Opposition Brief — Village of Los Ranchos de Albuquerque v. Stone

Supreme Court, U.9,

FILED

boat

No. 91-1798 4UL 13 1999

OFFICE OF THE CLERK

In the Supreme Court of the Cited States

OCTOBER TERM, 1992

VILLAGE OF LGS RANCHOS DE ALBUQUERQUE, ET AL.,

PETITIONERS

v.

MICHAEL P.W. STONE, SECRETARY OF THE ARMY,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROGER CLEGG

Acting Assistant Attorney General

ROBERT L. KLARQUIST

ELLEN J. DURKEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the Administrative Procedure Act’s

“arbitrary and capricious” standard, 5 U.S.C. 706(2)(A),

governs review of a federal agency’s decision not to pre-

pare an environmental impact statement pursuant to the

National Environmental Policy Act of 1969, 42 U.S.C.

4321 et seq.

(I)

TABLE OF CONTENTS

Page

asi scaviddebbdiesnnsaniin cotmavasxbicereissenveasadsaseenanene |

en ca ad a acicaanub genmansoundssuneewetaaredeoannennaanian |

ET asain cs oniehiods Sad eguldebbenanabssundanedevbestinuravanchensuias 2

aia dia ela acsdexianvanesmeussdnvasssdaeneceiakentnaavineransiscen 6

Conclusion ............ arti daks haladbebdienddedaenciuseaniondadesamensansomibenes 11

TABLE OF AUTHORITIES

Cases:

FPC vy. Transcontinental Gas Pipe Line Corp., 423

onic rack inepande avvedicbonncdancheesekbecernands 5

Florida Power & Light Co. v. Lorion, 470 U.S. 729

Fie. AC AE OO a ORS eee aN 5, 9

Goos v. ICC, 911 F.2d 1283 (8th Cir. 1990) ................ 9, 11

- Marsh v. Oregon Natural Resources Council, 490 U.S.

sa sacauagisasivouncnarnibigh 5, 6, 7, 8, 10, 11

North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533

I i wdc occvcannaabepliacahennasesinkvoumniconikianieinenst 9

Providence Road Community Ass'n v. EPA, 683 F.2d 80

IN fi coin sc css canvavebenenateshsanaecusinsavchwacescosintiessa 10

River Road Alliance, Inc. v. Corps of Engineers of

United States Army, 764 F.2d 445 (7th Cir. 1985), cert.

GU, ST TEE, BOGD CADBED cccesesesssecsscsesvccccnnssssseeses, 10

Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975) ............ 10

Sabine River Authority v. United States Department of

the Interior, 951 F.2d 669 (5th Cir. 1992), petitions for

cert. pending, Nos. 91-1927 & 91-1929 2.0.0.0... 8-9, 11

Sierra Club v. Lujan, 949 F.2d 362 (10th Cir. 1991).. 11

Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir.

IT rae alls Lie As isd snd nenancentinsnanalusensiphekeasnaneeennaclehss 10

Town of Orangetown v. Gorsuch, 718 F.2d 29 (2d Cir.

1983), cert. denied, 465 U.S. 1099 (1984) ..........0...... 10

(III)

IV

(Cases—Continued: Page

Village of Los Ranchos de Albuquerque v. Barnhart, 906

F.2d 1477 (10th Cir. 1990), cert. denied, 111 S. Ct. 1017

CREE bc chdebatbtudvavhassahcerasvacctrapssmighuiaats yeuetuanesnaneiaehenid 2,3

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seq 4

ee ac cnesncssakeccdanioecceiminacaele AAS ae OTE NP IDS 7

Clean Water Act, 33 U.S.C. 1251 ef seq. ..................cc0000es 4

BS EITC. TROD wicccccovecccscvevens. kate evesnaukks sence sauce 2.3

Fish and Wildlife Coordination Act, 16 U.S.C. 661

We Oo yarcdcai casing ieusiatswernneegrdenaacedsemascertics ee ee 4

: National Environmental Policy Act of 1969, 42 U.S.C.

4321 et seq.:

© SURE), SB U.BA,. GRE) veccncciccceccceccccecessscess £28

National Historic Preservation Act, 16 U.S.C. 470

Ee anenone aps ae ; 4

40 CLFLR.:

I cnn Lc ahauabauunsabaukebaaenganmannuandes 3

I oR a a ee eae 3

Jn the Supreme Court of the United States

OCTOBER TERM, 1992

No. 91-1798

VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, ET AL.,

PETITIONERS

v.

MICHAEL P.W. STONE, SECRETARY OF THE ARMY,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 8a-18a, is

unreported, but the judgment is noted at 947 F.2d 955

(Table). The court of appeals’ supplemental order on

petition for rehearing and suggestion of rehearing en

banc, Pet. App. la-7a, is reported at 956 F.2d 970. The

decisions of the district court, Pet. App. 19a-87a, are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 24, 1991. The petition for rehearing was denied

(1)

2

on February 11, 1992. Pet. App. la-8a. The petition for a

writ of certiorari was filed on May 11, 1992. The

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

1254(1).

STATEMENT

Under Section 102(2)(C) of the National Environmen-

tal Policy Act of 1969 (NEPA), 42 U.S.C. 4882(2)(C),

when a federal agency engages in “major Federal actions

significantly affecting the quality of the human

environment,” it must prepare an environmental impact

statement (EIS) concerning each such action. This case

arises from a determination by the U.S. Army Corps of

Engineers (the Corps) that granting the City of

Albuquerque, New Mexico (the City), a permit under the

Clean Water Act, 33 U.S.C. 1344(a), to build a bridge

across the Rio Grande River will not have a significant

impact on the human environment.

1. In 1965, consultants prepared a transportation

study proposing several new river crossings to connect

the eastern and western portions of the City. Pet. App.

3la; Gov’t C.A. Br. 6. In 1980, the Urban Transportation

Planning Policy Board of the Middle Rio Grande Council

of Governments determined that the preferred alterna-

tives consisted of a four-lane bridge at the Paseo del

Norte site and a two-lane bridge at the Montano Road

site. In 1980, the New Mexico State Highway Depart-

ment, with the assistance of the Federal Highway Ad-

ministration (F HWA), prepared a full-scale environmen-

tal impact statement for the project. The record of

decision approving the final EIS was issued in January

1984.!. In 1983 and 1985, the voters approved bond

| The sufficiency of that EIS was challenged in Village of Los

Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477 (0th Cir.

1990), cert. denied, 111 S. Ct. 1017 (1991). The court of appeals,

however, held that the construction of the Montano Bridge as such

obligations that the City earmarked for the construction

of the Montano Bridge. Pet. App. 3la-32a; Gov’t C.A. Br.

6-7.

In 1986, the City applied to the Army Corps of Engi-

neers for a permit under the Clean Water Act, 33 U.S.C.

1344(a), authorizing temporary placement of fill material

in the river during construction of the Montano Bridge.

To determine whether the issuance of the permit would

“significantly affect[] the quality of the human environ-

ment” under NEPA, 42 U.S.C 4332(2)(C), the Corps pre-

pared an environmental assessment (KA).2 After solic-

iting public comments, conducting a public hearing, and

obtaining an independent evaluation of the Montano

Bridge project, the Corps issued a “finding of no signifi-

cant impact,” 40 C.F.R. 1508.13, supported by an EA. The

Corps accordingly declined to prepare an EIS, and it is-

sued the City a Clean Water Act permit on July 6, 1987,

with special conditions to mitigate environmental im-

pacts. Pet. App. 3la-32a; Gov’t C.A. Br. 7-8.

2. On August 29, 1988, petitioners filed this action in

the District Court for the District of New Mexico, alleg-

ing, inter alia, that the Corps violated NEPA by not

is not a “major Federal action” requiring compliance with NEPA.

The court rejected claims that the construction was a “federal ac-

tion” because (1) the project was eligible for federal assistance; (2)

the FHWA had helped prepare and approved the EIS; and (3) the

project was improperly segmented from another project that was a

major federal action. 906 F.2d at 1480-1484. This case, by contrast,

involves the Army Corps of Engineers’ issuance of a permit under

the Clean Water Act, 33 U.S.C. 1344(a), and we do not contest that

the issuance of such a permit is a federal action.

* An environmental assessment is a concise public document

that contains sufficient information to determine whether to pre-

pare an EIS or make a finding of no significant impact. See 40

C.F.R. 1508.9.

preparing an EIS.8) Following a three-day evidentiary

hearing,! the district court issued a 39-page order and

opinion denying petitioners’ motion for a preliminary in-

junction. Pet. App. 380a-69a; see Gov’t C.A. Br. 10. The

district court reviewed the Corps’ action to determine (1)

whether the Corps had taken a “hard look” at the envi-

ronmental consequences of its action and made a “good

faith, objective effort” to comply with NEPA, and (2)

whether its decision was adequately supported by the

record. Pet. App. 39a. Based on its review of the eviden-

tiary hearing and the administrative record, id. at 39a-

62a, the court found that the Corps’ decision to grant the

permit without preparing an EIS was neither “arbitrary

and capricious” nor “unreasonable.” Jd. at 62a. On

* Petitioners also named as defendants the City and officials of

the Department of the Interior. In addition to their NEPA claim,

petitioners alleged violations of the Clean Water Act, 33 U.S.C.

1251 et seq., the Fish and Wildlife Coordination Act, 16 U.S.C. 661

et seq., the National Historic Preservation Act, 16 U.S.C. 470 et

seq., and the Administrative Procedure Act, 5 U.S.C. 701 et seq.

Pet. 4. The only issue before this Court is petitioners’ claim that

NEPA required the Corps to prepare an EIS before issuing the

Clean Water Act permit.

4 On May 8, 1989, the district court dismissed the claims against

the City. Pet. App. 70a-78a. As part of the same order, the court

also permitted petitioners to supplement the administrative record

with evidence regarding the impact of the project on the fractur-

ing of the bosque (woods) adjacent to the river crossing. Pet. App.

78a-83a.

° The district court found that the Corps had adequately con-

sidered the effects of the bridge construction on the bosque, the

noise and air quality impacts of the project, its secondary land use

impacts, the effect of construction on historical resources, and the

impact of the construction on a local residential neighborhood. Pet.

App. 39a-42a, 44a-47a. Although the court found that the Corps

had not adequately considered secondary traffic flows, the court

determined that the secondary traffic was not within the Corps’ ju-

risdiction under the Clean Water Act and any error was harmless.

5

November 30, 1989, the district court granted the federal

respondents’ motion for summary judgment, reasoning

that petitioners had not submitted new evidence since

the hearing that would warrant a different result. Jd. at

20a-25a.°

3. The court of appeals affirmed. Pet. App. 8a-18a.

Relying on Marsh vy. Oregon Natural Resources

Council, 490 U.S. 3860 (1989), the court evaluated the

Corps’ decision not to prepare an EIS under the APA’s

“arbitrary and capricious” standard. Pet. App. 12a-13a.

In undertaking that evaluation, the court explained, a

reviewing court must determine “whether the [agency’s]

decision was based on a consideration of the relevant

factors and whether there has been a clear error of judg-

ment.” /d. at 12a (quoting Marsh, 490 U.S. at 378).

Although acknowledging the existence of disputes

Id. at 42a-44a, 47a-48a, 57a. The court also held that the Corps did

not err in refusing to consider the impact of the permit in conjunc-

tion with other road improvements because the City was going to

undertake those improvements irrespective of the bridge construc-

tion. Jd. at 54a-57a. The court rejected petitioners’ claim that

the Corps failed to conduct an adequate study of alternatives to the

project, because none of petitioners’ suggested alternatives was

feasible. /d. at 48a-5la. Finally, the court held that the Corps

had not acted in an arbitrary and capricious manner when it

refused to designate the affected area as a wetland, and that the

Corps had sufficiently consulted with, and acted on the

recommendations of, the Fish and Wildlife Service. Jd. at 58a-

Gla.

° Petitioners proffered new evidence relating to the “public

nuisance” issue; the court determined, however, that consideration

of that evidence went beyond the court’s order allowing petitioners

to supplement the administrative record only with respect to the

fracturing of the bosque. Pet. App. 24a. The court noted that in

general it is improper to review administrative action based on ev-

idence outside the administrative record. Ibid. (citing Florida

Power & Light Co. v. Lorion, 470 U.S. 729 (1985), and FPC y.

Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331 (1976)).

6

concerning the project’s impact and the availability of

alternatives, the court of appeals “agree[d] with the

district court that there was ample evidence to affirm

the agency’s finding of no significant impact for purposes

of NEPA under the ‘arbitrary or capricious’ standard of

review.” Id. at 13a; see id. at 13a-l5a.

4. On February 11, 1992, the court of appeals granted

rehearing en bane, limited to the issue of the appropriate

standard of review. Pet. App. 3a-4a. It noted that in

Marsh, this Court applied the “arbitrary and capricious”

standard to an agency’s determination not to supplement

an existing EIS. Pet. App. 5a. The en bane court found

it significant that the Court had emphasized that “(t]he

decision whether to prepare a supplemental EIS is

similar to the decision whether to prepare an EIS in the

first instance.” Jd. at 5a (quoting Marsh, 490 U.S. at

374). Hence, the court of appeals overruled prior circuit

precedent applying a “reasonableness” standard of

review and affirmed the judgment of the panel based on

the “arbitrary and capricious” standard prescribed by

this Court in Marsh. Pet. App. 6a-7a.

ARGUMENT

Petitioners contend that the court of appeals erred in

applying the “arbitrary and capricious” standard in re-

viewing the Corps’ decision not to prepare an environ-

mental impact statement. Pet. 9-26. In Marsh v. Oregon

Natural Resources Council, 490 U.S. 360 (1989), how-

ever, this Court made clear that the “arbitrary and

capricious” standard is the proper standard of review of

an agency’s determination that a federal action will not

have a “significant” impact on the environment within

the meaning of NEPA. There is no conflict among the

circuits regarding the applicability of Marsh under the

circumstances presented here. Hence, further review is

unwarranted.

Presa...

7

1. In Marsh, this Court considered the proper

standard of review of an agency’s determination whether

the discovery of new information requires preparation of

a supplemental EIS. 490 U.S. at 374-377. In identifying

the proper standard of judicial review, the Court looked

to the Administrative Procedure Act, 5 U.S.C. 706, and

concluded that the agency’s determination that an EIS

should not be supplemented “is controlled by the

‘arbitrary and capricious’ standard of § 706(2)(A).” See

490 U.S. at 375-376. The Court explicitly rejected the

contention that “the determination whether the new in-

formation suffices to establish a ‘significant’ effect is ei-

ther a question of law or, at a minimum, a question of ul-

timate fact and, as such, ‘deserves no deference’ on re-

view.” 490 U.S. at 376. Rather, the Court reasoned (id.

at 376-377):

The question presented for review in this case is a

classic example of a factual dispute the resolution of

which implicates substantial agency expertise. [The]

claim that the Corps’ decision not to file a second

supplemental EIS should be set aside primarily rests —

on the contentions that the new information under-

mines conclusions contained in the [Final EIS], that

the conclusions contained in the * * * memorandum

and * * * survey [containing the new information]

are accurate, and that the Corps’ expert review of the

new information was incomplete, inconclusive, or in-

accurate. The dispute thus does not turn on the

meaning of the term “significant” or on an applica-

tion of this legal standard to settled facts. Rather,

resolution of this dispute involves primarily issues of

fact. Because analysis of the relevant documents

“requires a high level of technical expertise,” we

must defer to “the informed discretion of the respon-

sible federal agencies.”

8

Accordingly, the Court in Marsh held that “as long as

the Corps’ decision not to supplement the [Final ETS]

was not ‘arbitrary and capricious,’ it should not be set

aside.” Jd. at 377.

Here, the court of appeals, sitting en banc, properly

concluded that the reasoning of Marsh also governs the

proper standard of review of an agency’s decision not to

prepare an EIS in the first instance. Pet. App. 4a-6a.

Petitioners in this case have contested the accuracy,

currency, and completeness of the information upon

which the Corps relied, as well as the validity of the

conclusions that the Corps drew from that information.

See Pet.17-25. Their claims are therefore not

materially different from the contention in Marsh “that

the Corps’ expert review of the new information was

incomplete, inconclusive, or inaccurate,” and that the

new information was sufficiently “significant” to

require a supplemental EIS. See 490 U.S. at 376-377.

Indeed, as the Court in Marsh emphasized, “the decision

whether to prepare a supplemental EIS is similar to the

decision whether to prepare an EIS in the first instance:

If there remains ‘major Federal actio[n] to occur, and if

the new information is sufficient to show that the

remaining action will ‘affec{t] the quality of the human

environment’ in @ significant manner or to a significant

extent not already considered, a supplemental EIS must

be prepared.” Jd. at 374 (quoting 42 U.S.C. 4382(2)(C)).

Consistent with the decision in this case, other courts

of appeals have abandoned their use of a “reasonableness”

standard of review in the aftermath of Marsh and applied

the “arbitrary and capricious” standard to an agency’s

finding of no significant impact. See Sabine River Au-

thority v. United States Department of the Interior, 951

F.2d 669, 677-678 (5th Cir. 1992), petitions for cert. pend-

———————

g

ing, Nos. 91-1927 & 91-1929;? Goos v. ICC, 911 F.2d 1283,

1292 (8th Cir. 1990);8 ef. North Buckhead Civic Ass’n v.

Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990) (rejecting

prior circuit precedent applying a “reasonableness”

standard under NEPA and generally “adopt{ing] the ar-

bitrary and capricious standard when reviewing agency

action in NEPA cases”). As the Fifth Circuit observed,

Marsh governs in the present context because the legal

standard for determining the need for a supplemental

KIS is “essentially the same as the standard for deter-

mining the need for an original EIS.” Sabine, 951 F.2d

at 677 (internal quotation marks omitted). Thus,

petitioners are incorrect in asserting (Pet. 14-15) that

the “arbitrary and capricious” standard applied in Marsh

is inapplicable in the circumstances of this case.

’ Contrary to petitioners’ argument (Pet. 12), Sabine makes

clear that the Fifth Circuit does not apply a less deferential stan-

dard in reviewing an initial, rather than a supplemental, EIS.

Sabine, 951 F.2d at 677-678.

* Although the Eighth Circuit in Goos held that Marsh does not

apply to an agency’s determination that an action is not a “major

Federal action” subject to NEPA, the court made clear that

where, as here, an agency “has * ** prepared an EA and issues a

finding of no significant impact, a reviewing court reviews that

determination under the arbitrary and capricious standard.” Goos,

911 F.2d at 1292.

* Petitioners also claim (Pet. 16) that on a motion for summary

judgment, the district court should have resolved all disputed facts

in favor of petitioners rather than deferring to the agency. That

contention, however, misapprehends the role of a reviewing court

under the APA. Review of agency action is typically based on the

administrative record before the agency, and the reviewing court

is generally not charged with making a de novo inquiry and

reaching its own conclusions about the matters disputed before the

agency. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-

744 (1985). Rather, the court must determine whether the

agency’s disposition of the matters before it was arbitrary and

capricious. As the district court correctly explained in this case:

10

2. Despite the clear reasoning of Marsh, petitioners

rely on court of appeals decisions prior to Marsh to sup-

port their claim that there is a conflict among the cir-

cuits on the proper standard of review. See Pet. 10-14.

To be sure, some courts of appeals that had applied a

“reasonableness” standard prior to Marsh have not had

occasion to revisit the standard of review in light of

Marsh. But petitioners have not cited (and we are un-

aware of) any court of appeals decision that has censid-

ered the question and declined to apply Marsh to an

agency’s decision not to prepare an EIS based on a find-

ing of no significant impact. Because there is .no conflict

among the circuits on the question whether Marsh

requires application of the APA’s “arbitrary and

capricious” standard in this context,'® and because of the

The issue before this Court is not whether the plaintiffs can

point to one or other conflicting fact or opinion in the record.

* * * [T]he record in these types of proceedings will always

contain contradictory opinions. Instead, the issue before the

Court is whether the record before the administrative agency

substantiates that agency’s findings.

Pet. App. 23a (citing Sabin v. Butz, 515 F.2d 1061, 1067 (10th Cir.

1975)).

In addition, even prior to Marsh, several circuits had applied

the “arbitrary and capricious” standard in reviewing such

determinations. See, e.g., River Road Atliance, Inc. v. Corps of

Engineers of United States Army, 764 F.2d 445, 449 (7th Cir. 1985),

cert. denied, 475 U.S. 1055 (1986); Town of Orangetown v. Gor-

such, 718 F.2d 29, 35 (2d Cir. 1983), cert. denied, 465 U.S. 1099

(1984); Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir.

1983); Providence Road Community Ass'n v. EPA, 683 F.2d 80, 82

(4th Cir. 1982). Those courts of appeals are in accord with the

trend of post-Marsh decisions holding that the “arbitrary and

capricious” standard defines the scope of review in this context.

11

clarity with which Marsh spoke to that issue, further

review is unwarranted."

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

r

ROGER CLEGG

Acting Assistant Attorney General

ROBERT L. KLARQUIST

ELLEN J. DURKEE

Attorneys

JULY 1992

'! This Court, moreover, has indicated that “the difference

between the ‘arbitrary and capricious’ and ‘reasonableness’ stan-

dards is not of great pragmatic consequence.” Marsh, 490 U.S. at

377 n.23; accord, Sabine, 951 F.2d at 678 n.2; Sierra Club v. Lujan,

949 F.2d 362, 368 (10th Cir. 1991); Goos, 911 F.2d at 1292 n.6. In

this case, the district court acknowledged the similarity between

the two standards and generally sought to “to assure that, in con-

ducting its investigations or decision-making processes, the agency

* * * [made] a reasoned decision based on an evaluation of the

relevant factors.” Pet. App. 36a. After giving deta’ ed

consideration to petitioners’ specific claims in light of the

administrative record and the evidence submitted at a three-day

hearing, id. at 39a-62a, the district court was unable to find “that

the Corps’ decision to grant the permit was either arbitrary and

capricious or unreasonable.” Jd. at 62a (emphasis added). Thus,

contrary to petitioners’ fact-bound contentions that the Corps

erred in its analysis of particular environmental concerns (see Pet.

17-25), petitioners would not be entitled to relief even if this Court

were to embrace a less deferential standard than the one that the

court of appeals applied in this case.