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Oregon Envtl. Council v. Kunzman

Citation: 17 ELR 20756
No. Nos. 85-4266 et al., 817 F.2d 484/25 ERC 2066/(9th Cir., 05/12/1987) Decision at 16 ELR 20629 aff'd in part, vacated in part; decision at 16 ELR 20658 aff'd

The court holds that an addendum to the Department of Agriculture's environmental impact statement (EIS) on its gypsy moth eradication program brought the EIS's worst case analysis into compliance with the National Environmental Policy Act's (NEPA's) readability requirement, and the district court erroneously concluded that plaintiffs were not prevailing parties under the Equal Access to Justice Act (EAJA) for the portion of the litigation ending with the government's decision to withdraw and supplement the EIS. The court first holds that plaintiffs have standing to challenge alleged violations of NEPA's procedural requirements even though the state has indicated its intention to forego the use of chemical insecticides. Plaintiffs, residents of a state with an actual gypsy moth problem, have a sufficient geographical nexus to the site of the challenged project that they may be expected to suffer whatever environmental consequences the project may have. The court holds that Oregon's intent to use a biological alternative does not render the case moot, since the state could use chemical pesticides in the future. The court then holds that the district court did not apply an erroneous standard in reviewing the adequacy of the 1985 EIS. This circuit has rejected a test of subjective good faith in favor of an objective analysis of whether the EIS contains a reasonably thorough discussion of the probable environmental consequences. Although the lower court characterized its task as determining whether the agency made a good faith effort to take environmental concerns into account, it adhered to the appropriate principles in applying its standard of review.

The court rules that the Council on Environmental Quality's (CEQ's) NEPA regulations impose a requirement that an EIS be organized and written so as to be readily understandable by governmental decisionmakers and by interested nonprofessional laypersons likely to be affected by actions taken as a result of the EIS. Noting that the district court's conclusion as to whether an EIS is understandable under the regulations is a factual finding that is reviewed under the "clear error" standard, the court holds that the gypsy moth EIS and the worst case analysis addendum meet this requirement. The EIS is clearly organized and sufficiently well written. Although the discussion of risk is occasionally dry and dense, it is understandable to the layperson. The material in the worst case analysis addendum could have been placed in the EIS itself for increased accessibility, but this fact alone does not render it unreadable. The court holds that the Secretary of Agriculture did not violate the CEQ regulations in relying on a worst case analysis rather than obtaining the missing information through research. Although the EIS did not explicitly evaluate the cost of the required studies in light of the scale of the project, it does cite estimates for the costs of studies and the timenecessary to conduct the research. The court also holds that the EIS is not arbitrary or capricious in its treatment of the cumulative effects associated with the gypsy moth spraying program and the relevant health data.

The court holds that the district court used an incorrect standard in concluding that plaintiffs were not prevailing parties under the EAJA in an earlier segment of the litigation that ended with the Secretary of Agriculture deciding to withdraw and supplement the 1984 EIS. A party need not obtain formal relief on the merits to be deemed a prevailing party. This circuit asks whether the party played a "catalytic role" in bringing about the desired result. The district court itself recognized that the litigation had some effect on the government's decision to supplement the 1984 EIS, the court notes, suggesting that plaintiffs would have been found to be prevailing parties if the correct standard had been applied. The court next holds that the district court properly denied fees for the portion of the litigation ending in a determination that the worst case analysis in the supplemental EIS was inadequate. The district court had held that plaintiffs were prevailing parties, but had denied fees on the grounds that the government's position was substantially justified. The court declines to decide whether the 1985 amendments to the EAJA imposed a standard more stringent than mere reasonableness, holding that the government met a higher standard. The court specifically does not decide whether the government's position that the CEQ regulation concerning readability did not apply to a worst case analysis was substantially justified, choosing instead to base its ruling on the grounds that there was testimony that the worst case analysis was readable and uncertainty in the level of readability required by the regulation.

[The district court opinions are published at 16 ELR 20629 and 20658. Previous decisions from this litigation appear at 12 ELR 20766, 20769; 13 ELR 20901; 14 ELR 20762; 15 ELR 20499, 20503.]

Counsel for Plaintiffs-Appellants
Michael D. Axline, John E. Bonine
Pacific Northwest Resources Clinic
University of Oregon Law Ctr., Eugene OR 94703
(503) 686-3823

Counsel for Defendants-Appellees
Dorothy R. Burakreis, Peter R. Steenland Jr., Albert M. Ferlo Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390

Before Wright and Goodwin, JJ.