WILLIAM P. CLARK, ET AL., PETITIONERS V. SOUTHERN OREGON CITIZENS
AGAINST TOXIC SPRAYS, INC.

   No. 84-267

   In the Supreme Court of the United States

   October Term, 1984

   The Solicitor General, on behalf of the Secretary of the Interior,
the Director of the Bureau of Land Management (BLM) and other BLM
officials, petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Ninth Circuit in this
case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

                       PARTIES TO THE PROCEEDING

   The parties to this proceeding in addition to those listed in the
caption are Robert Burford, William Leavell and Hugh Shera.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-12a) is
reported at 720 F.2d 1475.  The opinion of the district court is
unreported (App., infra, 13a-24a).

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 25a) was entered
on December 2, 1983.  A petition for rehearing was denied on March 21,
1984 (App., infra, 26a).  On June 8, 1984, Justice Rehnquist extended
the time for filing a petition for a writ of certiorari to and
including August 1, 1984.  On July 24, 1984, Justice Rehnquist further
extended the time for filing a petition for a writ of certiorari to
and including August 18, 1984.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   Section 102 of the National Environmental Policy Act of 1969, 42
U.S.C. (& Supp. V) 4332, and relevant provisions of the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., are
reprinted at App., infra, 27a-33a.

                          QUESTION PRESENTED

   Whether the Bureau of Land Management's environmental assessment of
the human health risks of using certain herbicides on specific federal
land, which relied, in part, upon a scientific evaluation of the
health effects of the herbicide conducted by the Environmental
Protection Agency (EPA) in registering the herbicides pursuant to the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), satisfied
the requirements of the National Environmental Policy Act of 1969
(NEPA) and its implementing regulations.

                               STATEMENT

   1. The Bureau of Land Management (BLM) is required by the Oregon
and California Railroad and Coos Bay Wagon Road Grant Lands Act of
1937 (O&C Act), 43 U.S.C. 1181a et seq., to manage public timber lands
in western Oregon for the purpose of providing a "permanent source of
timber supply * * * and contributing to the economic stability of
local communities and industries * * *." 43 U.S.C. 1181a.  Under the
O&C Act, BLM may allow the timber to be harvested only according to
the principle of sustained yield.  43 U.S.C. 1181a.  Fifty percent of
BLM's receipts from timber sold on O&C Act lands are distributed to
eighteen designated county governments in Western Oregon.  43 U.S.C.
1181f.

   In order to satisfy the mandate of the O&C Act, BLM in 1978
proposed to conduct an herbicide spraying program for a 10-year period
on the federal lands subject to the Act.  1 Bureau of Land Management,
U.S. Dep't. of the Interior, Vegetation Management With Herbicides:
Western Oregon -- Final Environmental Statement 1978, at 1-24
(hereinafter cited as Final Environmental Statement).  /1/ The purpose
of the spraying was to prepare new sites for reforestation, to protect
young conifers from surrounding vegetation, and to control noxious
weeds and roadside vegetation (id. at 1-30 to 1-31).  The agency
proposed to use several methods to spray the herbicides;  the most
widely used method would involve aerial spraying from helicopters,
made necessary by the difficult terrain and the remoteness of most
sites.  The agency also proposed to conduct ground spraying from
either tanker trucks or backpacks.  Id. at 1-32 to 1-33.  /2/

   As part of its proposal to use herbicides on O&C Act lands, the BLM
prepared a programmatic environmental impact statement examining its
proposed use of herbicides, all of which had been registered by the
EPA pursuant to FIFRA and all of which are "in widespread and common
use" (Final Environmental Statement 3-2).  See pages 12-14, infra.
/3/ The programmatic EIS contained a thorough discussion of the known
human health and other environmental consequences of the use of these
herbicides (id. at 3-1 to 3-94).  The EIS also emphasized that,
although analysis of environmental impacts of herbicide use is within
the primary jurisdiction of the EPA, the BLM would "keep abreast of *
* * research findings and, where indicated by research results and EPA
recommendations, adjust its proposed herbicide applications to
minimize adverse enviornmental impacts" (id. at 1-48).  /4/

   In order to keep abreast of research developments and to maintain
on a current basis its examination of potential site-specific
environmental effects of the proposed vegetation management program,
BLM prepared yearly environmental assessments.  The site-specific
impacts considered in the assessments included weather conditions,
terrain, wildlife and the existence of residential areas with respect
to proposed spraying during the forthcoming year.  The assessments
also considered the particular spraying techniques that might be used,
how much spraying was required, what herbicides to use and how best to
mitigate any adverse effects likely to be caused by the spraying.
See, e.g., Bureau of Land Management, U.S. Dep't. of the Interior,
1982 Final Vegetative Management Program:  Supplemental Environmental
Assessment (hereinafter cited as 1982 Environmental Assessment).  /5/

   2. In 1979, approximately one year after the publication of BLM's
programmatic EIS, respondent, an environmental group, filed this
action in the United States District Court for the District of Oregon.
 Respondent sought, under NEPA, to enjoin the BLM from spraying the
proposed herbicides as part of the forest management program.  /6/ The
complaint alleged that BLM violated NEPA by failing to prepare a new
EIS for the spraying proposal for that year;  that the programmatic
EIS failed to discuss adequately the health impacts caused by
herbicides;  and that neither the programmatic EIS nor the yearly
environmental assessments contained a "worst case" analysis within the
meaning of 40 C.F.R. 1502.22.  /7/ After the district court denied
respondent's motion for a preliminary injunction in 1979, the case lay
dormant until 1982.  In the interim BLM conducted its annual spraying
program.

   In 1982, the district court ruled on the parties' cross-motions for
summary judgment (App., infra, 13a-24a).  The district court found
that the 1978 programmatic EIS contained an adequate discussion of the
health effects of 2,4-D, because the agency had a duty only "to
discuss probable effects known at the time" (id. at 18a (emphasis in
original)).

   The court, however, enjoined the spraying of herbicides pending
completion of a worst case analysis pursuant to 40 C.F.R. 1502.22(b)
and its inclusion in an environmental assessment.  The court held that
the existence of scientific uncertainty or of any gaps in relevant
information concerning the possible human health effects of a proposed
action was enough to trigger the regulation's requirement that an
agency include a worst case analysis in its impact statement (App.,
infra, 20a).  The court then found there was some scientific
uncertainty with respect to the health effects on humans of even small
dosages of 2,4-D;  this was based largely on the inability of any
expert to reject catagorically the possibility that any herbicide
might cause cancer (id. at 21a-24a).  Finally, the court held that the
BLM could not rely upon the EPA's determination to register the
herbicides pursuant to FIFRA as a justification for concluding that
the uncertainty was too insubstantial to warrant a fuller inquiry into
the problem.  Instead, the court held that the BLM must prepare its
own analysis of the environmental safety of the herbicides (App.,
infra, 23a n.3).  /8/

   The court of appeals affirmed (App., infra, 1a-12a).  The court
held that BLM was required to include a worst case analysis in its
Environmental Assessment.  It agreed with the district court that the
"possibility that the safe level of dosage for herbicides is low or
nonexistent creates a possibility of 'significant adverse effects on
the human environment.' 40 C.F.R. Section 1502.22" (App. infra, 6a).
The court rejected the contention thet BLM need not conduct a worst
case analysis because the safety of these herbicides had been
evaluated by the EPA when it registered them under FIFRA.  Instead,
the court held that the BLM "must assess independently the safety of
the herbicides that it uses" and cannot rely upon another agency's
analysis (App. infra, 8a).

                   REASONS FOR GRANTING THE PETITION

   The decision of the court of appeals, requiring BLM independently
to assess the safety of the herbicides it uses as part of its
statutorily-mandated vegetation management program, is an
unprecedented expansion of the obligations of federal agencies under
NEPA to gather and consider information about environmental impacts
that might result from their porposed actions.  By requiring federal
agencies either to acquire perfect knowledge in fields that are by
their nature uncertain, or to analyze totally hypothetical worst case
scenarios, the court of appeals has distorted the essential purpose of
NEPA, which is to assure that decision makers take reasonable steps to
make themselves aware of environmental consequences that their actions
may cause.  Moreover, the court of appeals, by requiring each agency
proposing to use registered herbicides to duplicate EPA's efforts and
duties in registering the herbicides for a specific use pursuant to
FIFRA, has rendered FIFRA irrelevant to federal agencies in a way that
Congress could not have intended.  Finally, the court's misapplication
of NEPA will result immediately in a tremendous waste of resources by
BLM and threatens to cause lengthy and expensive delays in important
land management and other programs that rely upon pesticides already
registered by EPA under FIFRA.

   1. a. Section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C), directs
federal agencies when proposing actions that significantly affect "the
quality of the human environment" to include a detailed statement "on
the environmental impact of the proposed action * * *." This Court has
held that this is a procedural requirement that obligates agencies
simply to take a "hard look" at environmental consequences.  Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976) (quoting NRDC v. Morton,
458 F.2d 827, 838 (D.C. Cir. 1972)).  See Baltimore Gas & Electric Co.
v. NRDC, No. 82-524 (June 6, 1983), slip op. 12.  Moreover, this
responsibility is limited by a rule of reason;  this Court has never
held that an agency must evaluate all possible environmental effects
no matter how remote they may be.  See Metropolitan Edison Co. v.
People Against Nuclear Energy (PANE), No. 81-2399 (Apr. 19, 1983),
slip op. 7;  cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 551 (1978) ("(t)ime and resources are simply too limited to hold
that an impact statement fails because the agency failed to ferret out
every possible alternative, regardless of how uncommon or unknown that
alternative may have been at the time the project was approved").
Instead, this Court has held that an impact statement's purpose is to
provide information that would be useful to the decision maker in
deciding whether to approve the proposed action.  See Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. at 551;  Metropolitan Edison Co.
v. PANE, slip op. 9.  Courts of appeals in applying NEPA's rule of
reason test have routinely held that agencies "need not discuss remote
and highly speculative consequences." Trout Unlimited v. Morton, 509
F.2d 1276, 1283 (9th Cir. 1974). See, e.g., Warm Springs Dam Task
Force v. Gribble, 621 F.2d 1017, 1026 (9th Cir. 1980);  Environmental
Defense Fund, Inc. v. Andrus, 619 F.2d 1364, 1375 (10th Cir. 1980);
Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060, 1067 (8th
Cir. 1977);  NRDC v. Morton, 458 F.2d 827, 836-837 (D.C. Cir. 1972).

   The decision of the court of appeals is unfaithful to these
judicial interpretations of NEPA.  The court did not even consider
whether a "worst case analysis" with respect to the proposed use of
herbicides was necessary because it could reasonably affect the
agency's decision to proceed with its spraying program.  Compare
Baltimore Gas & Electric Co. v. NRDC, slip op. 12-13.  Instead, the
court focused solely upon 40 C.F.R. 1502.22, as though it had a life
independent of NEPA.  The court's conclusion that the language of the
regulation could be construed to embrace the BLM's spraying proposal
not only overlooks the fact that 40 C.F.R. 1502.22 is not an extension
of NEPA but merely implements it (see Sierra Club v. Sigler, 695 F.2d
957, 971 (5th Cir. 1983);  App., infra, 4a), but also in inconsistent
with the decisions cited above holding that NEPA does not require an
agency to consider environmental impacts that are merely remote
possibilities.  /9/

   The only other court of appeals to interpret 40 C.F.R. 1502.22 has
recognized that the regulations do not require analyses of wholly
improbable consequences.  In Sierra Club v. Sigler, supra, the court
held that the Corps of Engineers erred in not producing a worst case
analysis before deciding whether to build an offshore "superport" oil
terminal.  The court found that a catastrophic oil spill was a real
possibility and that an analysis of the effects of a spill beyond a
24-hour period was beyond the state of the art of forecasting.  The
court therefore concluded that an analysis of such a spill was
precisely what the worst case regulation intended.  695 F.2d at 972.
The court stressed that its reasoning was limited to situations "where
a real possibility of the occurrence has been proved and a data base
for evaluating its consequences established." 695 F.2d at 975 n.14
(emphasis added).

   In this record, there is no credible, scientific evidence that
2,4-D or any of the other proposed herbicides has any carcinogenic
effects;  and there is certainly no data base upon which any
meaningful evaluation of the carcinogenic consequences of these
herbicides can be based.  /10/ Instead, contrary to the reasoning in
Sigler, the court below has ordered BLM to "concern itself with
phantasmagoria hypothesized without a firm basis in evidence and the
actual circumstances of the contemplated project, or with disasters
the likelihood of which is not shown to be significantly increased by
the carrying out of the project." 695 F.2d at 975 n.14. Cf. Weinberger
v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139
(1981).  /11/

   b. Another fundamental flaw in the court of appeals' analysis is
its conclusion that BLM, when deciding whether to spray with
registered herbicides, should independently evalutate the possible
carcinogenic effects of the herbicides.  This holding undermines EPA's
decision under FIFRA to register these products for the very uses BLM
proposed to make -- a decision based on the very scientific inquiry
the court has now ordered BLM to undertake.  It is wholly implausible
that Congress would, on the one hand, create an elaborate registration
process for pesticides and put that process in the charge of the
agency most capable of evaluating the environmental effects of using
pesticides, and, on the other hand, also require each federal agency
proposing to use a pesticide to replicate EPa's efforts before going
forward.

   In 1947, Congress enacted FIFRA, and in 1970, the Environmental
Protection Agency was given responsibility for enforcing its
registration and labeling requirements.  Reorg. Plan No. 3 of 1970, 35
Fed. Reg. 15625 (1970).  Soon thereafter, Congress amended FIFRA by
adopting the Federal Environmental Pesticide Control Act of 1972, Pub.
L. No. 92-516, 86 Stat. 973 et seq.  See Ruckelshaus v. Monsanto Co.,
No. 83-196 (June 26, 1984), slip op. 3-4.  The 1972 amendments
contained a comprehensive revision of FIFRA designed to strengthen the
EPa's ability to protect the environment from a wide variety of
potentially hazardous pesticides, including herbicides.  See
Ruckelshaus v. Monsanto Co., slip op. 3;  S. Rep. 92-838, 92d Cong.,
2d Sess. 3-9 (1972);  H.R. Rep. 92-511, 92d Cong., 1st Sess. 5-13
(1972).  /12/

   The amendments established new substantive criteria for FIFRA
registration;  EPA is now permitted to register an herbicide only
after determining that the use of the herbicide would not cause
"unreasonable adverse effects on the environment" (7 U.S.C.
136a(c)(5)(C)-(D).  The statute defines unreasonable adverse effects
on the environment as "any unreasonable risk to man or the
environment, taking into account the economic, social, and
environmental costs and benefits of the use of any pesticide" (7
U.S.C. 136(bb)).  In order to determine if a pesticide will cause
unreasonable adverse effects on the environment, EPA considers
information from all available sources, including data submitted by
the producer, with respect to the chemical nature and structure of the
pesticide, as well as test results on the potential dangers of the
product.  These tests include acute toxicity studies, chronic toxicity
studies (including research on carcinogenic effects), residue studies,
environmental chemistry studies, and fish and wildlife studies.  See
47 Fed. Reg. 53192-53221 (1982).  /13/

   At any time after a registration has been issued, the Administrator
may issue a "Rebuttable Presumption Against Registration" (RPAR)
notice based on a "validated test or other significant evidence
raising prudent concerns of unreasonable adverse risk to man or to the
environment." 7 U.S.C. 136a(c)(8).  EPA has adopted regulations
setting out the criteria for determining what are unreasonable adverse
effects, 40 C.F.R. 162.11.  The regulations require the Administrator
to issue an RPAR notice whenever "a pesticide's ingredient(s),
metabolite(s), or degradation product(s) meet or exceed any of the * *
* criteria for risk, as indicated by tests conducted with the animal
species and pursuant to the test protocols specified in the
Registration Guidelines, or by test results otherwise available." 40
C.F.R. 162.11(a)(3).  The criteria include both acute toxicity and
chronic toxicity (including carcinogenic effects).  40 C.F.R.
162.11(a)(3)(i)-(ii).  /14/

   None of the herbicides BLM proposed to use in Western Oregon has
had an RPAR issued against it.  Nor is there any evidence that a
petition has even been filed asking EPA to consider suspending the
registration of these herbicides.

   Obviously, EPA's registration of an herbicide is not a guarantee of
safety to either man or the environment.  We recognize that in some
cases a substance will be registered, even though it is known to cause
serious environmental effects, on the basis that the benefits
out-weigh the risks.  FIFRA requires the EPA, however, to balance the
benefits against the risks on a use-by-use basis.  This balancing
process constitutes the core of FIFRA, and reflects the two concerns
that most seriously animated Congress in passing the 1972 admendment:
the need to use pesticides and the concern over possible environmental
damage.  /15/ For example, a substance known to be harmful to man may
be approved for use only in unpopulated areas, and only if it is the
only substance known to be effective in eliminating a specific pest.
This use restriction appears on the label, and failure to follow the
label restrictions is unlawful.  7 U.S.C. 136j(a)(2)(G).  This
balancing process that EPA is required by FIFRA to follow effectively
replicates the analytical and procedural examination called for by
NEPA.  /16/

   The FIFRA process constitutes, in effect, the functional equivalent
of an EIS for the use of a particular herbicide.  See Wyoming v.
Hathaway, 525 F.2d 66, 71-72 (10th Cir. 1975), cert. denied, 426 U.S.
906 (1976).  See also Environmental Defense Fund, Inc. v. EPA, 489
F.2d 1247, 1256 (D.C. Cir. 1973);  Portland Cement Ass'n. v.
Ruckelshaus, 486 F.2d 375, 383-384 (D.C. Cir. 1973);  S. Rep. 94-452,
94th Cong., 1st Sess. 9 (1975) ("(b)ecause the basic thrust and
principal responsibility of EPA are to protect the environment, the
Committee does not see a need to broaden the (economic) impact
statement (for FIFRA registrations) to include the environment").  If
EPA had prepared EIS's to accompany its FIFRA determinations for these
herbicides, no one could argue credibly that BLM is required to
replicate those studies in another round of EIS's.  Indeed, CEQ
regulations explicitly sanction reliance by one agency on another
agency's environmental analysis.  See 40 C.F.R. 1506.4.  Such reliance
is equally appropriate with respect to EPA's review of pesticides,
because the agency's process, by satisfying the statutory demands of
FIFRA, is consistent with the essential purpose of NEPA to assure that
agencies consider environmental impacts prior to taking some action.

   We are not contending that FIFRA absolves the proposing agency,
here the BLM, from conducting a thorough examination of the probable
environmental impacts of its specific spraying proposal.  Questions
such as where a pesticide should be used and just how it should be
applied should be -- and were -- appropriately considered in
environmental assessments prepared by BLM.  In addition, the agency
properly conducted a comprehensive search of published scientific
literature on the possible health impacts of the spraying and updated
that search yearly.  See page 4, supra.  We submit that these analyses
by BLM, coupled with EPA's registration of the herbicides, satisfied
NEPA.

   To require BLM, as the court of appeals does, to go beyond this and
to speculate about highly improbable and catastrophic events will not
further NEPA's purpose of informing decision makers.  Instead, it will
merely mislead and confuse both decision makers and the public.  An
agency can expect misinformed, but strong, public opposition to a
herbicide spraying program by assuming the "cancer at any dose" worst
case is that implicitly required here and explicitly required in the
court of appeals' later decision in Save Our Ecosystems v. Clark, No.
83-3908 (9th Cir. Jan. 27, 1984).  /17/ Such an assumption will
inevitably and wrongly lead the public to believe that the herbicides
EPA has registered and the BLM has proposed to use are substantially
carcinogenic substances.  While the court's desire to see agencies
consider "all possible long-range" environmental effects is perhaps
understandable, such an examination is simply not required by NEPA.
/18/

   c. The only support the court of appeals offered for disregarding
EPA's assessment of the environmental impact of herbicides was a prior
Ninth Circuit decision, in which the court had said that "'(o)ne
agency cannot rely on another's examination of environmental effects
under NEPA'" (App., infra, 8a, quoting Oregon Environmental Council v.
Kunzman, 714 F.2d 901(1983)).

   This conclusion is, of course, directly contrary to the CEQ
regulation permitting one agency to rely on another's environmental
analysis.  See 40 C.F.R. 1506.4.  If, however, the Kunzman court meant
merely to say that one agency cannot completely delegate its NEPA
obligations to antother, its statement has no relevance to this case.
BLM has evaluated all significant environmental effects that might
reasonably follow from the site specific uses of herbicides (see page
4, supra).

   Further, the ultimate authority for the "independent assessment"
rule -- the D.C. Circuit's decision in Calvert Cliffs' Coordinating
Comm. v. Atomic Energy Comm'n., 449 F.2d 1109 (1971) -- has been
repudiated by Congress.  In Calvert Cliffs', the court held, inter
alia, that the Atomic Energy Commission (AEC) had violated NEPA by
refusing to examine actual impacts on water quality caused by
operation of a nuclear power plant.  The AEC had refused to consider
water quality impacts as long as the power plant met water quality
standards set by the "appropriate agency." 449 F.2d at 1122.  The
court held that NEPA required the AEC to conduct its own analysis of
water quality impacts.  Id. at 1123.

   Thereafter, Congress passed the Federal Water Pollution Control Act
Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, 33 U.S.C. 1251
et seq., which comprehensively restructured the Nation's efforts to
combat water pollution.  In those Amendments Congress provided that
nothing in NEPA authorized any federal agency either to review the
adequacy of any water quality certification granted under the Act or
to impose any effluent limitation other than that allowed by the Act.
33 U.S.C. 1371(c)(2)(A)-(B).  In explaining this provision, the chief
proponent of the original amendment, Senator Baker, citing the
"far-reaching" Calvert Cliffs' decision, stated:

      My amendment would make it clear that for the purposes of making
      the kind of "balancing judgment" required by NEPA, each
      individual Federal permitting and licensing agency would not be
      required to develop its own special expertise with respect to
      water quality considerations.

   See H.R. Rep. 92-911, 92d Cong., 2d Sess. 138 (1972), reprinted in
Staff of Senate Comm. on Public Works, 93d Cong., 1st Sess., A
Legislative History of the Water Pollution Control Act Amendments of
1972, at 825 (Comm. Print 1973) (hereinafter cited as Leg. Hist.).
See also Leg. Hist. 182, 198, 202, 236.  /19/ Similarly, in the floor
debates, Representative Dingall stated (Leg. Hist. 256):

      Section 511(c)(2) (33 U.S.C. 1371(c)(2)) seeks to overcome that
      part of the Calvert Cliffs decision requiring AEC or any other
      licensing or permitting agency to independently review water
      quality matters.  But it does not affect the obligations of
      those agencies to consider alternatives and other environmental
      matters, such as esthetics, fish and wildlife, and so forth.

   Congress's judgment in the 1972 amendments, although not
controlling with respect to FIFRA, nevertheless represents a common
sense rejection of the reasoning of the court below.  It is simply
unreasonable to assume that Congress somehow intended for BLM to
disregard EPA's expertise on an issue committed to EPA's care.

   2.  The decision of the court of appeals will increase
substantially the burden of governmental compliance with NEPA.  The
court has rejected BLM's reliance on EPA (together with BLM's
supplemental use of a literature review) as an appropriate basis for
deciding which herbicides, if any, to use on various sites.
Accordingly, BLM must now conduct its own independent research on the
health effects, particularly carcinogenic effects, of herbicides.
This implicit requirement in the decision below was made explicit in
the court's subsequent decision in Save Our Ecosystems v. Clark, slip
op. 12-14.

   BLM has estimated that such research would take at least five years
to produce any meaningful result and would cost between $5 and $7
million annually.  Even if BLM possessed the statutory and budgetary
authority to conduct such research, it would still be forced to forgo
using herbicides on the O&C Act lands for a minimum of five years.  In
its environmental impact statement BLM estimated that not using any
herbicides would reduce annual timber yields on O&C Act lands by 25%
resulting in revenue loss to federal and local governments in excess
of $20 million per year.  Final Environmental Statement 8-44.  In
addition to this loss, BLM anticipated that a substantial number of
acres of public grazing land would be lost because of the spread of
weeds noxious to domestic livestock.  In addition, thousands of
lumber-related jobs would be lost in the region.  Id. at 8-42, 8-43 to
8-44.  /20/

   The research requirement imposed by the court of appeals will also
burden other federal agencies.  (It immediately affects the Forest
Service, which is a party in Save Our Ecosystems.) Many federal
agencies use herbicides:  the Department of Defense uses herbicides to
control vegetation within its various installations;  the Drug
Enforcement Administration uses herbicides as a major weapon in its
attempts to eradicate illegal marijuana farms;  and the Army Corps of
Engineers uses herbicides to eliminate undesirable aquatic vegetation
that constitutes a hazard to navigation.  Under the court of appeals'
ruling, each agency must now independently assess the safety of the
herbicides it uses.  Thus, to comply with NEPA, each agency must
develop and maintain a scientific staff to duplicate the studies and
research conducted by EPA pursuant to FIFRA.  NEPA, which is a
procedural statute, simply does not require this duplication of effort
and waste of resources.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   F. HENRY HABICHT, II

      Assistant Attorney General

   CARTER G. PHILLIPS

      Assistant to the Solicitor General

   PETER R. STEENLAND, JR.

   ALBERT M. FERLO, JR.

      Attorneys

   AUGUST 1984

   /1/ BLM has for many years employed herbicides in connection with
the management of the O&C Act lands within its control.  Prior to
1977, BLM had conducted environmental assessments of its herbicide
proposals and found that they created no significant environmental
impact requiring an environmental impact statement.  Because in 1978
BLM proposed to use the herbicides Silvex and 2,4,5-T, which had come
under the scrutiny of the EPA because of dioxin contaminants
associated with those herbicides, BLM concluded that an impact
statement should be prepared.  BLM discontinued use of all herbicides
during the 12-18 months during which the environmental impact
statement was being prepared.  Final Environmental Statement 1-23 to
1-24.  A copy of the Final Environmental Statement has been lodged
with the Clerk of the Court.

   /2/ Typically, the spraying program is conducted in discrete
geographic districts.  There are, for example, five local districts in
western Oregon, each of which conducts its own spraying program.  The
spraying requirements vary from district to district and within the
districts from year to year.  Thus, one BLM district may spray 1,000
acres for site preparation and 1,000 acres for "release" of young
conifers from competing brush in one year and 10 acres for each
purpose the next.  Ordinarily, a site sprayed for reforestation will
not be sprayed again for several years, when it is necessary to
release the conifer seedlings.  After the release spraying, that site
generally will not be sprayed again until after the trees are
harvested, and the site is again prepared for reforestation.  Spraying
programs conducted in national forests by the Forest Service follow a
similar pattern.

   /3/ The only proposed herbicide that received individualized
analysis by the courts below was 2,4-D.  To give some idea how
commonly used 2,4-D is, there are approximately 1500 products
containing 2,4-D registered with EPA.  Over 60 million pounds of 2,4-D
active ingredient were applied domestically in 1979, with most of that
being used to control broadleaf weeds in small grains, field corn and
on range and pastureland, N.Y. Times, Apr. 30, 1980, at A20, col. 6.

   /4/ The herbicides proposed for use by the BLM were 2,4,-D, Silvex,
Sinazine, Atrazine, Diuron, Picloram, Dalapon, Dicamba, Krenite, and
Glyphosate.  Final Environmental Statement 1-38 to 1-41.  Use of
Silvex was discontinued when EPA suspended its registration because of
a particular dioxin contaminant found in 2,4,5-T and Silvex.

   /5/ A copy of the 1982 Environmental Assessment has been lodged
with the Clerk of this Court.

   /6/ This was not the first challenge under NEPA to the federal
government's use of herbicide spraying in Oregon.  In Citizens Against
Toxic Sprays, Inc. v. Bergland (CATS I), 428 F. Supp. 908 (D. Or.
1977), an environmental group challenged the sufficiency of the Forest
Service's EIS for herbicide spraying in the Siuslaw National Forest.
The district court found that the EIS contained an inadequate
discussion of the human health effects of spraying 2,4,5-T, a
herbicide known to contain the highly toxic dioxin TCDD.  428 F. Supp.
at 927.  Of particular concern to the court was the failure of the EIS
to disclose the fact that the EPA was conducting administrative
hearings on the FIFRA registration status of 2,4,5-T.  Because of the
Forest Service's failure to disclose this information, as well as
other information on the scientific controversy surrounding TCDD, the
court enjoined the use of 2,4,5-T pending the preparation of an
adequate EIS.  The court, however, expressly declined to enjoin the
use of 2,4-D, because it does not contain TCDD.  428 F. Supp. at 933.

   While the government considered whether to appeal the injunction,
the Forest Service proceeded to prepare a new EIS, which contained an
extensive discussion of the human health effects of 2,4,5-T, as well
as other herbicides.  The discission was based on a thorough review of
published scientific studies and reports about likely health effects.
In reviewing this new EIS, the district court, although not agreeing
with the Forest Service's decision to use herbicides, lifted the
injunction and found the EIS adequate.  Citizens Against Toxic,
Sprays, Inc. v. Bergland (CATS II), 11 E.R.C. 1557 (1978).

   /7/ 40 C.F.R. 1502.22 provides:

         When an agency is evaluating significant adverse effects on
      the human environment in an environmental impact statement and
      there are gaps in relevant information or scientific
      uncertainty, the agency shall always make clear that such
      information is lacking or that uncertainty exists.

         (a) If the information relevant to adverse impacts is
      essential to a reasoned choice among alternatives and is not
      known and the overall costs of obtaining it are not exorbitant,
      the agency shall include the information in the environmental
      impact statement.

         (b) If (1) the information relevant to adverse impacts is
      essential to a reasoned choice among alternatives and is not
      known and the overall costs of obtaining it are exorbitant or
      (2) the information relevant to adverse impacts is important to
      the decision and the means to obtain it are not known (e.g., the
      means for obtaining it are beyond the state of the art) the
      agency shall weigh the need for the action against the risk and
      severity of possible adverse impacts were the action to proceed
      in the face of uncertainty.  If the agency proceeds, it shall
      include a worst case analysis and an indication of the
      probability or improbability of its occurrence.

   /8/ The district court also ruled that the worst case analysis
regulation applies to environmental assessments as well as to
situations where an EIS is prepared (App., infra, 19a);  the court of
appeals affirmed as to this point (id. at 8a-10a).

   The district court in a later opinion also denied respondent's
request for attorney's fees under the Equal Access to Justice Act, 28
U.S.C. 2412(d), on the ground that the government's position was
"substantially justified." Southern Oregon Citizens Against Toxic
Sprays v. Watt, 556 F. Supp. 155 (D. Or. 1983). Respondent's
cross-appealed the denial of the attorney's fees, and the court of
appeals affirmed (App., infra, 11a).  The court of appeals, however,
held that fees were available for services rendered in connection with
the appeal, because the government's position had become less
justifiable in light of decisions of other courts interpreting 40
C.F.R. 1502.22 (App., infra, 11a-12a).  Although we obviously maintain
the view that BLM's position on appeal was not only substantially
justified, but also absolutely correct, we are not seeking review by
this Court of the separate, case-specific issue concerning the
reasonableness of the government's position for purposes of the
attorney's fees award.

   /9/ The regulation does not require a worst case analysis whenever
there is uncertainty.  A worst case analysis is required only if the
information is "essential to a reasoned choice among alternatives" but
its cost is exorbitant;  or the information "relevant to adverse
impacts is important to the decision" and there is no known way to
obtain the information.  40 C.F.R. 1502.22(b)(1) and (2).  In either
event, the agency must still exercise discretion to decide for itself
whether the information is important of essential to a decision.  Both
courts below analyzed this issue as if they were exercising de novo
review.  They analyzed the scientific evidence and concluded that the
uncertainty warranted further inquiry.  But this Court has repeatedly
emphasized that with respect to technical matters surrounded by
scientific uncertainty reviewing courts should defer to the agency's
expertise and not substitute their judgment for that of the agency.
See Chevron U.S.A., Inc. v. NRDC, Inc., No. 82-1005 (June 25, 1984),
slip op. 26-27;  Baltimore Gas & Electric Co., slip op. 13;  Vermont
Yankee Nuclear Power Corp., 435 U.S. at 557-558.  Although BLM has no
special expertise in evaluating the environmental risks of herbicides,
EPA does and it has registered all of the herbicides that were
proposed for use by the BLM.  See page 14, infra.

   /10/ The district court concluded solely on the basis of the expert
testimony that there was scientific uncertainty that compelled the BLM
to conduct its worse case analysis.  Courts are hardly well suited for
making such judgments after a trial.  See Commonwealth of Kentucky ex
rel. Beshear v. Alexander, 655 F.2d 714, 720 (6th Cir. 1981) ("Mere
disagreement among experts will not serve to invalidate an EIS.").

   /11/ In CATS I, 428 F. Supp. at 933, the district court carefully
limited its injunction to halt the spraying of 2,4,5-T and Silvex,
which contain TCDD;  the court expressly excluded 2,4-D from its
order.

   By contrast, in Save Our Ecosystems v. Clark, No. 83-3908, (9th
Cir. Jan. 27, 1984), the court of appeals found inadequate a worst
case analysis prepared by BLM in response to the district court's
decision in this case.  The court of appeals held that any possible
effect on human health, no matter how unsubstantiated or speculative,
must be considered a significant impact.  As such, the agency is
required to analyze that possible effect under NEPA.  Thus, the law of
the circuit is that until an agency can prove that a herbicide does
not cause cancer in humans, it must assume that it does.  This
assumption must be made even if, as in this case, there is no credible
scientific evidence to support such an assumption.

   /12/ The term "pesticides" includes herbicides.  See Section 2(u)
of FIFRA, 7 U.S.C. 136(u);  40 C.F.R. 162.3(ff)(9), 162.14(a) and
(b)(3).

   /13/ The statute also authorizes EPA to require additional data
from registrants who wish to maintain existing registrations, 7 U.S.C.
136a(c)(2)(A)-(B), and requires a registrant, after registration, who
receives or discovers additional factual information regarding
unreasonable environmental effects to submit the new data to EPA.  7
U.S.C. 136d(a)(2).  Congress also authorized EPA to classify a
pesticide for restricted use only, 7 U.S.C. 136a(d), to suspend any or
all uses of a registered pesticide, 7 U.S.C. 136d(c), and, if
necessary, to cancel a registration, 7 U.S.C. 136d(b).  The statute
also allows a substance to be conditionally registered, but only after
EPA determines that such registration for use will not significantly
increase the risk of unreasonable adverse effects on the environment.
7 U.S.C. 136a(c)(7).

   /14/ The public has an opportunity to participate at the various
stages of the FIFRA process.  See, e.g., 40 C.F.R. 162.6(b)(6),
164.20, 166.10.  In addition, EPA's refusal to suspend or cancel a
registration is subject to judicial review.  7 U.S.C. 136n.

   /15/ See S. Rep. 92-838, 92d Cong., 2d Sess. 3 (1972).

   /16/ Section 101(2)(C) of NEPA requires in part:  "Prior to making
any detailed statement, the responsible Federal official shall consult
with and obtain the comments of any Federal agency which has
jurisdiction by law or special expertise with respect to any
environmental impact involved." Here, BLM provided a copy of the draft
programmatic EIS to the Environmental Protection Agency for its
comments.  EPA commented that the draft EIS was "most satisfactory * *
* in terms of fairly presenting the basic known risk/benefit issues of
the use of the ten herbicides which have been proposed for various
spray projects" (Final Environmental Statement 20).

   /17/ In Save Our Ecosystems v. Clark, No. 83-3908 (9th Cir. Jan.
27, 1984), the court rejected as inadequate BLM's worst case analysis
for use of 2,4-D.  In so doing the court stated (slip op. 23-24 n.9):

      More and more chemicals are added to our environment daily
      without adequate information about the long-range effects on
      health and environment.  The EPA, in effect, acknowledges that
      data on the herbicides in this case are inadequate since the
      registration is conditional under an exception to the normal
      registration process.

                      * * * * *

         Allowing administrative agencies to go ahead with programs
      without carefully considering all possible long-range effects of
      these chemicals would be contrary to the purposes of NEPA.  If
      the BLM is to go ahead with the project in the face of these
      uncertainities, at least it must do so knowing the fate to which
      it may be condemning future generations.

   The Secretary's Petition for Rehearing is still pending in that
case.

   /18/ Given the statutory scheme, the court of appeals' requirement
that BLM should not rely on FIFRA registration conflicts with this
Court's admonition in Metropolitan Edison Co. v. PANE, slip op. 9,
that courts should not require federal agencies "to expend
considerable resources developing * * * expertise that is not
otherwise relevant to their congressionally assigned functions." The
primary congressionally assigned function of BLM is to protect and
manage the Nation's public lands.  Congress has assigned to EPA the
task of determining which herbicides may be introduced into the
environment.  The court's decision upsets this congressionally-created
scheme and forces federal agencies to expend resources developing
toxicological expertise not otherwise relevant to their assigned
functions (see pages 20-21, infra).  Courts should not "attribute to
Congress the intention to * * * open the door to such obvious
incongruities and undesirable possibilities.'" Metropolitan Edison Co.
v. PANE, slip op. 9 (quoting United States v. Dow, 357 U.S. 17, 25
(1958)).

   /19/ Even before the amendments, the Chairman of the CEQ had
concluded that NEPA did not require each agency to conduct an
independent assessment of environmental effects.  In hearings before
the Senate, Dr. Train commented:

         I do not believe the statute (NEPA) contemplates the
      duplication of expertise within the Federal Government.

         Obviously we would end up with every agency having to
      maintain a scientific staff that would duplicate every other
      agency, and I do not think anyone contemplates this, so,
      necessarily, I think it is implicit that in general there should
      be an ability on the part of the originating agency to accept,
      unless there is clear evidence of abuse of discretion, or
      something of that sort, the recommendation of the expert agency,
      but with all that, I still say that the responsible program
      agency cannot abrogate its overall responsibility to weigh all
      factors involved in reaching its decision.

   National Environmental Policy Act:  Joint Hearings Before the
Senate Comm. on Public Works and the Comm. on Interior and Insular
Affairs, 92d Cong., 2d Sess. 19 (1972).

   /20/ Since the court of appeals' decision, a district court in
Oregon has enjoined all herbicide use by BLM in Oregon and by the
Forest Service in Oregon, Washington, and northern California.  In
issuing the injunction the district court stated that the court of
appeals' decision in SOCATS left it no choice but to issue a total ban
on herbicide use by the two agencies.  Northwest Coalition for
Alternatives to Pesticides v. Block, Civ. No. 82-6272 (D. Or. Jan. 6,
1984), appeal pending, No. 84-3821 (9th Cir.).  The potential revenue
loss attributable to SOCATS will thus be substantially greater than
that estimated initially.  We can expect other district courts in the
circuit to follow suit.  In addition, the worst case analysis issue is
being increasingly used in the Ninth Circuit and other jurisdictions
to halt proposed federal projects.  See Committee for Integrated Pest
Management v. Block, Civ. No. 82-0570 (D. N.M. Mar. 5, 1984);
National Wildlife Federation v. United States Forest Service Civ. No.
82-1153-50 (D. Or. Aug. 6, 1984), as amended on reconsideration.

   APPENDIX