pared by the Commission's Director of Regulation or his designee. The basic procedures for implementing NEPĂ in section A of Appendix D, on the other hand, contain no such restriction. Furthermore, the restriction is inconsistent with the Commission's practice of giving early notice of hearing or opportunity for hearing in facility licensing cases before completion of the reviews of the application by the AEC staff and the Advisory Committee on Reactor Safeguards. That practice results in extra time between the admission of intervening parties and the beginning of the hearing, thus affording a longer period for the preparation of intervenors' cases and avoiding unnecessary delays. Accordingly, the amendments which follow permit, but do not require as appropriate, for the consideration of NEPA environmental issues in the Commission to issue notices of hearing or opportunity for hearing, such proceedings, before the final detailed statement has been prepared.

Pursuant to the National Environmental Policy Act of 1969, the Atomic Energy Act of 1954, as amended, and sections 552 and 553 of title 5 of the United States Code, the following amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 50, are published as a document subject to codification to be effective upon publication in the FEDERAL REGISTER.

In Appendix D, the sixth sentence in section C.2 is deleted, and section B.3, the fifth sentence in section C.2 and the fifth sentence in section D.3 are amended to read as follows:

APPENDIX D—INTERIM STATEMENT OF GENERAL POLICY AND PROCEDURE: IMPLE MENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 (PUBLIC LAW 91-190)

B. Procedures for review of certain licenses to construct or operate production or utilization facilities and certain licenses for source material, special nuclear material and byproduct material issued in the period January 1, 1970–September 9, 1971.

3. The Director of Regulation will, in the case of a construction permit for a nuclear power or test reactor or a fuel reprocessing plant, publish in the FEDERAL REGISTER a notice of hearing, in accordance with § 2.703 of this chapter, on NEPA environmental issues as defined in section A.11, which hearing notice may be included in the notice required by paragraph 2. With respect to any other permit or license for a facility of a type described in section A.1, the Director of Regulation will publish a notice in the FEDERAL REGISTER, which may be included in the notice required by paragraph 2, providing that, within thirty (30) days from the date of publication of the notice, the holder of the permit or license may file a request for a hearing and any person whose interest may be affected by the proceeding may, in accordance with §2.714 of this chapter, file a petition for leave to intervene and request a hearing. In any hearing held pursuant to this paragraph, the provisions of sections A.10 and 11 will apply. The Commission or the presiding Atomic Safety and Licensing Board, as appropriate, may prescribe the time within which proceedings or any portions thereof conducted pursuant to this paragraph will be completed.

*

*

*

C. Procedures for review of certain construction permits for production or utilization facilities issued prior to January 1, 1971, for which operating licenses or notice of opportunity for hearing on the operating license applications have not been issued.

2. * * * The Director of Regulation will also publish in the FEDERAL REGISTER ja notice, which may be included in the notice setting forth his or his designeee's conclusion as respects the continuation, modification or termination of the construction permit or its appropriate conditioning to protect environmental values, providing that within thirty (30) days from the date of its publication, any person whose interest may be affected by the proceding may, in accordance with § 2.714 of this chapter, file a petition for leave to intervene and request a hearing.

D. Procedures applicable to pending hearings or proceedings to be noticed in the near future.

3. *** In addition to the pertinent provisions of paragraphs 1-9 of section A, the provisions of section B.3 will be followed. * **

(Sec. 102, 83 Stat. 853 secs. 3, 161; 68; Stat. 922, 948, as amended; 42 U.S.C. 2013, 2201).

Dated at Washington, D.C., this 14th day of January 1972.
For the Atomic Energy Commission.

F. T. HOBB,

Assistant Secretary of the Commission.

[FR Doc. 72-874 Filed 1-9-72; 8:51 am]

OUTER CONTINENTAL SHELF LANDS DECISION

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT

No. 71-2031

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.,

APPELLEES

v.

ROGERS C. B. MORTON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR, ET AL., APPELLANTS

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

On Appellants Motion for Summary Reversal

Decided January 13, 1972

Mr. Edmund B. Clark, Attorney for the Department of Justice, with whom Messrs. Shiro Kashiwa, Assistant Attorney General, and Thomas L. McKevitt, Attorney, Department of Justice, were on the pleadings for appellants.

Mr. Thomas B. Stoel, Jr., for appellees.

Mr. John H. Pickering, Attorney for Chevron Oil Company, by special leave of Court was permitted to file a suggestion as amicus curiae.

Before TAMM, LEVENTHAL and MACKINNON, Circuit Judges. Opinion for the Court filed by LEVENTHAL, Circuit Judge. Opinion filed by MACKINNON, Circuit Judge, concurring in part and dissenting in part, at p. 22.

LEVENTHAL, Circuit Judge: This appeal raises a question as to the scope of the requirement of the National Environmental Policy Act (NEPA)1 that environmental impact statements contain a discussion of alternatives. Before us is the Environmental Impact Statement

1 See. e.g., Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, (D.C. Cir. 1971); Committee for Nuclear Responsibility, Inc. v. Seaborg, No. 71–1732, October 5, 1971.

(634)

3

filed October 28, 1971, by the Department of Interior with respect to its proposal, under § 8 of the Outer Continental Shelf Lands Act,2 for the oil and gas general lease sale, of leases to some 80 tracts of submerged lands, primarily off eastern Louisiana. The proposal was finally structured so as to embrace almost 380,000 acres, about 10% of the offshore acreage presently under Federal lease. Opening of bids for the leases was scheduled for December 21, 1971, and three conservation groups brought this action on November 1, to enjoin the proposed sale. On December 16, the District Court held a hearing and granted a preliminary injunction enjoining the sale of these leases pending compliance with NEPA. The Government appealed, and filed a motion in this court for summary reversal and immediate hearing. We granted the immediate hearing, and on December 20, heard the presentations and issued an order permitting the bids to be received on condition they remain unopened pending further order of the court. As to the motion for summary reversal, we conclude that this must be denied.

I. BACKGROUND

A. Chronology and Impact Statements

On June 15, 1971, Secretary of Interior Rogers Morton, a defendant in this litigation, announced that a general oil and gas lease sale of tracts on the Outer Continental Shelf (OCS) off eastern Louisiana would take place in December, 1971. This was responsive to the directive in President Nixon's June 4, 1971, Message on Supply of Energy and Clean Air.a On July 31, 1971, Mr. Burton W. Silcock, Director of the Bureau of Land Management, also a defendant, promulgated and circulated for comment a "Draft Environmental Impact Statement" pursuant to § 102 (2) (C) of NEPA and § 10(b) of the Guidelines of the Council on Environmental Quality. Plaintiffs submitted comments on this draft statement. Hearings were held in September 1971 in New Orleans, at which oral testimony was presented. On October 28, 1971, Mr. Silcock promulgated the "Final Environmental Impact Statement," (hereafter Statement), 36 Fed. Reg. 20707 (1971). On November 20, 1971, the Interior Department announced that the proposed lease sale would take place, that 80 tracts would be offered for leasing, and that sealed bids would be received until December 21. Statement--Adverse Environmental Impact Disclosed

While the Statement presents questions, subsequently delineated, this document-67 pages in length, exclusive of appendices-is not challenged on the ground of failure to disclose the problems of environmental impact of the proposed sale. On the contrary, these problems are set forth in considerable range and detail. Indeed, the complaint voiced by the Audubon Society's witness in testimony was that the draft Statement gives a green light for the sale while its contents seem to cry out for the opposite conclusion. Without purporting to summarize, we identify some of the Statement's highlights:

243 U.S.C. § 1337 (1970). This Act, P.L. 83–212, appears at 43 U.S.C. § 1331 et seq. Natural Resources Defense Council, Inc., Friends of the Earth, Inc., Sierra Club, Inc. The text of this Message appears at 112 Cong. Rec. $8313-17 (June 4, 1971).

5 See 36 F.R. 7724 (1971) for the Council's Guidelines for the preparation of Statements on Proposed Federal Actions Affecting the Environment.

Adjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory waterfowl, wading birds and fur-bearing animals. This complex provides rich nutrient systems which make the Gulf of Mexico, blessed also with warm waters and shallow depths, the most productive fishing region of the country. It yielded $71 million of fish and shellfish to Louisiana and Mississippi commercial fishermen in 1970, and some 9 million man-days of sport fishing.

The coastal regions of Louisiana and Mississippi contain millions of acres suitable for outdoor recreation, with a number of state and federal recreation areas, and extensive beach shorelines (397 miles for Louisiana, and 100 miles for Mississippi). These serve millions-not only the residents of the seven-state region (23 million in all; 10 million within 250 miles of the coast), but visitors attracted to the beaches in increasing numbers (estimated at 3.5 millions within five years and ultimately 10 millions).

As to probable impact of issuance of leases on the environment the Statement did not anticiapte continuation of debris from drilling operations, in view of recent regulations prohibiting dumping of debris on the OCS. The Statement acknowleged some impact from construction of platforms, pipelines and other structures. A concluding section (III D) on "Unavoidable Adverse Environmental Effects" particularly noted the destruction of marsh and of marine species and plants from dredging incident to pipeline installation, and the effect of pipeline canals in e.g., increasing ratio of water to wetlands and increasing salt water intrusion.

Oil pollution is the problem most extensively discussed in the Statement and its exposition of unavoidable adverse environmental effects. The Statement acknowledges that both short and long term effects on the environment can be expected from spillage, including in that term major spils (like that in the Santa Barbara Channel in 1969); minor spills from operations and unidentified sources; and discharge of waste water contaminated with oil.

These adverse effects relate both to the damage to the coastal regionbeaches, water areas and historic sites; and the forecast that oil pollution "may seriously damage the marine biological community"--both direct damage to the larger organisms, visible more easily and sooner, and to smaller life stages which would lead one step removed to damage later in the food chain.

The Statement noted the diverse conclusions and comments in existing reports on oil spills, some minimizing damage done, others stress ing that oil spillage has effects beyond the period of visible evidence; that oil may mix with water, especially in a turbulent sea, and disperse downward into the sea; that emulsifiers used to remove surface oil may have toxic consequences, etc.

The Statement asserted that while past major spills in the Gulf resulted in minimal damage, this was due to a fortunate combination of offshore winds and surface currents. The Statement rates blocks in the sale on an estimated probability of impact basis, calculated principally on proximity to high value/critically vulnerable area.