This Court notes that the standard of review is governed by the Administrative Procedure Act, 5 U.S.C. § 706.
I. Federal Trust Responsibility
Plaintiffs allege that the Federal government has a trust responsibility to the Inupiats, that this trust responsibility requires the Federal government to protect the Inupiats' subsistence culture, that the trust responsibility must be held to exacting scrutiny, and that the Secretary has shirked his responsibility in the instant case. Defendants contend that either (1) no trust responsibility exists, or (2) any generalized trust responsibility that does exist has been fulfilled by the enactment of measures designed to mitigate the impact of the lease sale on the Inupiats.
A trust responsibility can only arise from a statute, treaty, or executive order. While treaties between Indian tribes and the Federal government have given rise to the notion of a generalized trust responsibility to Native Americans,
the underlying bases for the trust responsibility are the treaties themselves.
Defendants contend that no specific statute, treaty, or executive order creates a trust responsibility to the Inupiats, and that the Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C. § 1601 et seq. precludes the existence of a generalized trust responsibility.
Notwithstanding the ANSCA, a trust responsibility exists in the instant case. Every statute and treaty designed to protect animals or birds has a specific exemption for Native Alaskans who hunt the species for subsistence purposes.
These statutes have been construed as specifically imposing on the Federal government a trust responsibility to protect the Alaskan Natives' rights of subsistence hunting.
This interpretation is consistent with the legislative history underlying the enactment of those statutes.
The trust responsibility to the Alaskan Natives does not, however, transcend the statutes creating that responsibility. Rather, it serves three purposes, to wit: (1) it precludes the use of the environmental statutes to undermine the subsistence cultures,
(2) it requires the Secretary to be cognizant of the needs of the Inupiat culture, and (3) it demands of the Federal government (and thus the courts) rigorous application of the environmental statutes to protect the species necessary for the Inupiats' subsistence.
In the instant case, the environmental statutes are not being employed to the detriment of the Inupiats. Furthermore, the EIS alerted the Secretary to the impact of the lease sale and resulting activities on the Inupiat lifestyle. However, to the extent the Secretary has not complied with the Endangered Species Act, he has also shirked his trust responsibility to the Inupiats. Plaintiffs' ESA claims are discussed in Section III, infra.
II. National Environmental Policy Act
Plaintiffs argue that the Secretary has failed to fulfill his obligations under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). They contend that the Environmental Impact Statement (EIS) prepared in conjunction with the lease sale proposal does not satisfy the requirements of § 102(2)(C) of NEPA. That section requires, in connection with any proposed major federal action "significantly affecting the quality of the human environment," a detailed statement discussing among other things "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (and) (iii) alternatives to the proposed action."
Plaintiffs argue that the EIS prepared by DOI fails to consider certain impacts of the lease sale and fails to consider significant alternatives to the sale proposal.
NEPA's requirement of an adequate EIS is designed to insure that federal agencies consider the environmental consequences of proposed action at the time of decision-making. The EIS also serves to alert Congress and the public to those consequences.
Thus, the EIS must include a comprehensive discussion of all impacts of the proposal and of all reasonable alternatives to it. NEPA's requirements are essentially procedural.
They are designed to insure that decisions are fully informed and well considered.
The statute does not, however, mandate a particular result to the decision-making process. Although a decision must be made in light of all environmental consequences, NEPA does not require that an agency elevate environmental concerns over all others.
The statute does not preclude a decision that presents either the risk or certainty of serious environmental damage so long as the decision is not arbitrary and capricious.
In a NEPA case, the court's function is limited.
"The only role for a court is to insure that the agency has considered the environmental consequences," of the action being considered.
If the EIS has alerted the decision maker to those consequences so that he has taken a "hard look" at them, it satisfies the requirements of NEPA.
Moreover, although NEPA requires that the EIS alert the decision maker to both the consequences of a proposal and alternatives to it, the agency's responsibility under NEPA is guided by a rule of reason.
The decision of how much detail to include is one for the agency itself. The discussion need not be exhaustive so long as it provides "information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned."
The Court's role is to determine whether the EIS provides the decision maker with sufficient detail to make that reasoned choice. Thus an oversight on a peripheral issue provides no basis for overturning an administrative decision properly made after an otherwise exhaustive proceeding.
Additionally, although NEPA obligates an agency to seek out the environmental consequences of a proposal and consider every significant aspect of its environmental impact,
interested parties cannot complain about the treatment given their particular concerns unless they have alerted the agency to their contentions, so long as the agency has given reasonable consideration to all significant impacts.
It is within this framework that the Court must analyze Plaintiffs' challenges to the EIS prepared in conjunction with the Beaufort Sea lease sale.
A. Worst Case Analysis
It is undisputed that much is still unknown about the consequences of oil exploration and drilling in severe environments such as the Beaufort Sea. Little is known, for example, about the Bowhead whale and about the impact which exploration and drilling will have on the species.
NEPA requires that the "cost of uncertainty i. e., the costs of proceeding without more and better information" be considered in the decision-making process.
Current Council on Environmental Quality Regulations require the inclusion in the EIS of a worst case analysis where there are gaps in relevant information or scientific uncertainty.
No worst case analysis was required in the instant case, however, since the draft EIS was prepared before the effective date of those regulations.
Nevertheless, the Department of the Interior chose to include a worst case analysis as a means of alerting the decision maker to the "cost of uncertainty."
Plaintiffs challenge the adequacy of the worst case analysis included in the Beaufort Sea lease sale EIS. They argue that having chosen to include a worst case analysis, the Agency was obligated to prepare an accurate one so as not to mislead the decision maker. Plaintiffs argue that the worst case analysis contained in the EIS is seriously flawed and misled the decision maker in two ways. They contend that it ignores many areas of uncertainty while grossly underestimating the worst possible impacts in areas of uncertainty that it does address.
Plaintiffs argue that the worst case analysis is misleading because it discusses only potential impacts on the Bowhead and Gray whales while uncertainty also exists concerning the project's possible impact on a number of other species inhabiting the area. This argument is unpersuasive. In the absence of a regulation requiring a more complete worst case analysis, it was reasonable for the Department to limit its formal worst case analysis to the endangered species that are threatened by the lease sale activities. Other sections of the EIS deal with the project's potential impact on birds, fish and polar bears and alert the reader to gaps in information concerning those species. Those sections also discuss known probable impacts and describe the general nature of impacts that can be expected in areas of uncertainty. The agency's decision to include a qualitative discussion of potential effects where uncertainty precludes quantitative prediction was reasonable. The presentation was sufficient to alert the decision maker to the cost of uncertainty. No more was required in the instant case.
Plaintiffs argue additionally that the worst case analysis is misleading because it grossly underestimates the danger presented to the endangered species of whales by possible oil spills. They contend, for example, that both the likelihood of spills and their possible severity are greater than set forth in the analysis. The Court must weigh the reasonableness of the worst case analysis in light of its purpose of alerting the decision maker to the risks presented by proceeding despite gaps in information. Viewed from that perspective, Plaintiffs' additional challenges to the worst case analysis in the instant case must fail.
The premise underlying the worst case analysis is that there is considerable uncertainty about the whales, about drilling in the Beaufort Sea environment and about the impact of drilling on the whales. The analysis is an assessment of possible worst case impacts based on certain assumptions about the gaps in available information. The analysis utilizes estimates made elsewhere in the EIS which the Department admits are of limited predictive value. Estimates of the likelihood of a major spill, for example, are based in part on drilling experiences in the Gulf of Mexico. Plaintiffs argue that use of this data makes the analysis misleading because of the obvious differences in conditions between the Gulf and the Beaufort Sea. The EIS, however, although utilizing the Gulf data, acknowledges that the two environments are radically different and that risks are much greater in the instant case. Plaintiffs also challenge certain assumptions relied on in the worst case analysis. The EIS itself, however, acknowledges the speculative nature of the task involved in preparing the worst case analysis. It specifically states that the analysis is premised on subjective judgments and assumptions about the areas of uncertainty whose statistical validity is at best questionable.
Given this, the analysis cannot be found misleading.
In essence, Plaintiffs' argument is that the worst case estimate contained in the EIS is not really the worst possible case. It is, however, a reasonable estimation of the most severe consequences that can be expected based upon certain assumptions. It was not unreasonable for the agency to rely on those assumptions. The worst case analysis contained in the EIS was a reasonable means of alerting the decision maker to the dangers presented by proceeding in the face of uncertainty.
B. Cumulative Impact
In addition to the Beaufort Sea lease sale, other significant federal and state energy development projects are in progress and planned for the North Slope region. Drilling in Prudhoe Bay, the Alaska Natural Gas Pipeline and the Trans-Alaska pipeline are illustrative. These developments taken as a whole can be expected to have significant cumulative effects on the environment of the North Slope far in excess of the impact that would be generated by any one project standing alone. Other independent projects need not always be considered in the preparation of an EIS for a particular proposal. If, however, there are several projects that will have cumulative effects upon a region so that the environmental consequences of a particular project cannot be considered in isolation, the decision maker must be alerted to those cumulative impacts.
In the instant case, consideration of cumulative impacts is essential if the decision maker is to be alerted to realistic possible consequences of the proposal before him. The discussion of cumulative impacts need not be overly detailed; like other aspects of the EIS, it is governed by the rule of reason. The discussion must, however, "furnish . . . such information as appears to be reasonably necessary under the circumstances for evaluation of the project."
The cumulative effects of other projects that can be expected to have similar impacts must be acknowledged. "An agency may not . . . treating a project as an isolated "single-shot' venture in the face of persuasive evidence that it is but one of several substantially similar operations, each of which will have the same polluting effect in the same area. To ignore the prospective cumulative harm under such circumstances could be to risk ecological disaster."
Plaintiffs argue correctly that the Beaufort Sea EIS fails to alert the decision maker to all possible environmental consequences of the proposal before him because it does not adequately consider cumulative impacts of the proposal and other energy projects on the North Slope. Although, as Defendants note, the discussion of cumulative impacts is governed by the rule of reason, the EIS does not provide information that is "reasonably necessary under the circumstances for evaluation of the project." The EIS ignores many cumulative impacts and gives only cursory treatment to others that it does address.
Although the EIS acknowledges the existence of potential cumulative impacts on some species,
cumulative effects on other species, such as polar bears and caribou are not addressed.
In addition, where cumulative effects are discussed, the treatment often fails to provide the decision maker with information that is necessary to an assessment of possible environmental consequences of the proposal. Defendants argue correctly that it is impossible to quantify all cumulative impacts because of the numerous uncertainties concerning this and other projects. Moreover, a qualitative discussion of cumulative impacts sufficient to alert the decision maker to the consequences of a proposal would itself be reasonable. In the instant case, however, the discussions of cumulative impacts do not even alert the decision maker to the qualitative nature of likely cumulative effects. The discussion of cumulative impacts on birds, for example, simply states that cumulative impacts will result.
An acknowledgement of the existence of cumulative impacts is not sufficient. The EIS must alert the decision maker to the nature of those cumulative effects for the discussion to have utility.
C. Alternatives to the Proposal
NEPA requires that an EIS include consideration of alternatives to a proposed action.
The agency must go beyond simply enumerating alternatives and discuss their environmental consequences.
The discussion need not "include every alternative device and thought conceivable by the mind of man."
Rather, as in other areas, the consideration of alternatives required in an EIS is governed by the rule of reason. The agency itself determines what alternatives should be considered and how extensive its treatment of them should be. NEPA requires that the EIS include information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned. It is crucial, however, that the EIS provide the decision maker with enough information to make that reasoned choice. The discussion of alternatives has been characterized as "the linchpin of the entire impact statement."
Plaintiffs argue that the Beaufort Sea EIS fails to adequately consider alternatives of three sorts:
(1) alternative energy sources;
(2) alternative mitigation measures;