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CLF V. Andrus and Oil Drilling on Georgeâ•Žs Bank: the First Circuit

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CLF V. Andrus and Oil Drilling on Georgeâ•Žs Bank: the First Circuit Boston College Environmental Affairs Law Review Volume 8 | Issue 2 Article 3 12-1-1979 CLF v. Andrus and Oil Drilling on George’s Bank: the First Circuit Attempts to Balance Conflicting Interests R Alan Fryer Follow this and additional works at: http://lawdigitalcommons.bc.edu/ealr Part of the Environmental Law Commons, and the Oil, Gas, and Mineral Law Commons Recommended Citation R A. Fryer, CLF v. Andrus and Oil Drilling on George’s Bank: the First Circuit Attempts to Balance Conflicting Interests, 8 B.C. Envtl. Aff. L. Rev. 201 (1979), http://lawdigitalcommons.bc.edu/ealr/vol8/iss2/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. eLF V. ANDRUS AND OIL DRILLING ON GEORGES BANK: THE FIRST CIRCUIT ATTEMPTS TO BALANCE CONFLICTING INTERESTS R. Alan Fryer* TABLE OF CONTENTS I. Introduction ..................................... 202 II. The Setting of Conservation Law Foundation of New England, Inc. v. Andrus . 206 A. Lease Sales Conducted Under the Outer Continen- tal Shelf Lands Act .......................... 206 B. Lease Sale No. 42 ............................ 208 III. The National Environmental Policy Act and the Georges Bank Environmental Impact Statements . 217 A. NEPA Requirements for the Preparation of an EIS 218 B. Round One .................................. 222 C. Round Two . 225 IV. The Lease Sale and the Endangered Species Act .... 234 A. The Background of the Statute ................ 235 B. The Lease Sale as an Irretrievable Commitment 238 C. The Burden of Proof ......................... 251 D. What Level of Harm Constitutes Jeopardy? .... 255 V. The Secretary's Duty to Protect the Fisheries ....... 261 A. The Nature and Sources of the Secretary's Duty 262 B. The Extent of the Secretary's Duty ............ 266 1. The Standard of Review ................... 267 • Staff Member, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW. 201 202 ENVIRONMENTAL AFFAIRS [Vol. 8:201 2. All Feasible Safeguards ................... 270 3. Unreasonable Risks ....................... 272 VI. The Role of the Preliminary Injunction in Conservation Law Foundation of New England, Inc. v. Andrus .... 276 A. The Standards for Granting a Preliminary Injunc- tion . 277 B. The Appropriateness of Enjoining the Lease Sale 280 C. What Degree of Harm Qualifies as Irreparable? 288 D. Balancing the Equities and Considering the Public Interest ..................................... 292 VII. Conclusion ...................................... 296 I. INTRODUCTION On June 3, 1979, a Mexican exploratory well in the Bay of Campeche blew out, discharging crude oil into the Gulf of Mexico for months and creating the largest oil spill in history.l Although the well was situated five hundred miles from the Texas coast, three million gallons of oil are estimated to have hit Texas beaches, while unknown amounts have sunk to the ocean bottom.! The regional fishing industry and tourist trade have suffered sub­ stantial economic losses, cleanup efforts have been costly, and lawsuits have been filed seeking millions of dollars in damages.3 Furthermore, while the extent of the ecological damage has not been determined, long-term adverse effects are likely.· Additional large oil slicks are expected to hit the Texas coast in the spring of 1980. 11 The oil industry and the federal government claim that an inci­ dent like Campeche is highly unlikely in American offshore drill­ ing operations.6 Nevertheless, accounts show that it is only the 1 Christian Science Monitor, Sep. 27, 1979, at 3, col. 2. A blowout occurs when a sudden surge of oil or gas pressure up the drill hole causes a loss of control over the well. 2 Id. S Comment, Voyage Into Uncertainty: Assigning Liability for the Bay of Campeche Oil Spill, 9 ENVIR. L. REP. (ELI) 10218, 10218 (1979). • Christian Science Monitor, Sep. 27, 1979, at 3, col. 2. • 10 ENVIR. REP. (BNA) 1795 (1980). The Campeche blowout was finally capped on March 24, 1980, almost ten months after it had begun. Boston Globe, Mar. 25, 1980, at 3, col. 5. The total amount of oil spilled was at least twice as much as in the previous largest spill, from the grounding of the Amoco Cadiz in 1978. Id. o Brief for Intervenor-Appellees Atlantic Richfield, et al. at 56-57, Conservation Law Foundation of New England, Inc. v. Andrus, 14 ENVIR. REP. (Envir. Rep. Cas.) (BNA) 1049 1979] GEORGES BANK 203 latest of several similar accidents over the last decade. For exam­ ple, in April 1977, the Ekofisk Bravo drilling rig in the North Sea blew out during routine maintenance, raging out of control for eight days before it was capped7 on the fifth try in an area known for its difficult weather conditions. In 1969, a blowout in the Santa Barbara channel off the California coast caused significant damage to the coastline and to wildlife, thus bringing the danger of blowouts to national attention.8 In addition, there has been a long history of spills from oil tankers, the most spectacular of which, from the Amoco Cadiz in March 1978, devastated the shoreline of Brittany, France.9 These events demonstrate that the hazards of oil extraction and transportation are not of recent ori­ gin. Moreover, expanded exploration efforts in the waters of the Outer Continental Shelf/o resulting from the need to tap new en­ ergy sources, have increased the possibility of serious accidents. 11 In reaction to the danger of oil spills, and under pressure from environmental groups, Congress has enacted measures to provide safeguards in the offshore drilling process, notably the Outer Con­ tinental Shelf Lands Act Amendments of 1978. 12 The nation's shortage of reliable energy sources, however, has spawned efforts (1st Cir. Dec. 17, 1979) [hereinafter cited as Intervenor Brief Ij; BUREAU OF LAND MAN­ AGEMENT, U.S. DEP'T OF THE INTERIOR, FINAL SUPPLEMENT TO ENVIRONMENTAL STATEMENT, PROPOSED 1979 OUTER CONTINENTAL SHELF OIL AND GAS LEASE SALE OFFSHORE THE NORTH­ ATLANTIC STATES OCS SALE No. 42, at 296-97 (1979) [hereinafter cited as FSESj. See Bu­ REAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, FINAL ENVIRONMENTAL STATE­ MENT, PROPOSED 1977 OUTER CONTINENTAL SHELF OIL AND GAS LEASE SALE OFFSHORE THE NORTH ATLANTIC STATES OCS SALE No. 42, at 6 (1977) [hereinafter cited as FESj. 7 New York Times, May 1, 1977, at 1, col. 1. • New York Times, Feb. 9, 1969, at 1, col. 2, 3. • New York Times, Mar. 26, 1978, § IV, at 1, col. 2. 10 The Outer Continental Shelf is the gently sloping plain underlying the seas adjacent to the coastal United States, extending from the coastline seaward to the point at which the ocean bottom drops off sharply. W. RODGERS, ENVIRONMENTAL LAW 513 (1977). 11 The danger of serious accidents has increased not only because exploration efforts have increased in number but also because activities have been extended from the Gulf of Mexico, where the weather and other environmental conditions are relatively moderate, to more hazardous environments such as the North Atlantic and the Beaufort Sea. According to the Department of the Interior, the most severe wind conditions in the North Atlantic are comparable to those in the Beaufort Sea and the North Sea, FES, supra note 6, at 761, and extreme storm conditions may result in more severe waves in the North Atlantic than in the North Sea or the Gulf of Alaska, id. at 763. In light of the recent accident in the North Sea, however, in which more than a hundred workers were killed when a "hotel" platform collapsed and capsized after being hit by a huge wave during a storm, Boston Globe, Mar. 28, 1980, at 1, col. 2, Interior's intent to rely on existing technology provides little assurance that a serious accident will not likely occur. .. Pub. L. No. 95-372, 92 Stat. 629 (1978) (amending 43 U.S.C. §§ 1331-1343 (1976)). 204 ENVIRONMENTAL AFFAIRS [Vol. 8:201 to relax these environmental safeguards even before they have been fully implemented. The resulting tension between the con­ flicting demands for development and for protection has led, in turn, to increased litigation in order to resolve the disputes be­ tween the competing interests. That litigation has focused prima­ rily on the sale of oil and gas leases as the significant point at which the commitment to drilling in a particular region is made.18 The latest major battle in this continuing series of legal con­ frontations over lease sales, Conservation Law Foundation of New England, Inc. v. Andrus/' involves the sale of drilling rights for tracts111 lying within Georges Bank, an area off the Massachu­ setts coast which is one of the most productive fishing grounds in the world as well as an unusual and fragile ecological habitat.16 In an attempt to prevent the lease sale, the plaintiffs, the Conserva­ tion Law Foundation of New England, Inc. (CLF)17 and the Com- .. See text at notes 35-38, infra. Oil and gas leases are sold by the Interior Secretary to the highest qualified bidder. A lease entitles the lessee to explore, develop, and produce the oil and gas contained within the lease area. The lease is valid for an initial period of five to ten years and is extended for as long as the lease area continues to produce oil and gas in paying quantities. Outer Continental Shelf Land Act § 8, 43 V.S.C.A. § 1337 (West Supp. 1979) . .. The case involves companion suits tried jointly at all stages of the proceedings. The case name varies among the decisions because different courts have docketed them in dif­ ferent orders.
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