Opposition Brief — Morton v. Wilderness Society

Rocers 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

DENNIS M. FLANNERY

JOHN F. DIENELT

THomaAs B. STOEL, Jr.

1751 N Street, N.W.

Washington, D.C. 20036

Attorneys for The Wilderness

Of Counsel: Society, fn Be osahese Defense

Victor H. KRAMER Fund, Inc., and Friends of the

600 New Jersey Ave., N.W. Earth

Washington, DC. EDWARD BERLIN

Pewir ELMAN 1712 N Street, N.W.

1820 19th Street, N.W. Washington, D.C. 20086

Washington, D.C. Attorney for David Anderson and

JaMES W. MooRMAN

$11 California Street

San Francisco, California

Rockville,

Attorneys for The Cordova

- Re 7-6002 - WASHINGTON, D. C. 20001

INDEX

Page

ARES SER Ce 1

REASONS WHY THE WRIT SHOULD NOT BE

GRANTED ............. of 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

SRR EN ET 20

CITATIONS

Constitution:

U.S. Const. art. IV, § 3, cl. 2 areas 8

Cases:

Poe Vv. Ullman, 367 U.S. 497 (1961) 2.0000... 10

Rules of Court:

rr a __scentensannstoninunaabinnsesenes 9

Pn cre re oe 10

Statutes:

Alaska Native Claims Settlement Act, 85 Stat.

8s LORE ENE a ee een 7

Mineral Leasing Act of 1920, Section 28, 30 U. S. C.

(AB Sa se SA 18 ee Aan passim

National Environmental Policy Act of 1969, 42

ES SEA ES 3, 9, 16,17

Legislative Material:

H.R. Rep. 92-746, 92d Cong., 1st Sess. (1971) _..... 7

II

INDEX—Continued

Hearings, Senate Committee on Interior and In-

sular Affairs, 92d Cong., 1st Sess. (April 29,

BED ssclisciceuendens

Hearings, Senate Committees on Public Works and

Interior and Insular Affairs, 92d Cong., 2d

SLA Sie IS En eee eee eo

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., Ist Sess. (1973) —..................

S. 970, S. 993, S. 1040, S. 1041, S. 1056, S. 1081,

H.R. 4651, H.R. 4707, and H.R. 5750, 93d Cong.,

Page

13

13

1st Sess. (1973) . 7-8, 18

A ARSE SUR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

Nos. 72-1227, 1228, 1229

ROGERS C. B. MORTON, SECRETARY OF THE INTERIOR,

ET AL.,

Petitioners,

V.

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

this position, respondents’ rely principally upon the

1 The principal respondents in the case are three environ-

mental organizations, The Wilderness Society, Environmental

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. |

_ See iw

LESTE LEE LER LOMO ELI LOOPS LGR GION EL TE SOSA HERS? PONE RTE TITS di ae

3

to increase congressional appropriations to needy

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.

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.” Id., at 122a.

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 Mineral Leasing Act issues, the present

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 sdministrative 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-

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 51a.’

2 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

"STL

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Vn ets PRR RACY a TABS

6

3. The decision of the court of appeals was not pe-

titioners’ first indication that the Mineral Leasing

Act stood as a threshold bar to the Alaska Pipeline.’

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-

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 ceurt’s conclusion—‘that this history [n]either 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 oil companies’ initial permit application

of June 6, 1969, their attorney Kenneth P. Fountain acknowl-

edged that:

“The 54’ ROW. [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.

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).

— seiee ruse Paneer 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, 1973).

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. |

Ta a i ee OM EEN RI RE LIMOET Sa

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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

ee ee ee ee

10

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 *

> 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 (bh) devoted nearly

all his efforts to the study of the proposal of the applicant

oil companies.

“IJ. 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.

“TV. Whether the Secretary’s decision was arbitrary and

capricious because it was based upon speculation regard-

ee SAS al

eo

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.

ing factors about which concrete information could have

been obtained.”

*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.

ee ee

5 eee nha el Ait ial ale

sae mR RE, :

12

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

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.’

7The 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

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 menticn 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:

“[TW]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:

“TA] 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 through 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

ee ae

15

spite this unambiguous eczrly 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

pipeline routes.” See Final Impact Statement, vol. 6, p.

A-42.

* Dr. Brew was the Interior Department geologist responsi-

ble for drafting the final impact statement.

0 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-

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

day before Secretary Morton announced his decision to ap-

CNIS RA NA TEAR TIB SL LOE TRAN IRN 8 mE A sth Tit MP _ 7 _ _ é

16

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

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 no:,

but should have been, undertaken, and that if it had been un-

dertaken it would have undoubtedly disclosed that “the joirt

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”

2 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 9la-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.

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18

the preferred method for rights-of-way across pub-

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

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

13S, 970, S. 993, H.R. 4707, H.R. 5750. See pages 7-8, supra.

19

the Alaska Pipeline “—that petitioners have urged

upon this Court as reasons for granting review.

1*The nation’s needs for energy and the effect of Alaskan

oil on alleviating those needs will undoubtedly be considered

by Congress in light of the fuel shortages of last winter which

occurred in the Midwest and East (where the Canadian alter-

native would deliver oil), not on the West Coast (to which

oil from an Alaska Pipeline would be shipped). See appendix,

infra.

The importance of the Alaska Pipeline to revenue for the

State of Alaska and the Alaskan natives will undoubtedly

be balanced by Congress against the energy needs of the Mid-

western and Eastern states. Congress can also be expected

to take cognizance of the Interior Department’s own finding

that “the amount of State revenue will not differ significantly

under either the trans-Alaska pipeline system or a Mackenzie

Valley pipeline system, assuming a 2 million barrel per day

throughput of Alaskan oil through either system.” I/”terior

Department’s Analysis of the Economic and Security Acpects

of the Trans-Alaska Pipeline, vol. I, p. 8.

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. E.

Washington, D.C. arth

EDWARD BERLIN

PHILIP ELMAN

1320 19th Street, N.W. 1712 N Street, N.W.

Washington, D.C. 20036

Washington, D.C.

Attorney for David Anderson and

JAMES W. MOORMAN Canadian Wildlife Federation

$11 California Street

San Francisco, California Tuomas F. HocGaAN

WARREN W. MATTHEWS, JR.

THEODORE R. DUNN

100 South Washington Street

Rockville, Maryland 20850

Attorneys for The Cordova

District Fisheries Union

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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-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, ist 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, leok, 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 1, 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, e.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, Ree, 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

ot the Alaska Pipeline as much as 140,000 barrels of

oil may be spilled in an average year into the ocean

*The study was the subject of editorial comment in The

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

Evening News (February 12, 1973).

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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.