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And, in reviewing Dr. Blumer's comments, Mr. Chapman remarked:

"We agree ... the [March 20 Statement] should discuss work completed, underway, and planned. If baseline surveys are to be insufficient, this should be explained." (Ibid).

On the other hand, Mr. Roberts consistently dismissed comments raising essentially the same points as presenting "nothing new." For example, Dr. Clough had commented:

[125] "The impact of the proposed Alaska pipeline cannot be adequately estimated or predicted because too. little basic information is presently available on general and specific ecology of the biotic components." (Ad. Rec. 4.3.2.1, Vol. II, Tab C, p. 2) He set forth numerous examples of admitted information gaps in the Impact Statement, noting that nowhere are plans given for obtaining the necessary data, how long the studies would take, what they might reveal, or the risks of proceeding without that information. He suggested necessary studies, including an analysis of a common corridor for oil and gas. In his review, Mr. Roberts stated only that Professor Clough had submitted "no significant points with reference to fish and wildlife that are not treated in the Impact Statement" (Ad. Rec. 2.15).79

In short, the review process was such that it is not possible for an observer to determine whether the few candid acknowledgements of merit exhaust the areas of substantial criticism. Because of the unreasonable deadline under which the reviewers worked, it is simply not

79 Mr. Roberts followed the same pattern in reviewing the comments of Dr. Underwood (Ad. Rec. 4.3.2.1, Vol. II, Tab B); Dr. Cade (Id., Vol. II, Tab E); and Dr. Paulson (Id., Vol. II, Tab F)—all of whom raised questions concerning the lack of basic data and offered concrete proposals to generate needed information.

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possible to conclude that the public comments were given the thoughtful and rational evaluation they deserved and were promised.

[126] The Department's consideration of public comments, therefore, does not amount even to "mechanical compliance" with NEPA's procedures. The public's comments did not accompany the proposal through the process; their substantive criticisms are reflected nowhere in the impact statement and they were given no consideration in the decisionmaking process. The Department's review process mocked the Act and the public.

80

2. The Interior Department Has Not Made Adequate Provision For Obtaining the Informed Views of Relevant Federal, State, and Local Agencies as Contemplated by NEPA

The March 20 Statement concedes that the project will have an impact on Washington's Puget Sound and the California ports of Los Angeles and San Francisco (FIS, Vol. 1, pp. 54-73; Vol. 4, pp. 304, 460). Both California and Washington have jurisdiction by law to develop and enforce environmental standards. Yet, the Interior Department has never to this day solicited comments from any interested state or [127] local agency other than agencies of the State of Alaska (FIS, Vol. 6, p. 5).s

So Documents which played a vital part in the final decisionmaking process-the Horton and Sanger memoranda and the option paper (see pp. 41-43, supra)—were prepared before the comments even reached the Department. And, the Secretary, in reaching his decision, discounted the public comments entirely (Morton Dep., p. 59).

81 See, e.g., Rev. Code Wash. 90.48, 88.16.070; and Ad. Rec. 1.1.3.1.

82 Public comments indicate the type of relevant information that is lacking because of this failure:

"The oceanography of Puget Sound was described in a very general way. . . The University of Washington has a model

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In addition, NEPA directs federal agencies to "recognize the worldwide . . . character of environmental problems," § 102 (2) (D), 42 U.S.C. § 4332 (2) (D), and to engage in appropriate cooperative efforts with foreign nations (see p. 53, supra). In order to fulfill the purposes of the [128] Act, requests for comments from foreign nations directly affected by a proposed action are necessary. Significantly, the Canadian Government has never been asked to submit comments on Interior's treatment-which appears for the first time in the March 20 Statement-of the environment of all-land routes through Canada or on non-environmental matters relating to such routes.

The March 20 Statement asserts that in connection with its preparation the Interior Department "enlisted the assistance of . . . other governmental agencies," which are identified as FIS, Vol. 6, pp. 4-7. The coordination thus described is no substitute for formal agency comments. Indeed, it constitutes no more than what the

of Puget Sound which would have enabled some experiments of the spreading of oil due to tidal currents to be performed fairly quickly, but this apparently was not considered either." (Ad. Rec. 4.3.2.1, Vol. III, Tab M, p. 1).

"The Statement ignores the availability of existing data, obtained primarily at the state level, which could be used for the evaluation of the impact on marine species of commercial importance. For example, the Washington State Department of Fisheries has been monitoring water in the vicinity of Puget Sound oil terminals for toxicity to shellfish. These are areas where refineries are being constructed to accommodate Alaska oil, and where other industries that discharge pollutants into the sea are increasing." (Id., Vol. III, Tab I, p. 4).

In contrast to its actions in the instant case, compare the procedures utilized by the Interior Department in the offshore oil lease case following the decision in NRDC v. Morton, 458 F.2d 827. The Interior Department solicited comments from appropriate state agencies on its revised impact statement. With this procedure, many "substantial" comments were received. OCS Final Environmental Statement, supra, pp. 308-309.

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Council on Environmental Quality contemplates should be standard operating procedure in the preparation of draft impact statements on complex, multi-discipline subjects. [129] Clearly, such drafting assistance from the staffs of the agencies does not negate the requirement in § 102 (2) (C), 42 U.S.C. § 4332 (2) (C) and the CEQ Guidelines, $7, that the Interior Department obtain comments from the agencies themselves.

What the Department offers in place of a formal solicitation of informed agency comment is the series of briefings by Secretary Morton of Cabinet officers and, on the day before he announced his decision, of the Administrator of the Environmental Protection Agency and the Chairman of the Council on Environmental Quality (Morton Dep., pp. 26, 37-38, 60-62).8*

Such informal procedures do not satisfy the requirements of NEPA. They do not ensure that the considered

$3 "The CEQ guidelines do not require a formalized 'pre-draft' consultation process. Indeed, the reason for requiring a draft statement in the first place was in order to satisfy the 'prior consultation' requirement found in § 102 of the Act, which refers only to a 'detailed statement.' At the same time, however, in order for the draft statement to present an adequate basis for discussion and comment, it must provide a fairly thorough discussion of the impacts of the proposed action and alternatives.

"Where an agency lacks the expertise for making such an evaluation, it should not hesitate to solicit help on an informal basis from other agencies. Cooperative arrangements of this sort have already been tried in a number of cases. Furthermore, in preparing a draft statement any agency should welcome whatever helpful information may be forthcoming from other agencies or from the public." CEQ Memorandum, p. 85. 84 Secretary Morton indicated his recollection that Mr. Ruckelshaus had written him a "congratulatory type comment," (Morton Dep., p. 37), but following the deposition his counsel reported that the Secretary was in error. The Secretary also testified that the Department had received written comments on the March 20 Statement from various agencies (Morton Dep., pp. 37-38), but, again, following the deposition his counsel reported that the Secretary was in error.

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judgment of the various federal agencies involved is obtained. Rather, they reduce the carefully calibrated action-forcing procedures of NEPA to a political exercise.

Certainly here, where federal agencies had noted serious omissions in the January Statement, their views on the Department's efforts to remedy them in the new statement should have been obtained. It is important, if decisionmakers [130] and those who evaluate the decisions are to be fully informed, to know, for example, the position of the Environmental Protection Agency on the treatment of the Canadian alternative, study of which it urged. The comment requirements of NEPA are designed to assure that such questions are never left to speculation.

85 To cite one other example, in its comments on the January Statement, the Department of Commerce indicated among the studies that should be initiated are:

"1. Bio-assays to determine what levels of North Slope crude are lethal to plants and animals living in Prince William Sound.

"Studies of chronic exposure of Prince William Sound plants and animals to sub-lethal levels of North Slope crude oil. . . ." (FIS, Vol. 6, p. A-77).

No such studies have been undertaken. Does the Commerce Department no longer consider them necessary? Moreover, although representatives of the Commerce Department's National Oceanic and Atmospheric Administration (NOAA) apparently assisted in the drafting of the March 20 Statement, what are the Commerce Department's comments on the Statement's treatment of the risks to Prince William Sound, in light of the judgment expressed by NOAA in a formal draft research proposal, dated January 24, 1972, that:

"Because of a lack of environmental and biological data, the effects of the [oil] terminus and the transportation corridor on the ecology of Prince William Sound cannot be accurately predicted. . . . [T]here is an immediate need to acquire the capability to predict the ecological consequences of man's activities."

This proposal, the existence of which is not acknowledged in the March 20 Statement, was introduced into the record by Dr. Warner and appears at Ad. Rec. 4.3.2.1, Vol. III, Tab A.