JOHN O. MARSH, JR., SECRETARY OF THE ARMY, ET AL., PETITIONERS v. OREGON NATURAL RESOURCES COUNCIL, ET AL. No. 87-1704 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the Petitioners In our petition for a writ of certiorari, we showed that the court of appeals has interpreted the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), to impose on federal agencies major new requirements that are not supported by the statutory language and that contradict this Court's decisions interpreting the Act. Specifically, the court of appeals has created new substantive and procedural duties with respect to mitigation, it has overridden the Council on Environmental Quality's (CEQ's) decision to discontinue the use of "worst case" analysis when addressing questions of scientific uncertainty, and it has second-guessed the district court and the agency on highly technical factual matters. Respondents' attempts to justify the court of appeals' decision and to downplay its significance are unpersuasive. 1. Respondents incorrectly contend that the court of appeals' decision "requires no more than a discussion of the extent to which adverse impacts will be mitigated under the Corps' own plans" (Br. in Opp. 6 (footnote omitted)). The court of appeals has, in fact, expressly required far more. The court held that no environmental impact statement will satisfy NEPA unless it includes a detailed plan to mitigate the project's environmental harm. The court's opinion categorically states that an environmental impact statement "must include a discussion of measures to mitigate adverse environmental impacts of the proposed action" (Pet. App. 5a) and that "significant measures" must be "undertaken to mitigate the project's effects" (ibid). "Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures" (ibid.). If there were any doubt concerning the court of appeals' holding, it was dispelled by the court's subsequent decision in Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (1987), petition for cert. pending, No. 87-1703. The court there forcefully reiterated and applied the pertinent language from this case to invalidate a Forest Service environmental impact statement. The court repeated its view, in words admitting no ambiguity, that NEPA requires agencies to undertake -- and not merely discuss -- mitigation measures, stating: "Section 4332 of NEPA requires that 'action be taken to mitigate the adverse effects of major federal actions'" (833 F.2d at 819 (citation omitted)). /1/ The court of appeals, citing the present case, further stated (ibid.): Consequently, an EIS must include a thorough discussion of measures to mitigate the adverse environmental impacts of a proposed action. Oregon Natural Resources Council v. Marsh, 820 F.2d 1051, 1055 (9th Cir. 1987). * * * "Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures. 820 F.2d at 1055 * * *." Finally, the court in both cases emphasized the seriousness sith which it views this requirement. "The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of any environmental impact statement." Pet. App. 7a; Methow Valley Citizens Council v. Regional Forester, 833 F.2d at 820. Thus, the court of appeals' approach to NEPA's requirements is apparent. The court commands that every environmental impact statement shall include a complete mitigation plan. It has imposed both a substantive duty to mitigate adverse environmental effects and a new, unwarranted set of procedural obligations -- neither of which is rooted in any of the provisions of NEPA or its implementing regulations. This Court has repeatedly forbidden such attempts to expand NEPA's requirements. Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 548 (1978). /2/ Contrary to respondents' suggestions (Br. in Opp. 6 n.4, 7-8), the court of appeals' decision finds no support in lower court NEPA decisions discussing mitigation. Indeed, most of the earlier NEPA decisions involving mitigation arose in a vastly different context. Typically, an agency would conclude that a comprehensive environmental impact statement was not necessary because the agency had included, as an intrinsic element of its proposed project, a mitigation plan designed to assure that the federal action would not "significantly affect() the quality of the human environment" (42 U.S.C. 4332(2)(C)). See, e.g., Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir. 1985); Foundation for North American Wild Sheep v. United States Dep't of Agriculture, 681 F.2d 1172, 1180-1181 (9th Cir. 1982). We agree that where an agency relies upon a mitigation plan to obviate the need for preparation of an environmental impact statement, a reviewing court can require the agency to demonstrate that the mitigation plan is reasonably likely to be effective. But when an agency prepares an environmental impact statement, mitigation stands on a different footing. The agency has analyzed the whole range of environmental impacts associated with the project in a complete environmental impact statement that evaluates the environmental risks of going forward. In this context, mitigation measures can only diminish the magnitude of impacts already described, and accordingly their discussion need not be as specific or as detailed or as certain. /3/ In short, the court of appeals' institution of broad new mitigation requirements is a major departure from established NEPA law. The decision, which has far-reaching consequences for all "major Federal actions" (42 U.S.C. 4332(2)(C)) within the Ninth Circuit, plainly warrants this court's review. 2. Respondents contend (Br. in Opp. 9-12) that the court of appeals "followed well-settled law" in requiring the agency to conduct a worst case analysis even though the CEQ had rescinded that regulatory requirement. They reason that the worst case concept is "a fundamental part of NEPA" (id. at 9) and that the "CEQ's interpretation of NEPA may not diminish the statute's fundamental requirements" (id. at 11). This argument rests on a fundamental misconception. As we explained in our petition (at 15-18), NEPA nowhere requires or even mentions worst case analysis. The CEQ adopted the worst case requirement as a regulatory innovation, which NEPA authorized but did not require. Thus, when the CEQ determined that worst case analysis actually impeded -- rather than advanced -- NEPA's goals, it was free to rescind that purely regulatory requirement. None of the decisions cited by respondents holds or suggests otherwise. For example, Sierra Club v. Sigler, 695 F.2d 957, 970-971 (5th Cir. 1983), the source of much confusion on this issue, simply held that NEPA allowed the CEQ to promulgate the worst case regulation, noting that the regulation "codifie(d)" certain judicially-recognized NEPA principles, including the need for "reasonable forecasting and speculation" concerning the probabilities of the occurrence of certain environmental impacts and the costs of proceeding without more and better information. That decision does not suggest that worst case analysis is itself fundamental to NEPA or that the technique is a necessary mechanism for satisfying NEPA's goal. Nor does this Court's decision in Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 100 (1983), support respondents' suggestion (Br. in Opp. 10-11) that NEPA requires worst case analysis when critical information is lacking or there exists scientific uncertainty concerning a reasonably foreseeable environmental impact. That case neither discussed nor imposed the worst case analysis requirement. At most, it stands for the proposition that an agency complies with NEPA by adequately considering and disclosing the uncertainties surrounding the agency's assumptions. Baltimore Gas & Elec. Co., 462 U.S. at 99-100. This, however, is a far cry from a holding that worst case analysis is required any time there is a lack of scientific certainty over potential environmental impacts. None of the other cases cited by respondents even discuss, much less require, worst case analysis. /4/ Respondents recognize (Br. in Opp. 11) that the CEQ, which was created specifically to implement NEPA, is empowered to issue rules instructing federal agencies how to comply with NEPA. And, as respondents grudgingly concede (ibid.), the CEQ's interpretation of the statute is entitled to substantial deference. See Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). Contrary to respondents' suggestions (Br. in Opp. 11 n.8), deference is particularly appropriate here. The CEQ promulgated the current regulation with the greatest deliberation and only after determining that the worst case regulation was "unproductive and ineffective" (51 Fed. Reg. 15618, 15620 (1986)). See also Pet. 16 n.14. Although the new regulation does away with the worst case requirement, it "does not, however, eliminate the requirement for federal agencies to evaluate the reasonably foreseeable significant adverse impacts of an action, even in the fact of unavailable or incomplete information" (51 Fed. Reg. 15621 (1986)). /5/ The court of appeals erred in overturning this well-reasoned and fully deliberated regulatory change. Its decision to overrule the CEQ on a significant matter so clearly within the agency's expertise plainly warrants review. /6/ 3. Respondents defend on factual grounds (Br. in Opp. 12-16) the court of appeals' decision requiring further supplementation of the environmental impact statement. They recognize (id. at 12-13) that an agency's duty to supplement turns on a question of scientific fact, namely whether the agency or commentators have uncovered significant new information concerning environmental effects. See 40 C.F.R. 1502.9(c)(1)(ii). They then argue (Br. in Opp. 12) that the court "properly found that significant new information triggered an established procedural obligation to prepare a supplemental statement." /7/ Plainly, they misapprehend the court of appeals' limited role. The court of appeals had no authority to engage in the sort of de novo factfinding employed here. See, e.g., Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986); Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). The district court, which reviews agency action under the standards set forth in the Administrative Procedure Act (APA), 5 U.S.C. 706, had primary responsibility for addressing challenges to agency action based on factual disputes. Furthermore, even that court was obligated to "be at its most deferential" when examining the agency's scientific determinations (Baltimore Gas & Elec. Co., 462 U.S. at 103). The court of appeals' role in this case was limited to reviewing the district court's determination that the agency's action was not "arbitrary and capricious" (see id. at 97-98, 105-106). Contrary to respondents' arguments, the question here is not simply whether the court of appeals' factual determination is supported by the evidence; the question is whether the court of appeals acted within the bounds of its authority in making that determination. See Pet. App. 28a (Wallace, J., dissenting). Indeed, respondents' vigorous defense of the court of appeals' de novo factfinding simply underscores the need for this Court's review of that practice. For the reasons stated above and in the petition, it is therefore respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General JUNE 1988 /1/ Respondents suggest that "(t)he Solicitor General's objection to a substantive duty to mitigate is more properly raised in his petition for a writ of certiorari to review Methow Valley * * *" (Br. in Opp. 6 n.4). Thus, they seem to concede that Methow Valley, at least, does impose a substantive duty to mitigate environmental harm. /2/ Respondents erroneously claim (Br. in Opp. 7) that the CEQ's regulations justify the court's holdings, citing the requirement that environmental impact statements "include discussions of: * * * * *(m)eans to mitigate adverse environmental impacts * * *." 40 C.F.R. 1502.16(h). That regulation does not, however, require an agency to adopt mitigation measures, it does not specify that the discussion of mitigation satisfy any particular level of detail, nor does it require, expressly or implicitly, that the agency demonstrate how proposed measures will be effective. Rather, the regulation appropriately leaves these decisions to the discretion of the drafting agency. See, e.g., Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980). Respondents also err in contending (Br. in Opp. 7) that the CEQ regulation cited above, when combined with NEPA's requirement that the agency provide a "detailed statement" (42 U.S.C. 4332(2) (C)), leads to the court of appeals' result. NEPA contemplates that the agency shall provide a detailed discussion of the five basic subjects, specified by the Act, that comprise an environmental impact statement. It does not require that every subsidiary matter (such as mitigation) be discussed in detail. Obviously, the agency's discussion of those five subjects can be "detailed" even if the discussion of their subsidiary components, viewed individually, contain varying levels of detail. Indeed, the CEQ regulations expressly direct agencies to limit the size of environmental documents by imposing page limits and by selecting carefully the issues that warrant extended discussion. 40 C.F.R. 1500.4. Again, the regulations leave the appropriateness of a lengthy discussion of any particular issue, including mitigation measures, to the discretion of the drafting agency. /3/ Thus, respondents err in contending (Br. in Opp. 8) that the government wishes to "shoot first, and ask questions later." The fact that the agency had not, by the time it completed its environmental analysis, also completed a detailed mitigation plan does not mean that the agency had not considered the environmental impacts of the project, as NEPA requires. In this instance, the supplemental environmental impact statement and the record of decision describe in detail the expected environmental effects of the project without mitigation. Elk Creek Supplemental Statement 33-46; Pet. App. 46a. These documents provide a complete inventory of the species affected by the project and fully describe the environmental effects, including displacement of certain wildlife. The documents further indicate the agency's intention to attempt to mitigate some of those effects and describes generally the measures that will be considered, but no specified environmental benefits were described or relied upon by the decisionmakers. Rather, the decision was made to proceed in the knowledge that certain adverse environmental effects would occur unless mitigated. The decisionmaker therefore was specifically aware of and had fully evaluated those impacts. This is all that NEPA requires. See Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1082 (D.C. Cir. 1973) (discussing need for reasonable forecasting and speculation under NEPA); Carolina Environmental Study Group v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975) (agencies must consider the probabilities of the occurrence of environmental effects in considering their impact); Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir.), vacated in part, 439 U.S. 922 (1978) (decisionmakers must consider the cost of proceeding without more and better information). The CEQ was well aware of these cases when it rescinded the worst case requirement. See 51 Fed. Reg. 15625 (1986). It specifically rejected the suggestion that they "required worst case analysis" (ibid.), explaining (ibid.): The "worst case analysis" requirement was a technique adopted by CEQ as a means of achieving the goals enunciated in such case law. The "worst case" requirement itself, however, was clearly a "major innovation". Comment, New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation, 9 Envt'l L. Rep. 10,005, 10,008 (1979). As the CEQ further explained, it "has since observed difficulties a better approach to the problem of incomplete or unavailable information in an (environmental impact statement)." 51 Fed Reg. 15625 (1986). /5/ The current version provides that agencies lacking information about reasonably foreseeable environmental impacts must obtain and include the information if "the overall costs of obtaining it are not exorbitant." Pet. App. 70a; 40 C.F.R. 1502.22(a). If the information cannot be obtained, the agency must include in the environmental impact statement (Pet. App. 70a-71a; 40 C.F.R. 1502.22 (b)) -- (1) A statement that such information is incomplete or unavailable; information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment; and (4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. /6/ The court of appeals compounded its error by invoking the rescinded worst case requirement in a case where there are, in fact, no genuine "gaps in relevant information or scientific uncertainty" (Pet. App. 71a; 40 C.F.R. 1052.22 (1985)). The court found that the Army Corps of Engineers' "assessment of turbidity due to Elk Creek Dam is subject to uncertainty" for the sole reason that the Oregon Department of Fish and Wildlife submitted a comment disagreeing with the Corps' assessment of the dam's likely contribution to the total flow of the Rogue River (Pet. App. 14a). Whatever "scientific uncertainty" means, it surely cannot exist simply because a participant or observer disagrees with the agency's analysis. Such disagreement among interested parties and experts are endemic to environmental analysis as they are to almost any process that involves complex decisions affecting competing interests. If disagreements like that at issue here amount to "scientific uncertainty," then virtually every environmental impact statement would be subject to the Ninth Circuit's "worst case" requirement. This cannot be a correct or sustainable result, even under the former regulation. /7/ Indeed, they assert that the court was not only justified but required to undertake "an exhaustive review of the facts" (Br. in Opp. 12) and that the court "thus examined the evidence to ascertain whether new information provided by the Oregon Department of Fish and Wildlife * * * and the United States Soil Conservation Service * * * rose to the necessary level of 'significance'" (id. at 13 (citation and footnote omitted)).