Environmental Trade-Offs and Other Choices

ACROSS THE TUNDRA

In April 1973, the Supreme Court put a legal crimp in the prospective Alaska pipeline. It did so by declining to review a February appellate court decision that the Department of the Interior could not legally issue a permit for the right-of-way required for construction. It could not do so, the appellate court ruled, because the authorizing statute—the Mineral Leasing Act of 1920—restricted the allowable right-of-way to 25 feet on either side of the pipe, whereas the Interior Department proposed to allow the use of a strip of land varying between 100 and 600 feet in width for the pipeline right-of-way, to grant a separate right-of-way for a 361-mile surface haul road, and to allow extensive gravel excavation and other surface-scarring operations outside of both rights-of-way.

The Trans-Alaska Pipeline, it will be recalled, was planned as at least the initial major transportation facility for bringing the potentially vast quantities of oil producible on the North Slope of Alaska across that subcontinent, from Prudhoe Bay in the Arctic to the Gulf of Alaska in the south, whence it would be carried by tanker to the Pacific Coast of the "lower 48." The nearly 800 miles of pipeway, the haul road, and the hundreds of access roads leading from an estimated 264 rock and gravel sites in what had so far been virtually undisturbed wilderness, represented a massive threat to the floral, faunal, and aesthetic characteristics of one of the nation's few remaining large wilderness areas. In addition, it presented a risk (of highly disputed magnitude) of pipeline rupture and consequent major oil spills, plus further spill risks on the ocean haul from Alaska. Besides the disruption of the Arctic tundra occasioned by excavation, a buried pipe carrying hot oil through areas of permafrost could generate instability in the bed on which it rested and thus risk its own structural integrity. On the other hand, running the pipeline above ground in areas of permafrost would threaten the continued viability of the large caribou herds that would find their traditional migration routes obstructed.

Outside the area of permafrost, the pipeline would encounter further problems as it traversed one of the most seismically active regions anywhere on earth. Seventy percent of the pipeline (the southern portion) would lie within twenty-five miles of a recorded epicenter, in a region where, during the past seventy years, there have been some twenty-three earthquakes with Richter scale ratings of 6 or higher. And the transshipment facilities would be located at Valdez, site of the 1964 Good Friday earthquake, which, with a Richter scale reading of 8.4 was the most severe ever recorded in North America.

Given such environmental threats, it was predictable that the Trans-Alaska Pipeline would face legal challenges. The first suit, filed in 1970 by the Environmental Defense Fund, Friends of the Earth, and the Wilderness Society, challenged the Interior Department permit on the basis of the department's failure to prepare an environmental impact statement, as required under the National Environmental Policy Act of 1969. In April 1970, the U.S. District Court for the District of Columbia issued a preliminary injunction against the permit on the grounds of such failure. In January 1971, the Interior Department complied by issuing a preliminary draft environmental statement. This initial impact statement was widely regarded as inadequate, and when Rogers C. B. Morton assumed responsibility as the new Secretary of the Interior, on Walter J. Hickel's departure, he directed that a thorough restudy be undertaken. A final impact statement was completed and released to the public in March 1972, and two months later Secretary Morton again issued the right-of-way permit, as allowed by a district court order dissolving the 1970 injunction.

Again the environmental groups went to court. They pressed both the substantive point that an alternative, trans-Canadian pipeline route had not been considered and would be more suitable (as discussed in the RFF-funded study by Charles J. Cicchetti, Alaskan Oil: Alternate Routes and Markets, Johns Hopkins University Press, 1972) and the violation of the Mineral Leasing Act. The subsequent court of appeals decision rested on the latter grounds alone, the substantive question not being considered.

When the Supreme Court declined to review this decision, the proponents' only remaining avenue of appeal was to Congress—to override the restrictions of the 1920 Act. Bills were introduced by Senator Jackson and Congressman Melcher, in the context of the gathering clouds of the energy crisis, to authorize the necessary right-of-way. During consideration of the bill by the Senate in mid-July of 1973, an amendment was offered by Senators Mondale and Bayh to direct study of the Canadian alternative, but this and a similar amendment introduced by Congressman Udall in the House were defeated by large margins. An amendment offered by Senator Gravel to foreclose any further judicial review of the case was carried, after a tie-breaking vote was cast in its favor by then Vice-President Spiro Agnew. A converse attempt to retain the applicability of the National Environmental Policy Act to the project was defeated by a narrow vote in the House. As reported out of conference, the bill excluded judicial review on any but constitutional grounds or on the grounds of administrative action exceeding the authority granted in the bill itself.

For a period of time in the fall, with widening realization that the Alaska pipeline would be a long time in mitigating the energy crisis, prospects for the bill were still uncertain. On the one hand, Congress was faced with a demand that it consider information the State Department was said to have concerning the Canadian response to suggestions for a joint Canadian-U.S. pipeline effort that would provide both petroleum and natural gas delivery at minimum environmental cost. On the other hand, because of various riders, including one giving the Federal Trade Commission a general power to seek injunctions against unfair competitive practices in industry, the Director of the Office of Management and Budget warned that the President might veto the bill.

In the end, the growing public recognition that the energy crisis would be both severe and long carried the day for the pipeline advocates. In mid-November, Congress passed the bill, riders and all, and the President promptly signed it. At the end of November, Interior Secretary Morton announced he was ready to reissue the right-of-way permit.

This denouement of the pipeline drama left the basic cost-benefit questions unresolved. Pressures of the moment, rather than a careful balancing of costs and benefits, had eventually determined the outcome. Yet there had been no lack of awareness of the relevant issues. Whatever the merits of an alternative Canadian route, and however long it would take for a trans-Alaska pipeline to begin carrying oil, the latter's contribution to supply would be substantial (an eventual 2 million barrels per day) and would be available sooner than that of any comparable alternative. There was a balance to be drawn between the costs of delay in supply and the possible net benefits of delay, in terms of reduced environmental damage and the greater economic efficiency of other modes of delivery. And Congress decided that it would only add to the net casts of delay to wait for a fuller accounting.