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

Nos. 79-1585, -1586 (1st Cir. November 6, 1979)

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 which 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.

[9 ELR 20767]

Per curiam:

Plaintiffs-appellants seek an injunction pending their appeal from a denial of a preliminary injunction of sale of oil and gas leases under Outer Continental Shelf, North Atlantic Oil and Gas Leases Sale No. 42, scheduled for November 6, 1979.

The district court made no explicit finding of irreparable harm, being willing to assume that if any irreparable harm were to be forthcoming, it would be immediate, in view of the court's uncertainty whether future regulations setting forth Best Available and Safest Technology (BAST) requirements would be applicable to Sale 42 lease questions. The court, addressing the merits, considered challenges to the Environmental Impact Statement and a Final Supplement to Environmental Statement (FSES) issued by defendant Secretary of the Interior and in asserted violation of the Endangered Species Act (ESA), 16 U.S.C. § 1531. It concluded that it could not say that it was likely that plaintiffs would succeed on the merits.^*

In argument before us appellants have argued that the lease sale is the event that will trigger irreparable harm; that the Final Supplemental Environmental Statement fails to set forth an adequate analysis of management of the Sale 42 area or any portion thereof as a marine sanctuary; that there was no adequate analysis of the recent "blowout" in the Bay of Campeche; that, contrary to the requirement of the ESA, Sale 42 will constitute an "irreversible [and] irretrievable commitment of resources," 16 U.S.C. § 1536(d), which would foreclose the chance to avoid jeopardizing the endangered right and humpback whales; and that protective regulations, particularly those on BAST, Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1347(b), have not been drafted or implemented.

[9 ELR 20768]

We consider first the applicable standard of review. Appellants would have us lower the threshold of showing probability of success, citing Providence Journal Company v. Federal Bureau of Investigation, 595 F.2d 889 (1st Cir. 1979).

In Providence Journal Co. we ruled that "[w]here . . . the denial of a stay will utterly destroy the status quo, irreparably harming appellants, but granting of a stay will cause relatively slight harm to appellee, appellants need not show an absolute probability of success in order to be entitled to a stay." Id. at 890. In the present case, appellants are not entitled to Providence Journal's relatively lenient standard of review of the merits, for appellants have not shown the likelihood of the degree of irreparable injury which that case contemplates. Here there will undoubtedly be some legal and environmental consequences resulting from the lease sale. However, as our discussion of the notice of sale provisions, infra, reveals, the reserved power and obligations of the Secretary to deal with environmental concerns are substantial. We are satisfied, therefore, that today's single step forward beyond the lease sales does not constitute the kind of massive, irretrievable alteration of the status quo contemplated by Providence Journal. It is noteworthy as well that no "relatively slight harm to appellee" is guaranteed if we grant the injunction. Appellees assert a countervailing national policy favoring expeditious development of energy resources, a policy which, in this case, has been delayed for nearly two years. The granting of an injunction pending appeal will mean further delay, an equity cutting in favor of appellees which we cannot ignore.

We, therefore, analyze appellants' attack on the district court's ruling under the customary standard. Appellants must establish that the district court abused its discretion or committed a clear error of law in ruling that appellees stood a better chance of success on the merits. E.g., National Tank Truck Carriers, Inc. v. Burke, No. 79-1057, slip op. at 7 (1st Cir. Oct. 12, 1979); Roselli v. Affleck, 508 F.2d 1277, 1280 (1st Cir. 1974), cert. denied, 421 U.S. 967 (1975).

Appellants' main argument in support of their contention that the district court abused its discretion or clearly committed an error of law in judging the likelihood of success on the merits is that the lease sale will violate provisions of the ESA. Specifically, appellants contend that there is disparity between the standards set forth in the ESA and §§ 1340 and 1334 of the OCSLA for determining what steps are necessary to protect certain endangered species. It is asserted that the sale of leases will force the Secretary of Interior to apply the arguably less restrictive standards of the OCSLA, and thus irretrievably reduce the protection provided to the endangered species.

Whether or not this argument concerning the asserted disparity between the statutes is correct, it ignores the fact that the notice of sale provisions and stipulations provide the Secretary with additional authority to regulate post-sale plans and conduct. The district court, in finding that no irreversible commitment had been made, sufficient to constitute a violation of 16 U.S.C. § 1536(d), stressed several of the lease stipulations. We have read the notice of sale which, of course, conditions any rights acquired by every successful lessee. The provisions in this notice seem to us to support the conclusion of the district court. Stipulation 2 allows the government's Supervisor to require environmental surveys if he identifies a need for additional protection; as a result of such surveys, sites of operations may be relocated and operations may be modified so that "significant biological populations" may not be adversely affected; no action having any effect upon biological populations or habitats may be taken until the Supervisor gives written directions. Stipulation 4 allows the Supervisor to require disposition of drill cuttings and muds by transporting them to disposal sites.

Paragraph 15 notifies all bidders that new OCSLA amendments apply to all new leases. Bidders are told of an interagency Biological Task Force which will consult on both surveys and appropriate courses of action. Notice if further given that the Supervisor "will require the use of the best available and safest technologies which the Secretary determines to be economically feasible." Bidders are also advised that a "developmental phase Environmental Impact Statement" is to be prepared for the North Atlantic lease sale area. Finally, the Notice ends with paragraph 16:

Operations on all leases resulting from this sale will be conducted in accordance with the provisions of all Outer Continental Shelf Atlantic Orders, as of their effective date, and any other applicable OCS Orders as it becomes effective.

In sum, we can only conclude that the protective powers and obligations of the Secretary reserved under the notice of Sale 42 are wide-ranging, limited only by discretion and good faith.

Appellants' second main argument on the merits is that the sale should be enjoined until more specific BAST regulations are promulgated to insure that the successful bidders will be bound by them. However, both the OCSLA and the Notice of Sale clearly provide for application of BAST regulations to preexisting leases. Moreover, the definition of what constitutes the best available technology is itself an ongoing process, tailored to ad just to changing technology. Appellants' position ignores this fact and, if adopted, would eliminate the flexibility in developing BAST regulations which the OCSLA envisions.

Appellants also attack the adequacy of the FSES analysis of a marine sanctuary designation for Georges Bank. They point out, not without justification, that the document is a pedestrian piece which, while reciting some of the obvious considerations, does not discuss marine sanctuary management in a searching manner. The purpose of an EIS is, however, to insure a "fully informed and well-considered decision." Vermont Yankee v. NRDC, 435 U.S. 519, 558 [8 ELR 20288] (1978), and there is evidence that the Secretary of the Interior was exposed at some length to the pros and cons of the matter, although he remained scarcely receptive.

The National Oceanic and Atmospheric Administration (NOAA) published an issue paper which Interior reviewed and criticized. After holding hearings on the subject of marine sanctuary designation in Portland, Gloucester, and New Bedford, and discussing the matter with Interior, NOAA announced withdrawal of Georges Bank as an active candidate for marine sanctuary designation in return for Interior's agreement to withdraw 12 tracts and take certain remedial steps. Especially in light of the fact that NOAA has withdrawn Georges Bank as an active candidate for marine sanctuary designation, we are not persuaded that the Secretary of the Interior's formal analysis was so inadequate, taken in this context, as to violate NEPA. At least this is our initial impression — an impression the district court reached after its more extended exposure to all the facts. The court's conclusion does not appear so questionable at this juncture as to justify our granting present injunctive relief.

One final argument, recognized by the district court, criticized the failure of Interior to conduct an adequate analysis of the Bay of Campeche "blowout." The need to be alert to all such phenomena is obvious. It seems equally obvious that the process of gathering and assessing information is a continuing one. We do not think the court abused its discretion in refusing to enjoin Sale 42 for this alleged deficiency.

We therefore conclude that we cannot, on this preliminary and foreshortened review, say that the district court committed such error of law or abuse of discretion in holding that plaintiffs had not demonstrated a likelihood of prevailing on the merits as to warrant injunctive relief by this court pending appeal.

The motions for stay pending appeal are denied.

Order of Court

After hearing and in accordance with the opinion filed this day,

It is ordered that the motions for injunctions pending appeal are hereby denied; but

The opening of the bids is hereby stayed until 2:00 P.M. on Tuesday, November 6, 1979.

* At one point court, after citing the ordinary-and-correct standard of review ("arbitrary, capricious or illegal"), added a reference from our opinion in Commonwealth of Massachusetts v. Andrus, 594 F.2d 872, 888 [9 ELR 20162] (1st Cir. 1979), to such outrageous conduct as might justify extraordinary judicial oversight. That this was a non-dispositive aberration is made clear, we think, by the penultimate sentence in the court's memorandum, finding it unlikely that the court would find the Secretary's decision "arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law."