Circuit Courts Give Go-Ahead to OCS Lease Sales Despite Uncertain Effects on Endangered Whales

The Endangered Species Act (ESA)¹ is widely viewed as one of the most arbitrary and irksome statutory impediments to federal and federally-licensed construction projects. As enacted in 1973, the Act contained such a strict prohibition on federal activities interfering with endangered species that it could, at least in theory, bring the most massive public works project to a screeching halt if it were to jeopardize even the least conspicuous animal or plant. The Act's defenders contend that these perceptions have no basis in reality, and that in practice the Act has never stopped a federal project with the possible exception of the (now completed) Tellico Dam.² Nonetheless, following the Supreme Court's 1978 decision in Tennessee Valley Authority v. Hill³ that the endangered snail darter was to prevail over the dam, the law was amended in an attempt to better harmonize its original goals with other important national objectives.

Almost immediately, the 1978 amendments were put to the acid test. The Department of the Interior's plan to lease the Georges Bank, off the coast of Massachusetts, for oil development not only threatened the area's role as one of the world's most productive fishing grounds, but also risked injury to the endangered humpback and right whales that frequent the area. More recently, the government's plans to lease oil and gas tracts in the Beaufort Sea of Alaska have similarly been challenged on the grounds thatthe endangered bowhead whale and possibly the gray whale could be destroyed by a major oil spill. In both cases the nation's need for new energy sources was pitted directly against the fate of perhaps some of the most endangered of species.

The District of Columbia and the First Circuit Courts of Appeals were both presented with legal challenges to the lease sales, and both refused to restrain the oil exploration programs. While neither opinion delineates either the substantive or procedural requirement of the amended Act with textbook clarity, they do provide a glimpse of how the rather complicated amendments function. Perhaps above all, the decisions reveal the degree to which the sometimes harsh mandate of the former Act has been weakened. In Conservation Law Foundation of New England, Inc. v. Andrus,⁴ the First Circuit ruled that the sale of leases would not violate the requirements of the ESA. Although the Outer Continental Shelf Lands Act (OCSLA),⁵ under which the sale was being conducted, did not provide the same degree of protection to the whales provided by the ESA, the court found that the two statutes could be applied simultaneously to continue to safeguard the whales' habitat. Nonetheless, the ESA did not require the sale to be halted until the necessary environmental studies were completed. The District of Columbia Circuit similarly found, in North Slope Borough v. Andrus,⁶ that the Secretary's and the lessees' actions would continue to be subject to the requirements of the ESA after the lease sale is completed, and that the OCS lease sales and exploratory activities could therefore continue despite major uncertainty about adverse effects the activities may have on the whales.

Statutory Background

Endangered Species Act

The Endangered Species Act of 1973 established the protection of endangered and threatened species as a national policy and a federal agency duty. In the 1973 version, § 7⁷ required all federal agencies to "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered or threatened species or result in the destruction or modification of its critical habitat. Thus, the actions of a federal agency could not under any circumstance jeopardize the viability of specified plant or animal species, nor impair habitat deemed by the Secretary of the Interior to be crucial to the species' preservation. The Act did not permit any balancing of anticipated benefits of a federal project against an endangered species. Although the Secretary is not expressly empowered by § 7 to veto an agency's decision to continue a project in violation of the ESA, any federal project which threatens a listed species or its critical habitat is susceptible to a federal court injunction at any stage of development.

The Supreme Court's opinion in Tennessee Valley Authority v. Hill⁸ demonstrated the severity of the § 7 mandate. In that case, the completion of the Tellico Dam on the Little Tennessee River, which was already 80 percent finished at the time of the Court's decision, would completely destroy the critical habitat of the endangered snail darter. The Court nevertheless held that the $110 million project must be stopped in order to protect the tiny fish. The Hill decision created an uproar in Congress, which quickly amended the Act "to introduce some flexibility which will permit exemptions from the Act's stringent requirements."⁹

[10 ELR 10211]

The new § 7(a)(2)¹⁰ preserves the preexisting § 7 requirement that agencies consult with the appropriate wildlife agency¹¹ to insure that any proposed action "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification"¹² of its critical habitat. The most visible change in the Act was the creation of an Endangered Species Committee.¹³ If a proposed agency action will have an adverse effect on an endangered species or its critical habitat the Committee may grant an exemption from § 7(a) after an evaluation of the alternatives to and benefits of the action.¹⁴ However, other changes in the Act were designed to prevent controversies from reaching the Committee.

The pivotal element of the new statutory scheme is the § 7(a) consultation process.¹⁵ Good faith consultation under § 7(a) between the "action" agency and the wildlife agency was intended by Congress to resolve many endangered species conflicts before projects actually begin. Central to this process is the § 7(b)¹⁶ biological opinion. Within 90 days¹⁷ after consultation begins, the wildlife agency must provide the action agency with a statement describing the impact the proposed action will have on a listed species or its critical habitat and suggesting "reasonable and prudent alternatives" to avoid jeopardizing the species in violation of § 7(a). As with the 1973 Act, any determination by the wildlife agency that the activity is likely to jeopardize the continued existence of a listed species does not necessarily mandate the taking or avoiding of any particular action by the action agency. However, should an agency proceed with an action despite such a negative opinion, the Act may be enforced through a citizen suit.¹⁸

It can be expected that frequently the wildlife agency will have inadequate information on which to express an opinion until the action, its locale, and the affected species have been studied in detail. Yet the Act is essentially silent as to the extent, if any, that a project may proceed pending completion of such studies. However, § 7(d)¹⁹ provides that while the consultation process is underway the agency may not "make any irreversible or irretrievable commitment of resources" which would preclude implementation of reasonable and prudent alternatives to avoid any adverse affect a project may have on an endangered species or its critical habitat.Unfortunately, the Act neither defines these terms nor specifies the nature of this constraint on agency freedom.

The Outer Continental Shelf Lands Act

The OCSLA,²⁰ originally enacted in 1953, was amended in 1978 to reform considerably the mechanics of the OCS oil and gas leasing process and require that exploration and development activities are conducted in a manner that reduces adverse social and environmental effects. The 1978 Amendments established a strong national policy to develop the resources of the outer continental shelf (OCS).²¹ The Secretary of the Interior is required to administer an oil and gas leasing program in OCS areas with the responsibility shared between the Bureau of Land Management (BLM), whichhas the duty to administer the leasing of OCS tracts, and the United States Geologic Survey, which has the responsibility for overseeing the lessees' activities on the leased areas.²² The Act divides an oil and gas development program into three major stages: the lease sale and pre-exploration activities,²³ exploration activities,²⁴ and production activities.²⁵ Prior to lease sales, the Secretary must prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA),²⁶ but once the sales are executed the [10 ELR 10212] lessess are permitted to engage in preliminary activities which include geological and geophysical surveys necessary to develop a comprehensive exploration plan and construction of "test" structures.²⁷ The lessees must later submit a development and production plan to the Secretary, who must prepare another EIS if approval of the plan is found to be a major federal action.²⁸

One of the most important provisions of the amendments is that giving the Secretary power to enact or suspend an OCS lease for environmental reasons. If there is a threat of serious harm to life, property, mineral deposits, or to the marine, coastal, or human environment the Secretary can temporarily suspend operations creating the threat.²⁹ In addition, if after a hearing the Secretary decides that (1) continued operations under the lease would work serious harm to the environment, national security, or life, (2) the threat of harm will not appreciably diminish within a reasonable time, and (3) that the advantages of cancellation outweigh those of continuing a lease in force, he may cancel any potentially harmful lease.³⁰ However, the Amendments entitle the affected lessee to be compensated for the loss of a lease so cancelled.³¹ Another significant environmental aspect of the Amendments is the requirement that OCS lessess employ the best available and safest technologies economically feasible to prevent oil spills and pollution.³² Compliance with the OCSLA may be enforced through citizens' suits.³³

Beaufort Sea Lawsuit

Although potentially large oil deposits were known to exist in the North Slope area of Alaska as early as the 1940s, military withdrawals and conflicting and unresolved jurisdictional claims between the federal government and the State of Alaska delayed the proposal of lease sales in the Beaufort Sea until 1974, when the Department of the Interior moved to encourage speedy development. It was clear from theoutset that the environment of the area presented two obstacles. First, the extremely cold climate, dark winters, and violent seas made drilling operations difficult and hazardous. Second, the region was an important migration path for the bowhead and gray whales, both of which had been designated as endangered species under the ESA. After deciding that the area would be opened to exploration, BLM prepared an EIS analyzing the environmental impact of the proposed lease sale as required by the OCSLA and NEPA. BLM also initiated consultation with the National Marine Fisheries Service (NMFS), pursuant to § 7(a) of the ESA, on the effects of the proposed lease sale on the whales. In a letter to BLM, NMFS concluded that insufficient information existed to determine whether the lease sale would jeopardize either of these species and suggested four alternative mitigation measures to the action proposed in the EIS.³⁴ As a result, NMFS and BLM began in 1979 a five-year cooperative research program on whales in the Beaufort Sea. Nevertheless, the Secretary of the Interior proceeded with the lease sale, receiving bids totaling over $1 billion.

A coalition of Alaskan natives and environmentalists challenged the sale in federal district court, arguing that it would violate both NEPA and the ESA. The court initially determined that preliminary injunctive relief was unnecessary.³⁵ Shortly thereafter, however, it granted plaintiffs' motion for summary judgment and enjoined the lease sale,³⁶ concluding that the Secretary of the Interior had violated §§ 7(b) and 7(a)(2) of the ESA.³⁷ The court ruled that the letter from NMFS to BLM failed to qualify as a biological opinion under § 7(b) because it failed to make a detailed evaluation of the impacts on the species or to summarize the relevant information as required by the statute. The court noted that it found no error in NMFS's finding that insufficient information existed on the basis of which to determine whether the lease sale and resulting activities would violate § 7(a)(2).³⁸ It was the court's view, however, that the Secretary would violate § 7(a)(2) if he pursued the lease sales and pre-exploration activities without adequate information to insure the safety of the whales. Section 7(d) was held not violated because preexploration expenses do not constitute an irreversible and irretrievable commitment of resources since the government and the lessees have accepted the risk that the project might be halted.

The court agreed with plaintiffs that the Secretary had violated NEPA, ruling that the EIS failed to adequately discuss cumulative impacts of other significant energy development projects in the area or to adequately consider mitigation measures provided through lease "stipulations,"or protective conditions.³⁹ The court found that the EIS, which merely set forth the content of each lease stipulation rather than examining the environmental advantages of each and suggesting additional stipulations, did not conform with the rationale of Alaska v. Andrus,⁴⁰ a D.C. Circuit Court of Appeals case involving the adequacy of an EIS for an OCS lease sale in the Gulf of Alaska.

The D.C. Circuit, in North Slope Borough v. Andrus,⁴¹ vacated the lower court's injunction and found [10 ELR 10213] overwhelmingly in favor of the government.⁴² Since the Secretary had complied "in substance" with NEPA, the OCSLA, and the ESA, the court allowed the Secretary to proceed with the lease phase of the oil and gas project. The court's analysis relied heavily on the OCSLA's multistage approach to development of an oil and gas project. As provided in the OCSLA, the Secretary must prepare separate EISs on the leasing and production stages of a project. In addition, the lessees may not commence either the exploration or production stages without plans approved by the Secretary, who may include lease stipulations which may be amended subsequently in order to minimize environmental impacts. The court considered it significant that the Secretary is authorized by the OCSLA to suspend environmentally harmful lease activities at any time. Furthermore, the Secretary and the lessees remain subject to the requirements of the ESA, the Marine Mammal Protection Act, and other environmental statutes after the lease sale is complete.

Finding that the Secretary had complied "in essence" with the ESA, the court first clarified the scope of the agency action to which the Act applies. To the court, the crucial question was whether the oil project is to be viewed as a "continuum of planned events" or "as discrete segments of a multistage OCSLA venture." How the project i thus characterized determines the extent of jeopardy posed to the species by the agency action and the legal adequacy of the § 7(b) biological opinion because it would define the activities that must be analyzed to determine the impact on the species. Although recognizing that "'pumping oil' and not 'leasing tracts' is the aim of congressional policy,"⁴³ the court concluded that for purposes of the ESA the relevant agency action was solely the lease phase because of the highly segmented leasing scheme and the extensive environmental controls to which each phase is subject. This segmented approach of the OCSLA, insuring "graduated complicance" with ESA standards, makes clear that the Secretary may gather the necessary information to respond to environmental needs and to retain control of the entire OCS project as it proceeds. Because the courts' view was that it is appropriate to follow a similar step-wise approach in applying the ESA, in order to harmonize the separate statutory requirements, BLM was not required to delay this initial phase of the project until it had obtained definitive information on the threats to the whales posed by the final production phase.

The court flatly rejected the district court's conclusion that § 7(b) had been violated, giving almost conclusive weight to NMFS's characterization of its letter to BLM as a § 7(b) opinion.⁴⁴ Furthermore, the opinion was adequate under § 7(b) because it provided information from which the Secretary could reasonably conclude that the lease sale, by itself, did not endanger the whales. Section 7(a)(2) had also been satisfied because the Secretary had incorporated into the leases the substance of the suggested mitigation measures that NMFS indicated would provide protection for the whales.

Similarly, the preliminary activities associated with lease sale were found to entail no "irreversible or irretrievable commitment of resources" in violation of § 7(d). The court pointed out that the parties are well aware of the applicable environmental laws and the lessees are prepared to risk losing the leases if future development phases must be suspended due to the prohibitions of the ESA. Furthermore, the government accepted some of these risks when it enacted the OCSLA.

Reviewing the lower court's NEPA rulings, the court of appeals first criticized the district court's strict review of BLM's EIS on the lease sale. The court emphasized the primarily procedural character of NEPA,⁴⁵ pointing out that the purpose of the EIS is simply to provide the decision maker with adequate environmental information guided by a "rule of reason" governing what the agency must discuss and to what extent. The EIS satisfied the "rule of reason" because it was prepared in good faith and set forth information sufficient to permit a reasoned decision after balancing risks against benefits.

On that basis the court concluded that the EIS contained an adequate evaluation of the cumulative impacts of other significant energy development projects in Alaska's North Slope because it provided sufficient notice of environmental hazards to satisfy the rule of reason.⁴⁶ The court similarly found that the district court wrongly faulted the EIS for doing no more than merely setting forth the stipulations included in the lease for mitigating environmental damages, noting that the highly restrictive nature of the lease stipulations obviated the need for consideration of even more protective alternatives.⁴⁷

Georges Bank Lawsuit

In an earlier decision regarding the application of the ESA and NEPA to OCS oil and gas leasing, the First Circuit Court of Appeals reached a conclusion similar to that of the D.C. Circuit in Beaufort Sea. In Conservation Law Foundation of New England, Inc. v. Andrus,⁴⁸ the plaintiffs sought a preliminary injunction to prevent the Secretary of the Interior from leasing OCS lands in the Georges Bank area due to the potential impact on the endangered right and humpback whales and on the extensive commercial fisheries in the area. Their central argument was that once the Secretary sells the leases, he can cancel them on environmental grounds only pursuant to [10 ELR 10214] the specific and more lenient standards of the OCSLA.⁴⁹ Thus, the plaintiffs contended that since the Secretary then loses the ability to apply the stricter standards of the ESA, the sale of the leases constitutes an irreversible and irretrievable commitment of resources. Agreeing with the Secretary, the court ruled that the two acts must be read as if complementary; the ESA will continue to apply of its own force to major actions taken by the Secretary even after the lease sale is held. For example, if the Secretary cannot ensure that exploration will not jeopardize the continued existence of the whales, he would be authorized to disapprove existing exploration plans under § 7(a)(2), the possibly inconsistent standards of the OCSLA notwithstanding.

The court also rejected plaintiffs' argument that the Secretary had violated NEPA. Applying the "rule of reason," the court found that the EIS gave sufficient attention to the alternatives to and the environmental effects of the lease sale, and contained appropriate responses to comments received on the draft statement.⁵⁰ The court thus affirmed the district court's denial of injunctive relief.

Discussion

The decisions in Beaufort Sea and Georges Bank reemphasize the inevitable conflict between development of the nation's energy resources and environmental values such as the preservation of the ecosystems of endangered species. The Secretary of the Interior has concurrent responsibility to implement the OCSLA's mandate to develop offshore minerals, yet he is also constrained by the requirements of NEPA and the ESA to consider the environmental consequences of the lease sale, and to insure the safety of endangered species. Prior to the 1978 amendments, the ESA could have blocked any such activity if it would potentially impair a protected species' habitat. TVA v. Hill held unequivocally that the former § 7 was an absolute mandate to take no action unless the complete protection of all endangered species was assured. As shown by the decisions discussed above, that mandate has been relaxed.

One respect in which § 7 has been altered significantly, at least as interpreted by these two courts, concerns the power of agencies to proceed in the face of uncertainty. This change is suggested in § 7(a)(2): whereas the former § 7 required a definitive finding that a given project would not jeopardize a species,⁵¹ § 7(a)(2) now requires that the action be found not likely to jeopardize the species.⁵² This implies that if an agency decides to proceed in the face of uncertainty, its evaluation of the risks may be entitled to a greater degree of judicial deference than the finding of "no jeopardy" required previously. While the legislative history indicates that uncertainty as to a project's effects should be construed in favor of protecting species and against completion of projects,⁵³ the latest decisions seem to construe the amendments differently.

Although § 7(a)(2) was not directly at issue in Beaufort Sea the same problem — uncertainty — formed the crux of the controversy. The court correctly determined that a favorable biological opinion under § 7(b) may be issued even though the lack of data makes it impossible to know with certainty the potential impact of an agency action on a listed species. However, when a biological opinion is rendered on the basis of incomplete information the agency has a continuing obligation to develop information pertinent to the action.⁵⁴ Indeed, NMFS and BLM are currently in the midst of a five-year program to study the effects of the Beaufort Sea sale on the whales.

This raises the question whether the consultation process of § 7(a) continues until the § 7(b) biological opinion is transmitted or until sufficient information is gathered to ascertain the effects of a project. The end of the process is a critical point because while the consultation process is underway the agency may not make any "irreversible or irretrievable commitment of resources" foreclosing alternatives to protect the species under § 7(d). The D.C. Circuit found it unnecessary to rule on this point in light of its finding that he lease sale did not constitute an irreversible commitment. The court did suggest, however, that if the agency proceeds in the face of incomplete information, it takes the risk that it has not satisfied the standard of § 7(a)(2) and may be later found in violation when new information is gathered.⁵⁵

This ruling raises yet another important question: what constitutes an "irreversible and irretrievable commitment of resources" foreclosing alternatives to protect the species? In Georges Bank, the plaintiffs argued that the sale of the leases was an irretrievable commitment since at that point the Secretary would lose the ability to apply the stricter standards of the ESA to the project. The First Circuit never reached the issue directly because it found that the ESA would still apply. The plaintiffs in Beaufort Sea argued that the government's and the lessees' commitment of $657 million during the leasing phase would foreclose any reasonable alternatives within the meaning of § 7(d) because the balance of costs and benefits would irrevocably shift to the side of development even if it was later found that the action would jeopardize the species. However, no violation of § 7(d) was found. Both courts relied on the segmented approach to OCS development under the OCSLA and the extensive constraints over the activities of the Secretary and the lessees as assurance that the projects would not go "too far" without accommodating the needs of the whales.

Technically, the courts are likely correct in their assessment that the sale of leases alone will not present severe environmental risks and that such commitments are therefore not "irreversible." It is hard to imagine, on the other hand, that these multibillion dollar programs could [10 ELR 10215] simply be walked away from if they were discovered, several years from now, to jeopardize the whales. If such a discovery were made, it seems inevitable that the lessees would seek an exemption from the Endangered Species Committee, armed with rather compelling claims of economic hardship. It thus may be that the effect, if not the intent, of the amendments to the ESA will be often to allow projects with unknown environmental effects to progress to the point where conflicts with endangered species, if discovered, will end up in the lap of the Committee.

Conclusion

A theme which recurs throughout the legislative history of the Endangered Species Act Amendments of 1978 is that Congress intended to make only one major change in the Act's substantive requirements — the availability of an exemption for important projects which conflict irreconcilably with the fate of an endangered species. However, the lesson of Beaufort Sea and Georges Bank is that the Act has been altered in another fundamental way. The Act now appears to permit government agencies to proceed with possibly unacceptable projects despite a lack of sufficient information on the basis of which to predict the likely effects on endangered species. Section 7 was intended less to halt government actions than to encourage action agencies to cooperate with wildlife agencies to ensure that their actions do not jeopardize a listed species. In this vein, Congress called for a more formal and more important role for the § 7(b) biological opinion.⁵⁶ However, the D.C. Circuit's half-hearted enforcement of the § 7(b) requirement appears to relieve the wildlife agencies of this increased enforcement responsibility. This development is also likely over the long run to funnel some proportion of partially-completed projects to the Endangered Species Committee for decision.

It is important to note that the courts' application of the ESA in a stage-by-stage manner to OCS oil development reflects the strong policy expressed in the OCSLA to proceed as quickly as possible with production of the nations' offshore energy resources. Thus, in future endangered species controversies involving the issuance of a federal permit or license under a different organic statute, this incremental approach may be simply inapposite and a greater degree of certainty as to environmental impacts may be necessary at an earlier stage. Even if this is so, the basic nature of the 1978 amendments is already discernible. The Act is now far less likely to halt or interrupt federal and federally-licensed projects deemed important to the national interest by the relevant agencies, the Endangered Species Committee, or the courts.

1. 16 U.S.C. §§ 1531-1543, ELR STAT. & REG. 41825-33. The present Act was preceded by the Endangered Species Preservation Act of 1966 and the Endangered Species Conservation Act of 1969, which did not contain the strong mandate of the 1973 Act to protect endangered species.

2. See H.R. REP. NO. 95-1625, 95th Cong., 2d Sess. 10-12, reprinted in [1978] U.S. CODE CONG. & AD. NEWS. 9460-61. See also Comment, Supreme Court Protects Snail Darter from TVA; Congress Poised to Weaken Endangered Species Act, 8 ELR 10154 (1978); Comment, The 1978 Amendments to the Endangered Species Act: Evaluating the Exemption Process Under § 7, 9 ELR 10031 (1979).

3. 437 U.S. 153, 8 ELR 20513 (1978).

4. 623 F.2d 712, 10 ELR 20067 (1st Cir. 1979).

5. 43 U.S.C. §§ 1331-1356, ELR STAT. & REG. 42456-70.

6. __ F.2d __, 10 ELR 20832 (D.C. Cir. Oct. 9, 1980).

7. 16 U.S.C. § 1536 (1976).

8. 437 U.S. 153, 8 ELR 20513 (1978).

9. H.R. REP. NO. 95-1625, 95th Cong., 2d Sess. 14, reprinted in [1978] U.S. CODE CONG. & AD. NEWS 9464.

10. 16 U.S.C. § 1536(a)(2), ELR STAT. & REG. 41830.

11. The "action" agency, or sponsor of a given project, must consult with the Fish and Wildlife Service of the Department of the Interior for land species, and the National Marine Fisheries Service of the Department of Commerce for marine species, both of which will be referred to as the "wildlife agency." 16 U.S.C. § 1532, ELR STAT. & REG. 41826.

12. Compare the former § 7, which required the agency to insure that its actions "do not jeopardize" the species, with the current § 7(a)(2), which requires the agency to insure that its action "is not likely to jeopardize" the species. This change, evidently intended to have less significance than appears at first blush, was adopted by Congress to bring the language of the statute into conformity with existing agency practice. H.R. REP. NO. 697, 96th Cong., 1st Sess. 12, reprinted in [1979] U.S. CODE CONG. & AD. NEWS 2576.

13. 16 U.S.C. § 1536(e), ELR STAT. & REG. 41830. The Committee is composed of the heads of six federal agencies and an individual appointed by the President from each affected state.

14. The agency, governor of the state in which the action will take place, or a license applicant may apply to the Secretary of the Interior for an exemption. An exemption application is first considered by a three-member review board which must determine whether an irresolvable conflict exists and whether the applicant has followed § 7. If so, the review board submits its findings to the Committee, which may grant an exemption from § 7(a) if it determines that:

(i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public intrest; and (iii) the action is of regional or national significance ….

16 U.S.C. § 1536(g), (h), ELR STAT. & REG. 41830. The exemption process was not at issue in either Beaufort Sea or Georges Bank.

15. 16 U.S.C. § 1536(a)(2), ELR STAT. & REG. 41830. While the former § 7 also required consultation, the new § 7 provides for more formalized consultation prcedures culminating in the § 7(b) biological opinion. The legislative history stresses the importance of the consultation process and that deference is to be given the opinion of the wildlife agency. H.R. REP. NO. 95-1625, 95th Cong., 2d Sess. 11, reprinted in [1978] U.S. CODE CONG. & AD. NEWS 9461.

16. 16 U.S.C. § 1536(b), ELR STAT. & REG. 41830.

17. The action agency and the wildlife agency may agree to alter the time for consultation. Id.

18. 16 U.S.C. § 1540(g), ELR STAT. & REG. 41833.

19. 16 U.S.C. § 1536(d), ELR STAT. & REG. 41830.

20. 43 U.S.C. §§ 1331-1356, ELR STAT. & REG. 42456.

21. 43 U.S.C. § 1332, ELR STAT. & REG. 42456.

22. 43 U.S.C. §§ 1334, 1344, ELR STAT. & REG. 42457, 42463.

23. 43 U.S.C. § 1337, ELR STAT. & REG. 42459.

24. 43 U.S.C. § 1340, ELR STAT. & REG. 42462.

25. 43 U.S.C. § 1351, ELR STAT. & REG. 42467.

26. 43 U.S.C. § 1346, ELR STAT & REG. 42464, and 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

27. 44 Fed. Reg. 70238 (Dec. 6, 1979), 43 U.S.C. § 1340, ELR STAT. & REG. 42462.

28. 43 U.S.C. § 1351, ELR STAT. & REG. 42467.

29. 43 U.S.C. § 1334(a)(1), ELR STAT. & REG. 42457.

30. 43 U.S.C. § 1334(a)(2), ELR STAT. & REG. 42457.

31. Id.

32. 43 U.S.C. § 1347, ELR STAT. & REG. 42465.

33. 43 U.S.C. § 1349, ELR STAT. & REG. 42466.

34. Three of these measures were adopted in their entirety as lease stipulations. The fourth, prohibiting all but emergency drilling between March 31 and November 1, was adopted for a two-year period only.

35. North Slope Borough v. Andrus, 486 F. Supp. 326, 10 ELR 20054 (D.D.C. 1979).

36. North Slope Borough v. Andrus, 486 F. Supp. 332, 10 ELR 20115 (D.D.C. Jan. 22, 1980).

37. The court also ruled that to the extent the Secretary had violated the ESA he has also violated his trust responsibility to the Inupiat Eskimos, who rely on the whales for subsistence. 486 F. Supp. at 344, 10 ELR at 20118.

38. 486 F. Supp. at 353, 10 ELR at 20122.

39. The court also found that the discussion of alternative management schemes for the Beaufort Sea, such as management under the Marine Sanctuaries Act, was not complete.

40. 530 F.2d 465, 8 ELR 20237 (D.C. Cir. 1978).

41. __ F.2d __, 10 ELR 20832 (D.C. Cir. Oct. 9, 1980).

42. The D.C. Circuit initially vacated the district court's injunction on July 8, 1980, permitting the Secretary to accept bids and execute leases in the Beaufort Sea.

43. 10 ELR at 20842.

44. The letter's author, the Director of NMFS, stated in an affidavit filed with the district court that the letter was intended to be a "biological opinion."

45. Citing Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519, 8 ELR 20288 (1978), and Strycker's Bay Neighborhood Council, Inc. v. Karlen, 48 U.S.L.W. 3433, 10 ELR 20079 (Jan. 7, 1980).

46. The court also confirmed that alternative energy sources and alternative management schemes under the Marine Protection, Research, and Sanctuaries Act were adequately discussed. 16 U.S.C. §§ 1431-1434, ELR STAT. & REG. 41824:1.

47. 10 ELR at 20839. The court also noted that when the EIS is examined in conjunction with the Secretarial Issue Document, a compilation of studies of the lease sale prepared for the Secretary by BLM to aid in decision-making, it is clear that the Secretary was aware of possible alternatives for restrictions on lease operations. 10 ELR at 20839. In addition, the court affirmed the district court's holding that the worst case analysis in the EIS, required under NEPA to consider the costs of proceeding in the face of scientific uncertainty and gaps in relevant information, was reasonable. 10 ELR at 20841.

48. 623 F.2d 721, 10 ELR 20067 (1st Cir. 1979).

49. 43 U.S.C. § 1334, ELR STAT. & REG. 42457.

50. The court concluded that the Secretary had fulfilled any trust responsibility to the Inupiat Eskimos because by complying with all applicable environmental statutes he was also protecting the interest of the Inupiats in maintaining their environment. 10 ELR at 20844. The court disagreed with plaintiffs' claim that the Secretary had violated § 21(b) of the OCSLA by failing to promulgate regulations identifying the best and safest technologies for safety and environmental protection aboard offshore drilling facilities, ruling that such regulations were not required prior to the holding of the lease sale. 10 ELR at 20845.

51. 16 U.S.C. § 1536 (1977 Supp.).

52. 16 U.S.C. § 1536(a)(2), ELR STAT. & REG. 41830.

53. H.R. REP. NO. 96-697, 96th Cong., 1st Sess. 12, reprinted in [1979] U.S. CODE CONG. & AD. NEWS 2576.

54. Id. See also North Slope Borough v. Andrus, 10 ELR at 20843, n.131.

55. 10 ELR at 20843.

56. H.R. REP. NO. 96-697, 96th Cong., 1st Sess. 12, reprinted in [1979] U.S. CODE CONG. & AD. NEWS 2576.