CEQ's "Worst Case Analysis" Rule for EISs: "Reasonable" Speculation or Crystal Ball Inquiry?

Frances L. McChesney

Editors' Summary: Early this year, the Fifth Circuit, in Sierra Club v. Sigler, became the first court of appeals to interpret CEQ's "worst case" regulation for EISs. The rule requires agencies to perform a worst case analysis where significant scientific uncertainty or gaps in information exist concerning the environmental effects of a project. Because the rule is unique and only recently promulgated, it is unclear what types of projects are included within the rule or how broad the analysis must be. The Fifth Circuit found that the Corps of Engineers' deepwater port project in Galveston, Texas, which created the possibility of a major oil spill from a supertanker in a large estuary, was "precisely the type of situation" requiring such an analysis. The court's thorough analysis of the rule provides useful guidance for agencies and courts. While the rule may still prove difficult to implement, the court suggested that judicial review will not be as rigorous as review of other parts of an EIS.

[13 ELR 10069]

The National Environmental Policy Act (NEPA)¹ has often been referred to as an environmental full disclosure law.² This label is partly due to the § 102(2)(C) requirement that agencies must discuss all significant environmental effects in environmental impact statements (EISs).In implementing NEPA, federal agencies often must decide how or even whether to consider the environmental impacts of a project where considerable scientific uncertainty exists. NEPA is silent on the issue. As a result, the courts have developed a "common law" of NEPA addressing such questions as how probing the inquiry must be,³ whether remote impacts need be addressed,⁴ and whether the disclosure of competing scientific views is necessary.⁵ The thrust of these decisions is that while the unavailability of scientific information need not halt government action, NEPA requires the full public disclosure of uncertainties as well as reasonable speculation about the consequences and the probability of their occurence. Against this background of sometimes inconsistent case law, the Council on Environmental Quality (CEQ) promulgated regulations implementing NEPA which specifically required agencies to consider uncertainty in their decisions.Where important or essential information is unknown or where scientific uncertainty exists, the regulations require agencies to disclose the uncertainty, and perform a "worst case" analysis, where appropriate, analyzing the environmental effects of a low probability/catastrophic event and to indicate the probability of such an event.⁶

Early this year, in Sierra Club v. Sigler,⁷ the Fifth Circuit interpreted CEQ's worst case regulation. The decision is the first attempt by a court of appeals to address the rule.⁸ In addition, the decision, which involved an EIS for the construction of a deepwater port in Galveston, Texas through a large estuary, provides a perfect example of a situation where agencies should be required to perform a worst case analysis. If, as is likely, the rule proves difficult to implement, the decision's historical overview of the rule and its explanation of terminology will be useful guides for the agencies in implementing the rule. The Fifth Circuit's decision also provides some relief for such agencies in complying with it because the court suggested that judicial review of a worst case analysis can not be as rigorous as the review of other parts of an EIS.

Scientific Uncertainty and NEPA

NEPA is quintessentially a prospective statute; it requires agencies to look into the future to make informal guesses about the eventual consequences of proposed actions. But because knowledge of environmental sciences fundamental to decisions made under NEPA is incomplete, agencies and the courts face difficult choices concerning the treatment to be given unknown or uncertain environmental impacts. The case law makes it clear, however, that the agencies must press on nonetheless. The D.C. Circuit, in Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission (SIPI)⁹ was the first [13 ELR 10070] court to emphasize NEPA's inherently predictive nature. When confronted with the Atomic Energy Commission's argument that it need not prepare an EIS on the environmental effects of its liquid metal fast breeder reactor program, the court pointed out that

One of the functions of a NEPA statement is to indicate the extent to which environmental effects are essentially unknown. It must be remembered that the basic thrust of an agency's responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as "crystal ball inquiry." "The statute must be construed in the light of reason of it is not to demand what is, fairly speaking, not meaningfully possible …" But implicit in this rule of reason is the overriding statutory duty of compliance with impact statement procedures to the "fullest extent possible."¹⁰

The rule of reason established in SIPI, however, does not imply that NEPA requires a "crystal ball inquiry."¹¹ On the contary, agencies need not address those consequences of federal action that are "remote" or extremely unlikely to occur.¹²

While SIPI established that NEPA is inherently speculative, it did not establish exactly how agencies are to consider the environmental effects of high risk activities. Agencies commonly confront actions where the potential consequences would be highly damaging to the environment. Examples of such consequences include a nuclear reactor meltdown, an oil spill in a marine sanctuary, or a toxic chemical spill. In New York v. Department of Transportation,¹³ the court reviewed Department of Transportation (DOT) regulations concerning the transportation of spent nuclear reactor fuel. The court rejected DOT's evaluation of the possible public risk and impacts from an accident releasing radioactive wastes onto the highway on the grounds that DOT considered only the overall risk of an accident instead of distinguishing between high probability/low consequence risks and low probability/high consequence risks.¹⁴ The court explained that the agency must separate theanalysis of the consequences of the event from their probability. In other words, the agency must first indicate how the action would affect the human environment and must reveal uncertainty and unknown harms. It then must assess the probability of such an event.

In Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee III),¹⁵ the D.C. Circuit further explored the duty of agencies to weigh significant environmental risks in their decisionmaking process. The court invalidated for the second time the Nuclear Regulatory Commission's (NRC's) "S-3 Table," a generic rule dictating how nuclear reactor licensing decisions take into account the environmental impacts associated will all stages of the nuclear fuel cycle, including the long-term handling and storage of nuclear wastes. The court concluded that the S-3 Table's zero-release assumption, i.e., the assumption that no radiological effluents will be released into the biosphere once the wastes are permanently stored, represents a finding that underground nuclear waste disposal entails no substantial risk. However, the record indicated the view of many experts¹⁶ that long term waste disposal is surrounded by substantial scientific uncertainty. The court ruled that the zero-release figure violated NEPA's mandate to disclose uncertainty and significant risks.¹⁷ Furthermore, the court continued, the agency must consider in its decisionmaking process the environmental costs associated with significant risks. But, in this case, the NRC failed to consider such costs. First the use of the zero-release assumption prevented the licensing boards from considering the uncertainties concerning the integrity of a permanent repository and whether such a repository will be developed. And second, while the NRC can assess generic costs in a generic rulemaking it must "factor its assessment into ultimate decisions to license plants."¹⁸ Where the NRC has not factored in the uncertainties generically, it cannot prevent the licensing board from doing so.¹⁹

When CEQ developed its NEPA regulations in 1978, it experimented with a rational approach for the agencies to use in considering scientific uncertainty. The first part of CEQ's "worst case" rule provides that if "there are gaps in relevant information or scientific uncertainty, the agency shall always make clear that such information is lacking or that uncertainty exists."²⁰ Thus, the rule is in accord with SIPI, which required full disclosure of uncertainty. Furthermore, if the unknown information is essential to a reasoned decision and the "costs of obtaining it are not exorbitant," the agency must acquire the information.²¹

[13 ELR 10071]

The worst case rule also added a major innovation. Section 1502.22(b) of the regulations provides that if the unknown information is essential to a reasoned decision yet the costs of obtaining it are exorbitant²² or the means of obtaining it are beyond the state of the art²³ the agency must perform a "worst case" analysis before it may proceed with the proposed action. Also, in order to properly evaluate the importance of these worst cases it must indicate their probability. This, the rule clarifies and follows the case law that says that agencies may proceed in the face of uncertainty, but to fulfill NEPA's mandate for full disclosure, they must analuze the full spectrum of consequences that might result. Furthermore, in addition to analyzing the environmental effects of the hypothetical "worst case," i.e. low probability/high consequence actions, the rule requires the agency to indicate the probability of its occurrence.²⁴ The effect of the rule is to "cause agencies to consider these potential consequences when acting on the basis of scientific uncertainty or gaps in available information,"²⁵ but by indicating their likelihood it will avoid undue emphasis on the disclosure of the worst case consequences.

Sierra Club v. Sigler

After two and one half years of agency review under NEPA, the Army Corps of Engineers issued five permits under the Federal Water Pollution Control Act²⁶ and the Rivers and Harbors Act²⁷ authorizing the private construction of an onshore deepwater port and crude oil terminal at Galveston, Texas. The entrance to the port is Galveston Bay, which has served for many years as a commercial waterway for crude oil tankers. These tankers average 50,000 deadweight tons (dwt), but a few tankers are as large as 150,000 dwt. With the completion of the project, very large crude carriers (VLCCs) of up to 320,000 dwt would be able to enter the bay. The project would also increase traffic through the bay by providing terminal access to deep-draft bulk commodity vessels unrelated to the transport of oil.

The deepwater port project sparked considerable opposition primarily because it would be located in one of the country's largest estuaries, which provides critical habitat for fish and shellfish as well as the primary wintering area for millions of migratory birds. The controversy has focused on the effects of a major oil spill into the bay's environmentally sensitive waters if a VLCC should lose its cargo.

The Sierra Club and four other environmental groups challenged the adequacy of the final EIS for the project and the issuance of the permits. Specifically, plaintiffs asserted that the EIS failed to consider the environmental consequences of a major VLCC-related oil spill since the Corps had failed to perform a "worst case" analysis hypothesizing a massive oil spill. The district court rejected the claims.²⁸ It ruled that the worst case analysis is only required if the information in the EIS otherwise is insufficient to permit a reasoned evaluation and decision. In other words, the court stated, the analysis must "materially add to the decisionmaker's awareness of 'the spectrum of consequences that may result from [the] agency decision ….'"²⁹ While it agreed that a worst case analysis is "somewhat speculative," the court ruled that in this case there was not enough evidence to show that the analysis would be more than "guesswork."³⁰

In Sigler the Fifth Circuit reversed.³¹ Initially, it addressed the critical question whether the Corps was required to comply with CEQ's regulations at all. At the time the EIS was completed, CEQ's advisory guidelines were in effect, but agencies were encouraged to voluntarily comply with the new regulations before they became effective.³² The Corps chose to proceed under the regulations, but argued later that judicial review should proceed under the advisory guidelines. Noting that the case authority is divided,³³ the court nevertheless chose to hold the Corps to the regulations. In the court's view, to hold an agency to procedures it followed is logical and better serves the goals of NEPA by preventing the agency from escaping judicial review by disclaiming the procedures after the fact.

With that question answered, the court considered whether the Corps had complied with the regulations, in particular with the worst case analysis requirement. It first found that the regulation was valid. Although the literal language of NEPA does not require such analysis, the court was persuaded by the case law and the legislative history of NEPA that the requirement is "not beyond the statutory minima of NEPA."³⁴

Furthermore, the court declared, CEQ's regulations are binding on the court and its interpretation is due substantial deference. Therefore, it accepted CEQ's explanation that the EIS should disclose scientific uncertainty or gaps in information and should consider the spectrum of the consequences of the project, including "low probability/catastrophic impact event[s]." In this case, the court ruled, the regulation was triggered because a total cargo loss from VLCC involves "important" unknown information "beyond the state of the art," and therefore fell within the second part of the regulation.³⁵

In so holding, the court rejected the district court's conclusion that no worst case analysis was required for [13 ELR 10072] the remote and speculative consequences of an oil spill. First, the Fifth Circuit explained, the regulation does not use remoteness as a criterion; remoteness is addressed by indicating "the probability or improbability of [an impact's] occurrence"³⁶ in the worst case analysis. Second, the court pointed out that the district court's interpretation that such an analysis would, in this case, be mere "guesswork" based on "uninformed speculation and conjecture" reads the regulation out of existence. To the contrary, the court stated, the case, as the Sierra Club suggested, "presents precisely the type of situation for which the worst case regulation was designed."³⁷ All parties agreed that a total cargo loss could occur and cause catastrophic environmental damage, but yet no one can predict precisely the likelihood and consequences of such a spill. The analysis would be somewhat speculative, but not unreasonably so.

The court also held the EIS deficient under NEPA because it contained a "skewed" cost-benefit analysis that stressed the economic benefits while ignoring environmental costs.³⁸ Because the EIS was deficient, the court also found that the permit decision was "tainted"³⁹ and remanded the decision to the Corps for reconsideration of the permits after it reworked the EIS.

The Worst Case Rule Applied

As the first court of appeals decision to interpret CEQ's worst case regulation, Sierra Club v. Sigler clarifies a number of questions. It establishes the rule's legal validity and reemphasizes that courts owe substantial deference to CEQ's interpretation of the regulations. But more importantly, because the decision involved what may prove to be a typical situation for applying the rule, it sets an example for agencies and other courts.

The first step for the court, and of course crucial to plaintiffs' case,⁴⁰ was whether the Corps' actions were to be reviewed for compliance with the CEQ regulations. A number of courts have considered whether an agency should be held to compliance with the regulations although the EIS was prepared prior to their effective date. The diverse rulings include Puerto Rico v. Muskie,⁴¹ which held that CEQ has no authority to issue the regulations, National Center for Preservation Law v. Landrieu,⁴² which held that the regulations did not apply to the agency action because the agency did not voluntarily adhere to them, and North Slope Borough v. Andrus,⁴³ which held that despite the fact that the agency chose to follow the regulations, it would not be held to them because they were not yet in effect when the EIS was filed. The rule followed by the Fifth Circuit in Sigler makes the most sense. If an agency chooses to rely on certain standards to justify a decision, it is only fair that they be held to them in all circumstances. With NEPA, which has been called an "essentially procedural" statute,⁴⁴ it is especially important to hold agencies to procedures they chose to follow.

As to the application of the worst case regulation, it is no surprise that the district court in Sigler had difficulty with it. While prior case law required some analysis of uncertainty, the analysis the worst case rule requires is unique. The district court had concluded that since the total cargo loss of a supertanker was so unlikely, it was not necessary to do a worst case analysis. The Fifth Circuit realized that the rule requires the agency to address separately the consequences of a project and the probability of the occurrence of those consequences. The purpose of the worst case analysis is to fulfill the requirement of NEPA to disclose all known environmental effects. The purpose of the probability analysis is to reveal the likelihood of such a catastrophe in order to have the proper perspective in making a decision on the project. Even if an event is unlikely to occur, the rule requires the analysis if the project involves significant risks of severe harm.

Agencies and proponents of projects are understandably opposed to the worst case analysis regulation; it provides opponents of projects with an officially prescribed "horror story" to take to the public. In addition, because of the nature of the analysis, it is difficult to determine its scope and the type of projects that require such an analysis. Probably the most difficult problem is to decide what is the "worst case" for a project. In Sigler, the court ruled that the total cargo loss by a supertanker was a perfect example of a worst case. The event would produce significant adverse environmental impacts, it was important because it was at the heart of the controversy, and the effects were beyond the "state of the art" within the meaning of § 1502.22(b)(2). But how far must the analysis go? The court suggested that in this case the Corps must go beyond its 24-hour dispersion model⁴⁵ [13 ELR 10073] based on known information on tides and currents in the bay. But should the agency analyze the effects of two supertankers colliding in a heavy storm during the primary breeding season of migratory birds? Or, for example, is a nuclear power plant meltdown during the night the worst case, or is it a meltdown on a summer Saturday with prevailing winds heading for the beach in an area of high population density? Sigler does not answer these questions. However, NEPA case law suggests that agencies have always had to be somewhat creative in making predictions about the future. The D.C. Circuit, in Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission (Vermont Yankee I),⁴⁶ explained:

The possibility that improved technology may be developed during the 40-year life span of a reactor does not render consideration of environmental issues too speculative …. NEPA's requirement for forecasting environmental consequences far into the future implies the need for predictions based on existing technology and those developments which can be extrapolated from it.⁴⁷

While the analysis may prove difficult to perform, Sigler pointed out that

[t]he preparation of a worst case analysis is not intended to and therefore cannot be held to the exacting standards imposed by the trial court because it goes beyond existing knowledge and methods of acquiring knowledge. There must, of course, be a base of information upon which to project past these limits, but the projections themselves cannot be subjected to the same rigorous scrutiny other information in the EIS must endure.⁴⁸

In other words, the rule of reason of SIPI applies to the worst case analysis.

Another question not answered in Sigler is what types of projects require such an analysis. Clearly it should not usually be required for the construction of a federally funded housing project or a highway. But, the federal district court in Oregon recently required the Forest Service to perform a worst case analysis for a herbicide spraying program.⁴⁹ And the NRC recently indicated that in the future, EISs for nuclear power plants must consider the impacts of a Class 9 accident (meltdown)⁵⁰ — a likely candidate for a worst case analysis. It seems reasonable to assume that the rule will apply to unprecedented activities — outer continental shelf oil and gas projects in arctic regions, to high-technology projects — nuclear power plants, or to large-scale projects conducted in particularly vulnerable areas — supertankers in an estuary.

Conclusion

The legislative history of NEPA indicates Congress' particular concern that new technologies "are far outstripping man's capacity to understand."⁵¹ The worst case rule brings this concern into focus. CEQ's worst case analysis regulation has been highly praised because it imposes an affirmative duty on agencies to go beyond currently available information, to develop new information in an area where current knowledge is lacking, and it prevents agencies from hiding behind ignorance of a project's true environmental ramifications.⁵² However, during the time the regulations have been in effect, CEQ has observed that EISs rarely address the worst case regulation.⁵³ The Fifth Circuit's decision may thus be a critical first step in ensuring that agencies take the rule more seriously.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

2. See, e.g., Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

3. See infra note 9.

4. See infra note 12.

5. See infra note 16.

6. See Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18032 (1981).

7. 13 ELR 20210 (5th Cir. Jan. 20, 1983), rev'g 532 F. Supp. 1222, 12 ELR 20381 (S.D. Tex. 1982).

8. The decision also addressed two other issues important to NEPA's implementation, which will not be discussed in this comment. The court ruled in favor of plaintiffs' claims that the EIS's cost-benefit analysis was "skewed" because it failed to reveal the environmental costs associated with the project. The court therefore invalidated the Corps of Engineers' issuance of permits for the project. See infra notes 38, 39. In addition, the court addressed in a footnote, 13 ELR at 20211 n.3, the legality of the use of contractors to prepare the EIS.

9. 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973), rev'g 2 ELR 20641 (D.D.C. 1972). In support of SIPI's conclusion that EISs must be speculative but that agencies need not "foresee the unforeseeable," see Natural Resources Defense Council, Inc. v. NRC, 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976) (predictions based on existing technology required), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978); Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069, 4 ELR 20605 (D.C. Cir. 1974); Rhode Island Committee on Energy v. General Services Administration, 397 F. Supp. 41, 5 ELR 20685 (D.R.I. 1975), aff'd, 561 F.2d 397, 7 ELR 20629 (1st Cir. 1977).

10. 481 F.2d at 1092, 3 ELR at 20531-32.

11. See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972).

12. See Trout Unlimited v. Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974) (need not discuss remote and highly speculative consequences); Swain v. Brinegar, 378 F. Supp. 753, 4 ELR 20836 (S.D. Ill. 1974) (exhaustive examination of every conceivable minor environmental effect is not required by NEPA); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 2 ELR 20536 (N.D. Miss. 1972) (agency need not disclose "all known possible environmental consequences").

13. 12 ELR 20461 (S.D.N.Y. Feb. 19, 1982), amended, 539 F. Supp. 1237, 12 ELR 20864 (S.D.N.Y. May 5, 1982).

14. See Carolina Environmental Study Group v. U.S., 510 F.2d 796, 799, 5 ELR 20181, 20182 (D.C. Cir. 1975) (agencies must consider "the probabilities as well as the consequences of certain occurrences in assessing [an action's] environmental impact").

15. 685 F.2d 459, 12 ELR 20465 (D.C. Cir. 1982), cert. granted, Nos. 82-524, -545, -551, 51 U.S.L.W. 3419 (U.S. Nov. 29, 1982).

16. NEPA also requires the agency to discloe competing scientific views. See, e.g., Committee for Nuclear Responsibility, Inc. v. Seaborg, 1 ELR 20469 (D.C. Cir. 1971); Environmental Defense Fund, Inc. v. Hoffmann, 421 F. Supp. 1083, 7 ELR 20152 (E.D. Ark. 1976); Bucks County Board of Commissioners v. Interstate Energy Co., 403 F. Supp. 805, 6 ELR 20406 (E.D. Pg. 1975); Cape Henry Bird Club v. Laird, 359 F. Supp. 404, 3 ELR 20571 (E.D. Va. 1973), aff'd, 484 F.2d 453, 3 ELR 20786 (4th Cir. 1973).

17. The court explained that environmental risks are significant if the probability is high that damage will occur even if the damage is not too severe, or if the probability is low, but the damage would be severe. 685 F.2d at 478 n.100, 12 ELR at 20475 n.100.

18. 685 F.2d at 484, 12 ELR at 20478.

19. The court noted "emphatically" that it did not hold that the Commission may not proceed in the face of uncertainty, only that it must factor in uncertainties in making licensing decisions. 685 F.2d at 485 n.134, 12 ELR at 20478 n.134.

20. 40 C.F.R. § 1502.22, ELR REG. 46023.

21. 40 C.F.R. § 1502.22(a), ELR REG. 46023.

22. 40 C.F.R. § 1502.22(b)(1), ELR REG. 46023.

23. 40 C.F.R. § 1502.22(b)(2), ELR REG. 46023.

24. Id.

25. See Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18032 (1981).

26. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

27. 33 U.S.C. §§ 401-466n, ELR STAT. 41141.

28. Sierra Club v. Sigler, 532 F. Supp. 1222, 12 ELR 20381 (S.D. Tex. 1982). The court also rejected claims that (1) the discussion of alternatives was insufficient, (2) the cost-benefit analysis was flawed, (3) the discussion of cumulative impacts was deficient, (4) the Corps violated the interagency consultation requirement of NEPA, and (5) the Corps violated the Fish and Wildlife Coordination Act. Id.

29. 532 F. Supp. at 1233, 12 ELR at 20385.

30. 532 F. Supp. at 1234, 12 ELR at 20386.

31. 13 ELR 20210 (5th Cir. Jan. 20, 1983).

32. 40 C.F.R. pts. 1500-1508, ELR REG. 46001. See 40 C.F.R. § 1506.12(a), ELR REG. 46030.

33. 13 ELR at 20213-14.

34. The district court had held that the worst case analysis was not required because the information was not essential to an informed decision. It was, therefore, beyond the statutory minima of NEPA. The Fifth Circuit did not agree. 13 ELR at 20215-16.

35. 40 C.F.R. § 1502.22(b)(2), ELR STAT. 46023.

36. 13 ELR at 20217.

37. 13 ELR at 20218.

38. The court explained that the EIS was deficient because while NEPA does not require a formal monetary analysis, it does mandate an informal weighing of the economic, technical, and environmental costs and benefits of an action. The Corps' EIS, however, failed to adequately reveal environmental costs. 13 ELR at 20218-20.

39. In so ruling, the court distinguished its earlier decision, South Louisiana Environmental Council, Inc. v. Sand (SLEC), 629 F.2d 1005 (5th Cir. 1980), on which the district court had relied. First, because in Sigler plaintiffs challenged the exclusion of environmental costs, which it noted were "hardly 'tangential' to the concerns of NEPA," 629 F.2d at 1014, as was the economic data selection in SLEC. Second, because in SLEC the project had already been authorized by Congress, separation of powers considerations precluded judicial review of Congress' decision. The correct legal standard was to review the Corps' actions for compliance with its own permit regulations. In conducting the required "public interest" analysis, the Corps must weigh a multitude of environmental and non-environemental factors. However, the court ruled, the failure to consider environmental costs while emphasizing economic benefits in the EIS, prevented the Corps from the "careful weighing of all relevant factors" necessary to balance the factors as required by the public interest review regulations. See 13 ELR at 20222.

40. The advisory guidelines did not require a worst case analysis.

41. 507 F. Supp. 1035, 1057, 11 ELR 20424, 20434 (D.P.R. 1981).

42. 496 F. Supp. 716, 10 ELR 20820 (D.S.C. 1980), aff'd, 635 F.2d 324, 11 ELR 20168 (4th Cir. 1980).

43. 486 F. Supp. 332, 10 ELR 20054 (D.D.C. 1979), rev'd in part on other grounds, 642 F.2d 589, 10 ELR 20832 (D.C. Cir. 1980).

44. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (Vermont Yankee II), 435 U.S. 519, 8 ELR 20288 (1978).

45. The district court may also have been incorrect in upholding the use of the 24-hour dispersion model. Courts have held that the agency must look at the effects of a project as long as they are likely to be significant. See Potomac Alliance v. NRC, 12 ELR 20937 (D.C. Cir. July 30, 1982); ConcernedAbout Trident v. Rumsfeld, 555 F.2d 817, 6 ELR 20787 (D.C. Cir. 1976).

46. 547 F.2d 633, 6 ELR 20615 (D.C. Cir. 1976), rev'd on other grounds sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978).

47. 547 F.2d at 637, 6 ELR at 20617.

48. 13 ELR at 20218.

49. Southern Oregon Citizens Against Toxic Sprays v. Watt, 13 ELR 20174 (D. Or. Sept. 9, 1982), reh'g denied, 13 ELR 20176 (D. Or. Oct. 20, 1982). In a more recent ruling, the court denied attorneys fees under the Equal Access to Justice Act. Noting that CEQ's worst case regulation is "convoluted" and "difficult to interpret," the court ruled that because there is little case law interpreting the rule, the government was not unreasonable in omitting the analysis. Southern Oregon Citizens Against Toxic Sprays v. Watt, No. 79-1098 FR, 13 ELR 20374 (D. Or. Feb. 3, 1983).

50. See 45 Fed. Reg. 40,101 (1980).

51. See SIPI, 481 F.2d at 1090, 3 ELR at 20530.

52. See Comment, New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation, 9 ELR 10005, 10008 (1979).

53. See CEQ Talking Points on CEQ's Oversight of Agency Compliance with NEPA Regulations (1980).