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Johnston v. Davis

ELR Citation: 13 ELR 20415
Nos. No. 80-2297, 698 F.2d 1088/18 ERC 2008/(10th Cir., 01/25/1983)

The court rules that the Soil Conservation Service's (SCS's) environmental impact statement (EIS) for the Toltec Reservoir Project in Wyoming inadequately discusses alternatives because it fails to disclose that the present value of the project's costs and benefits was calculated with an artificially low discount rate specified by Congress. The court first holds that the EIS reasonably discusses the qualitative environmental costs of the project, in a manner that permits a decisionmaker to make an informed choice. The court holds that the SCS was justified in using a 3.25-percent discount rate to quantify the costs of the project. Congress specified that that rate be used for water resource plans proposed before January 3, 1969, if the agency had satisfactory assurances by December 31, 1969, that the nonfederal sponsors would bear their share of costs. The court rules that the agency acted within its discretion in determining that it had timely satisfactory assurances. However, the court holds that to avoid misleading readers, the EIS must be revised to disclose that the discount rate is set pursuant to law and is artificially low, and that under a more reasonable discount rate the project's costs would exceed benefits.

Counsel for Appellants
Kim D. Cannon, Henry A. Burgess
Burgess & Davis
P.O. Box 728, Sheridan WY 82801
(307) 674-4449

Counsel for Appellees
Dirk D. Snel, Laura Frossard; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Toshira Suyematsu, U.S. Attorney
P.O. Box 668, Cheyenne WY 82003
(307) 772-2124

Counsel for Intervenor
Fred W. Phifer, Sky D. Phifer
Phifer & Phifer
P.O. Box 609, Wheatland WY 82201
(307) 322-2045

Before SETH, Chief Judge, and McWILLIAMS and McKAY, Circuit Judges.