Full opinion text
OPINION BELLONI, District Judge: I. INTRODUCTION 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 Oil-port. 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. Plaintiffs seek to set aside two governmental actions. First, the selection by President Carter of NTPC’s proposed west to east crude oil transportation system for purposes of Title V of the Public Utility Regulatory Policies Act (hereafter PUR-PA), 43 U.S.C. § 2001 et seq. Secondly, the issuance by the Secretary of the United States, Department of the Interior of a right-of-way permit to NTPC for purposes of the proposed oil pipeline. Plaintiffs attack the two actions based upon numerous grounds, With the result that an extraordinary number of issues must be resolved. I have divided the issues into four major groups: 1.) issues arising under PURPA; 2.) issues arising under the National Environmental Policy Act (hereafter NEPA), 42 U.S.C. § 4321 et seq.; 3.) issues arising under the Mineral Leasing Act (hereafter MLA), 30 U.S.C. § 181 et seq.; and, 4.) all other remaining issues. The issues arising under PURPA concern the President’s selection of the NTPC project. All other issues primarily concern the Secretary’s issuance of the right-of-way permit. 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 ease. 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. BACKGROUND 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 Clear-brook, 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. INTRODUCTION TO PURPA 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 ttle 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. 43 U.S.C. § 2001. 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. 43 U.S.C. § 2002. The PURPA statutory scheme, reduced to its bare essentials, calls for the President to select a particular west to east oil pipeline project based on enumerated criteria and then for the chosen project to receive favorable treatment, all of which is designed to avoid undue delay in the permitting process and judicial review thereof. In addition to mandating expedited judicial review, PUR-PA also establishes a 60 day statute of limitations and prohibits the issuance of preliminary injunctive relief. 43 U.S.C. § 2011(b) and (c). In addition to requiring that all permits be acted upon on an expedited basis, 43 U.S.C. § 2009(a), it also required that the Environmental Impact Statement be completed by a certain date. 43 U.S.C. § 2006(b). Finally, the statute also authorized the waiver of federal law, 43 U.S.C. § 2008; however, this provision was never implemented. 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). All of the documents which defendants have moved to strike as beyond the proper scope of review have been submitted for the purpose of establishing that the defendants failed to comply with NEPA in that the Environmental Impact Statement (hereafter EIS) is inadequate. In such circumstances the Asarco exceptions must be supplemented. County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2nd Cir. 1977); American Petroleum Institute v. Knecht, 456 F.Supp. 889 (C.D.Cal.1978), affirmed 609 F.2d 1306 (9th Cir. 1979). Asarco does not address the situation in which the adequacy of an EIS is at issue. Instead, it only concerns evidence which goes to the substantive merits of the administrative decision. The County of Suffolk opinion explains the need for somewhat relaxed admissibility when the adequacy of an EIS is at issue as follows: 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). Plaintiffs question whether the affidavit of Mr. Eizenstat submitted by the Federal Defendants is properly admissible. I find that the affidavit is admissible under one of the exceptions set out in Asarco. Specifically, Asarco allows extrinsic evidence to fully explicate the decision-maker’s course of conduct or grounds of decision. The concept of allowing the decision-maker to supplement his decision through affidavits was specifically approved in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The Eizenstat affidavit falls within this well established exception to the rule that review should be limited to the record. 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 PUR-PA. 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, 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 “forwardpngj” them. 3.) Alleged Failure to Allow Public Comment 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. § 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 Advis- or 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. b. ) Criterion B 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. c. ) Criterion E 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. d. ) Criterion J 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. Therefore, apparently the President did make a finding with respect to criterion J. What effect, if any,- the apparent lack of publication of this finding has will be subsequently discussed. e.) National Interest 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 “submitted] 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. A.R. 8.58; 8.59. PURPA did not require anything else on the part of the President in this regard. 5.) Alleged Untimeliness of NTPC Proposal 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)(l)(P). 4. ) Findings Not Supported by Record No Oilport alleges that the President “adopted findings which are not supported by facts on the record submitted to the President.” In its argument No Oilport makes clear that this allegation relates to the President’s so-called finding that the NTPC proposal is capable of transporting crude oil both into, and out of, the northern tier states. 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. Waterman Steamship Authority, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1938); Braniff Airways, Inc. v. C. A. B., 581 F.2d 846 (D.C.Cir.1978). D. Conclusion The issues raised by No Oilport and the Tribes relating to PURPA are numerous, but uniformly without merit. The Secretary and the President adequately complied with the procedural requirements of the statute. The President’s substantive decision, if adequately challenged on the merits, is unreviewable. No genuine issue of material fact exists and defendants are entitled to summary judgment as to all issues arising under PURPA. IV. ISSUES ARISING UNDER NEPA A. Introduction The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., requires federal agencies to prepare in relation to all proposed major actions significantly affecting the quality of the human environment a detailed statement setting forth the environmental impact of the proposed action, alternatives to the proposed action and other environmental factors. Additionally, it calls for public participation through public hearings and comments on the Draft Environmental Impact Statement. Plaintiffs raise numerous issues in relation to NEPA. They can be classified into three categories: 1.) Miscellaneous procedural issues; 2.) Alleged inadequate evaluation of impacts; and, 3.) Inadequate evaluation of alternatives. NEPA’s mandate to the agencies is essentially procedural. Vermont Yankee Nuclear Corp. v. N. R. D. C., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Matsumato v. Brinegar, 568 F.2d 1289, 1290 (9th Cir. 1974) (en banc). It is this court’s obligation to determine whether the Secretary fully complied with the procedures mandated. Specifically, the Ninth Circuit Court of Appeals has stated that: An EIS is in compliance with NEPA when its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project’s environmental impact and encourage public participation in the development of the information. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). I have performed a thorough study of the EIS. It is an impressive, four volume document. Although it was compiled on an expedited basis, pursuant to the mandate of PURPA, I evaluated its sufficiency without regard to this fact. I find the EIS to be thorough and complete; the Secretary has fully complied with NEPA’s mandate. A more in-depth discussion of the various issues follows. B. Miscellaneous Procedural Issues 1. ) Draft EIS on Other Proposals NEPA requires that both a draft EIS and a final EIS be prepared. Plaintiffs contend that the Secretary violated NEPA because he did not prepare a draft EIS for any of the proposed pipelines other than NTPC’s proposed pipeline. Defendants respond that the other proposals do appear in the Draft EIS, but that they appear as alternatives. They contend that the Council on Environmental Quality approved the procedure. The Council on Environmental Quality approved the procedure by which the other proposals were treated as alternatives, provided that they were otherwise adequately evaluated. I find that the procedure used did not violate NEPA’s requirement that a draft EIS be prepared. The other proposals were adequately covered. The mere fact that they were classified as alternatives is not significant. 2. ) Draft EIS on NTPC Proposal All plaintiffs contend that the Draft EIS does not address the NTPC proposal to lay submarine pipeline beneath Puget Sound. NTPC did not announce its intention to change the route of its pipeline from around Puget Sound to across Puget Sound until after the Draft EIS was issued. Therefore, it was not possible to include the NTPC cross Sound route in the Draft EIS. Nonetheless, I find that this apparent deficiency was rendered harmless by other circumstances. First, it must be recognized that the primary reason for the requirement that a draft EIS be prepared is to allow public input. Under the circumstances presented here, this goal was achieved. The Draft EIS did contain, as an alternative, a similar cross Sound route. Therefore, individuals concerned about the impacts of crossing the Sound could have commented on this route. Moreover, due to the late change in route, the Secretary adopted the unusual procedure of allowing comments on the Final EIS. 3. ) Alleged Failure to Publish and Respond to Comments The Tribes and No Oilport allege that the Federal Defendants failed to publish and respond to comments submitted on the EIS as required by NEPA. The Federal Defendants deny these allegations and point to portions of the administrative record to support their denial. They do acknowledge that certain comments which were not timely received may have not been published and may not have received a response. This, of course, is not required as to untimely comments. Plaintiffs have failed to support their allegation that timely submitted comments were not responded to or published. The record indicates the contrary. 4. ) Notice to Tribes The Tribes contend that they were not given proper notice of the NEPA review process. Defendants deny this contention and rely on the administrative record. The record establishes that the public received adequate notice of the NEPA review process. The majority of the Tribes responded to this notice by participating, to at least some extent, in the NEPA review process. NEPA requires nothing more. 5. ) NTPC’s Participation in the Preparation of the EIS No Oilport and the Tribes make the vague, unsupported allegation that the Federal Defendants violated NEPA by failing to take responsibility for the preparation of the EIS, but instead delegated that responsibility to NTPC. This contention needs little comment. Apparently, plaintiffs are objecting to the fact that NTPC supplied some of the data. Such a procedure is not contrary to NEPA. Life of the Land v. Brinegar, 485 F.2d 460, 467-68 (9th Cir. 1973). At the same time, however, I am not condoning wholesale delegation to the applicant. The facts of this case do not even approach such a delegation. C. Alleged Inadequate Evaluation of Impacts Title 42 U.S.C. § 4332 requires that every EIS contain a “detailed statement” of probable impacts upon the human environment. Plaintiffs allege that this requirement was violated in that the EIS fails to adequately evaluate or fails entirely to evaluate various environmental impacts. The Ninth Circuit Court of Appeals has cautioned that the adequacy of an EIS “should be determined through use of the rule of reason. A reasonably thorough discussion of the significant aspects of the probable environmental consequences is all that is required by an EIS.” Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). I have applied this rule of reason and, as previously indicated, I find the EIS adequate in its evaluation of probable impacts. I shall now address the bulk of plaintiffs’ specific allegations of inadequacy. 1.) Impacts of Crossing Puget Sound Many of plaintiffs’ allegations relate to the potential impacts of placing an oil pipeline in Puget Sound. Their greatest concern relates to the potential of oil spills and leaks from such a pipeline and their effect on the Sound. Plaintiffs contend that the impacts of crossing the Sound were not adequately analyzed. An examination of the EIS disproves this contention. Indeed, a disproportionate amount of the EIS is directed to the impacts of crossing the Sound. Predicted oil spill frequency is discussed and evaluated, both as to minor and major spills. Predicted oil leakage is discussed and evaluated, both as to minor and major leaks. The impacts of minor and major spills and leaks are discussed, including the effect of a spill or leak on Indian fisheries. (The adequacy of the EIS in relation to potential impacts of the project on the Indians will be subsequently discussed.) The likelihood of the pipeline being snagged by an anchor is discussed in some detail. Furthermore, impacts associated with initial construction are considered. The City contends that the study used to predict oil spill trajectories was inadequate. In support of this contention, they cite criticism of the study by the Army Corps of Engineers. However, plaintiffs have failed to demonstrate that the alleged defects were known at the time of the preparation of the study or the Final EIS. Of even more importance is that a supplemental oil spill analysis was provided to the Secretary. In response thereto, the Secretary indicated in his recommendation to the President that oil spills could have greater impact than what was shown in the EIS. See, A.R. 8.49 at 11. Finally, it must be pointed out that mere difference in opinion between experts is not grounds for finding an EIS inadequate. Life of the Land v. Brinegar, supra at 472. 2.) Alleged Inadequacies Raised by The City The City contends that the EIS inadequately examines the impacts of the project, particularly the impacts of the oil terminal dock proposed to be built at Port Angeles, on the Port Angeles-Clallam County area. Some of The City’s major allegations are that the EIS failed to consider adequately the impact of the proposal on Ediz Hook; that the EIS failed to consider adequately the effect of the oil terminal on air quality; that the EIS failed to consider adequately the drain on the region’s electrical power supply; that the EIS failed to consider adequately secondary effects of the project, such as an alleged influx of petroleum based industry into the Clallam County area; that the EIS failed to consider adequately the impact of the project on social conditions in the Clallam County area; and that the EIS failed to consider adequately the impacts of the project on water supply and quality. An examination of the EIS discloses that all of these subject areas were discussed and evaluated, many of them at great length. The impacts on Ediz Hook and the Port Angeles Harbor were given special attention. The socio-economic impacts of the project were, likewise, given extensive consideration. I am compelled to conclude that all of the beforementioned subject areas were adequately addressed by the EIS. From reading plaintiffs’ legal argument and examining their exhibits, it becomes apparent that plaintiffs are more concerned with the accuracy of the EIS as opposed to the extent it goes into detail in relation to the various subject areas. Nowhere is this more true than in relation to the impact of the oil terminal on air quality. The discussion of this subject in the EIS assumed that tankers entering Port Angeles Harbor would be burning low sulfur fuel. The City has submitted evidence tending to suggest that such fuel might not be available. As previously stated, disagreement among experts does not render an EIS inadequate. Life of the Land v. Brinegar, supra at 472; Cady v. Morton, 527 F.2d 786, 796 (9th Cir. 1975). Furthermore, the EIS does express some amount of concern about the availability of low sulfur fuel. This concern was prompted by comments from the Environmental Protection Agency (EPA). See, Responses 2 and 50 to letter No. 86, Final EIS at 10-199, 10-201. NEPA does not require anything more. Plaintiffs’ other contentions are even less persuasive. Nonetheless, it is understandable that The City believes that the EIS should have discussed in more detail the impacts of the project on the Clallam County area. It is also not surprising that The City disagrees with some of the conclusions reached in the EIS. However, neither of these facts can justify a finding that the EIS is inadequate, in light of its thorough treatment of the impacts of the project on the Clallam County area. 3.) Alleged Inadequacies Raised by No Oilport No Oilport contends that the EIS is inadequate in its discussion of the impacts of the project on the one hundred year flood plain; the impacts of spills in rivers and streams; the impact of the project on private land; the impact of the project on Montana fishery resources; and, the impact of “energy corridors” in Montana. Each of these subject areas are discussed in the EIS. I find that the EIS is adequate as to each of them. One hundred year flood plain data was presented for 26 stream crossings. The EIS reports that such data was not available for 11 stream crossings in the Puget Sound area; however, watershed discharge data for these streams, including minimum and maximum flows, were presented. See, Final EIS 2-55, Table 2.1-50. The impact of an oil spill in rivers and streams was extensively addressed. This area will be discussed in relation to the Tribes’ contentions. The impact of the project on private land is discussed at some point in all four volumes of the EIS. Land use near the proposed oil terminal is discussed at 2 — 24 through 2-27 and 2-100 through 2-105 of the Final EIS. The impacts on various private entities, such as Crown Zellerbach and ITT Rayonier, are discussed. Furthermore, the impact on private land is extensively discussed in relation to predicted economic and social impacts. The impact of the project on Montana’s fishery resource is adequately discussed. Stream sedimentation is discussed at 3-74, 3-75 and Table 3.2-12 of the Final EIS. The impact on aquatic resources is discussed at 3-78 through 3-79 and 3-82 through 3-86. An “energy corridor” is the joint use of a right-of-way by a pipeline and high voltage electric transmission lines. The impacts and problems associated with such a use are adequately discussed at 1-12, 2-106, and 3-112 through 3-114 of the Final EIS. No Oilport also contends that the EIS does not contain an adequately detailed statement on the effect of capital intensive energy projects as opposed to renewable, labor intensive projects; and on the need for the project generally. Both of these contentions are restatements of No Oil-port’s contention that the “no action” alternative did not receive adequate consideration. This basic contention shall be dealt with in the following section on alternatives. Finally, No Oilport contends that the EIS is inadequate in that it fails to address the impact of the project on the Magnuson Amendment to the Marine Mammal Protection Act, 33 U.S.C. § 476. I know of no authority which requires an EIS to address legal issues. (Note that the merits of plaintiffs’ contentions relative to the Magnuson Amendment are discussed subsequently in Part VI.) 4.) Alleged Inadequacies Raised by the Tribes Plaintiff Tribes hold extensive rights, pursuant to treaty, to take fish from their usual and accustomed fishing places in the Puget Sound area. The Tribes contend that the EIS is inadequate in its evaluation and consideration of the impacts of the project on these fishing rights. They contend that the EIS is inadequate in its consideration of the impact of the treaty fishery of placing the pipeline in Puget Sound and across various rivers and streams. Additionally, they contend that the EIS inadequately considers the social impact which the project will have on members of the Tribes, particularly the impact of “boom towns.” Furthermore, a number of additional contentions, which I characterize as of less significance, are also raised by the Tribes. This project could affect the Tribes’ take of fish in essentially four ways: 1.) the cross Sound pipeline could leak or rupture; 2.) pipelines across streams and rivers could leak or rupture; 3.) construction of pipelines across rivers and streams could cause an increase in sedimentation, thereby destroying spawning grounds; and, 4.) tankers bringing oil to Port Angeles could spill oil. The EIS acknowledges all of these possibilities and discusses the probability of such events occurring. The EIS discusses the effect on the fish resource of such events occurring. It points out that minor leaks would have little or no effect, whereas a major rupture could be devastating to the fish resource. The EIS acknowledges that a major rupture “could result in significant loss to Native American tribal fish enterprises in western Washington.” Final EIS 5-9. The impact of constructing the pipeline across rivers and streams is discussed at 3-78 through 3-86 of the Final EIS. Table 3.2-15 at 3-84 of the Final EIS summarizes the impacts of the project on streams in western Washington. Furthermore, the map addendum is very informative. Among other things, it indicates the location of marine resources within the Strait of Juan de Fuca and Puget Sound; predicted oil spill trajectory; salmon fisheries for the Lower Elwha and Tulalip Indians; and, of course, the proposed route of the pipeline. In summary, the EIS’s treatment of the potential effect of the project on the Indian’s fishing enterprises is informative, thorough and, perhaps most important, clearly sets out those hazards which do exist. I also find that the treatment of the socio-economic impacts of the project on the Tribes is adequate. Much of the discussion of socio-economic impacts on the Clallam County area is applicable to the Tribes, this is particularly true of the Lower Elwha Indians and the Makah Indians. The Final EIS at 2-37 through 2-43 presents relevant data on water related economic activities, income and employment. The Tribes final major contention is that the project’s impact on air and water quality was not adequately addressed. Here, the impact on the Tribes is essentially the same as the impact on the public generally. The Tribes are particularly concerned about potential pollution associated with the oil terminal proposed to be located in Port Angeles Harbor. The EIS offers extensive information on this subject. The impact of oil spills, both inside and outside of the harbor, are discussed at 2-8 through 2-14 and 3-35 through 3-45 of the Final EIS. The impact of the project on air quality is discussed at 2-1 through 2-4 and 3 — 20 through 3-27 of the Final EIS. I find the EIS to be adequate in regard to the contentions raised by the Tribes. 5.) Mandatory “Hook-up” In selecting NTPC as the entity to receive the benefits of PURPA, the President stipulated that NTPC must hook up its pipeline to the Puget Sound area refineries. Such a system could effectively remove all crude oil tankers from navigable waters east of Port Angeles and thereby protect the environment. At the present time, Puget Sound refineries are serviced directly by tankers. All plaintiffs contend that the EIS did not adequately address the impacts of constructing a spur line from the NTPC pipeline to the Puget Sound refineries. The President did not issue his mandate that the spur pipeline be constructed until after the Draft EIS had been published; therefore, the spur pipeline was not addressed therein. It is discussed in the Final EIS; however, time factors obviously limited the depth of the discussion. See, Final EIS 6-3 through 6 — 7. Indeed, the authors of the EIS acknowledge that a separate or supplemental EIS will likely be required to address the specific impacts of the spur pipeline. Final EIS at 6-3. Defendants characterize the spur line as a separate and distinct aspect of the entire project, one which is independent of the rest of the project. They further point out that NTPC has not officially applied for a permit to construct the spur pipeline. For these reasons, defendants argue that the EIS can be evaluated, and approved, without regard to the spur pipeline which allegedly will be constructed. I agree with defendants’ contentions. Although President Carter stipulated that NTPC must make its pipeline available to Puget Sound area refineries in order to receive the benefits of PURPA, as yet NTPC has not set out a specific proposal by which “hook-up” will be implemented, nor has NTPC applied for a permit to construct the spur pipeline. Therefore, there presently is no proposed action for which an EIS must be prepared. Indeed, it is impossible to prepare an adequate EIS until the specifics of the proposal are known. See, Kleppe v. Sierra Club, 427 U.S. 390, 398-402, 96 S.Ct. 2718, 2724-2726, 49 L.Ed.2d 576 (1976). It would be unreasonable to hold up‘the entire project until NTPC advances its proposal to implement “hook-up” and the Secretary prepares an EIS on it. The spur pipeline is a separate and independent aspect of the project. The rest of the system is completely functional without the spur pipeline. Such a delay would be directly contrary to Congress’s directive that these actions be expedited. The adequacy of the EIS on the “hook-up” proposal can be reviewed once it is properly before the court. At this point, the court must assume that the Secretary will properly perform the duties imposed upon him by NEPA. D. Alternatives NEPA requires that an EIS consider alternatives to the proposed governmental action. All plaintiffs contend that this requirement was not satisfied in one manner or another. The Ninth Circuit has noted that this requirement is also subject to the rule of reason; the EIS simply must set forth sufficient information to enable the decision-maker to make a reasoned choice between alternatives. Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979). Having applied this rule to the EIS at issue today, I find that it adequately discusses alternatives. Plaintiffs’ major contentions are discussed below. 1. ) No Action or Delay Alternative All the plaintiffs contend that the EIS fails to adequately consider the alternative of no action or delay. These alternatives were specifically addressed at 9-1 of the Final EIS. Moreover, virtually the entire EIS describes impacts of the proposal which would not occur if the no action or delay alternative was accepted. In this regard, Chapter 2 describes the environment as it presently exists and Chapters 3, 5, 7, 8 and 9 describe the impacts on the environment of the project. The question of the need for the project is necessarily involved when the no action alternative is considered. The need for the project is discussed in the Final EIS at pp. vi-ix and at 9-159 through 9-161. Moreover, the need for the project is discussed in great detail in the Department of Energy’s report “Petroleum Supply Alternatives for the Northern Tier and Inland States to the Year 2000” (A.R. 8.56) which was referenced in the EIS and provided to the decision-makers. I am of the opinion that these discussions meet the requirements of NEPA. See, e. g. Farmland Preservation Ass’n v. Goldschmidt, 611 F.2d 233, 238-39 (8th Cir. 1979) (a two paragraph discussion of the no action alternative held satisfactory). 2. ) Alternative Routes Across Puget Sound The Tribes and No Oilport contend that the EIS inadequately considered alternative routes across Puget Sound. This contention is without merit. Alternative routes are discussed at pages 9-144 through 9-150 of the Final EIS. Moreover, the Trans Mountain proposal is an alternative to the NTPC project. The Trans Mountain proposal is discussed at pages 8- 22 through 8 — 144 of the Final EIS. 3. ) Alternative Ways of Handling Crude Oil The Tribes and No Oilport contend that the EIS is inadequate in that it fails to discuss alternative proposals for transporting foreign crude oil into the northern tier and inland states. To the contrary, I find the discussion at 9- 151 through 9-159 adequate. There the EIS discusses the Long Beach, California to Midland, Texas Pipeline; a Trans-Mexico pipeline; a Trans-Guatemala pipeline; a train system originating in Port Westwood, Oregon; the present system, shipment by tanker through the Panama Canal or around Cape Horn; and, trades with Canada. Furthermore, this final