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. §§ 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.
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,
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. § 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. §§ 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).
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. § 1502.22 (1981).
40 C.F.R. § 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.
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
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:
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.
695 F.2d at 974. See also SOCATS, at 1479-80.
Both the CEQ regulation and other NEPA cases contemplate analysis of a "spectrum of events."
2. Adequacy of the WCA.
The WCA prepared by the BLM is brief and cursory, and proceeds from an entirely wrong assumption. The BLM admits that no level of exposure to the herbicides has been proven safe, but assumes in the WCA that "a point is reached at which it becomes clear that no human health effect
The BLM argues that the analysis plaintiffs say is necessary would be pure guesswork because no credible data exist to support the proposition that cancer can occur at any dose. This contention is specious in light of the evidence presented by plaintiffs' experts and the holding of SOCATS that "[t]he agency may not omit the analysis only because it believes that the worst case is unlikely." 720 F.2d at 1479; see also Sigler, 695 F.2d at 974 ("that the possibility of a total cargo loss by a supertanker is remote does not obviate the requirement of a worst case analysis").
B. Public Comment Period for the WCA.
The BLM provided five days for public comment on the WCA before it made its final decision. It argues that the WCA was part of the EA and, accordingly, need be made available only at some time prior to the final decision.
We agree with the district court that a longer comment period is required. As we stated in SOCATS, "[T]he label of the document is unimportant." 720 F.2d at 1480. For procedural purposes, we must examine the purpose which the document serves.
The BLM uses the annual EA to supplement its ten-year programatic EIS. Rather than using the EA simply to determine whether to prepare an EIS, the EA serves as the decisionmaking document to assess the environmental costs of each year's spraying program. The EA is an especially significant document where, as here, the WCA is included in it. See SOCATS, 720 F.2d at 1480. When an EA is the functional equivalent of an EIS, it is subject to the same procedures. See National Indian Youth Council v. Andrus, 501 F.Supp. 649, 657 (D.N.M.1980), aff'd 664 F.2d 220 (10th Cir.1981). Judge Belloni was correct in holding that the WCA was subject to the minimum 45-day comment period for draft EIS's contained in 40 C.F.R. § 1506.10(c) (1983).
II. Merrell v. Block.
A. NEPA Requires Research on the Environmental Effects of the USFS Program.
Judge Belloni found that "[w]hen USFS and BLM completed their EAR's [environmental assessment reports or EA's] they did not do any actual research on the health effects of using the listed herbicides in the area. Instead, they simply relied on research already completed by EPA when that agency registered the chemicals under FIFRA."
The Forest Service argues that Judge Belloni's decision requires it to do original research on the use of the herbicides and that such a requirement is beyond the scope of a court's authority under NEPA. Neither of these contentions is accurate.
Judge Belloni did not specify what the Forest Service must do, rather, he held that it could not rely solely on EPA registration under FIFRA.
1. Reliance on EPA Registration is Improper.
The EPA registration process for herbicides under FIFRA is inadequate to address environmental concerns under NEPA, particularly where, as here, the registration is only conditional. Conditional registration is a recognition that less than complete data exists. FIFRA does not require or even contemplate the same examination that the Forest Service is required to undertake under NEPA. FIFRA registration is a cost-benefit analysis that no unreasonable risk exists "to man or the environment taking into account the economic, social and environmental costs and benefits of the use of any pesticide." 7 U.S.C. § 136(bb).
Reliance on EPA data is clearly improper under this court's holdings in Oregon Environmental Council v. Kunzman, 714 F.2d 901 (9th Cir.1983) and SOCATS. In Kunzman we held that the Forest Service's spraying of carbaryl over populated areas violated NEPA where the PEIS and EA failed to address adequately the health effects of "spraying on people living or working in or near the areas sprayed." 714 F.2d at 904. We held that the Forest Service could not rely on EPA registration under FIFRA, citing Judge Skopil's opinion in Citizens Against Toxic Sprays v. Bergland, 428 F.Supp. 908, 927 (D.Or.1977). 714 F.2d at 905. We also relied on 40 C.F.R. § 1508.27, discussed supra Section IA1, as an alternate ground for requiring a worst case analysis in SOS v. Clark.
We said in Kunzman that,
714 F.2d at 905 (citations omitted, emphasis added). We followed this decision in SOCATS, stating that "[t]he BLM must assess independently the safety of the herbicides that it uses." SOCATS, at 1480.
2. The Forest Service Must Do Research If No Adequate Data Exists.
We recognized in SOCATS that an agency may be required to do independent research on the health effects of a herbicide. This is not a new requirement.
In Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172 (9th Cir.1982), this court held an EIS inadequate because it failed to address the effect on bighorn sheep of opening a road when those effects were uncertain. We said, "the very purpose of NEPA's requirement that an EIS be prepared for all actions that may significantly affect the environment is to obviate the need for such speculation by insuring that available data is gathered and analyzed prior to the implementation of the proposed action." 681 F.2d at 1179 (emphasis added). Similarly, in Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir.1980), we held that an agency cured the defect in its EIS by commissioning a study about the effects of a newly discovered fault system on that dam. 621 F.2d
Furthermore, in SOCATS and in Warm Springs we recognized that such a duty also flowed from the worst case analysis regulation:
40 C.F.R. § 1502.22(a) (emphasis added). Only if the costs are exorbitant or the means of obtaining the information is beyond the state of the art is the agency excused from compliance and allowed to perform a worst case analysis. 40 C.F.R. § 1502.22(b).
Federal agencies routinely either do their own studies or commission studies of the particular area in which a proposed project is to be located. Almost every EIS contains some original research. And, almost every time an EIS is ruled inadequate by a court it is because more data or research is needed. The Forest Service does not, and indeed cannot, cite any case which holds that an agency is not obliged to do research to comply with NEPA. The Forest Service cannot abdicate its responsibilities by relying on another agency. It must evaluate the impact of its own actions.
B. Preparation of a Joint EIS.
Plaintiffs argue that 40 C.F.R. § 1501.5(a) requires the preparation of a joint EIS by the EPA, BLM, and USFS. This argument is unpersuasive in this case.
Section 1501.5 states:
40 C.F.R. § 1501.5(a).
Although both the BLM and the Forest Service are engaged in forest spraying programs, the programs are in separate areas. The EPA's function is clearly distinct. We are unwilling to find that the district court erred in refusing to mandate a joint EIS. This is not to say that the agencies and the public might not be better served were a joint EIS prepared. The programs of the BLM and the Forest Service are similar. The geographic areas in
III. Scope of the Injunctions.
Judge Belloni consolidated SOS v. Clark and Merrell v. Block when considering the scope of the injunctions. We do likewise.
We are puzzled by the limited scope of the injunctions in these cases. Judge Belloni limited the injunctions in both cases in two ways, by limiting the territorial scope of the injunctions and by restricting the injunctions to aerial spraying (allowing ground spraying to go forward).
Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action. See Friends of the Earth Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir.1975). Only in a rare circumstance may a court refuse to issue an injunction when it finds a NEPA violation.
We find no such justification here that would excuse a total ban on spraying. The district court should have enjoined the spraying programs of the BLM and USFS in their entirety until NEPA requirements were fulfilled.
IV. Attorneys' Fees.
Plaintiffs in both cases seek fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 and 5 U.S.C. § 504. In deciding whether fees should be awarded against the government in this case we are guided by our decision in SOCATS.
Relitigation of a previously decided issue is a strong factor weighing against the government in determining substantial justification. In SOCATS we held that the government was on notice that its reading of section 1502.22 was untenable after the appellate decision in Sigler. In accord with that decision, we hold that plaintiffs in SOS v. Clark are entitled to attorneys fees for legal services rendered at least from the date of that decision (January 20, 1983). Although prior adverse litigation is ordinarily the most important
In Merrell v. Block, the Forest Service has known that reliance solely on EPA registration under FIFRA was improper since Judge Skopil's decision in Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908, 927 (D.Or.1977) ("the mere fact that a program involves the use of substances registered under FIFRA does not exempt the program from the requirements of NEPA"). Plaintiffs seek fees for this appeal only; their entitlement to fees before the district court is the subject of a separate appeal now pending before this court. We hold only that plaintiffs are entitled to fees on appeal because the government's position was not substantially justified before this court. We express no view as to the propriety of fees for the district court litigation.
We remand to the district court to take such further evidence as may be necessary to determine the amount of fees to be awarded. See, e.g., Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). In light of allegations made in respect to information withheld despite FOIA requests, the district court should consider such evidence in that regard as may have bearing on the government's bona fides and may affect the amount of attorneys' fees to be awarded.
We affirm the district court's holdings that the WCA prepared by the BLM (in SOS v. Clark) and the EA prepared by the Forest Service (in Merrell v. Block) were inadequate. We affirm the district court's holding in SOS v. Clark that a 45-day comment period was applicable to the WCA and that no joint EIS was required. The district court erred, however, in limiting the scope of the injunctions in both cases: the entire spraying programs of both agencies should be halted until they comply with NEPA.
AFFIRMED in part, REVERSED in part, and REMANDED.
Plaintiffs have requested leave to augment the record on appeal to introduce certain documents supplied by the EPA in response to a FOIA request after the judgment was entered by the district court. Because we grant plaintiffs the relief they seek in the matters to which the documents relate, we have denied plaintiffs' motion to augment the record on appeal. The denial is without prejudice to plaintiffs' right to offer the documents as evidence before the district court on remand as they may be relevant to attorneys' fees or other matters before the district court.
Section (b)(1) requires a WCA when the information is essential and the costs exorbitant. Section (b)(2) requires a WCA when the information is important and the means for obtaining it are beyond the state of the art. However, Section 1508.27(b) requires that uncertainty be discussed whenever the information is "significant." This would encompass both "essential" and "important." Furthermore, it would make no sense in light of the purpose of the regulation, to make the duty to prepare a WCA turn on the reason for which the information is unavailable. If significant information cannot be produced because the costs are exorbitant or the methods beyond the state of the art, a WCA must be prepared.
Similarly, the duty to gather information and do research under section 1502.22(a) should not turn on whether the information is "essential" or "important." As we hold, in Merrell infra, Section IIA, general NEPA law requires research whenever the information is "significant." As long as the information is "important," "significant," or "essential," it must be provided when the costs are not exorbitant in light of the size of the project and/or the possible harm to the environment.
A worst case analysis could discuss, for example, a 1% chance of event X, a 10% chance of event Y and a 20% chance of event Z, while an EIS for leasing might discuss the effects of leasing 0, 10,000, and 50,000 acres.
The record in Merrell reveals that it is the policy of the BLM to avoid discussion of the toxicity of the herbicides it uses. The BLM Field Guide to Policies and Procedures Required for Vegetation Management With Herbicides in Western Oregon states:
ECR at 283, Merrell v. Block (emphasis added in original). This policy is clearly impermissible.
CR 31; Defendants' Summary Judgment Memorandum at 8-9 in Merrell v. Block.
Allowing administrative agencies to go ahead with programs without carefully considering all possible long-range effects of these chemicals would be contrary to the purposes of NEPA. If the BLM is to go ahead with the project in the face of these uncertainties, at least it must do so knowing of the fate to which it may be condemning future generations. "[T]he basic thrust of ... NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as `crystal ball inquiry.'" Scientists' Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C.Cir.1973).
CR 36, Exhibit 10, pages 1-2.
The refusal to issue the injunction in AMA was in order to protect the environment. See 714 F.2d at 966. AMA represented an "unusual" situation where "enjoining government action allegedly in violation of NEPA might actually jeopardize natural resources." Id. The purposes of NEPA is to protect the environment and issuing an injunction in AMA would not have furthered that purpose.