ELR Citation: ELR 20503
No(s). 82-504-RE (D. Or. May 21, 1985)

Upon motion for rehearing after its April 16, 1985, opinion, 15 ELR 20499, the court holds that the environmental impact statement (EIS) clarity regulation is not trivial and applies to material in an EIS' appendix. The court first reaffirms its prior holding that the filing of the EIS was a final, reviewable action, noting that using the indicators of finality proposed by the government would allow spraying to commence without chance for judicial review. The court next holds that violation of 40 C.F.R. §1502.8, the clarity regulation, was not insubstantial or non-prejudicial. Citing testimony of the chief draftsman of the regulation, the court declares that the regulation was intended to correct a major shortcoming in the implementation of the EIS requirement, and that an EIS must be readable to serve its intended purpose of disclosing and informing. The court finds no support in the case law for defendants' argument that the requirement does not apply to appendices. The government may not avoid the clarity requirement simply by relegating complex but necessary portions of the EIS to appendices. Finally, the court holds that although the main text of the EIS mentions and refers to the worst-case analysis, it does not provide sufficient discussion of the worst case to render the flaws of the appendix immaterial.

Counsel are listed at 15 ELR 20499.