ELR Citation: ELR 20132
No(s). s. 84-2757-MA, -2766-MA (D. Mass. Sep 26, 1984)

The court preliminarily enjoins the Secretary of the Interior from conducting Part I of Outer Continental Shelf Lease Sale 82 offshore Massachusetts based on violations of the National Environmental Policy Act (NEPA) and the Outer Continental Shelf Lands Act (OCSLA). The court holds that it must apply the arbitrary and capricious standard in reviewing the Secretary's action. Turning to the merits, the court holds that plaintiffs are likely to succeed in proving violations of NEPA and OCSLA. The environmental impact statement (EIS) for the sale does not describe an adequate range of alternatives. The alternatives took as their starting points the assumption that 25 million acres, including areas subject to a congressionally imposed leasing moratorium and an international boundary dispute would be available for leasing. The EIS described only one alternative that the Secretary could legally have selected on the sale date, and that alternative involved leasing areas subject to the boundary dispute. The sale actually scheduled differs significantly from any of the analyzed alternatives. Further, the alternatives were skewed in favor of only small deletions from the total 25 million acres. As a result, the EIS did not give the Secretary a reasonably adequate picture of the likely environmental harms associated with the options open to him. The court next holds that the EIS is not rehabilitated by the Secretarial Issue Document (SID) and the Environmental Assessment (EA), which do not supply the missing detailed assessment of the environmental benefits associated with tract deletions from the original 25 million acres. Further, the SID and EA fail as EIS supplements as a matter of law because they did not meet NEPA's public circulation and comment requirements. Even if the EIS properly analyzed the proposed sale and its alternatives, it would still fail because it covers too large an area to be sufficiently site specific to this ecologically diverse region.

The court holds that the Secretary also violated OCSLA §19 when he partially rejected the governor of Massachusetts' tract deletion recommendations, which must be accepted under the OCSLA if they provide a reasonable balance between the national and state interests. The Secretary did not reasonably balance the national interest in energy exploration with the state interest in preserving the fishery resources, but instead ignored the state interest whever the national interest was strong. Therefore, his decision to reject the governor's recommendations was arbitrary and capricious.

Turning to the second prong of the test for determining whether to issue a preliminary injunction, the court holds that plaintiffs will be irreparably harmed if the sale proceeds. A mere lease sale in violation of NEPA can constitute irreparable harm even though additional steps must be taken before environmental harm occurs. Third, plaintiffs have shown the likelihood of serious environmental risk while defendants will only suffer delay until the preparation of a new EIS. Thus, the equities favor plaintiffs. Finally, the court holds that the public interest will not be harmed by the injunction because the public interest in the valuable Georges Bank fishery resources outweights the delay in leasing in an area where there is no indication that energy resources will be found.

[Related opinions appear at 13 ELR 20445 and 20893.]

Counsel for Plaintiffs
Douglas I. Foy
Conservation Law Foundation of New England, Inc.
3 Joy St., Boston MA 02108
(617) 742-2540

Stephen M. Leonard
Department of the Attorney General, Environmental Division
One Ashburn Place, 20th Floor, Boston MA 02108
(617) 727-2200

Counsel Defendants
William Cohen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendants-Intervenors
E. Edward Bruce
Covington and Burlington
P.O. Box 7566, Washington DC 20044
(202) 662-6000

George Marshall Moriarty
Ropes and Gray
225 Franklin St., Boston MA 02110
(617) 423-6100

Counsel for Amici Curiae
Robert R. Ruddock
New England Legal Foundation
55 Union St., Boston MA 02108
(617) 367-0174