Oregon Environmental Council v. Kunzman

No. 82-504-RE (D. Or. May 21, 1985)

Upon motion for rehearing after its April 16, 1985 opinion, 15 ELR 20499, the court holds that the environmental impact statement (EIS) clarity regulation is not trivial and applies to material in an EIS's appendix. The court first reaffirms its prior holding that the filing of the EIS was a final, reviewable action, noting that using the indicators of finality proposed by the government would allow spraying to commence without chance for judicial review. The court next holds that violation of 40 C.F.R. § 1502.8, the clarity regulation, was not insubstantial or non-prejudicial. Citing testimony of the chief draftsman of the regulation, the court declares that the regulation was intended to correct a major shortcoming in the implementation of the EIS requirement, and that an EIS must be readable to serve its intended purpose of disclosing and informing. The court finds no support in the case law for defendants' argument that the requirement does not apply to appendices. The government may not avoid the clarity requirement simply by relegating complex but necessary portions of the EIS to appendices. Finally, the court holds that although the main text of the EIS mentions and refers to the worst case analysis, it does not provide sufficient discussion of the worst case to render the flaws of the appendix immaterial.

Counsel are listed at 15 ELR 20499.

[15 ELR 20503]

Redden, J.:

Opinion

This is an ongoing dispute between various environmental groups and the United States Department of Agriculture regarding the sufficiency of an Environmental Impact Statement (EIS) for the eradication and suppression of gypsy moths. The history of this litigation is contained in my Opinion dated April 26, 1985 and will not be repeated here. Suffice it to say that following the most recent trial (which commenced April 16, 1985), I determined that the [15 ELR 20504] worst case analysis (WCA) of the EIS filed March 15, 1985, was inadequate because it did not meet the requirements of 40 C.F.R. § 1502.8.¹

The government now moves the court for a rehearing on the grounds that: 1) the court lacks subject matter jurisdiction to review the EIS; 2) the worst case analysis is contained in an appendix and is therefore not subject to the requirements of 40 C.F.R. § 1502.8; 3) that the WCA is adequately discussed in the main text of the EIS; and, 4) that the understandability requirement of § 1502.8 is trivial and thus a violation of that regulation is insufficient to render an EIS inadequate. I reject each of these contentions and deny defendant's motion.

Discussion

Defendant has continually argued that this court lacks jurisdiction to review the EIS because without specific proposals from individual states there is no final agency decision to proceed with either eradication or suppression projects. I have previously determined that, in this case, the EIS was subject to review once it was filed pursuant to 40 C.F.R. § 1500.3.

Additionally, on April 24, 1985, Secretary of Agriculture John Block declared an emergency in Lane County, Oregon because of gypsy moth in festation, thereby enabling the Department to release $6.7 million to assist Oregon in its eradication program which was set to commence April 28, 1985. This conduct indicates that the filing of the EIS was the final agency action which triggered the review process of the EIS in this court. To wait to review the underlying EIS until all state proposals had been lodged would render the review process at mockery. The spraying programs in many areas would have already taken place before the court was allowed to review the adequacy of the EIS at citizen request. Defendant's motion for a rehearing on the grounds that the court lacked subject matter jurisdiction to review the EIS is denied.

The government argues that my decision to invalidate the EIS for violation of Council on Environmental Quality (CEQ) regulation 1502.8 is incorrect because such deficiency in the EIS amounts to an insubstantial error that prejudices no one. Defendant states that "any failure to use 'plain language' in Appendix F was . . . trivial." Defendant's memorandum at page 12. This argument fails to consider the history and the importance of this regulation, and I soundly reject it.

The CEQ was first authorized to promulgate guidelines for the preparation of impact statements in 1970. Exec. Order No. 11,514, 35 Fed. Reg. 4247, reprinted in 42 U.S.C. § 4321. These guidelines did not have the status of formal agency regulations. However, in 1977 President Carter modified the 1970 Executive Order authorizing the CEQ to adopt formal regulations for the preparation of impact statements. Exec. Order No. 11,990, 42 Fed. Reg. 26967, reprinted in 42 U.S.C. § 4321 app. He then appointed Mr. Nicholas Yost as General Counsel of the CEQ. Mr. Yost's primary responsibility was to implement the President's directive by drafting the regulations.

Mr. Yost testified that prior to drafting the regulations the CEQ held open-ended public hearings which lasted several days. The purpose of the hearings was to determine what kinds of regulations were needed. Many agencies and special interest groups were notified of the pendency of the hearings and invited to participate. After the hearings all of the suggestions which were offered were organized into a 40 page questionnaire and distributed to everyone who testified, as well as to many different interest groups and individuals who had not participated in the hearings process.

After receiving the responses to the questionnaire, the CEQ staff began drafting the regulations. Mr. Yost testified that the regulations were drafted with the intention of correcting as many problems as possible that were brought up during the hearings and in response to the questijonnaire. Mr. Yost stated that the CEQ received widespread complaints that the impact statements were not being used, nor were they usable at all, by the intended readers. The primary reason for this was that the documents had become bulky, hypertechnical and unreadable by lay individuals. Mr. Yost further noted that some of the citizens who voiced this complaint urged that the need to put the documents into language that could be understood by the average person could not be overemphasized.

Section 1502.8 was written to remedy this problem, and force the agencies preparing impact statements to put them in clear, concise language which could be readily understood. Mr. Yost also testified that the regulations were intended to be mandatory, particularly § 1502.8.

It is apparent from Mr. Yost's testimony that § 1502.8 was included in the regulations not as an afterthought or as a trivial addition, but rather as an attempt to correct a major shortcoming of EISs complained of by a widespread majority of those individuals participating in the comment process prior to the promulgation of the regulations. Moreover, basic common sense tells us that in order for a document to be used for its intended purpose, those using it must first be able to read and understand it. Defendant's argument that the readability requirement of § 1502.8 is trivial is without merit.

Defendant also argues that § 1502.8 applies only to the main text of impact statements and not the appendices. Defendant further argues that because the WCA is contained in Appendix F of the EIS, § 1502.8 does not apply to it. Defendant relies on several cases which mention the readability of the main text to support its position. I do not agree. The cases cited by defendant merely state that the EIS challenged was easily read and understood. The courts did not base their holdings on this issue, nor were the comments made in an attempt to distinguish the applicability of § 1502.8 to the main text of an EIS as opposed to appendices. The cases do not state, nor do they hint, that § 1502.8 does not apply to appendices.

More importantly, the worst case analysis set forth in Appendix F is a mandatory portion of this EIS. 40 C.F.R. § 1502.22. The WCA was required to inform the public of the possible environmental consequences of the synthetic pesticides, because of the full effects of these chemicals on the environment are not presently known. If an agency could avoid presenting this information to the public in an understandable manner by simply putting the information in an appendix, then the requirements of § 1502.22 could easily be overcome. Therefore, § 1502.8 does apply to the worst case analysis.

Lastly, defendant argues that the main text of the EIS contains a sufficient discussion of the worst case analysis, and therefore the fact that Appendix F violates § 1502.8 is immaterial. Defendant cites the summary of the EIS and the section on environmental consequences as containing this "extensive discussion."

I reviewed these sections of the EIS once again in order to determine if the material contained therein fully explained the information set out in Appendix F. I find that the discussion of the WCA in those sections does not explain all the health risks and environmental consequences contained in the WCA.

At times the main text merely refers the reader to Appendix F for an explanation of the health and environmental risks, and then does not always refer to a specific page, section or table in Appendix F where the explanation can be found. At other times the "discussions" of worst case scenarios in the main text are actually agency conclusions of what the calculations and analysis of Appendix F indicate. This is insufficient to provide decisionmakers and the public with the necessary information. These individuals are entitled to, and must be provided with, a full discussion of the worst case analysis, not just the agency's interpretation of the data contained in the worst case analysis.

The agency is entitled to state its conclusions after reviewing the available information. However, this does not negate the agency's foremost duty to provide the public with comprehensive information regarding the environmental consequences of the proposed action, and to do so in a readily understandable manner. Thus, the agency's conclusions in the main text with reference to the full discussion in Appendix F is insufficient to fully inform the reader of the associated risks in an understandable manner. Accordingly, defendant's final argument fails.

Conclusion

Defendant's motion for a rehearing is denied. This court had jurisdiction to review the adequacy of the EIS at the time of the trial. Noncompliance with § 1502.8 is not a trivial oversight of a peripheral issue, but rather a serious defect in the EIS. Appendix F is subject to the requirements of § 1502.8, and the mention in the main text of certain information presented in the WCA is insufficient to [15 ELR 20505] fully inform the public of the associated risks and consequences of using synthetic pesticides.

In closing I note that defendant has three obvious courses of action to pursue at this time. It may appeal my decision that the EIS and itsappended WCA must be readable. It may re-write the WCA to be readily understandable by its intended readership. The agency may both appeal and commence a re-write, and likely avoid the annual spraying time panic in the 1986 spraying season. Should the agency elect to re-write, Mr. Yost's testimony sets forth excellent guidelines for their approach. In any event, I have considered and reconsidered all the documents, testimony and arguments brought before me in this action with extreme caution, and have reached my decision.

1. Section 1502.8 reads:

Environmental impact statements shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements, which will be based upon analysis and supporting data from the natural and social sciences and the environmental design arts.