Full opinion text
OPINION FITZGERALD, District Judge. In July of 1982, Secretary of the Interior James Watt approved a final five year plan for opening vast areas of the outer continental shelf to oil and gas leasing, exploration and development. The present sale, Lease Sale No. 70, proposes to lease 479 tracts in the St. George Basin of Alaska’s Bering Sea. Like almost every lease sale that the department has undertaken, this sale has been met with a formidable court challenge. The plaintiffs are the Villages of False Pass and Nelson Lagoon; the Bering Sea Fishermen’s Association and the United Fishermen of Alaska; Jack U. Williams, a resident of Mekoryuk, Nunivak Island; the Aleutian East Coast Service Area Board, and several conservation and public interest organizations including the National Audubon Society, the Friends of the Earth, the Natural Resources Defense Council, the Trustees for Alaska, and the Alaska Center for the Environment. The defendants are the Department of the Interior and its secretary, James G. Watt, and the National Oceanic and Atmospheric Administration and its administrator, John V. Byrne. The plaintiffs ask for declaratory and injunctive relief nullifying the decision of the Secretary of the Interior to lease approximately 2.7 million acres of the St. George Basin for oil and gas exploration and development. The St. George Basin holds some of the most important fish and wildlife resources in Alaska. Located in the southeastern Bering Sea between the eastern Aleutians and the Pribilof Islands, this basin is the gateway for virtually every marine mammal, fish, and bird species moving between the North Pacific and the Bering Sea; it also includes or adjoins wintering grounds for most of the species that move between the Arctic Ocean and the Bering Sea and North Pacific. The diversity and seasonal abundance of these animals in and adjacent to Unimak Pass and along the continental slope can be found in no other part of Alaska and perhaps the world. The ecological significance of this region to marine mammals (as well as other wildlife and fishes) is not yet fully understood, but in sheer numbers and multitude of species it is a region of primary importance. Of about 35 marine mammal species in the northern North Pacific and Bering Sea, 89 percent of the baleen whales, 57 percent of the toothed whales, and 73 percent of the seals and walruses regularly frequent the basin. The area contains important breeding and feeding habitats for many of these animals and is a transition zone during migration for others. About 75 percent of the world population of northern fur seals breed and feed in the basin and the adjacent Pribilof Islands. For the eastern North Pacific gray whale, the basin and immediately adjacent waters are also vital during migration. Large numbers of Steller (northern) sea lions, harbor seals, spotted seals, ribbon seals, bearded seals, walruses, fin whales, and sea otters feed in and near the basin and, in several cases, mate, pup, and rear their young there as well. About half of the St. George Basin lease area is comprised of shallow continental shelf waters from 200 to 400 meters deep; depths in the southern half range mainly from 200 to 3,500 meters. The proposed lease area is located on the outer continental shelf, within the basin proper, in waters 100-200 meters deep, about midway between the Pribilofs and Unimak Island. The importance of the lease area as a migratory corridor for many species of marine mammals, as well as fish and birds entered and leaving the Bering Sea, is well documented. The basin and Unimak Pass are also on the main shipping lane between the Bering Sea and North Pacific Ocean, and will be on the route taken for tankers carrying oil from more northern fields after production begins. According to the environmental impact statement prepared by the Department of the Interior, the likelihood of success for the proposed lease sale is 28% that commercial oil and 37% that commercial gas resources will be discovered within the lease area. Hence, the probability is 72% that no commercial oil will be discovered and 63% that no commercial gas discovery will be made. In the event of discovery of commercial oil, it is estimated with a 95% statistical probability that 1.12 billion barrels of oil will be recovered from the area covered by the lease. St. George Basin Final Environmental Impact Statement (FEIS) at II-1-2. Should the sale be completed the exploratory period is expected to begin in 1983 and end by 1987. Peak exploratory drilling activities should occur in 1985 with the employment of five drilling rigs and the completion of 15 wells. If hydrocarbons are located during the exploratory period, the development period could begin as early as 1985 with the placement of a production platform. .The development period should end by 1991. During this period, as many as 250 production and service wells may be drilled from 11 production platforms. Pipeline construction should begin in 1987 and be completed in 1988. Total pipeline mileage in place would vary according to the location of the onshore processing facilities. Pipelines would likely be laid entirely under water except for the final few kilometers. However, if a facility is located at a port on the south side of the Alaska Peninsula, then approximately 48 kilometers of the pipeline would have to travel over land. Oil production is .expected to begin in 1989 and reach a peak output of 242 million, barrels in 1991. Gas production could also begin in 1989. However, peak production of gas would not occur until 1993. Beyond 1991, industry activities could be-expected to be confined to production operations. The volume of recovery is expected to decline with oil output ending in 2010 and gas reserves completely exhausted in 2019. FEIS, Table II. B.l.a-1. The plaintiffs have mounted a broad base attack claiming the Secretary’s decision is inadequate on many grounds. According to plaintiffs: 1. The Secretary has arbitrarily and capriciously failed to fulfill his duty under the Outer Continental Shelf Lands Act to insure that offshore oil and gas activities are conducted in a balanced manner and without unreasonable risk to the biological resources of the St. George Basin. 2. Secretary Watt has violated the National Environmental Policy Act by preparing an inadequate environmental impact statement for Lease Sale 70. 3. The final environmental impact statement is inadequate because it fails to contain a worst case analysis of impacts on the resources of the Lease Sale 70 region. 4. The environmental impact statement is inadequate because it fails to adequately analyze adverse effects of Lease Sale 70. 5. The Secretary violated the Endangered Species Act by acting before he had received the biological opinion for the St. George Basin from the National Marine Fisheries Service. 6. The Secretary failed to insure that the gray and right whales will not be jeopardized by activities in the area of Lease Sale 70. Soon after the complaint was filed, plaintiffs moved for a preliminary injunction with supporting papers, including extensive memoranda and numerous exhibits. An expedited hearing on plaintiffs’ application was scheduled for April 8, 1983. Shortly before the hearing, AMOCO Production Company, Exxon Corporation, Mobil Oil Corporation, ARCO Alaska, Inc., Gulf Oil Corporation, Murphy Oil Corporation, Shell Oil Company, Union Oil Company of California, and Texaco, Inc., applied for and were granted leave to intervene. The federal defendants and the intervenors filed papers on April 7,1983, responding in detail to all claims advanced by plaintiffs. After the matter was fully argued on April 8, 1983, the parties agreed to file supplemental papers and to submit all issues for final decision. The plaintiffs agreed to withdraw their application for a preliminary injunction, following the government’s agreement that no leases would be executed until after the close of business on May 12, 1983. A. THE OUTER CONTINENTAL SHELF LANDS ACT In 1978, Congress, responding to increasingly serious domestic energy problems, passed the Outer Continental Shelf Lands Act Amendments of 1978. P.L. 95-372, 92 Stat. 630. The stated purpose of these amendments was to expedite the exploration and development of the outer continental shelf while retaining adequate assurances that the marine and coastal environments would be protected. 43 U.S.C. § 1802. In order to accomplish these goals, the act provides for an intricate combination of studies, reports, consultations, permits, plans, and licenses covering every aspect of the leasing and development process and involving federal, state, and local governments and regulatory bodies at every level. See, 43 U.S.C. §§ 1331-56. The passage of this act has had substantial impact on traditional notions of environmental planning as they apply to the outer continental shelf. As a general rule evaluation of the environmental impacts of a federal action should take place early in the project’s planning stages. The detail that is required, however, depends heavily upon the nature and scope of the proposed action. State of California v. Block, 690 F.2d 753, 761 (9th Cir.1982). The federal defendants and the intervenors contend that lease development on the outer continental shelf is, both by statute and by regulation, a phased process that proceeds in distinct stages. They conclude that the environmental investigations and decisions that accompany development of these resources must also proceed in stages. Since this assertion applies to most of the issues in this litigation, it becomes necessary at the outset to examine the statutory scheme. The Outer Continental Shelf Lands Act divides the process of developing oil and gas leases on the outer continental shelf into three phases: leasing, exploration, and development and production. Oil and gas leasing is authorized by 43 U.S.C. § 1337 which allows the Secretary of the Interior to grant oil and gas leases on the submerged lands of the outer continental shelf to the highest bidder under a competitive bidding system. These leases are for a base period of from 5 to 10 years, but continue in force for as long as oil and gas is produced in paying quantities. 43 U.S.C. § 1337(b)(2). The lease entitles the lessee to explore, develop, and produce oil and gas contained within the boundaries of his lease, conditioned upon due diligence and “the approval of the development and production plan required by this Act.” 43 U.S.C. § 1337(b)(4). Before any leases are issued, the Secretary must prepare an environmental impact statement for the lease sale and determine that the sale is consistent to the maximum extent practicable with the coastal zone management plan of any affected state which has an approved plan. State of California v. Watt, 683 F.2d 1253 (9th Cir.1982). The exploration phase begins with the preparation of an exploration plan. Prior to approval of this plan, no lessee may undertake any exploration activity other than “preliminary activities.” These are defined as “geological and geophysical and other surveys necessary to develop a comprehensive exploration plan.” In no instance may preliminary activities “result in any physical penetration of the seabed of greater than 300 feet of unconsolidated formations, or 50 feet of consolidated formations” or “result in any significant adverse impact on the natural resources of the Outer Continental Shelf... ” 30 C.F.R. 250.34-1(a)(1). In addition, if any exploration activity would affect land or water use in the coastal zone of a state having an approved coastal zone management plan, the Secretary may not issue a license or permit for that activity unless the state agrees that the activity is consistent with its plan or the Secretary of Commerce finds that agreement is not necessary. 43 U.S.C. § 1340(c)(2). The Outer Continental Shelf Lands Act provides authorization for the Secretary of the Interior to promulgate regulations imposing additional requirements on the approval of exploration plans. 43 U.S.C. §§ 1334(a), 1340(c)(1). In the exercise of this authority, the Secretary has promulgated regulations requiring that a lessee prepare an Environmental Report (Exploration) for submission with the exploration plan. 30 C.F.R. § 250.34-l(a)(2)(i). The environmental report must be in summary form and include all accurate, applicable and current information available at the time the related exploration plan is submitted. 30 C.F.R. § 250.34-3(a). The lessee shall refer to information and data contained in the related plan, other Environmental Reports, and other environmental analyses and impact statements prepared for the geographic area by identifying the information and indicating a source for obtaining copies of the cited materials. Information and data which are site specific or which are developed subsequent to the most recent environmental impact statement or other environmental impact statements and analyses in the immediate area shall be specifically considered. Id. This environmental report must consider: 1. facilities for preventing, reporting, and cleaning up spills; 2. location, size, number and land requirements of onshore support and storage facilities; 3. estimated numbers of employees and families likely to locate in the affected area; 4. likely travel routes for boat and aircraft between onshore and offshore facilities; 5. quantity and composition of solid and liquid wastes and pollutants likely to be generated by offshore, onshore, and transport operations; 6. major supplies, services, energy, water, or other resources within affected states necessary to carry out the related plan; and 7. environmentally sensitive or potentially hazardous areas. 30 C.F.R. § 250.34 — 3(á)(l)(i). It must also contain: an assessment of the direct effects on the offshore and onshore environments expected to occur as a result of the exploration plan, expressed in terms of magnitude and duration, with special emphasis upon identification and evaluation of unavoidable and irreversible impacts on the environment. 30 C.F.R. § 250.34-3(a)(l)(ii). In short, the Secretary, before allowing any exploration to proceed, must conduct public hearings, give extensive consideration to the environmental consequences of exploration, and guarantee consistency with the coastal management program of any state that is affected by the outer continental shelf activity. The Secretary is required to approve an exploration plan if he finds that it is consistent with the Outer Continental Shelf Lands Act, its regulations, and the terms of the lease. 43 U.S.C. § 1340(c)(1). He retains, however, the authority to reject the plan and eventually cancel the lease, if he determines, after a hearing, that (i) continued activity pursuant to such lease or permit would probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral (in areas leased or not leased), to the national security or defense, or to the marine, coastal, or human environment; (ii) the threat of harm or damage will not disappear or decrease to an acceptable extent within a reasonable period of time; and (iii) the advantages of cancellation outweigh the advantages of continuing such lease or permit in force. 43 U.S.C. § 1334(a)(2)(A). If commercial quantities of oil and gas are discovered by the lessee in the course of exploration, a development and production plan must be prepared. At the minimum, the plan must include: (1) the specific work to be performed; (2) a description of all facilities and operations located on the outer Continental Shelf which are proposed by the lessee or known by him (whether or not owned or operated by such, lessee) to be directly related to the proposed development, including the location and size of such facilities and operations, and the land, labor, material, and energy requirements associated with such facilities and operations; (3) the environmental safeguards to be implemented on the outer continental shelf and how such safeguards are to be implemented; (4) all safety standards to be met and how such standards are to be met; (5) an expected rate of development and production and a time schedule for performance; and (6) such other relevant information as the Secretary may by regulation require. 43 U.S.C. § 1351(c). Here again, the Secretary may not grant any license or permit for any activity described in the plan that affects any land or water use in the coastal zone of a state having an approved coastal zone management plan unless the state concurs or concurrence is excused. 43 U.S.C. § 1351(d). A lessee seeking approval of a development and production plan must submit, in addition to the proposed plan, an environmental report containing information not otherwise contained in the related exploration plan. 30 C.F.R. § 250.34-3(b). This environmental report must contain a description of: 1. the location, description, and size of any offshore and land-based operations proposed for the activity; 2. the requirements for land, labor, material and energy for these operations; 3. a schedule of near-shore and onshore activities corresponding to the offshore development and production activities; 4. a description of environmental monitoring systems; 5. a description of contingency plans for the area and discussion of pollution prevention and clean up equipment to be maintained there; and 6. a narrative description of the existing environment. 30 C.F.R. § 250.34-3(b)(l). While the Outer Continental Shelf Lands Act does not specifically require the preparation of an environmental impact statement at any particular phase of the development process, the National Environmental Policy Act requires that one be prepared for any major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332. In addition, regulations provide that at each stage of the development process the Secretary must determine whether or not an environmental impact statement must be prepared. 30 C.F.R. § 250.34-4. Similar procedures must be followed for significant amendments to any plan. Id. Moreover, the Secretary must, at least once, declare the approval of a development and production plan in any area or region of the outer continental shelf to be a major federal action. 43 U.S.C. § 1351(e)(1). If approval of a development and production plan is found to be a major federal action, the Secretary is required to transmit a draft environmental impact statement to the governor of any affected state and make the draft available to any appropriate interstate regional entity and to the public. 43 U.S.C. § 1351(f). Several conclusions can be drawn from this statutory scheme. First, Congress has decided to allow key decisions having serious environmental consequences to be made at the exploration and production and development stages instead of requiring all decisions to be made at the preleasing and leasing stages. Second, in order to protect environmental values, Congress has given the Secretary broad, continuing powers of supervision, including the power to modify, suspend, or even cancel the leases during the course of development when necessary to protect the environment. Third, the Secretary’s failure to include specific protections for the environment at the leasing stage will not, of itself, be sufficient to stop the leasing process. Review of such a secretarial decision must always consider whether the decision to impose safeguards is one that would be made more appropriately at a later stage of development when more information will be available and the environmental dangers can be more clearly perceived. These conclusions are supported by the legislative history of the Outer Continental Shelf Lands Act. The report of the Ad Hoc Select Committee on the Outer Continental Shelf states that: [The Act] provides a means to separate the Federal decision to allow private industry to explore for oil and gas from the Federal decision to allow development and production to proceed if the lessee finds oil and gas. The failure to have such a mechanism in the past has led to extensive litigation prior to lease sales, when onshore and environmental impacts of production activity are not yet known. In fact, the failure to have this procedure has led, in part, at least one court to invalidate an entire lease sale. H.R.Rep. No. 95-590, 95th Cong., 1st Sess., pg. 164, reprinted in [1978] U.S.Code Cong. & Ad.News 1450, 1570. The legislative intent expressed in the statute and the legislative history has also been recognized and applied in a number of judicial decisions. North Slope Borough v. Andrus, 642 F.2d 589 (D.C.Cir.1980) considered an environmental challenge to the Beaufort Sea lease sale. In discussing the relevant legislation, the court observed that the Outer Continental Shelf Lands Act, the Endangered Species Act, and the Marine Mammal Protection Act each authorized the Secretary to review activities taking place under the leases on an ongoing basis and to suspend any activities which jeopardized the environment. The court concluded that the Outer Continental Shelf Lands Act contemplated future consideration by the Secretary of environmental problems developing after the lease sale. In fact, a purpose of OCSLA is to permit an expedient resolution of preliminary matters in the development of oil lands while preserving administrative and judicial review for future times when potential threats to the environment are readily visualized and evaluated. The 1978 amendments to OCSLA which authorize the Secretary to suspend activities on a lease if “continued activity ... would .. . cause harm ... [to marine life or environment]” must be taken seriously. The congressional intent to facilitate these lease sales, and to save until concrete a significant portion of substantive environmental determinations, compels this court to sanction the lease sale with confidence that environmental safeguards persist. Id. at 595. More recently, the Court of Appeals for the Ninth Circuit in State of California v. Watt, 683 F.2d 1253 (9th Cir.1982), considered a challenge to Lease Sale 53 off the coast of California. The district court had allowed bids on the tracts in proposed Lease Sale 53 to be received and opened but had granted a preliminary injunction preventing the Department of the Interior from accepting or rejecting the bids or issuing leases on disputed tracts. The court of appeals acknowledged being influenced by the fact that additional environmental impact statements would be required in the later exploration, development and production stages and that these would, of course, be based on the latest estimates available at the time the statements were prepared. Id. at 1268. See also, State of California v. Watt, 668 F.2d 1290 (D.C.Cir.1980); Conservation Law Foundation v. Andrus, 623 F.2d 712 (1st Cir.1979). Curiously enough, the best discussion of present state of the law can be found in a case decided before the Outer Continental Shelf Lands Act Amendments were enacted. In County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.1977), a challenge had been made to Lease Sale 40 in the Baltimore Canyon Trough. The trial court had concluded that the environmental impact statement for Lease Sale 40 was inadequate because it failed to project possible pipeline routes and evaluate their feasibility in light of the myriad applicable state and local land use controls. 562 F.2d at 1374. In reversing this conclusion the court of appeals noted the real tension between the National Environmental Policy Act and the practicalities of offshore oil and gas exploration. On the one hand an environmental impact statement should “consider all significant environmental consequences that can reasonably be expected to flow from the decision to which the environmental impact statement relates.” Id. at 1377. Because of this, an environmental impact statement cannot simply ignore known environmental consequences because they can be considered at a later time. Id. All environmental consequences should be considered to the extent “meaningfully possible.” Id. On the other hand, the court recognized that the Baltimore Canyon lease sale proceeded in three distinct stages. Id. Because of this, there might be circumstances in which postponing a decision until more data became available would be the wisest and fairest choice. Id. at 1378. The opinion concluded that in considering when a decision can be deferred, two factors must be kept in mind: 1) whether obtaining necessary information is “meaningfully possible” at the earlier time; and 2) the importance of having the additional information in making the initial decision to proceed. Id. The court concluded that: ... where a multistage project can be modified or changed in the future to minimize or eliminate environmental hazards disclosed as the result of information that will not become available until the future, and the Government reserves the power to make such a modification or change after the information is available and incorporated in a further EIS, it cannot' be said that deferment violates the “rule of reason.” Indeed, in considering a project of such flexibility, it might be both unwise and unfair not to postpone the decision regarding the next stage until more accurate data is at hand. Id. at 1378. County of Suffolk dealt only with the relation between the National Environmental Policy Act and offshore drilling programs. It did not consider other acts such as the Endangered Species Act or the Coastal Zone Management Act. Moreover, it did not consider the 1978 Amendments to the Outer Continental Shelf Lands Act since they were not yet effective. I conclude, however, that the general principles established by the case apply equally well to other acts protecting the environment, including the Coastal Zone Management Act and the Endangered Species Act. See, State of California v. Watt, 683 F.2d at 1265; North Slope Borough, 642 F.2d at 608-09. The 1978 amendments impose a stratified structure on oil and gas exploration on the outer continental shelf much like that considered in County of Suffolk. They have, therefore, only strengthened that case’s applicability. It follows that when any environmental statute is applied to oil and gas operations on the outer continental shelf, consideration must be given to the application of the Outer Continental Shelf Lands Act. In deciding whether the gathering of information or the implementation of protective measures can be deferred until a later stage in the development process, a number of factors must be taken into consideration. These factors include, but are not limited to, 1. the terms and purpose of the statute under consideration; 2. the importance to the decision that the information will have at the present stage; 3. the degree to which it is “meaningfully possible” to gather the necessary relevant information; and 4. the extent to which the Secretary retains power to monitor and control environmental consequences as activity progresses. With these principles in mind, I now turn to the plaintiffs’ claims under the Outer Continental Shelf Lands Act. When conflicts arise between exploration of the oil and gas reserves of the outer continental shelf and other uses of the marine environment, the federal government has assumed primary responsibility for minimizing the conflict. 43 U.S.C. § 1801(13). The Outer Continental Shelf Lands Act undertakes to expedite resource development and to protect the coastal marine environment. 43 U.S.C. § 1802(2). Plaintiffs claim that this imposes a duty on the Secretary to conduct offshore oil and gas activities in an evenhanded manner and to impose whatever safeguards are necessary to avoid an unreasonable risk to biological resources. Plaintiffs contend the Secretary failed to adopt the tract deletions and other mitigation measures that had been proposed by environmental groups, the State of Alaska and other interested parties, and failed to perform his duty fairly and impartially as required by the act. Moreover, they claim he relied upon a flawed secretarial issue document in comparing the benefits and costs of the lease sale, and his decision must therefore be erroneous. The Outer Continental Shelf Lands Act imposes a specific duty to balance development and environmental values in only two instances. First, under the act the Secretary is required to prepare a five year plan for leasing on the outer continental shelf. 43 U.S.C. § 1344(a). In preparing this program he is required to ... select the timing and location of leasing, to the maximum extent practicable, so as to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone. 43 U.S.C. § 1344(a)(3). The federal defendants rightly point out, however, that I am without jurisdiction to consider claims under this section. Any action of the Secretary under 43 U.S.C. § 1344 is reviewable only in the United States Court of Appeals for the District of Columbia. 43 U.S.C. § 1349(c)(1). A duty to proceed in a balanced manner is also imposed by Section 19 of the Outer Continental Shelf Lands Act 43 U.S.C. § 1345. This section provides a mechanism for coordination between the federal government and state and local governments affected by the sale. The governor of any affected state or the executive of any affected local government may, within sixty days after receiving notice of a proposed lease sale, submit recommendations to the Secretary of the Interior “regarding the size, timing, or location of any proposed lease sale.” ' 43 U.S.C. § 1345(a). The Secretary is required to accept the governor’s recommendations if he determines, after providing an opportunity for consultation, that “they provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State.” 43 U.S.C. § 1345(c). The Secretary’s decision must be communicated to the governor in writing and cannot be set aside unless it is arbitrary or capricious. 43 U.S.C. § 1345(c), (d). On December 2, 1982, Secretary Watt sent a copy of the proposed notice of sale for Lease Sale 70 to then-Governor Jay Hammond and requested him to review the notice and submit the comments allowed by section 19. Ad. rec. at 9. Governor Sheffield responded in a letter to the Secretary on February 1, 1983. Plaintiffs’ exhibit 6. He recommended that two stipulations be included in the final notice of sale, one covering oil spill response capability and the other the use of pipelines and loading facilities. He also recommended the addition of six information-to-lessees clauses covering special oil spill contingency plans for tracts near the Pribilofs and Unimak Pass, establishment of a biological task force, the need for drilling discharge permits, incorporation of local individuals and communities in environmental training programs, hiring of local residents, and cooperation with local organizations. The question of tract deletions was not addressed. The Secretary responded to these recommendations by letter on March 31, 1983. Federal defendants’ exhibit 1. After discussing each of the concerns raised in the governor’s letter, the Secretary decided to include two stipulations, nos. 6 and 7, in the final notice of sale, to add additional information-to-lessee clauses and to amend some of those already proposed. While the Secretary did not adopt all of the state’s recommendations, substantial accommodations were made. ■ As a result, the State of Alaska has not become a party to this litigation. Plaintiffs find support for their claim that the Secretary has not struck a reasonable balance in the estimate that 4 to 7 oil spills can be expected during the course of outer continental shelf exploration, development and production in the St. George Basin. They claim that current oil spill containment and clean up techniques are insufficient to cope with substantial releases of oil in the Bering Sea environment and that a major oil spillage could jeopardize the continued existence of endangered gray and white whales, cause serious harm to other marine mammals and seabirds, and produce long term adverse impacts on the commercial fisheries and shell fisheries. In deciding whether the Secretary’s decision not to adopt the proposed mitigating measures was arbitrary or capricious, I can consider only whether the decision “was based on a consideration of the relevant factors and whether there was a clear error of judgment.” State of California v. Watt, 683 F.2d at 1268, quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The decision must be examined to discover whether the Secretary “articulated a rational connection between the facts found and the choice made,” and made his decision in accordance with the law. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S. Ct. 438, 441, 42 L.Ed.2d 447 (1974); 683 F.2d at 1269. The concerns with oil spills and their consequences that the plaintiffs raise here have been contested throughout the planning process for Lease Sale 70. The administrative record reflects numerous references to these questions and they have been addressed by the Secretary on many occasions. See e.g., FEIS at IV, passim; V-3, 7; K-64, 95; Letter from Secretary Watt to Governor Sheffield, March 31, 1983, Federal defendants’ exhibit 1. On this record there can be no question that the Secretary’s decision considered all the relevant factors in this area. Additionally, the diffuse and generalized nature of plaintiffs’ claims make it difficult to specify in what way the Secretary’s judgment might be in error. Given that section 19 provides little or no guidance as to the proper balance to be struck by the Secretary between competing national and local interests, see 520 F.Supp. at 1384, the burden is on the plaintiffs to provide specific instances where the balance has been improperly struck. In effect, plaintiffs ask me to reevaluate the evidence and make my own decision as- to what a proper balance should be. This I am unable to do. 683 F.2d at 1269. Plaintiffs’ claim of deficiencies in the secretarial issue document are also misdirected. This document was prepared by the Minerals Management Service of the Bureau of Land Management in November of 1982 to assist the Secretary in choosing among the lease sale alternatives. After briefly stating the concerns of various interested parties, including several of the plaintiffs, the document attempts to quantify the social costs and benefits of the proposed sale and its various alternatives. The plaintiffs allege three deficiencies in this document: 1. the secretarial issue documents for Lease Sale 70"and for the five year leasing program are inconsistent. The former gives an estimate of 1.2 billion barrels of oil for the lease sale area and the latter give an estimate of only .7 billion barrels of oil for the whole St. George Basin, a region which includes two other lease sale areas; 2. the secretarial issue document improperly uses a conditional resource estimate instead of an unconditional resource estimate; 3. the secretarial issue document relies on inaccurate assumptions contained in the environmental impact statement. None of these claims was raised by the governor of Alaska. Since section 1345 deals only with the Secretary’s acceptance or rejection of the governor’s recommendations, it would be inappropriate to consider these claims. Were it appropriate, however, to consider these claims, I conclude that each is without merit. The 1.12 billion barrel estimate for oil reserves is taken from the final environmental impact statement, which explains the method by which it is derived. FEIS at II — 1. As the environmental impact statement admits, the estimates are subject to a great many variables and thus have a large margin for error. Id. In fact, the final environmental impact statement notes that the resource estimates vary from .24 billion barrels to 3.04 billion barrels and that 1.12 billion barrels is the mean estimate. Id. Plaintiffs have provided no evidence that the data on which the projection is based is false or that the methodology used to arrive at this mean estimate is incorrect. Given the broad margin for error contained in the final environmental impact statement, I do not find the above discrepancy in estimates unacceptable. See, State of California v. Watt, 683 F.2d at 1268 (oil resource estimates inherently speculative). With respect to plaintiffs’ claim that the analysis of economic benefits should be based on unconditional resource estimates and not on conditional resource estimates, I have previously noted that my review is limited to ensuring that the Secretary has considered all the relevant factors and made no clear error of judgment. 683 F.2d at 1268. The secretarial issue document clearly indicates that the estimates used are conditional and the Secretary has not been misled. In effect, plaintiffs claim that if unconditional estimates were used, the Secretary would be required to cancel the sale since the economic benefits would no longer outweigh the costs. The statute, however, does not require the Secretary to effect a strict quantitative comparison of the costs and benefits. Instead he is required to balance “the national interest and the well-being of the citizens of the affected State.” 43 U.S.C. § 1345(c). As the Court of Appeals for the District of Columbia has observed in connection with its discussion of section 18(a)(3) of the Outer Continental Shelf Lands Act: A balancing of factors is not the same as treating all factors equally. The obligation instead is to look at all factors and then balance the results. The Act does not mandate any particular balance, but vests the Secretary with discretion to weigh the elements so as to “best meet national energy needs.” State of California by and through Brown v. Watt, 668 F.2d 1290, 1317 (D.C.Cir.1981). This claim is therefore without merit. Finally, plaintiffs’- claim that the secretarial issue document relies on inaccurate assumptions contained in the final environmental impact statement is also without merit since, as will be shown, no such inaccurate assumptions are made in the final environmental impact statement. B. THE NATIONAL ENVIRONMENTAL POLICY ACT In making decisions about leasing on the outer continental shelf, the Secretary considers an extensive administrative record. Preparation for the St. George Lease Sale, for example, began on July 26, 1979 when the Department of the Interior issued a call for nominations and comments on proposed Lease Sale 70. 44 Fed.Reg. 43, 818. The call sought comments from interested federal agencies, the State of Alaska, and the general public on the desirability of holding the sale and the tracts that ought to be offered for lease. The Department’s tentative tract selections were announced in February of 1980. See, FEIS at 1-3. As part of the preparation of a draft environmental impact statement for the sale, a meeting of scientists working on outer continental shelf problems was held in April of 1980 under the auspices of the National Oceanic and Atmospheric Administration and the Bureau of Land Management. This so-called synthesis meeting, part of an ongoing program of meetings under the Outer Continental Shelf Environmental Assessment Program, attempted to evaluate the then available environmental information as it bore on the proposed lease sale. A synthesis report, “The St. George Basin Environmental and Possible Consequences of Planned Offshore Oil and Gas Development”, containing the results of this meeting, was published in March of 1981. In October of 1981 the Bureau of Land Management issued a draft environmental impact statement for Lease Sale 70. Public hearings on this document were held in Cold Bay, Unalaska, St. Paul, and Anchorage and a large number of comments were received, including extensive comments by most of the plaintiffs in this suit. FEIS, appendix K. Based on this information a final environmental impact statement was prepared and issued by the Bureau in August of 1982. Both the Coastal Zone Management Act, 16 U.S.C..§§ 1451-64, and the Endangered Species Act, 16 U.S.C. §§ 1531-1543, require the preparation of reports dealing with the environmental consequences of offshore leasing. Under the Coastal Zone Management Act, any federal agency “conducting or supporting activities directly affecting the coastal zone” of a state having an approved coastal zone management plan, must submit to the governor of the affected state a document known as a consistency determination. The consistency determination must include a detailed description of the activity and its associated facilities, an analysis of the projected effects on the state’s coastal zone, and comprehensive data sufficient to support a finding that the activity is consistent with the state plan “to the maximum extent practicable.” 16 U.S.C. § 1456(c)(1); 15 C.F.R. § 930.39. A consistency determination for Lease Sale 70 was prepared and submitted to the State of Alaska on December 3, 1982. The Endangered Species Act requires each federal agency to ensure that its activities are not likely to jeopardize the continued existence of any endangered or threatened species. 16 U.S.C. § 1536(a)(2). Whenever an agency proposes to undertake any action which “may affect” any endangered species, it must undertake formal consultation with the Secretary of Commerce for the purpose of determining the effect of the proposed action on the endangered species. After this consultation is finished, the Secretary of Commerce is required to provide the agency with a biological opinion detailing how the agency action affects both the species and its habitat and suggesting reasonable and prudent alternatives for avoiding the adverse impact. 16 U.S.C. § 1536(b). On June 6, 1980 the Bureau of Land Management requested formal consultation with the National Marine Fisheries Service about the effect on endangered whales of lease sale activities in the whole Bering Sea Region. The resulting regional opinion was eventually included as an appendix to the final environmental impact statement. FEIS, appendix D. Formal consultation directed specifically at Lease Sale 70 was initiated on June 16, 1982. The biological opinion for this consultation, referred to by the parties as the St. George opinion, was issued by the National Marine Fisheries Service on March 9, 1983. Since the crux of most challenges under the National Environmental Policy Act is the adequacy of the environmental impact statement, identification of the record on which that adequacy is to be judged can be crucial. The adequacy of the environmental impact statement itself is to be judged solely by the information contained in that document. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir.1980). Documents not incorporated in the environmental impact statement by reference or contained in a supplemental environmental impact statement cannot be used to bolster an inadequate discussion in the environmental impact statement. Id. At the same time, the administrative record plays an important part in judicial review of the adequacy of an environmental impact statement. An environmental impact statement is not required to discuss every conceivable consequence of an agency’s actions. Under the rule of reason, the environmental impact statement is not required to consider alternatives or consequences that are only speculative or are too remote. 626 F.2d at 1074. In making a decision whether a particular alternative should have been discussed in the environmental impact statement or should have been discussed more extensively, a court may, however, rely on evidence in the administrative record outside of the environmental impact statement. Id. It may also take evidence, including expert testimony, on technical matters. 562 F.2d at 1384. Neither the administrative record outside of the environmental impact statement nor any additional evidence may be used to remedy any deficiency in the environmental impact statement. 626 F.2d at 1024. See also, State of California v. Block, 690 F.2d at 765. In the present case, the final environmental impact statement incorporates by reference the Bering Sea regional biological opinion. FEIS, appendix D. I have therefore given careful consideration to the information contained in it in deciding whether or not the final environmental impact statement is adequate. The St. George Basin biological opinion on the other hand, was not prepared until after the issuance of the final environmental impact statement and has not received the treatment necessary for a supplemental environmental impact statement. Plaintiffs’ exhibit 2; 40 C.F.R. § 1502.9(c)(4). I do not consider the information in this document, therefore, to add to that already contained in the environmental impact statement. As can be seen from the discussion below, however, I do consider it in determining whether the scope of the discussion in the environmental impact statement is adequate. Plaintiffs’ claims under the National Environmental Policy Act fall into two general categories. The first category deals with oil spills and the consequences of petroleum in the environment. Plaintiffs contend that the environmental impact statement has not adequately analyzed several crucial problems in this area including: 1. the impacts of different sized oil spills; 2. toxicity of oil after 3-10 days; 3. persistence of oil in the Arctic marine environment; 4. oil spill impacts on the food chain; 5. impacts of transportation a. by pipeline to the Alaska Peninsula, b. south of the Alaska Peninsula via tanker, c. subsurface transportation of oil; and 6. the impacts of subsurface blowouts. The second category relates to plaintiffs’ contentions that the environmental impact statement is inadequate because it fails to contain certain worst case analyses. The federal defendants and the intervenors in response assert that all of these topics have been adequately considered. They also suggest that the parameters of an environmental impact statement prepared prior to a leasing decision must be determined in part by the environmental consequences implicated by the decisions to be made. Since the Secretary’s decision here is only to lease the tracts and not to authorize exploration or production activities, the scope of the environmental impact statement would be limited to those activities which could be conducted without further review or authorization by the Secretary. The federal defendants and intervenors further suggest that a lessee obtaining a federal oil and gas lease on the outer continental, shelf is authorized by the lease to conduct > only preliminary surveys leading to preparation of an exploration plan. Only if commercial quantities of oil or gas are discover-« ed will it become necessary to consider the \ environmental consequences arising out of ] development and production of oil and gas in the leased area. The statutory framework, as understood by the federal defendants and intervenors, progresses in legislatively defined stages from leasing through exploration, and finally to development and production. After leasing, the Secretary is required at each step to undertake a comprehensive review of the lessee’s proposed plans detailing future activities and to take into consideration all relevant information concerning the environment then available. Unless the Secretary grants approval of the leaseholder’s proposed plans, future activity relating to exploration or to development and production cannot be implemented. According to the federal defendants and intervenors, the plaintiffs misconceived or misunderstood the statutory scheme. They assert that plaintiffs’ claims relating to oil spills and the consequences of petroleum in the environment should properly be addressed after commercial quantities of oil or gas have been discovered. As is usual in these cases, the correct approach lies somewhere between these two extremes. The appropriate standard for judicial review of the adequacy of the environmental impact statement is established by the Administrative Procedures Act. The act provides in relevant part that: ... The reviewing court shall— * * 5k # Hi Hi (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; Hi Hi Hs Hi * * (D) without observation of procedure required by law. 5 U.S.C. § 706. The proper application of this standard has been clearly articulated for this circuit by Judge Duniway in Lathan v. Brinegar: Subsection (2)(A) refers primarily to substantive decisions committed to the Agency in the first instance. It may be applicable (we do'not say that it is) where it is claimed that the Agency, in deciding whether to proceed with a project, has ignored conclusions or considerations stated in an EIS. Such a question is for the Agency, not the courts, to decide. The scope of judicial review in such a case is narrow, if review be available at all. We could reverse the Agency, if at all, only in a rare case, and only if we found its action arbitrary, capricious, an abuse of discretion, or contrary to law. We could not substitute our judgment for that of the Agency. On the other hand, subsection (2)(D) provides that we may set aside agency action if we find it to be without observance of procedure required by law. We regard the question whether an EIS complies with the requirements of NEPA as a procedural question, governed by § 706(2)(D). In Life of the Land v. Brinegar, 9 Cir., 1973, 485 F.2d 460, 469, we quoted Jicarilla Apache Tribe, regarding substantive decisions, but then apparently applied § 706(2)(A) to the question whether the EIS satisfied the requirements of NEPA. This appears to be a misreading of Jicarilla Apache Tribe, but our reading of Life of the Land convinces us that the result would be no different if we had thought that § 706(2)(D) applied. We stand on § 706(2)(D) because NEPA is essentially a procedural statute. Its purpose is to assure that, by following the procedures that it prescribes, agencies will be fully aware of the impact of their decisions when they make them. The procedures required by NEPA, 42 U.S.C. § 4332(2)(C), are designed to secure the accomplishment of the vital purpose of NEPA. That result can be achieved only if the prescribed procedures are faithfully followed; grudging, pro forma compliance will not do. We think that the courts will better perform their necessarily limited role in enforcing NEPA if they apply § 706(2)(D) in reviewing environmental impact statements for compliance with NEPA than if they confine themselves within the straight jacket of § 706(2)(A). 506 F.2d 677, 692 (9th Cir.1974) (en banc) (citations deleted). A clear distinction must therefore be drawn between challenges to the Secretary’s decision to proceed with a particular development alternative and challenges to the adequacy of an environmental impact statement. The former is a substantive question governed by the arbitrary and capricious standard of section 706(2)(A), while the latter is procedural and governed by section 706(2)(D). 1. Adequacy of the Environmental Impact Statement: As noted above, plaintiffs’ objections to the environmental impact statement fall into two categories: first, that it failed to analyze certain biological impacts adequately and second, that it failed to include necessary worst case analyses. Plaintiffs contend that the environmental impact statement significantly underestimates biological impacts because it fails to consider adequately: 1. persistence of hydrocarbons in the marine environment; 2. the potential toxicity of spilled oil for long periods; 3. adverse impacts of oil on the food chain; 4. the impacts of a very large spill in the range of 100,000 to 500,000 barrels. The environmental impact statement is not required to consider every conceivable biological consequence of a project. Instead the adequacy of an environmental impact statement is judged under a “rule of reason.” [O]ne of the functions of a NEPA statement is to indicate the extent to which environmental effects are essentially unknown. It must be remembered that the basic thrust of an agency’s responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any .and all discussion of future environmental effects as “crystal ball inquiry.” “The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible * * * ” But implicit in this rule of reason is the overriding statutory duty of compliance with impact statement procedures to the “fullest extent possible.” Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C.Cir.1973). Under the rule of reason, an environmental impact statement will be considered- adequate if it has been complied in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives. 562 F.2d at 1375. Moreover, the unavailability of information should not be permitted to halt all government action. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir.1973). This is particularly true when information may become available at a later time and can still be used to influence the agency’s decision. Sierra Club v. Morton, 510 F.2d 813 (5th Cir.1975). Although the rule of reason determines the adequacy of an environmental impact statement, administrative regulations are also guides for determining its sufficiency. The Council on Environmental Quality has promulgated regulations for the preparation of environmental impact statements that are binding upon all federal agencies. 40 C.F.R. §§ 1500-08; Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). These regulations define the primary purpose of an environmental impact statement. The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair discussion of significant environmental impacts and shall inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. .. . 40 C.F.R. § 1502.1. The regulations also recognize and provide for the practice of tiering environmental impact statements. 40 C.F.R. § 1508.28 provides in relevant part: “Tiering” refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is: (a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis. (b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe. This regulation implies, or at least suggests, that tiering serves to focus on issues ripe for decision and to exclude from consideration issues not ripe. Were the regulation to be strictly followed, the environmental impact statement prepared for Lease Sale 70 might not have needed to discuss environmental impacts relating to development and production until after a discovery had been made. This would have been, however, a dangerous course to follow. As the Second Circuit has noted in a case similar to this one, inclusion of material in an environmental impact statement cannot be deferred simply because it can be included in a later environmental impact statement: ... It is recognized that the EIS must consider all significant environmental consequences that can reasonably be expected to flow from the decision to which the EIS relates. An EIS cannot safely ignore clear environmental consequences of the decision at hand on the ground that another statement will be forthcoming later. Since the lease contract presented for the Secretary’s consideration would grant to each lessee of a tract the right for five years to search for oil and gas in economic quantities and upon such discovery to produce and transport the oil and gas to shore as long as it could be produced in paying quantities, it was essential to consider and weigh the environmental aspects of transportation, as well as of exploration and production, to the extent “meaningfully possible,” before deciding whether to authorize the leasing program. County of Suffolk v. Secretary of Interior, 562 F.2d at 1377 (2d Cir.1977) (citations deleted). I do not find it necessary to decide now whether the tiering regulations would allow the Secretary to limit the environmental impact statement to consideration of preliminary activities and their consequences only, since the statement that was prepared for this lease sale considered the environmental consequences of exploration, development and production as well. See, generally, FEIS, Section IV. I note, however, that consideration at the leasing stage of potential or anticipated environmental consequences relating to exploration, development and production activities serves a number of important objectives. The inclusion into a leasing stage environmental impact statement of known environmental information relating to later exploration or development activities which may in some way bear significant relationship to the leasing decision or to the preliminary activities serves to alert the Secretary to any environmental consequences which may be irreversible. Information relating to potential or anticipated environmental consequences may also focus on the need to develop further information necessary for adequate discussion and consideration in an exploration or development and production, environmental impact ■ statement. Finally, the legislative scheme providing for several administrative decisions along the progression from leasing through production should not unnecessarily weaken the legislative objectives underlying the National Environmental Policy Act, the Endangered Species Act, the Marine Mammal Protection Act, or other acts serving to protect the environment. On the other hand, although known environmental consequences relating to a later stage ought to be i