ELR Citation: ELR 21033
No(s). 87-2657 (10th Cir. Feb 11, 1992)

The court holds en banc that the arbitrary and capricious standard of review applies to agency decisions not to prepare an environmental impact statement (EIS) under the National Environmental Policy Act. The court overrules its prior decisions holding that a reasonableness standard of review should be used, because they are inconsistent with the U.S. Supreme Court's decision in Marsh v. Oregon Natural Resources Council, 19 ELR 20749, which held that the arbitrary and capricious standard rather than the reasonableness standard controls in reviewing an agency's decision not to supplement an EIS. The court holds that the arbitrary and capricious standard is appropriate to review an agency's determination of the necessity of both an initial and a supplemental EIS, at least where the issue is whether the project will have a significant environmental impact.

[Related cases are published at 22 ELR 20538 and 20 ELR 21433.]

Counsel for Plaintiff-Appellant
William Walker
150 Louisiana Northwest, Albuquerque NM 87108
(505) 268-4551

Counsel for Defendant-Appellee
Ellen Durkee
Environment and Natural Resources Division
U.S. Department of Justice, PO Box 23795, Washington DC 20026
(202) 514-2855

Before McKAY, Chief Judge, ALDISERT,^* HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.