Save Our Ecosystems v. Clark, s. 83-3908

Citation747 F.2d 1240
Decision Date21 November 1984
Docket Number83-3887 and 83-3916,Nos. 83-3908,83-3918,s. 83-3908
Parties, 14 Envtl. L. Rep. 20,241, 15 Envtl. L. Rep. 20,035 SAVE OUR ECOSYSTEMS, Plaintiffs-Cross-Appellants, Appellees, v. William P. CLARK, * Secretary of the Interior, Defendant-Cross-Appellee, Appellant, Paul E. MERRELL, et al., Plaintiffs-Appellees, Cross-Appellants, v. John R. BLOCK, Secretary of Agriculture, et al., Defendants-Appellants, Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Ralph A. Bradley, Bradley & Gordon, Eugene, Or., Michael Axline, Pacific Northwest Resources Clinic, Eugene, Or., for Save Our Ecosystems.

Jacques B. Gelin, Al Ferlo, Attys., U.S. Dept. of Justice, Washington, D.C., for Clark.

Fredrick A. Provorny, St. Louis, Mo., C. David Barrier, G. William Frick, Lathrop, Koontz, Righter, Glagett & Norquist, Kansas City, Mo., amicus curiae for Monsanto Co.

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

Before ANDERSON and FLETCHER, Circuit Judges, and THOMPSON, ** District Judge.

FLETCHER, Circuit Judge:

Plaintiffs in these consolidated cases challenge the spraying of herbicides on United States Forest Service (USFS) and Bureau of Land Management (BLM) lands. Both cases involve whether research on and disclosure of the potential carcinogenic, teratogenic and mutagenic effects of the herbicides is required under the National Environmental Policy Act of 1969, 42 U.S.C. Secs. 4331-4335 (1976) (NEPA).

The district court enjoined portions of both the BLM spraying program for the Eugene District of Oregon in Save Our Ecosystems v. Clark (SOS) and the USFS program for the State of Oregon in Merrell v. Block (Merrell). We affirm the district court's holdings in the two cases that the USFS and the BLM violated NEPA and the regulations of the Council on Environmental Quality (CEQ). However, we modify the injunctions to enjoin all spraying until the agencies comply with NEPA.

FACTUAL BACKGROUND
A. SOS v. Clark.

In 1978 the BLM prepared a programmatic environmental impact statement (PEIS) entitled "Vegetation Management With Herbicides: Western Oregon, 1978-1987." The statement discussed the environmental impacts of a ten-year program of herbicide spraying, 1 intended to destroy undergrowth thereby increasing the growth rate of conifers. The PEIS was to be supplemented annually by an environmental assessment (EA), upon which would be based the decision whether to spray in the succeeding year, and, if so, how the spraying would be done.

In 1979 an organization called Southern Oregon Citizens Against Toxic Sprays (SOCATS ) filed suit to enjoin the BLM from spraying in the Medford District. In that case, Judge Frye enjoined the spraying because the BLM had failed to prepare a "worst case analysis" (WCA) under 40 C.F.R. Sec. 1502.22 (1981). That decision was affirmed by this court. See Southern Oregon Citizens Against Toxic Sprays v. Clark, 720 F.2d 1475 (9th Cir.1983) (SOCATS ).

In response to the district court decision in SOCATS, the BLM prepared a worst case analysis of its spraying program for the Eugene district. The plaintiffs in this case challenge its adequacy. Judge Belloni agreed with plaintiffs, but limited the injunction to prohibiting aerial spraying in a portion of the district and granted defendant's motion to stay the injunction pending appeal. We vacated the stay and reinstated the original injunction.

B. Merrell v. Block.

The Merrell case arises out of the USFS spraying program for its forests in Oregon, a program very similar to that of the BLM. In 1978 the Forest Service prepared a PEIS on "Vegetation Management With Herbicides" In 1981 Paul Merrell, a resident of the Five Rivers area of the Suislaw National Forest, filed a suit seeking an injunction against further spraying in that national forest. In response to cross-motions for summary judgment Judge Belloni held that the Forest Service could not rely solely on research done incident to the EPA registration of the chemicals under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Secs. 136-136y (FIFRA), and that the Forest Service must address the health effects of using the herbicides in the area to be sprayed. As in SOS, Judge Belloni enjoined only a portion of the spraying program and denied the motions of 42 additional individuals and organizations to intervene. They sought to broaden the injunction to prevent spraying in the areas where they lived (the injunction was limited to the area where the plaintiffs lived).

                covering the Pacific Northwest Region. 2   The PEIS was to be supplemented annually by an EA.  Soon after spraying commenced in 1979, numerous and serious health problems were reported in the Five Rivers Valley, including spontaneous abortions, birth defects in humans and animals, and various other illnesses.  The EPA began an investigation into these problems, but the Forest Service declined requests by the county health department and board of commissioners to delay the spraying. 3   The Forest Service conducted no research of its own into these problems and, in its 1981 EA, concluded that the continued use of the herbicides would have no significant impact on the human environment and declined to prepare an EIS
                
DISCUSSION
I. SOS v. Clark.
A. Worst Case Analysis.
1. NEPA Requires Analysis of Uncertain Risks.

CEQ regulations require an EIS to contain a "worst case analysis" when "the information relevant to adverse impacts is essential ... and is not known and the overall costs of obtaining it are exorbitant or ... the information ... is important and the means to obtain it are not known...." 40 C.F.R. Sec. 1502.22 (1981). 4

40 C.F.R. Sec. 1508.27(b)(5) (1981) requires a similar analysis, although it is not specifically These regulations are binding on the BLM and entitled to substantial deference by the courts. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). They are not new requirements, but rather are a codification of prior case law that required analysis of the costs of proceeding without more and better information. SOCATS, 720 F.2d at 1478.

                labelled a "worst case analysis."    NEPA requires an impact statement for "major federal actions significantly affecting the quality of the human environment ...."  42 U.S.C. Sec. 4332(C) (1976).  The CEQ defines "significantly" to include considerations of both context and intensity, and states that "intensity" includes "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks."    40 C.F.R. Sec. 1508.27(b)(5) (1981).   See Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1182 n. 47 (9th Cir.1982)
                

On their face these regulations require an ordered process by an agency when it is proceeding in the face of uncertainty. First, the agency must determine whether the information is important or essential 5 and whether it can be obtained. If it cannot be obtained or if the costs of obtaining it are exorbitant, the agency must do a worst case analysis weighing the need for the action against all possible adverse impacts. The agency must consider the range of worst possible effects and the likelihood of these effects occurring. It must also consider the costs of proceeding without the information.

The BLM acknowledges that the issue of whether a WCA is required has been determined by our decision in SOCATS, where we held that the BLM must prepare a worst case analysis bottomed on the assumption that its herbicides are not safe. We noted that scientific uncertainty existed regarding the carcinogenacity of the herbicides and that "[w]hen uncertainty exists, it must be exposed." 720 F.2d at 1479. This is not all that is required, however. Besides exposing the fact of uncertainty, because of that uncertainty, a spectrum of possible events must be considered.

The CEQ interprets its regulation as follows:

The purpose of the analysis is to carry out NEPA's mandate for full disclosure to the public of the potential consequences of agency decisions, and to cause agencies to consider those potential consequences when acting on the basis of scientific uncertainties or gaps in available information. The analysis is formulated on the basis of available information, using reasonable projections of the worst possible consequences of a proposed action.

For example, if there are scientific uncertainties and gaps in the available information concerning the numbers of juvenile fish that would be entrained in a cooling facility, the responsible agency must disclose and consider the possibility of the loss of the commercial or sport fishery.

In addition to an analysis of a low probability/catastrophic impact event, the worst case analysis should also include a spectrum of events of higher probability but less drastic impact.

46 Fed.Reg. 18032 (Monday, March 3, 1981).

In Sierra Club v. Sigler, 695 F.2d 957 (5th Cir.1983), the Fifth Circuit required the Army Corps of Engineers to prepare a worst case analysis hypothesizing a massive oil spill in Galveston Bay. In a detailed analysis of the procedural history of the regulation, the court upheld the regulation under NEPA and said that " 'CEQ's interpretation of NEPA is entitled to substantial deference.' " 695 F.2d at 972, quoting Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979).

The court emphasized that the mere fact that the possibility of an event occurring is remote or unlikely does not obviate the necessity to do a worst case analysis.

All parties agree that a total cargo loss could occur and could wreak catastrophic environmental damage in the Bay. While this damage is a "significant adverse effect," there is considerable uncertainty about its likelihood, scope, and consequences; information on...

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