Opposition Brief — Wetlands Action Network v. United States Army Corps of Engineers

by JUN 5+ 2001

No. 00-1692 : peace or THe CLERE

Jn the Supreme Court of the Gnited States :

WETLANDS ACTION NETWORK, ET AL., PETITIONERS

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

JOHN C. CRUDEN

Acting Assistant Attorney

General

ANDREW MERGEN

ANTHONY HOANG

MARK R. HAAG

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4321 et seg., requires federal

agencies to examine the environmental impacts of

proposed federal actions. Regulations promulgated by

the United States Army Corps of Engineers (Corps)

specify the appropriate scope of NEPA analysis when

the proposed federal action, such as obtaining a permit

to fill federally delineated wetlands, is merely one

component of a larger project that is not otherwise

within the Corps’ regulatory jurisdiction. Under those

regulations, the scope of the NEPA analysis of a

proposed federal action depends upon an examination of

a number of factors, including the “extent of cumulative

Federal control and responsibility” over the entire

project. 33 C.F.R. Pt. 325, App. B § 7(b)(iv). The

question presented is as follows:

Whether the Corps abused its discretion when it

determined that its NEPA analysis of a permit

authorizing the fill of 16 acres of wetlands should be

based on the direct, indirect, and cumulative impacts of

that federal action, rather than on the impacts of the

entire project of which the federal action was only a

small part.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction I

Statement 2 ;

Argument 13

Conclusion 22

TABLE OF AUTHORITIES

Cases: |

Baltimore Gas & Elec. Co. v. Natural Res. Def.

Council, Inc. 462 U.S. 87 (1983) 2

Natural Res. Def. Council, Inc. v. EPA, 859 F.2d

156 (D.C. Cir. 1988) 2

Resources Lid. v. Robertson, 35 F.3d 1300 (9th Cir.

1993) 18

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) 16, 17

Sierra Club v. Forest Serv., 46 F.3d 835 (8th Cir.

1995) 18

Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.

1985) 17, 18

Society Hill Towers Owners’ Ass'n v. Rendell,

210 F.3d 168 (3d Cir. 2000) 19, 20

Sylvester v. Army Corps of Eng’rs, 884 F.2d 394

(9th Cir. 1989) 6

Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519 (1978) .....sccseseesees 3,15

Vieux Carre Prop. Owners v. Pierce, 719 F.2d 1272

(5th Cir. 1983) 20, 21

Statutes and regulations:

Clean Water Act, 33 U.S.C. 1344 (§ 404) 7

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

4321 et seq. 2

42 U.S.C. 4332(2)(C) 2,13

(IIT)

IV

Regulations—Continued: Page

33 C.F.R. Pt. 325, App. B:

Section 7(b) 3, 4, 11, 14,17

Section 7(b)(2) 5

Section 7(b)(3) 5, 12, 14

40 C.F.R.:

Section 1501.3 3

Section 1501.4 3

Section 1501.4(b) 3

Section 1508.7 18

Section 1508.13 3

Section 1508.18 3,14

Section 1508.25 18

52 Fed. Reg. 22,518 (1987) 18

53 Fed. Reg. (1988):

p. 3120 17

p. 3121 18

60 Fed. 20,975 (1995) 7

In the Supreme Court of the Gnited States

No. 00-1692

WETLANDS ACTION NETWORK, ET AL., PETITIONERS

vz.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-35a)

is reported at 222 F.3d 1105. The opinion of the district

court (Pet. App. 39a-92a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 21, 2000. A petition for rehearing was denied

on January 10, 2001 (Pet. App. 38a). On March 30, 2001,

Justice O’Connor extended the time within which to file

a petition for a writ of certiorari to and including May

10, 2001, and the petition was filed on that date. The

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

1254(1).

(1)

2

STATEMENT

This case involves a challenge to a permit issued by

the United States Army Corps of Engineers (Corps)

to Maguire Thomas Partners-Playa Vista (MTP-PV).

The permit authorizes MTP-PV to fill 16.1 acres

of scattered, highly degraded wetlands, and to create a

51-acre freshwater wetland system to mitigate that fill.

That federal action is a component of a much larger

project—MTP-PV’s construction of a multi-phase,

mixed-use development vn a 1000-acre property owned

by MTP-PV. Following extensive consideration, the

Corps determined that an environmental impact state-

ment for the challenged permit was not required under

the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4321 et seqg., and the Corps’ regula-

tions. The court of appeals upheld that determination

as a proper exercise of discretion.

1. NEPA requires federal agencies to examine the

environmental effects of proposed federal actions, and

to inform the public of the environmental concerns that

were considered in the agency’s decisionmaking. Balti-

more Gas & Elec. Co. v. Natural Res. Def. Council,

Inc., 462 U.S. 87, 97 (1983). Among other things,

NEPA requires agencies to prepare an environmental

impact statement (EIS) for any proposal involving a

“major Federal action[] significantly affecting the

quality of the human environment,” and establishes the

requirements of an EIS. 42 U.S.C. 4332(2)(C) (empha-

sis added). “NEPA does not, however, expand the

range of final decisions an agency is authorized to

make,” and “does not expand an agency’s substantive

powers.” Natural Res. Def. Council, Inc. v. EPA, 859

F.2d 156, 169 (D.C. Cir. 1988) (citing additional cases).

3

Accordingly, NEPA does not permit agencies to expand

their regulatory jurisdiction.

The Council on Environmental Quality (CEQ) has

promulgated regulations providing that an agency may

prepare an environmental assessment (EA) to deter-

mine whether a proposed action is likely to have a sig-

nificant impact on the environment. 40 C.F.R. 1501.3,

1501.4. The regulations define “major Federal action”

to include “actions with effects that may be major and

which are potentially subject to Federal control and

responsibility.” 40 C.F.R. 1508.18. If an agency finds

that a proposed action will not have a significant effect

on the quality of the human environment, no EIS is

required. 40 C.F.R. 1501.4(b), 1508.13. A reviewing

court may not substitute its judgment for that of the

agency as to the environmental consequences of a

challenged federal action. Vermont Yankee Nuclear

Power Corp. v. Natural Res. Def. Council, Inc., 435

U.S. 519, 555 (1978). Instead, the agency’s determina-

tion whether to proceed with an EIS must be upheld

unless it is arbitrary and capricious. Jd. at 554-555; Pet.

App. 16a-17a.

The Corps has its own regulations implementing

NEPA, which were approved by CEQ. 33 C.F.R. Pt.

325, App. B § 7(b). In particular, the regulations pro-

vide that, when the activity requiring a permit is

“merely one component of a larger project,” the EA or

EIS should “address the impacts of the specific activity

requiring a [Corps] permit and those portions of the

entire project over which the district engineer has

sufficient control and responsibility to warrant Federal

4

review.” Ibid. (emphasis added).'

In determining whether the degree of federal

“control and responsibility” over a project is sufficient

to require consideration of the environmental impacts

of the entire project, and not just the activity requiring

a permit, the regulations direct tne Corps to consider

the following factors:

(i) Whether or not the regulated activity

comprises “merely a link” in a corridor type project

(e.g., a transportation or utility transmission

project).

(ii) Whether there are aspects of the upland

facility in the immediate vicinity of the regulated

activity which affect the location and configuration

of the regulated activity.

1 33 C.F.R. Part 325, Appendix B § 7(b) provides:

Scope of Analysis. (1) In some situations, a permit appli-

cant may propose to conduct a specific activity requiring a

Department of the Army (DA) permit (e.g., construction of a

pier in a navigable water of the United States) which is merely

one component of a larger project (e.g., construction of an oil

refinery on an upland area). The district engineer should

establish the scope of the NEPA document (e.g., the EA or

EIS) to address the impacts of the specific activity requiring a

DA permit and those portions of the entire project over which

the district engineer has sufficient control and responsibility to

warrant Federal review.

(2) The district engineer is considered to have control and

responsibility for portions of the project beyond the limits of

Corps jurisdiction where the Federal involvement is sufficient

to turn an essentially private action into a Federal action.

These are cases where the environmental consequences of the

larger project are essentially products of the Corps permit

action.

5

(iii) The extent to which the entire project ‘will

be within Corps jurisdiction.

(iv) The extent of cumulative Federal control

and responsibility.

33 C.F.R. Pt. 325, App. B § 7(b)(2).

The Corps’ regulations include examples ‘of the

proper scope of NEPA analysis in various situations.

33 C.F.R. Pt. 325, App. B § 7(b)(3). For instance, tse

regulations state:

If a non-Federal * * * industrial facitity’ is

proposed to be built on an upland site and the only

DA permit requirement relates to a connecting

pipeline, supply loading terminal or fill road, that

pipeline, terminal or fill road permit, in and of itself,

normally would not constitute sufficient overall

Federal involvement with the project to justify

expanding the scope of a Corps NEPA document to

cover upland portions of the facility beyond the

structures in the immediate vicinity of the regulated

activity that would effect the location and configura-

tion of the regulated activity.

Ibid. Similarly, in the case of a 50-mile electric trans-

mission cable crossing a one and one-quarter mile-wide

river that is a navigable water of the United States, the

EA would require the agency to address the impacts of

the specific cable crossing, and not the “origin and

destination of the cable nor its route to and from the

navigable water, except as the route applies to the

location and configuration of the crossing,” because

those features of the project are not “within the control

or responsibility of the Corps.” Ibid.

The Ninth Circuit has upheld the Corps’ regulations

as “strik[ing] an acceptable balance between the needs

6

of NEPA and the Corps’ jurisdictional limitations.”

Sylvester v. Army Corps of Eng’rs, 884 F.2d 394, 399

(9th Cir. 1989). And petitioners have not challenged

those regulations in this case.

2.a. This case involves a 1000-acre parcel of property

known as Playa Vista, which is located in Los Angeles,

California, and contains 186 acres of federally deline-

ated wetlands. Pet. App. 5a-6a. For more than two

decades, MTP-PV has been planning to build a large-

scale, mixed-use development on that property, combin-

ing housing, offices, retail stores, hotels, recreation

areas, and open space in a design intended to reduce

dependence on automobiles. Jbid. The proposed

development has been the subject of close scrutiny by

federal, state, and local regulators, as well as extensive

environmental planning and permitting proceedings.

Id. at 6a & n.4; Gov’t C.A. Br. 8.

MTP-PV proposed to divide the overall project into

three separate phases. Phase I of the project involves

the development of approximately five million square

feet of office space, 13,000 residential units, and retail

and hotel space. Pet. App. 8a n.6. A small part of Phase

I calls for the filling of 16.1 acres of federally delineated

wetlands, and the creation of a 51.1-acre freshwater

wetland system to mitigate the impacts of the project

and provide stormwater management. The wetlands

subject to Phase I have been substantially degraded

from years of heavy industrial and agricultural use.

Eight acres of the wetlands subject to Phase I are

located on 17 isolated patches of land scattered across

the Playa Vista property; the remaining eight acres will

be used to create the freshwater wetland system (for

which four of those acres will be restored to wetlands).

Id. at 6a-7a, 8a. Phase II of the project provides for the

restoration and expansion of a remnant salt marsh,

7

from approximately 160 to 230 acres. Phase I11I—which

recently was combined with the proposed second

phase—calls for the development of a marina and

associated commercial and residential space. Id. at Ta.

The project was divided into those three phases for

purposes of permitting. The permit at issue in this case

governs only the filling of the 16.1 acres of wetlands in

connection with the first phase of the project. At the

time of the lower court proceedings in this case, MTP-

PV had not submitted a permit application for either

the second or the third phases of the project. The

Corps has determined, however, that an EIS will be

required in connection with the permit applications for

those phases (which, as noted, have since been merged

into one). 60 Fed. Reg. 20,975 (1995).

b. In August 1990, MTP-PV applied to the Corps

pursuant to Section 404 of the Clean Water Act,

33 U.S.C. 1344, for a permit to fill the Phase I wetlands.

After MTP-PV submitted an analysis of proposed alter-

natives to filling the wetlands, the Corps publicly

announced its preliminary determination that an EIS

would not be required for the proposed action, and

invited public comment. Numerous members of the

interested public, environmental groups, and pertinent

state and federal resource agencies commented on a

variety of issues in connection with MTP-PV’s permit

application, including the Corps’ compliance with

NEPA. Pet. App. 8a-9a.

In particular, the National Marine Fisheries Service

(NMFS), the United States Fish and Wildlife Service

(FWS), and the United States Environmental Protec-

tion Agency (EPA) (collectively, the “resource agen-

cies”) submitted comments raising certain concerns

about the permit application and project in general.

NMFS expressed concern about the decision to evalu-

4, A A AER ELC ALO LEAL AEE A TS

8

ate the Playa Vista project in three separate phases

and permit applications, and recommended that the

Corps reconsider its preliminary determination that an

EIS was not necessary. The FWS suggested in

conclusory fashion that an EIS was warranted. EPA

did not question the Corps’ preliminary determination

that an EIS was not required. Petitioners did not

submit any comments. Pet. App. 9a.

In 1991, MTP-PV submitted to the Corps a response

to the public comments, along with additional scientific

studies on the proposed development. MTP-PV ex-

plained that an EIS was neither necessary nor appro-

priate because the three project phases had inde-

pendent utility, were at different stages of planning,

and were subject to different governmental jurisdic-

tions. MTP-PV further explained that the wetlands fill.

constituted only a small portion of Phase I. Of the

5,025,000 square feet of office space, the 13,085 dwelling

units, and the retail and hotel space in the proposed

Phase I project, only 80,000 square feet of office space

(less than 1.6 %), only 450 dwelling units (3.4 %), and

none of the hotel and retail space would be built on

federally delineated wetlands. Given the limited scope

of the permitted action—especially relative to the

entire project—MTP-PV asserted that the federal

action for purposes of NEPA should not include the

upland impacts of the Playa Vista project, and thereby

bring the entire project within federal jurisdiction. Pet.

App. 8a n.6, 9a-10a; see 5 Admin. Record (AR) 2118-

2127.

In February 1992, the Corps completed initial drafts

of the permit and EA, and notified the resource

agencies that it intended to issue the permit approving

the filling of 16.1 acres of wetlands as part of Phase I.

After various meetings and exchanges of information

9

between the Corps, MTP-PV, and the resource

agencies, the Corps issued a second notice of intent to

issue the permit with new permit conditions, and the

resource agencies dropped their objections to the

permit. In July 1992, the Corps issued the permit

(including the agreed-upon conditions), along with the

associated EA and finding of no significant impact (or

FONSI). Pet. App. 10a-1la; Gov’t C.A. Br. 8-13 (dis-

cussing permitting process with federal and other

authorities).

ec. The EA contained a discussion of the comments

received by the Corps and the numerous factors con-

sidered by the Corps in deciding whether to approve

the permit, including possible alternatives to the Playa

Vista project; the impacts of the project on water

supplies, aesthetics, traffic and transportation patterns,

energy consumption, and air quality; and other factors.

The EA further discussed secondary and cumulative

effects of the entire project on the surrounding area.

Gov’t C.A. Br. 14. The Corps determined, however,

that “it did not need to include substantial considera-

tion of the development in the uplands area as part of

the NEPA review of [the] permit application because it

found that such development was outside its juris-

diction.” Pet. App. 1la.

The EA explained that MTP-PV’s three-phase ap-

proach to the Playa Vista project was appropriate

because of the independent utility of the project phases

and the large size and multi-faceted nature of the pro-

ject. In addition, the Corps explained that implementa-

tion of the entire project would be staged over several

years and would depend on changing market conditions,

diverse zoning controls, and permit authorizations

required by various local government agencies. The

Corps found that division of the project for permit

10

application purposes would help ensure that the appli-

cation would not be so large as to obscure its individual

components, and would not include future components

that were still in the early planning stages and

therefore not susceptible to meaningful consideration

and comment. Gov’t C.A. Br. 14-15.

The EA further determined that the proposed action

would actually result in a net increase in wetland

values, because, under the permit, 16.1 acres of highly

degraded wetlands would be replaced with 51 acres of

higher-value riparian and wetland habitat. The EA also

found that, even if the Corps denied the permit, the

development of the uplands would likely go forward,

resulting in the isolation and destruction of the wet-

lands while increasing the traffic-related impacts from

the project. The Corps concluded that the proposed

permit action does not have sufficient impacts to

warrant an EIS. Pet. App. 1la-12a; Gov’t C.A. Br. 14.

d. After the permit was issued, “MTP-PV performed

extensive filling, clearing, and grading in the wetlands

in the permit area.” Pet. App. 12a. Many of the wet-

lands covered by the permit have already been filled.

Gov't C.A. Br. 15.

3. In December 1996, more than four years after the

permit was issued and after substantial filling had

taken place, petitioners filed this action, alleging that

the Corps’ issuance of the Phase I permit violated

NEPA.’ Petitioners sought revocation of the permit

and a preliminary and permanent injunction enjoining

construction activity on the site. The district court

denied the request for a preliminary injunction. In June

2 Petitioners raised several additional claims under NEPA and

the Clean Water Act. But petitioners subsequently abandoned

those claims and they are not implicated here.

11

1998, however, the court granted summary judgment

for petitioners. In particular, the court found that the

Corps had violated NEPA by improperly limiting the

scope of its analysis to the impacts of the activities

covered by the permit rather than considering impacts

from the upland development. The district court

invalidated the permit and enjoined MTP-PV from any

further construction activities in the area covered by

the permit, but it denied petitioners’ request for an

injunction against further construction on the upland

portions of the site. The parties filed cross-appeals.

Pet. App. 12a-13a.

4, The court of appeals reversed the district court’s

decision to invalidate the permit and remanded with

instructions to vacate the injunction. Pet. App. 1a-35a.

The court explained at the outset that “[t]he Corps’

decision to prepare an EA rather than an EIS is

reviewed under the APA’s arbitrary and capricious

standard.” Id. at 16a. Because the Corps’ decision to

grant the permit was consistent with both the Corps’

regulations—which petitioners did not challenge—and

the record, the court held that “(t]he Corps’ determina-

tion of the scope of the NEPA review and its issuance

of a FONSI was not arbitrary and capricious.” Id. at

35a.

The court of appeals explained that, under the Corps’

NEPA regulations, “where the activity requiring a

* * * permit is ‘merely one component of a larger

project,” the scope of the Corps’ NEPA analysis

depends upon a multi-factored determination whether

federal “control and responsibility” exists over the

portions of the project not subject to the permit. Pet.

App. 17a (quoting 33 C.F.R. Pt. 325, App. B § 7(b)); see

id. at 17a-19a. The court then concluded that the record

supports the Corps’ determination that the Phase I

12

permit is functionally independent of the rest of the

project, and that the Corps “does not have independent

jurisdiction over the parts of the Phase I development

that do not require the filling of wetlands.” Jd. at 22a.

Indeed, “Phase I encompasses development of approxi-

mately 600 acres, only 16 of which are subject to direct

control by the corps through the permitting process”;

“the project is not financed by federal money”; and

“state and local, not federal, regulations control the

overall design” of the project. bid.

The court of appeals explained that the district

court’s contrary approach would greatly expand federal

jurisdiction over private development projects and

enlarge the Corps’ obligation to review the environ-

mental impacts of such projects in a manner that is

contradicted by the Corps’ regulations:

The linkage that the district court found between

the permitted activity and the specific project

planned is the type of “interdependence” that is

found in any situation where a developer seeks to fill

a wetland as part of a large development project. If

this type of connection alone were sufficient to

require a finding that an entire project falls within

the purview of the Corps’ jurisdiction, the Corps

would have jurisdiction over all such projects

including those which the Corps’ regulations cite as

examples of situations in which the Corps would not

have jurisdiction over the whole project.

Pet. App. 2la (citing 33 C.F.R. Pt. 325, App. B

§ 7(b)(3)).

The court of appeals also rejected the contention that

the potential environmental impacts of Phases II and

III of the Playa Vista project must be considered

together with the potential impacts of the permit

13

pertaining to Phase I in a single NEPA analysis. Pet.

App. 24a-27a. Again, the court emphasized that courts

owe “considerable discretion” to an agency’s determina-

tion whether multiple actions are sufficiently connected

to require that they be examined as part of a single EA

under the CEQ regulations. Jd. at 24a. Moreover, the

court found that “(t]he record supports the Corps’

_ conclusion” that each of the three phases has “inde-

pendent utility,” and they therefore are not “connected

actions” for purposes of the CEQ regulations, id. at 24a-

25a, and that the three phases are not “cumulative”

actions under either the CEQ regulations or Ninth

Circuit precedent. Jd. at 26a.

ARGUMENT

The court of appeals unanimously and correctly

determined that the Corps did not abuse its discretion

in assessing the environmental impacts of the chal- _

lenged permit based on the direct, indirect, and

cumulative impacts of that permit, and not those of the

entire Playa Vista project at large. That determination

is supported by the extensive record in this case and

squares with the scope of NEPA review called for by

the Corps’ regulations, which petitioners have not

challenged. The court of appeals’ fact-bound decision

does not conflict with any decision of this Court or of

any other court of appeals. Further review is not

warranted.

1. The scope of the NEPA analysis undertaken by

the Corps comports with the requirements of NEPA

and its implementing regulations. As discussed above,

NEPA requires an EIS for “major Federal actions

significantly affecting the quality of the human environ-

ment.” 42 U.S.C. 4332(2)(C). The CEQ’s NEPA regula-

tions define “major Federal action” to include “actions

14

with effects that may be major and which are poten-

tially subject to Federal control and responsibility.”

40 C.F.R. 1508.18. Similarly, the Corps’ regulations—

which were reviewed and approved by CEQ—provide

that where the activity requiring a permit is “merely

one component of a larger project,” the EA should

“address the impacts of the specific activity requiring a

[Corps] permit and those portions of the entire project

over which the district engineer has sufficient control

and responsibility to warrant Federal review.”

33 C.F.R. Pt. 325, App. B § 7(b).

Petitioners have not challenged the Corps’ NEPA

regulations and, as the court of appeals concluded, the

record in this case supports the Corps’ determination

that, among other considerations, the lack of federal

control and responsibility over the entire Playa Vista

project justified the Corps’ decision to limit its EA to

the particular federal action at issue—i.e., the permit

allowing the fill of 16.1 acres of wetlands in connection

with Phase I of the project. As the court explained,

“Phase I encompasses development of approximately

600 acres, only 16 of which are subject to direct control

by the corps through the permitting process.” Pet.

App. 22a. At the same time, the Playa Vista project is

not dependent on the permit at issue (and in fact

proceeded without it), the project “is not financed by

federal money,” and “state and local, not federal,

regulations control the overall design” of the project.

Ibid.

The Corps’ regulations give two examples of situa-

tions in which the action requiring a Corps’ permit (e.g.,

building a dock or running a pipeline or power line

across a river) is part of a larger project to be con-

structed on uplands. 33 C.F.R. Pt. 325, App. B § 7(b)(3).

Although the permit activity in those examples would

15

not be justified in the absence of the rest of the project,

the regulations provide that the upland portions of

those projects should not be deemed to be within the

control and responsibility of the Corps for purposes of

establishing the scope of NEPA review. The record in

this case supports the same conclusion. Indeed, as the

court of,appeals explained, if the type of connection

relied upon by petitioners (and the district court) to

establish federal control and responsibility over the

entire Playa Vista project—a permit to fill 16 acres of

wetlands as part of a much larger project—were suffi-

cient to bring the project within the Corps’ purview for

purposes of NEPA, “the Corps would have jurisdiction

over all such projects including those which the Corps’

regulations cite as examples of situations in which the

Corps would not have jurisdiction over the whole

project.” Pet. App. 21a.

More fundamentally, as discussed above, the Corps’

determination that its EA should not extend beyond

the federal activity that is the subject of the Corps’

permit is entitled to substantial deference and is

reviewable only for abuse of discretion. See Vermont

Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 485 U.S. 519, 555 (1978); Pet. App. 16a-

17a. Even if it were possible to second-guess the Corps’

determination on the extensive record in this case, the

court of appeals correctly determined that “the Corps’

decision to limit its review to the specific activity

requiring the permit is not arbitrary or capricious.”

Pet. App. 23a. That fact-bound conclusion does not

warrant further review.®

$ Although the Corps determined that “it did not need to in-

clude substantial consideration of the development in the uplands

area as part of the NEPA review of [the] permit application,” Pet.

16

2. Petitioners contend (Pet. 22) that the court of

appeals’ decision conflicts with Robertson v. Methow

Valley Citizens Council, 490 U.S. 332 (1989), arguing

that Robertson “recognize[s]” that an agency “is re-

quired to look at impacts outside its regulatory juris-

diction when preparing an EIS,” and therefore estab-

lishes that an agency is required to look at impacts

“outside this jurisdiction when determining whether to

prepare an EIS at all.” That contention is without

merit.

Robertson involved the question whether NEPA

requires agencies to include in an EIS a fully developed

plan to mitigate environmental harm, or “worst case”

analysis of potential harm. 490 U.S. at 335-336. There

was no question that the underlying federal action in

that case—the Forest Service’s issuance of a special-

use permit for the operation of a 3900-acre ski resort on

federal lands, id. at 338—was a major federal action

requiring an EIS under NEPA. As a result, Robertson

did not (and could not) decide how an agency should

define the scope of the federal action for purposes of

determining whether an EIS is required at all. With

respect to that issue (7.e., the one presented here), the

Corps’ regulations make clear that the Corps has no

obligation to define its action to include non-federal

actions—such as the construction of the upland portions

App. lla (emphasis added), the Corps’ EA nonetheless discussed

the environmental impacts of the project on water supplies,

aesthetics, traffic and transportation patterns, energy consump-

tion, and air quality, and other factors, as well as the secondary

and cumulative effects of the entire project on the surrounding

area. Gov't C.A. Br. 14. In addition, those portions of the project

that do not fall within federal jurisdiction remain subject to state

and local environmental controls, and have been and will be sub-

jected to regulatory scrutiny.

17

of the development in this case—over which the Corps

lacks “sufficient control and responsibility.” 33 C.F.R.

Pt. 325, App. B § 7(b). As discussed; petitioners donot

challenge those regulations and Robertson itself under-

scores that an agency’s interpretation of its own NEPA

regulations is entitled to considerable deference. 490

USS. at 358-359.

Furthermore, nothing in the court of appeals’

decision (or the Corps’ determination in this case) is

inconsistent with the principle that an agency may be

obliged to consider potential impacts that are beyond

its jurisdiction in deciding whether to prepare an EIS.

Indeed, the Corps’ regulations (33 C.F.R. Pt. 325, App.

B § 7(b)) require the Corps to consider the direct, in-

direct, and cumulative impacts—including extra-juris-

dictional impacts—that would result from its proposed

action: here, the issuance of the permit to fill 16 acres

of degraded wetlands and creation of a 51-acre wetland

system as mitigation. As the court of appeals con-

cluded, the Corps satisfied those requirements in this

case, in accordance with the approach established by its

own regulations. Pet. App. 20a-23a. At the same time,

however, the Corps is not obligated by NEPA or its

implementing regulations to define challenged federal

actions to include the actions of private parties that are

otherwise beyond federal control and responsibility,

and nothing in Robertson is to the contrary.

3. Petitioners allege (Pet. 22-25) that the court of

appeals’ decision also conflicts with the decisions of

other circuits. That contenticn is similarly unavailing.

There is no conflict with Sierra Club v. Marsh, 769

F.2d 868 (1st Cir. 1985). That case was decided three

years before the Corps’ adopted the NEPA regulations

utilized by it in determining the appropriate scope of

the EA challenged in this case. See 53 Fed. Reg. 3120,

18

3121 (1988); 52 Fed. Reg. 22,518 (1987). In addition,

Marsh is factually inapposite. There, the Corps and the

Federal Highway Administration had approved con-

struction of a causeway to, and a deep-water port on, a

previously-undeveloped island in Penobscot Bay,

Maine. The issue was whether the federal agencies

were obliged to consider, as an indirect impact of their

actions, the industrial development that would result

from the causeway and port. The First Circuit an-

swered that question in the affirmative, in part because

those impacts would be caused by the federal actions.

See 769 F.2d at 878 (“[T]he record makes it nearly

impossible to doubt that building the causeway and

port will lead to further development” on the island.)

(emphasis added). In this case, by contrast, the court of

appeals recognized that the upland impacts of the Playa

Vista project could occur—and indeed, were occurring

—even without the permit. Pet. App. 22a.

Nor does the decision below conflict with Sierra Club

v. Forest Service, 46 F.3d 835 (8th Cir. 1995). That case

involved a challenge to the Forest Service’s finding that

certain timber sales in a National Forest would have no

significant environmental impacts, and turned in

relevant part on whether the Forest Service’s analysis

of “connected” or “cumulative” actions was adequate.

Id. at 837-838. The Eighth Circuit, following the Ninth

Circuit’s analysis in an earlier Forest Service case, held

that the pertinent CEQ regulations (40 C.F.R. 1508.7,

1508.25) required the Forest Service to consider the

impacts that anticipated future activities on adjacent

private lands would have on the National Forest lands.

46 F.3d at 839 (citing Resources Ltd. v. Robertson,

35 F.3d 1300 (9th Cir. 1993)).

Petitioners argue (Pet. 24) that Sierra Club “clearly

held that analysis of activities outside the jurisdiction of

19

the federal agency must be considered in determining

whether to prepare an EIS.” Petitioners, however,

again confuse an agency’s duty to analyze the potential

impacts of the proposed federal action (even when those

impacts would be beyond the Corps’ jurisdiction) with

an agency’s obligation to include within the definition of

federal action the actions of third parties that are

beyond its jurisdiction. As explained above, under the

Corps’ regulations, the latter determination depends

upon the degree of federal control and responsibility

over the project at large. Petitioners suggest (Pet. 24)

that the court of appeals’ approval of the Corps’

analysis of connected and cumulative actions was based

on jurisdictional considerations. That is not so. The

court’s finding that the different project phases were

not sufficiently connected to require a global EIS for

the project was based on the pertinent CEQ regula-

tions, the long-standing “independent utility” test, and

Ninth Circuit case law, as applied to the extensive

record compiled by the Corps. See Pet. App. 25a-27a.‘

Society Hill Towers Owners’ Ass’n v. Rendell, 210

F.3d 168 (8d Cir. 2000), is also distinguishable. The

plaintiffs in that case argued that the Department of

Housing and Urban Development (HUD) had failed to

* Moreover, as discussed above, the court of appeals found that

the record supported the Corps’ conclusion that “the three phases

of the project are not connected actions because each [has] inde-

pendent utility.” As a result, the Corps “was not required to con-

sider the environmental impacts attributable to the three different

phases in a single NEPA analysis.” Pet. App. 25a. Similarly, the

court found that Phases II and III need not be analyzed together

with Phase I as “cumulative” actions, in part because the details

and planning decisions regarding Phases II and III had not yet

been completed when MTP-PV submitted its permit application.

Id. at 26a-27a. See Gov’t C.A. Br. 24-30.

20

consider the cumulative impacts of its approval of a

grant funding development of a hotel and parking

garage. Jd. at 172, 180. Petitioners argue (Pet. 25) that

Society Hill stands for the proposition that “impacts

outside HUD’s control must be considered under

NEPA, even if they are not within HUD’s jurisdiction,

if they are virtually certain to be completed as in the

present case.” Even that characterization, however,

does not conflict with the court of appeals’ decision

here. As explained above, the court of appeals’ ap-

proval of the Corps’ analysis of connected and cumula-

tive actions was not based on jurisdictional considera-

tions, but rather on its determination that the separate

phases of the Playa Vista project were functionally

independent. Pet. App. 24a, 26a-27a. In addition,

whereas the cumulative impacts of the project in

Society Hill were “virtually certain,” the opposite was

true here. As the court of appeals explained, at the

time MTP-PV applied for the Phase I permit at issue,

uncertainty clouded Phases II and III of the Playa

Vista project, including whether those phases would

receive approval from relevant federal, state, and local

regulatory bodies. Id. at 27a.

Vieux Carre Property Owners v. Pierce, 719 F.2d

1272 (5th Cir. 1983), likewise does not conflict with the

decision in this case. That case involves a straight-

forward application of the “independent utility” test

and, if anything, underscores that the court of appeals’

decision in this case is in step with the case law in other

courts of appeals. As the Fifth Circuit explained:

Confronted with a project that had independent

utility, the City properly determined that it should

be assessed independently of future speculative

phases. Not only was the decision imminently [sic]

21

reasonable under the facts before the City, it was

entirely consistent with this Court’s holdings that

“NEPA does not require an agency to consider the

possible environmental impacts of less imminent

actions when preparing the impact statement on

proposed actions.” South Louisiana Environmental

Council, Inc. v. Sand, 629 F.2d 1005, 1015 (5th Cir.

1980), quoting Kleppe v. Sierra Club, 427 U.S. 390,

96 S. Ct. 2718, 2730 n.20, 49 L.E.2d 576 (1976). As

was the situation in Environmental Defense Fund

v. Marsh, 651 F.2d 983 (5th Cir. 1981), “we are here

dealing with two projects that are historically

distinct, one of which is proposed and the other still

wm the process of study and design. In that situa-

tion, NEPA does not yet require the [agency] to

evaluate the environmental impact of the [second

project].” Id. at 999.

Id. at 1278 (emphasis added).

There is, in short, no conflict of authority in the lower

courts on the narrow question presented, and this

Court’s review accordingly is not warranted.

4, Petitioners argue (Pet. 25) that the court of

appeals’ decision conflicts with the CEQ regulations.

That is incorrect. The court of appeals specifically

acknowledged and applied the pertinent CEQ regula-

tions. Pet. App. 24a-25a. Petitioners’ claim of a conflict

with those regulations boils down to a disagreement

with the court of appeals’ application of the regulations

to the record in this case. Petitioners’ assertions (Pet.

27) regarding the importance of this case mischaracter-

ize the court of appeals’ decision. That decision breaks

no new legal ground. The court of appeals correctly

applied NEPA and its implementing regulations to the

particular facts of this case, and concluded that the

22

Corps did not abuse its discretion in determining that

the EA should be based on the federal permit action,

and not the entire project of which that federal action

was only a small and inessential part. That fact-bound

determination does not warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

ANDREW MERGEN

ANTHONY HOANG

MARK R. HAAG

Attorneys

JUNE 2001

* The Solicitor General is recused from participation in this

case.