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NATURAL RESOURCES DEFENSE COUNCIL v. MORTON

February 1, 1972

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
Rogers C. B. MORTON, in his official capacity as Secretary of the Department of the Interior, et al., Defendants



The opinion of the court was delivered by: RICHEY

OPINION AND ORDER

This case came before the Court on the defendants' Motion to Dissolve the Preliminary Injunction, which was filed with the Court on January 17, 1972. Before the Court sets forth its ruling with respect to the pending motion, it is believed that a brief discussion of the litigation to date would be helpful.

 On October 28, 1971, the Department of the Interior filed the Environmental Impact Statement with respect to its proposal under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1970), for the oil and gas general lease sale to some 80 tracts of submerged lands off the eastern Louisiana coast. Opening of bids for the leases was scheduled for December 21, 1971, and the plaintiffs brought this action on November 1, 1971, to enjoin the proposed sale. This Court held a hearing on the plaintiffs' Motion for a Preliminary Injunction on December 16, 1971, and granted said motion, thus enjoining the sale of these leases pending compliance with the National Environmental Policy Act, 42 U.S.C. § 4331 et seq. (1970). The Government appealed, and filed a motion in the United States Court of Appeals for the District of Columbia asking for summary reversal and an immediate hearing on this Court's actions. The Court of Appeals granted the Government's request for an immediate hearing, and on December 20, 1971, heard arguments and issued an order permitting the bids to be received on condition that they remain unopened pending further order of that court. On January 13, 1972, the Court of Appeals denied the Government's Motion for Summary Reversal, stating:

 
"Informed by our judgment that discussion of alternatives may be required even though the action required lies outside the Interior Department, the Secretary will, we have no doubt, be able without undue delay to provide the kind of reasonable discussion of alternatives and their environmental consequences that Congress contemplated." Slip Op. at 20.

 The Court is faced with one primary issue: Should the preliminary injunction issued on December 16, 1971, be dissolved? However, before the Court can make this determination, it must first decide whether the Addendum to the Final Environmental Impact Statement filed with the Court on January 17, 1972, fully complies with Section 4332(2) (C) of NEPA and the recommendations of the Court of Appeals in its decision of January 13, 1972. Section 4332(2) (C) provides in pertinent part that:

 
"(2) all agencies of the Federal Government shall-
 
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-
 
(i) the environmental impact of the proposed action,
 
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
 
(iii) alternatives to the proposed action,
 
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
 
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
 
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;"

 The Court believes that Section 4332(2) (C) of NEPA has not been complied with, since the addendum, which is essentially a draft statement, has not been submitted for comment and review by any other Federal agencies, nor have the comments and views of the "appropriate Federal, State, and local agencies" been solicited with regard to this addendum. The Government argues that the addendum is a final statement, and furthermore that the waiver executed by the Council on Environmental Quality (CEQ) removing the usual 30-day delay period before taking the proposed action as required by Section 10(b) of the Council's Guidelines, therefore the preliminary injunction should be dissolved. First, the Court does not feel that the addendum is a final statement. As was explained by Government counsel, the normal procedure is to prepare the Final Impact Statement and to circulate this statement for comment and review by appropriate Federal, State, Local and other interested agencies. In the case at bar the original Final Impact Statement was circulated for comment and review, however, this statement did not contain the proper discussion of the alternatives as is required by NEPA. Following the decision of the Court of Appeals, the addendum, which included the required discussion of alternatives, was prepared by the Department of Interior. This addendum has to date never been circulated to other Federal agencies, nor has it been sent to the appropriate State and local agencies or ...


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