State of Alaska v. Cecil D. Andrus

Opinion for the Court filed by Chief Judge BAZELON.

On April 13, 1976, the Department of the Interior (DOI) offered for bid over one million acres of oil and gas leases in the Gulf of Alaska (GOA) Outer Continental Shelf (OCS). Appellants challenge the legality of that lease sale and seek to have it set aside. They argue both that the Environmental Impact Statement (EIS) prepared by DOI in connection with the sale does not satisfy the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and that the Secretary of the Interi- or’s decision to proceed with the sale in April, 1976 was itself a violation of the Act, because of the alleged inadequacy of the information available to the Secretary at that time. Appellants originally sought to enjoin the sale; however, the district court denied their motion for a preliminary injunction, and this court refused to grant appellants an injunction pending appeal. DOI was thus able to conduct the sale on April 13 as planned. Thereafter, the parties agreed to submit the case on the merits to the district court on the basis of the record compiled at the preliminary injunction stage of the proceedings; the district court concluded that the appellees had complied with all applicable statutes, and en *467 tered a final judgment dismissing the complaint.

We have determined that, on the facts of this case, it would be inappropriate for us to set aside the lease sale and to enjoin the exploratory drilling now underway in the Gulf of Alaska. However, this is on the premise that the Secretary’s undertaking prior to the sale, to confine environmental damage through departmental operating orders governing exploration and drilling, will be given meaningful effect through prompt reconsideration of the operating orders already issued, with an environmental impact statement that presents discussion of alternatives.

I. BACKGROUND OF LEASE SALE NO. 39

On January 23, 1974, former President Nixon announced that as part of “Project Independence” 1 he was directing the Secre-

tary of the Interior to increase the acreage leased on the Outer Continental Shelf to 10 million acres beginning in 1975, more than tripling what had originally been planned.” 2 The President ordered the Secretary, in carrying out this directive, “to ensure that . . . environmental safeguards are observed.” 3 In addition, the President pointed out that there would be “no decision on leasing on the Outer Continental Shelf in the Atlantic and in the Gulf of Alaska until the Council on Environmental Quality [CEQ] completes its current environmental study of those areas.” 4

The CEQ study to which the President referred was released on April 18, 1974. 5 That study concluded that the environmental risks associated with OCS development varied from region to region but that of the regions studied, development in the Eastern Gulf of Alaska would post the highest level of environmental risks. 6 Indeed, CEQ con- *468 eluded that the “conditions in the Gulf of Alaska are more severe than the [oil and gas] industry has yet experienced anywhere in the world.” 7

On October 18, Interior published a draft programmatic EIS (PEIS) analyzing the President’s proposed acceleration of OCS leasing to 10 million acres per year. 8 The Environmental Protection Agency (EPA) reviewed the draft and informed Interior that “in accordance with the EPA rating system for environmental statements, we have classified this statement as Category 3, Inadequate.” 9 The statement, in EPA’s view, had failed to address “key policy options and managerial issues pertaining to an accelerated OCS oil and gas leasing program.” 10 EPA was especially critical of the proposed inclusion of Alaskan OCS areas in the leasing schedule:

The CEQ Task Force on the OCS, in which DOI participated, states that the petroleum industry would encounter a higher environmental risk in the development of the Gulf of Alaska than in any ,other area. DOI has not been able to demonstrate that the benefit in oil development outweighs the environmental cost. In fact, DOI’s own data . show conclusively that because of material constraints, there is no relative advantage to leasing Alaskan OCS areas at this time despite the magnitude of Alaska’s reserves. EPA’s position is therefore that leasing in Alaskan waters should not be considered at this time and that substantial technical and biological research is required. Although we expect that as a result of that research, exploration and subsequent production will be feasible at some point in the future, EPA believes that the point cannot be predicted at this time. In our opinion, it is therefore neither necessary nor prudent for Alaskan OCS areas to be placed on the leasing schedule at this time. We think that the future decision should be based on (1) baseline and biological effects research, most of which has not been funded or planned at this time, (2) coastal zone planning, and (3) assessment of operating experience with advanced technologies which can be tested in other OCS areas. 11

In response to these comments from EPA, and to comments from the State of Alaska and others, Interior indicated that it fully concurred in CEQ’s analysis of the relative environmental risks associated with OCS development in various regions, 12 and agreed that development in the Gulf of Alaska would be “highly hazardous.” 13 “The Gulf of Alaska,” it said, “is a high risk area.” 14 Nonetheless, Interior’s “Proposed Planning Schedule,” issued in November, 1974, scheduled the Gulf of Alaska for leasing earlier than any of the other lower-risk areas examined in the CEQ Study. 15

A draft “site-specific” EIS (EIS or Sale No. 39 EIS) focusing on this proposed sale in the GOA, was next prepared. The following steps were taken in the preparation of that EIS:

a. On November 27, 1974, notice of a call for nominations of tracts suitable for *469 oil and gas leasing in the Northern Gulf of Alaska was published in the Federal Register. .

b. In this same notice, Interior requested comments from all interested parties on possible oil and gas leasing in the general area of the call for nominations. Interior asked that such comments include, but need not be limited to, environmental, technical, and socioeconomic aspects of potential oil and gas leasing and development in the area.

c. After receipt of numerous nominations and comments pursuant to this notice, the BLM [Bureau of Land Management] Alaska OCS Office and the U.S. Geological Survey (USGS) field office prepared joint tentative tract recommendations.

d. On March 20, 1975, the Secretary publicly announced that certain identified tracts, totaling 3.5 million acres, had been tentatively selected for further environmental study to be made in connection with the Department’s on-going consideration of a possible OCS lease sale offshore the Northern Gulf of Alaska in 1975.

e. Studies and analyses of potential oil and gas leasing and development of the proposed sale area were undertaken to provide an information base for a draft EIS. BLM’s Alaska OCS Office then prepared a draft EIS for proposed lease sale No. 39, which was submitted to the Council on Environmental Quality (CEQ) and made available to federal, state, and local agencies and interested members of the public on June 27, 1975. .

f. In the course of its consideration of the OCS oil and gas lease sale proposal in the Northern Gulf of Alaska, the Department involved the State of Alaska in the various procedures followed by the Department in considering that lease sale. State and local agencies and citizens groups were invited to designate experts to work with BLM’s staff in the preparation of the draft EIS for the lease sale.

Findings of Fact by the District Court, J.A. at 44 — 45.

Public hearings were held on the draft site-specific EIS in Anchorage, Alaska. Government officials, environmental groups, and members of the public were invited to testify and to submit written comments on the draft EIS. Pursuant to this request, comments were received from a number of departments of the State of Alaska. Id. at 46. In its comments on the draft, EPA again stressed the lack of reliable information on the environmental hazards that would be encountered in the GOA, and urged that exploration and development in that region be delayed:

In view of the substantial environmental risks of proceeding at this time with the proposed sale, we strongly urge the Department to more actively consider delaying the proposed action while, at the same time pursuing the biological baseline studies and other studies which would provide a better information base for designing and implementing technology to mitigate the environmental hazards. We believe the sale should be delayed at least until the biological baseline work is completed. . . . 16

The baseline studies referred to by EPA include, in particular, a major environmental research program undertaken in the GOA in mid-1974 by the National Oceanic and Atmospheric Administration (NOAA), in cooperation with BLM. This research program was described by CEQ as “[t]he principal vehicle for improved understanding of frontier OCS regions. . .” J.A. at 241. The study was designed as a four-to-five year research effort. J.A. at 381. However, at the time the Secretary made his decision to proceed with Sale No. 39, there had been only one full year of field research. J.A. at 241. Accordingly, the data available from the program at that time were “quite limited.” Id. CEQ indicated in January, 1976, that “the environmental/oceanographic data base for tract selection and operations regulation can be substantially improved by at least two more years of work under” the NOAA program. Id. Interior indicated in the EIS that “[a] delay of approximately lh to IV2 years would allow for completion of all preoperational phases of the environmental studies program. ... A delay of up to 4 years would allow for completion of the longer term or ‘ecological relationship’ studies.” EIS, Vol. II, at 678.

*470 Following the hearings and comment period, the Department revised the site-specific draft EIS in light of the comments received. J.A. at 46.

On November 18, 1975, the Bureau of Land Management (BLM) published a final EIS for the lease sale in the Northern Gulf of Alaska. In addition to the final EIS, BLM prepared a Program Decision Option Document (PDOD) for the lease sale, which discussed the major issues to be considered by the Secretary and identified the alternative courses of action that were available. The PDOD explained the advantages and disadvantages of several alternatives, which ranged from a lease sale of 1.8 million acres to more restricted lease sales to no sales at all. Id. at 47.

The final EIS for the lease sale makes note of EPA’s recommendation that the sale be delayed, 17 and includes a brief discussion of the “alternative” of delaying the sale “pending completion of studies in the Northern Gulf of Alaska concerning the potential environmental impacts of offshore minerals development.” 18 This final EIS was once again submitted to EPA, pursuant to § 309 of the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857h — 7. That provision requires the Administrator of EPA to “review and comment in writing on the environmental impact” of federal actions to which NEPA applies. If the Administrator should determine that a proposed action is environmentally “unsatisfactory,” § 309(b) requires him to publish his determination and refer the matter to CEQ. On December 18, the Administrator informed the Secretary that EPA had

concluded that the action as proposed and presently scheduled is unsatisfactory from the standpoint of environmental quality based on its potentially harmful effects to the environment and on the fact that potential operational and technical safeguards which might be utilized may not adequately protect the environment from hazards arising from this action. 19

EPA again argued that the sale should be delayed in order to allow, inter alia, the completion of the environmental studies. 20 Accordingly, under the terms of § 309(b), the Administrator referred the question of Sale No. 39 to CEQ.

Following this § 309 referral, the Council, Interior, EPA, and other interested agencies engaged in an “intensive review of the objections raised by Administrator Train. . ” 21 Based on this review, CEQ informed the Secretary that it agreed with EPA that “it would be most desirable, from an environmental point of view, to delay the sale. . . . ” 22 However, while CEQ urged the Secretary to “give careful consideration to that opinion,” it also suggested an alternative, fallback position, in the event that the Secretary should decide that “a blanket delay of the sale is not in the national interest . . ..” 23 The Council acknowledged that it was the Secretary who had to make the “final decision” and who had to balance “the environmental benefits” of delay against “the costs of postponing potential oil and gas production and revenues.” 24 But, if after conducting such a balancing, the Secretary concluded that some sale was required immediately, CEQ “strongly urge[d] that the sale be limited to those tracts that, relative to other tracts in the original proposal, appear to represent the lowest possible degree of risk *471 of environmental damage.” 25 Specifically, CEQ urged that any sale be restricted to “a contiguous block” of tracts “in the north-easternmost zone of the original sale proposal,” comprising a total of some .15 million acres. This area, in CEQ’s view, was both “highly promising in oil and gas potential and relatively low in vulnerability to environmental damage.” 26

The Secretary’s staff subsequently prepared a Status Report and Decision Paper on the CEQ recommendations, which served as a supplement to the PDOD. It contained both a discussion of the advantages and disadvantages of the CEQ recommendations and alternatives to them. J.A. at 48. Interior also prepared a third option paper called the Tract Selection Option Paper. This document supplemented the PDOD by posing additional options for tract offerings in the event the Secretary decided to proceed with the lease sale. The options included the recommendation of CEQ. Id.

Upon consideration of these materials and consultation with the CEQ, EPA, the National Oceanographic and Atmospheric Administration and the Federal Energy Administration, the Secretary concluded, on February 17, 1976, that sufficient information was available to identify and reduce environmental risks from exploration and production in the Sale No. 39 area, and thus decided to proceed with the sale.

On that date, the Secretary informed CEQ of his decision to proceed with the sale as scheduled. In response to the suggestions that the sale be delayed, the Secretary indicated that, in his “considered judgment,”

delays of . [several years] in the lease sale would not gain us enough to be worth the cost in postponement of development of the resources. I am convinced that we already know what the major hazards are in oil and gas development of the Gulf of Alaska; further studies will refine that knowledge, but they are unlikely to change it fundamentally. I am further convinced that the operating orders, safety requirements, and lease stipulations developed by the Bureau of Land Management and the U.S. Geological Survey will reduce those hazards to levels which are acceptable. 27

Although the Secretary indicated that he had decided to reduce the amount of acreage to be offered for leasing from the 1.8 million acres originally proposed to some 1.1 million acres, he rejected the CEQ suggestion of a sale restricted to .15 million acres of contiguous tracts in one limited area of the Gulf. The Secretary stated that the .7 million acres he had eliminated from the sale removed

by far the most risky tracts . . ., that the remaining overall probability of damaging accidents is low, and that the potential value to the Nation of discoveries in this area is very high. If we are to make sizeable discoveries, we must make sizeable acreage available for exploration. Unwarranted risks should not be taken, and in my judgment the tracts I have included in the offering can all be developed with a favorable balance of benefits to risks. 28

On February 25, 1976, CEQ sent to the Secretary its final evaluation of the sale decision. The Council indicated that it was “greatly disappointed” with the Secretary’s decision “to proceed with a sale of such magnitude and such wide dispersion of tracts.” 29 Such a sale would, in its view, pose “unwarranted risks to the natural re *472 sources and environment of the northern Gulf of Alaska and to the communities bordering it;” 30 accordingly, the council expressly affirmed EPA’s determination, made pursuant to § 309 of the Clean Air Act, that the sale was “environmentally unsatisfactory.” 31 The Council argued that Interior had “consistently failed to recognize the truly unique environmental conditions of the Gulf of Alaska,” and it reiterated its view that “the information available simply does not justify” the Secretary’s decision:

[I]n our view, the OCS program for the Northern Gulf of Alaska has not progressed to the point where the information is adequate for making sound leasing decisions or conducting operations beyond the limited area we recommended and under the most tightly controlled conditions. 32

On April 6, 1976, after receipt of new data, the Secretary withdrew an additional 92,000 acres from the sale area, by deleting all tracts west of Kayak Island, which had been identified by CEQ as an area of particular environmental concern. 33 The remaining 189 tracts, comprising approximately one million acres, were offered for sale on April 13, 1976. Of these 189 tracts, only 81 received bids. The Secretary then rejected five of those 81 bids and accepted the remaining high bids for 76 tracts. 34 These tracts comprised approximately 410,000 acres. J.A. at 49.

II. THE ISSUES

A. The Alternative of Delay

Appellants make two related arguments with respect to the Secretary’s decision not to delay the sale. They argue, first, that the information available to the Secretary in April, 1976, was insufficient, as a matter of law, to permit a decision to proceed with the sale at that time. They argue, second, that even if this lack of information did not absolutely preclude a sale in April, 1976, the Secretary’s response to the suggestions that the sale be delayed was inadequate; they contend, in other words, that the analysis in the EIS of the “alternative of delay” was insufficient, and that the Secretary failed to articulate (either in the EIS or elsewhere) the reasons that led him to reject the advice of EPA, CEQ, and others.

We discuss each of these arguments in turn.

1.

The district court concluded that “[t]he information and the studies which were available to the Secretary were sufficient to permit the preparation of an EIS which meets the requirements of NEPA. . .” Conclusion of Law No. 7, J.A. at 56. Appellants strenuously disagree. They argue that even though the EIS may have been based on the best information available as of the date of its preparation, under NEPA the “best available information” may not be good enough. They contend that NEPA imposes on agencies affirmative information-gathering obligations; and until those obligations have been satisfactorily carried out — until, that is, sufficient data has been amassed “to provide a factual basis for responsible impact prediction or mitigation,” Appt.’s Br. at 31 — NEPA imposes an absolute bar to proceeding with a given project. Id. at 31-2.

Appellants conceded, of course, that these information-gathering obligations, like an agency’s other NEPA obligations, are necessarily bounded by a “rule of reason;” 35 but they contend that Interior’s action here was clearly “unreasonable.” They agree that agencies need not “wait forever to fathom the unfathomable, or arrive at definitive answers on questions far beyond *473 the existing state of scientific or technological ability.” Appt. Br. at 35. Where, however, the data deficiencies are substantial, and where the present level of scientific ability is adequate to cure those deficiencies within a reasonable period of time, appellants contend that those deficiencies must be rectified before the project may be allowed to proceed. Thus, in the present case, appellants argue that the Secretary really had no discretion to reject the suggestions of CEQ and others that the sale be delayed in order to allow further progress in the ongoing environmental research program. The data to be obtained from that additional research were, in appellants’ view, an essential prerequisite to the Secretary’s lease-sale decision.

As a preliminary matter, we note that NEPA does, unquestionably, impose on agencies an affirmative obligation to seek out information concerning the environmental consequences of proposed federal actions. Indeed, this is one of NEPA’s most important functions. As this court has held, “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.” Scientists’ Institute for Public Information, Inc. v. AEC (SIPI), 156 U.S.App.D.C. 395, 408, 481 F.2d 1079, 1092 (1973). And prediction — or, at least, informed prediction — is only possible after an agency has conducted a thorough inquiry into all aspects of the contemplated project and the area to be affected.

Predictions, however, by their very nature, can never be perfect; and the information available to an agency could always be augmented. The question in each case is, “How_much information , is enough?” And that is not a question to which NEPA provides a clear, firm answer. Certainly, NEPA cannot be

read as a requirement that complete information concerning the environmental impact of a project must be obtained before action may be taken. If we were to impose a requirement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could ever be initiated. 36

Some element of “speculation” is “implicit in NEPA.” 37 And just as agencies may not be allowed “to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry,’ ” 38 so also agencies may not be precluded from proceeding with particular projects merely because the environmental effects of that project remain to some extent speculative. NEPA simply does not specify the quantum of information that must be in the hands of a decision-maker before that decisionmaker may decide to proceed with a given project. Rather,

NEPA was intended to ensure that decisions about federal actions would be made only after responsible decisionmakers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs. 39

One of the costs that must be weighed by decisionmakers is the cost of uncertainty — i. e., the costs of proceeding without more and better information. Where that cost has been considered, and where the responsible decisionmaker has decided that it is outweighed by the benefits of proceeding with the project without further delay, the courts may not substitute their judgment

*474 for that of the decisionmaker and insist that the project be delayed while more information is sought. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). 40

We thus hold that the Secretary was not required, as a matter of law, to await the results of the ongoing studies before deciding to proceed with the lease sale. Even though the “alternative of delay” was vigorously advocated by CEQ, EPA, and others, it is the Secretary of the Interior who has been charged by Congress with the responsibility for deciding whether, and when, to lease portions of the OCS; in making those decisions, the Secretary did have the discretion to reject the advice that had been offered to him.

2.

While the Secretary was thus not required to accept the “alternative of delay,” he was required to give full and careful consideration to that alternative prior to reaching his decision. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), specifies that an EIS must contain a “detailed statement” of “alternatives to the proposed action.” And § 102(2)(E) of the Act requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action . . . .” As noted supra, the final Sale No. 39 EIS does make note of EPA’s recommendation that the sale be delayed, and includes a brief discussion of the “alternative of delay.” 41 Appellants argue, however, that that discussion is insufficient to satisfy the requirements of NEPA.

As this court and others have frequently pointed out, NEPA requires agencies to engage in a “finely tuned and ‘systematic’ balancing analysis,” in which the environmental costs of proposed projects are compared to and balanced against their economic and other benefits. Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 37, 449 F.2d 1109, 1113 (1971). The requirement that agencies prepare “detailed” environmental impact statement aids this broader purpose in several ways. First, the statement aids the agency’s own decisionmaking process, by ensuring that the agency has before it “all possible approaches to a particular project . which would alter the environmental impact and the cost-benefit balance.” Id., 146 U.S.App.D.C. at 38, 449 F.2d at 1114. Moreover, the statement provides evidence that “the mandated decision making process has in fact taken place . . . .” Id. Finally, and most importantly, the statement makes it possible for “those removed from the initial process” — in other agencies, in Congress, and in the public — “to evaluate and balance the factors on their own.” Id.; NRDC v. Morton, supra, 148 U.S.App.D.C. at 11, 458 F.2d at 833.

The “detailed statement” of “alternatives to the proposed action” called for by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), has been aptly characterized as “the linchpin of the entire impact statement.” Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697-8 (2d Cir. 1972); NRDC v. Callaway, 524 F.2d 79, 92-3 (2d Cir. 1975). This statement must not simply list possible alternatives; instead, it must contain a “detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives . . . .” NRDC v. Callaway, supra at 92; NRDC v. Morton, supra, 148 U.S.App.D.C. at 12, 458 F.2d at 834. The CEQ’s Guidelines on the Preparation of Environmental Impact Statements indicate that the statement should include a “rigorous exploration and objective evaluation of the environmental impacts of all reasonable alternative actions,” including “the alternative of taking *475 no action pending further study . . . .” 40 C.F.R. § 1500.8(4). The statement’s analysis “should be sufficiently detailed to reveal the agency’s comparative evaluation of the environmental benefits, costs and risks of the proposed action and each reasonable alternative.” Id. The discussion of alternatives “must go beyond mere assertions” if it is to fulfill its vital role of “exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government.” Callaway, supra at 93, 94; Silva v. Lynn, 482 F.2d 1282, 1286-7 (1st Cir. 1973). An agency may not, in other words, “keepO its thought processes under wraps.” Ely v. Velde, 451 F.2d 1130, (4th Cir. 1971).

The discussion of the “alternative of delay” in the Sale No. 39 EIS is brief — consisting of three pages out of 1700 in the final EIS. See EIS Vol. II at 676-79. The statement discusses the benefits of delay in general terms. 42 It notes that “a delay of approximately lh to IV2 years would allow for completion of all preoperational phases of the environmental studies program in the northern Gulf of Alaska . . . .” Id. at 678. And the statement concedes that “[t]he information obtained from the completion of these studies prior to holding the proposed sale would provide a greater degree of confidence than presently exists concerning the leasing of any given OCS area and the siting of offshore facilities, including pipelines, in relation to geologic, oceanographic, and biotic parameters.” Id. However, the statement contains no information whatsoever as to the costs of such a delay.

NEPA’s requirement that an agency discuss “alternatives to the proposed action” is subject to a “rule of reason,” 43 and that rule of reason necessarily governs both which alternatives the agency must discuss, and the extent to which it must discuss them. Here the EIS does not even avert to the costs of delay in terms of lost oil production opportunities, and makes no attempt to quantify the benefits to be expected from delay. Nor can quantitative estimates of the costs and benefits of delay be found in any of the documents prepared by DOI after publication of the final EIS, including the Secretary’s letter of February 17, 1976 to the Chairman of the CEQ, informing him of the decision to proceed with the sale as scheduled. 44

*476 The question is, was it reasonable to proceed without quantitative estimates? 45 Appellants to not indicate how the Secretary could have made a quantitative estimate of benefits to be expected from delay. We can assume for discussion that the Interior Department had data that would permit some quantitative estimate of crude oil that might be available from the lease sites, and the time frame of delivery. There still remains the question whether and to what extent NEPA requires, in these circumstances, something in the nature of a quantitative cost-benefit analysis. Often such analyses are misleading, since the difficulty of assigning quantitative values to environmental considerations tends to minimize their significance. In the last analysis the decisionmaker is left with a comparison of non-commensurable entities — damage to the environment versus added energy resources. We recognize that it is a central purpose of NEPA to compel an agency to make such comparisons. Yet the agency retains, under NEPA, reasonable discretion to decide when it has sufficient information to choose intelligently between alternative courses of action that affect the environment. The Secretary’s letter to the chairman of CEQ stated that this was an “especially difficult instance of the problem of balancing two of the Nation’s highest priorities, energy supply and environmental protection” but that he had become convinced “that on balance it is in the National interest to move ahead with the lease sale.” 46

For the present, we find it unnecessary to decide whether the Secretary’s rejection of the alternative of delay represents a reasonable exercise of this discretion. The period of delay originally recommended by EPA and CEQ has by now very nearly elapsed. It would obviously be somewhat anomalous to set the sale aside now, so that the Secretary could reconsider whether, in early 1976, he should have postponed a sale decision until mid-1977. More importantly, however, although the Secretary decided not to delay a sale decision pending the results of the studies in the Gulf, those studies have been continuing. Accordingly, most, if not all, the data that CEQ considered necessary for the initial sale decision have by now presumably been gathered; and these data will obviously be available to the Secretary when he considers, on remand, whether to change the operating orders.

*477 B. The Operating Orders

The OCS Lands Act, 43 U.S.C. § 1331 et seq., grants to the Secretary of the Interior broad responsibility for administering an oil and gas leasing program on the OCS. That responsibility has in turn been divided between two subdivisions of the Interior Department (subject, of course, to the Secretary’s ultimate supervisory authority). The Bureau of Land Management is charged with the primary responsibility for administering the actual leasing of particular tracts. See 43 C.F.R. § 3300 et seq.; see also Affidavit of Stanley Doremus, Deputy Assistant Secretary of the Interior for Program Development and Budget (Doremus Affidavit), J.A. at 649-650. It is thus BLM that conducted Lease Sale No. 39, and that authored the EIS challenged here. On the other hand, the United States Geological Survey (USGS) has the primary responsibility for supervising and regulating the lessees’ operations on the leased tracts. See 30 C.F.R. § 250.1 et seq. and EIS, Vol. II, at 553; see also EIS, Vol. Ill, at 164. In carrying out this supervisory authority, USGS both enforces the operating regulations set forth at 30 C.F.R. § 250.1 et seq., and promulgates detailed “operating orders” (hereinafter, Orders) for each region in which drilling operations are contemplated. These Orders govern the manner in which exploration and development may be carried out, and specify, inter alia, the safety and environmental standards that lessees will be required to meet. See 30 C.F.R. §§ 250.2(j); 250.11; 250.12(a). USGS published draft Orders for the Gulf of Alaska on January 6, 1975; 47 these Orders were adopted, with some revisions, effective March 1, 1976. 48

The draft Orders are attached as an appendix to the EIS published November 18, 1975. The contents of the Orders is described briefly in a section of the EIS entitled “Mitigating Measures Included in the Proposed Action.” 49 Appellants argue that more was required. They note that decisions regarding how OCS operations are to be conducted, which are incorporated in the Orders, may be at least as significant as decisions regarding whether to allow OCS development at all in a particular region. Appellants' Br. at 10. Accordingly, they contend that Interior was required to prepare a “detailed” evaluation of the environmental impact of the Orders, either in a separate EIS focusing on the Orders themselves, or as a part of the Sale No. 39 EIS. In particular, they argue that Interior was required to evaluate alternatives to those Orders that were actually adopted.

As a preliminary matter, we agree with the district court that the Secretary was not required to prepare a separate EIS on the Orders, and that “[i]t was within the discretion of the Secretary to consider the OCS Orders within the context of the EIS for Sale No. 39.” 50 While the Orders may have considerable impact on the environment, that impact can arise only after a lease sale has been held and drilling operations have commenced under the terms of the Orders. The promulgation of the Orders cannot, by itself, affect the environment in any way. Cf. NRDC v. NRC, 178 U.S.App.D.C. 336, 356 n.57, 547 F.2d 633, 653 n.57 (1976), cert. granted sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). The Secretary was, of course, free to prepare a separate EIS on the Orders; and such a course might well have been desirable, since the Orders do extend to a much broader geographical area than any individual lease sale. Nonetheless, we cannot say that his decision to defer consideration of the impact of the Orders until a particular sale was contemplated was unreasonable.

While the Secretary could thus consider the impact of the Orders within the context of the Sale No. 39 EIS, the more *478 important issue is whether the “consideration” given to the Orders in that EIS was adequate. We conclude that it was not. As noted supra, the EIS merely describes the Orders that had been proposed and adopted; there is no attempt to evaluate the environmental impact of those Orders, as opposed to other Orders that might have been adopted. In essence, the EIS simply treats the Orders as a given — i. e., the environmental impact of the lease sale is evaluated on the assumption that any exploration and development in the sale area will be conducted in accordance with those particular Orders. 51

The Secretary argues that a fuller evaluation of the Orders, and of possible alternative orders, was not required, because “these orders are nothing more than methods of mitigating potential adverse environmental impacts and promoting safety . .” Govt.Br. at 47. 52 This description of the Orders raises the question of whether or in what circumstances NEPA applies to agency action that has a beneficial effect on the environment.

We find it unnecessary to address this broad issue on the facts before us. The Operating Orders in the case at bar present a far narrower question. They are not bestowed by the Secretary of the Interior out of sheer beneficence toward the environment. Rather, they represent a central mechanism by which the Secretary carries out his undertaking to keep to a minimum the adverse impact of the lease sale upon the environment. Specifically, the Secretary’s decision to proceed with the lease sale without delay was based on the premise of protective operating orders. This is set forth in the critical letter of the Secretary to the Chairman of CEQ, dated February 17, 1976, advising of his decision to proceed with the sale. He stated his reasons as follows:

The first question we have faced is whether the sale of leases in the Gulf of Alaska should be held now or should be