Robertson v. Methow Valley Citizens Council
Citation: 19 ELR 20743
No. No. 87-1703, 490 U.S. 332/29 ERC 1497/(U.S., 05/01/1989) Rev'd
The Court rules that an environmental impact statement (EIS) need not include a final detailed mitigation plan or a worst case analysis. The U.S. Forest Service had issued a development permit based on an EIS that, in discussing mitigation of off-site effects, mostly recommended general steps that state and local agencies might take. The Court first rules that the National Environmental Policy Act (NEPA) and regulations issued by the Council on Environmental Quality (CEQ) establish a procedural requirement that an EIS discuss mitigation in enough detail to ensure that environmental consequences have been fairly evaluated, but not a substantive requirement that it formulate and adopt a complete mitigation plan. Moreover, the off-site effects of this development cannot be mitigated unless state and local agencies act, and the Court holds that the Forest service need not delay action until those agencies have decided on mitigation measures. The Court rules that NEPA does not require that measures be taken to mitigate the adverse effects of major federal actions, or that every EIS include a detailed explanation of those measures.
The Court next holds that NEPA does not require that an EIS address uncertainty through worst case analysis. A CEQ regulation requiring such analysis has been rescinded, and the Court holds that the regulation is not still applicable as a codification of previous judicial decisions. Those decisions merely required agencies to describe uncertain environmental impacts, not to conduct worst case analyses. Moreover, the regulation replacing the worst case requirement is entitled to substantial deference because there appear to have been good reasons for the change. The prior regulation was much criticized, and the new regulation is designed to focus the EIS process on significant rather than speculative risks.
The Court also holds that failure to develop a complete mitigation plan did not violate Forest Service regulations requiring permits to include mitigation measures. The on-site mitigation recommendations were sufficiently clear, and the Court holds that the regulations do not condition permit issuance on consideration and implementation of off-site mitigation measures. The regulations are based on recreational land use authorities, not environmental quality concerns. The Court holds that the Forest Service could reasonably construe its regulations not to extend to potential off-site state or county actions, and that this interpretation is controlling.
Counsel for Petitioner
Charles Fried, Lawrence G. Wallace, Jeffrey Minear
Office of the Solicitor General
U.S. Department of Justice, Washington DC 20530
Counsel for Respondent
David A. Bricklin, Michael W. Gendler
Bricklin & Gendler
Fourth & Pike Bldg., Ste. 1015, 1424 Fourth Ave., Seattle WA 98101