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Marsh v. Oregon Natural Resources Council

Citation: 19 ELR 20749
No. No. 87-1704, 490 U.S. 360/29 ERC 1508/(U.S., 05/01/1989) Rev'd

The Court rules that an agency's decision on whether to prepare a supplemental environment impact statement (EIS) should be reviewed under the arbitrary and capricious standard, and upholds the Army Corps of Engineers' decision not to supplement an EIS for a dam in Oregon. The Court first holds that the EIS was not defective for failure to include a complete mitigation plan or a worst-case analysis. The Court then holds that EIS supplementation based on new information is sometimes required by the purposes of the National Environmental Policy Act (NEPA) and by regulations issued by the Council on Environmental Quality and the Corps. Applying a rule of reason, an agency must supplement an EIS when new information shows that future major federal action on the project will significantly affect the quality of the human environment in a manner or to an extent not previously considered. The Court next holds that review of an agency's decision on whether to supplement an EIS is governed by the arbitrary and capricious standard of Administrative Procedure Act § 706(2)(A). The dispute over the significance of the new information is factual, not legal, so the Court will review the decision carefully but give deference to the agency's expertise and discretion. The Court notes that the difference between the arbitrary and capricious standard and the reasonableness standard applied by some courts is not of great practical consequence, and that its ruling therefore will not require substantial changes in established NEPA law. The Court then holds that the Corps did not act arbitrarily and capriciously in deciding not to supplement the EIS based on receipt of an internal state agency memorandum arguing that the dam would adversely affect fishing and a soil survey suggesting that it might increase turbidity. The Corps carefully considered these materials and responded to the claim that they required EIS supplementation. Moreover, there are indications that they did not convey significant new information. No one suggested that the information was highly significant until this lawsuit was filed. The agency whose staff wrote the memorandum did not adopt its position or deem it significant enough to transmit to the Corps, and independent experts found it significantly flawed. Moreover, despite the soil survey, the Corps legitimately concluded that the existing turbidity predictions were accurate. It was not arbitrary and capricious for the Corps to find that the information which was new and accurate was not significant and that the information which was significant was not new or accurate.

[The opinions below are published at 16 ELR 20475 and 20826 and 18 ELR 20321 and 20033. A related opinion by the Supreme Court appears at 19 ELR 20743.]

Counsel for Petitioner
Charles Fried, Lawrence G. Wallace, Jeffrey Minear
Office of the Solicitor General
U.S. Department of Justice, Washington DC 20530
(202) 633-2217

Counsel for Respondents
Neil S. Kagan
300 Willamette Bldg., 534 SW Third Ave., Portland OR 97204
(503) 223-4396