# Opposition Brief — Morton v. Wilderness Society

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 917

## Text

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INDEX
Page
STATEMENT 1
REASONS WHY THE WRIT SHOULD NOT BE
GRANTED 4
IT IS FOR CONGRESS, NOT THE COURTS, TO DETER-
MINE WHETHER THE MINERAL LEASING ACT SHOULD
BE AMENDED 4
THE NEPA ISSUES ARE NOT IN AN APPROPRIATE POS-
TURE FOR REVIEW BY THIS COURT 9
CONCLUSION 20
CITATIONS
Constitution:
i ee es Se) ee ees x ;
Cases:
Poe v. Ullman, 367 U.S. 497 (1961) 10 ;
Rules of Court:
Supreme Court Rule 19 9 ’
Supreme Court Rule 23 _ 10 :
Statutes:
Alaska Native Claims Settlement Act, 85 Stat. :
688, et seq. 7 ;
Mineral Leasing Act of 1920, Section 28, 30 U.S.C. :
185 passim
National Environmental Policy Act of 1969, 42
U.S.C. 4331 et seq. 3, 9, 16, 17 ’
4
Legislative Material:
H.R. Rep. 92-746, 92d Cong., Ist Sess. (1971) _.... 7
;

ti

II

INDEX—Continued

Page

Hearings, Senate Committee on Interior and In-
gular Affairs, 92d Cong., Ist Sess. (April 29,
1971) 13
Hearings, Senate Committees on Public Works and
Interior and Insular Affairs, 92d Cong., 2d
Sess. (1972) 13 j
Hearings Before the Senate Interior and Insular
Affairs Committee on Pending Legislation to
Establish a Federal Policy Concerning the
Granting of Rights-of-Way Across Federal
Lands, 93d Cong., 1st Sess. (1973) -...-.-..-...--.---- 8,18
S. 970, S. 993, S. 1040, S. 1041, S. 1056, S. 1081,
H.R. 4651, H.R. 4707, and H.R. 5750, 93d Cong.,
1st Sess. (1973) 7-8, 18 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

Nos. 72-1227, 1228, 1229

RoGeERS C. B. MORTON, SECRETARY OF THE INTERIOR,
ET AL.,
Petitioners,
Vv.

THE WILDERNESS SOCIETY, ENVIRONMENTAL DEFENSE
FUND, INC., and FRIENDS OF THE EARTH, ET AL.,

Respondents. :

BRIEF IN OPPOSITION TO THE PETITIONS FOR A
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

STATEMENT

The petitions for certiorari present no issue which ;
warrants further review by this Court. In urging f
this position, respondents’ rely principally upon the

* The principal respondents in the case are three environ- :
mental organizations, The Wilderness Society, Environmental x
Defense Fund, Inc., and Friends of the Earth, who are the '
original plaintiffs in the Alaska Pipeline litigation. The other :
respondents are David Anderson and Canadian Wildlife Fed- '
eration, who were allowed to intervene in The Wilderness :

—

2

careful and comprehensive analysis of the issues con-
tained in the exhaustive opinion of the court of ap-
peals, sitting en banc. Gov. Pet. App. A.

In reaching the unanimous conclusion that Con-
gress must decide whether to amend the Mineral :
Leasing Act of 1920, all seven judges who heard the
case were keenly aware of “the obvious magnitude
and current importance of the interests at stake.”
Gov. Pet. App. A 93a. But the petitioners could not
convince even one of the judges that the relief they
seek should be obtained from the courts, rather
than from the Congress. The essence of the decision
below, as the court of appeals noted, “is as settled
as it is simple.” Gov. Pet. App. A 94a.

“Congress, by enacting Section 28, allowed pipe-
line companies to use a certain amount of land
to construct their pipelines. These companies
have now come into court, accompanied by the
executive agency authorized to administer the
statute, and have said, ‘This is not enough land;
give us more.’ We have no more power to grant
their request, of course, than we have the power

Society suit by order dated May 11, 1972, and The Cordova
District Fisheries Union, whose separate suit (filed on April

28, 1971) was consolidated with The Wilderness Society
suit.

All respondents join in this opposition. In the remainder
of this brief, however, the term “respondents” refers, unless
otherwise stated, to The Wilderness Society, Environmental
Defense Fund, Inc., and Friends of the Earth.

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3

recipients.

. * * .

“We think it plain that the Executive Branch, ©
when confronted with the legal problems attend-

ant upon the Alaska pipeline, should have taken :
note of the limitations that had been prescribed
by Congress, and should have presented to Con- :
gress the case for revision of the basic statute.” ©
Gov. Pet. App. A, 93a-94a, 97a. i

Judge Wilkey, concurring in the court’s Mineral Leas-
ing Act decision, stated: “Regrettably, the would-be
builders of the Alaska Pipeline sought from the
courts rather than Congress clearly necessary changes
in the statutory restrictions on the use of public
lands.” Id., at 137a. Judge MacKinnon, in his sep-
arate opinion, agreed: “Alyeska must now go to Con-
gress for an amendment. . .. That is regrettable
. . . but it is Congress that has the legislative power
and not this court.” IJd., at 122a.

to increase congressional appropriations to needy i
:
;

Petitioners devote a considerable portion of their
petitions to broad and potentially complex issues, nei-
ther reached nor considered by the court of appeals,
relating to the National Environmental Policy Act
(“NEPA”). Those issues are not in a proper pos-
ture for review by the court at this time and do not
provide an additional basis, apart from the Mineral
Leasing Act issues, for granting review. As noted
by the court of appeals, pending a Congressional re-
solution of the Minerai Leasing Act issues, the present

Prete ware

a SEERA EE DS PEE |

4

“analysis of environmental, economic and other costs

. may become outdated, and in its updating the
Department conceivably might introduce changes
mooting anything we might say about its present
adequacy or inadequacy.” Gov. Pet. App. A 90a. As
demonstrated at pages 16-19, infra, legislative and
other developments have already confirmed the cor-
rectness of this conclusion.

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

IT IS FOR CONGRESS, NOT THE COURTS, TO DETERMINE

WHETHER THE MINERAL LEASING ACT SHOULD BE AMENDED

1. The court of appeals considered the Mineral
Leasing Act issues in meticulous detail. Every canon
of statutory interpretation dictates the court’s unani-
mous conclusion that construction of the Alaska Pipe-
line would violate the Mineral Leasing Act. These
include the plain meaning of the statute (Gov. Pet.
App. A 16a-23a), its legislative history (id., at 23a-
39a), its contemporaneous interpretation by the
agency charged with its administration (id., at 21a),
and the settled construction of the administrative reg-
ulations of that agency (id., at 40a-62a).

In their briefs, petitioners essentially ignore the add-
ed fact that an amount of land much wider than that
provided for in the Mineral Leasing Act is perma-
nently necessary for access and maintenance, as well
as construction, of the pipeline. It was on this point
that Judge MacKinnon joined the other six judges
in the conclusion that Congressional approval is nec-

BLEED THROUGH POOR COPY

5

essary. The Government’s assertion that all that will
be needed are “temporary permits for access and
maintenance” (Gov. Pet, 23) is simply untrue. See
Gov. Pet. App. A 56a-61a; Gov. Pet. App. A 119a-
123a.

2. The court of appeals was also correct in con-
cluding that the unambiguous proscription of the
Mineral Leasing Act is not overcome by what peti-
tioners’ counsel now attempt to characterize as “long
standing and consistent administrative interpretation
of the statute” (Gov. Pet. 23-24). No such establish-
ed interpretation exists. As the court of appeals held,
it is to be found nowhere in “a formal rule or
through any other ‘expressly articulated position at
the administrative level.’” Gov. Pet. App. A 47a.

The court further noted the irony that the same
parties who now assert the existence of a “settled
and well known administrative practice . . . apparent-
ly did not know about the practice” when the first
application for rights of way was made in 1969.
Gov. Pet. App. A 45a-46a. The result, moreover, of a
subsequent three-year search by petitioners’ counsel
into the files of Interior Department field offices pro-
duced no more than a handful of isolated, vague, and
inconclusive low-level administrative lapses to which
the court of appeals properly gave little weight. Gov.
Pet. App. A 5la.?

? The three-year search (1969-1972) by petitioners’ counsel
uncovered exactly five documented instances—none occurring
prior to 1960—in which Interior Department field offices were

Peers

ALINE INET

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sam

6

8. The decision of the court of appeals was not pe-
titioners’ first indication that the Minera] Leasing
Act stood as a threshold bar to the Alaska Pipeline. H

requested to issue or did issue construction-related special
land use permits for pipelines. Three of them involved a total
distance of less than 32 miles. The fourth appeared to be
merely an undated application with no permit attached. And |
the fifth was issued almost a full year after the district court’s
preliminary injunction in the instant case. (Government’s
Brief to the Court of Appeals, Appendix B). Petitioners’
counsel endeavored to supplement this scanty showing with
affidavits by field-level Interior Department employees and
industry pipeliners. Collectively, these affidavits identified
only four specific instances in which pipeliners were alleged
to have been given even informal access to public lands out- F
side the statutory right-of-way. The earliest such instance
identified was alleged to have occurred in 1953. And, no in-
dication was given in the affidavits as to the actual amount of
additional public land affected. (Alyeska Supplemental Docu-
ments I, Tabs 1-9).

The court’s conclusion—“that this history [nJeither merits
our deference [n]or leads us to ignore an ascertainable legisla-
tive will to restrict construction activities to the statutory
right-of-way,” Gov. Pet. App. A 5la—is not merely correct.
It is a charitable understatement.

* Indeed, in a cover letter to the Undersecretary of the In-
terior submitting the oi] companies’ initial permit application
of June 6, 1969, their attorney Kenneth P. Fountain acknowl-
edged that:

“The 54’ R.O.W. [right of way] width which is allowed
by statute is not adequate for the construction of a 48”
pipeline. The R.O.W. should be 100’ width to accommo-
date the extremely large equipment that is necessary to
handle the 48” pipe, and the large spoil [from] exca-
vated soil... .” (Emphasis added.) Respondents’ “Rule
9(h) Documents,” Tab B.

met SSM SFTLID AICI DAMwD CORY

7

The Mineral Leasing Act was a principal basis on
which the district court issued its preliminary in-
junction in this case three years ago. Wilderness
Society v. Hickel, 325 F.Supp. 422, 423-24 (D.D.C.,
April 28, 1970) (Findings 2, Conclusions § 5).
See Gov. Pet. App. E 183a-185a. Yet, despite this
unambiguous early warning, petitioners did nothing
to bring the matter to the attention of Congress and
to seek a calm and dispassionate legislative resolu-
tion.*

The matter has now, however, finally been pre-
sented squarely to Congress. Within the past few
weeks bills have been introduced seeking to amend
the Mineral Leasing Act (S. 1040, S. 1056, and H.R.
4651), to update all public land laws dealing with

* The Congressional hearings cited at Gov. Pet. 24 n. 14 and
Ala. Pet. 25 n. 9 were also cited in petitioners’ briefs to the
court of appeals. All of these hearings preceded even the
preliminary injunction in this case. None was addressed to
the underlying legality of the Secretary’s proposed action.

The Government’s citation to the Alaska Native Claims
Settlement Act of 1971, Gov. Pet. 24-25, (which was also
cited in petitioners’ briefs to the court of appeals) defies un-
derstanding. When the Act was passed, the preliminary
injunction in this case was still in effect. The legislative
history of the Act unambiguously states that (a) neither the
conference committee nor the House or Senate Committees
“consider[ed] the proposed pipeline” in their deliberations;
and that (b) if “the Secretary should . . . decide to grant the
necessary permits, nothing . . . should be construed in any
manner to limit, diminish, or condition the Secretary’s ezist-
ing authority to take any action required to implement this
decision.” (Emphasis added.) H.R. Rep. 92-746, 92d Cong.,
Ist Sess. 46 (1971).

Ms PEL EPI PLLA POEL L NG LOE AS PAL LIES

a

rights-of-way (S. 1041 and S. 1081), to approve the
Alaska Pipeline project (S. 970), to approve an al-
ternative trans-Alaska-Canada project (S. 993, H.R.
4707), and to authorize an independent Congressional
review that would lead to a prompt and final approval
by Congress of either the Alaska Pipeline project or
an alternative trans-Alaska-Canada project (H.R.
5750). Hearings have already commenced on sev-
eral of the bills. Hearings Before the Senate Interior
and Insular Affairs Committee on Pending Legisla-
tion to Establish a Federal Policy Concerning the
Granting of Rights-of-Way Across Federal Lands,
93d Cong., 1st Sess. (March 9 and March 27, 1978).
At long last, therefore, the matter is where it belongs,
not in the courts but before Congress which has the
plenary power “to dispose of and make all needful
Rules and Regulations respecting the Territory or
other Property belonging to the United States.” U.S.
Const. art. IV, $ 3, cl. 2.

4, Finally, the decision below is not only clearly
correct but does not conflict with the decision of any
other circuit and has no impact on any public land
law other than the Mineral Leasing Act. See Gov.
Pet. App. A 48a-5la. The decision may, of course,
lead to a new look by Congress at the need for a
general updating of the current right-of-way laws,
which have been enacted haphazardly over the course
of a hundred years. But that, again, is a project not
for the courts but for the Congress, the branch of
government with plenary power over the public lands.

earEeecmt TLD AICI DAMwD CMODpDYy

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9

There is no justification, under the considerations
governing review on certiorari set forth in Rule 19
of this Court’s Rules, for further judicial review of
| the Mineral Leasing Act issues. The important policy
issues underlying the litigation constitute, we submit,
a compelling reason to deny the writ, not to grant it.
Petitioners should take their case for obtaining use of
| the public lands to Congress, where the policy issues
they raise in their briefs may be debated and re-
solved on the merits.

THE NEPA ISSUES ARE NOT IN AN APPROPRIATE POSTURE

FOR REVIEW BY THIS COURT

1. Respondents submit that the threshold Mineral
Leasing Act issues alone should determine the dis-
position of the petitions for certiorari. There has
been no opinion rendered by the court of appeals on
the potential NEPA issues in the case. Nor are there
any useful findings and conclusions by the district
court on those issues. See Gov. Pet. App. D 179a-
182a.

Accordingly, if this Court should grant the peti-
tions for certiorari, respondents respectfully suggest
that the review be limited to the Mineral Leasing Act
issues. Were the Court to reverse the court of ap-
peals’ unanimous conclusion that the Mineral Leasing
Act is a threshold bar to the Alaska Pipeline, it would
then appear appropriate to remand the case to the
court of appeals for reconsideration of its disposition
of the NEPA issues. For the court of appeals’ deci-
sion not to address those issues rests primarily on the

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court’s conclusion that the NEPA issues are not
ripe for adjudication so long as it is necessary for
Congress to act before the Alaska Pipeline can be ap- |
proved.

2. If the court of appeals was correct in its Min-
eral Leasing Act decision (and, as we have already
indicated, it clearly was), its decision not to address |
the NEPA issues was a sound exercise of judicial
discretion, amply supported by decisions of this Court.
E.g., Poe v. Ullman, 367 U.S. 497, 503 (1961); id.,
at 528 (Mr. Justice Harlan, dissenting). The court
of appeals correctly reasoned that the need for prior
Congressional approval renders the NEPA issues *

10

5’ The NEPA issues specifically raised by respondents below
(and considered by them to be set forth in Question 3 of the
instant petitions or fairly comprised therein, Sup. Ct. Rule
23 1 (c)) are, as set forth in respondents’ brief to the court
of appeals:

“I. Whether the Secretary has complied with the Act’s
requirement that he consider the alternative of oil and
gas pipelines in a common corridor through Canada,
when he: (a) did not systematically analyze the apparent
advantages of this alternative; and (b) devoted nearly
all his efforts to the study of the proposal of the applicant
oil companies.

“II. Whether the Secretary has complied with the Act’s
requirement that he consider the alternative of deferring
decision, when he did not evaluate the benefits of deferral
in reducing environmental degradation.

“III. Whether his “Final Impact Statement” was a
proper final statement when an adequate draft statement
never was prepared.

“ITV. Whether the Secretary’s decision was arbitrary and
capricious because it was based upon speculation regard-

11

remote and that Congressional action could moot, or
developments pending Congressional action could
alter, the balance of economic, environmental, and
other factors bearing on a final resolution of the
NEPA issues.

The result reached by the court of appeals is, in-
cidentally, precisely the result that respondents had
urged the district court to reach some nine months
before the court of appeals rendered its decision.‘ As
will be seen at pages 16-19, infra, the correctness
of the result reached below is corroborated by legis-
lative and other developments that have already oc-
curred.

PSY

ENE I IR POTENT eee ND

pemane

ing factors about which concrete information could have
been obtained.” 5

*On May 12, 1972, the day after Secretary Morton an-
nounced his decision to approve the Alaska Pipeline, respond- ;
ents filed in district court a Motion for Partial Summary —
Judgment on the Mineral Leasing Act issues, together with
a 48-page brief on those issues. The Motion stated, in per- —
tinent part:

“(T]he Mineral Leasing Act issues present threshold :
questions. . . ; the NEPA issues need be adjudicated only ;
if the permits contemplated by the Secretary are not pro-
hibited by the Mineral Leasing Act; and if said permits :
are prohibited by the Mineral Leasing Act, it would be a :
waste of judicial time and effort for this court to adjudi-
cate the far more complicated NEPA issues which would,
in that event, be reduced to hypothetical questions.” Mo-
tion of Respondents for Partial Summary Judgment,
May 12, 1972, p. 1.

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3. Before discussing these developments, respond-
ents feel constrained—in view of petitioners’ one-
sided summaries—to place the principal NEPA issue
in what we submit is its proper factual context. The
ultimate question, as the court of appeals has said,
and as Secretary Morton has himself acknowledged,
is which of two feasible alternatives will be adopted:
(1) an oil pipeline route across Alaska, plus marine
tanker transport of oil along the West Coasts of the
United States and Canada, plus a completely separ-
ate pipeline route for North Slope natural gas across
Canada (hereafter the “Alaska Pipeline alterna-
tive”), or (2) one all-land trans-Alaska-Canada route
that would provide a common corridor for oil and
gas pipelines to Midwest markets (hereafter the
“Canadian alternative”). Gov. Pet. App. A 88a; Sec-
retary Morton’s Statement of Reasons, Gov. Pet. App.
C 173a-174a.

It is respondents’ position that “from the beginning
of its consideration of the oil companies’ proposal to
construct a trans-Alaska oil pipeline the Department |
of the Interior has been aware that if North Slope
oil resources are developed at all natural gas (which
is an inevitable byproduct of oil extraction) will be
transported to market [by the very oil companies
proposing the trans-Alaska oil pipeline] by means
of an all-land pipeline route through Canada.” (Foot-
note omitted.) Gov. Pet. App. A 87a. The obvious
question, therefore, has always been: If there is go-
ing to be a route across the Canadian Arctic in any

eer:

orcrcn TUS NICwW U(PoOCw!R CORY

13

event, might there not be substantial environmental
and economic savings from using a single all-land
route for oil and gas pipelines? Yet, because the oil
companies mentioned only North Slope oil in their
proposal to the Interior Department, the Department
has consistently focused only on oil—almost as if the
natural gas, and the alternative of an all-land com-
mon corridor, did not exist. Secretary Morton has
repeatedly articulated his Department’s passive ap-
proach: “The scope of our work here is to deal with
applications on our desk.” E.g., Hearings, Senate
Committee on Interior and Insular Affairs, 92d Cong.,
Ist Sess. 454 (April 29, 1971). See Gov. Pet. App.
A 88a-89a."

*The Department’s approach to the Canadian alternative
was well-summarized by Secretary Morton on March 9, 1972,
only eleven days before release of the final impact statement:
“We have no formal discussions going on with any ele-
ment of the Canadian Government. The prime discus-
sions have been between the Canadian Government and
the applicants. ... The only way [Canadian Government
expressions of interest in an all-land route] could change
the plans is if a Canadian alternative was developed, and
we had an application which we could consider of an
alternative route through Canada. This could very well
change the plans of the present applicants, but we have to
remember that this is not a Government project.” Hear-
ings, Senate Committees on Public Works and Interior
and Insular Affairs, 92d Cong., 2d Sess. 404-405 (March
9, 1972).

This passive approach stands in marked contrast to the role

the Secretary has announced he will assume in helping the oil

Be

14

The Department’s ostrich-like approach to the
Canadian alternative has been, in respondents’ view, |
remarkably similar to the approach it took to the
Mineral Leasing Act problem. The Department’s
draft impact statement of January 1971 (cited at
Gov. Pet. 9-10) was severely criticized for its failure
even to mention North Slope natural gas and the al- |
ternative of an all-land common corridor.* Yet, de-

companies transport North Slope natural gas across Canada,

if that is their desire:
“TWl]e are going to . . . work and stimulate and motivate
a consortium to get together and put the money up to
build a cold gas pipeline, which through Canada is the
logical way for it to go.” Interior Department Transcript
of Secretary Morton’s Press Conference of September
13, 1972, at 38.

* For example, in a statement dated March 12, 1971, criti-
cizing the draft, the Administrator of the Environmental
Protection Agency asserted:

“[A] Mackenzie Valley pipeline would not cross an area
of major seismic activity, as a trans-Alaska pipeline
would. Overland transport from Prudhoe Bay directly to
Chicago would not require transfer facilities from pipe-
line to ocean tankers and would not require a large fleet
of tankers to operate along the coastline from Alaska to
California. Even if a substantial portion of the oil were
transported by pipeline to the West Coast, tanker trans-
port and tanker facility requirements would seem to be
considerably reduced.

“There is a high probability that, given Canada’s inter-
est in opening up its interior reserves and the Alyeska
Pipeline Company’s apparent intention to construct a
pipeline thruugh the Mackenzie Valley to transport nat-
ural gas from Prudhoe Bay, at least one and possibly two
pipelines already will be constructed across the Mackenzie

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a

15

spite this unambiguous early warning, it was not
until February 1972, just one month before publica-
| tion of the final impact statement, that the Depart-
| ment decided to include in the statement any dis-
cussion at all of North Slope natural gas. See Gov.
Pet. App. A 88a. And then, the Department did not
even ask the oil companies to disclose their plans for
the natural gas; and it did not seek to acquire from
either private industry or the Canadian Government
basic information that would be essential for any
meaningful evaluation. Brew Dep. 28-29, 113-115.
Nor, as respondents have contended, did the Depart-
ment ever undertake to determine what the potential
environmental savings might be from the Canadian
common corridor alternative. Brew Dep. 34-35."

Valley. It would seem preferable, from the point of view
of minimizing environmental impact, to use a single route
for more than one pipeline rather than having multiple f
pipeline routes.” See Final Impact Statement, vol. 6, p. d
A-42. :

t

* Dr. Brew was the Interior Department geologist responsi-
ble for drafting the final impact statement. ‘

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*° Respondents contend that nowhere in the final impact
statement generally, or in the “500-page volume . . . devoted ¥
-.. to... possible alternatives” (Gov. Pet. 10) is the alter-
native of an all-land common corridor for oil and gas pipe-
lines analyzed. See Gov. Pet. App. A 88a. The so-called “con- 4
sideration” given to the alternative trans-Alaska-Canada com-
mon corridor in the “option papers and memoranda,” referred ;
to at Gov. Pet. 11, amounts to no more than what one could :
deduce merely from glancing at a map. Specifically, on the z
day before Secretary Morton announced his decision to ap- f

}

—

4. The opinion below accurately sets forth the
general thrust of the opposing positions on the Cana- |
dian alternative issue. Gov. Pet. App. A 86a-90a.
As the court recognized, “This and other NEPA is-
sues™ presented by the parties to this action pose
complex and important questions regarding the duties
of administrative agencies under NEPA.” (Footnote
added.) Jd., at 90a. But, assuming that the court
of appeals correctly construed the technical issues
presented by the Mineral Leasing Act, its decision
not to address the NEPA issues was obviously cor-
rect.

a. Secretary Morton has himself stated, in testi-
mony given to the Joint Economic Committee after
the announcement of his decision to approve the
Alaska Pipeline (cited at Gov. Pet. 14 n.5), that he
would “scrap $300 million and all of the work that
has been done” on the Alaska Pipeline, if the balance
of factors in the national interest were changed (J.A.
106). By the time Congress removes the current Min-
eral Leasing Act width limitation (if that is all Con-
gress does), there may be substantial developments

16

prove the Alaska Pipeline, the individual in the best position
to know—Dr. Brew, the drafter of the impact statement—in-
formed his superiors that a common corridor analysis had not,
but should have been, undertaken, and that if it had been un-
dertaken it would have undoubtedly disclosed that “the joint
oil and gas trans-Canada corridor is clearly to be preferred
on environmental grounds.” Ad. Rec. 2.15.

™ See p. 10 n. 5, supra.

17

that will materially alter the balance of economic,
environmental, and other factors bearing on the Ca-
nadian alternative. Indeed, a number of recent de-
velopments—summarized in the appendix to this
brief—may have already materially altered that bal-
ance.*

b. Equally important is the court’s awareness that
the terms and conditions of any legislation passed by
Congress will be directly germane to any NEPA
analysis. This would be true even if Congress were
merely to remove the current Mineral Leasing Act
width limitation. For example, one of the principal
bills now under consideration (S. 1081, sponsored by
Senator Jackson) would make “common corridors”

** The developments cited in the appendix to this brief—
especially the continuing initiatives of private industry and
the Canadian Government concerning the Canadian alterna-
tive—demonstrate the transparency of Alaska’s claim that
“the Canadian alternative is not a real one.” Ala. Pet. 30.

Nevertheless, the continuing dispute among the parties over
such basic underlying matters—particularly regarding the
data available and the efforts that the Interior Department
has undertaken to develop, collect, and analyze data that would
contribute to an informed assessment of the Canadian alter-
native—lends support to the court of appeals’ conclusion that
the district court did not perform its responsibility to refine
the record and place the legal issues in an appropriate con-
text for judicial review. Gov. Pet. App. A 91a-93a. Certainly,
when the parties presented their case to the district court, no
one anticipated that the court would issue only the broad legal
conclusions that accompany its judgment. See Gov. Pet. App.
D 179a-182a.

iy

lic lands. Such a requirement would constitute a new
and independent factor to be considered in any review
of the multiple rights-of-way now contemplated for

18
the preferred method for rights-of-way across pub-
North Slope oil and natural gas. |

!
There is, moreover, the distinct possibility that
Congress will itself decide the “vital national ques-
tions” relating to the “routing and construction of a |
pipeline for Alaska’s North Slope.” Opening State-
ment by the Chairman, Senator Jackson, Hearings Be-
fore the Senate Interior and Insular Affairs Com-
mittee on Pending Legislation to Establish a Federal
Policy Concerning the Granting of Rights-of-Way
Across Federal Lands, 93d Cong., 1st Sess. 3 (March
9, 1973). At least four bills have been introduced |
that would produce this result.* Enactment of such
legislation would presumably moot entirely the NEPA
issues in the case.

The critical point is that Congress will, by adopt-
ing or refusing to adopt any of several pending leg-
islative solutions, dispose of each of the policy issues
—including the basic issue of whether the energy
needs of the country and/or the revenue needs of
the State of Alaska require immediate construction of

28S. 970, S. 993, H.R. 4707, H.R. 5750. See pages 7-8, supra.

BLEED THROUGH POOR COPY

. - &
2 Sif eR ERNIE AY ISIE EIT EIT CIT

——

20 i
CONCLUSION

The sooner this phase of the litigation is termin-
ated, the sooner will the issues be confronted square- |
ly by Congress. The public interest, including that
of sound judicial administration, will best be served
by denial of the petitions for a writ of certiorari.

Respectfully submitted,

DENNIS M. FLANNERY

JOHN F. DIENELT

THOMAS B. STOEL, JR.
1751 N Street, N.W.
Washington, D.C. 20036

Of Counsel: Attorneys for The Wilderness
Society, Environmental Defense
Victor H. KRAMER Fund, Inc., and Friends of the
600 New Jersey Ave., N.W. Earth
Washington, D.C. }
ELM EDWARD BERLIN
eae Washington, D.C. 20036

Washington, D.C.
Attorney for David Anderson and
JAMES W. MOORMAN : sien :
$11 California Street Canadian Wildlife Federation
San Francisco, California Tyoywas F. HOGAN
WARREN W. MATTHEWS, JB.
THEODORE R. DUNN
100 South Washington Street
Rockville, Maryland 20850

Attorneys for The Cordova
District Fisheries Union

A-1
APPENDIX OF DEVELOPMENTS

1, The fuel (oil and natural gas) shortages ex-
perienced in the Midwest and East this past winter
would seem to require a reevaluation by Secretary
Morton of his earlier conclusion that the West Coast
(which experienced no such shortages) is the “prefer-
able primary market for North Slope oil.” Gov. Pet.
App. C 163a. The Midwest and East would be served
by the Canadian alternative; their oil shortages will
not be helped by the Alaska Pipeline.

2. Canadian Arctic Gas Study, Limited, a group of
Canadian and United States-owned companies (in-
cluding several of the companies proposing the Alas-
ka Pipeline) announced on February 27, 1973, that
it will file applications with United States and Cana-
dian Government agencies by late this summer for
permission to build a natural gas pipeline from Prud-
hoe Bay through the Mackenzie Valley. (Press Re- ~
lease, February 27, 1973).

3. Mackenzie Valley Pipe Line Research, Limited, ~
made up of several Canadian and United States
owned-companies (including companies owned by
firms active on the North Slope), issued, on January
22, 1973, a report summarizing its studies to date.
The report concluded that a trans-Alaska-Canada oil —
pipeline is environmentally and economically feasible
and could be completed in a substantially shorter time
frame and at a substantially lower cost than the esti- :
mates previously cited by the Interior Department. ~~
(Press Release, January 22, 1973). ‘

a

A-2

4. In addition to these private initiatives, studies
sponsored by the Canadian Government, referred to
by the court of appeals (Gov. Pet. App. A, 91a-92a),
have continued in the year since Secretary Morton
announced his decision, A comprehensive description
of the studies already completed and the anticipated
publication date of those nearing completion are con-
tained in Minutes of Proceedings and Evidence of the
Standing Committee on Indian Affairs and Northern
Development, Issue No. 4, Canadian House of Com-
mons, 29th Parliament, 1st Sess., March 1, 1973. |

5. On March 18, 1973, in an interview on national
television in Canada, Canadian Minister of Energy,
Mines, and Resources, Donald Macdonald, strongly
reasserted his Government’s consistent position * in fa-
vor of construction of a common corridor for oil and
gas pipelines through the Canadian Arctic: “If the |
Americans came back and said to us, look, we’ve had

1 From the earliest days of the Interior Department’s con-
sideration of the Alaska Pipeline proposal, the Canadian
Government has consistently indicated that it favors construc-
tion of oil and gas pipelines through the Canadian Arctic. Ad.
Rec. 4.3.2.1, Vol. IV, Tab I, Exs. 1-16. The reasons it has cited
for this position are (a) its desire to avoid serious environ-
mental and economic damage to the coastal waters of British
Columbia that will be caused by the marine leg of the Alaska
Pipeline proposal; (b) its realization that environmental dis-
turbance will occur in any event from construction of a gas
pipeline across the Canadian Arctic; and (c) its desire to
open up Canada’s own Arctic oil and gas resources. See, ¢.g.,
letter from Minister Macdonald to Secretary Morton, May 4,
1972 (Plaintiffs’ Ex. 1 to the Deposition of Deputy Under-
secretary Carter).

A-3

second thoughts on that Trans-Alaska Pipeline, we
would like to take you up on your willingness to
entertain an application about the oil line through
the Mackenzie Route, I think the interests of the
West Coast [of Canada] would dictate that he
Government of Canada should enable that kind of ap-
plication to go ahead.” Transcript of Interview 5.
In the same interview, Minister Macdonald renewed
the offer of the Canadian Government, made earlier
on April 19, 1972 (Ad. Rec, 4.3.2.1, Vol. IV, Tab I,
Ex. 26), to supply additional amounts of secure oil
to the United States for the period pending comple-
tion of the Canadian alternative. Transcript of In-
terview 4-5.

6. A recently released study by the National Oce-
anic and Atmospheric Administration (NOAA)—
MARMAP Red Flag Report (No. 1), Fish Larvae
Found In Environment Contaminated With Oil and
Plastic, January 18, 1973—indicates that the Gov-
ernment has heretofore grossly understated both the
extent, pervasiveness, and seriousness of oil pollution
in the world’s ocean waters. The Interior Depart-
ment’s own experts have concluded that over the life
of the Alaska Pipeline as much as 140,000 barrels of
oil may be spilled in an average year into the ocean

See ae

Ped EASES

* The study was the subject of editorial comment in The f
New York Times (February 18, 1973) and The Washington
Evening Star (February 16, 1973) and extensive comment in
The Washington Post (February 13, 1973) and the CBS F
Evening News (February 12, 1973).

I

A-4

waters of the Northeast Pacific (along the coasts
of the United States and Canada) as a result of cas-
ualties involving tankers carrying North Slope oil.
Final Impact Statement, vol. 4, p. 474. The Canadian
alternative would, of course, require no marine trans-
port of North Slope oil.

De ee Be eae ke aoe eS SOC aT ee eee er or Ee a eee eee Le oe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0041%3A2. Public record. Not legal advice.