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 The Solicitor General, on behalf of the Secretary of the Army, et al., 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 petitioners are John O. Marsh, Jr., in his official capacity as Secretary of the Army, and Elvin R. Heiberg, III, in his official capacity as Chief of Engineers of the United States Army. The respondents are Oregon Natural Resources Council, Oregon Guides and Packers Association, Inc., Rogue Flyfishers, Inc., and Rogue River Guides Association. TABLE OF CONTENTS Questions presented Parties to the proceeding Opinions below Jurisdiction Statutory provisions and regulations involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The amended opinion of the court of appeals (App. infra, 1a-29a) is reported at 832 F.2d 1489. The original opinion of the court of appeals is reported at 820 F.2d 1051. The opinion of the district court (App., infra, 30a-51a) is reported at 628 F. Supp. 1557. JURISDICTION The judgment of the court of appeals (App., infra, 68a) was entered on November 24, 1987. The court of appeals denied the government's petition for rehearing on December 10, 1987 (App., infra, 69a). On February 18, 1988, Justice O'Connor issued an order extending the time for filing a petition for a writ of certiorari to and including March 30, 1988. On March 23, 1988, Justice O'Connor further extended the time for filing the petition to and including April 14, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS AND REGULATIONS INVOLVED Section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. 4332, provides, in relevant part: The Congress authorizes and directs that, to the fullest extent possible: * * * (2) all agencies of the Federal Government shall -- * * * * * (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Pertinent excerpts from the regulations involved in this case are reproduced in an appendix to this petition (App., infra, 70a-72a). QUESTIONS PRESENTED 1. Whether the National Environmental Policy Act requires federal agencies to include in each environmental impact statement: (a) a fully developed plan to mitigate environmental harm; and (b) a "worst case" analysis of potential environmental harm if relevant information is unavailable or too costly to obtain. 2. Whether the Army Corps of Engineers gave adequate consideration to new information concerning environmental effects that was presented after the completion of the environmental impact statement. STATEMENT Petitioners seek review of a divided court of appeals decision reversing a district court's determination that the Army Corps of Engineers had fully complied with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., in preparing a supplemental environmental impact statement for the Elk Creek Dam. 1. In 1962, Congress authorized construction of the Rogue River Basin Project, a flood control program in southern Oregon. See Act of Oct. 23, 1962, Pub. L. No. 87-874, Section 203, 76 Stat. 1192-1193. The project was designed to include three dams: the Lost Creek Dam on the main stem of the Rogue River; Applegate Dam on the Applegate River, and the Elk Creek Dam on the Elk Creek tributary. The first two dams have already been built and are in operation, but the Elk Creek Dam remains uncompleted as a result of challenges to the adequacy of the environmental impact statement describing the project. The Corps first evaluated the environmental consequences of the Elk Creek Dam in 1971 through the preparation of a final environmental impact statement in accordance with Section 102 of NEPA, 42 U.S.C. 4332. The Corps then began preconstruction land acquisition. A controversy arose, however, concerning the dam's effect on the temperature and turbidity of the Rogue River. The Corps completed an additional water quality evaluation in 1974, based on a computer simulation of the watershed, that indicated that the Elk Creek Dam, in combination with the Lost Creek Project, would not materially affect the Rogue River's water quality. Nevertheless, the Corps suspended the project pending resolution of the continuing debate. The Corps conducted a further evaluation in 1979, based on empirical data obtained from the Lost Creek Dam, that verified the results of the 1974 computer simulation. In 1980, the Corps prepared and issued a supplemental environmental impact statement (hereinafter Elk Creek Supplemental Statement) describing the results of those studies, as well as several other environmental issues. See Elk Creek Supplemental Statement (preface). /1/ 2. The Elk Creek Supplemental Statement identified the dam's contribution to downstream turbidity as "a major item of public concern" (Elk Creek Supplemental Statement (summary)). Elk Creek, in its natural state, experiences moderate to high turbidity during periods of high runoff (id. at 22-23). The proposed Elk Creek Dam was expected to modulate this condition by prolonging the duration of downstream turbid flow at reduced levels of turbidity. As the Supplemental Statement explained, the 1974 and 1979 Corps studies confirmed these expectations (id. at 33-34). The 1974 computer simulation demonstrated that the entire Rogue River Basin Project, consisting of three dams, would increase the Rogue River's turbidity by 2 to 3 JTU in low and average runoff years and by up to 6 to 9 JTU in high runoff years (id. at 33). /2/ Elk Creek Dam, by itself, would increase the Rogue River's turbidity only 1 to 3 JTU because Elk Creek contributes only a small percentage of the Rogue's total flow (ibid.). The 1979 water quality study demonstrated a positive correlation between the computer model's predictions for the Lost Creek Dam with that dam's actual turbidity experience in 1977; this result reinforced the 1974 study's determinations (id. at 33-34). Based on these studies, the Supplemental Statement concluded that the increase in turbidity caused by Elk Creek Dam would have only minor effects on fish production, but that the combined effect of Lost Creek and Elk Creek Dams on the turbidity of the Rogue would impair angling to some degree (id. at 36-37). The Elk Creek Supplemental Statement discussed measures to be taken to mitigate the dam's effects on aquatic life (id. at 35-37). The most significant effect on fish -- the loss of spawning grounds for coho salmon and steelhead trout -- had already been mitigated through the construction of a fish hatchery (id. at 35). The fish hatchery would also mitigate any decrease in freshwater fish production due to increased turbidity (id. at 35-36). The Supplemental Statement noted, in addition, that the dam's multi-level withdrawal design would minimize turbidity effects on fish production (id. at 37). The Supplemental Statement also discussed the project's effects on wildlife. The Elk Creek Dam would inundate 1,290 acres of wildlife habitat, adversely affecting deer, elk, and game bird populations. The Statement suggested that mitigation could be accomplished by managing selected lands to improve the quality of habitat, thereby augmenting their wildlife carrying capacity. Elk Creek Supplemental Statement 6, 38. The Statement specifically urged the use of habitat manipulative techniques, including development of palatable browse plants for deer and vegetation interfaces (or "edge") for quail, variation of foilage height, and placement of snags in the reservoir (ibid.). The Statement explained that the mitigation measures would be developed based upon the results of a wildlife compensation plan currently underway at Applegate Dam and upon the further recommendations of federal and state agencies (id. at 6). 3. The Corps' Division Engineer reviewed the Elk Creek Supplemental Statement and, on February 19, 1982, concluded that the project should proceed, subject to congressional approval of funding (App., infra, 52a-58a). He noted that the project would have environmental impacts, but "(a)ll practical means have been incorporated into the project plans to avoid or minimize environmental harm and to mitigate for loss of fish and wildlife habitat" (id. at 57a-58a). Furthermore, "(t)he benefits to be realized through construction of Elk Creek Lake outweigh the economic and environmental costs, and completion of the project represents the course of action which, on balance, serves the overall public interest" (id. at 58a). The Corps proceeded to conduct a water quality study pursuant to Section 404 of the Clean Water Act (33 U.S.C. (& Supp. III) 1344), which was completed in 1983 (see App., infra, 33a). The Corps also redesigned certain portions of the dam (ibid.). /3/ In August 1985, Congress appropriated the funds necessary to complete the Elk Creek Dam and directed the Corps to finish the project without further delay (id. at 33a-34a & n.5). See Act of Aug. 15, 1985, Pub. L. No. 99-98, Tit. I, 99 Stat. 314; see also S. Rep. 99-82, 99th Cong., 1st Sess. 97 (1985). Shortly thereafter the Oregon Natural Resources Council, et al. (ONRC), brought this action in the United States District Court for the District of Oregon to enjoin construction of the Elk Creek Dam. The district court held an evidentiary hearing, rejected each of ONRC's six NEPA-related claims, and entered judgment against ONRC (App., infra, 30a-51a). First, the court concluded that the Supplemental Statement properly considered the Elk Creek Dam's cumulative environmental impact by analyzing its effects in terms of the entire Rogue River Basin Project (id. at 37a-38a). The court next held that the Statement adequately described the affected area (id. at 38a-39a) and the environmental effects of the proposed project, including the opportunities to mitigate environmental harm (id. at 40a-42a). The court rejected ONRC's argument that the Corps' discount factor failed to provide a reasoned basis for choosing among alternatives (id. at 42a-45a). The court also rejected ONRC's argument that the Corps' scientific methodology was unreliable and that a "worst case" analysis was therefore required (id. at 45a-46a). Finally the court held that the Corps was not required to prepare another supplemental environmental impact statement to address new information concerning the project's potential environmental effects (id. at 46a-49a). This new information, an Oregon Department of Fish and Wildlife report on Lost Creek fish mortality (hereinafter ODFW Report) and a Soil Conservation Service report on Elk Creek Soil characteristics (hereinafter SCS Report), was not available to the Corps at the time that it prepared the Elk Creek Supplemental Statement. The district court agreed with the Corps that these reports did not contain significant new information requiring supplementation of the existing Elk Creek studies. The Corps did, however, issue a Supplemental Information Report (hereinafter Elk Creek SIR) explaining why this new information was not significant (App., infra, 59a-67a). /4/ 4. ONRC appealed and a divided court of appeals affirmed in part and reversed in part (App., infra, 1a-2a). The court first held that the Elk Creek Supplemental Statement failed to satisfy NEPA because it lacked a detailed plan to mitigate environmental harm (App., infra, 4a-7a). The court stated (id. at 7a): "The importance of a mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement." The court next held that the Corps must prepare a new supplemental environmental impact statement to discuss the information contained in the ODFW and SCS reports (id. at 7a-13a). The court independently reviewed the scientific evidence and concluded, contrary to the Corps, that the new information "presented a legitimate concern about decreased survivability of fish and the potential for higher turbidity" and that "some of the proffered information is probably accurate" (id. at 11a). The court further concluded that "the Corps' assessment of turbidity due to Elk Creek Dam is subject to uncertainty" (App., infra, 14a) and that the Corps must therefore either conduct additional research or prepare a "worst case" assessment of environmental harm (id. at 13a-15a). Finally, the court held that the Corps failed to take "a hard look at the cumulative environmental impacts" (id. at 16a) and must therefore supplement that portion of the Corps study (id. at 17a). The court affirmed the remainder of the district court's determinations (id. at 17a-20a) and remanded the case for "entry of appropriate injunctive relief" (id. at 21a). Judge Wallace dissented in part (App., infra, 21a-29a). He principally concluded, after a careful canvassing of the scientific evidence, that the Corps acted reasonably in declining to prepare a new supplemental environmental impact statement in response to the ODFW and SCS reports (id. at 21a-28a). REASONS FOR GRANTING THE PETITION The court of appeals has departed from the teachings of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), and has imposed significant new NEPA obligations on federal agencies. The court's decision, which the court subsequently applied and extended in Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 (1987), /5/ requires all environmental impact statements to contain detailed and demonstrably effective mitigation plans and to include a "worst case" analysis whenever the agency lacks information or adequate scientific methodology to determine precisely a potential environmental effect. Neither NEPA nor its implementing regulations authorize these court-created directives. The court of appeals' decision also incorrectly held that the Corps gave inadequate consideration to new information concerning environmental effects that was presented after the completion of its supplemental environmental impact statement. The court's rigid new requirements would actually impede the goal of informed agency decision making by preventing federal agencies from carrying out their resource management responsibilities through systematic project development. The court's clear deviation from established precedent has great practical significance owing to the vast expanse of federal lands and the numerous planned and potential federal projects located within the Ninth Circuit. 1. Section 102(2)(C) of NEPA directs that federal agencies proposing actions that significantly affect the quality of the human environment must prepare a detailed statement on "the environmental impact of the proposed action." 42 U.S.C. 4332(2)(C). This requirement serves two purposes: first, it obligates the agency to consider the environmental consequences of the proposed action; and second, it assures the public that the agency has considered environmental concerns in the decisionmaking process. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983). As this Court has explained, "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural." Vermont Yankee Nuclear Power Corp., 435 U.S. at 558. Furthermore, "the only procedural requirements imposed by NEPA are those stated in the plain language of the Act" (id. at 548). "The procedural duty imposed upon agencies by (Section 102(2)(C)) is quite precise, and the role of the courts in enforcing that duty is similarly precise." Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976). "The only role for a court is to insure that the agency has taken a 'hard look' at environmental consequences; it cannot 'interject itself within the area of discretion of the executive as to the choice of the action to be taken'" (id. at 410 n.21 (citation omitted)). Furthermore, the courts should defer to the judgment of the Council on Environmental Quality (CEQ) -- the agency responsible for assuring proper implementation of NEPA (42 U.S.C. 4344) -- which has promulgated regulations for preparing environmental impact statements. "CEQ's interpretation of NEPA is entitled to substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). The court of appeals ignored these established principles and, relying solely on its own precedent, created two significant new NEPA requirements. The court incorrectly held that an agency must include in every environmental impact statement (a) a fully developed plan to mitigate environmental harm; and (b) a "worst case" analysis of potential environmental harm if relevant information concerning significant environmental effects is unavailable or too costly to obtain. /6/ a. The court of appeals apparently based its mitigation requirement on the fundamentally mistaken premise that NEPA imposes a substantive duty on federal agencies to mitigate environmental harm. /7/ Neither NEPA, nor this Court's decisions interpreting the statute, impose such a requirement. This Court has repeatedly emphasized that NEPA requires an agency to consider and inform the public of potential environmental impacts; it does not require the agency to "elevate environmental concerns over other appropriate considerations." Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980). In any event, the court of appeals erred in imposing a procedural obligation upon agencies -- derived solely from its own precedents -- to develop a "complete mitigation plan" within the environmental impact statement (App., infra, 7a). /8/ The court's requirement finds no source in Section 102 of NEPA or the CEQ's implementing regulations. The CEQ regulations require an environmental impact statement to identify mitigation possibilities -- as was done here (see pages 5-6, supra) -- in the course of discussing project alternatives and the resulting environmental effects. See 40 C.F.R. 1502.14(f), 1502.16(h). But the regulations do not require development of a complete mitigation plan. The court's blanket statements that the "importance of the mitigation plan cannot be overestimated" (App., infra, 7a) and that "(i)t is a determinative factor in evaluating the adequacy of an environmental impact statement" (ibid.) find no support whatsoever in NEPA or the CEQ regulations. Indeed, the court's approach pervasively conflicts with the CEQ's regulations mandating early application of NEPA (40 C.F.R. 1501.2, 1502.5(b)), encouraging tiered environmental analysis (40 C.F.R. 1502.20), and forbidding agencies from committing resources in a manner that will bias the agency's ultimate decision (40 C.F.R. 1502.2(f)). The court of appeals' decision on this score would have severe consequences. The decision would prevent an agency from evaluating the environmental effects of a proposed project through the familiar and sensible concept of staged project development. /9/ In this case, for example, the Corps' Elk Creek Supplemental Statement explained that the proposed dam would have some adverse affects on wildlife, and quite sensibly suggested that wildlife mitigation techniques be employed based upon the experience gained in earlier stages of the Rogue River Project. /10/ Thus, the environmental impact statement fulfilled its intended function by identifying the environmental consequences of the proposed action and ways in which those consequences might be ameliorated. The court of appeals' decision nevertheless forbids this approach: instead, the environmental impact statement cannot be completed until a complete mitigation plan has been developed. In essence, an agency cannot fulfill its duties under NEPA until it has addressed definitively how it will mitigate every reasonably foreseeable environmental impact. As a practical matter, the court of appeals' approach would impede or frustrate a wide range of federal projects without any corresponding benefits. Agencies would be forced to defer environmental analysis until far along in the planning process and to invest resources on a large scale before making even preliminary decisions. By defering the environmental analysis to satisfy the requirements of this decision, the agencies would run the grave risk of having proposed projects enjoined on the ground that irretrievable commitments have been made without the requisite environmental analysis. Moreover, the court of appeals' requirement of a completed mitigation plan is counterproductive when, as in the instant case, the specific mitigation techniques to be used are to be chosen and refined as the results of on-going empirical studies become available. "As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular internal decisionmaking structure." Baltimore Gas & Elec. Co., 462 U.S. at 100. NEPA and its implementing regulations were deliberately structured to give federal decisionmakers great latitude to determine the appropriate scope of their environmental discussion and evaluation. See, e.g., Strycker's Bay Neighborhood Council, 444 U.S. at 227. /11/ The court's decision here would eliminate this latitude by forcing agencies to fit all of their actions into the court's rigid and counterproductive formula for environmental decisionmaking. b. The court of appeals also erred in concluding (App., infra, 13a-14a) that a "worst case" analysis is required whenever an agency is unable to obtain information on which to base a reasoned decision. The court noted (id. at 14a n.8) that CEQ regulations had at one time required that environmental impact statements evaluate uncertainty by including a "worst case analysis and an indication of the probability or improbability of its occurrence" (40 C.F.R. 1502.22 (1985)), but that CEQ had subsequently rescinded that requirement. /12/ The court nevertheless determined that "the rules embodied in the regulation remain in effect even though the regulation was rescinded" because the "worst case regulation is a codification of prior NEPA case law" (App., infra, 14a n.8), citing its previous decision in Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 (9th Cir. 1984). The Save Our Ecosystems decision derives that proposition from Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark (SOCATS), 720 F.2d 1475, 1478 (9th Cir. 1983), cert. denied, 469 U.S. 1028 (1984), which in turn mistakenly relies on Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983). The question in Sigler was whether the Army Corps of Engineers was required to comply with the CEQ worst case regulation under the particular facts of that case. The Fifth Circuit first admitted that while there is "some language in NEPA which may be said to endorse generally the concept of a worst case analysis" the statute's "literal language does not require a worst case analysis" (id. at 969). The court next noted that a series of judicial decisions had recognized that NEPA does contemplate that agencies would engage in "'(r)easonable forecasting and speculation'" concerning future environmental effects, including the "probabilities of the occurrence" and the "'cost of uncertainty -- i.e. the costs of proceeding without more and better information'" (id. at 970). /13/ The court then stated that the "CEQ's worst case analysis merely codifies these judicially created principles" (id. at 971). Thus, the Fifth Circuit effectively concluded that the worst case regulation was the CEQ's mechanism for implementing certain judicially recognized NEPA objectives. The court did not hold that the worst case methodology was the only allowable mechanism for effecting those general goals. The CEQ has adhered to the objectives identified in Sigler, but has determined that "the worst case analysis' requirement is an unproductive and ineffective method of achieving those goals" (51 Fed. Reg. 15618, 15620 (1986)). /14/ The CEQ has therefore adopted "a wiser and more manageable approach to the evaluation of reasonably foreseeable significant adverse impacts in the face of incomplete or unavailable information" (id. at 15620). /15/ The court of appeals' decision in this case effectively overrules the CEQ's new regulation and installs worst case analysis as a permanent feature of NEPA compliance. This aspect of the court of appeals' decision is obviously contrary to this Court's recognition in Andrus v. Sierra Club that the CEQ's judgment is entitled to "substantial deference" even when the agency has changed its regulations governing NEPA compliance (442 U.S. at 358). See also, e.g., American Trucking Ass'ns v. Atchison, T. & S.F. Ry., 387 U.S. 397, 416 (1967). As in the case of its new mitigation requirements, the court of appeals' holding here would have severe consequences. As the CEQ has explained, federal agencies would be forced to conduct wasteful and time-consuming inquiries into speculative impacts that lack "a firm connection between credible science and the hypothetical consequences of an agency's proposed action." 50 Fed. Reg. 32236 (1985). This sort of "pure conjecture * * * lacking a credible scientific basis is not useful to either the decisionmaker or the public" (ibid. (emphasis in original)). 2. The court of appeals also erred in holding that the Corps was obligated to prepare another supplemental environmental impact statement addressing the ODFW and SCS reports. See pages 7-8 supra. The Corps evaluated the information contained in those studies and reasonably concluded that a supplemental statement was not necessary, setting forth its reasons in the Elk Creek SIR. See App., infra, 60a-67a. The district court heard testimony on this matter and concluded that the Corps' judgment was reasonable (id. at 46a-49a). The court of appeals nevertheless substituted its scientific judgment for that of the agency, in basic disregard of this Court's precedents. This Court has made clear that neither NEPA nor its legislative history "contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions" (Kleppe, 427 U.S. at 410 n.21). "The only role for a court is to insure that the agency has taken a 'hard look' at environmental consequences" (ibid.). Furthermore, a court has no special expertise to evaluate scientific data and thus "must generally be at its most deferential" when examining an agency's scientific determinations. Baltimore Gas & Elec. Co., 462 U.S. at 103. In this instance, the Corps examined the ODFW and SCS reports and, to the extent that further discussion was necessary, provided it in the Elk Creek SIR. The ODFW Report had suggested that the Elk Creek Dam could result in decreased survivability of chinook slamon, increased disease among fish, higher turbidity, and less successful sport fishing. The Corps reviewed these projections, utilizing two independent experts and the Corps' Water Experiment Station, and concluded that the ODFW results were inconclusive and not reliable (App., infra, 63a-66a). /16/ The SCS Report had indicated that the soils in the Elk Creek area have higher sediment-producing capacity than the Corps had estimated and might therefore make a greater contribution to turbidity. However, the Forest Service had previously raised essentially the same issue and the Corps had responded to it in the Elk Creek Supplemental Statement. /17/ Finally, the Corps presented the district court with additional scientific evidence supporting its conclusions regarding both the ODFW and SCS reports, and the district court, upon reviewing the evidence, found the Corps' decision not to prepare another supplemental environmental impact statement to be reasonable (App., infra, 47a-49a). The court of appeals' reversal of the district court determination cannot be squared with Kleppe and Baltimore Gas & Elec. Co. The court of appeals accorded no deference to either the district court or the Corps. It purported to follow its previous decision in Stop H-3 Ass'n v. Dole, 740 F.2d 1442 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985), which provides that "(w)hen new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing requirements" (740 F.2d at 1463-1464). /18/ But the court actually reevaluated the scientific evidence as a de novo factfinder. See App., infra, 7a-13a. As Judge Wallace explained in dissent, "It is not the function of th(e) court to decide whether the Corps' analysis of the two studies was 'correct' scientifically" (id. at 28a). And as his thorough review of the record demonstrates, the Corps' conclusion that there was no need to prepare another supplemental environmental impact statement was, in any event, supported by an abundance of scientific evidence and was clearly reasonable (id. at 21a-28a). The court of appeals' resolution of the new information question is a clear departure from this Court's precedents that will substantially and needlessly burden the Corps' completion of the Elk Creek Dam. It is therefore appropriate to review that question in conjunction with the mitigation and worst case issues. 3. The court of appeals' decisions in this case and in Methow Valley Citizens Council v. Regional Forester, supra, would greatly expand the federal agencies' substantive and procedural duties under NEPA. None of the newly imposed duties finds its source in NEPA or in its implementing regulations; rather, they are purely judicial creations. Furthermore, the court's two decisions have confirmed those duties as a settled element of the Ninth Circuit's peculiar NEPA jurisprudence. The court's clear deviation from this Court's NEPA precedents has great practical significance. As we have already explained, the court's newly fashioned NEPA obligations would impose substantial burdens on the federal government and, ultimately, the taxpaying public, without corresponding benefits. Indeed, these court-imposed requirements are not only contrary to sound environmental decisionmaking, they are contrary to the goals of NEPA and the procedures created by the CEQ for achieving those goals. The resulting costs would be enormous even if limited to the projects within the Ninth Circuit owing to the vast expanse of federal lands and the numerous planned and potential federal projects subject to that court's rulings. This Court's review is therefore warranted. CONCLUSION The petition for a writ of certiorari should be granted. /19/ Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General PETER R. STEENLAND, JR. LAURA E. FROSSARD Attorneys APRIL 1988 /1/ The Corps' NEPA regulations provide for preparation of a supplemental environmental impact statement "whenever significant impacts resulting from changes in the proposed plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the recommended plan or proposed action" (33 C.F.R. 230.11(b)). We have lodged a copy of the Elk Creek Supplemental Statement with the Clerk of the Court. /2/ The JTU (Jackson Turbidity Unit) is the unit of measurement for water clarity. As a general rule, the turbidity limit for drinking water is 5 JTU, turbidity of 10 JTU impairs flyfishing, turbidity of 20 JTU impairs other fishing methods, and a long-term turbidity of 50 JTU alters fish behavior. Elk Creek Supplemental Statement 21. /3/ The Corps prepared an environmental assessment, in accordance with 33 C.F.R. 230.9, finding that no significant impacts resulted from these changes, and prepared a supplemental information report, in accordance with 33 C.F.R. 230.11(d). /4/ The Corps' NEPA regulations provide for issuance of a supplemental information report where a supplemental environmental impact statement is not necessary, but where there is a need "to provide supplemental information to a point of concern discussed" in the final environmental impact statement (33 C.F.R. 230.11(d)). /5/ The Solicitor General has sought review of the Methow Valley Citizens Council decision through a petition for a writ of certiorari filed simultaneously with this petition. /6/ We believe that the court of appeals also erred in holding that the Elk Creek Supplemental Statement's discussion of cumulative impacts was inadequate, but we do not press that question in this Court. The question of cumulative impacts is factbound and less significant than the mitigation, worst case, and new information issues presented here. Furthermore, the government may be able to cure that supposed deficiency on remand without an excessive commitment of time and resources. By contrast, the costs of fulfilling the court's mitigation, worst case, and new information requirements are certain to be substantial. /7/ The court indicated that some mitigation measures must be undertaken, stating (App., infra, 5a): "As long as significant measures are undertaken to mitigate the project's effects, the measures need not compensate completely for adverse environmental impacts." The court mistakenly relied on Friends of Endangered Species v. Jantzen, 760 F.2d 976, 987 (9th Cir. 1985), for that proposition; Jantzen states only that if significant measures are undertaken to mitigate the project's effects, an environmental impact statement may not be necessary at all (ibid.). The court of appeals has since recognized a substantive duty to mitigate environmental harm in Methow Valley Citizens Council, where the court stated that Section 102 of NEPA "requires that 'action be taken to mitigate the adverse effects of major federal actions'" (833 F.2d at 819, quoting Stop H-3 Ass'n v. Brinegar, 389 F. Supp. 1102, 1111 (D. Haw. 1974), rev'd on other grounds, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976)). /8/ The court relied (App., infra, 5a) on Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir. 1985), cert. granted on other grounds, No. 86-1013 (May 4, 1987), for that proposition. That case, in turn, cited Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir. 1982), which made no mention of mitigation at all. /9/ See, e.g., D. Dannenbring & M. Starr, Management Science: An Introduction 548 (1981) ("A project is itself a combination of many varied and complex tasks or activities. These tasks are interdependent in that most cannot begin until some other task has been completed."). /10/ See Elk Creek Supplemental Statement 6 ("Measures to compensate project-caused loss of wildlife habitat associated with reservoir construction will be developed, based upon the results of the wildlife compensation plan currently underway at Applegate Project and recommendations of the Oregon Department of Fish and Wildlife and the U.S. Fish and Wildlife Service."). /11/ See also Friends of the Earth v. Hintz, 800 F.2d 822, 837-838 (9th Cir. 1986); River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d 445, 448 (7th Cir.), cert. denied, 475 U.S. 1055 (1985); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985); Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1047 (1st Cir. 1982). /12/ We have reproduced the relevant portions of CEQ's present regulation and the rescinded "worst case" regulation in the appendix, infra, 70a-72a. /13/ The court specifically cited Scientists' Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1092 (D.C. Cir. 1973); Carolina Envtl. Study Group v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975); and Alaska v. Andrus, 580 F.2d 465, 473-474 (D.C. Cir. 1978), vacated on other grounds sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922 (1978). /14/ The CEQ had received frequent complaints that the worst case approach was not an effective method for addressing uncertainty and led to excessive paperwork and delays. 51 Fed. Reg. 15619-15620 (1986). "Experts in the field of risk analysis and perception stated that the 'worst case analysis' lacks defensible rationale or procedures, and that the current regulatory language stands 'without any discernible link to the disciplines that have devoted so much thought and effort toward developing rational ways to cope with problems of uncertainty.'" 50 Fed. Reg. 32234, 32236 (1985). The CEQ itself found that the methodology "can breed endless hypothesis and speculation" (51 Fed. Reg. 15620 (1986)) and "has proved counterproductive, because it has led to agencies being required to devote substantial time and resources to preparation of analyses which are not considered useful to decisionmakers and divert the EIS process from its intended purpose" (50 Fed. Reg. 32236 (1985)). We described some of these difficulties in a previous petition for a writ of certiorari in SOCATS. See Clark v. Southern Oregon Citizens Against Toxic Sprays, Inc., cert. denied, 469 U.S. 1028 (1984) (White and O'Connor, JJ., dissenting). The CEQ's effort to alleviate these difficulties, after the denial of certiorari in SOCATS, by revision of its regulations has now been repudiated by the court of appeals. /15/ The CEQ's revised regulation provides that when relevant information cannot be obtained because the costs of obtaining it are exorbitant or the means to obtain it are not known, the environmental impact statement must identify the unavailable information and its relevance, must summarize existing scientific information bearing on foreseeable environmental impacts, and must contain the agency's evaluation of those impacts based on research methods generally accepted in the scientific community. 40 C.F.R. 1502.22. /16/ The Corps pointed out, for example, that the ODFW Report had failed to take into account that the dam would increase survival of young fish by reducing peak flows, that the Report's methodology had not been validated, and that the Report failed to demonstrate a supposed causal link between the construction of the Lost Creek Dam and a subsequent episode of high fish mortality (App., infra, 63a-65a). /17/ The Corps explained that soil characteristics do not play a significant role in predicting turbidity; rather, "soil disturbances are the chief contributing factor to turbidity in runoff" (Elk Creek Supplemental Statement 115). The Corps also noted in the Elk Creek SIR that the United States Geological Survey's soil report indicated that, due to watershed recovery programs, the average daily turbidity at Elk Creek was now as low as it had been in the 1970's and that the Elk Creek Dam was designed with a multilevel intake tower to control turbidity levels (App., infra, 66a). /18/ The Stop H-3 Ass'n decision further states that the reasonableness of the agency's decision depends on the significance of the new information, its probable accuracy, the care the agency gave to its consideration of the information, and whether the agency gave an explanation of its decision. See 740 F.2d at 1464. /19/ The Court may wish to consolidate this case with Robertson v. Methow Valley Citizens Council, No. 87-...., or to order that the cases be heard in tandem. The government's petition for a writ of certiorari in that case (which is being filed simultaneously with this petition) presents overlapping, but not identical, NEPA issues. APPENDIX