Opposition Brief — Roanoke River Basin Ass'n v. Hudson

3) law 22 1992

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No. 91-848 L ee nue peel

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1991

ROANOKE RIVER BASIN ASSOCIATION

AND STATE OF NorRTH CAROLINA, PETITIONERS

Vv.

RONALD E. HUDSON,

NORFOLK DISTRICT ENGINEER, AND

City Or NORFOLK BEACH, VIRGINIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

ROBERT L. KLARQUIST

J. CAROL WILLIAMS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Army Corps of Engineers was required

by the Nationa! Environmental Policy Act to prepare an

environmental impact statement before issuing a permit

to the City of Virginia Beach to construct a water

supply pipeline from Lake Gaston.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bowman Transportation, Inc. v. Arkansas-Best Freight

Mg NE RPE, MPR COOP DD scecescccnceseoscsenesersnsrecseseors

City of Stoughton v. EPA, 858 F.2d 747 (D.C. Cir. 1988)

Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988), cert.

CE ,

Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971)..............::::::00e

Foundation for North American Wild Sheep v. United

ee De ee), ee

Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986) ..............0......:.

LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) ................

McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317

sl centbassbbiebistsaneneseeetebudasasescresensvnnssess

North Carolina Environmental Policy Institute v. EPA, 881

I I iscesevivnbsnsecosnosssatounsosbssisonsetsonnees

Pension Benefit Guaranty Corp. v. UTV Corp., 110 S. Ct. 2668

aa ihc ncenktbosssensadevvarenseissavtsesscetsossessentenns

Robertson v. Methow Valley Citizens Council, 490 U.S. 332

MN niinadckcixchevrapetnssigessensvsaseeteasiengeiebsnabesaces

Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973)....00000000..08.

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981)

Sierra Club v. United States Forest Service, 843 F.2d 1190

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Small Refiner Lead Phase-Down Task Force v. EPA, 705

I aks csesiseneakerenencasssucsesesvestesnsseesesee

South Carolina ex rel. Tindal v. Block, 717 F.2d 874 (4th

Cir. 1983), cert. denied, 465 U.S. 1080 (1984) ....0000000..

(III)

Page

IV

Cases—Continued:

Steamboaters v. FERC, 759 F.2d 1382 (9th Cir. 1985)..........

United States Lines, Inc. v. Federal Maritime Comm’‘n, 584

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Constitution, statutes and regulations:

U.S. Const.Amend. V (Due Process Clause)..............0........

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

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National Environmental Policy Act, 42 U.S.C. 4321

et seq.:

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Rivers and Harbors Appropriation Act of 1899, § 10, 33

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Jn the Supreme Court of the Giited States

OCTOBER TERM, 1991

No. 91-848

ROANOKE RIVER BASIN ASSOCIATION

AND STATE OF NORTH CAROLINA, PETITIONERS

Vv.

RONALD E.. HUDSON,

NORFOLK DISTRICT E\NGINEER, AND

City OF NORFOLK BEACH, VIRGINIA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

28a) is reported at 940 F.2d 58. The opinions of the

district court (Pet. App. 29a-73a, 75a-152a) are

reported at 731 F. Supp. 1261 and 665 F. Supp. 428. ~

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on July 3, 1991. The petition for rehearing was denied

on August 20, 1991. The petition for a writ of

certiorari was filed on November 18, 1991. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Section 102 of the National Environmental

Policy Act (NEPA) requires federal agencies to

prepare an environmental impact statement (EIS) for

all federal actions significantly affecting the quality

of the human environment. 42 U.S.C. 4332. Under

regulations implementing NEPA promulgated by the

Council on Environmental Quality (CEQ), the agency

ordinarily prepares an environmental assessment

(KA) to evaluate whether a project will have an effect

that is significant enough to warrant preparation of

an EIS. 40 C.F.R. 1501.4(a) and (b); 40 C.F.R.

1508.9(a)(1). If, on the basis of the EA, the agency de-

termines that an EIS is not required, it then prepares

a finding of no significant impact (FONSI), 40 C.F-.R.

1501.4(c), which must be made available to the public.

40 C.F.R. 1501.4(e)(1).

This case arises from the Army Corps of

Engineers’ decision to issue a permit to the City of

Virginia Beach, Virginia, allowing the construction

of a water intake facility and pipeline from Lake

Gaston in southwestern Virginia on the North

Carolina border, and the execution of a contract for

the storage of water in Kerr Reservoir, upstream of

Lake Gaston. Pet. App. 75a. Petitioners challenged

the Army Corps of Engineers’ decision to issue a

permit for the Virginia Beach pipeline on the ground,

inter alia, that the Corps violated the National

3

Environmental Policy Act (NEPA), 42 U.S.C. 4332,

by not preparing an EIS on the project.

2. The Roanoke River, whose tributaries arise

primarily in the Appalachian Mountains of Virginia,

flows southeast across the North Carolina border to

Albermarle Sound. Pet. App. 78a-79a. River flow

levels are regulated through a series of dams and

reservoirs. The John H. Kerr Reservoir flows into

Lake Gaston, which, in turn, empties into the

Roanoke River. Jd. at 79a.

Every spring, striped bass migrate up the Roanoke

River to spawn. Pet. App. 112a-113a. The Corps, oper-

ating in cooperation with other entities, augments

the flow of the Roanoke River during the spawning

period in order to maintain a fixed minimum level on

the river gauge at Weldon, N.C., where the striped

bass come to spawn. /d. at 118a-114a.

On July 15, 1983, the Norfolk, Virginia, District

Engineer of the Corps of Engineers received from

Virginia Beach an application for a permit under

Section 10 of the Rivers and Harbors Appropriation

Act of 1899, 33 U.S.C. 4038, and Section 404 of the

Clean Water Act, 33 U.S.C 1344. Virginia Beach

sought permission to construct a water intake

structure and pipeline to draw off water from Lake

zaston for the City’s use. Pet. App. 7a-8a. In October

1983, after holding three public meetings attended by

approximately 6,000 people, the Norfolk District

Kingineer issued for public comment a draft environ-

mental assessment (EA) and preliminary finding of no

significant impact (FONSI). /d. at 80a-81la. A final EA

and FONSI were issued in December 1983. In

January 1984, the decision was made to grant the

permit. At the same time, a statement of findings

4

addressing comments that had been received on the

EKA and FONSI was also released. /d. at 81a.'

3. The State of North Carolina then filed suit in the

Eastern District of North Carolina against various

officials of the Corps of Engineers and the

Department of the Army, alleging violations of a

number of federal laws, including NEPA, in connec-

tion with the Lake Gaston pipeline permits. Pet. App.

2la-48a, 45a-70a. Petitioner Roanoke River Basin

Association, eight counties in North Carolina, and

four counties in Virginia, were permitted to

intervene as plaintiffs, and the City of Virginia Beach

was permitted to intervene as a party defendant. See

Pet. 14-15; Pet. App. 83a.

In July 1987, the district court upheld the Corps’

decision against petitioners’ challenges on all but two

grounds. The district court remanded the matter to

the Corps (1) to “make an independent assessment of

the effects of the proposed project on striped bass to

determine whether the preparation of an EIS is

required or whether any mitigative measures are

necessary; and, (2) [aJs part of its public interest

review, [to] make a determination of the extent of ©

' At the same time, the Wilmington, N.C., District Army

Corps of Engineers was considering a request from Virginia

Beach to enter into a contract pursuant to the Water Supply

Act of 1958. Pet. App. 81a. This contract would reallocate to

Virginia Beach 10,200 acre-feet of water storage space in

the Kerr Reservoir which the city could release from Kerr

Reservoir into Lake Gaston to offset the withdrawals through

the pipeline from Lake Gaston. /d. at 8la-82a. The

Wilmington District Engineer adopted the EA prepared by the

Norfolk District Engineer and, on the basis of that EA,

determined that an EIS was not required for entering into the

contract. The contract was approved by the Assistant

Secretary of the Army for Civil Works on January 30,

1984. Ibid.

a |

5

Virginia Beach’s water needs.” Pet. App. 153a-154a;

see also id. at 120a-123a, 134a-136a.

4. On remand, the Corps conducted a 17-month

investigation of those issues. In June 1988, the

Norfolk District Engineer issued a _ draft

Supplemental Environmental Assessment (SEA) and

FONSI for public comment. C.A. App. 1066. The SEA

analyzed the decade-long decline in the Roanoke

River’s striped bass population, stating that, while

flow in the river had some influence on juvenile

recruitment, there was no evidence that flow patterns

had anything to do with the post-1976 collapse in

striped bass recruitment. It concluded that the deple-

tion was the result of overfishing. Jd. at 1080.

The SEA also found that, once every seven years,

the Lake Gaston pipeline project might cause a loss of

the last day of the period of augmented flow for

striped bass spawning. C.A. App. 1071. It noted that

the City could use its water storage capacity in the

Kerr Reservoir “to ensure that [the pipeline] project

would not cause any effect on stream flow during the

striped bass spawning season.” /d. at 1080. However,

it concluded that “[e]ven if this storage were not

used, it does not appear that the loss of the last day of

the augmented spawning season flows every seven

years due to the City’s project would have any

detectable effect, much less any significant effect, on

striped bass spawning in the Roanoke River.” /bid.

In December 1988, following a review of the com-

ments, the Norfolk District Engineer issued a final

SEA, C.A. App. 1805, Supplemental Statement of

Findings, id at 1829, and a revised Finding of No

Significant Impact, id. at 1847. The Wilmington

District Engineer adopted the Norfolk District SEA

and issued its own FONSI. Z/d. at 1852. In his

Supplemental Statement of Findings, the Norfolk

6

District Engineer stated that there was no indication

that the project would have any impact on striped

bass. /d. at 1838. The Engineer decided, as a

precaution, to modify the City’s permit to require

that its additional storage in Kerr Reservoir be used

to enhance flow during the period of the striped bass

spawning so as to prevent “the loss of any augmented

spawning flow days which would otherwise be caused

by the City’s withdrawal.” [bid.

5. The district court upheld the Corps’ decision on

remand based on the supplemental record. Pet. App.

74a. The court of appeals affirmed. /d. at la-28a. The

court of appeals noted that “[aJn EIS must be

prepared for any ‘major Federal action significantly

affecting the quality of the human environment,’ ”? id.

at lla (quoting 42 U.S.C. 4332), but explained that,

“liJf a mitigation condition eliminates all significant

environmental effects, no EIS is required.” Pet. App.

lla. After considering each of petitioners’ objections

to the Corps’ analysis of the record, the court of

appeals concluded that the Corps correctly

determined that no EIS was required in this case. /d.

at lla-28a. The court held that there was adequate

support in the record for the Corps’ conclusion that

the City’s pipeline project would have no significant

effect on striped bass, and that the “mitigation

condition would eliminate the causes of the

controversy.” Id. at 13a.

ARGUMENT

The court of appeals carefully reviewed the

extensive administrative record in this case and held

that the Corps of Engineers “complied with all appro-

* The court stated that “(t}he Corps has assumed that the

project is a major federal action, and we shall defer to this

determination.” Pet. App. Ila.

cane eam a

7

priate statutory provisions” in issuing the permit at

issue. Pet. App. 6a. That decision, which is not in

conflict with the decisions of this Court or any other

court of appeals, does not merit further review.

1. a. Petitioners argue (Pet. 26-29) that the court of

appeals erred in upholding the Corps’ decision to

approve the Lake Gaston project because the Corps

did not make the mitigation condition imposed on the

City’s permit available for public comment. No court

has held that modifications to a proposed action made

in response to a draft EA must be made available for

public comment and, thus, there is no conflict on this

issue.

An environmental assessment is not a document

required by the terms of NEPA. These assessments

are provided for by agency regulations as a device to

help the agency decide whether the triggering event

for NEPA—the existence of a proposal for “major

Federal action significantly affecting the quality of

the human environment”—has occurred. Only if a

project is determined to have a significant environ-

mental impact does NEPA require the agency to

prepare an EIS and circulate it for public comment in

draft form before issuing it in final form. See 42

U.S.C. 4332(2)(C).

The requirement that an EA be prepared is set

forth in regulations of the Council on Environmental

Quality (CEQ). 40 C.F.R. 1500.1 et seq. If, on the basis

of the EA, the agency determines not to prepare an

KIS, the agency is directed to prepare a finding of no

significant impact and make that document available

to the public. 40 C.F.R. 1501.4(e). However, these

regulations do not require circulation of an EA—or

any part of it—for public comment before the

assessment is finalized or before a decision is made

8

whether to prepare an EIS or to issue a finding of no

significant impact. 40 C.F.R. 1501.3-1508.9.

In this case, the Corps did more than the regula-

tions required and issued the environmental

documents in draft form for public comment. The

Corps imposed a mitigation condition on the City’s

permit in response to comments on the draft. There

was no requirement, either in NEPA or in any of the

regulations, that the modification be circulated for

public comment before the final EA incorporating

that condition was finalized. Even if there were,

however, the Corps would have complied with it. The

proposal to use the City’s enhanced storage capacity

in the Kerr Reservoir to maintain spawning period

flows was described in detail in a draft SEA that was

made available to the public in June 1988. See C.A.

App. 1065, 1071; Pet. App. 19a.

% The Corps has issued its own regulations to implement

NEPA for its regulatory programs. 33 C.F.R. Pt. 325, App.

B. These regulations do not require that an EA be circulated

for public comment. See 33 C.F.R. 325.7. Regulations

governing the Corps’ Civil Works Program require that a

draft EA and FONSI be circulated for public comment in

certain instances, but that regulation does not apply here.

See 33 C.F.R. 230.11.

4 Indeed, even in response to comments on an EIS—which

the CEQ regulations require the agency to elicit on every

draft—an agency may properly “(mJodify[] alternatives,

including the proposed action” without eliciting a further

round of comments on the modification. 40 C.F.R.

1503.4(a)(1). In addition, where an agency is involved in

notice and comment rulemaking under the Administrative

Procedure Act, 5 U.S.C. 553, it may normally modify

proposed regulations in response to comments without

circulating the modification for more comments. Cily of

Stoughton v. EPA, 858 F.2d 747, 751, 753 (D.C. Cir.

1988).

9

b. Petitioners err in arguing (Pet. 26-31) that the

court of appeals should not have upheld the Corps’

approval of the Lake Gaston project because, contrary

to case law in the Ninth Circuit, the Corps failed to

explain how the permit condition would mitigate the

impact of the project.

When an agency finds that an EIS is not required

because certain conditions mitigate what otherwise

might be significant environmental effects, the

agency must explain how the measures will reduce

the project’s impact. But this merely follows from the

requirement that the EA “[b]riefly provide sufficient

evidence and analysis for determining whether to

prepare an [EIS] or a finding of no significant

impact.” 40 C.F.R. 1508.9(a)(1). The Ninth Circuit

cases cited by petitioners (Pet. 27) hold no more. See

LaF lamme v. FERC, 852 F.2d 389, 399 (9th Cir. 1988)

(agency failed to explain how the license conditions

would mitigate the adverse environmental conse-

quences); Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.

1986) (agency provided no explanation of how project

modifications would mitigate possible environmental

effects); Steamboaters v. FERC, 759 F.2d 1382, 1392-

1393 (9th Cir. 1985) (agency did not prepare EA and

failed adequately to explain its finding of no

significant impact).

In this case, the Corps found that, even if the City

were not required to release water from its water

storage in the Kerr Reservoir to restore any lost

flow days, the project would still result in only one

lost flow day every seven years. The Corps

considered this effect to be insignificant for purposes

of NEPA. Thus, measures to mitigate an otherwise

significant impact were unnecessary, because there

was no finding of significant impact to begin with.

Nonetheless, the Corps imposed a condition that

10

would mitigate any possible effect of the project on

the striped bass population, and discussed in the SEA

how the requirement would accomplish that purpose.

C.A. App. 1810. The court of appeals found this expla-

nation to be adequate. Pet. App. 15a-20a. Petitioners

fail to explain how the court misapplied the standard

set by the pertinent CEQ regulation, which requires

only that an EA “[b]riefly provide sufficient evidence

and analysis” for a determination that a project’s

environmental effects will not be significant enough

to warrant preparation of an EIS.®

2. Petitioners argue (Pet. 31-37) that the court of

appeals’ holding conflicts with Bowman Trans-

portation, Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S. 281, 288 n.4 (1974), because the court of

appeals allowed the Corps to “shield[] crucial

information until after it published its final decision.”

Pet. 32. The implication is that the Corps withheld

documents that were available to it when it published

its draft SEA and FONSI for comment in June 1988.

5 Even in the context of an EIS, this Court has held that

mitigation measures need only be discussed to the extent

necessary to ensure that environmental consequences have

been fairly evaluated. Robertson v. Methow Valley Citizens

Council, 490 U.S. 3382, 352-353 (1989). And, even in an

EIS, “NEPA does not require a fully developed plan detailing

what steps will be taken to mitigate adverse environmental

impacts.” 490 U.S. at 359. In upholding the Corps’ decision

here, the court of appeals, at a minimum, complied with the

standard set in that case.

In contending that the Corps’ explanation of the mitigation

condition was inadequate, petitioners seek to rely on

comments submitted by parties to this case after the Corps

made its final decision to approve the modified permit. See

Pet. 29-31. As the City of Virginia Beach points out in its

brief in opposition to the petition, at 26-28, those

comments are not part of the administrative record in this

case, and thus provide no basis for questioning the court of

appeals’ decision to uphold the permit.

11

In fact, the documents to which petitioners refer, see

Pet. 32-33, were prepared in response to comments on

the draft SEA and FONSI, and thus were not made

public until after the latter documents were prepared.

C.A. App. 1675, 1857.

In any event, the court of appeals’ decision does not

conflict with the decision in Bowman Transpor-

tation. That case involved a failure to permit

comment in the context of a formal adjudication

conducted under the APA. See 5 U.S.C. 554, 556-557.

As this Court later held in Pension Benefit Guaranty

Corp. v. LTV Corp., 110 S. Ct. 2668, 2681 (1990), the

procedural requirements imposed in Bowman apply

only in the context of “formal adjudication pursuant *

* * to the trial-type procedures set forth in §§ 5, 7, and

8 of the APA.” Those Sections contain specific

requirements for notice and opportunity for comment

that go far beyond those imposed by NEPA or the

regulations applicable to this case. 110 S. Ct. at 2680-

2681. There is no requirement in NEPA, the CEQ

regulations, or the pertinent Corps NEPA

regulations that every document an agency considers

in reaching a finding of no significant impact be made

available to the public. In fact, CEQ regulations

require only that the finding of no significant impact,

not the EA, be made publicly available, 42 C.F-.R.

1501.4(e)(1), and the Corps regulations require no

12

more. See 33 C.F.R. Pt. 325, App. B.® And, as in LTV

Corp., this is not a case where the Due Process

Clause requires additional procedures, and petition-

ers do not suggest that it is. In the absence of a

specific statutory or regulatory requirement, the

failure to follow more elaborate procedures, where

“the Due Process Clause itself does not require them

* * * is therefore not unlawful.” 110 S. Ct. at 2681.’

6 Petitioners cite 33 C.F.R. 325.3(a)(13) in support of

their claim that the Corps’ regulations vest in the public the

right to all information available to the Corps prior to its

final decision. Pet. 36-37. This regulation governs the

issuance of Department of the Army permits generally and is

not a part of the agency’s NEPA regulations, contrary to

petitioners’ suggestion. Compare 33 C.F.R. Pt. 325 with 33

C.F.R. Pt. 325, App. B. Moreover, no court has held that

these regulations require the agency to supply the public

with all documents it develops in response to comments after

the close of the comment period.

7 With the exception of Ely v. Velde, 451 F.2d 1130,

1138 (4th Cir. 1971)—in which the court found that the

agency completely failed to comply with the procedural

requirements of NEPA—the courts of appeals cases cited by

petitioners (Pet. 34 n.11) in their discussion of document

disclosure involve either due process claims or specific

procedural requirements found in other statutes: see North

Carolina Environmental Policy Institute v. EPA, 881 F.2d

1250, 1258 (4th Cir. 1989) (proscription under APA of

ex parte proceedings in connection with adjudication of a

State’s authority to administer a hazardous waste program);

South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 885

(4th Cir. 1983) (Secretary of Agriculture held to have

complied with APA notice requirements in imposing milk

price supports), cert. denied, 465 U.S. 1080 (1984);

Sierra Club v. Costle, 657 F.2d 298, 318-336 (D.C. Cir.

1981) (procedures to be followed by EPA in preparing

Economic Impact Statement under the Clean Air Act); United

States Lines, Inc. v. Federal Maritime Comm ’n, 584 F.2d

519, 534 (D.C. Cir. 1978) (requirement in informal

adjudication that agency inform interested parties of the

13

3. Petitioners argue (Pet. 38-41) that, in not requir-

ing the Corps to provide a complete analysis of the

assumptions underlying the computer model used by

the Corps in assessing the environmental effects of

the pipeline, the court of appeals’ ruling is contrary

to decisions of the D.C. Circuit. However, none of the

cases cited by petitioners (Pet. 38 n.14) is on point:

they do not arise under NEPA, nor do they address

the standards that apply to the analysis of technical

models that are found in an EA or that are the basis of

a finding of no significant impact.*

Petitioners also contend (Pet. 40) that the Corps

should not have waited until the end of the comment

period to disclose the computer model. Petitioners

claim that, in rejecting their objections to late

disclosure because they failed to demonstrate

prejudice from the delay, the court reached a decision

in conflict with Small Refiner Lead Phase-Down

Task Force v. EPA, 705 F.2d 506, 540-541 (D.C. Cir.

1983). To the contrary, Small Refiner is entirely

consistent with the court of appeals’ ruling. As the

D.C. Circuit explained in McLouth Steel Products

Corp. v. Thomas, 838 F.2d 1317, 1324 (1988) (emphasis

omitted), Small Refiner “put[s] th{e] burden on the

challenger where the agency merely fail{s] to provide

proper access to some supplemental study or studies

basis for its decision); McLouth Steel Products Corp. v.

Thomas, 888 F.2d 1317, 1324 (D.C. Cir. 1988) (agency

“completely failed” to comply with APA notice and comment

requirements in promulgating hazardous waste regulations

under the Resource Conservation and Recovery Act).

® Although Ely v. Velde, 451 F.2d 1130, 1138-1139

(4th Cir. 1971), see Pet. 38-39, arose under NEPA, it does

not support petitioners’ argument. In that case, the agency

had not prepared an EIS or an EA, and the decision does not

address the use of predictive models.

14

that partially undergirded its rule.” In Small Refiner,

which dealt with EPA rulemaking under the Clean

Air Act, the court held that it is “incumbent upon a

petitioner objecting to the agency’s late submission

of documents to indicate with ‘reasonable specificity’

what portions of the documents it objects to and how

it might have responded if given the opportunity.” 705

F.2d at 540-541. The court also said that the

petitioners must show that their comments would

likely have made a difference had they been allowed to

respond. Jd. at 541. The court of appeals here, in

essence, applied this standard and found that

petitioners did not satisfy these requirements. Pet.

App. 24a-25a. The court of appeals’ decision is thus in

full accord with decisions of the D.C. Circuit.

4. Finally, petitioners contend (Pet. 42-54) that the

court of appeals erred in applying CEQ regulations

for evaluating whether a_ proposed action

“significantly affect[s] the quality of the human envi-

ronment.” Under CEQ regulations, the word

“significantly” requires consideration of both

context and intensity. 40 C.F.R. 1508.27, Ten factors

are listed for evaluating “intensity’—which is a

measure of the “severity of impact.” /bid. Petitioners

argue that the court of appeals’ holding conflicts with

cases in other circuits interpreting three of these

factors: “controversy,” “uncertainty,” and

“cumulative impacts.” However, the court of appeals’

decision is fully consistent with the cases cited by

petitioners (see Pet. 44-54) in which the courts have

assessed these factors.

In deciding whether an action has “significant

impact” for purposes of NEPA, one relevant factor is

“(tlhe degree to which the effects on the quality of

the human environment are likely to be highly con-

troversial.” 40 C.F.R. 1508.27(b)(4). Petitioners err in

15

suggesting that the Ninth Circuit has articulated a

firm rule that an EIS must be prepared whenever

“commenting public agencies and others with exper-

tise in the subject matter conclude that there may be

a significant impact on the environment.” Pet. 44.

Rather, the Ninth Circuit has stated that “[t]he term

‘controversial’ refers ‘to cases where a substantial

dispute exists as to the size, nature, or effect of the

major federal action rather than to the existence of

opposition to a use.’” Foundation for North American

Wild Sheep v. United States, 681 F.2d 1172, 1182 (9th

Cir. 1982), quoting Rucker v. Willis, 484 F.2d 158, 162

(4th Cir. 1973) (emphasis added). See also LaFlamme

v. FERC, 852 F.2d 389, 400-401 (9th Cir. 1988); Sierra

Club v. United States Forest Service, 843 F.2d 1190,

1193 (9th Cir. 1988). The determination of whether a

“substantial dispute” exists, in turn, is made on the

basis of the entire record before the court; moreover,

“controversy” is one of ten factors to be considered in

determining whether a federal action meets the test

of “significance.”

For example, in Foundation for North American

Wild Sheep, in finding that the agency’s decision not

to prepare an EIS was arbitrary and capricious, the

Ninth Circuit did not rely on the presence of contro-

versy alone. The court’s discussion of “controversy”

followed its finding that the agency failed to consider

certain crucial factors (681 F.2d at 1178); that

significant questions were raised in the draft EA that

were ignored or shunted aside by the agency (id. at

1179); and that the mitigation measures were

ineffective to reduce the impacts of the project (id. at

1180). Thus, its finding that the proposals were

“controversial” was merely one factor in support of

the court’s conclusion that the project would have a

16

significant effect on the environment. Jd. at 1180,

1182. Similarly, in LaFlamme v. FERC, 852 F.2d at

401, Sierra Club v. United States Forest Service, 843

F.2d at 1193, and Jones v. Gordon, 792 F.2d 821, 829

(9th Cir. 1986), the decisions do not rest on the mere

expression of disagreement by other agencies; rather,

the courts faulted the agencies’ failure to deal with

the underlying causes of the controversy by ade-

quately addressing the substance of other agencies’

objections. Here, in contrast, the court of appeals

found that the Corps had responded to all significant

objections to the pipeline project by imposing a

mitigation condition that eliminated any possible

adverse effects.

In evaluating the “significance” of a project’s envi-

ronmental impact, an agency must also consider

whether the effects of the proposal are highly uncer-

tain or involve unique or unknown risks. 40 C.F.R.

1508.27(b)(5). Here, the court of appeals did not find

that there was sufficient “uncertainty” to trigger the

requirement for an EIS; that holding does not conflict

with decisions that have applied the same legal stan-

dard in significantly different factual circumstances

and have come to the contrary conclusion. See Pet.

49-50. Similarly, in finding that, on the record in this

case, the Corps adequately evaluated “cumulatively

9 Petitioners also attempt (Pet. 46) to create a conflict

with Conner v. Burford, 848 F.2d 1441, 1450 (9th Cir.

1988), cert. denied, 489 U.S. 1012 (1989), in which the

court stated that an EIS is required “as long as substantial

questions remain regarding the effectiveness of the

mitigation condition.” Here, the court of appeals upheld the

agency’s finding of no significant environmental impact, and

thus no need to prepare an EIS, even in the absence of the

mitigation condition, thus rendering immaterial any

contentions about the effectiveness of the mitigation

condition.

17

significant impacts,” 40 C.F.R. 1508.27(b)(7). see Pet.

App. 22a-24a, the court of appeals’ application of the

“cumulative impacts” standard is fully consistent

with decisions of other courts of appeals that have

concluded, in other settings, that an agency gave

insufficient consideration to a project’s possible cu-

mulative effects. Nor is there any tension between

the court of appeals’ decision and opinions of other ap-

peals courts (see Pet. 52-53) that contain uncon-

troversial statements describing an agency’s general

obligation under the regulations to consider

cumulative impacts.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

ROBERT L. KLARQUIST

J. CAROL WILLIAMS

Altorneys

JANUARY 1992

¥¢ US GOVERNMENT PRINTING OFFICE 1992-~312-324/45275