Full opinion text
Opinion for the Court filed by Circuit Judges RUTH BADER GINSBURG, STARR, and SENTELLE. Opinion dissenting in part filed by Circuit Judge STARR. TABLE OF CONTENTS RUTH BADER GINSBURG, STARR, and SENTELLE, Circuit Judges: This case requires the court, for the third time, to review a five-year schedule of offshore oil and gas leasing activity proposed by the Secretary of the Interior. For the reasons stated in this opinion, we hold that the Secretary failed to perform an adequate analysis of the cumulative impacts of the program on migratory species. We remand that matter to the Secretary but uphold the program in all other respects. I. Background The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356 (1982), enacted in 1953, authorizes the Secretary of the Interior to sell leases to develop oil and gas deposits in the OCS. Congress amended the statute in 1978 to promote the rational development of OCS resources. As delineated in the amended Act, the purposes of OCSLA include the “expedited exploration and development of the Outer Continental Shelf in order to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade,” but these objectives are to be balanced with “protection of the human, marine, and coastal environments.” Id. § 1802(1H2). OCSLA, as amended, describes and governs a five-step process: (1) the promulgation of a five-year leasing program, id. § 1344; (2) lease sales, id. § 1337; (3) exploration, id. § 1340; (4) development and production, id. § 1351; and (5) sale of recovered minerals. Id. § 1353. At various points throughout the development of the leasing program, OCSLA provides for participation by Congress, affected state and local governments, relevant federal agencies, and the public. Id. 1344(c)-(d), (f). Section 18 of OCSLA, id. § 1344, requires the Secretary to prepare, maintain, and periodically revise a leasing program consisting of a schedule of proposed lease sales. Under section 18(a), the Secretary is to indicate “as precisely as possible, the size, timing and location of leasing activity.” Section 18(a), in addition, prescribes four guiding principles for the program. (1) Impact on other resources and on “economic, social, and environmental values” must be considered. (2) “Timing and location of exploration, development, and production of oil and gas among the oil- and gas-bearing physiographic regions” of the OCS shall be based on eight factors: (A) “existing information concerning the geographical, geological, and ecological characteristics of such regions”; (B) “an equitable sharing of developmental benefits and environmental risks among the various regions”; (C) “the location of such regions” with respect to energy markets; (D) “the location of such regions” with respect to other uses of the sea; (E) the interest of producers in development; (F) such laws and policies of affected states as the governors of those states specifically identify as relevant; (G) “the relative environmental sensitivity and marine productivity” of different areas; and (H) “relevant environmental and predictive information for different areas” of the OCS. (3) Timing and location of leasing shall obtain, “to the maximum extent practicable, ... a proper balance” between the risk of environmental damage and the potential for oil and gas discovery. (4) Leasing “shall be conducted to assure receipt of fair market value for the lands leased.” Id. § 1344(a). Subsections 18(c) and (d) require the Secretary to invite and consider comments from governors of affected states and to state his reasons for accepting or rejecting their recommendations. Id. § 1344(c)-(d). Subsection 18(e) requires the Secretary to review the leasing program at least annually; any significant revision he proposes is to proceed for adoption “in the same manner” as the original development of the plan. Id. § 1344(e). In 1980 the Secretary adopted a five-year leasing program for 1980-1985. This program, largely prepared by Secretary An-drus, was challenged in this court by various state and local governments and several environmental groups. Petitioners claimed that the program failed to meet the requirements of OCSLA and other statutes. In California v. Watt, 668 F.2d 1290 (D.C.Cir.1981) (Watt I), this court noted several deficiencies in the program and remanded to Secretary Watt for revision consistent with its opinion. Secretary Watt revised the program in the course of his annual review pursuant to section 18(e). In January 1982 the court approved the Secretary’s proposed timetable for completing the revision, and in July 1982 the Secretary approved a five-year program for 1982-1987. Again various states and environmental groups challenged the plan for alleged violations of OCSLA and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347 (1982). These claims were all rejected in California v. Watt, 712 F.2d 584 (D.C.Cir.1983) (Watt II). Beginning in fiscal year 1982, in response to Secretary Watt’s plan, Congress imposed a series of moratoria against leasing parts of the California OCS and other regions. This protracted dispute with the Secretary eventually prompted Public Law 99-591, section 111, reprinted in 1986 U.S. Code Cong. & AdmimNews at 100 Stat. 3341, 3341-261 to -262, which requires the Secretary to explain “in detail” why he rejected proposals regarding California submitted by designated members of Congress and by the governor of California. Meanwhile, the Secretary began the development of the five-year plan for 1987-1992. 49 Fed.Reg. 28,332 (1984). The draft Proposed Program was released in March 1985; the Proposed Program, in February 1986; a Draft Proposed Final Program for Offshore California, in February 1987; the Proposed Final Program (PFP) along with a Secretarial Issue Document (SID), in April 1987; and on July 2, 1987, Secretary Hodel approved the program at issue in this case. Comments were received throughout this administrative process. Petitioners National Resources Defense Council (NRDC), the states of California, Florida, Massachusetts, Oregon, and Washington, and various environmental groups, challenged Secretary Hodel’s program on a variety of grounds, including alleged violations of NEPA, OCSLA section 18, and section 111 of Public Law 99-591. These cases were consolidated January 29, 1988. Intervenors in support of the Secretary include the American Petroleum Institute (API). Petitioners request that the court remand the program to the Secretary and vacate sales in particularly sensitive areas. Concluding that the Secretary failed to consider sufficiently, in preparing the environmental impact statement required by NEPA, the cumulative impacts of the leasing program on migratory species, we remand that matter for the Secretary’s further attention; in all other respects, we deny the petitions for review. II. Motion to Supplement the RECORD As a preliminary matter, we address petitioners’ motion to supplement the record. Petitioners seek to add information showing, they allege, that the Secretary failed to utilize in the five-year program the most accurate information available to him regarding Northern California. Petitioners assert that the Draft Environmental Impact Statement (DEIS) covering just one sale, Lease Sale 91 in Northern California, contains estimates of the number of platforms and amount of oil to be produced that greatly exceed the estimates used in the five-year program for the entire Northern California region. The Secretary possessed those higher estimates, petitioners say, at the time he developed the five-year program. Because he did not use the “best information available,” petitioners charge, the Secretary failed to perform properly the analyses required by OCSLA and section 111 of Public Law 99-591. Petitioners rely on documents obtained from the Department of Interior through a Freedom of Information Act request, and they now ask the court to make these documents part of the administrative record (petitioners at oral argument withdrew their request for additional discovery). Even if the Secretary did possess more accurate, higher estimates for Lease Sale 91 when drawing up the five-year program, he acted reasonably, we believe, when he adopted a cutoff time for consideration of new data in order to ensure consistency among planning areas. Different databases and economic analyses are used in making estimates for the five-year program, on the one hand, and for specific lease sales, on the other. Introducing sale-specific information for Sale 91 into the five-year program before similar information is available for other areas, therefore, might skew the comparative analysis required by OCSLA. A situation could arise, we acknowledge, in which sale-specific information available prior to final approval of the five-year program reveals an error or omission so large or so glaring that refusal to use it to adjust the program would be arbitrary. Cf. Friends of the River v. FERC, 720 F.2d 93, 108-09 n. 35 (D.C.Cir.1983). In this case, however, the Secretary acted within the bounds of his discretion in concluding that the Sale 91 data did not warrant deviating from the cutoff time. On the surface, the estimates for Sale 91 appear to be drastically higher than the estimates for Northern California in the five-year program. This discrepancy is largely explained, however, by the five-year program’s use of “risked” estimates, which take into account the probability that oil and gas will not be found in a region, and Sale 91’s use of “conditional” estimates, which do not take that probability into account. When the “risked” estimates for Sale 91 and the five-year program are compared, the difference is not large; the Secretary’s refusal to reconsider the analysis of Northern California in the five-year program, therefore, was not unreasonable. Accordingly, we deny petitioners’ motion to supplement the record. III. NEPA Issues A. Standard of Review NEPA requires every federal agency to include an environmental impact statement (EIS) “in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). As part of that statement, the agency (or the responsible official) must include a discussion of alternatives to the proposed action. Id. § 4332(2)(C)(iii). Section 4332(2)(E) also requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources,” and regulations promulgated by the Council on Environmental Quality (CEQ) provide that the EIS must “[rigorously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a) (1987). NEPA’s requirements are “essentially procedural”; as long as the agency’s decision is “fully informed” and “well-considered,” it is entitled to judicial deference and a reviewing court should not substitute its own policy judgment. North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C.Cir.1980). Nevertheless, the court should “ensure that the statement contains sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a ‘hard look’ at environmental factors, and to make a reasoned decision.” Izaak Walton League of America v. Marsh, 655 F.2d 346, 371 (D.C.Cir.1981) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). NEPA’s requirement of a discussion of alternatives, therefore, should be superintended according to a “rule of reason.” See, e.g., North Slope Borough v. Andrus, 642 F.2d at 600; Alaska v. Andrus, 580 F.2d 465, 475 (D.C.Cir.) (“[R]ule of reason necessarily governs both which alternatives the agency must discuss, and the extent to which it must discuss them.”), va cated in part as moot, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978); NRDC v. Morton, 458 F.2d 827, 837 (1972) (NEPA should be “construed in the light of reason if it is not to demand what is ... not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite”). As the Supreme Court admonished in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), “the concept of alternatives [under NEPA] must be bounded by some notion of feasibility.” Id. at 551, 98 S.Ct. at 1215. Thus, agencies are not required to consider alternatives that are “remote and speculative,” NRDC v. Morton, 458 F.2d at 838, but may deal with circumstances “as they exist and are likely to exist.” Carolina Envtl. Study Group v. United States, 510 F.2d 796, 801 (D.C.Cir.1975). B. Conservation as Partial Alternative Petitioners maintain that the Secretary should have considered various conservation policies as a partial alternative to the five-year program, eliminating the need for leasing in environmentally sensitive areas. They offer two examples of conservation strategies that could replace (or at least defer) leasing in sensitive areas: requiring more stringent appliance efficiency standards and stricter automobile fuel economy standards. They assert, illustratively, that increasing the Corporate Average Fuel Efficiency (CAFE) standards for the 1995 model year fleet to 45 miles per gallon (mpg) for cars and 35 mpg for light trucks, as current technology would allow, would save 2.2 million barrels of oil per day, or 15.8 billion barrels over 20 years, whereas drilling in six particular planning areas (North, Central, and Southern California, the North Atlantic, Washington-Oregon, and the North Aleutian Basin) would yield a projected total of only 1.2 billion barrels. Replacing drilling in those areas with higher fuel efficiency standards, they conclude, would yield a net energy gain of 14.6 billion barrels, while providing significant environmental benefits. Petitioners arguments rest on the premise that conservation strategies can, at least in part, achieve the goals of the five-year program as well as OCS leasing can. They contend that the program’s purpose of meeting the nation’s basic energy needs and improving the nation’s energy security can be accomplished not only by increasing domestic oil production, but also (partly) by reducing the demand for oil through energy conservation. Petitioners thus assume that the program is aimed at producing a fixed sum of oil and gas, and that a conservation program can substitute for a given quantum of that oil and obviate the need for a particular lease sale. Rather than consider the alternative of conservation plus reduced drilling, petitioners argue, the Secretary considered conservation only as a complete substitute for OCS leasing under the “no action” alternative. (40 C.F.R. § 1502.14(d) specifically requires agencies to consider what would happen if no action were taken.) Moreover, they claim, the Secretary considered only conservation that resulted in the free market from higher energy prices, and did not look at possible government regulatory measures that could mandate or encourage conservation. The Secretary’s response is two-fold. First, he contends that he did not have to consider conservation as a partial alternative to OCS leasing because even “the most optimistic forecasts show that energy conservation and full-scale OCS production combined cannot meet the nation’s energy needs.” Brief for Respondent at 24 (emphasis added). Second, he argues that the Final Environmental Impact Statement (FEIS) and the National Energy Policy Plan (NEPP), incorporated by reference into the FEIS, comprehensively considered conservation (albeit the topic’s placement was under the “no action” alternative), and that the specific measures discussed by petitioners are encompassed in the FEIS’s broader analysis. We reject the Secretary’s contention that he need not consider partial conservation alternatives at all because the nation’s energy demands are likely to increase even with gains in energy conservation and development of alternative energy sources. This argument proves too much, because it would relieve the Secretary of his duty under NEPA to consider alternatives altogether. Yet OCSLA explicitly provides that nothing in the Act diminishes the requirements of NEPA. 43 U.S.C. § 1866(a). Moreover, the Secretary’s argument overlooks the reasons for NEPA’s requirement that agencies consider alternatives. The purpose is not merely to force the agency to reconsider its proposed action, but, more broadly, to inform Congress, other agencies, and the general public about the environmental consequences of a certain action in order to spur all interested parties to rethink the wisdom of the action. As a panel of this court affirmed in NRDC v. Morton: Congress contemplated that the Impact Statement would constitute the environmental source material for the information of Congress as well as the executive, in connection with the making of relevant decisions, and would be available to enhance enlightenment of — and by — the public. 458 F.2d at 833; see also Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 787 (D.C.Cir.) (same), application for injunction in aid of jurisdiction denied, 404 U.S. 917, 92 S.Ct. 242, 30 L.Ed.2d 191 (1971). Given this informational purpose of NEPA, then, the Secretary must consider alternatives even if they do not reduce the need for OCS leasing. The continuing need for development of the OCS, however, reduces the scope of the required consideration. This follows from the “rule of reason” applicable to NEPA’s strictures. See supra pp. 294-295. In these circumstances, NEPA’s informational function is served by a less searching treatment of alternatives than is otherwise required. Without attempting precise delineation of the line between adequate and inadequate consideration of alternatives, we hold that the Secretary’s accounting for conservation alternatives here was adequate. The FEIS contains a general discussion of energy conservation policies in an Appendix entitled “Alternative Energy Sources.” See U.S. Dep’t of Interior, 5-Year Outer Continental Shelf Oil and Gas Leasing Program Mid-1987 to Mid-1992, Final Environmental Impact Statement (FEIS), App. C at 39-44. That discussion lists five major conservation options proposed as substitutes for energy development projects (improved gas mileage, greater use of mass transit, improved household appliance efficiency, improved efficiency in the industrial and commercial sectors, and augmented public and private research of conservation), and mentions the different ways in which conservation can be achieved under those options. One of the means thus identified is regulation. See id. at 42-43. In addition, the FEIS refers to the NEPP, which projects the nation’s energy demands up to the year 2010. See id. at 39-42. Although the NEPP does not specifically address augmented governmental regulation, it utilizes a model that contains varying energy consumption projections based on different “consumer discount rates.” The “high energy efficiency” prediction, according to the NEPP, serves as a “proxy” for non-energy price factors affecting efficiency, including government-ordered conservation programs. U.S. Dep’t of Energy, National Energy Policy Plan Projections to 2010 at 4-29 (1985), Joint Appendix (J.A.) at 1656. The NEPP predictions appear to incorporate gains from the types of regulatory measures petitioners proposed and thus to indicate that full-scale OCS leasing would be in order even if reasonable conservation measures were adopted. Finally, the proposals suggested by petitioners before this court and in comments submitted to the Department of the Interi- or are included in the FEIS. See FEIS, App. L, Comments of NRDC et al. The inclusion of these comments merits credit as a counter to flaws in the Secretary’s analysis. Cf. Sierra Club v. Adams, 578 F.2d 389, 394, 396 (D.C.Cir.1978) (holding that EIS’s discussion of alternatives was adequate in part because of inclusion of interested parties’ comments and government’s responses). We are satisfied, in sum, that, overall, the Secretary’s coverage of conservation in this case serves NEPA’s informational function, although the FEIS and NEPP themselves deal with the matter in general terms and do not provide petitioners with detailed responses to their comments. Cf. id. at 396. The Secretary has not disregarded conservation alternatives, and we have no warrant to insist on more particulars from him, in view of his showing that, despite reasonable government regulation to achieve conservation, the nation’s energy needs call for the contribution OCS development can make. C. Cumulative Impact on Migratory Species Petitioners’ second NEPA claim concerns the failure of the FEIS to consider the cumulative impacts of simultaneous development in the Pacific and Alaskan regions on species, particularly whales and salmon, that migrate through the different planning areas. Petitioners contend that the cumulative impact of simultaneous development will be greater than the sum of development in each area considered separately because migratory species will have to swim through each area, with no respite from the harmful effects of OCS development. Because of the “synergistic” effect of this development, petitioners argue, the FEIS should have considered the cumulative impact of simultaneous development on migratory species, and not just the separate effects in each planning area. Had the Secretary done so, they reason, he might have cancelled or deferred some of the lease sales in the two regions so that migratory species would not be exposed to maximum risks throughout their habitat simultaneously. The Secretary responds simply that the FEIS does touch on cumulative impacts. He does not contest petitioners’ claim that maximum development in the region will be allowed to occur simultaneously and that cumulative impacts on migratory species may be severe. Our examination of the FEIS satisfies us that the Secretary did not consider the effect of simultaneous inter-regional development on migratory species. We therefore remand for consideration of this issue and for any revisions of the program the Secretary determines to be warranted by the new analysis. NEPA, as interpreted by the courts, and CEQ regulations both require agencies to consider the cumulative impacts of proposed actions. The Supreme Court has held that, under NEPA, proposals for ... related actions that will have cumulative or synergistic environmental impact upon a region concurrently pending before an agency must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate the different courses of action. Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). The purpose of this requirement is to prevent agencies from dividing one project into multiple individual actions “each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.” Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985); see also Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir.1988); NRDC v. Callaway, 524 F.2d 79, 87-90 (2d Cir.1975); Manatee County v. Gorsuch, 554 F.Supp. 778, 793 (M.D.Fla.1982). CEQ regulations specifically provide that an EIS should consider together actions that “are interdependent parts of a larger action and depend on the larger action for their justification,” “[cjumulative actions, which when viewed with other proposed actions have cumulatively significant impacts,” and “similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing and geography.” 40 C.F.R. § 1508.25(a) (1987); see also Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed.Reg. 18,033 (1981). Those regulations also specify that an EIS should consider any cumulative impacts of agency action. 40 C.P.R. § 1508.25(c). “Cumulative impact” is defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency ... undertakes such other actions.” Id. § 1508.7. In this case, the Environmental Protection Agency (EPA) expressed serious concern to the Secretary over the lack of any consideration in the DEIS of inter-regional cumulative impacts. The EPA criticized the DEIS for not analyzing “the cumulative effects on migratory species whose habitat extends into numerous planning basins and regions” and admonished the Secretary to “identify the migratory species of endangered cetaceans, marine mammals, and marine and coastal birds and the full extent of each species’ distribution (the full range of their habitat)” and to “include all state and federal oil and gas leasing, oil and gas infrastructure, and non-OCS/non-oil-and-gas activities that fall within their distribution.” FEIS, App. E, May 9, 1986 Letter from EPA. The Secretary asserts that, in response to the EPA’s letter, the Department of the Interior added the requisite analysis to the FEIS. Although the FEIS contains sections headed “Cumulative Impacts,” in truth, nothing in the FEIS provides the requisite analysis. The FEIS for the most part considers only the impact within each area of non-OCS actions plus OCS development and not the impact of simultaneous OCS development in different areas. The few times the FEIS does discuss the impact of simultaneous OCS development in different areas, it makes only conclusory remarks, statements that do not equip a deci-sionmaker to make an informed decision about alternative courses of action or a court to review the Secretary’s reasoning. In the FEIS’s analysis of the Oregon/Washington planning area, which the Secretary cites as “instructive,” Brief for Respondent at 31, cumulative impacts are first mentioned in the introduction to the FEIS: “The expected cumulative impacts for the migrating species in each planning area include consideration of the expected effects in all planning areas used by each species.” FEIS 11-31. This promising announcement, however, has scant follow-up. In the specific discussion of cumulative impacts for Oregon/Washington, the Secretary mainly discusses the combined impact of OCS leasing with other activities in that area. Characteristically, the FEIS states: The additive effects of this proposal, combined with other proposed and existing projects, are estimated to increase the degree of anthropogenically contributed noise and disturbance on marine mammals within the Planning Area. Major existing sources of potential impacts to marine mammals within the area include commercial shipping activities ... commercial fishing operations ... coastal development projects ... pollution ... and marine tankering. FEIS IV.B.7.-25 (emphasis added). This type of statement does not address the issue raised by the EPA, and which NEPA requires the Secretary to consider: the cumulative impacts of OCS development in different areas. Only a few sentences in the entire discussion even purport to deal with inter-regional cumulative impacts: Marine mammals which migrate through this Planning Area will be subjected to other impacts outside of the area. Cumulative impacts to these migrating species will probably intensify due to other oil and gas activities within their range to the north and south, including the OCS activities off California and Alaska. Noise levels are expected to increase throughout much of the range of these species_ Migrating species are subjected to stresses from municipal and industrial discharges and other human activities, including existing oil and gas operations throughout their range. Id, at 25-26. In its specific discussion of whales, under the subcategory of threatened or endangered species, the FEIS again deals primarily with the cumulative impact of activities in that one region. See FEIS IV.B.7.-32-33. The FEIS does devote a few more sentences here to the inter-regional effects on migrating species but these snippets do not constitute real analysis; they merely state (and restate) the obvious: Those species which pass through other areas with potentially high risk of an oil spill (such as California) are most vulnerable to high impacts from a spill. For example, the coastal migration routes of the California gray whale which could subject a large segment of the population to an oil spill, [sic] The Brown pelican is also exposed to risks from an oil spill throughout much of its range, including its breeding areas in Southern California. ... With or without the proposal, threatened and endangered species are expected to suffer low to moderate ecological losses over the next 35 years. Migrating species are subjected to stresses from anthropogenic sources throughout their range. FEIS IV.B.7.-33. The Secretary asserts that this treatment typifies the approach used in the FEIS for the other planning areas, and that a like analysis was used for salmon. “Typifies” is an understatement. When the FEIS does address inter-regional cumulative impacts, it simply repeats the same boilerplate for each area, varying the language only slightly in each instance. See, e.g., FEIS IV.B.8-14, 19 (Northern California); IV.B.9.-19, 26 (Central California); IV.B. 10.-34, 42-43 (Southern California). Even under the applicable deferential standard of review, we believe that allowing the Secretary’s “analysis” to pass muster here would eviscerate NEPA. In each place in which the FEIS even mentions inter-regional impacts of OCS development, it merely announces that migratory species may be exposed to risks of oil spills and other “impacts” throughout their routes. These perfunctory references do not constitute analysis useful to a decisionmaker in deciding whether, or how, to alter the program to lessen cumulative environmental impacts. We therefore remand this matter to the Secretary for further consideration and any revisions in the five-year program that consideration may warrant. This court’s task is simply to ensure that agencies faithfully follow Congress’ direction. It is not our function, or within our competence, to dictate the actual details of implementation to the agencies, and we essay no mechanical or formal instructions for the Secretary to follow. To minimize the risk of unnecessary delay and waste of resources on remand, however, we offer some general guides on what would appear to satisfy NEPA here. The Secretary could, first of all, examine cumulative impacts of simultaneous inter-regional OCS development in a single, coherent section rather than fragment his analysis by area. This comprehensive section could then, as the EPA suggested in its comments on the DEIS, see supra p. 18, identify the various migratory species and the full range of their routes of migration, describe the OCS and non-OCS activities along those routes, and state the synergistic effect of those activities on the migratory species. The Secretary could support such a presentation with references to scientific studies and other materials so that a decisionmaker would have ready access to the information underlying the Secretary’s findings and conclusions. Finally, the Secretary could, consistent with NEPA’s requirement that he consider alternatives to the proposed action, examine alternatives to simultaneous development that would mitigate any synergistic impacts on migratory species, such as staggering development. The Secretary could set out the pros and cons of various alternatives and explain his reasons for adopting whatever course of action he decides upon. Whatever further examination and explication the Secretary himself determines to undertake, we anticipate that his reconsideration will be accomplished promptly, in advance of any actual development in the Alaska and Pacific regions. IV. OCSLA Issues A. Standard of Review. The standards for our review of the Secretary’s program are set out in Watt I, 668 F.2d at 1300-03, and restated in Watt II, 712 F.2d at 590-91. Briefly summarized, those deferential standards require that the record show that the Secretary’s factual determinations are based upon substantial evidence, that the Secretary’s policy judgments are based upon rational consideration of identified, relevant factors, and that the Secretary’s construction of the statute is permissible. In this last respect, we are directed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), decided since our last consideration of an OCSLA leasing program, to affirm an implementing agency’s construction of a statute when Congress has not expressed its clear intent on the precise question at issue and the agency advances a permissible construction. When the Secretary’s program meets these standards, we defer to his findings, interpretations, and judgments; when it does not, we remand for his appropriate consideration or action. B. Area Issues. 1. Administrative Planning Areas. OCSLA directs the Secretary to schedule leasing “among the oil- and gas-bearing physiographic regions of the outer Continental Shelf” based upon consideration of factors set out in the statute. 43 U.S.C. § 1344(a)(2). According to petitioners, the phrase “oil- and gas-bearing physio-graphic regions” in the premise of section 18(a)(2) and the echoing use of the phrase “such regions” in several subparagraphs thereunder require the Secretary to make the section 18 comparative analyses only between those discrete areas whose geologic characteristics show oil or gas potential. The Secretary’s administrative planning areas, they complain, simply divide the entire OCS into a number of large, contiguous rectangular areas that have no apparent relation to the location of oil- and gas-bearing formations. (The North Atlantic Planning Area, for example, covers roughly the area offshore Maine, New Hampshire, and Massachusetts.) Petitioners contend that Watt I requires the Secretary to use the “best information available,” 668 F.2d at 1307, and that the Secretary already has information, as well as data collection powers under subsections 18(g) and (h), to better identify oil- and gas-bearing physio-graphic regions. Accordingly, argue petitioners, the Secretary did not do, or at least did not articulate, a section 18 analysis based on regions of the proper scope. This alleged failure is material, petitioners contend, because the Secretary’s approach improperly aggregates data regarding regions with differing petroleum potential. To illustrate, petitioners contend that the Secretary might have excluded (or at least delayed) leasing in the fisheries of the Georges Bank Basin if that area had been analyzed separately instead of being lumped in the North Atlantic planning area with other areas richer in hydrocarbon potential. Petitioners contend that the Secretary’s expressed intent to refine the area to be leased in subsequent, sale-specific stages of the program is inadequate to correct the distortion they perceive, because sale-specific decisions do not revisit the section 18 comparative analysis. Watt I, 668 F.2d at 1306. The remedy, petitioners contend, is remand for a section 18 analysis comparing regions of proper scope. There is no occasion to grant this remedy, because the Secretary has made an eminently reasonable interpretation of an ambiguous statute, and we give his interpretation the deference it is due. We have inquired whether OCSLA “directly addressed,” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782, the permissible geographic or geologic scope of the areas the Secretary is to compare in his section 18 analysis and concluded that OCSLA “is silent or ambiguous with respect to the specific issue,” id., of scope. The phrase “oil- and gas-bearing physiographic regions” is not defined in the statute. The legislative history does not use the phrase, referring instead to “various geographic regions,” H.R.Rep. No. 590, 95th Cong., 2d Sess. 149 (1977), 1978 U.S. Code Cong. & Admin.News pp. 1450, 1555, 1702, and “various [OCS] areas.” H.R.Conf.Rep. No. 1474, 95th Cong., 2d Sess. 103 (1978). Further, it appears from the briefs of the parties that the phrase “physi-ographic regions” is not used by geologists; the term in use that is apparently most analogous, “physiographic province,” is defined, however, as a discrete “region” homogeneously similar in geologic structure and other characteristics. See Brief for Petitioners at 42 n. 33 (citing Glossary of Geology 474 (2d ed. 1980)); Brief for Respondent at 66-67 & n. 30 (same). Petitioners advise us that the undefined statutory phrase must therefore refer to “a region of rocks, similar in structure and origin, that has petroleum potential.” Brief for Petitioners at 42 (footnote omitted). The government does not materially dispute this definition, but cites technical references to the general effect that the term by no means implies a small-scale homogeneity, a point on which petitioners apparently demur. See Revised Final Response Brief of Petitioners and Intervenors at 19-20 (“Reply Brief for Petitioners”). At this point, it is not at all apparent to us that Congress intended the Secretary to build the program upon the foundation of a meticulous and restrictive reading of this phrase. The legislative history evidences no concern with the term and in fact does not use it, even though Congress appears to have coined the phrase. We are led by the Secretary to understand that the term “physiographic province” tendered as synonymous by petitioners may, in the submarine context, refer to an area no more precise than the “ ‘North American Atlantic Slope.’ ” Brief for Respondent at 67 n. 31 (quoting Encyclopedia of the Geological Sciences 630 (1978)). The Secretary’s planning areas plainly encompass the oil- and gas-bearing regions. We fail to see, then, an unmistakable meaning of the phrase “oil- and gas-bearing physiographic regions” that the Secretary’s practice violates. Further doubt about the necessity of petitioners’ tendered construction arises when we examine the basis upon which section 18(a)(2) expressly directs the Secretary to compare the “regions.” Several of the statutory considerations have little or no apparent relation to undersea geologic formations: for example, the equitable sharing of benefits of development and the proximity and relative needs of energy markets have far more to do with on-shore considerations. See 43 U.S.C. § 1344(a)(2)(B), (C); see also Watt II, 712 F.2d at 595 (noting “common-sense proposition that ... land lying under the ocean[ ] does not benefit from development”). The fact that the statute directs such comparisons indicates a congressional intent that the comparison be made on a basis that facilitates such comparisons and to which such comparisons are relevant. In addition, parts of section 18(a)(2) direct the Secretary to compare “different areas,” id. §§ 1344(a)(2)(GHH) — another undefined term. We conclude that Congress did not unambiguously direct the Secretary to found his section 18(a) analysis, and the resulting leasing program, solely on the basis of the location and extent of discrete undersea geologic formations. It is some indication that the phrase on which petitioners now rely does not speak clearly and directly to the scope of the areas to be compared that the phrase was not made an issue in our review of the two previous leasing programs. This is the third such leasing program to use broadly drawn administrative planning areas. The Watt I petitioners attacked the precision of certain leases, and the Secretary conceded he could be more specific. 688 F.2d at 1303-04. The Watt II petitioners complained that the revised program still failed to indicate lease areas “ ‘as precisely as possible,’” 712 F.2d at 592 (quoting 43 U.S.C. § 1344(a)), but we held that the Secretary had by then satisfied the statute. Id. at 594. Although many of the arguments made by the Watt II petitioners are substantially similar to those made here, the Watt II petitioners made no mention of the phrase that petitioners here would have us believe speaks with compelling clarity and directness to the proper scope of the areas to be compared and offered for leasing under section 18. Petitioners explain that they attack the scope of the beginning point of the Secretary’s analysis, not the precision of the result as did the Watt II petitioners, but that explains little. We intend no preclusion, of course; we only illustrate that the import of the phrase “oil- and gas-bearing physiographic regions” is not self-evident. We also have examined the Secretary’s interpretation of the statute and found it permissible. The primary purpose of OCS-LA is expeditious, orderly development of the oil and gas resources of the OCS, with due consideration for the impact of that development and an equitable sharing of its risks and benefits. 43 U.S.C. §§ 1332, 1344. The statute sets only broad standards and leaves much to the Secretary’s discretion in achieving its goals. Watt I, 668 F.2d at 1301. The statute directs the Secretary to consider and balance a variety of environmental and economic factors in developing his leasing program. 43 U.S.C. § 1344. The Secretary has attempted to draw planning areas at the program stage that facilitate those comparisons, as well as coordination with state and local governments, while offering leases of commercially feasible scope. The Secretary’s administrative planning areas have previously withstood closely-related attacks on their size and precision. See Watt II, 712 F.2d at 591-94. The government need show no more than this to demonstrate the reasonableness of the Secretary’s construction. Accordingly, we deny petitioners’ requested relief on this issue and turn to a second issue relating to the scope of the Secretary’s program. 2. Area Exclusion. OCSLA requires the Secretary to receive and consider nominations for areas to be leased or excluded. See 43 U.S.C. § 1344(f)(1); 30 C.F.R. § 256.16 (1978). About one hundred areas were nominated for exclusion; the Secretary excluded fifteen. OCSLA and the regulations promulgated thereunder do not require exclusion of nominated areas. Petitioners complain, however, that the Secretary was arbitrary and capricious in making exclusion decisions in that he (a) failed to articulate criteria for and explain his decision-making process, (b) treated like areas differently without explanation, and (c) improperly considered non-statutory political factors in making exclusions offshore California. Petitioners seek a remand directing the Secretary to state and apply a clear set of criteria for excluding areas from the program. We address each of these in turn, as well as the government’s challenge to petitioners’ standing, and find that petitioners have standing to seek relief but no right to receive it. a. Ripeness and standing. The government raises ripeness and standing challenges to petitioners’ complaints about the Secretary’s exclusion decisions. First, the government argues that the exclusion decisions are not ripe because they are not final, since petitioners complain, in the government’s view, of the Secretary’s failures to exclude nominated areas, and the Secretary may decide at subsequent stages of the OCSLA process not to lease lands that were nominated but not excluded at the present stage. The government does not contend that the entire plan is unreviewable, but asserts that exclusion decisions differ in this respect from, for example, planning area size. Accordingly, argues the government, the five-year plan does not impose an obligation, deny a right, or fix a legal relation and is therefore not final. See generally NRDC v. Nuclear Regulatory Comm’n, 680 F.2d 810, 815 (D.C.Cir.1982). Review of the Secretary’s approval of a section 18 leasing program is authorized expressly by the statute, 43 U.S.C. § 1349(c), and we fail to see any distinction regarding finality between exclusion decisions and other program-level decisions under section 18. The “nation-wide allocation of OCS activities is performed at the leasing program stage,” Watt I, 668 F.2d at 1307, and the Secretary’s exclusion decisions are reflected in the present program by the Secretary’s inclusion or exclusion of the nominated areas in his inter-area comparisons. The Secretary’s subsequent decision not to lease a particular area will not alter the schedule adopted, see id. at 1306, because the scope of decisions narrows as the OCSLA process proceeds from the present planning stage to lease and later stages. See Watt II, 712 F.2d at 592 (“pyr-amidic” structure of Act). Arbitrary or capricious decisions either to include or exclude nominated areas, however, may materially affect the program-stage inter-area analysis. These decisions must be subject to program-stage review to ensure meaningful review of the program. Accordingly, we conclude that the exclusion decisions made by the Secretary in formulating his leasing program are sufficiently final for our review. Second, the government contends that petitioners lack standing to seek review of the exclusion decisions because they have not yet been “adversely affected or aggrieved.” 43 U.S.C. § 1349(c)(3)(B). The government contends that there has been no injury because petitioners’ requests for exclusions have only been deferred for consideration at subsequent site-specific stages. The government’s position sweeps too far; we can discern no meaningful difference between the injury asserted by petitioners as a result of the Secretary’s exclusion decisions and the injury assertedly sustained (and which the government does not contest) by virtue of the other components of the leasing program. The government also argues that petitioners lack standing because the court cannot give effective relief, since the Secretary is under no statutory duty to exclude additional areas, or, in fact, any areas at all. On remand, the Secretary might decide not to exclude any areas at this stage. While it is true that the remand petitioners now seek would not necessarily produce the ultimate relief of exclusion that petitioners undoubtedly seek, the government’s argument “improperly assumes that the Secretary of the Interior would perversely refuse to adopt,” Watt v. Energy Action Education Association, 454 U.S. 151, 161, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981), the product of his own reasoning process on remand if we were to find on the merits that the Secretary failed to make exclusion decisions on the proper basis. Accordingly, we find that petitioners have standing and turn to the merits. b. Criteria for Decision. First, petitioners contend that the Secretary has failed to explain the criteria on which his exclusion decisions were made. Petitioners cite Watt I, 668 F.2d at 1311-12, to the effect that the Secretary has a heavy burden of justification for any claimed inability to articulate his consideration of statutory principles, and contend that he has not shown that he is unable, or that it is unusually difficult, to establish criteria for his decision to exclude nominated areas or not. The Secretary acknowledges that his exclusion decision must be reasoned and that its basis must be identified, but contends that OCSLA does not require him to create a “formula” for exclusion decisions. We agree. The statute requires simply that the Secretary establish procedures for receiving and considering nominations. 43 U.S.C. § 1344(f). The Secretary has done so, but has not attempted therein to address the substance of the consideration. See 30 C.F.R. § 256.16 (1987). In these circumstances, our review is limited to an inquiry whether the Secretary’s method is based on relevant considerations rationally applied. See supra p. 300. The record shows that, in the present program, the Secretary analyzed each area nominated for exclusion, considering its location and size, its treatment in previous programs, its oil and gas potential, its environment, and the adverse impacts that would be reduced or eliminated if the area were excluded. See, e.g., PFP, Subarea Attachment at 1-3, J.A. at 1366-67 (Georges Bank Region). These considerations clearly are relevant to a decision whether an area should be excluded from the program, given OCSLA’s goal of expeditious, orderly, equitably-shared development. See 43 U.S.C. §§ 1332, 1344. The record shows further that, in general, the Secretary excluded areas that his analysis showed as low in resource potential and industry interest, while retaining areas that the available information, even if poor, made look “worthwhile” for further data collection in subsequent sale-specific stages. See, e.g., Responses to Comments Provided in the Letter of May 7, 1986 from Governor of Massachusetts Michael S. Dukakis on the Proposed Program, enclosure accompanying letter from Secretary Hodel to Governor Dukakis of Massachusetts 2 (Apr. 24, 1987) (“Dukakis enclosure”), J.A. at 56. In addition, the Secretary excluded fully approved national marine sanctuaries regardless of their potential, and excluded some other areas having estimated potential on environmental-protection grounds. Id. at 3, J.A. at 57. Areas of moderate to high hydrocarbon potential or industry interest were not excluded, subject to possible exclusion in the subsequent pre-sale planning process. Id. at 2, J.A. at 56. These considerations, too, clearly are relevant to an exclusion decision. After making such exclusions, the Secretary then evaluated the remainder of each planning area in light of section 18 principles. The Secretary need not perform a section 18 analysis on areas he has determined not to lease. Watt II, 712 F.2d at 608. Petitioners argue that Watt I, 668 F.2d at 1311-13, rejected such an unstructured “considerations” approach. The cited section of Watt I, however, simply faults that first program for not making the statutory section 18(a)(2)(G) inter-area comparison at all. Section 18(a)(2)(G) requires consideration of the “relative” environmental and marine productivity in scheduling leases “among” the various regions. The Secretary had made such comparisons within areas, but had not done so between areas because of perceived inter-area incompara-bility and other claimed difficulties. We held that the Secretary was under a heavy burden, and failed, to justify his claimed inability to fulfill the “ ‘explicit statutory design.’ ” Watt I, 668 F.2d at 1312 (quoting Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C.Cir.1979)). The present case, however, involves no such express direction. The subsection at issue requires the Secretary to receive and consider nominations for exclusion, but specifies no criteria or standards by which the Secretary is to proceed. Moreover, the passage upon which petitioners rely deals with an expressly required inter-regional comparison —a comparison we held in the same opinion is not required for areas that the Secretary has determined not to lease, as he clearly has done with respect to excluded areas. See Watt II, 712 F.2d at 608. In the absence of more specific congressional direction, it is sufficient that the Secretary’s exclusion decisions are based upon rational consideration of identified, relevant factors. See supra p. 300. We find that the Secretary has done so. c. Adequacy of Explanation. Second, petitioners complain that the Secretary’s exclusion decisions are inconsistent and arbitrary because there is no analysis distinguishing areas excluded from those not excluded and no analysis of why he did not exclude areas nominated for exclusion. Petitioners cite illustratively the Secretary’s exclusion of only part of the congressional moratorium area in the North Atlantic without explanation why that portion was excluded and the balance, including the Georges Bank fishery the moratorium was intended to protect, was not. Petitioners also cite the disparate treatment of nominated buffers offshore Monterey County (accepted) and Mendocino County (rejected), California, areas assertedly equivalent in resource potential and environmental sensitivity. The government asserts that the Secretary’s burden of explanation was met by his letters transmitting the Proposed Final Program to governors of affected states pursuant to subsections (c) and (d) of section 18. In pertinent part, those subsections require the Secretary to invite and consider suggestions from governors of affected states, tender the proposed program to them for pre-publication review and comment, reply in writing to gubernatorial requests for modification, “stating his reasons” for action taken on the suggestions, accept post-publication comments and recommendations from states and others, and submit such gubernatorial correspondence and comments to Congress with the plan, “indicatpng] why any specific recommendation of ... a State ... was not accepted.” 43 U.S.C. § 1344(c)-(d). His duty thereunder is simply to identify his legal or factual basis and to explain why he acted as he did. Watt I, 668 F.2d at 1321-22. This the Secretary did. Those letters explain both the Secretary's general approach and the particular considerations in his decision not to exclude specific areas off the particular state. See, e.g., Dukakis enclosure at 1-4, J.A. at 55-58; Responses to the Governor of California’s Comments Provided in Letter of May 7, 1986, on the Proposed Program and in Letter of March 4, 1987, on the February 1987 Amalgamated Proposal, enclosure accompanying letter from Secretary Hodel to Governor Deukmejian of California 1-8, 20, 47-48 (Apr. 24, 1987) (“Deukmejian enclosure I”), J.A. at 69-76, 88, 137-38. As to the Georges Bank and California nominations particularly complained of by petitioners, we note that the Secretary explained he had decided not to exclude the entire Georges Bank because the areas not excluded appear to have some natural gas potential, a fuel the New England area has to bring in from elsewhere, and the adverse impacts appear to be manageable. The Secretary also noted the historic lack of production in the North Atlantic area in evident reference to the section 18(a)(2)(B) principle of equitable sharing. Dukakis enclosure at 3-4, J.A. at 57-58. The Mendocino County area was not excluded because of its potential and industry interest. Deukmejian enclosure I at 5, J.A. at 73. These explanations are not elaborate, but are sufficient to assure us that the Secretary’s exclusion decisions are grounded in considerations relevant to the act. The record does not show any comparative analysis of the various areas nominated for exclusion, but we do not find that the statute requires such an approach. d. Political Considerations. Third and final, petitioners cite as arbitrary and capricious the Secretary’s allegedly admitted consideration of “political” factors not embodied in section 18 in excluding certain areas. Specifically, petitioners complain that the Secretary admitted excluding certain areas off California in order to forestall opposition to the program by the California congressional delegation, then took refuge in his “very substantial range of discretion” in exclusion decisions and the direction to negotiate contained in section 111 of Public Law 99-951. Stenographic Transcript of Hearings Before the Sub-comm. on Panama Canal/Outer Continental Shelf of the House Comm, on Merchant Marine and Fisheries: Hearing on the Proposed OCS Five-Year Development Plan, 100th Cong., 1st Sess. 29-32, 37-40, 59-60 (1987) (statement of Secretary Hodel) (unrevised and unedited copy), reprinted in J.A. at 179-82, 187-90, 209-10. The Secretary has stated that, as a result of the section 111 process, “we have made deferrals of subareas off California which we would not have made if we were guided by section 18 alone.” Deukmejian enclosure I at 47, J.A. at 137. We do not agree that the Secretary’s statements evidence arbitrary and capricious conduct within our power to address. The Secretary was expressly authorized by section 111 to “consider and accept ... any recommendation” by the Governor of California or co-chairman of the congressional panel. Pub.L. No. 99-591, § 111, 100 Stat. 3341-261 (1986) (pamphlet pagination). As we note elsewhere, infra p. 319 n. 34, section 111 itself provides no standards for review and does not incorporate those of section 18, leaving us with no basis for review of the Secretary’s decisions to exclude that arise out of the section 111 process. Since the Secretary’s apparent mandate under section 111 is to work toward a political consensus, we cannot find that the process is arbitrary and capricious. C. Section 18(a)(3): Cost-Benefit Analysis Petitioners next claim that the Secretary, in preparing the five-year program, failed to comply with section 18(a)(3) of OCSLA. That section provides: The Secretary shall 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 Secretary reads this subsection to instruct a cost-benefit analysis, and this court has endorsed the Secretary’s interpretation. Watt I, 668 F.2d at 1318. The Secretary’s cost-benefit analysis begins with a calculation of each planning area’s “net social value.” PFP, SID at 78, J.A. at 1089. Net social value is “net economic value” (the market value of expected resources less the cost of production and transportation) minus “social costs” (environmental and socio-economic costs). Petitioners maintain that the Secretary violated section 18(a)(3) by: (1) failing to utilize a proper calculation of net economic value; and (2) undervaluing social costs. We conclude, after full consideration of petitioners’ arguments, that the Secretary’s analysis satisfied section 18(a)(3)’s instruction. 1. Calculation of Net Economic Value Petitioners claim that had the Secretary genuinely calculated and employed net economic value, he would have excluded more areas from the program in light of the dramatic drop in world oil prices. There is a presumption that an area should be included on the schedule if the expected net social value is positive, i.e., if the anticipated benefits of oil and gas activities in that area exceed the expected costs. Lowering oil price estimates in the benefit calculation reduces net economic value and, correspondingly, net social value. At the time the program was finalized, the price of oil had dropped to $19 per barrel. Brief for Petitioners at 55. The Secretary’s own mode of economic analysis, petitioners say, indicates that at $19 per barrel, ten of the twenty-two planning areas would have a zero net economic value. PFP, SID, App. F at 75, J.A. at 1189. Petitioners complain that the program “simply did not change as oil prices ... plummeted.” Reply Brief for Petitioners at 20 n. 11. The Secretary responds, satisfactorily in our judgment, that (1) the estimates of net economic values for planning areas are used for comparative purposes — to compare the relative benefits among the various areas — and not for the purpose of determining the absolute economic values of oil and gas that might exist, (2) the Secretary properly focused on long-term considerations and price expectations, not on short-term