*3 TAMM, Before LEVENTHAL and MacKINNON, Judges. Circuit LEVENTHAL, Judge: Circuit appeal question This raises a as to the scope requirement Nation Policy (NEPA) al Environmental Act that environmental statements contain a discussion of alternatives. Be fore us is the Environmental 28, 1971, by Statement filed October Department respect of Interior with proposal, Con under 8 Outer Act,2 tinental Lands Shelf for the oil and sale, lease of leases to some general submerged lands, primarily tracts óf proposal off-eastern Louisiana. finally structured so as to embrace al- See, g., Coordinating 1. e. Calvert Cliffs’ (1970). 43 U.S.C. Act, § 1337 P.L. 83-212, appears Committee, Energy at Inc. v. Atomic Com U.S.C. § 1331 et seq. mission, 1109, (D.C.Cir. 1971) ; 449 F.2d Responsibility, Committee for Nuclear Seaborg, 71-1732, Inc. v. No. October Statement,” (hereafter Statement), 380,000 aeres, about most 10% (1971). Fed.Reg. 20707 acreage On November presently Federal under offshore Department an the leases the Interior Opening of bids lease. sale lease nounced that was scheduled December 21,19,71, 3 brought place, tracts would groups take that 80 would three conservation leasing, enjoin pro- bids offered for and that sealed on November received the Dis- until December posed sale. On December granted hearing held trict Court Im- Environmental Statement —Adverse injunction enjoining the preliminary pact Disclosed compliance pending of these sale leases ques presents the Statement While appealed, NEPA. Government delineated, subsequently document—67 tions, sum- motion and filed a in this court length, p ages exclusive hearing. mary reversal and immediate *4 challenged appendices on —is hearing, granted and We immediate problems ground of failure disclose the presentations on December heard proposed of of environmental permitting the bids and issued order contrary, problems sale. On they on remain to be received condition range and forth in are set considerable pending unopened order of further Indeed, complaint voiced detail. summary As to the for court. motion Society’s in testi the Audubon witness reversal, we conclude that must gives mony draft Statement was denied. green light its con for the sale while cry opposite seem to out for the tents I. BACKGROUND purporting to sum conclusion. Without identify marize, we of some State Chronology Impact and A. Statements highlights: ment’s Secretary 15,1971, June of Interior On o Adjacent t area lease Rogers Morton, a in liti- defendant greatest is the estuarine coastal marsh gation, general announced oil and that a complex States, 7.9 United some gas lease of sale Outer tracts on the nursery acres, providing food, million (OCS) Continental Shelf off eastern spawning ground and vital habitat place Louisiana would in take December^ fish, wildlife, shellfish and as well responsive This was to the direc- JJ17JL-. migratory for food and shelter water tive in President Nixon’s June wading fowl, fur-bearing birds ani and Message Supply Energy on Clean complex provides mals. This nutri rich July 31, 1971, Air.4 On Mr. Burton W. systems ent which make the Gulf Silcock, Director of Land the Bureau of Mexico, blessed also with warm waters Management, defendant, promul- also a depths, productive and shallow gated the most and circulated comment fishing region yield country. It Impact “Draft Environmental State- ed million of fish shellfish $71 pursuant 102(2) (C) ment” to § Mississippi Louisiana commercial 10(b) NEPA and Guidelines fishermen some million Quality.5 the Council on Environmental man-days sport fishing. Plaintiffs submitted comments on this Hearings draft statement. regions were held coastal of Louisiana September, Orleans, at Mississippi New contain acres millions testimony which oral presented. recreation, On suitable for outdoor 28, 1971, October promulgat- Mr. Silcock number of state recreation ed “Final areas, Environmental and extensive shorelines beach Council, Inc., 3. Natural (1971) Resources Defense 5. See 36 F.R. 7724 for the Coun- Earth, Inc., Club, Friends of the preparation Sierra cil’s Guidelines Proposed Inc. on Statements Federal Actions Affecting the Environment. Message appears 4. The text of this at 112 Cong.Rec.S. (June 4, 1971). 8313-17 evidence; Louisiana, miles that oil mix with visible (397 and 100 miles for water, sea, especially in millions a turbulent Mississippi). These serve disperse sea; into downward of the seven- the residents —not (23 all; region mil- used to remove surface oil emulsifiers may million state coast), consequences, have toxic etc. miles of the lion within 250 in- attracted to the beaches visitors creasing past The Statement asserted that while (estimated mil- at 3.5 numbers major spills in the in mini- Gulf resulted ultimately years lions five within damage, mal this was due to a fortunate millions). combination of offshore sur- winds and face probable impact currents. The rates of issuance Statement As to proba- blocks sale on an estimated leases on the environment bility impact basis, prin- anticipate debris calculated did continuation of cipally high proximity ’drilling operations,- from' view dumping value/criti- cally regulations vulnerable area. prohibiting cent ac- debris the OCS. C. Statement —Discussion Alterna- knowledged impact from construc- some tives pipelines platforms, tion Statement, IV of Section contain- D) concluding (III structures. A section ing Alternatives, its discussion of is at- on “Unavoidable Adverse Environmen- Appendix. tached as an A Subsection particularly tal Effects” noted the de- possible deals with de- modifications to *5 species struction of marsh and of marine higher lete tracts with dredging plants and from incident that, risks. Government counsel advises installation, pipeline of and the effect risk, in order the to lessen environmental increasing pipeline g., in ratio canals e. acreage proposed covered sale was increasing of water wetlands and salt originally reduced from that contem- water intrusion. plated, eight with the withdrawal of of pollution problem Oil most ex- is the nearly the tracts most located to the Del- tensively discussed in and the Statement Migratory Refuge. ta Waterfowl exposition of en- unavoidable adverse Sale”), (“Withdraw Subsection IV B ac- vironmental effects. The Statement containing principally the material knowledges long term that both short and case, volved will be discussed sub- ex- effects on the environment can be sequently opinion. in this including pected spillage, from in that major (like spills Ruling term that in the Santa D. District Court 'of spills 1969); minor Barbara Channel recognized The District both Court operations and unidentified sourc- profound there is a national that es; discharge of water con- waste crisis and that Continental Outer oil. taminated with prolific Shelf has been a source oil gas. Shelf, These adverse effects relate both to But it further noted that the damage region words, to the coastal in President Nixon’s “has been —beach- es, sites; spills water areas and historic in re- the source of troublesome pollution “may years.” that seri- the forecast ously found that cent The Court damage biological provide com- the marine failed to the “detail- damage munity” required by direct of en- ed statement” NEPA —both larger organisms, easily visible more vironmental and alternatives. sooner, stages and to smaller life which The Court stated: damage step would lead one removed finds the defendants Court later the food chain. by failing comply failed to with NEPA all, The Statement noted the diverse con- to discuss some alternatives at existing meeting energy clusions comments in demands ports minimizing spills, legislation on oil some dam- or administrative age done, stressing spil- freeing others that oil current onshore and state-con- lage beyond period production has effects from state trolled offshore assump- depend or well come prorationing demand
market
legal
underlying
premise. When
tion of
Commis-
change
Power
Federal
identified,
appellate court
policies.
this can be
gas pricing
natural
sion’s
by pro-
justice
only superfi-
the interest
furthers
defendants
addition
ruling
viding
the ex-
merits to
on the
listed
cially
discussed
though
ripe,
tech-
Statement,
matter is
tent that the
in their Final
stage
nically
at
the case is
en-
they
in detail
discuss
failed to
injunction.8
application
preliminary
alterna-
impacts of the
vironmental
disagreement
on a
And a reversal based
they
the statement.
listed
tives
legal
underlying
premise of the
give
im- with the
not wish
does
Court
on, or
con-
to be
court is not based
trial
alterna-
it believes the
pression that
arbitrary
as,
determination
strued
than
are better
tives
judicial
discretion.9
abuse
sale,
it believes
but
lease
explored
dis-
must be
Similarly
function
this court’s
comport
thoroughly
in order
cussed
disposition on motion
extends
requirements of
intent and
summary
is
the critical
reversal —when
4332(2)
NEPA.
(C)
Section
moment,
public
sue in cases of
possibility
irrepara-»
appraisal of
Appellate
Scope
Consideration
.E.
interest, depend
public
ble harm to the
discussion
pause
our
before
We
legal premise.
applicable
on the
meaning
note
to take
of NEPA
summary
conception
motion for
the Govern
plaintiffs’ contention
case
reversal does
because
denied
motion should be
ment’s
issues,
free of
troublesome
preliminary
granting
of a
or denial
approach that
there
rather
on the
based
ju
injunction
exercise
calls
public
expedition
ex
is a
interest
discretion,
dis
is not to be
dicial
cases,
appeal
traordinary
whether
finding of
appeal except on a
turbed
others,
brought by
or
the Government
judicial
improvident
exercise
abuse
decision,
ripe for
and that
the case is
*6
moving
party
And a
discretion.6
significantly
g.,
unlikely
e.
is
to turn
summary reversal—
appellate
for a
court
legal
findings or further
research
fact
e.,
papers,
usual
without
on motion
i.
es,
legislative history.
inas
“heavy
argument
a
full
and
briefs
—has
Although
presented on
the case is not
demonstrating
his
both that
burden
customary printed
the court has
briefs
remedy
proper
merits
the
legal
the
the benefit of
researches
clearly
as to
relief
his claim so
warrant
positions
parties.
it
While
7
justify expeditious action.”
argument
typical
mo-
on such
for oral
initially
min-
at 15
tions to
scheduled
be
greater
However,
amplitude of
typical
per side,
for time
it is also
utes
judicial
ap
review is called for when the
the
in accordance with
be extended
peal presents
the
a substantial
issue that
the
court and
needs
counsel
judge
action of the trial
based on a
complexity of the issues.
premise
pertinent
as to the
rule of law
public mo-
present
one of
The
case is
'that was erroneous. Not
avow
pro-
ment,
expedition
probability
should be
ed forecast as to
where
success
merits,
application
analysis
possible.
on the
if
but also
of in
vided
While
jury
injunction,
public
preliminary
parties,
to either
or both
was for
interest,
balancing
interests,
properly
deter-
and the
made its
District Court
Meccano,
Wanamaker,
Youngstown
6. See
v.
Ltd. v.
Tube Co.
253
&
See
Sheet
136,
579, 584-585,
463,
Sawyer,
U.S.
S.Ct.
40
72
S.Ct.
II. DISCUSSION OF The MENT pertinent ALTERNATIVES OF NEPA AS TO instruction of REQUIRE- Congress which would proposed mented. [******] (D) study, develop, and describe action should it be be involved imple- NEPA, appears in 102 of U.S.C. § appropriate § to recom- 4332: any pro- courses mended of action in posal which involves unresolved con- Congress and di- authorizes concerning flicts alternative uses that, possi- to the fullest rects extent available resources.
ble: ernment (2) all [******] agencies shall— of the Federal Gov- ways terse Paragraph (iii) proposed notation accomplishing action and for: “The alternative 102(2) (C) objectives results of is a lation tion significantly affecting the human on— statement [******] (C) and other include report environment, major proposals every responsible Federal actions recommenda- a detailed quality of official legis- ion.”1 the environmental source making information accomplishing Executive, of relevant Congress contemplated that Statement would constitute decisions, connection with the Congress proposed material as well act enlightenment available enhance (i) impact of the environmental public.11 —and proposed action, —the provides (a) statement eval basis for (ii) any adverse environmental uation benefits of the effects cannot be avoided project light of its environmental proposal implement- should the risks, comparison (b) bal the net
ed, proposed project for the the ance with presented by alter (iii) environmental risks alternatives to the action, courses of action.12 native making process. input the language Section-by- into decision 10. This is the of the S.Rep.No.91-296, Cong., Analysis 1st See presented by 91st Seetion Senator Sess., Jackson, charge 21: legislation in and develop agency . the . . shall chairman of the Senate Interior Com- provide descriptions of mittee, formation explaining recommending adequate approval the agreed alternatives detail of the bill as confer- subsequent mak- CongJtec. reviewers and decision (Dec. 20, ence. ers, 1969). both within the branch executive Congress, the the al- consider along principle Responsi- 11. See Committee for ternatives Nuclear bility, Seaborg, 71-1732, recommendations. Inc. v. No. Oc- 5, slip impact p. 7; proper 1971, opin., That tober No. statement is the 71- 1854, provide recog- 28, slip opin., pp. instrument October this focus is guidelines by promulgated nized Quality: Council Environmental legislative exploration history rigorous objective the im- indicates A portance of evaluation alternative actions that this source of environmental conse- Need discuss environmental vironmental of that alternative. effects quences pertinent While the consideration of al- weighing requires of numer- ternatives implication reject one We matters, foreign economics, ous such as which submissions Government’s security, relations, national the fact re- began stating Act re that while the that, ingredient possi- mains as quires of alterna a detailed statement impact, ble adverse environmental it is tives, a discussion “does not the essence and thrust NEPA that consequences of the the environmental pertinent gather serve suggested con A sound alternative.” place in one a discussion of the relative NEPA, takes into ac struction of impact environmental of alternatives. legislative history and count both The Government also contends that contemporaneous executive construction required “alternatives” dis- (see 12), presen requires notes 10 cussion under NEPA are those which inci tation the environmental risks adopted put can be into effect dent to reasonable alternative courses issuing agency official or the state- agency may limit its dis action. The ment. The Government to distin- seeks impact cussion of to a guish kind of statement re- case, statement, brief when is the that quired major for a Federal action that the alternative course no involves legislative propos- that with a environment, effect on the or that objective al.15 And it stresses that effect, briefly described, simply not Secretary’s carry towas significant. implicit A rule of reason is out the directive in the President’s clean aspect this the law as it is energy message of June agency provide requirement that concerning opposing agree statement those While we with so much of the responsible.14 presentation views that are Government’s as rests assumption the alternatives re- Alternative as quired for discussion are those reason- import quotas agree ably available, we do not Secretary’s think the We State requires a limitation to measures stating ment erred the alterna agency adopt. ap- or official can import quotas tive of elimination of oil proach particularly inapposite would be entirely cognizance. outside its As lease sale of offshore oil lands suming, it, puts as the Statement by Secretary hastened Morton complex “involves fac this alternative sponse to the directive which President including concepts, tors national se message Nixon set forth in his to Con- curity, beyond scope which are gress Supply Energy on the statement,” it does not follow that Air, part program Clean of an overall present should not en- development provide an accommo- might avoid some or all of the adverse Memorandum, 15. See Defendants’ Dec. analysis effects is essential. Sufficient at 11: of such their costs and proposing legislation respon- When *8 impact on the environment should ac- may properly expected sible official company proposed through the action consider alternative methods agency process the review in order not achieving goal the same which prematurely options to foreclose legislation, impact because his state- might have less detrimental the.Congress effects. ment is in to assist deter- (1971). 36 F.R. mining how it should act and the Con- gress any legislation is able to enact 13. Defendants’ Memorandum of Points and scope within the of the Constitution. Authorities, 8, 1971, p. Dec. 7. responsible the When official is consid- Responsibility, 14. ering major Committee for Nuclear Federal action which he Seaborg, 5, 1971, slip Inc. himself, properly v. October is to take he is con- opin., p. only cerned with those adopt. which he himself has discretion to June, 1971, in energy requirements of our President when the ab- of the dation exercising recognition authority growing from country stained his with the change import quota necessity protect invoke a admin- the environ- of the Message project istration and in- scope is far that of this issued the ment. The proposed the directive to offshore leas- of other cluded than that as broader ing. impact course would have been discussed Federal actions single objective statements, canal or furtherance as a NEPA securing impact proposed Executive’s solu- statements case dam.16 The “major significantly or Federal action af- problem, a set tion to a national fecting quality problems, may call for each of the human envi- inter-related agencies ronment,” though suggest departments it we do not of several action; improper impact specific was to defer the this cannot mean state- take only programmatic ment from time of di- that discussion of ensuing implementing required time of environmental rective specific impact impact the discus- actions. The would be statement statements partic- assigned by department of the sion each function could have been to the designated by group ular actions it could take as an alterna- the President to co- analyze underlying energy proposal im- ordinate overall tive questions pact statement. for the executive branch —the Energy the Domestic Subcommittee of an When assignment Council.18 the absence of tegral part plan to deal of a coordinated impact of the function to an statement range problem,17 al- with a broad agency responsibility, with broader ternatives must be evaluated statutory require- implementation of the Department broadened. While ment of the review man- environmental authority Interior does not have the De- dated NEPA fell the Interior import quotas, to eliminate or reduce partment step took when it the first purview of such action is both within the carrying energy pro- the broader out Congress President, whom gram. goes. impact impact statement exposition statement is not for the In defense of the Statement thinking agency, also suggest written Government counsel guidance for the deci- these ultimate nothing else was because sion-makers, provide them and must apparently there assumed with the effects of both environmental im no environmental would be adverse alternatives, proposal and the pact imports. This was from increased along their consideration the vari- with know, and, a con for all we stated — public ous other elements of inter- trary implication may been intend have est. (at p. 37) when it ed the Statement spillage problem An evaluation of referred pol drilling approaching the of all as not even the alternatives in the area effects discharges might of tank lution from routine crisis been have provided by and other As to this conten an ers vessels. statement issued counsel, agency statement of tion —like another officer or broad re- sponsibility. unsupported record, offshore This could have been done including leasing See, g., Fund, lands, of off- e. Environmental Defense lands; Corps Engineers, F.Supp. further shore oil discussed Inc. v. aspects problem. (E.D.Ark.1971) (dam), overall Environment- six Engineers, Corps al Defense Fund v. message Congress, the Presi- In his (D.D.C.1971) (canal). E.R.C. 1173 Energy *9 designated the Subcommittee dent body power message to make over- 17. with the The President’s set out eleven as development policy in the field until his of research toward all areas goal Department energy; comes of Natural Resources of clean three areas of being. Cong.Rec. making 112 8317. available resources of into 836
drilling less adverse environmental What NEPA the deci- has infused into drilling sion-making impact process than onshore because a 1969 was direc- produced impact sulfur content— as has lower tive to environmental state- simply implement our comment this: The ments that sub- was meant to Congressional ject impact objectives im- of environmental is too of Government portant relegate implication coordination, comprehensive approach either justification by subsequent management, coun- or to and a de- problems pollu- set forth the sel.19 The Statement must termination to face by Congress contemplated manageable they material tion “while are still of enlightenment proportions suitable for the form while alternative solu- per- the others concerned. tions are still available” rather than decision-making sist in environmental continuing review The need for “policy wherein established de- impact of of environmental fault and inaction” and environmental put under NEPA cannot to one side decisions “continue to be made in small ground past on the determinations steady perpetuate increments” that by Congress are or the President. We being past the mistakes of the without that the 1953 Continental aware Outer “they pro- dealt with until reach crisis finding of Shelf Lands Act contains Cong., portions.” S.Rep.No.91-296, 91st urgent development need for OCS (1969) p. 1st Sess. Similarly leasing. and authorization of We reiterate dis import quota we program that the oil are aware cussion of environmental effects of al by the President instituted was ternatives need not exhaustive. following mandatory 1959, on a basis in What is is information suffi voluntary programs, earlier and that permit cient to a reasoned choice of al authority, President’s based national so far as environmental as ternatives considerations, security is contained pects are to alternatives concerned. As legislation derived from a 1955 enact authority scope not within subsequent amendments, ment and 19 responsible official, reference But these U.S.C. enactments § agen course be made to studies of other pro dispositive. are not to both As including impact state grams Congress contemplated continu cies— ments. Nor is it appropriate, as Gov leasing spe ing review. OCS disregard argues, ernment counsel cifically subject au made to executive merely they because do thority to lands from withdraw unleased complete prob offer a solution time, disposition from time to 43 U.S.C. lem. If an alternative would result 1341(a). Import controls were supplying only part energy that continuing dependent outset yield, the lease sale its use then findings Presidential as to the nature might possibly scope reduce the and duration of controls deemed neces program lease sale thus alleviate sary. Im A Task Force on Cabinet Oil significant portion of the environmental port March, 1969, Control was created drilling. harm attendant on offshore mandatory im to conduct a review port report, in Febru restriction Other “alternatives” ary, 1970, recommended a substantial change foregoing method and direction that we establishes import grant controls. cannot motion Government’s Cf., Burlington Lines, U.S.App.D.C. 31, 41, 185, Truck Inc. v. 436 F.2d 195 States, 168-169, (1970). United 371 U.S. 83 fact While these eases relate to (1962) ; agency findings, aspect 9 L.Ed.2d Braniff S.Ct. need for —-the Airways, CAB, U.S.App.D.C. statement, opposed v. Inc. to counsel’s ration- . (1967) ; requirement applies F.2d alization —is a CAB, Air National Carrier Assn. v. statements. to environmental *10 summary energy oth- re- reversal. resources
for We discuss anticipation aspects of search—and to meet er the case time—available Secretary supple- may Nation’s needs not choose to are infinite. that the ’ modify per- ment or the Statement — Still different pre- are considerations even, assuming approval haps by the by sented the “alternatives” of increas- Court, open effort District in an ing energy development, nuclear listed offering. without a new sealed bids Statement, possibilities, and the by identified the District Court as a think there is merit to the Govern- We legislation omission, critical position insofar as it contends ment’s freeing requi- or administrative action cur- was that no additional discussion rent offshore and state-controlled off- as the de- site such “alternatives” production shore from de- shale, state market velopment desulfurization of oil changing gasifica- prorationing, mand or liquefaction coal coal, geothermal tion, Federal Power resourc- Commission’s natural tar sands and pricing policies. es. (see The mere fact that an Appen- alterna sets forth legislative requires implementation tive dix) possibilities that while these hold automatically future, does not great establish it as im- promise for beyond likely energy domain of what is supply pact not on the will discussion, particularly de- since NEPA felt until after and will be pendent provide safeguards was intended to for con basis environmental by choice technilogical sideration and the decision- developments. Since legislative makers in the well as the as that the Statement also sets forth the agency’s executive for an branch. But the need proposal put forward legislation certainly overhaul of basic imposed requirement, meet a near-term requirements bears of the Act. by projected shortfall Congress suppose do not mid-1970’s, We intended an possibility of the envi- agency long-term to devote itself to extended dis impact of solutions ronmental cussion requires this environmental no discussion at additional reality alternatives say juncture” so remote as to juncture. “at this We depend on, say, repeal continuing of the anti requires problem for the things, trust laws. and these view, in the nature and their requirement analysis, In the last germane consequences may more subject a con- as to alternatives is leases, in subsequent proposals for OCS say reasonableness, and we struction of light changes technology or ap- this with full awareness energy requirements variables strengths proach necessarily has both supply. weaknesses. Where environmen- readily aspects are tal of alternatives Furthermore, requirement agency, it is reason- identifiable in NEPA of as to reasonable discussion ready them —for reference able state “crystal does not consequenc- those concerned with inquiry. dif Mere administrative its alternatives. es of the decision and ficulty interpose flexibil does already noted, agency make As ity requirements of NEPA into the already made to studies references duty compliance “to undercut (including impact agencies state- if possible.”20 But extent the fullest jour- ments) responsible appearing rubber, requirement neither is not nals. con must be is it iron. statute concluding that reason for light There is if it is of reason strued in the require de- not meant is, fairly speaking, not NEPA was what demand obvious, the environmental given
meaningfully tailed discussion possible, 102, quoted above. NEPA
20. See
838 put Prepared by in era effects “alternatives” forward Louisiana De- comments when these effects cannot be artment of Interior readily the alternatives ascertained and Proposed Ac- IV. Alternatives speculative are deemed remote changes tion possibilities, of basic view policies required in of other statutes A. Hold the Sale Modified agencies making available, at them if — Form all, only protracted after debate proposed held sale could be litigation meaningfully compatible offering only those tracts determined to with the time-frame the needs potential to have a lower for environ- underlying proposal which the is ad- mental to Those believed risks. tracts dressed. high have environmental risks could be In this A final word. deleted from the sale and considered areas, other agencies, rightly the functions courts offering date, improved at later should understood, are technology or other war- circumstances collaboration, to opposition but rant. prescribed ward achievement of by Congress.21 end could alternative also allow long as the officials So proposed special stipulations any agencies have taken “hard requirements tract where additional consequences at environmental look”22 might necessary protect be the envi- to by Congress,
mandated
the court does
ronment
or eliminate
minimize
impose
ex
not seek
unreasonable
possible
potential
with or
dam-
conflicts
interject
or to
tremes
itself within the
age to other resource values or commer-
area of
discretion of the executive as
cial
of Mexico and
uses
the Gulf
choice
the action to be taken.23
adjacent land areas.
judgment
dis-
Informed
our
required
cussion of
be
B. Withdraw Sale
alternatives
though
lies out-
even
sale could withdrawn
Department,
side
tary will,
the Interior
Secre-
leasing on the
from consideration for
doubt,
we
be able
have no
impact.
possible
basis
delay
provide
kind
without undue
made,
do-
If
were
new
a decision
reasonable discussion of
energy would
mestic
of clean
sources
consequences
and their environmental
run,
long
developed.
need to
In the
Congress contemplated.
technology
available
new
must be made
help
produce
energy
at a cost to
Motion
clean
denied.
gas;
need
offset the critical
for oil
run,
exist
few
the short
APPENDIX
ques-
ones that do exist are
following
practicability. The
Excerpt
tionable
from Final Environmental
energy
possible
short-run
Proposed
sources of
1971
offshore
needs
are “alternatives”1
Oil
Outer Continental
Gas
Shelf
gas.
East-
General Lease Sale Offshore
supra,
Corp.
FCC,
Cf.,
Morgan,
Greater
TV
Boston
v.
21.
United
v.
795,
307
States
U.S.
191,
183,
444 F.2d
L.Ed.
at 851.
59
83
1211
S.Ct.
(1939) ; Niagara
Corp.
Power
Mohawk
Coordinating
23. See
Cliff’s
Com
Calvert
376,
EPC,
U.S.App.D.C.
383,
v.
126
379
1,
mittee, Inc., supra
F.2d at
note
449
153,
(1967) ;
F.2d
160
Greater Boston
1115.
Corp.
FCC,
F.2d
Television
v.
444
(D.C.Cir. 1970), cert. denied
necessarily
they
many cases,
are not
29 L.Ed.2d
U.S.
S.Ct.
supplemental
alternatives,
are
June
require
national
sources. The
Cf.,
FCC,
potential
any
“al
WAIT
one
v.
ment
Radio
U.S.
exceeds
App.D.C. 317,
(1969) ;
been caused when the ion that because the President did not pur- same were same Impact lands leased an issue Statement in connection pose Energy Message months hence the normal Congress with his to few pn (In delay duty schedule. fact upon caused that a to do so fell the Secre- acted, practically tary this lawsuit has eliminated of the Interior when he to any whatsoever.) carry part effect out a program. minor By holding majority opinion such nothing There is to NEPA indicate require Secretary of the In- Congress require intended to Im- support Energy terior to Mes- entire pact for the continuation Statements sage Impact in an which is existing programs. laws The stat- only required implement- because is he merely required policy ute review of ing microscopic portion To it. authority” “present statutory to be merely state this result sufficient reported to the President made indicate unsoundness. If such were July 1, not re- 1971.4 Such review does the law subordinate officials would be quire Impact Statements. quired promulgate Impact Statements beyond far the relevant act of nothing decision- I thus find in the President’s making. authority While the relevant Secretary message, in the acts of the of the decisionmaker not constitute of the Interior which followed mes- said an scope absolute limit on the sage, imposes any of sub- threat en- jects required to be covered Im- already present vironment that was not pact Statement, decisionmaking his au- existing being programs carried on thority respect proposed ac- pursuant previously existing laws certainly tion is important the most con- fully were which to be review- determining sideration in the limits July 1, prior ed the ma- 1971. When that document and prin- constitutes the jority subject Impact here cipal frame of reference to which the ex- alternatives to discuss statement should be addressed. isting laws it is not change, and also discuss the environ- (5) Energy,
mental indefinite alterna- Nuclear Increasing On- tives, opinion Exploration I consider that shore Pricing and FPC soundly Policy based in law. on Natural Gas nothing sup-
I in the Act to also find energy, increasing As to nuclear on- port majority opin- exploration assertion of the changing shore pric- provides 4. : majority opinion requires U.S.C. Insofar as the agencies All Federal Govern Statements under NEPA to cov- present ment stat shall review er alternatives to the 1953 Outer Conti- utory regula authority, administrative nental Shelf Lands Im- Act and Oil *17 tions, policies procedures port Program and current and Quota it over- determining purpose whether for the looks the fact that NEPA any existing programs pro- there are deficiencies or inconsis be reviewed and to prohibit posals reported tencies therein which full com to the President for such pliance purposes provisions may necessary and bring measures to propose chapter policies conformity of this and shall their into with the July 1, 1971, not later President than intent of The fact that Con- NEPA. necessary gress to existing programs such measures as dealt with policies bring authority into this manner NEPA is a clear indica- conformity intent, purposes, with the tion that it intend in NEPA to did not chap procedures require Impact in this set forth cover the Statements to ground. ter. same Policy Act of National Environmental 91-190, Pub.L. No. 83 Stat. however, geologic ing gas contrast, policy natural the Federal on relatively unexplored Commission, ac- all involve structures Power these virgin easily agencies or more areas identi- individuals are tions using scope seismic technol- realistically fiable current not within the authority ogy. decisionmaking here involved. Many principals involved are not Impact Final Environmental Statement Govern-
controlled States United necessity I no 52-53. see reasonable tq any proposals ment. Whether of these impact discuss collectively individually would consti- or suggested alternative has been adequate present partial or alter- tute jected practical it not a because alter- is proposed is to action here native native. Actually problematical. -of highly all being pursued to some extent. them are majority opinion specific is not They also their own environmental have as to whether in its treatment of in- problems. creasing exploration onshore and devel- opment requires Impact it Statement proceed- Certainly are we consider we substituting to discuss alternative ing development of. with research Slope oil from the North for Alaska speed. energy nuclear with all deliberate oil and discuss this Gulf to the environ- present our research state alleged mental of that alterna- pro- development is on the borderline required, tive. If such is discussion so ducing practical equipment that has val- judicial I would take notice those uses. See Cities commercial ue knowledge of common facts Energy Statesville, v. Atomic Com- et al. production transportation facilities U.S.App.D.C. mission, F.2d necessary Slope oil to consti- North (en banc, 1969). atomic But present tute a realistic alternative present not alternative is proposal presently this are non-existent. supply our combustion internal needed Slope field also its own The North has engines de- meet our other fuel problems. To well known environmental mands. plaintiffs majority extent person opinion may Impact any knew Certainly if where contend gas in explore oil or to discuss the effect for more onshore needs Slope quantities al- United environment of the North substantial my mind, States, support. presently it ternative he would want is suggestion. Moreover, did dis- an unreasonable suggestion pointed out that cuss is also taken our deci- own Notice weighed to be and found been had upholding sion the Federal Power Com- adequate : altering pricing policies mission in industry gas recently, petroleum natural stimulate the domestic Until gas. production City of Chi- of natural satisfy de- domestic has been able cago Commission, 147 Federal Power v. gas onshore mand for oil and -, -, U.S.App.D.C. p. 458 F.2d Alaska, exception of -areas. With p. (1971). however, exploration current seismic techniques have able iden- been So, suggested by much of what pro- being tify already of new sufficient numbers so-called bearing geologic done and is a matter of knowl- common spective edge. suggested alterna- Some suitable onshore that are structures *18 changes require would develop- tives immediate exploration further existing federal laws and decisions has been re- ment investments. agencies; independent are significant some flected decline both impractical they require drilling proved because onshore reserves. they to act in a manner have officials contrary their declared indicated is intent; ASSOCIATION, AIR LINE PILOTS IN- suggest some TERNATIONAL, Petitioner, volving highly results, specu- uncertain v. experimental probabilities or un- lative BOARD, CIVIL AERONAUTICS certainties; suggest some as alterna- Respondent, satisfy proposals that would not tives Airlines, Inc., Mohawk and Command need; only par- the same some would be Airways, Inc., Intervenors. alternatives; ideas and some involve tial away, years ever, if from fru- that are ASSOCIATION, AIR LINE PILOTS IN- said to realistic can be be ition. None TERNATIONAL, Petitioner, present alternatives. Because of these v. circumstances, to in and others referred BOARD, CIVIL AERONAUTICS any Statement, Impact I do not find Respondent, suggestions to be alternatives Airlines, Inc., North, Mohawk and Air meaning I within the of the Act. would Inc., Intervenors. enjoin here to thus not the sale Impact State- their discussion delay the do so would make ment. To ASSOCIATION, AIR LINE PILOTS IN- victor. TERNATIONAL, Petitioner, v. the ease with I am not unmindful of BOARD, CIVIL AERONAUTICS required which some of the additional Respondent. inserted the Im- discussion can be 24062, 24063, Nos. 24226. just
pact Statement. I do consider requires, or reason dic- law Appeals, United States Court of tates, of unrealistic alter- the discussion District Columbia Circuit. impact. natives or their environmental Argued Dec. 1970. my requiring that the In so view opinion majority extends the to ex- Decided law Jan. impractical I would treme ends. Respondent’s Rehearing Petition for interpretation of NEPA confine Denied March reasonably call for discussion of full Intervenors’ Petition Rehearing practical present rather April 13, Denied lay requirements ex- for the than down leg- every position hopeful project and change said
islative subject. remotely To related to the
even mind,
my the former rule would better extent To this
serve the environment. major-
I the views of the dissent from
ity opinion. my opinion for sum- motion granted upon
mary reversal should be ground of the trial decision legal upon an erroneous
court was based e.,
premise, i. that NEPA discuss alterna- highly speculative and that were
tives pres- are not realistic
remote and which
ent alternatives.