Marsh v. Oregon Natural Resources Council

490 U.S. 360 (1989)

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Nature of the Case

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Facts

In the 1930's in response to recurring floods in the Rogue River Basin, federal and state agencies began planning a major project to control the water supply in the Basin. A multi-agency study recommended the construction of three large dams. Congress authorized the Army Corps of Engineers (Corps (D)) to construct the project in accordance with the recommendations of the 1961 study. The last dam to be built was the Elk Creek Dam. In 1971, D completed its EIS for Elk Creek. The EIS recommended that further studies concerning the project's likely effect on turbidity be developed. A draft supplemental EIS completed in 1975. Further work on the project was suspended, and the supplemental EIS was not filed. When the project was back on, D completed and released its FEIS with the supplement, in December 1980. On February 19, 1982, D made a formal decision to proceed with construction of the Elk Creek Dam, 'subject to the approval of funds by the United States Congress.' The dam is now about one-third completed, and the creek has been rechanneled through the dam. Ps filed this action to enjoin construction of the Elk Creek Dam. The contention is that D violated NEPA by failing (1) to consider the cumulative effects of the three dams on the Rogue River Basin in a single EIS; (2) adequately to describe the environmental consequences of the project; (3) to include a 'worst case analysis' of uncertain effects; and (4) to prepare a second supplemental EIS to review information developed after 1980. As for the preparation of the supplemental EIS, Ps relied on Oregon Department of Fish and Wildlife (ODFW) reports that the dam will adversely affect downstream fishing, and a soil survey prepared by the United States Soil Conservation Service (SCS), contained information that might be taken to indicate greater downstream turbidity than did the FEISS. The District Court denied relief on each of the NEPA claims. The judge first held that courts must employ a standard of 'reasonableness' in reviewing an agency's compliance with NEPA and make a pragmatic judgment whether the EIS's form, content, and preparation foster both informed decision-making and informed public participation. The judge ruled that D had taken a sufficiently 'hard look' at the cumulative effects of the three dams and at the individual effects of the Elk Creek Dam. The District Court held that the Corps' decision not to prepare a second supplemental EIS to address new information was 'reasonable.' The Court of Appeals reversed. It applied the 'reasonableness' standard and reached a contrary conclusion, holding that D had not adequately evaluated the cumulative environmental impact of the entire project. The court held that the FEISS was defective because it did not include a complete mitigation plan and because it did not contain a 'worst case analysis.' The Court of Appeals concluded that the new reports brought to light 'significant new information' concerning turbidity, water temperature, and epizootic fish disease, which warranted a supplemental report.