Amicus Curiae Brief — United Ass'n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Reno

Supreme Court, U.S.

2 ee we:

LJ

No. 95-1662 JUN 17 B39 !

* —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPE FITTING INDUSTRY, AFL-

CIO; and UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO,

Petitioners,

Vv.

JANET RENO, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE NATURAL RESOURCES DEFENSE

COUNCIL, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

SARAH CHASIS ALBERT H. MEYERHOFF

40 W. 20th Street (Counsel of Record)

New York, NY 10011 71 Stevenson Street

(212) 727-2700 Suite 1825

San Francisco, CA 94105

(415) 777-0220

Counsel for Amicus Curiae

SATIS GOERS BWR" RRR HF LORE OSE MANE NERO ARH

WILSON - Erzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

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Be eI i ase steecinesniscaigncignecnpeanemenieneliiatesenteneaneainioed

ARGUMENT ........... LAT Se ELINOR AMO 2 Ra TE, TU

I. THE OUTER CONTINENTAL SHELF AND

II.

III.

RELATED MARINE AND COASTAL ECO-

SYSTEMS ARE IMPORTANT FRAGILE RE-

SOURCES AT RISK OF SERIOUS HARM

FROM A BLOWOUT OR OTHER OIL PLAT-

SPE SIRI INE citi shins onion cinets fp aterce eaiesianinicn

CONGRESS RECOGNIZED THE IMPOR-

TANCE OF THE OCS ENVIRONMENT AND

ACTED EXPRESSLY TO PROTECT IT IN

THE 1978 OCSLA AMENDMENTS .....................

THE COURT BELOW FAILED TO EXPLAIN

WHY CONGRESS WOULD ACT SUB SILEN-

TIO TO INCREASE THE THREAT OF EN-

VIRONMENTAL HARM ON THE OCS WHILE

AT THE SAME TIME ACTING EXPRESSLY

TO PROTECT THAT ENVIRONMENT ............

I sa hcsncnixsicamcetntcbnbains siashahaipelanhibinehisstindibteies

il

TABLE OF AUTHORITIES

STATUTES Page

8 USC. § 19GE ta) (1). CR © ee oc eee 10

43 UB. 6 Te eee ees 9

OB UTR. ee lc ee 9

43 UB. BR betas eee 9

4B UBS Bieter tea ee ae 9

LEGISLATIVE MATERIALS

H.R. Rep. No. 590, 95th Cong., Ist Sess. (1977)... 9

Vol. 124, Cong. Record, 95th Cong., 2d Sess. 26779

Oo es Se. | | Rin eo ED 9

Paw. Ei. BG-7E, Be Wei Oe esheets 7

MISCELLANEOUS

D. Brooks, America Looks to the Sea: Ocean Use

and the National Interest (1984) .............0.....-.-..- 7,8

L. Clarke, “Oil Spill Fantasies,” in Atlantic (Nov.

RODD iscciccoeccnededSeaspitcnese a ee ae i

Exxon Valdez Oil Spill Trustee Council, Exxon

Valdez Oil Spill Restoration Plan: Draft Update

on Injured Resources & Services (April 1996) .... 6

Griffiths, et al., “Long-Term Effects of Crude Oil

on Uptake and Respiration of Glucose and Glu-

tamate in Arctic and Subarctic Marine Sedi-

ments,” in Applied and Environmental Micro-

biology (November 1961) 2c... 6

D. Holing, Coastal Alert: Ecosystems, Energy,

and Offshore Oil Drilling (1990)............ SRRAREE 4,5, 6,7

E. Kaplan, “California: Threatening the Golden

Shore,” in The Politics of Offshore Oil (J. Gold-

S|; | Eamonn DNR Rass Chemie =u N EE ee Te AD 3, 4,8

W. Marx, Oceans: Our Last Resource (1981) ......... 5

J. Teal and R. Horwarth, “Oil Spill Studies: A Re-

view of Ecological Effects, in Environmental

Management, Vol. 8, No. 1 (1984) -.......00.0...o. 5

United States Congress, Office of Technology As-

sessment, Coping with an Oiled Sea: Back-

SPO, FI CIE oscar cenbcnrndigar eases cbintiales 7

iii

TABLE OF AUTHORITIES—Continued

United States Dept. of Commerce, National Oceanic

and Atmospheric Admin., Summary of Effects

of the Exxon Valdez Spill on Natural Resources

and Archeological Resources (March 1991)...

United States Dept. of Interior, Minerals Manage-

ment Service, Accidents Associated with Oil and

Gas Operations: Outer Continental Shelf 1956-

FE IEE a arkcicinicin Sixcahtadsbeotechenighipenrniatedanitonsinsess

United States Dept. of Interior, Minerals Manage-

ment Service, Operations and Safety Manage-

ment, Offshore Stats, Second Quarter 1995........

United States Dept. of Interior, Minerals Manage-

ment Service, Outer Continental Shelf Oil & Gas

Leasing Program: 1997-2002, Draft Environ-

Page

no) |

mental Impact Statement (1996) -.................. 3, 4, 5, 6, 7

United States Dept. of Interior, Minerals Manage-

ment Service, Proposed Outer Continental Shelf

Oil & Gas Leasing Program, 1997-2002: Deci-

sion Document (1996) .................-. Rad Soi es

In THE

Suprene Court of the United States

OCTOBER TERM, 1995

No. 95-1662

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPE FITTING INDUSTRY, AFL-

CIO; and UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO,

; Petitioners,

JANET RENO, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE NATURAL RESOURCES DEFENSE

COUNCIL, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTERESTS OF AMICUS

The Natural Resources Defense Council (“NRDC’”),

a non-profit corporation, has offices in New York, Wash-

ington, D.C., San Francisco and Los Angeles, and a

national membership of more than 250,000. NRDC is

dedicated to the preservation, enhancement and defense

of the human environment and natural resources of the

United States. In carrying out these objectives, NRDC

has undertaken efforts, inter alia, to obtain clean air,

2

clean water and toxic substances control, including ac-

tivities to enSUre effective environmental protection in the

coastal and outer Continental Shelf areas. These efforts

have included, for the past 25 years, pressing for effec-

tive coastal protection legislation, issuing numerous

reports and studies, monitoring government agencies and

industry and, where necessary, initiating appropriate liti-

gation, such as in the case of the Exxon Valdez oil spill.

NRDC and its members have a substantial interest in the

issues presented in this case and file this brief amicus

curiae with the consent of the parties as provided for in

the Rules of this Court.

INTRODUCTION

At first glance, the decision of the Court of Appeals

seems to present solely an issue of immigration law turn-

ing on the interplay between United States immigration

laws and the Outer Continental Shelf Lands Act

(“OCSLA”). On closer analysis, however, its holding

actually presents a significant question of national en-

vironmental protection: whether it is lawful to permit

unregulated access to environmentally sensitive oil and

gas production facilities on the outer Continental Shelf

(“OCS”) by persons whom Congress has deemed too

dangerous to be allowed within the continental United

States because they present a risk of terrorism or sabotage.

In light of the ecological importance of the OCS and our

nation’s coasts—and the serious environmental conse-

quences that would result from a single blowout or other

oil platform disaster—this Court should grant certiorari

to resolve the important issues presented by the decision

below.

3

ARGUMENT

I. THE OUTER CONTINENTAL SHELF AND RE-

LATED MARINE AND COASTAL ECOSYSTEMS

ARE IMPORTANT FRAGILE RESOURCES AT

RISK OF SERIOUS HARM FROM A BLOWOUT OR

OTHER OIL PLATFORM DISASTER

A. The OCS and the marine world above it cover an

area almost one-tenth the size of the continental United

States, and are of immense ecological importance. OCS

waters support complex communities of sea life and nu-

merous endangered species. The Gulf of Mexico region

alone harbors 28 species of marine mammals, including

17 species of whales; countless marine bird species, eight

of which are threatened or endangered; an enormous

diversity of fish resources; and five species of sea turtles.

United States Dept. of Interior, Minerals Management

Service, Outer Continental Shelf Oil & Gas Leasing Pro-

gram: 1997-2002, Draft Environmental Impact State-

ment, Vol. I, at pp. I-13 - II[-29 (1996) (“1996 State-

ment”). OCS waters off Alaska contain some of the

largest salmon runs in the world. /d. at III-101. And, in

the Santa Barbara Channel off California, “most of the

endangered whales of the world either live or migrate

through the channel area. Gray, sei, sperm. blue, fin,

humpback, and pacific right whales have all been seen

.... E. Kaplan, “California: Threatening the Golden

Shore,” in The Politics of Offshore Oil 10 (J. Goldstein

ed. 1982) (“Politics of Offshore Oil”). See also 1996

Statement, Vol. I, at p. ILI-159 - III-169.

The sea floor itself is blanketed with hundreds of spe-

cies of mollusks, crustaceans, worms, sponges, echino-

derms and other fauna, as well as seagrasses and algae—

benthos critical to the biological infrastructure of the

waters above. See 1996 Statement, Vol. I, at pp. III-34 -

Il1-36. Benthic habitats off Florida and other gulf states

contain “live bottoms,” large areas completely covered

with diverse epibiota (id. at p. III-34); off Alaska, vast

4

“boulder patches” and nutrient-rich kelp beds are home

to soft corral, sea anemones, jellyfish and many other

organisms. /d. at pp. III-105 - I[I-106.

Ecosystems directly related to the OCS—coastal areas

and islands—are no less vital. Bristol Bay, Alaska sup-

ports 870,000 fur seals, 100,000 sea lions, 50,000 Pa-

cific Walrus and 20,000 sea otters. D. Holing, Coastal

Alert: Ecosystems, Energy, and Offshore Oil Drilling 6

(1990) (“Coastal Alert”). Over 3 million migratory

birds travel the mid-Atlantic coastal flyway each year;

and a single area along the New Jersey shore is one of

the most important regions in the Western Hemisphere

for migratory shorebirds. /d. at 3-4. The Central Cali-

fornia coastal region contains a diverse array of seals

and sea lions and seven endangered species of whales,

and is home to the endangered California sea otter. 1996

Statement, Vol. I, at p. 159; Coastal Alert at 5-6. San

Miguel Island in the Santa Barbara Channel maintains the

world’s largest and most diverse pinniped community:

California sea lions, harbor seals, northern fur seals,

northern elephant seals, and Stellar sea lions all

breed on the islands, and the endangered Guadalupe

fur seal has been known to haul out at Point Ben-

nett. Nine species of marine birds breed in colonies

on several of the islands. Over 168 species of ma-

rine birds inhabit the channel and coast. The Santa

Barbara island chain is also a major stopping place

for migratory birds. Seven rare and endangered

birds rely on the channel’s habitats, including the

least tern and two varieties of rails.

Politics of Offshore Oil at 9-10.

Healthy coastal and marine ecosystems, in turn, are

crucial to our nation’s economic well-being. Fisheries in

the Gulf of Mexico landed nearly 1.7 billion pounds of

fish worth over $630 million in 1993. 1996 Statement,

Vol. J, at p. IMf-52. The salmon fishery in Bristol Bay,

5

Alaska is valued in excess of $250 million annually and

employs an estimated 10,000 people (Coastal Alert at

3, 6); Bristol Bay, the Bering Straits and other Alaskan

OCS areas also produce substantial numbers of Red King

Crabs and other highly valuable shellfish. 1996 Statement,

Vol. I, at p. III-104. See also W. Marx, Oceans: Our Last

Resource 297, App. 1 (1981). And, tourists spent $27

billion in California’s coastal communities in 1988 alone,

accounting for 86 percent of the state’s total tourist reve-

nue. Coastal Alert at 4.

B. There are now more than 3,800 oil and gas plat-

forms on the OCS. Offshore oil and gas production op-

erations currently produce approximately 400 million bar-

rels of crude oil and 5 trillion cubic feet of natural gas

each year. United States Dept. of the Interior, Minerals

Management Service, Operations and Safety Management,

Offshore Stats, Second Quarter 1995, at pp. 2-3. The

operations have increased dramatically over the past 40

years, and the U.S. Minerals Management Service plans

to hold additional OCS oil and gas lease sales over the

next five years, entitling the buyers to exploration and pro-

duction rights on vast expanses of the OCS off Alaska

and in the Gulf of Mexico. United States Dept. of the

Interior, Minerals Management Service, Proposed Outer

Continental shelf Oil & Gas Leasing Program, 1997-

2002: Decision Document, pp. 4-7 (1996).

C. Petroleum hydrocarbons are highly toxic to a wide

variety of marine organisms, even at very low concentra-

tions." According to the Department of Interior, 36 signifi-

1In addition to direct lethal effects, petroleum hydrocarbons can

exert sublethal effects, including reduced growth, altered feeding

behavior and lower reproductive success. Oil spills have resulted

in massive fishkills, mortality of fish eggs and larvae, spawning

inhibition, slower fish growth rates and declines in fish catches

(see J. Teal and R. Horwarth, “Oil Spill Studies: A Review of

Ecological Effects, in Environmental Management, Vol. 8, No. 1,

at pp. 35-36 (1984) ); decimation of substantial numbers of plants,

6

cant spills which involved more than 15.5 million gallons

occurred between 1964 and 1990 as a result of oil and

gas operations on the OCS. United States Dept. of In-

terior, Minerals Management Service, Accidents Associ-

ated with Oil and Gas Operations: Outer Continental

Shelf 1956-1990, p. 7 (1992). In 1969, after a blowout

at an oil platform in the Santa Barbara Channel off the

California Coast, oil gushed for 12 days, and 50,000 to

70,000 barrels of oil spread over 660 square miles. Over

150 miles of coastline were fouled and thousands of birds,

mammals and fish were killed. Coastal Alert at 17-18.

More recently, the 1989 Exxon Valdez tanker accident

in Alaska’s Prince William Sound demonstrated the dis-

astrous effects of a massive oil spill. For example:

* Approximately 1,000 sea otters were killed out-

right, and abnormally high mortality rates among

otters remained for at least 2 years in heavily

oiled areas.

* Tens of thousands of birds, including 250 bald

eagles, died immediately, and populations of bird

species in certain areas declined up to 40% after

the spill.

* Extremely important fish populations, including

pacific herring and pink salmon populations, suf-

fered injuries such as increased rates of egg mor-

tality and larval deformities, reduced growth rates

among juveniles, and possible genetic damage.

Exxon Valdez Oi! Spill Trustee Council, Exxon Valdez Oil

Spill Restoration Plan: Draft Update on Injured Resources

& Services, pp. 4-15 (April 1996). See also United States

marine mammals and birds that live in or frequent the shore zone

(1996 Statement, Vol. I, at pp. IV-60-IV-62); and, on the sea

floor, significant long-term reduction of bacterial biomass, a staple

of benthic organisms at the base of the marine food chain. See,

e.g., Griffiths, et al., “Long-Term Effects of Crude Oil on Uptake

and Respiration of Glucose and Glutamate in Arctic and Sub-

arctic Marine Sediments,” in Applied and Environmental Micro-

biology (November 1981).

7

Dept. of Commerce, National Oceanic and Atmospheric

Admin., Summary of Effects of the Exxon Valdex Spill on

Natural Resources and Archeological Resources (March

1991).

Blowouts and spills are that much more dangerous be-

cause, for the most part, clean-up efforts simply do not

work. Oil spill containment and clean-up capability is

extremely limited, typically resulting in only 10% to 15%

recovery of spilled oil. United States Congress, Office of

Technology Assessment, Coping with an Oiled Sea: Back-

ground Paper, p. 1 (1990); 1996 Statement, Vol. II,

p. C-14. See also L. Clarke, “Oil Spill Fantasies,” in

Atlantic (Nov. 1990) (oil spill containment and cleanup

technology demonstrably inadequate ).

The Exxon Valdez spill proved how difficult it is to

clean up spilled oil. The slick from the 257,000 barrel

(or 10.8 million gallon) spill contaminated 1,244 miles

of shoreline. A 6-month clean-up effort, waged by 11,000

people, 1,000 vessels, and more than 70 aircraft, and at

a cost of more than $1.9 billion, recovered only 32,500

barrels of oil. Approximately 77,100 evaporated, leaving

147,000 barrels (or 6.17 million gallons) of oil in the

environment. Coastal Alert at 19.

II. CONGRESS RECOGNIZED THE IMPORTANCE OF

THE OCS ENVIRONMENT AND ACTED EX-

PRESSLY TO PROTECT IT IN THE 1978 OCSLA

AMENDMENTS

Congress recognized the environmental importance of

the OCS, and the danger that oil and gas development

presented to it, when it enacted the 1978 OCSLA Amend-

ments (Pub. L. 95-372, 92 Stat. 635) (“1978 OCSLA

Amendments”). The amendments in large part were a

response to the perceived “crisis” over global oil supplies

(see D. Brooks, America Looks to the Sea: Ocean Use

and the National Interest 102-03 (1984) (“America Looks

8

to the Sea”)), but Congress’ commitment to encourage oil

and gas production on the OCS was coupled with its strong

intent to protect the environment from possible adverse

effects of such development.

The Santa Barbara blowout had national repre-

cussions for the federal OCS program. . . . Instantly

the people of Santa Barbara became politically ac-

tive to fight the . . . destruction of their environ-

- ment, and the repercussions . . . [were] felt in the

passage of . . . the OCS Land Act amendments in

1978.

. . . One of the key elements of the new strategy

for energy self-sufficiency was . . . rapidly expanded

OCS development that was-to be conducted in a

safe environmental system of checks and balances

through amending the OCS Land Act of 1953. Af-

ter four years of national debate the OCSLA amend-

ments were passed in 1978 creating a careful process

of environmental impact analysis at every step of the

OCS development process.

The OCSLA amendments called for a consider-

ably expanded OCS [oil and gas development] pro-

gram .... At the same time they included fairly

stringent environmental safeguards... .

The Politics of Offshore Oil at 7. See also America

Looks to the Sea at 12 (major issue faced by Congress

in its efforts to expand OCS oil and gas production was

“the adverse environmental . . . impacts feared by

coastal states from accelerated OCS activity, especially

in the so-called ‘frontier’ areas where such activity had

not started yet’).

Thus, upon introduction of the bill on the House floor,

Representative John Murphy, Chairman of the House

Select Committee on the Outer Continental Shelf, noted

that “[rjecent events have defailed the need for thfe]

bill: offshore oil spills, here. off France, and in the North

Sea [and] reports of shut-in wells.” Vol. 124, Cong. Rec-

9

ord, 95th Cong., 2d Sess. 26779 (August 17, 1978). He

therefore made it clear that the 1978 OCSLA Amend-

ments would “make a profound contribution.to the Na-

tion’s energy crisis and do so in a manner that takes into

account . . . the protection of our marine and coastal

environment.” Id. (emphasis added). See also H.R. Rep.

No. 590, 95th Cong., Ist Sess. 107-10 (1977), reprinted

in 1978 U.S. Code Cong. & Admin. News 1514-16 (de-

scribing series of oil spills and other environmental “cata-

strophes” on QCS).

Accordingly, the 1978 OCSLA Amendments included

express declarations of Congress’ intent to “minimize the

likelihood of blowouts, loss of well control, fires, spill-

ages . . . or other occurrences which may cause damage

to the environment or to property, or endanger life or

health” (43 U.S.C. § 1332(6)), and were replete with

provisions directed at protection of the OCS environment.

See, e.g., 43 U.S.C. § 1334 (mandating regulations to

give Interior Secretary authority to suspend or prohibit

leases “if there is a threat of serious, irreparable, or im-

mediate harm or damage to life (including fish and other

aquatic life) . . . or to the marine, coastal. or human

environment”); 43 U.S.C. § 1346 (requiring Interior Sec-

retary to study areas included in leases “to establish in-

formation needed for assessment and management of en-

vironmental impacts on the human, marine, and coastal

environments of the outer Continental Shelf and the

coastal areas which might be affected by oil and gas

development”); 43 U.S.C. § 1348 (providing for strict

enforcement of environmental regulations on the OCS).

The decision of the court below not only entirely ig-

nores this central congressional purpose but would, if

left undisturbed, fundamentally undermine it.

10

Ill. THE COURT BELOW FAILED TO EXPLAIN WHY

CONGRESS WOULD ACT SUB SILENTIO TO IN-

CREASE THE THREAT OF ENVIRONMENTAL

HARM ON THE OCS WHILE AT THE SAME TIME

ACTING EXPRESSLY TO PROTECT THAT EN-

VIRONMENT

As a result of the decision below, nonimmigrant aliens

seeking to enter the OCS are exempt from the entry re-

Strictions in the immigration laws, including provisions

that bar aliens who are terrorists, saboteurs or known

criminals. Congress has barred such persons from entry

into the continental United States because of the danger

they pose. See 8 U.S.C. § 1182(a)(1), (2) & (3). Yet,

the Court of Appeals attributed to Congress an unstated

intent that those same individuals be permitted to enter

oil platforms and other structures found in some of the

nation’s most environmentally sensitive areas—structures

otherwise subject to the strictest forms of environmental

contro!l—-without any restriction whatsoever.

A single blowout or other oil platform disaster could

have nightmarish consequences for the delicate ecosys-

tems of the OCS and shoreward areas and the biological

communities that thrive within them. In terms of clearly

stated congressional policy on the OCS environment, then.

the decision below is utterly mystifying. Why would Con-

gress, acting to increase environmental safeguards on the

OCS as it established a broad framework for oil and gas

development, at the same time remove sub silentio immi-

gration restrictions, thereby threatening environmental

safety on the OCS?

It is this inherent contradiction in the reasoning of the

court below that renders its decision fundamentally

flawed, requiring this Court’s independent review. And,

as demonstrated in Chief Judge Edwards’ strong dissent

and in the argument presented by the petitioners before

this Court, the Ccurt of Appeals reached its precarious

result by straying from the plain language of the statute

1]

involved and from basic principles of statutory construc-

tion as well.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

The decision of the court below has incorrectly placed

some of our nation’s most pristine and valuable natural

resources in serious jeopardy. Persons who, due to the

risks they present, have been barred from any entry into

the continental United States nevertheless have been al-

lowed to work on some of the most environmentally sen-

Sive facilities in existence. If this case involved such

workers’ operation of nuclear power plants in California

Or transportation of toxic substances in New Jersey, the

correct result would be self-evident; it should be, likewise.

for the equally important work at issue here.

Respectfully submitted,

SARAH CHASIS ALBERT H. MEYERHOFF

40 W. 20th Street (Counsel of Record)

New York, NY 10011 71 Stevenson Street

(212) 727-2700 Suite 1825

San Francisco, CA 94105

(415) 777-0220

Counsel for Amicus Curiae