JOHN O. MARSH, JR., SECRETARY OF THE ARMY, ET AL., PETITIONERS V.
OREGON NATURAL RESOURCES COUNCIL, ET AL.

   No. 87-1704

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the Petitioners

   Respondents attempt to defend the court of appeals' decision on the
same basis that they opposed certiorari -- by directing this Court's
attention to issues that are not in this case, by arguing that the
court of appeals did not really mean what it said, and by positing
other rationales for the court's result.  Respondents (and their
amici) are understandably reluctant to defend the court of appeals'
actual reasoning, but their alternative arguments are equally
unsatisfactory and are insufficient to support the court of appeals'
reversal of the district court's decision in this case.

   1. Respondents devote the initial portion of their brief (at 1-8)
largely to criticism of the substantive merits of the Elk Creek
Project.  The issue in this case, however, is not whether Congress
should have approved the project;  it is whether the Army Corps of
Engineers prepared an adequate environmental impact statement.  /1/
Respondents' recitation of the Elk Creek Project's adverse
environmental consequences itself provides a telling indication of the
adequacy of the Elk Creek Supplemental Statement:  respondents rely
almost entirely on that document in describing the project's adverse
effects.  See Resp. Br. 1, 2, 3, 4, 5, 6, 7, 8.  As respondents
acknowledge, the Elk Creek Supplemental Statement specifically
informed the decisionmaker that (among other matters) "(t)he project
might enhance fish to some degree, but at best will only compensate
for the dam's adverse impacts on other existing fish and wildlife
resources" and that "(t)he Elk Creek Dam would displace and, without
mitigation, eliminate wildlife populations dependent on the habitat
that would be flooded" (Resp. Br. 1, 2 (citing Elk Creek Supplemental
Statement 5-6, 38, 46, 69-70)).  As respondents further acknowledge,
the Elk Creek Supplemental Statement, in its comment section, alerted
the decisionmaker to additional concerns of interested parties and the
Corps' responses.  See Resp. Br. 3, 4, 5, 6, 7, 8.  In short,
respondents' extensive reliance on the Elk Creek Supplemental
Statement's discussion of adverse environmental impact pointedly
illustrates that the document fulfilled its objective of assuring that
the Corps considered the environmental effects of the proposal and
informed the public that the agency has considered environmental
concerns in the decisionmaking process.  See Baltimore Gas & Elec. Co.
v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983).
See also Pet. Br. 14.  /2/

   2. As the government's opening brief explained (at 15-26), the
court of appeals erred in concluding that NEPA requires environmental
impact statements to include a complete plan for mitigating
environmental damage.  Respondents make no attempt to defend such a
requirement.  Instead, they ask this Court to regard the lower court's
explicit pronouncements as no more than "mere dictum" (Resp. Br. 12
n.5).  Respondents struggle to recharacterize and downplay the crucial
passages of the court of appeals' decision in order to sidestep the
issues that prompted the government to seek this Court's review.  But
that response was unpersuasive at the petition stage, and it is
equally unpersuasive now.  /3/

   The court of appeals unequivocally stated that environmental impact
statements "must include a discussion of measures to mitigate adverse
environmental impacts" (Pet. App. 5a) and -- in respondents' words --
that "significant measures must be undertaken to mitigate the adverse
effects of a proposed action" (Resp. Br. 12 n.5).  The court then
imposed that same regimen -- using even broader language -- in Methow
Valley Citizens Council v. Regional Forester, 833, F.2d 810, 819 (9th
Cir. 1987), cert. granted, No. 87-1703 (June 27, 1988).  Thus,
respondents' argument that the court of appeals "did not require
mitigation (Resp. Br. 12 (emphasis in original)) is flatly
contradicted by the court's own words and actions.  Similarly, the
court of appeals unequivocally required a "complete mitigation plan"
(Pet. App. 7a), including an "analysis of the mitigation measures" and
an "estimation of how effective the measures will be" (id. at 6a-7a),
and imposed those same requirements in Methow Valley Citizens Council,
833 F.2d at 820.  Respondents' argument that the court did not require
"'demonstrably effective plans for mitigating environmental harm'"
(Resp. Br. 12 (quoting Pet. Br. 14)) thus fails as well.

   Respondents' attempt to rewrite the court of appeals' decision
should be accepted for what it is -- an admission of the
indefensibility of the court's reasoning and result.  Respondents have
effectively confessed that NEPA does not require a "complete
mitigation plan" (Pet. App. 7a).  They are left defending the court of
appeals' decision on an alternative -- and far narrower -- ground;
namely, that in this particular case, the "discussion of mitigation
failed to provide the decisionmaker with the information necessary to
make an informed decision" (Resp. Br. 12).  But even that argument is
unpersuasive.  /4/

   As we explained in our opening brief (at 19), no one -- including
the government -- has questioned that a federal agency can and should
consider mitigation opportunities when assessing the environmental
consequences of a proposed action.  The crucial issue here is the role
that mitigation considerations play in the agency's environmental
review.  We submit that NEPA (and the CEQ's implementing regulations)
contemplate that the government will discuss mitigation in a manner
that aids reasoned decisionmaking and, more specifically, that an
agency "has broad discretion to determine the form and scope of the
mitigation discussion in light of the particular circumstances,
subject only to the requirements that the environmental review as a
whole satisfies NEPA's specific requirements and that the resulting
decision is not arbitrary or capricious" (ibid.).  See Baltimore Gas &
Elec. Co., 462 U.S. at 97-98, 105-106.  Respondents acknowledge that
"the choice of how, or even whether, to mitigate is solely the
agency's" (Resp. Br. 16), and they can point to nothing in NEPA or the
CEQ regulations that prohibits the government from tailoring the scope
of the mitigation discussion to the characteristics of the particular
project.

   Instead, as we explained in our opening brief (at 22 n.14), NEPA
requires a "detailed" statement (42 U.S.C. 4332(2)(C)), but it does
not require that every subsidiary issue in an environmental impact
statement must be discussed in exhaustive detail.  Likewise, the CEQ
regulations require a discussion of mitigation at certain points in
the preparation of the environmental impact statement (40 C.F.R.
1502.14, 1502.16), but they leave the agency with responsibility to
determine the scope of that discussion in light of the CEQ's direction
that they "prepar(e) analytic rather than encyclopedic * * *
statements," "discuss() only briefly issues other than significant
ones," and "emphasiz(e) the portions of the * * * statement that are
useful to decisionmakers and the public" (40 C.F.R. 1500.4).

   Respondents' contention that the Elk Creek Supplemental Statement's
mitigation discussion is inadequate rests wholly on their repeated
assertions that the Corps "represented that there would be no adverse
environmental consequences for wildlife" (Resp. Br. 13) and "relie(d)
on mitigation to compensate for the environmental consequences of
(the) proposed action" (id. at 17;  see also id. at 13, 14, 16-17).
But those statements incorrectly portray the Elk Creek Supplemental
Statement's actual content and the Corps' actual decision.  The Elk
Creek Supplemental Statement did not promise that a mitigation plan
would eliminate the project's adverse impacts on wildlife.  Instead,
the Supplemental Statement identified the wildlife species that would
be affected, and further noted that a wildlife mitigation plan "would
reduce" the impacts upon two specific species:  deer and quail.  /5/
As the Record of Decision indicates (Pet. App. 57a), the Corps
ultimately elected to develop a mitigation plan, but its decision to
go forward with the project was not contingent on either the adoption
or the sucess of that plan.  As the Corps later explained, it decided
to proceed with the project based on an environmental impact statement
that "assumed the maximum level of adverse effects to wildlife" (id.
at 61a), and it elected to implement a $350,000 wildlife mitigation
plan as a supplemental measure to "lessen the extent of wildlife
impacts" (ibid.).  The Corps, in short, complied with not only the
letter but the spirit of NEPA by incorporating environmental
mitigation measures as a prudent and responsible course of action,
even though they were not necessary to render the project
environmentally acceptable.  This is precisely the type of agency
attitude that NEPA was intended to encourage.  /6/

   Respondents' fact-based challenge to the Elk Creek Supplemental
Statement's discussion of wildlife mitigation is, in sum,
unpersuasive.  The discussion was appropriately tailored in relation
to the severity of the environmental effects at issue and the likely
importance that mitigation reasonably could be expected to play in the
decision under consideration.  See Metropolitan Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 776 (1983) ("The scope of the
agency's inquiries must remain manageable if NEPA's goal of
'insur(ing) a fully informed and well-considered decision'" * * * is
to be accomplished.") (citation omitted).  Moreover, respondents'
position would penalize the Corps for taking the environmentally
responsible action of electing to develop wildlife mitigation measures
over and above what was necessary to make the project environmentally
acceptable.

   3. The government's opening brief explained (at 26-35) that the
court of appeals also erred in nullifying the CEQ's carefully
deliberated regulatory revision of the so-called "worst case"
regulation.  Here, again, respondents attempt to avoid the question
that prompted the government to seek this Court's review.  /7/ To the
extent that respondents attempt to defend the court of appeals' actual
reasoning, their arguments are unpersuasive.

   The court of appeals held that the Elk Creek Supplemental Statement
revealed uncertainty concerning Elk Creek's contribution to the total
turbidity of the Rogue River and that the Corps therefore must conduct
a "worst cast" analysis of that matter, even though the regulation
that specified that methodology has since been rescinded and replaced
by a regulation setting forth an alternative methodology (Pet. App.
14a).  The court specifically stated that the worst case regulation
was a "codification of prior NEPA case law" and that "the rules
embodied in that regulation remain in effect even though the
regulation was rescinded" (id. at 14a n.8).  The court also specified
that on remand the Corps must conduct a worst case analysis or conduct
further research (id. at 15a).  In short, the court nullified the
CEQ's regulatory amendment and required the Corps to comply with the
rescinded regulation.  /8/

   Respondents assert that NEPA itself requires agencies to "include
'worst' as well as 'best' case scenarios" in projecting potential
environmental consequences (Resp. Br. 19-20) (footnote omitted)).
NEPA, however, nowhere speaks in terms of "best" and "worst" cases;
instead, it requires the agency to discuss "the environmental impact
of the proposed action" (42 U.S.C. 4332(2)(C)(i)).  The lower courts
have recognized that an agency's discussion of the proposed action's
environmental impact should include an acknowledgement of gaps in
scientific information and reasonable forecasting of probable
environmental consequences.  See Pet. Br. 31-33.  But there is no
statutory requirement -- or logical justification -- for requiring an
agency to discuss the "best" and "worst" scenarios.  The CEQ has
rightly concluded that polar forecasts -- whether based on the best or
the worst case -- are not an effective method for evaluating
environmental impacts.  The methodology inevitably leads to "pure
conjecture" that "is not useful to either the decisionmaker or the
public" (50 Fed. Reg. 32,236 (1985) (emphasis in original)).  /9/

   Respondent's related argument -- that the CEQ's amended
regulationon is inadequate because it requires projection of future
environmental effects be supported by "'credible scientific evidence'"
(Resp. Br. 22 n.14) -- is untenable and, if accepted, would actually
reduce the usefulness of environmental impact statements.
Respondents' desire for analysis based upon nonscientific conjecture
cannot be squared with NEPA's goal of improved governmental
decisionmaking.  As our opening brief explains (at 33), such inquiries
are wastful and time-consuming, they have no logical limits, and they
fail to provide the decisionmaker and the public with useful
information.  /10/

   4. As the government's opening brief explained (at 35-44), the
court of appeals also erred in reversing the district court's
determination that the Corps adequately considered new information
concerning environmental effects that was presented after the
completion of the Elk Creek Supplemental Statement.  Respondents fail
to offer persuasive support for either the court of appeals' standard
of review or the court's ultimate decision.

   The parties agree (Pet. Br. 36 n.30;  Resp. Br. 30) that the agency
must prepare a supplemental environmental impact statement if the
agency determines that the new information has "significant" relevance
or bearing on the proposed action or its effects.  See 33 C.F.R.
230.11(b) (Corps NEPA regulations);  40 C.F.R. 1502.9(c)(1)(ii) (CEQ
regulations).  /11/ The agency's determination of this matter proceeds
upon the so-called "rule of reason" -- a phrase that expresses the
agency's responsibility to assess the new information pragmatically in
light of its value in the decisionmaking process.  See, e.g., Cuomo v.
United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir.
1985);  Friends of the River v. FERC, 720 F.2d 93, 109 (D.C. 1983).

   A court's review of the agency's decision, however, is governed by
the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq.  A
reviewing court may not set aside an agency's decision to forgo
preparation or supplementation of an environmental impact statement
unless the action is "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law" (5 U.S.C. 706(2)(A)).  See,
e.g., Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984).
There is no statutory basis for the Ninth Circuit's less deferential
"reasonableness" standard.  Indeed, respondents themselves offer only
equivocal support for the Ninth Circuit's test.  /12/

   Respondents are fundamentally mistaken in contending (at 29) that
an agency's evaluation of whether new information is significant is
not entitled to deference because it "does not * * * involve a
determination requiring 'a high level of technical expertise,' nor is
it one which must be 'left to the informed discretion of the
responsible federal agencies'" (quoting Pet. Br. 36, which in turn
quotes Kleepe v. Sierra Club, 427 U.S. 390, 412 (1976)).  The Corps'
decision whether to supplement further the Elk Creek Supplemental
Statement turned upon its technical evaluation of new scientific
information.  "When examining this kind of scientific determination,
as opposed to simple findings of fact, a reviewing court must
generally be at its most deferential." Baltimore Gas & Elec. Co., 462
U.S. at 103.  Indeed, respondents' lengthy recitation of flawed and
incomplete scientific assertions bears this out.

   Respondents first contend (Br. 35-45) that the ODFW Report -- a
Corps-funded state agency study that addressed the effects of the Lost
Creek Dam on fisheries resources -- provided significant new
environmental information.  But as the district court noted,
respondents actually sought relief based on the Cramer Memorandum, an
unofficial memorandum by two ODFW biologists that expressed concern,
based on the draft ODFW Report, that the Elk Creek Dam could adversely
affect fisheries.  See Pet. Br. 9 n.4.  The Cramer Memorandum (which
is reproduced at Pet. Br. Add. 3a-6a) is the only document that
extrapolates the ODFW Report to Elk Creek.  In addition, it is the
Cramer Memorandum -- and not the ODFW Report -- that mentions
turbidity and anglers' concerns.

   Respondents made no effort to put this information before the Corps
until after they filed suit.  They first produced the Cramer
Memorandum -- an unofficial internal document -- in their brief in
support of a motion for a temporary restraining order.  See Pet. Br. 9
n.4.  They nevertheless criticize the Corps for failing to respond to
the Cramer Memorandum and its extrapolation of the ODFW Report "until
three months after the commencement of this case" (Resp. Br. 38).
Furthermore, they now attempt to establish their claim that the Corps
neglected to consider new information by relying on scientific
assertions contained in trial depositions and affidavits (id. at 36,
37, 39, 40, 42, 43, 44, 45) that were prepared after this suit was
filed.  In short, respondents have sued the Corps for failing to
address information that was not made available to the agency until
trial.

   As this Court explained in Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 553-555 (1978),
NEPA litigants are not entitled to sue first and create the cause of
action later.  /13/ In any event, the information that respondents
cite is not sufficiently meaningful or reliable to justify the
preparation of another supplemental environmental impact statement.
As our opening brief explained (at 39-42), the Cramer Memorandum is,
on its face, a brief, cursory, and conclusory statement of dubious
scientific worth.  It relies upon, and extrapolates from, the author's
own ODFW Report, which has been seriously criticized by both the Corps
and independent experts.  /14/ As the Corps' Elk Creek SIR explained,
the ODFW Report's mathematical model on fry survival was questionable
and the Corps' own experiments indicated that operation of the
multiport intake tower could ameliorate temperature impacts (Pet. Br.
Add. 9a-10a).  /15/ Furthermore, neither the Cramer Memorandum nor the
ODFW Report established a link between the construction of Lost Creek
Dam and an outbreak of epizootics (Pet. Br. Add. 10a-11a).  /16/ In
sum, respondents have failed to show that the Corps acted arbitrarily
(or even unreasonably) in concluding that the Cramer Memorandum and
the ODFW Report did not reveal significant new information.

   The same is true with respect to the SCS Report.  /17/ Respondents
contend that the government "conveniently ignore(s) the Corps' own use
of soil characteristics to predict turbidity" (Resp. Br. 47).  But as
respondents themselves recognize (id. at 4), the Corps developed its
turbidity projections primarily through computer simulation using the
Corps' "WESTEX" model.  In building a data base for the WESTEX
simulation, the Corps took water samples and measured their actual
sediment content;  it did not rely on soil maps to determine
turbidity.  See Elk Creek Supplemental Statement 22, 33-34;  1974
Water Quality Report 41-47, Figs. 8-9.  The Corps was accordingly
justified in concluding that the SCS Report's soil maps did not
provide significant new information.

   5. At bottom, respondents fail to recognize that NEPA has important
but limited objectives:  it is designed to ensure that agencies
consider the environmental effects of their actions and inform the
public that they have taken environmental concerns into account in the
decisionmaking process.  Baltimore Gas & Elec. Co., 462 U.S. at 97.
As this Court has stated (id. at 100):

         Congress did not enact NEPA, of course, so that an agency
      would contemplate the environmental impact of an action as an
      abstract exercise.  Rather, Congress intended that the "hard
      look" be incorporated as part of the agency's process of
      deciding whether to pursue a particular federal action.

The Corps took that "hard look" here, and that is all that NEPA
requires.

   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed with
instructions to remand the case to the agency for further proceedings.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /1/ Notably, respondents base much of their criticism on a GAO
report (A.R. Doc. 35) that addressed the Corps' cost-benefit analysis
for the project.  But Congress did not find cause in the GAO's report
(which, at the requestors' instruction, was not submitted to the Corps
for pre-publication comment (id. at iv)) to half funding.  And of
special relevance here, the GAO report specifically stated that "GAO
is not questioning the fish and wildlife benefits other than those
related to irrigation" (id. at iii) -- a component that is no longer a
part of the Elk Creek Project.

   /2/ Respondents take some liberties in characterizing the record.
For example, they contend that the Elk Creek Dam would "increase
turbidity downstream in the Rogue River, depressing salmon and
steelhead populations" (Resp. Br. 2 (citing Elk Creek Supplemental
Statement 46)).  No such statement appears at the cited page.
Instead, the Statement indicates (at 37) that "(n)o major adverse
effect on fish production in the Rogue River is expected as a result
of the changes in the turbidity regime as a result of the Elk Creek
project." As another example, respondents contend that "turbidity
peaks and their duration" are "not disclosed by the Corps" (Resp. Br.
5).  In fact, the 1974 Water Quality Report shows in graphic and
tabular form the turbidity peaks and durations (as well as changes in
flow and temperature) with no dams, with Lost Creek, with Elk Creek,
and with both dams operating together for four different water years
under three different operational modes (A.R. Doc. 4, charts 76-91,
tables 18-45, 49-84).  The Corps used average daily turbidity figures,
rather than hourly figures, because short-term turbidity -- except at
levels far beyond what would occur here -- has little effect on fish
survival (Elk Creek Supplemental Statement 37).

   /3/ The government specifically petitioned this Court to decide
whether NEPA "requires federal agencies to include in each
environmental impact statement * * * a fully developed plan to
mitigate environmental harm" (Pet. I).  As the government' s
petitioner explained (at 9-14), the question warrants the Court's
attention because the court of appeals' answer establishes a rule of
law that is fundamentally incorrect (which respondents apparently
concede) and establishes a precedent that, as a practical matter,
would seriously frustrate or impede a wide range of federal and
federally permitted projects.  In short, this Court granted review on
the question whether NEPA requires that environmental impact
statements must include a complete mitigation plan, and it is that
question that respondents should address.

   /4/ The court of appeals found the Supplemental Statement's
mitigation discussion wanting only because that court based its
evaluation on the novel and mistaken premise that environmental impact
statements must provide a "complete mitigation plan" (Pet. App. 7a).
See Pet. App. 5a-6a ("Here, the mitigation plan for wildlife is not
yet fully developed.  * * * We fail to see how mitigation measures can
be properly analyzed and their effectiveness explained when they have
yet to be developed.").  The court presumably would have found the
mitigation discussion adequate under any lesser standard.  Indeed,
even the district court, which erroneously stated that "NEPA requires
that the Corps * * * mitigate (adverse environmental) effects to the
greatest extent possible" (Pet. App. 42a), expressly rejected
respondents' argument that the Elk Creek Supplemental Statement gave
insufficient attention to mitigation (Pet. App. 41a-42a).

   If we are correct in our contentions that the court of appeals
erred in respect to the agency's substantive and procedural
requirements regarding mitigation and worst case analysis, and erred
as well in respect to the duty to consider what respondents
characterize as "significant" new information, then on remand the
agency should be required to do no more than comply with the court of
appeals' order that the agency provide further elaboration on the
subject of cumulative impacts -- an order from which we did not seek
review in this Court.  See Pet. Br. 15 n.6, 45 n.5.  Respondents
insist that we overread the court of appeals' opinion on the first two
matters.  We do not think so, but if the court of appeals may be
understood as intending no novel and onerous obligations in respect to
mitigation and worst case analysis, then there is no basis for further
proceedings in the court of appeals on those matters since we have
clearly complied with the usual NEPA requirements, as we have shown in
our opening brief and here.  And if we read the court of appeals
correctly, and our challenge to that court's view of the law is found
by this Court to be correct, then there also appears no occasion for
further proceedings in the court of appeals.

   /5/ The Supplemental Statement explained that construction of the
Elk Creek REservoir would inundate 1,290 acres of wildlife habitat and
would adversely affect resident mammals and game birds (id. at 26-27,
38).  It stated (at 26) that approximately 50 deer and 17 elk had been
observed in the project area.  It also identified (at 26-27) other
wildlife that could be present in the project area on a transient or
permanent basis -- including possibly 2 mountain lions, 12 black bear,
10 grey foxes, 20 coyote, 6 bobcat, 35 raccoon, 20 skunks, 6 mink, 6
river otter, 2 weasels, and 125 quail, as well as other bird
populations.  It further noted (at 27) that no threatened or
endangered species was found to exist in the project area.  The
Supplemental Statement estimated (at 26) that the project would
ultimately affect perhaps 100 deer and a lesser number of elk, and
respondents' own wildlife expert concurred in this assessment,
estimating that the inundation would decrease Jackson County's deer
population -- which numbers more than 100,000 -- by approximately 50
animals, and would displace -- but not reduce -- the 60 elk that were
believed to live part-time in the reservoir area.  See Pet. Br. 24
n.16.  The Elk Creek Supplemental Statement further indicated (at 38)
that a mitigation plan "would reduce" the project's impact on deer and
quail, but that "all the other species of mammals would experience
population reductions." Thus, respondents are incorrect in contending
that the Corps "represented that there would be no aderse
environmental consequences for wildlife" (Resp. Br. 13).  The Elk
Creek Supplemental Statement indicated that the project would have
adverse wildlife impacts, but -- as the quantitative estimates of
respondents' own wildlife expert confirmed -- those impacts would be
relatively small.

   /6/ Respondents' argument that the Corps "relied" on the
institution of a mitigation plan to conclude that the project is
environmentally acceptable is not only unsupported by the Record of
Decision, it is also quite far-fetched on the actual facts of this
case.  Respondents portray the project site as a veritable wildlife
refuge.  In fact, the project area (which previously had been in part
privately owned ranch land) assumed much of its value as wildlife
habitat after the Corps' "acquisition of the reservoir site and
removal of all developments in the area" (Elk Creek Supplemental
Statement 26).  Even thereafter, the project area has supported
relatively small populations of common wildlife (id. at 26-27).  Thus,
respondents' basic premise -- specifically, that the Corps' decision
to go forward with the $97 million Elk Creek Project necessarily
turned on the success of a mitigation plan directed primarily toward
protecting some 125 quail and 50 deer (see note 5, supra) -- is
unreasonable on its face.

   /7/ The government specifically petitioned this Court to decide
whether NEPA "requires federal agencies to include in each
environmental impact statement * * * * a 'worst case' analysis of
potential environmental harm if relevant information is unavailable or
too costly to obtain" (Pet. I).  As the government's petition
explained (at 15-18), the court's improper refusal to give effect to
the CEQ's rescission of the worst case regulation would result in
federal agencies' conducting wasteful and time-consuming inquires into
potential environmental effects under a methodology that, as the CEQ
has stated, produces "pure conjecture * * * lacking a credible
scientific basis" (50 Fed. Reg. 32,236 (1985)).

   /8/ Amicus Center for Environmental Education (CEE) incorrectly
contends that the court of appeals' requirement that the Corps conduct
a worst case analysis "does not belong before this Court" (Amicus Br.
4).  CEE notes (id. at 5-6) that the amended regulation is applicable
to "all environmental impact statements for which a Notice of Intent *
* * is published in the Federal Register on or after May 27, 1986" (40
C.F.R. 1502.22(c)).  CEE then argues that "the document under review *
* * was prepared well in advance of the effective date" and that "(b)y
the terms of the amended regulation the original regulation applies"
(CEE Amicus Br. 8).  CEE neglects to note that the amended regulation
further provides that "(f)or environmental impact statements in
progress, agencies may choose to comply with the requirements of
either the original or amended regulation" (40 C.F.R. 1502.22(c)).
Thus, if an environmental impact statement was begun before May 27,
1986, but remains "in progress" after that date, the preparing agency,
at its option, may employ either regulation.  Here, the Elk Creek
Statement remains "in progress" -- regardless of this Court's action
-- because the Corps must revise and amend it to comply with the court
of appeals' order (see Pet. Br. 45 n.45;  see also note 4, supra).
Thus, the amended regulation would give the Corps the option of
evaluating uncertainty through the methodology set forth in the
original or in the amended regulation.  The court of appeals, however,
denied the Corps that option and unequivocally commanded the agency to
use the worst case methodology set forth in the original regulation.
See Pet. App. 14a & n.8, 15a.  The court of appeals thus nullified the
effect of the amended regulation here, as well as in future cases, and
the issue is properly before this Court.

   /9/ Respondents' sole support for the use of "best" and "worst"
case scenarios is a 1981 CEQ commentary stating that the government
should "present to the fullest extent possible the spectrum of
consequences that may result from agency decisions" (46 Fed. Reg.
18,026, 18,032 (1981)).  The CEQ withdrew that commentary in 1986.  51
Fed. Reg. 15,618.  In any event, the commentary, which the CEQ
provided to assist federal agencies in their compliance with the worst
case regulation, provides scant support for respondents' statutory
argument.  Notably, respondents fail to grasp the point, set forth in
our brief (at 31-33), that the worst case regulation was the CEQ's
initial mechanism for achieving certain judicially recognized NEPA
objectives -- namely, to assure that agencies engage in reasonable
forecasting of future environmental effects and take into acount
uncertainty -- and that the worst case methodology is not the only
allowable mechanism for effecting those general goals.  See Resp. Br.
21 n.13.  Furthermore, respondents offer no standard to judge whether
a supposed worst case is, in Shakespeare's words, "'at the worst'"
(Pet. Br. 29 n.22).

   /10/ Respondents incorrectly assert that "the CEQ has not
articulated any reason for its amendment (of the worst case
regulation) other than the administrative convenience of the agencies"
(Resp. Br. 24).  The CEQ explained in detail that the amendment was
necessary because the worst case methodology "is an unsatisfactory
approach to the analysis of potential consequences in the face of
missing information" (50 Fed. Reg. 32,236 (1985)), it is unworkable
because of the "limitless nature of the inquiry established by this
requirement" (ibid.), and it "lacks defensible rationale" (ibid.).
Respondents' assertion that worst case analysis is a requirement"
rather than "a 'methodology' or 'procedure'" (Resp. Br. 26) is a
meaningless distinction.  In any event, respondents err in asserting
that "(t)here is no language in the opinion of the court of appeals
imposing or suggesting a particular 'procedure' or 'methodology'" (id.
at 27).  The court of appeals clearly dictated that the Corps must
follow the "rules embodied in the (original) regulation" when
conducting a worst case analysis (Pet. App. 14a n.8).

   /11/ For the Court's convenience, we have reprinted relevant
portions of these regulations in the Addendum to this brief.

   /12/ Respondents (Br. 29-32) and their amici (Environmental Defense
Fund Amicus Br. 26) seem to suggest that an agency's environmental
decisions should receive more exacting scrutiny than other agency
decisions, but that argument finds no basis in law and simply reflects
those parties' own priorities.  Respondents ultimately concede (at 32)
that the APA Section 706(2)(A) standard applies when a court reviews
an agency's decision to forgo supplementation, but they contend (at
34) that only the Seventh Circuit employs the "arbitrary or
capricious" component of that standard in this context.  Respondents
reach that result, however, by excluding those circuits (the D.C.,
Second, and Fourth Circuits) that have held that the "arbitrary or
capricious" test is applicable in reviewing an agency's decision to
forgo preparation of a statement in the first instance.  See Pet. Br.
37.  As the Seventh Circuit has explained (Wisconsin, 745 F.2d at
417), the same standard should apply in either case.  Respondents'
reliance (at 33) on Cuomo, supra, to support the Ninth Circuit's
reasonableness standard is misplaced;  as noted above, that case
recognized that the agency applies a rule of reason test (772 F.2d at
974) and the case, in any event, could not overrule the D.C. Circuit's
previous decision in Cabinet Mountains Wilderness/Scotchman's Peak
Grizzly Bears v. Peterson, 685 F.2d 678, 681, 685 (D.C. Cir. 1982).
Finally, respondents' suggestion that the court of appeals actually
invalidated the Corps' decision because it was conducted "'without
observance of procedure required by law'" (Resp. Br. 33, quoting 5
U.S.C. 706(2)(D)) finds no support in the court's opinion.

   /13/ Here, as in Vermont Yankee, "to characterize the action of the
(agency) as 'arbitrary or capricious' in light of the facts then
available to it * * * is to deprive those words of any meaning" (435
U.S. at 554).

   /14/ As Judge Wallace explained (Pet. App. 22a-23a), the experts
were overwhelmingly critical of the ODFW Report's scientific validity.
 See Pet. Br. 41 n.40.  Respondents note (Br. 38-39) that the experts
and the Corps did not criticize every aspect of the Report, but that
fact hardly validates a document that the experts described as
containing considerable "statistical inaccuracies, over-extension of
statistical methods, undue biological speculation" and that was "not
likely to yield conclusive results" (Pet. App. 22a-23a).  See Pet. Br.
41 n.40.

   /15/ Respondents' contention that Elk Creek SIR was "clearly framed
only in terms of the significance of the mathematical model" (Resp.
Br. 38 (emphasis in original)) is accordingly incorrect.  Moreover,
the Cramer Memorandum itself addressed fry survival primarily in terms
of ODFW modeling attempts.  Pet. Br. Add. 3a-4a.  Respondents also
fault the Elk Creek SIR for failing to discuss fry survival in terms
of "genetic diversity" (Resp. Br. 39-40), but the Cramer Memorandum
did not even raise that issue.

   /16/ Respondents contend -- citing the Cramer trial deposition --
that the tests used were not sufficiently sensitive;  however, Cramer
himself was unable to identify any more sensitive test.  See Cramer
Deposition 36-37.  As for the Cramer Memorandum's passing concerns
about angling and turbidity, the Elk Creek SIR adequately addressed
them (Pet. Br. Add. 11a-12a).  Respondents state that the "ODFW wanted
to conduct studies to evaluate (angling) but the Corps, which funded
the ODFW studies that led to the concern, refused to fund additional
studies" (Resp. Br. 45 (citing Cramer Deposition 32)).  Cramer himself
admitted, however, that he had not propsed any such studies
(Deposition 32), nor are we aware of any ODFW requests for additional
funding to pursue this subject.

   /17/ Respondents did not inform the Corps that they intended to
rely on the SCS Report as "new information" until the time of trial.
As the trial transcript indicates (at 41), the government attorneys
were not informed that the maps comprising the SCS Report would be
used until they were marked for identification at trial.

   APPENDIX