Robertson v. Methow Valley Citizens Council

PETITIONER: Robertson
RESPONDENT: Methow Valley Citizens Council
LOCATION: Sable Communications of California

DOCKET NO.: 87-1703
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 490 US 332 (1989)
ARGUED: Jan 09, 1989
DECIDED: May 01, 1989

ADVOCATES:
Charles Fried - on behalf of the Petitioners
David A. Bricklin - on behalf of the Respondents

Facts of the case

Question

Media for Robertson v. Methow Valley Citizens Council

Audio Transcription for Oral Argument - January 09, 1989 in Robertson v. Methow Valley Citizens Council

William H. Rehnquist:

We'll hear argument first this morning in No. 87-1703, Dale Robertson v Methow Valley Citizens Council and a companion case.

Mr. Fried, you may proceed whenever you're ready.

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court:

This Court, in a series of cases, has made quite clear what NEPA does and does not requires NEPA requires analysis and disclosure.

It requires that the agency take a hard look at environmental effects of proposed action, and public participation and assurance that this hard look has been taken.

It does not require... and CEQ regulations make this clear... more and more information.

More is not necessary more... more.

Sometimes it is less.

That is why this Court imposes page limits.

The function of the environmental impact statement is to inform the decision maker, not to bullet-proof him against obstructionist litigation.

Furthermore, the... the Court has made quite clear what NEPA does not do.

It does not impose any substantive environmental requirements, nor does it dictate the relative weights to be given to environmental as opposed to other concerns.

In this respect, it's worth contrasting NEPA with the Endangered Species Act or Section 4(f) of the Transportation Act.

The court of appeals in these cases ignored these general precepts in overturning not only the agency's decisions, but those of reviewing district courts, and it made two specific legal errors common to both cases.

First, it demanded that the agency not just discuss and consider mitigation opportunities, but that it commit in the plan to complete and effective mitigation measures.

The Respondents should not be allowed to hide behind the confusion that this substantive obligation is put forward as a requirement of what is supposed to be an analytic and descriptive document.

Mr. Fried, may I inquire of you?

The statutory language of NEPA says that the agency has to describe in detail the adverse environmental effects which can't be avoided.

Now, in this case do you think that a mere listing of possible mitigating measures without any consideration or discussion of how they might be employed would suffice to meet that statutory language?

Charles Fried:

Justice O'Connor, I think here as throughout what governs is the rule of reason.

And the more significant the environmental impact and the more important the mitigation, of course, the greater the obligation to go into detail.

This is very well illustrated by one of the things out of which the court of appeals made such heavy weather, which was the wildlife in the Marsh case.

That's the Elk Creek Dam.

In that case there were substantial environmental impacts in respect to the turbidity of the water, the muddying of the water, downstream from the dam.

But also, the dam was going to flood 1300 acres.

And we were faulted because we did not go into great detail about what we were going to do for... and here, it's worth listing.

We had 50 deer, a smaller number of elks, coyotes, otter skunks and 125 quail whose habitat was going to be flooded by that lake Now, we did not go into a great deal of detail about that.

Well, in fact, no detail, wouldn't you agree--

Charles Fried:

No, I don't think that's correct.

What we said... we committed to spend $350,000 in cultivating what are called "edges" which is variations in foliage height because that is a more agreeable habitat for those animals which had been observed.