Natural Resources Defense Council, Inc. v. Rogers C. B. Morton, in His Official Capacity as Secretary of the Department of Interior

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

The District Court enjoined the sale of oil leases involving in excess of $500 million based upon an alleged failure of the Government to discuss certain alternatives in its Final Environmental Impact Statement (hereafter the Impact Statement). The critical language in the court’s finding in this respect reads as follows:

The Court finds that the defendants failed to comply with NEPA by failing to discuss some alternatives at all, such as meeting energy demands by federal legislation or administrative action freeing current onshore and state-controlled offshore production from state market demand prorationing or a change in the Federal Power Commission’s natural gas pricing policies. In addition the defendants only superficially discussed the alternatives listed in their Final Impact Statement, and they failed to discuss in detail the environmental impacts of the alternatives they listed in the statement. The Court . . . believes that these alternatives must *840 be explored and discussed thoroughly in order to comport with the intent and requirements of Section 4332(2) (C) of NEPA.

* * -X- * * #

[T]he Court suggests that the defendants reassess their position as to alternative sources of energy other than the lease sale of the tracts on the Outer Continental Shelf and the environmental impact of such alternatives.

When this general language is translated to the facts of this case it requires the Impact Statement to discuss the environmental impact of: (1) meeting energy demands by federal legislation or administrative action freeing current domestic production from state restrictions on production; (2) changing the Federal Power Commission’s policy with respect to the pricing of natural gas; (3) elimination of import quotas; (4) increasing onshore exploration and development; (5) development of oil shale; (6) increasing nuclear energy development; (7) increasing use of low sulfur coal and/or desulfurization of coal; (8) development of coal liquefaction and gasification; (9) development of geothermal resources, and (10) development of tar sands.

As I interpret the majority opinion it clearly holds that there is no need to discuss (5), (7), (8), (9), or (10). Obviously these are not reasonably to be considered as present alternatives. I concur in such conclusions. Whether the majority opinion requires a discussion in the Impact Statement of (1), (2) and (6) is not clear in view of its statement that there is no need to discuss “remote and speculative possibilities in view of basic changes required in statutes and policies of other agencies.” I assume however that the opinion intended to require these three to be covered and so I will discuss these later together with (3) and (4).

(1) General Principles

It is my view that the range of alternatives that must be discussed in an Impact Statement is generally limited to realistic alternatives that will be reasonably available within the time the “deci-sionmaking” 1 official intends to act.

In this connection I would not normally consider alternatives to executive action under existing laws to be realistic if they would require substantial changes in existing laws or in long established patterns of production and consumption of industrial products that could not reasonably be expected to be changed within the time available. When the subject action is a legislative proposal addressed to Congress the Impact Statement must of course cover a wider range, i. e., it should cover alternatives that are reasonably available to Congress and would include legislative alternatives.

I thus take issue with that portion of the majority opinion that treats every Impact Statement as being addressed to Congress and the President and which would always require the discussion particularly of so-called legislative alternatives. A copy of the Impact Statement is made “available to the President,” but that does not require every Impact Statement to discuss alternatives (and also their environmental impact) which might be alleged to be open to the President. In my view, the congressional committee report, quoted below, insofar as it refers to “subequent reviewers and decisionmakers” generally refers only to those officials who are within the “existing agency review process” and generally only requires the discussion of alternatives within the power of Congress or the' President when Congress or the President may be the decisionmaker. (There may be some exceptions.) The committee report states:

The agency shall develop information and provide descriptions of the alternatives in adequate detail for subse *841 quent reviewers and decisionmakers, both within the executive branch and the Congress, to consider the alternatives along with the principal recommendations.

S.Rep.No.296, 91st Cong., 1st Sess. 21 (1969) (emphasis added). This ties into the provision of 42 U.S.C. § 4332 which provides that:

The Congress authorizes and directs that, to the fullest extent possible: . (2) all agencies of the Federal Government shall— . . . (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official . (Emphasis added.)

The plain intent of Congress in the Committee Report, when read in conjunction with this statute, is to call for information concerning legislative alternatives to be addressed to Congress when the report contains “proposals for legislation” but not in all cases when the recommendation proposes “other major Federal actions” by the executive branch. While it could not be stated categorically that no action by an executive official would require the discussion of legislative alternatives, existing laws and reason dictate that it would not be required here or in all cases. As the congressional committee report indicates, the Impact Statement is addressed primarily to the “subsequent reviewers and decisionmakers” and this stops short of Congress and proposals for legislative changes in statutes where the decisionmaker is carrying out programs established by pre-existing laws enacted by Congress. It would be unreasonable to hold that Congress intended to require every Impact Statement under NEPA addressed to an executive official to discuss all possible legislative alternatives together with the possible environmental impact of all such alternatives. Such construction of the act would result in extending Impact Statements to limitless proportions. The act deserves to be given a liberal interpretation to the fullest extent possible to accomplish a substantial change in our treatment of matters affecting our environment, but while no absolute rule can be laid down for all cases, I see no evidence in the statute that Congress intended to require a discussion of remote or speculative alternatives, or alternatives that were not presently available.

(2) Elimination of Import Quotas on Foreign Oil

The conclusion that it is necessary to discuss the elimination of import quotas on foreign oil in the Impact Statement rests upon the claim that it is an alternative to the present sale of offshore leases. Technically such suggestion does seem to have some aspects of being a partial alternative but I do not consider that it is a realistic alternative. In the event that all import quotas were removed and all the oil production of our Outer 'Continental Shelf could be replaced by foreign oil, it is common knowledge that such course would not be adopted because the United States would then be wholly dependent upon foreign oil. We would be powerless as a nation to resist exorbitant prices for that oil, and we would be powerless to defend ourselves in a national emergency. It is thus essential to our national survival that we develop our own national production. It seems plain to me that that is precisely the policy that Congress declared on August 7, 1953 when it passed the act authorizing the Secretary of the Interior, as a matter of national policy, to lease the lands of the Outer Continental Shelf for oil exploration. At that time there were no restrictions on the importation of foreign oil so I fail to see how the return to conditions which existed at the time Congress originally passed the OCS (by the removal of the subsequently imposed import restrictions) would cause Congress to change its mind and terminate the development of our offshore oil. Under such circumstances the suggestion that import quotas be removed is not a realistic alternative. In passing the Outer Continental *842 Shelf Lands Act in 1953, Congress recognized the “urgent need” for developing our offshore oil.

Sec. 8. Leasing of outer Continental Shelf. — (a) In order to meet the urgent need for further exploration and development of the oil and gas deposits of the submerged lands of the outer Continental Shelf, the Secretary is authorized to grant to the highest responsible qualified bidder by competitive bidding under regulations promulgated in advance, oil and gas leases on submerged lands of the outer Continental Shelf which are not covered by leases meeting the requirements of [subsection (a) of section 6] of this [Act.]

Outer Continental Shelf Lands Act of 1953, § 8, ch. 345, § 8, 67 Stat. 468 , codified at 43 U.S.C. § 1337 (1970) (emphasis added).

The national needs behind this congressional declaration of policy were also referred to in the committee reports which accompanied the bill for the Outer Continental Shelf Lands Act. These stated that the development and operation of such lands through leases for oil and gas operations were vital to our national economy and security:

Representatives of the Federal departments, the States, and the offshore operators all urged the importance and necessity for the enactment of legislation enabling the Federal Government to lease for oil and gas operations the vast areas of the Continental Shelf outside of State boundaries. They were unanimously of the opinion, in which this committee agrees, that no law now exists whereby the Federal Government can lease those submerged lands, the development and operation of which are vital to our national economy and security. It is, therefore, the duty of the Congress to enact promptly a leasing policy for the purpose of encouraging the discovery and development of the oil potential of the Continental Shelf.

H.R.Rep.No.413, 83d Cong., 1st Sess. 2-3, 153, 1953 U.S.Code Cong. & Admin. News, p. 2178 (emphasis added).

Congress has thus officially committed our government officials by statute to a policy of developing our offshore oil resources. The wisdom of that decision, having been made by Congress and being still in effect, in my opinion, need not be reargued every time some additional action is taken to carry out the declared policy of the statute. To my mind to so hold is an unreasonable interpretation of the statute. In reaching this conclusion I do not minimize the obligation of the Impact Statement to discuss to the fullest extent possible the environmental impact of the proposed action and all reasonable present alternatives to the immediate action being taken that materially affect the environment. But the Impact Statement here has done that very thoroughly and I consider that to be adequate compliance with the statute.

(3) Meeting Energy Demands by Federal Legislation or Administrative Action Freeing Current Production from State Restrictions on Production

Plaintiffs also contend that the Impact Statement should discuss the possibility of meeting energy demands by federal legislation or administrative action with respect to state restrictions on domestic production. Again it seems to me that this is not realistically a present alternative since the matter is for Congress and the President. Moreover, the overall considerations implicit in such alleged alternatives were considered and found wanting by the Congress when it made the findings and passed the legislation authorizing the Secretary of the Interior to lease the lands of the Outer Continental Shelf. Congress was certainly mindful of the domestic oil production situation at that time, as illustrated by their finding an urgent need for other oil and gas. Congress passed the Connally Hot Oil Act in 1935 ( 49 Stat. 30 , et seq.) and since Congress *843 has left that act unamended and the President has not found that the statutory conditions exist for declaring its provisions inoperative, 2 the Act remains part of the general national policy that here exists.

I thus consider that the existence of the national policy declared in the Outer Continental Shelf Act, the silence of Congress in not repealing or amending the Connally Hot Oil Act, and the fact that the statutory standards of the Act do not authorize the President to lift the restrictions of the Connally Hot Oil Act for the purpose plaintiffs suggest, indicate that our national policy provides for the leasing, exploration and development of the offshore oil and gas lands and that as long as the Secretary of the Interior is carrying out such policy, the possibility that Congress might change this national policy is not an alternative that must be discussed in the Impact Statement here involved.

(4) The President’s Message

We next come to the President’s June 4, 1971 Energy Message to Congress which comprehensively discussed the energy needs of the Nation. The full statement appears in 117 Congressional Record H 4715-19 (daily ed., June 4, 1971). This message contained six sentences relating to offshore oil and gas leases:

LEASING ON THE OUTER CONTINENTAL SHELF — AN ACCELERATED PROGRAM

The Outer Continental Shelf has proved to be a prolific source of oil and gas, but it has also been the source of troublesome oil spills in recent years. Our ability to tap the great potential of offshore areas has been seriously hampered by these environmental problems.

The Department of the Interior has significantly strengthened the environmental protection requirements controlling offshore drilling and we will continue to enforce these requirements very strictly. As a prerequisite to Federal lease sales, environmental assessments will be made in accordance with section 102 of the National Environmental Policy Act of 1969.

Within these clear limits, we will accelerate our efforts to utilize this rich source of fuel. In order to expand productive possibilities as rapidly as possible, the accelerated program should include the sale of new leases not only in the highly productive Gulf of Mexico, but also some other promising areas. I am therefore directing the Secretary of the Interior to increase the offerings of oil and gas leases and to publish a schedule for lease offerings on the Outer Continental Shelf during the next five years, beginning with a general lease sale and a drainage sale this year.

Id. at H 4717.

The foregoing statements are seized upon by the majority opinion as announcing some new program, but in my view that is not supported. All that the President has done here is provide for a mild acceleration in an existing program that was first authorized twenty years ago. He has not changed any leasing procedures and, insofar as oil and gas lands in the Gulf of Mexico are concerned he has not added any new areas to the scheduled leasing program. He has merely accelerated by less than three months 3 the leasing of lands already scheduled to be leased. This minimal acceleration does not involve any impact-on the environment that would not have *844 been caused by existing policy when the same lands were leased for the same purpose a few months hence pn the normal schedule. (In fact the delay caused by this lawsuit has practically eliminated any effect whatsoever.)

There is nothing in NEPA to indicate that Congress intended to require Impact Statements for the continuation of existing laws and programs. The statute merely required a policy review of “present statutory authority” to be made and reported to the President by July 1, 1971. 4 Such review does not require Impact Statements.

I thus find nothing in the President’s message, or in the acts of the Secretary of the Interior which followed said message, that imposes any threat to the environment that was not already present in existing programs being carried on pursuant to previously existing laws which were required to be fully reviewed prior to July 1, 1971. When the majority here require the subject Impact Statement to discuss alternatives to existing laws which it is not proposed to change, and also to discuss the environmental impact of such indefinite alternatives, I consider that the opinion is not soundly based in law.

I also find nothing in the Act to support the assertion of the majority opinion that because the President did not issue an Impact Statement in connection with his Energy Message to Congress that a duty to do so fell upon the Secretary of the Interior when he acted, to carry out a minor part of the program. By such holding the majority opinion would require the Secretary of the Interior to support the entire Energy Message in an Impact Statement which is only required because he is implementing a microscopic portion of it. To merely state this result is sufficient to indicate its unsoundness. If such were the law subordinate officials would be required to promulgate Impact Statements far beyond the relevant act of decision-making. While the relevant authority of the decisionmaker may not constitute an absolute limit on the scope of subjects required to be covered by an Impact Statement, his decisionmaking authority with respect to the proposed action is certainly the most important consideration in determining the limits of that document and constitutes the principal frame of reference to which the statement should be addressed.

(5) Nuclear Energy, Increasing Onshore Exploration and FPC Pricing Policy on Natural Gas

As to nuclear energy, increasing onshore exploration and changing the pric *845 ing policy on natural gas by the Federal Power Commission, these all involve actions by other agencies and individuals not realistically within the scope of the decisionmaking authority here involved. Many of the principals involved are not controlled by the United States Government. Whether any of these proposals individually or collectively would constitute a partial or adequate present alternative to the action here proposed is highly problematical. Actually all -of them are being pursued to some extent. They also have their own environmental problems.

Certainly we consider we are proceeding with research and development of. nuclear energy with all deliberate speed. The present state of our research and development is on the borderline of producing equipment that has practical value for commercial uses. See Cities of Statesville, et al. v. Atomic Energy Commission, 142 U.S.App.D.C. 272 , 441 F.2d 962 (en banc, 1969). But atomic energy is not a present alternative to the oil needed to supply our internal combustion engines and meet our other fuel demands.

Certainly if any person knew where to explore for more onshore oil or gas in substantial quantities in the United States, he would not want for support. Moreover, the Impact Statement did discuss this suggestion and pointed out that it had been weighed and found to be inadequate :

Until recently, the petroleum industry has been able to satisfy domestic demand for oil and gas from the onshore -areas. With the exception of Alaska, however, current seismic exploration techniques have not been able to identify sufficient numbers of new prospective oil and gas bearing geologic structures onshore that are suitable for further exploration or development investments. This has been reflected by a significant decline in both onshore drilling and proved reserves. In contrast, however, the geologic structures in the relatively unexplored or virgin areas are more easily identifiable using current seismic technology.

Final Environmental Impact Statement 52-53. I see no reasonable necessity tq discuss the environmental impact of a suggested alternative that has been rejected because it is not a practical alternative.

The majority opinion is not specific as to whether in its treatment of increasing onshore exploration and development it requires the Impact Statement to discuss the alternative of substituting oil from the North Slope of Alaska for this Gulf oil and to discuss the environmental impact of that alleged alternative. If such discussion is so required, I would take judicial notice of those facts of common knowledge that the production and transportation facilities necessary for North Slope oil to constitute a realistic present alternative to this proposal are presently non-existent. The North Slope field also has its own well known environmental problems. To the extent that plaintiffs or the majority opinion may contend that this Impact Statement needs to discuss the effect on the environment of the North Slope alternative it is to my mind, presently an unreasonable suggestion.

Notice is also taken of our own decision upholding the Federal Power Commission in altering its pricing policies on natural gas to stimulate the domestic production of natural gas. City of Chicago v. Federal Power Commission, 147 U.S.App.D.C. -, p. -, 458 F.2d 731, p. 738 (1971).

So, much of what is suggested by these so-called alternatives is already being done and is a matter of common knowledge. Some of the suggested alternatives would require immediate changes in existing federal laws and decisions of independent federal agencies; some are impractical because they would require *846 officials to act in a manner they have indicated is contrary to their declared intent; some suggest alternatives involving uncertain results, highly speculative probabilities or experimental uncertainties; some suggest as alternatives proposals that would not satisfy the same need; some would only be partial alternatives; and some involve ideas that are years away, if ever, from fruition. None can be said to be realistic present alternatives. Because of these circumstances, and others referred to in the Impact Statement, I do not find any of the suggestions to be alternatives within the meaning of the Act. I would thus not enjoin the sale here to require their discussion in the Impact Statement. To do so would make delay the only victor.

I am not unmindful of the ease with which some of the required additional discussion can be inserted in the Impact Statement. I just do not consider that the law requires, or that reason dictates, the discussion of unrealistic alternatives or their environmental impact. In so requiring it is my view that the majority opinion extends the law to extreme and impractical ends. I would confine the interpretation of NEPA to call for full discussion of reasonably practical present alternatives rather than lay down requirements for the exposition of every hopeful project and legislative change that may be said to be even remotely related to the subject. To my mind, the former rule would better serve the environment. To this extent I dissent from the views of the majority opinion.

In my opinion the motion for summary reversal should be granted upon the ground that the decision of the trial court was based upon an erroneous legal premise, i. e., that NEPA required the Impact Statement to discuss alternatives that were highly speculative and remote and which are not realistic present alternatives.

. 42 U.S.C. § 4332 (2) (A).

. 15 U.S.C. § 715c ( 49 Stat. 31 ).

. The Secretary of the Interior’s announcement of the sale in the Federal Register reported:

This sale was originally planned for February 1972 and has been advanced to December 1971, in accordance with the President’s June 4, 1971, energy message to Congress.

36 Fed.Reg. 11604 (June 16, 1971).

. 42 U.S.C. § 4333 provides:

All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.

National Environmental Policy Act of 1969, § 103, Pub.L. No. 91-190, 83 Stat. 854.

Insofar as the majority opinion requires Impact Statements under NEPA to cover alternatives to the 1953 Outer Continental Shelf Lands Act and the Oil Import Quota Program of 1959, it overlooks the fact that NEPA required such existing programs to be reviewed and proposals reported to the President for such measures as may be necessary to bring their policies into conformity with the intent of NEPA. The fact that Congress dealt with existing programs in this manner in NEPA is a clear indication that it did not intend in NEPA to require Impact Statements to cover the same ground.