Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark

• Decision Date: 02 December 1983
• Docket Number: Nos. 83-3562,83-3655,s. 83-3562
• Citation: 720 F.2d 1475
• Parties: , 14 Envtl. L. Rep. 20,061 SOUTHERN OREGON CITIZENS AGAINST TOXIC SPRAYS, INC., Plaintiff-Appellee and Cross-Appellant, v. William P. CLARK * , Secretary of the Interior, et al., Defendants- Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1475

720 F.2d 1475

20 ERC 1001, 14 Envtl. L. Rep. 20,061

SOUTHERN OREGON CITIZENS AGAINST TOXIC SPRAYS, INC. Plaintiff-Appellee and Cross-Appellant, v. William P. CLARK ^*, Secretary of the Interior, et al., Defendants- Appellants and Cross-Appellees.

Nos. 83-3562, 83-3655.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 9, 1983.

Decided Dec. 2, 1983.

Michael Jewett, Jacobson & Jewett, Ashland, Or., for plaintiff-appellee and cross-appellant.

Albert M. Ferlo, Jr., Dept. of Justice, Washington, D.C., for defendants-appellants and cross-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, GOODWIN, and BOOCHEVER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This case requires that we determine the adequacy of the environmental analysis performed by the Bureau of Land Management of the Department of the Interior for its herbicide spraying program in Oregon forests. The district court found that considerable scientific uncertainty existed as to the safe level of exposure to the herbicides used. It enjoined the BLM from further spraying until it performs a "worst case analysis" under 40 C.F.R. Sec. 1502.22.

The question is whether 40 C.F.R. Sec. 1502.22 requires an agency to perform such an analysis when significant scientific uncertainty exists about the safety of a program and the uncertainty cannot be eliminated by further study. We conclude that it does.

I. FACTS

Southern Oregon Citizens Against Toxic Sprays, Inc. (SOCATS) is a non-profit corporation whose members live near or use forests designated for herbicide spraying by the BLM. The latter annually sprays forest lands near Medford to control non-commercial vegetation and to promote timber production.

The BLM filed a programmatic Environmental Impact Statement in 1978 to cover its spraying program for the following ten years. This program contemplated the use of Silvex, 2,4-D, and 12 other herbicides. The EIS addressed only the human health effects of Silvex. It noted that no adverse effects for the other herbicides were known.

Subsequently, the use of Silvex was suspended by the Environmental Protection Agency. The BLM has continued to spray with the other herbicides and has filed annual Environmental Assessments (EAs) to update the 1978 programmatic EIS.

In its 1979 suit to enjoin further spraying, SOCATS complained that the environmental documents prepared by the BLM were inadequate. Both parties moved for summary judgment.

The district court reviewed supporting affidavits and concluded that there was uncertainty regarding the safety of 2,4-D in small dosages. It noted particularly statements by one of the BLM's experts, Dr. Dost, who admitted to uncertainty among the scientific community as to the carcinogenicity of 2,4-D. The court held that the scientific uncertainty, coupled with the potential danger to human health, required a worst case analysis.

It granted summary judgment to SOCATS and enjoined the spraying from which the BLM has appealed.

SOCATS sought attorney fees under the Equal Access to Justice Act. 28 U.S.C. Sec. 2412(d)(1)(A) (Supp.1983). The court held that SOCATS was the prevailing party but denied fees because the government's position was "substantially justified." Southern Oregon Citizens Against Toxic Sprays v. Watt, 556 F.Supp. 155 (D.Or.1983). SOCATS has cross-appealed.

II. ANALYSIS

A. The Need for a Worst Case Analysis

The "worst case analysis" regulation, 40 C.F.R. Sec. 1502.22, was promulgated in 1979. It is part of the Council on Environmental Quality's (CEQ) comprehensive interpretation of the National Environmental Policy Act, 42 U.S.C. Secs. 4321 et seq. (NEPA). The CEQ's regulations are binding on administrative agencies and are entitled to substantial deference in the courts. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979).

The worst case analysis regulation provides:

Incomplete or unavailable information.

When an agency is evaluating significant adverse effects on the human environment in an environmental impact statement and there are gaps in relevant information or scientific uncertainty, the agency shall always make clear that such information is lacking or that uncertainty exists.

(a) If the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the environmental impact statement.

(b) If (1) the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are exorbitant or (2) the information relevant to adverse impacts is important to the decision and the means to obtain it are not known (e.g., the means for obtaining it are beyond the state of the art) the agency shall weigh the need for the action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty. If the agency proceeds, it shall include a worst case analysis and an indication of the probability or improbability of its occurrence.

40 C.F.R. Sec. 1502.22.

The worst case analysis regulation codifies prior NEPA case law. Sierra Club v. Sigler, 695 F.2d 957, 971 (5th Cir.1983). It requires disclosure and analysis of the "cost[s] of uncertainty--i.e., the costs of proceeding without more and better information." Id. at 970; State of Alaska v. Andrus, 580 F.2d 465, 473 (D.C.Cir.1978), vacated in non-pertinent part sub nom. Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978).

The district court found that scientific uncertainty exists as to the safety of the herbicides and held that Sec. 1502.22 applies because the spraying program could have an adverse impact on human health.

The BLM does not appeal the court's factual findings. It contends that: (1) the district court erred in requiring a worst case analysis, without also finding that the worst case is probable or reasonably likely to occur; (2) a worst case analysis is not required because the herbicides are registered by the EPA under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Secs. 136 et seq. (Supp.1983) (FIFRA); and (3) the court erred in holding that the BLM must perform a worst case analysis in an Environmental Assessment. We reject each contention.

1. The Worst Case Analysis Regulation Applies to the Herbicide Spraying Program

The district court held that scientific uncertainty about the safety of the herbicides mandates a worst case analysis, "since herbicide spraying may have a direct impact on human health." The BLM contends that it should not have to consider impacts that are, in its judgment, neither likely nor probable. It argues that the language "significant adverse effects on the human environment" in Sec. 1502.22, limits that regulation to situations in which the effect is reasonably probable.

Two other courts have considered the need for a worst case analysis under Sec. 1502.22. Sierra Club v. Sigler, 695 F.2d 957 (5th Cir.1983); Village of False Pass v. Watt, 565 F.Supp. 1123 (D.Ak.1983). Both decisions were rendered after the district court's decision here. Both support its interpretation of Sec. 1502.22.

In Sigler, the Fifth Circuit held that the Army Corps of Engineers must analyze the In Sigler, the "worst case" was an event of low probability but catastrophic effects and the scientific uncertainty concerned those effects. In contrast, this case involves a lack of information about the probability of any adverse effect. A more closely analogous situation is found in False Pass.

"worst case" of a catastrophic supertanker oil spill when evaluating the environmental consequences of a proposed oil port. The court read Sec. 1502.22 to require separate consideration of (1) the worst case and (2) "the probability or improbability of its occurrence." Id. at 974. It said: "that the possibility of a total cargo loss by a supertanker is remote does not obviate the requirement of a worst case analysis ...." Id.

False Pass involved the adequacy of an EIS for lease sales of off-shore oil deposits. The court concluded that lack of information about the effect of seismic testing on endangered whale populations triggered Sec. 1502.22. 565 F.Supp. at 1149-53. The court gave the government two alternatives: (1) obtain the missing information or, if that proved impossible, (2) prepare a worst case analysis. Id. at 1153. In either case, the government was required to reconsider the wisdom of its program.

The district court holding here accords with those later cases and with a common sense interpretation of Sec. 1502.22. The government did not challenge the court's finding that "there is uncertainty about what is the safe level of dosage--or if there is one." The possibility that the safe level of dosage for herbicides is low or nonexistent creates a possibility of "significant adverse effects on the human environment." 40 C.F.R. Sec. 1502.22. This potential calls for a worst case analysis.

The BLM's contention that it need not analyze a "worst case" unless it is "probable" contradicts the clear language of Sec. 1502.22. This section requires that the agency prepare a worst case analysis "and indicat[e] to the decisionmaker 'the probability or improbability of its occurrence.' " Sigler, 695 F.2d at 974 (emphasis in original) (quoting 40 C.F.R. Sec. 1502.22). The agency may not omit the analysis only because it believes that the worst case is unlikely.

The cases cited by the BLM to support its refusal to consider effects that it considers improbable are easily distinguished. Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.1974) was decided prior to the 1979 CEQ regulations. It involved consequences of dam construction that were distantly connected to the agency action. 509 F.2d at 1284. There was no...