F. DALE ROBERTSON, CHIEF OF THE FOREST SERVICE, ET AL., PETITIONERS V. METHOW VALLEY CITIZENS COUNCIL, ET AL. No. 87-1703 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of F. Dale Robertson, Chief of the Forest Service, 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: F. Dale Robertson, Chief of the Forest Service; James Torrence, Regional Forester; William D. McLaughlin, Supervisor, Okanogan National Forest; and the Forest Service. The respondents are: Methow Valley Citizens Council; Washington Environmental Council; Sierra Club; and Methow Recreation, Inc. 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 opinion of the court of appeals (App., infra, 1a-19a) is reported at 833 F.2d 810. The opinion of the district court (App., infra, 20a-47a) is unreported. JURISDICTION The court of appeals entered its judgment (App., infra, 72a) on December 1, 1987. On February 18, 1988, Justice O'Connor extended 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, 73a-76a). 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 concerning significant environmental effects is unavailable or too costly to obtain. 2. Whether the Forest Service may issue a special use permit for recreational use of national forest land in the absence of a fully developed plan to mitigate environmental harm. STATEMENT Petitioners seek review of a court of appeals decision reversing a magistrate's determination that the Forest Service had fully complied with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and its own regulations in deciding to issue a special use permit for the proposed Early Winters Ski Resort in the Okanogan National Forest. 1. Congress has created a National Forest System and entrusted its management to the Department of Agriculture's Forest Service. See National Forest Management Act of 1976, Section 2, 16 U.S.C. 1600. Congress has specifically directed the Forest Service to administer the national forests "for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Multiple-Use Sustained-Yield Act of 1960, Section 1, 16 U.S.C. 528. As part of this multiple-use program, the Forest Service has permitted development of 170 alpine ski areas within these federally reserved lands. See H.R. Rep. 99-709, 99th Cong., 2d Sess. Pt. 1, at 2 (1986). The ski areas, which occupy less than 1/20th of 1% of the national forest lands, account for more than 6% of recreational visitor use (ibid.). In 1968, Congress established the North Cascades National Park and directed the Secretary of the Interior and the Secretary of Agriculture to designate portions of that enclave and adjacent national forests for public uses, including camping and ski areas. Act of Oct. 2, 1968, Sections 101, 504, 16 U.S.C. 90, 90d-3. Pursuant to this specific congressional directive, the Forest Service prepared a report entitled the North Cascades Winter Sports Study (hereinafter North Cascades Study) to compare existing and potential ski areas in the North Cascades and to recommend further development alternatives. The North Cascades Study, which was completed in 1970, concluded that existing ski areas should be expanded and identified a single site as suitable for development of a "major destination ski resort." /1/ That site is a 6,000-foot mountain in the Okanogan National Forest known as Sandy Butte. In 1978, Methow Recreation, Inc. (MRI), applied to the Forest Service for a "special use" permit, pursuant to 36 C.F.R. 251.50, to develop an alpine ski resort at Sandy Butte, to be known as Early Winters. In response, the Forest Service prepared an environmental impact statement, known as the Early Winters Study, in accordance with Section 102 of NEPA, 42 U.S.C. 4332, to assess the environmental consequences of the proposed development. /2/ The Early Winters Study was the first in a series of steps that had to be completed before issuance of a special use permit. Early Winters Study xvi. /3/ 2. The Early Winters Study explained that its purpose was to provide the Forest Service with "the information required to evaluate the potential for skiing at Early Winters, to assist in making a decision whether to issue a special use permit for downhill skiing on all or part" of Sandy Butte. Early Winters Study 1. The Study considered five alternative levels of development in detail, including a "no action" alternative, and identified the second highest level -- serving up to 8,200 skiers at one time -- as the preferred development option (id. at 6-22). /4/ The Early Winters Study made clear that a decision to go forward with a ski resort would not result directly in development; rather, "(f)urther environmental analysis and review will be required prior to any decision by the Forest Service to allow a specific development at Early Winters, and by the responsible state and local government agencies, prior to any authorization to develop non-Forest Service lands." Early Winters Study 1. Following issuance of a special use permit, the developer would have to submit a detailed mountain and base development plan for the Forest Service's approval, providing the precise ski area design (id. at xvi). At this stage, the Study explained, site-specific mitigation plans would be required (ibid.). Although it was too early to design a detailed mitigation plan, it was not too early to identify significant anticipated effects that major development might have on Sandy Butte and the surrounding communities. The Early Winters Study evaluated the potential effects on air and water quality, vegetation, wildlife, fisheries, timber resources, socio-economic conditions, land use, recreation, transportation, and public services. Early Winters Study 65-145. In each of these areas, the Study considered both the impacts within and outside the National Forest, denominating on-site impacts as primary and off-site impacts as secondary (ibid.). /5/ The Study concluded that all of the alternatives, including the "no action" option, would adversely affect Methow Valley's mule deer population and the region's air quality. In the case of the mule deer, the Study observed that the ski resort itself could reduce their range and fawning habitat but that, even if the ski resort were not built, the anticipated growth in human population on surrounding non-federal land would disturb the mule deer herds. Early Winters Study 75-76. In the case of air quality, the Study concluded that the construction and operation of the ski resort would not have a measurable impact, but the secondary impacts from development of nearby private land would have a significant effect that would increase with successive levels of development (id. at 65-67). In both cases, the Study identified measures to reduce or eliminate the adverse effects (id. at 14-18, 68-69, 77-78). The Study specifically cautioned, however, that these suggestions were conceptual, that they would be made more specific in subsequent steps of the planning process, and that additional mitigation measures might be required (id. at 14). /6/ 3. The Regional Forester reviewed the Early Winters Study and concurred in the Study's recommendation supporting a ski resort capable of serving 8,200 skiers at one time. He accordingly issued a decision, on July 5, 1984, to seek a qualified developer (App., infra, 63a-71a). /7/ The Regional Forester explained that the highest development alternative (serving up to 10,500 skiers at one time) "would provide maximum utilization of the recreation resource opportunities and increased economic benefit to the area" (id. at 65a), and that the "no action" alternative "would cause the least disruption to the natural environment" (ibid.), but the selected alternative "provides a balance of concerns for the physical and biological components of the human environment in addition to concerns for social and economic welfare" (ibid.). He further observed that adverse environmental effects would result from all of the alternatives, including the "no action" option, that these adverse effects would result almost exclusively from off-site development, and that "(p)ractical measures to reduce the adverse impacts have been, or are in the process of being, implemented by Okanogan County" (id. at 67a). /8/ On October 1, 1984, the Methow Valley Citizens Council et al. (MVCC) requested, pursuant to 36 C.F.R. 211.18, that the Chief of the Forest Service reverse the Regional Forester's decision. He denied that request, with an extensive discussion of the reasons supporting his decision, on December 16, 1985 (App., infra, 49a-62a). MVCC then filed this action in the United States District Court for the District of Oregon. The complaint contended, among other claims, that the Early Winters Study did not conform with NEPA's requirements, that the Forest Service's decision to develop Sandy Butte was not in the public interest, and that the Forest Service had violated the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq., and the Clean Air Act, 42 U.S.C. 7401 et seq. The parties agreed to submit the issues to a United States magistrate pursuant to 28 U.S.C. 636(c). The magistrate dismissed through summary judgment MVCC's claims under the National Forest Management Act and the Clean Air Act, and, after a hearing to supplement the administrative record, he rejected all of MVCC's remaining claims (App., infra, 20a-48a). The magistrate concluded that the Forest Service's decision to go forward with the issuance of a special use permit was unreviewable under Ninth Circuit precedent (id. at 28a-30a); that even if it were reviewable, it was not arbitrary and capricious (id. at 30a n.4); and that it did not violate due process (id. at 31a). The magistrate next held that the Early Winters Study satisfied NEPA's requirements for an environmental impact statement (id. at 31a-47a). He rejected MVCC's argument that the Study's discussion of alternative development sites was inadequate (id. at 34a-38a), observing that "the North Cascades Winter Sports Study, a work cited in the (Early Winters Study) and available to the public, had identified Sandy Butte as the only area in the Okanogan Forest having good potential as a major ski development" (id. at 37a), and that expansions of sites "a hundred or more miles away from the Okanogan National Forest are not reasonable alternatives" (ibid.). The magistrate further determined that the Forest Service adequately discussed the project's environmental impacts (id. at 38a-47a). He specifically rejected MVCC's contentions that the Forest Service was obligated to prepare a "worst case" analysis of the possible impacts (id. at 40a, 45a) and that the Early Winters Study gave insufficient analysis to possible mitigation measures (id. at 41a-42a, 45a-46a). 4. MVCC appealed the magistrate's decision directly to the court of appeals (see 28 U.S.C. 636(c)(3)). The court reversed the magistrate's determination, holding that the Early Winters Study failed to satisfy NEPA's requirements and that the Forest Service's decision to issue a special use permit was arbitrary and capricious (App., infra, 1a-19a). The court found the Early Winters Study to be flawed in three respects. First, the court held that the Study should have given detailed consideration to the possibility of expanding existing ski resorts as one of the alternative development proposals, rejecting the magistrate's determination that these were not feasible alternatives (App., infra, 8a-11a). Second, the court held that the statement did not provide a sufficiently detailed discussion of the environmental impacts of the proposed project on mule deer and air quality (id. at 11a-16a). The court specifically stated that if the government is unable to obtain adequate information on the effects of the project on mule deer, the government must conduct a "worst case" analysis of the environmental impacts (id. at 13a, 14a). /9/ Finally, the court held that Section 102 of NEPA (42 U.S.C. 4332) "requires that 'action be taken to mitigate the adverse effects of major federal actions'" (App., infra, 17a). /10/ The court specifically ruled that an environmental impact statement must contain both a detailed plan to mitigate any adverse environmental effects and an analysis of the plan's effectiveness (ibid.). /11/ Having failed to include such a detailed plan, the Early Winters Study was "inadequate as a matter of law" (id. at 19a). With respect to the Forest Service's decision to issue a special use permit, the court acknowledged (App., infra, 3a-4a) that its prior precedent had indicated that such decisions are not revieweable under the Administrative Procedure Act, 5 U.S.C. (& Supp. IV) 701-706. The court concluded, however, that subsequent Forest Service regulations had since created "'law' for this court to apply" and that the decisions were therefore now reviewable (App., infra, 4a-5a). The court then held that the relevant Forest Service regulations (36 C.F.R. 251.54(e)(4) and 36 C.F.R. 251.56(a)(1)(ii)) require "an adequate mitigation plan" (App., infra, 5a n.3), and that the mitigation plan contained in the Early Winters Study was so inadequate that the "decision to grant the special use permit could be none other than arbitrary, capricious, and an abuse of discretion" (ibid.). 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 builds upon its prior decision in Oregon Natural Resources Council v. Marsh, 820 F.2d 1051 (1987), /12/ 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 construes the Forest Service's special use permit regulations to impose similar mitigation obligations. 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. /13/ a. The court of appeals based its mitigation requirement on the fundamentally mistaken premise that Section 102 of NEPA "requires that 'action be taken to mitigate the adverse effects of major federal actions'" (App., infra, 17a (citation omitted)). Neither Section 102, nor this Court's decisions interpreting that provision, impose any such requirement. The court obtained its proposition from a 1974 district court decision, Stop H-3 Ass'n v. Brinegar, 389 F. Supp. 1102 (D. Haw.), that was reversed on other grounds, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976). /14/ The district court decision was dubious authority even when its ink was fresh; this Court's subsequent decisions in Vermont Yankee and Kleppe demonstrate that the decision was quite clearly wrong. This Court has repeatedly emphasized that Section 102 requires the 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). The court of appeals' imposition of a substantive duty to mitigate environmental harm is also inconsistent with the CEQ regulations implementing NEPA. Those regulations require an agency to identify mitigation possibilities in the environmental impact statement in the course of discussing project alternatives and the resulting environmental effects. See 40 C.F.R. 1502.14(f), 1502.16(h). In addition, an agency must state, as part of its ultimate decision, whether it has adopted mitigation measures (40 C.F.R. 1505.2) and, if it has, it must implement those measures (40 C.F.R. 1505.3). These regulations ensure that decisionmakers consider opportunities to mitigate environmental harm, but they do not impose a duty to adopt such measures. The decision whether to adopt mitigation measures, like the decision whether to go forward with the project itself, is left to the expert agency's informed discretion. Compare Strycker's Bay Neighborhood Council, Inc., 444 U.S. at 227; Vermont Yankee Nuclear Power Corp., 435 U.S. at 558; Kleppe, 427 U.S. at 410 n.20. The court of appeals not only imposed a new substantive duty to mitigate environmental harm, it also imposed a concomitant procedural obligation -- derived solely from its own precedents -- to develop a "'complete mitigation plan'" (App., infra, 19a (quoting Oregon Natural Resources Council, 820 F.2d at 1055)). /15/ As in the case of the substantive duty to mitigate harm, this procedural requirement to develop a detailed mitigation plan finds no source in Section 102 of NEPA. The CEQ's implementing regulations recognize that potential mitigation measures should be identified -- as was done here (see pages 6-7, supra) -- but they do not require development of a complete mitigation plan. The court's blanket statements that the "'importance of a mitigation plan cannot be overestimated'" (App., infra, 19a (quoting Oregon Natural Resources Council, 820 F.2d at 1055)) 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. The court of appeals' decision on this score would have severe consequences. As the facts of this case demonstrate, the decision would prevent an agency from evaluating the environmental consequences of a proposed project through the familiar and sensible concept of staged project development. /16/ In particular, it would prevent an agency from making any initial feasibility determinations until the entire project planning process has been completed and a complete mitigation plan has been developed. This 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)). As a practical matter, the court's approach would frustrate or impede a wide range of federal and federally permitted projects. Here, for example, the Forest Service could offer potential developers no assurance whatsoever that it will issue a special use permit for the Early Winters project until a developer has spent several years and millions of dollars to provide comprehensive plans on which to base a detailed mitigation plan. More generally, agencies would be forced to defer complete environmental analysis until far along in the planning process and to invest resources on a large scale before making even preliminary decisions. By deferring 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. "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 permit 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. /17/ 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. The court's formula is particularly unsuitable for federal agencies such as the Forest Service, which must manage vast acreages of federal lands through long-range planning techniques /18/ and must therefore engage in staged decisionmaking. b. The court of appeals also erred in concluding (App., infra, 13a) 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 13a n.11) 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. /19/ The court determined that the "worst case" requirement nevertheless remains in effect because "the regulation was merely a codification of prior NEPA caselaw" (App., infra, 13a n.11), citing its previous decision in 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). The SOCATS decision mistakenly derived that proposition from 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 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). /20/ 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)). /21/ 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). /22/ The court of appeals' decisions in this case and in Oregon Natural Resources Council effectively overrule the CEQ's new regulation and install 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 not only misconstrued NEPA, it also misconstrued the Forest Service's regulations governing the issuance of a special use permit. The principal regulation involved in this case requires special use authorizations to contain terms and conditions that will "minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise (sic) protect the environment." 36 C.F.R. 251.56(a)(1)(ii). /23/ The court interpreted this provision to require "an adequate mitigation plan" (App., infra, 5a n.3). The court then reasoned (ibid.): Since the mitigation "plan" here at issue is so vague and undeveloped as to be wholly inadequate, (citing the court's discussion of NEPA mitigation requirements), the Regional Forester's decision to grant the special use permit could be none other than arbitrary, capricious and an abuse of discretion. Thus, the court concluded that the Forest Service regulation incorporates the court's judicially created NEPA mitigation requirements. The court's reasoning here is seriously flawed. The Forest Service regulation makes no mention of mitigation plans and was never intended to incorporate the sort of "complete mitigation plan" that the court itself created -- without statutory authority -- in Oregon Natural Resources Council v. Marsh, supra. The Forest Service operated under guidelines, even prior to NEPA, that directed the agency to minimize harm to resources. /24/ In 1980, it revised its regulations to reflect their present form (45 Fed. Reg. 38324 (1980)). However, the Forest Service has never suggested, at any point in that process, that its regulations require a complete mitigation plan, at the permit stage, of the kind the court of appeals imposed here. Instead, the Forest Service has routinely imposed terms and conditions similar to those ultimately imposed in this case. /25/ The court of appeals' holding here "runs roughshod over the established proposition that an agency's construction of its own regulations is entitled to substantial deference." Lyng v. Payne, 476 U.S. 926, 939 (1986). See, e.g., United States v. Larionoff, 431 U.S. 864, 872 (1977) ("In construing administrative regulations, 'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'", quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Forest Service's interpretation of its regulation here is plainly reasonable and should be respected. The court's decision, which requires every special use permit henceforth issued to contain a detailed plan to mitigate on- and off-site effects, creates yet another unjustified obstacle to development and use of federal lands. 3. The court of appeals' decisions in this case and in Oregon Natural Resources Council v. Marsh, 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 decision 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, private developers 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. /26/ Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General PETER R. STEENLAND, JR. VICKI L. PLAUT Attorneys APRIL 1988 /1/ A major destination ski resort is a large, multi-season ski area with sufficient ski runs, adequate vertical rise, sufficiently varied activities and appropriate high-quality base facilities to entice vacationers to travel long distances and to stay several days at the site. /2/ This final environmental impact statement -- formally entitled the Early Winters Alpine Winter Sports Study and sometimes referred to as an "FEIS" -- was released on August 31, 1984 (49 Fed. Reg. 34575). The Forest Service completed and circulated a draft environmental impact statement in 1982, but delayed release of the statement and a decision on MRI's permit application while Congress considered including Sandy Butte in a proposed wilderness designation. On July 3, 1984, Congress passed the Washington State Wilderness Act of 1984, Pub. L. No. 98-339, 98 Stat. 299, designating as wilderness certain portions of the National Forest System in Washington -- not including Sandy Butte -- and directing (Section 2(b), 98 Stat. 299) that "other National Forest System lands in the State of Washington be available for non-wilderness multiple uses." The Senate Report accompanying the Act spoke directly to the issue of further development at Sandy Butte (S. Rep. 98-461, 98th Cong., 2d Sess. 11 (1984)): That area of the Okanogan National Forest known as Sandy Butte has been excluded from wilderness designation in S. 837. * * * The designation by Congress in S. 837 of appropriate wilderness areas in Washington State makes it unnecessary to further withhold the Sandy Butte/Early Winters Alpine Winter Sports Study FEIS pending completion of the Okanogan Forest Plan. The Forest Service and the Department of Agriculture are directed to allow the evaluation process for the Sandy Butte development to proceed without additional delay * * *. For the Court's convenience, we have lodged a copy of the Early Winters Study with the Clerk of the Court. /3/ The Forest Service generally reviews special use permit applications for major developments through a two-stage process. In the first stage, the Forest Service examines the general environmental and financial feasibility of the proposed development. The environmental study is usually conducted through the preparation of an environmental impact statement in accordance with NEPA's requirements (Section 102(2)(C), 42 U.S.C. 4332(2)(C)), while financial feasibility is determined through a conventional assessment of the developer's resources. Once the Forest Service determines that a general scheme for development is environmentally sound and financially feasible, the Forest Service may issue a special use permit to plan, construct, maintain, and operate the development. However, prior to any construction activity, the Forest Service must approve the developer's master plan for development, construction, and operation of the project. In the second stage, the Forest Service reviews the developer's proposed master plan. Based on this plan, the Forest Service also completes an additional environmental analysis of on-site impacts. Only after completion of the second environmental analysis and final approval of the completed master plan may the developer begin construction. All construction and operation of the facility must be in accordance with the master plan and the permit's other requirements. /4/ The alternatives ranged from maintaining the status quo (no ski hill development) to developing a ski area capable of serving 10,500 skiers at one time. The Early Winters Study did not give detailed consideration to expansion of existing ski areas at other locations or development of new ski areas at other locations. The North Cascades Study had considered these options and had concluded that -- of 23 existing and potential sites -- Sandy Butte was the only site in the State of Washington suitable for development as a major ski area. See Early Winters Study 6-7; see also App., infra, 51a-52a. /5/ The Study acknowledged that the evaluation of off-site impacts was hampered by the absence of any specific development plans. "Since there are no pending proposals or plans to develop off-site lands, the evaluation of off-site impacts is not site-specific. It is general in nature, acknowledging to the extent practicable the impacts associated with the growth that is likely to be induced by development of Sandy Butte for skiing. The evaluation of off-site impacts (is) included to provide a more complete picture of the likely effects of ski development-at Early Winters and alert other jurisdictions to decisions to (be) made." Early Winters Study 1-3. /6/ The Study suggested that on-site wildlife effects could be mitigated by locating runs, lifts, and roads in a minimally disruptive manner and by restricting travel and other activities in sensitive areas during fawning season (Early Winters Study 14-16). The Study repeated that "(s)pecific mitigation for wildlife at the ski development can only be determined in review of the Master Plan" (id. at 16). The Study suggested that local governments could mitigate off-site wildlife effects through restrictive zoning and other conventional land use management techniques (id. at 77-78). The Study further suggested that the adverse air quality effects, resulting from off-site use of motor vehicles, wood stoves, and fireplaces, could be mitigated through local government initiatives, including the creation of an air-shed management plan (id. at 68-69). /7/ This decision was an important but preliminary step in the permitting process. See note 3, supra. It established that development of a certain size and character was environmentally feasible and preferable to other alternatives, but it did not determine whether MRI (which initially proposed the development) or some other applicant would qualify for or obtain the special use permit. /8/ These efforts included the development of various local restrictions to protect wildlife and air quality. See App., infra, 66a-70a. In a Memorandum of Agreement with the Forest Service, the Environmental Protection Agency, and the State Department of Ecology, Okanogan County committed itself to develop and enforce an air quality ordinance and other mitigation measures necessary to maintain air quality within the standards of the state air quality implementation plan. The Forest Service, in turn, agreed to ensure that measures sufficient to maintain air quality were in place before allowing any construction of permitted facilities at Sandy Butte. See Supp. E.R. 47-48. /9/ The court based this requirement on its recent decision in Oregon Natural Resources Council v. Marsh, 820 F.2d 1051, 1058-1059 (1987). /10/ The court quoted 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). /11/ The court stated: "'The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project -- one of the main purposes of an environmental impact statement.'" App., infra, 19a (quoting Oregon Natural Resources Council, 820 F.2d at 1055). /12/ The Solicitor General has sought review of the Oregon Natural Resources Council decision through a petition for a writ of certiorari filed simultaneously with this petition. /13/ We believe that the court of appeals also erred in holding that the Early Winters Study's discussion of development alternatives was inadequate, but we do not press that question in this Court. The court appears to have agreed that the reasonableness of the alternatives depends essentially upon the scope of the proposed action as defined by the agency (App., infra, 9a). But the court proceeded to ignore the agency's own description of the scope of its action. Nevertheless, the question of appropriate alternatives is somewhat factbound and less significant than the mitigation and worst case issues. Furthermore, the government may be able to cure that supposed deficiency on remand without an excessive commitment of time and resources. /14/ The district court decision in Stop H-3 states, without any citation of authority, that "NEPA implies a requirement that action be taken to mitigate the adverse effects of major federal actions." 389 F. Supp. at 1111 (emphasis added). /15/ The court first suggested that agencies must provide a detailed discussion of mitigation measures in 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). That case cited Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir. 1982), which made no mention of mitigation at all. The court later expanded the obligation to prepare a detailed mitigation plan in Oregon Natural Resources Council, 820 F.2d at 1055. /16/ 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."). /17/ 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. 1985), cert. denied, 475 U.S. 1055 (1986); 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). /18/ See generally Wilkinson & Anderson, Land and Resource Planning in the National Forests, 64 Or. L. Rev. 1 (1985). /19/ We have reproduced the relevant portions of CEQ's present regulation and the rescinded "worst case" regulation in the appendix, infra, 73a-75a. /20/ 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). /21/ 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 (1986)). 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. /22/ 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. /23/ We have reproduced the relevant portions of the Forest Service regulations in the appendix, infra 75a-76a. /24/ See 1963 Forest Service Manual Section 2140.1 (in planning special uses, the agency's objective is to manage and protect resources and to minimize adverse effects to projects); Section 2134 (special use permits must contain stipulations that ensure maintenance of productivity of land and resolution of conflicts with other planned or prospective uses). /25/ A special use permit was issued to MRI on July 21, 1986, shortly after this case was argued before the court of appeals. The special use permit conditioned all construction on the Forest Service's prior approval of a fully developed master plan, which was to contain detailed mitigation measures. The initial permit also put the developer on notice that it would be required to protect scenic and esthetic values, prevent soil erosion and degradation of water, soil, and air quality, and immediately to cease construction upon discovery of archaeologically or historically significant material. See U.S. Dep't of Agriculture Forest Service Special Use Authorization, Region 06, User No. 4171 (Methow Recreation Inc.) paras. 41, 44, 48, 49, 50, 54, 62, 76. /26/ The Court may wish to consolidate this case with Marsh v. Oregon Natural Resources 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