# Robertson v. Methow Valley Citizens Council

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## Concurring Opinion

    Brennan
United States Supreme Court
490 U.S. 332
Robertson v. Methow Valley Citizens Council
No. 87-1703 Argued: Jan. 9, 1989. --- Decided: May 1, 1989
Syllabus
The Forest Service is authorized by statute to manage national forests for, inter alia, recreational purposes. Because its decision to issue a recreational special use permit is a "major Federal action" within the meaning of the National Environmental Policy Act of 1969 (NEPA), that decision must be preceded by the preparation of an Environmental Impact Statement (EIS). After a Service study designated a particular national forest location as having a high potential for development as a major downhill ski resort, Methow Recreation, Inc. (MRI), applied for a special use permit to develop and operate such a resort on that site and on adjacent private land MRI had acquired. In cooperation with state and local officials, the Service prepared an EIS (the Study), which, among other things, considered the effects of various levels of development on wildlife and air quality both on-site and-as required by Council on Environmental Quality (CEQ) regulations-off-site, and outlined steps that might be taken to mitigate adverse effects, indicating that these proposed steps were merely conceptual and would "be made more specific as part of the design and implementation stages of the planning process." The Study's proposed options regarding off-site mitigation measures were primarily directed to steps that might be taken by state and local governments. After the Regional Forester decided to issue a permit as recommended by the Study, respondents appealed to the Chief of the Forest Service, who affirmed. Respondents then brought suit to review the Service's decision, claiming that the Study did not satisfy NEPA's requirements. The District Court's Magistrate filed an opinion concluding that the Study was adequate, but the Court of Appeals reversed, concluding that the Study was inadequate as a matter of law on the grounds, inter alia, that NEPA imposes a substantive duty on agencies to take action to mitigate the adverse effects of major federal actions, which entails the further duty to i clude in every EIS a detailed explanation of specific actions that will be employed to mitigate the adverse impact; that if the Service had difficulty obtaining adequate information to make a reasoned assessment of the project's environmental impact, it had an obligation to make a "worst case analysis" on the basis of available information, using reasonable projections of the worst possible consequences; and that the Service's failure to develop a complete mitigation plan violated its own regulations.
Held:
1. NEPA does not impose a substantive duty on agencies to mitigate adverse environmental effects or to include in each EIS a fully developed mitigation plan. Although the EIS requirement and NEPA's other "action-forcing" procedures implement that statute's sweeping policy goals by ensuring that agencies will take a "hard look" at environmental consequences and by guaranteeing broad public dissemination of relevant information, it is well settled that NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed-rather than unwise-agency action. While a reasonably complete discussion of possible mitigation measures is an important ingredient of an EIS, and its omission therefrom would undermine NEPA's "action-forcing" function, there is a fundamental distinction between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated and a substantive requirement that a complete mitigation plan be actually formulated and adopted. Here, since the off-site environmental effects of the project cannot be mitigated unless the non-federal government agencies having jurisdiction over the off-site area take appropriate action, it would be incongruous to conclude that the Service has no power to act until the local agencies have finally determined what mitigation measures are necessary. More significantly, it would be inconsistent with NEPA's reliance on procedural mechanisms-as opposed to substantive, result-based standards-to demand the presence of a fully developed mitigation plan before the agency can act. Pp. 348-353.
2. NEPA does not impose a duty on an agency to make a "worst case analysis" in its EIS if it cannot make a reasoned assessment of a proposed project's environmental impact. Although prior CEQ regulations requiring such an analysis may well have expressed a permissible interpretation of NEPA, those regulations have since been amended to replace the worst case requirement with new requirements, and the Act itself does not mandate that uncertainty in predicting environmental harms be addressed exclusively by a worst case analysis. The Court of Appeals erred in concluding that the worst case regulation was a codification of prior NEPA case law, which, in fact, merely required agencies to describe environmental impacts even in the face of substantial uncertainty. Moreover, the new CEQ regulations-which require that agencies, in the face of unavailable information concerning a reasonably foreseeable significant environmental consequence, prepare a summary of existing relevant and credible scientific evidence and an evaluation of adverse impacts based on generally accepted scientific approaches or research methods-is entitled to substantial deference even though the worst case rule was in some respects more demanding, since there was good reason for the change in light of the substantial criticism to which the old regulation was subjected, and since the amendment was designed to better serve the EIS' "hard look" and public disclosure functions in preference to distorting the decisionmaking process by overemphasizing highly speculative harms. Pp. 354-356.
3. The Court of Appeals erred in concluding that the Service's failure to develop a complete mitigation plan violated its own regulations, which require, inter alia, that "[e]ach special use authorization . . . ontain . . . [t]erms and conditions which will . . . minimize damage to . . . the environment." Since the Study made clear that on-site effects of the proposed development will be minimal and easily mitigated, its recommended ameliorative steps cannot be deemed overly vague or underdeveloped. Moreover, although NEPA and CEQ regulations require detailed analysis of off-site mitigation measures, there is no basis to conclude that the Service's own regulations must also be read in all cases to condition permit issuance on consideration (and implementation) of such measures. The Service's regulations were promulgated pursuant to its broad statutory authorization to allow recreational use of national forests and were not based on NEPA's more direct concern for environmental quality. As is clear from the text of the permit issued to MRI, the Service has decided to implement its mitigation regulations by imposing appropriate controls over MRI's actual development and operation during the permit's term. It was not unreasonable for the Service to have construed those regulations as not extending to off-site mitigation efforts that might be taken by state and local authorities, and that interpretation is controlling. Pp. 357-359.
833 F.2d 810 (CA9 1987), reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring statement, post, p. ----.
Solicitor Gen. Charles Fried, Washington, D.C., for petitioners.
David A. Bricklin, Seattle, Wash., for respondents.
Justice STEVENS delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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