ELR Citation: ELR 21264
No(s). 92-16113 (9th Cir. Jul 5, 1994)

The court holds that a U.S. Forest Service (Forest Service) final environmental impact statement (FEIS) that evaluates herbicide use as part of the vegetation management plan for national forests in the Pacific Southwest Region complies with the National Environmental Policy Act (NEPA). The court first holds that plaintiff environmental groups have standing to challenge the FEIS because the threatened harm to the health, recreational use, and enjoyment of the groups' members, in the absence of a vegetation management plan that complies with NEPA, is concrete, specific, imminent, caused by the agency conduct in question, and redressable by a favorable ruling. The court also holds that the groups' challenge is ripe, even though no district forester has authorized a specific herbicide application. To the extent the FEIS sets guidelines that determine future herbicide applications, the Forest Service's failure to comply with NEPA represents a concrete injury.

The court next holds that the FEIS' analysis of the cumulative impact of nonspecific herbicide applications in the Pacific Southwest Region complies with NEPA. The FEIS considers and analyzes the effects of other herbicide sources and, to the extent it does not specifically evaluate herbicide doses from other exposure sources, it reasonably anticipates other exposures. As to the groups' argument that future environmental assessments and environmental impact statements tiered to the FEIS will incorporate the FEIS' alleged methodological errors, the court holds that the Forest Service's representations in district court will estop it from later arguing that it has no further duty to consider the cumulative impact of site-specific programs.

The court rejects the groups' argument that the FEIS is flawed because it fails to disclose the identity and toxic and synergistic effects of some inert ingredients in the herbicide formulations. The court finds that the Forest Service's worst-case analysis, which evaluates the risks of the formulations' active ingredients, resulted in a reasoned analysis and disclosure of the evidence both before and shortly after the FEIS was published. Finally, the court upholds the district court's decision that the FEIS' discussion of the effects of herbicide use on sensitive individuals is adequate. The court finds that the district court's findings and conclusions are supported by the record.

[Briefs in this litigation are digested at ELR PEND. LIT. 66244.]

Counsel for Plaintiffs
Michael Axline
Western Environmental Law Center
44 W. Broadway, Ste. 200, Eugene OR 97401
(503) 485-2471

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Trott and Fernandez, JJ.