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An agency need not supplement an Environmental Impact Statement (EIS) every time new information comes to light after the EIS is finalized. The National Environmental Policy Act of 1969, 42 U.S.C.S. § 4321 et seq., does require that agencies take a "hard look" at the environmental effects of their planned action, even after a proposal has received initial approval. Application of the "rule of reason" thus turns on the value of the new information to the still pending decision-making process. In this respect the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains "major Federal action" to occur, and if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.
Based on the studies they conducted, the Army Corps of Engineer proceeded with the construction of the Elk Creek Dam. However, before funds were appropriated by Congress for the project, the Corps received information from the state and federal conservation agencies, suggesting that the dam would adversely affect downstream fishing by creating the danger of an increase in downstream water temperature and by causing high fish mortality from an epizootic, or contemporaneous and widespread, fish disease. After evaluation of this new information both by Corps experts and by two independent experts, the Corps concluded in a supplemental information report (SIR) that such information did not constitute "significant new" information which, pursuant to 40 CFR 1502.9(c), a regulation of the Council on Environmental Quality, would require a new EIS supplement. In 1985, after Congress had appropriated the necessary project funds, four Oregon nonprofit corporations filed an action in the United States District Court for the District of Oregon, seeking to enjoin construction of the Elk Creek Dam on grounds that the Corps had violated the National Environmental Policy Act of 1969, 42 USCS 4321 et seq., by failing, among other things, to include a "worst case analysis" of uncertain environmental effects and to prepare a second supplemental EIS in light of the information received from the ODFW and the SCS. The District Court denied injunctive relief, holding that a "worst case analysis" was not required under the circumstances and that the Corps' decision not to prepare a second supplemental EIS was reasonable. On appeal by the nonprofit corporations, the United States Court of Appeals for the Ninth Circuit reversed, concluding that the final EIS supplement was defective because it did not include a complete mitigation plan and because it did not contain a "worst case analysis.” The Corps appealed.
Under the circumstances, should the Corps have prepared a supplemental EIS on the basis of the information received from the state and federal conservation agencies?
The Court held that the Corps’ decision that a second EIS supplement was unnecessary, although perhaps disputable, was not arbitrary or capricious, and was based on careful scientific analysis that the new information was of exaggerated importance. The Court noted that the Corps had conducted a reasoned evaluation of the relevant information and reached a decision that was within the dictates of the NEPA. The Court averred that the information developed after the completion of the EIS did not require that a supplemental EIS be prepared before construction of the dam could continue. Accordingly, the judgment of the appellate court was reversed.