The opinion of the court was delivered by: BELLONI
This litigation consists of three consolidated cases in which plaintiffs seek to block construction of an oil pipeline which is proposed to originate in Port Angeles, Washington, and terminate in Clearbrook, Minnesota. Plaintiffs in Civil No. 80-360 are a number of environmental groups; they shall be collectively referred to as No Oilport. Plaintiffs in Civil No. 80-369 are the City of Port Angeles, Washington, and Clallam County, Washington; they shall be collectively referred to as The City. Plaintiffs in Civil No. 80-553 are a number of Indian tribes which are located in the State of Washington, primarily near Puget Sound; they shall be collectively referred to as the Tribes. In all three cases defendants are the corporation which proposed the pipeline and which will build it, if permitted, Northern Tier Pipeline Co., and a number of officials of the United States. Northern Tier Pipeline Co. shall be referred to as NTPC. The remaining defendants shall be referred to as the Federal Defendants, unless only a particular defendant is involved.
These cases are unique in that Congress has explicitly mandated that they be expedited. 43 U.S.C. § 2011(c).
As a result of this Congressional mandate and as a result of the extraordinary number of issues presented, this court will not be discussing each of the numerous issues in as much detail as otherwise might be the case. However, nearly every issue will be addressed and each and every issue has been given careful consideration.
The court has jurisdiction over the subject matter of the actions pursuant to 28 U.S.C. § 1331. The actions are primarily review of informal agency decision making, as authorized in 5 U.S.C. § 706. The actions are presently before the court on the defendants' motions for summary judgment, various motions to strike certain exhibits submitted in opposition to the motions for summary judgment and No Oilport and The City's motions for partial summary judgment.
No Oilport has moved for summary judgment with respect to its claims under PURPA, NEPA, MLA, the Magnuson Amendment to the Marine Mammal Protection Act, 33 U.S.C. § 476, and the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. The City has moved for summary judgment with respect to their claims under the Magnuson Amendment and the Coastal Zone Management Act.
The occurrences which resulted in this litigation can be traced back as far as 1968 when the largest crude oil reservoir in the Western Hemisphere was discovered at Prudhoe Bay on the North Slope of Alaska. In June, 1977, the Trans-Alaska Pipeline System was put into operation, thereby allowing delivery of North Slope crude oil to Valdez, Alaska. Since 1977, upon reaching Valdez, the crude oil has been pumped onto tankers for delivery to refineries. At the present time, much of the crude oil is delivered to, and refined on, the west coast of the United States. However, the crude oil which is in excess of the capacity of west coast refineries must be shipped through the Panama Canal to ports located on the Gulf Coast and in the Virgin Islands. From there, the crude oil is either refined locally or shipped to refineries located on the east coast of the United States.
As early as 1976, construction of a west to east oil pipeline to avoid the necessity of shipment through the Panama Canal was proposed. The original proposal called for a pipeline from Long Beach, California, to Midland, Texas; however, the project was later abandoned. At about this same time during the late 1970's, predictions were being made that due to a decrease in oil imports from Canada, refineries located in the northern tier states would not have sufficient oil supplies to operate at full capacity.
The pipeline project under consideration today was proposed to remedy both the problem of excess crude oil on the west coast having to be shipped through the Panama Canal and the anticipated problem of a shortage of crude oil in the northern tier states.
As proposed, the NTPC system would originate at a terminal dock in Port Angeles, where the crude oil would be unloaded from tankers arriving from Alaska and pumped into the pipeline. From Port Angeles, the project calls for the pipeline to cross beneath Puget Sound and then to continue to head east, passing through eastern Washington, Idaho, Montana, North Dakota and finally terminating in Clearbrook, Minnesota, where it will connect with a pipeline system already in existence. Although the pipeline is proposed to be nearly 1,500 miles long, plaintiffs are primarily concerned with the potential effects of the pipeline on the areas of western Washington through which the pipeline is scheduled to pass.
Plaintiffs are particularly concerned about possible degradation of Puget Sound.
The context in which these actions arise cannot be fully understood unless one is at least somewhat familiar with PURPA (Title V of the Public Utility Regulatory Act, 43 U.S.C. § 2001 et seq.). More than anything else, PURPA is designed to expedite action on federal permits required for the construction of a west to east crude oil transportation system. In enacting PURPA, Congress set out the following findings:
(1) a serious crude oil supply shortage may soon exist in portions of the United States;
(2) a large surplus of crude oil on the west coast of the United States is projected;
(3) any substantial curtailment of Canadian crude oil exports to the United States could create a severe crude oil shortage in the northern tier States;
(4) pending the authorization and completion of west-to-east crude oil delivery systems, Alaskan crude in excess of west coast needs will be transshipped through the Panama Canal at a high transportation cost;
(5) national security and regional supply requirements may be such that west-to-east crude delivery systems serving both the northern tier States and inland States are needed;
(6) expeditious Federal and State decisions for west-to-east crude oil delivery systems are of utmost priority; and
(7) resolution of the west coast crude oil surplus and the need for crude oil in northern tier States and inland States require the assignment and coordination of overall responsibility within the executive branch to permit expedited action on all necessary environmental assessments and decisions on permit applications concerning delivery systems.
Additionally, Congress set out the following purposes for which PURPA was enacted:
(1) to provide a means for
(A) selecting delivery systems to transport Alaskan and other crude oil to northern tier States and inland States, and
(B) resolving both the west coast crude oil surplus and the crude oil supply problems in the northern tier States;
(2) to provide an expedited procedure for acting on applications for all Federal permits, licenses, and approvals required for the construction and operation of any transportation system approved under this title ...; and
(3) to assure that Federal decisions with respect to crude oil transportation systems are coordinated with State decisions to the maximum extent practicable.
To assist the President in selecting a particular system to receive the benefits of PURPA, various agency heads were directed to make recommendations to the President. 43 U.S.C. § 2005(c). Primary responsibility was placed upon the Secretary of the Department of the Interior. Not only was he required to make recommendations, but he was also directed to establish an expedited schedule for review of the applications submitted by parties seeking to obtain the benefits of PURPA. 43 U.S.C. § 2005(a).
A number of applications were submitted. After the review process was completed and after the various agency heads made their recommendations, President Carter selected NTPC's proposal as the project to receive the benefits of PURPA. However, this alone did not authorize NTPC to begin construction. A number of permits still needed to be obtained. The President's selection of the NTPC project merely meant that various federal agencies were directed to expedite the permitting process with respect to NTPC's proposal.
On April 21, 1980, the Secretary of the Interior granted to NTPC the required right-of-way permit.
Additional required permits are still outstanding; however, they are not at issue in this litigation. As previously mentioned, plaintiffs in this litigation seek to set aside the President's selection of the NTPC project for purposes of PURPA and to set aside the Secretary's issuance of the right-of-way permit.
II. SCOPE OF REVIEW MOTION TO STRIKE
These cases are primarily review of non-adjudicatory, non-rulemaking agency action pursuant to 5 U.S.C. § 706. The scope of the review which this court should undertake has been a contested issue. It first arose in connection with the Federal Defendants' motion to limit review to the administrative record. The issue is now once again before the court in relation to the defendants' motions to strike certain documents submitted by plaintiffs.
As I stated in denying the Federal Defendants' motion to limit review to the administrative record, the most enlightening case in the Ninth Circuit on this issue is Asarco v. U.S.E.P.A., 616 F.2d 1153 (9th Cir. 1980). The Asarco court held that where an administrative decision is being challenged as arbitrary and capricious, the "focal point" of review must be the administrative record, citing Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973). The court then went on to set out three instances in which a reviewing court may consider evidence outside of the record which is relevant to the substantive merits of the agency's decision.
If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency action only for background information, as in Bunker Hill, or for the limited purpose of ascertaining whether the agency considered all of the relevant factors or fully explicated its course of conduct or grounds of decision. Consideration of the evidence to determine the correctness or wisdom of the agency's decision is not permitted even if the court has also examined the administrative record. Asarco, 616 F.2d at 1159-1160 (emphasis added).
Nor was the court obligated to restrict its review to the administrative record. Although the focus of judicial inquiry in the ordinary suit challenging non-adjudicatory, non-rulemaking agency action is whether, given the information available to the decision-maker at the time, his decision was arbitrary or capricious, and for this purpose "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court," Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973), in NEPA cases, by contrast, a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, (citations omitted) which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored.
A suit under NEPA challenges the adequacy of part of the administrative record itself the EIS. Glaring sins of omission may be evident on the face of the statement. (citations omitted). Other defects may become apparent when the statement is compared with different parts of the administrative record. (citations omitted). Generally, however, allegations that an EIS has neglected to mention a serious environmental consequence, failed to adequately to discuss some reasonable alternative, or otherwise swept "stubborn problems or serious criticism ... under the rug," Silva v. Lynn (1 Cir.) 482 F.2d at (1282) 1285, raise issues sufficiently important to permit the introduction of new evidence in the district court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination no such statement is necessary. 562 F.2d at 1384-1385.
The Court went on to limit the type of evidence properly admissible, as follows:
The evidence introduced for the first time in the district court, however, would be probative only insofar as it is intended to show either that the agency's research or analysis was clearly inadequate or that the agency improperly failed to set forth opposing views widely shared in the relevant scientific community. 562 F.2d at 1385.
In applying these rules to the documents challenged by defendants' motions to strike, I find that all of the documents are admissible.
The challenged documents are admitted for the limited purpose of demonstrating the inadequacy of the EIS, except for the affidavits of Mr. Somers and Mr. Kay, both of which are also properly admissible as to the treaty rights issue. Finally, I note that the admission of extrinsic evidence on the issue of adequacy of an EIS appears to be the normal practice in the Ninth Circuit. See Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1281 (9th Cir. 1974); Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1974); American Petroleum Institute v. Knecht, supra; Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908 (D.Or.1977).
III. ISSUES ARISING UNDER PURPA
Plaintiff No Oilport and the plaintiff Tribes allege that both the President and the Secretary of the Department of the Interior (hereafter Secretary) violated PURPA. The vast majority, if not all, of the alleged violations relate to PURPA's procedural requirements. In most instances the President is alleged to have violated a procedure established by PURPA; in some instances the Secretary is alleged to have violated a procedure established by PURPA. However, in at least one instance it appears that plaintiff No Oilport is challenging the actual substance of the President's decision. It is clear that this court may review both the Secretary's and the President's actions to determine whether they complied with the procedural requirements imposed by PURPA. NTEU v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587, 613 (D.C.Cir.1974); Sneaker Circus v. Carter, 457 F.Supp. 771, 782 (E.D.N.Y.1978), aff'd 614 F.2d 1290 (2nd Cir. 1979). To what extent this court can review the President's substantive decision is a point of contention which will be subsequently addressed; first, I want to address the numerous alleged procedural violations.
A. Alleged Procedural Violations by the Secretary
No Oilport and the Tribes allege that the Secretary violated 43 U.S.C. § 2005(c) in three different manners. Among other things, § 2005(c) required various federal agency heads to make recommendations to the President concerning which pipeline system should be selected for purposes of PURPA. These recommendations were to be first submitted to the Secretary of the Interior who was to make them available for comment, then the recommendations and the comments were to be forwarded by the Secretary to the President for his consideration.
1.) Alleged Failure to Circulate Comments
First, No Oilport contends that § 2005(c) was violated in that the Secretary did not circulate federal and state agency comments. Defendants respond that the statute does not require circulation of comments but only that the comments be made available and that such was done. Defendants are correct on this issue.
2.) Alleged Failure to Forward Comments
Second, No Oilport alleges that § 2005(c) was violated in that the Secretary did not forward the comments of state and local governments and the public to the President. Defendants acknowledge that the Secretary did not forward the above mentioned comments; however, they point out that he did forward summaries of the comments and he informed the President that the comments were on file and available. Defendants contend that this satisfies the requirements of PURPA.
PURPA states that the "Secretary ... shall forward such comments to the President ..." It does not provide for the summarizing of comments. Nonetheless, I am of the opinion that the procedure used satisfies the requirements of the statute; summarizing the comments and making them available upon request is equivalent to "forward(ing)" them.
The third alleged violation of § 2005(c) by the Secretary is that he did not make the comments of state and local government officials "available to the public and provide an opportunity for submission of written comments." § 2005(c)(2)(B). On August 16, 1979, the Secretary published in the Federal Register the recommendations of the various federal agencies and stated that both state and local governments, and the public, could comment on the recommendations from August 24, 1979 to September 28, 1979. The notice further provided that the comments of state and local governments would be on file in Washington, D.C. for examination.
§ 2005(c) of PURPA contemplates that the public have an opportunity to comment on not only the recommendations of the federal agencies but also the comments of local and state governments. It is this "right" which plaintiffs contend has been denied. They argue that because the period for state and local government comments terminated on the same date as the period for public comments, it was impossible for the public to comment on all of the state and local government comments.
s 2005(c) requires that the Secretary make the governmental "comments available to the public and (that he) provide an opportunity for submission of written comments." § 2005(c)(2)(B). The record establishes that the Secretary clearly fulfilled the first aspect of this obligation; the governmental comments were made available to the public. The more difficult issue is whether the public had an opportunity to comment on the governmental comments. As to governmental comments submitted early on in the approximately one month comment period, the requisite opportunity clearly existed. As to the comments received very late in the comment period, if any were so received, it is possible that the opportunity did not exist. Plaintiffs have not shown, by affidavit or document, that they were denied an opportunity to comment on any particular governmental comment. In light of this, defendants must prevail on this issue.
B. Alleged Procedural Violations by the President
The President's primary obligation under PURPA was to determine which, if any, of the proposed west to east oil transportation systems should receive the benefits of expedited permitting, expedited judicial review, etc. accorded by PURPA. 43 U.S.C. § 2007. In reaching this decision the President was directed to consider various factors. 43 U.S.C. § 2007(b). Additionally, the President was directed to make findings concerning the factors and to publish these findings along with his ultimate decision in the Federal Register. 43 U.S.C. § 2007(c). Plaintiffs contend that the President violated the procedural aspects of this decision making process in at least four different manners.
1.) Alleged Failure to Make Decision
First, plaintiff No Oilport makes the seemingly outlandish allegation that the President failed entirely to make the required decision as to which oil transportation system should receive the benefits of PURPA. In support of this contention No Oilport points out that the decision which was published in the Federal Register is not a statement by the President, but rather a summary of the President's decision prepared by the Secretary.
In response to this contention, the Federal Defendants submitted an affidavit by Stuart Eizenstat, President Carter's Advisor on Domestic Affairs and Policy at the time of the decision. Mr. Eizenstat states that on January 17, 1980, President Carter announced that he had selected the oil pipeline proposal submitted by NTPC for purposes of PURPA. Additionally, Mr. Eizenstat states that the President directed him to instruct the Secretary to take care of the required publication of the decision in the Federal Register and that he carried out this direction. Moreover, Mr. Eizenstat states that the summary of the President's decision prepared by the Secretary which appeared in the Federal Register is accurate.
I find that Mr. Eizenstat's affidavit removes any doubt, if indeed there was any doubt, as to whether the President made the decision required by PURPA.
2.) Alleged Failure to Make Findings
As previously indicated, PURPA required the President to make findings on a number of criteria. 43 U.S.C. § 2007(b). Plaintiffs allege that the President failed to make any findings. Alternatively, plaintiffs allege that the President failed to make findings on criteria B, E and J and failed to make a finding that the NTPC proposal is in the national interest.
a.) Alleged Failure to Make Any Findings
The decision published in the Federal Register does not make findings on the various criteria. However, it adopts as findings the recommendation prepared by the Secretary of the Interior which does address the various criteria. Plaintiffs make much of the fact that the Secretary of the Interior prefaced his recommendation with a statement to the effect that it did not constitute findings but was only advisory. I do not find this statement significant; it does not prohibit the President from adopting the report as his findings.
Plaintiffs contend that even if the Secretary's recommendation is accepted as the President's findings, that the President failed to make findings with respect to all of the criteria, specifically criterion B, criterion E, and criterion J.
Criterion B is "the amount of crude oil available to northern tier states and inland states under each of such systems." An examination of the Secretary's report which the President adopted as his findings shows that findings were made with respect to this criterion. At pages 53-62 of Administrative Record (hereafter A.R.), exhibit 8.50, the President sets out detailed findings with respect to predicted shortages and surpluses of crude oil in the various states.
Criterion E is "feasibility of financing for each of such systems." At pages 73 and 74 of A.R. 8.50, the President makes findings "with respect" to criterion E. These findings are not specific, but rather general in nature. The President does not find that one proposal is financially feasible and that another is not. Instead, his findings concern the general nature of the financing market for such a project. He concludes that "U.S. capital markets do have the capacity to supply the basic funds required" to whichever applicant is chosen.
It is possible that the President's findings are not as complete as Congress might have intended. Nonetheless, the President's findings with respect to criterion E are not so incomplete as to constitute a violation of the duties imposed by PURPA.
Criterion J is "impact upon competition by each system." Plaintiffs correctly point out that the Secretary's report to the President did not address this criterion. However, the affidavit of Stuart Eizenstat, previously discussed, explains this apparent error. Mr. Eizenstat states:
In making his decision, the President considered each of the criteria he was required to consider under Section 507(b) of PURPA and adopted the findings contained within Interior's Report to the President: West to East Crude Oil Transportation Systems, as his findings with respect to all of said criteria except for criterion J. With respect to criterion J, which required that the President consider the impact of each of the four proposed systems upon competition, the President depended upon the FTC's Report to the President on Proposed Northern Tier Oil Pipelines as the basis for his finding that the Northern Tier proposal will not interfere with the maintenance of competitive markets.
Plaintiffs contend that the President was required to make a finding on whether or not the particular proposal selected is in the national interest and that he failed to do so.
First, it should be noted that this is not an area in which the President was required to make a written, published finding. Rather, the statute simply requires that the "decision" to approve a particular system "include a determination that construction and operation of such system is in the national interest ..." § 2007(a)(2). The President found that a west to east transport system is in the national interest and that the NTPC proposal was the best proposal. Based on these two findings one must necessarily infer that the President determined that the NTPC proposal was in the national interest.
3.) Alleged Failure to Publish Decision and Findings in the Federal Register
Plaintiffs point out that PURPA specifically required the President to publish his decision and his findings in the Federal Register. 43 U.S.C. § 2007(c). Plaintiffs contend that he did neither. We have already seen that he published his decision through the Secretary. Whether he published his findings is a closer question; however, it must be resolved against plaintiffs.
The notice in the Federal Register which summarized the President's decision adopts the report of the Secretary and states how copies of it may be obtained. In one sense, therefore, the findings were not published in the Federal Register. On the other hand, the procedure used was equivalent to and therefore satisfies what PURPA called for the President to do. Certainly the purpose of the statutory requirement was fulfilled.
The above analysis is incomplete in one respect. As previously discussed, the Secretary's report did not address criterion J. Although it was addressed in the FTC's report, the President did not, in his published decision, adopt this report as part of his findings. Therefore, although based on Mr. Eizenstat's affidavit I have concluded that the President did make a finding with respect to criterion J, the President did not publish this finding. Nonetheless, it would be entirely unreasonable to void the entire Presidential decision making process, as plaintiffs request, simply because one finding, out of approximately 16 findings, was not published as required. Plaintiffs have not established that they were prejudiced by the lack of publication. I find the error to be harmless. Cf., 5 U.S.C. § 706 (last sentence). (Harmless error committed by an agency is not grounds for reversal of agency action.)
4.) Alleged Failure to Submit Explanation of Delay
PURPA required the President to make his decision within 45 days of receipt of the Secretary's recommendation, unless he notified Congress that he needed more time and "submit(ted) a full explanation of the basis for such delay." 43 U.S.C. § 2007(a)(1). Plaintiffs contend that this provision was violated. Defendants deny the allegation and alternatively assert that plaintiffs lack standing to raise this issue.
I do not reach the standing issue, because I find that the President complied with the statutory requirement. The President did not make his decision within 45 days of receipt of the Secretary's recommendation; however, he submitted the following explanation for his delay:
Pursuant to (PURPA), by this letter I am notifying you of my determination that additional time will be required to permit thorough consideration of the Secretary's recommendation, and of additional information on unresolved issues.
PURPA did not require anything else on the part of the President in this regard.
PURPA required all proposals to be submitted not later than 30 days after November 9, 1978. NTPC submitted its proposal on December 7, 1978, and thereby met the cutoff date. The fact that in March, 1979, NTPC changed a portion of the proposed route is not significant. PURPA did not prohibit route changes. The NTPC proposal was timely submitted.
C. Alleged "Substantive" Violations by the President
Plaintiff No Oilport's final four allegations which relate to PURPA are characterized by defendants as substantive attacks upon the President's decision. In this regard, defendants make an argument based on Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568 (1948), to the effect that since the President's decision included national security and foreign affairs factors, see 43 U.S.C. § 2007(b)(1)(I) and (N), this court is precluded from reviewing the substance of the President's decision.
First of all, No Oilport contends that these allegations do not attack the substance of the President's decision, but rather only point out how the President failed to comply with PURPA. I agree with this assessment as to three of the allegations, but disagree as to the fourth. I note that all four allegations are conclusory and somewhat ambiguous. I find all four of the allegations to be without merit.
1.) Alleged Unlawful Delegation of Ultimate Decision to Private Marketplace
No Oilport alleges that the President unlawfully delegated his authority to approve or disapprove the project to the marketplace. No Oilport is misunderstanding the entire essence of PURPA. All PURPA called for was for the President to decide which, if any, of various applicants should be entitled to the procedural benefits provided by PURPA. The President made this decision. The ultimate decision on whether the pipeline will be built does rest in the hands of private interests. It must necessarily so rest since it is a private project; it is not funded by the government.
2.) Alleged Unlawful Delegation of Authority to Make Finding on the Need of the Project to the Marketplace
No Oilport alleges that the President unlawfully failed to make a finding with respect to the need of the project and delegated the authority to do so to the private marketplace. By this allegation plaintiff is simply raising again its contention that the President failed to make a finding with respect to criterion B. This issue has previously been resolved adversely to plaintiff's contention.
3.) Findings Do Not Support Decision
No Oilport alleges that the President based his decision on findings which do not support the decision. Based on its legal memorandum, it appears that No Oilport's two major contentions in regard to this allegation are that the President took into consideration the fact that the NTPC proposal is capable of carrying crude oil out of the northern tier states should an excess ever develop, whereas PURPA does not list this as a criterion, and that, once again, the President failed to make a finding with respect to criterion B.
Both of these contentions are without merit. The criterion B issue has already been resolved. As to the President's apparent consideration of factors beyond the specified criteria, such consideration is specifically authorized by PURPA itself. 43 U.S.C. § 2007(b)(1)(P).
4.) Findings Not Supported by Record
The most simple response to this allegation is that nothing in PURPA or anywhere else required the President to base all of his findings solely "on the record submitted to the President." Therefore, this allegation fails to state a claim upon which relief can be granted.
Moreover, I find that substantive review of the President's decision is not available under the present circumstances. PURPA specifically required the President, in reaching his decision, to consider the national security and foreign policy impacts of each proposal. The President explicitly relied upon these factors in making his decision.
45 Fed.Reg. 6481. It is beyond the competence of the judiciary to review decisions based on such considerations. Additionally, no standards exist by which to review such a decision. Therefore, such decisions are not subject to judicial review. C & S Airlines v. ...