretary that the national interest in obtaining new supplies of energy [6 ELR 20481] outweighs the interests in the environment was arbitrary and capricious.

4. Plaintiffs have not shown the absence of substantial harm to others and the absence of harm to the public interest if a preliminary injunction were granted.

5. Plaintiffs have not established their entitlement to a preliminary injunction.


6 ELR 20479 | Environmental Law Reporter | copyright © 1976 | All rights reserved