Update: The NEPA Worst Case Analysis Regulation

Kenneth L. Rosenbaum

Editors' Summary: The worst case analysis regulation has brought agencies, litigants, and courts to examine NEPA's requirements for dealing with uncertainty in decisionmaking. Since our last Comment on the regulation, over a year ago, the case law has grown and the outlines of agency obligations to address uncertainty have emerged. The author explores three basic questions about the regulation in light of the developing case law: What level of uncertainty triggers the worst case requirement? When must the analysis be done? And what is the worst case? The Comment concludes that an agency may reach a fair answer to each question by applying the "rule of reason" common to NEPA litigation to construction of the regulation.

[14 ELR 10267]

Seventeen months ago,¹ we reviewed the first appellate decision construing the Council on Environmental Quality's (CEQ's) worst case analysis regulation.² The regulation governs how agencies treat uncertainty in environmental impact statements (EISs) prepared under the National Environmental Policy Act (NEPA).³ We concluded that the agencies had not been heeding their responsibility to address uncertainty and that the courts had taken an important first step in defining agency obligations under the rule.

Today agencies realize they have obligations under the rule, but are unsure of the extent of those obligations.⁴ In the last 17 months the courts have begun to develop a common law of worst case analysis, much as they have developed a common law covering other aspects of NEPA. We can now begin to generalize about this emerging law. It has as its object promoting the basic NEPA mandate of informed decisionmaking and as its guiding principle the "rule of reason" integral to judicial construction of NEPA. This Comment considers the relation of the worst case analysis regulation to NEPA and examines the developing law on three issues likely to recur: What level of uncertainty triggers worst case analysis? When in the NEPA process must the agency do the analysis? And what is the "worst case" that must be analyzed?

Uncertainty, NEPA and Worst Case Analysis

NEPA requires federal agencies to perform a detailed, public review of the environmental impacts of a proposed action before deciding to proceed.⁵ If the proposed action will have a significant impact on the human environment, the agency must prepare an EIS examining the project and alternatives to it.⁶

NEPA planning necessarily involves speculation. The courts have read NEPA to require agencies to engage in "[r]easonable forecasting and speculation,"⁷ identifying "which environmental effects are essentially unknown,"⁸ considering "the probabilities as well as the consequences" of actions,⁹ and evaluating "the costs of proceeding without more and better information."¹⁰ Before CEQ promulgated the worst case analysis regulation, courts never clearly explained how far agencies must explore uncertainty but stated that the agencies' efforts were to be judged by a "rule of reason."¹¹

[14 ELR 10268]

The worst case analysis regulation restated agency obligations to consider uncertainty. It was part of the 1978 CEQ regulations¹² generally interpreting and codifying agency NEPA obligations.¹³

The regulation covers treatment of uncertainty in EISs generally. It begins by requiring agencies to identify scientific uncertainty or gaps in relevant information in their EISs.¹⁴ This disclosure requirement applies to all data in all EISs, even if the data's uncertainty is not significant enough to require worst case analysis. If the missing information is "essential to a reasoned choice among alternatives … and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the EIS."¹⁵ Thus, the agency must acquire essential information if not too costly.

The regulation expressly imposes analytic requirements only if key data are beyond reach. If the information is "essential" but too costly to obtain, or if the information is "important to the decision" and "the means to obtain it are unknown," the agency must "weigh the need for the action against the risk and severity of possible adverse impacts."¹⁶ Finally, if the agency decides to proceed in the face of this uncertainty, it must "include a worst case analysis and an indication of the probability or improbability of its occurrence."¹⁷ Thus, the actual worst case analysis provision is the last and least often applicable of several provisions addressing uncertainty in the "worst case" regulation.

Some recent cases provide examples of uncertainty held to require worst case analysis. In Sierra Club v. Sigler¹⁸ the proposed action was issuance of a permit to develop the Galveston harbor as a deepwater port. The uncertainty involved the impacts of a major spill from the oil tankers that would enter the port. The models of the agency, the Army Corps of Engineers, could only predict the dispersion of oil for 24 hours. The Fifth Circuit held that uncertainty about the impacts after 24 hours merited analysis of the worst case.

In Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark (SOCATS),¹⁹ the proposed action was the U.S. Bureau of Land Management's (BLM's) use of herbicides for vegetation management in the Pacific Northwest. The uncertainty involved the possibility that the spraying program would harm human health. Here, the uncertainty involved the probability rather than the magnitude of the impact. The Ninth Circuit ordered a worst case analysis.

In National Wildlife Federation v. United States Forest Service,²⁰ the proposed action was timber harvesting in the Mapleton Ranger District in Oregon. The uncertainty involved the Forest Service's ability to keep the harvest [14 ELR 10269] from triggering landslides, which destroy critical fish spawning grounds. The Forest Service had assumed it could prevent the slides, despite its failures in past attempts. The district court ordered the Forest Service to disclose the uncertainty of slide prevention and do a worst case analysis.

These cases illustrate where worst case analyses may be required, but do not define the obligations that agencies face under the regulation. What level of uncertainty triggers the requirement? If the requirement is triggered, when must the agency do the analysis? And what is the worst case that must be analyzed? These central questions have not been well answered. However, a reading of the regulation itself, supporting CEQ materials, and the rationale of the cases can provide some guidance.

What Uncertainty Triggers the Requirement?

The next of the regulation sets out the literal standards for deciding whether a gap in information requires worst case analysis. The missing information must be either essential to a reasoned choice (and too costly to obtain) or important to the decision (and absolutely unavailable).²¹ Construction of the standard hinges on the meaning of "essential" and "important."

The standard is kin to other broadly worded directives in NEPA whose purpose is to promote "full disclosure … of the potential consequence of agency decisions and to cause agencies to consider those potential consequences when acting."²² These include the directives to analyze actions significantly affecting the environment,²³ to explore alternatives to a proposed action,²⁴ and, indeed, to identify a proposed action's impacts.²⁵ Courts have held that the watchwords in applying these directives are "reasonableness" and "rule of reason."²⁶ At least one court has applied the "rule of reason" to interpret the worst case analysis requirement.²⁷ The great problem with the "rule" is that reasonable people will differ on what is reasonable, making it hard to predict whether a particular decision not to prepare a worst case analysis will survive review.

To generalize, though, a worst case analysis is unnecessary if the information it will provide could not reasonably cause the decisionmaker to alter plans. A worst case analysis is mandatory if the information could clearly affect the decision. Those are admittedly gray, ill-defined rules.

Common-law-style adjudication or agency rulemaking will eventually resolve the gray area. The courts have already begun the process, and though their coverage of the issue in the handful of cases to date is spotty, they have made some important points.

The courts have ruled that uncertainty about improbable events may be important enough to the decision to require worst case analysis. Some pre-regulation case law²⁸ and draft CEQ materials²⁹ suggested that if the uncertainty involved events that the agency had found unlikely to occur, it would not require worst case analysis. Under this reading of the rule, a catastrophic event with an extremely low probability of occurrence, such as an oil spill or a reactor melt-down, would not be important or essential to the decision. This reading was implicitly rejected in Sigler, the Galveston oil spill case,³⁰ and squarely rejected in SOCATS, the herbicide health effects case.³¹ In SOCATS, BLM argued that although the human health effects of its herbicide spraying program were unknown, serious effects were very improbable and the worst case regulation only called for analysis of reasonably probable events. In rejecting the argument, the court pointed to other decisions, notably Sigler, where a remote event had been held to be important for the decisionmaker to consider. The court noted that the very language of the regulation calls for the agency to estimate the event's "probability or importability," implying coverage of unlikely events. And the court distinguished the pre-regulation cases on which BLM relied, finding that they did not involve significant uncertainty.³²

Our previous analysis of the worst case regulation suggested that it will often apply to unprecedented activities, high-technology projects, or large-scale projects in vulnerable areas.³³ These sorts of projects still are likely candidates, but recent litigation shows that the regulation [14 ELR 10270] focused on the nature of the uncertainty, not the nature of the project. National Wildlife Federation, the forest landslide case,³⁴ illustrates that worst case situations need not involve high technology, enormous scale, or unnatural catastrophes. The nature of the project is not irrelevant, for the project must have potentially significant impact or the EIS requirement, which contains the worst case requirement, would not be triggered. However, a project with comparatively mild impacts may require worst case analysis if the uncertainty about those impacts is great. Conversely, a project involving a risk of tremendous catastrophe might not require worst case analysis if the possible consequences were well understood. For example, the Ninth Circuit explained in SOCATS³⁵ that the potential catastrophic collapse of a proposed dam in Warm Springs Dam Task Force, Inc. v. Gribble,³⁶ a pre-regulation case, would not have required worst case analysis since the agency had sufficient data about the catastrophe to make a reasoned decision on whether to build the dam.

A final point made in the cases about the nature of the uncertainty triggering the analysis is that the uncertainty may involve either the magnitude of an impact (to an insurer, the exposure) or the probability of its happening (the risk).³⁷ In Sigler the uncertainty was over exposure; in SOCATS and National Wildlife Federation it involved risk. As a practical matter, both sorts of uncertainty are usually present, though one may dominate.

When Must an Agency Analyze Uncertainty?

The worst case analysis rule obligates an agency to undertake at least three sorts of analytic tasks when dealing with uncertainty in EISs, and arguably each task is appropriate to a different phase of the decisionmaking process. The first task is to simply identify uncertainty and to decide how important it is to the decision.³⁸ Common sense dictates that this task be integrated into the EIS process as early as possible, since it will guide the agency's data-gathering and serve as the basis for deciding whether the other analytic tasks must be performed.

The second task is to "weigh the need for action against the risk and severity of possible adverse impacts were the action to proceed in the face of uncertainty" about essential or important information.³⁹ Each alternative proposal for action considered in the EIS requires this sort of analysis. To do the analysis before alternatives are framed would make the study too abstract to be useful to the decisionmaker. To do the analysis only for the preferred alternative would leave the decisionmaker without an informed sense of the comparative impacts of the alternatives. Indeed, the analysis should be done before the agency chooses a preferred alternative.

The third task is to do a worst case analysis if the agency decides to proceed in the face of uncertainty.⁴⁰ On its face, the requirement could be read to apply only to the preferred alternative, since it applies only if the agency decides to proceed. However, it may also be read to apply to the alternatives generally, once the agency has tentatively rejected the "no action" alternative. By giving the decisionmaker more information on the alternatives, the second reading better serves NEPA's goal of informed decisionmaking. An appropriate time to do the worst case analysis would be after a preferred alternative had been tentatively chosen, but before releasing a draft EIS. Including the worst case analysis in the draft EIS will promote more intelligent public commentary on the proposal.⁴¹

Though the courts have found no need to speak on the basic issues of timing discussed above, they have ruled on some more complex issues. The SOCATS court ruled that an agency may have to do a worst case study outside of the EIS process if the agency is making a significant decision in a program covered by an EIS.⁴² In SOCATS the decision involved BLM's annual herbicide spraying program. BLM had done a programmatic EIS on its spraying program in 1978, and normally did only an environmental assessment (EA) on its spray plans each year to update the EIS. The court nonetheless required a worst case analysis in the EA, saying, "[t]he label of the document is unimportant. We review the sufficiency of the environmental analysis as a whole."⁴³

In Village of False Pass v. Clark,⁴⁴ the Ninth Circuit considered how soon the worst case analysis must be done in a multi-stage decision involving multiple environmental analyses. Plaintiffs sought a worst case analysis of oil spills prior to an offshore lease sale. The two-judge majority ruled that since the government could deny rights to develop a lease after studying the environmental impacts of development, analysis of the possible consequences of development is not important at the leasing stage.⁴⁵ The court's ruling suggests that the analysis may be saved until the last meaningful moment — i.e., at the last decision point that would allow the agency to avoid the worst case. However, the court did not that by doing the analysis at the development stage, the agency would have more information and could more accurately predict impacts.⁴⁶ Perhaps in a case where delay would not improve forecasting, there would be no reason for the agency to put off the analysis.

What Is the Worst Case?

Literally, the regulation calls for agencies to analyze the "worst" case. To read it to require an agency to explore the most disastrous scenario conceivable would condemn [14 ELR 10271] the agency to ask an unending, pointless series of "what ifs?"⁴⁷ The agency's inquiry must be circumscribed by the rule of reason. The Sigler court, reading the regulation against the background of NEPA case law, concluded that it requires agencies to indulge in "reasonable speculation."⁴⁸ This suggests that the agency must analyze a very bad case, even if such analysis is speculative. However, the agency need not complicate the analysis with worse variations if such complications would supply no useful data to the decisionmaker.

The Ninth Circuit in Save Our Ecosystems v. Clark⁴⁹ held that CEQ intended agencies to analyze a spectrum of "worst" cases rather than a single catastrophic result.⁵⁰ Thus, an agency might discuss Event X with a one-percent chance of occurrence, related Event Y with a 10-percent chance of occurrence, and related Event Z with a 20-percent chance of occurrence. So long as the cases are indeed related and such a spectrum allows the decisionmaker to extrapolate and interpolate the complete range of significant bad cases, the spectrum approach serves the goals of NEPA well. If the analyzed events are unrelated, or if significant unrelated adverse events are possible, the spectrum analysis would be inappropriate, and misleading.

The Save Our Ecosystems decision illustrates the unusual nature of judicial review of a worst case choice.⁵¹ The court held that BLM had not considered the worst case in its analysis of the health effects of herbicide spraying. BLM assumed in its study that some level of human exposure to herbicides is safe. In an ordinary study of health effects, the court might have sustained this assumption as a nonarbitrary application of agency expertise. The assumption is not assuredly correct, but it represents a reasoned choice among competing scientific opinions. In the worst case setting, although the standard of review may be the same, the posture of the decision is not. Since the agency must explore the worst case, within reasonable limits, the agency may not make an assumption concerning effects unless all worse assumptions are unreasonable. In BLM's case the evidence on health effects was so conflicting that BLM could have assumed reasonably that no level of exposure is safe. Since this assumption is the worst case, and it would be a sustainable finding in light of the competing evidence, the court held that it is the assumption that BLM must make.

Conclusion

NEPA's uncertainty requirements are obscure, but are becoming clearer. Two years ago, an agency might be excused for misconstruing its obligations under the worst case rule.⁵² Today, the courts have framed the outlines of the worst case obligations. They will continue now to fill in the details, perhaps with the assistance of CEQ. Agencies should be aware of their general obligations. What obligations the courts have not expressly described, the agencies should be able to reckon by reading the regulation in the context of the rule of reason to serve NEPA's goal of informed environmental decisionmaking.

1. Comment, CEQ's "Worst Case Analysis" Rule for EISs: "Reasonable" Speculation or Crystal Ball Inquiry?, 13 ELR 10069 (1983).

2. 40 C.F.R. § 1502.22, ELR REG. 46023.

3. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

4. Even CEQ has shown some uncertainty about the regulation's meaning. In August 1983 CEQ published a proposed informational guidance on the worst case regulation, 48 Fed. Reg. 36486-87 (1983), noting that "the regulation has been subject to a wide variety of conflicting interpretations by both federal agencies and reviewing courts." Id. at 36486. The guidance proposed reading the regulation not to apply to events with extremely low probability, even if such events might have great impact. The proposal drew strong criticism, e.g., Yost, Don't Gut Worst Case Analysis, 13 ELR 10394 (1983). CEQ withdrew the proposal in light of public comment, 49 Fed. Reg. 4803 (1984), and reportedly now is consulting with the various agencies bound by NEPA trying to reach a consensus interpretation of the regulation.

5. 42 U.S.C. § 4332, ELR STAT. 41010. The CEQ regulations provide an overview of the role of NEPA in agency decisionmaking. See 40 C.F.R. pts. 1500-1508, ELR REG. 46001.

6. 42 U.S.C. § 4332(2)(C), ELR STAT. 41010; 40 C.F.R. pt. 1502, ELR. REG. 46020-23.

7. Scientists' Institute for Public Inforation, Inc. v. Atomic Energy Comm'n (SIPI), 481 F.2d 1079, 1092, 3 ELR 20525, 20532 (D.C. Cir. 1973).

8. Id., 3 ELR 20531.

9. Carolina Environmental Study Group, Inc. v. United States, 510 F.2d 796, 799, 5 ELR 20181, 20182 (D.C. Cir. 1975).

10. Alaska v. Andrus, 580 F.2d 465, 473, 8 ELR 20237, 20242 (D.C. Cir.), vacated in non-pertinent part sub nom. Western Oil & Gas Ass'n v. Alaska, 427 U.S. 922 (1978).

11. SIPI, 481 F.2d at 1092, 3 ELR at 20531.

12. The 1978 regulations appear at 40 C.F.R. pts. 1500-1508, ELR REG. 46001. CEQ promulgated them by order of President Carter, Exec. Order No. 11991, § 3(h), 42 Fed. Reg. 26967 (1977), ELR REG. 45003. The regulations are binding on the federal agencies. See Andrus v. Sierra Club, 442 U.S. 347, 357, 9 ELR 20390, 20392 (1979).

The regulations replaced CEQ's 1973 NEPA guidelines, which were advisory only. 38 Fed. Reg. 20550 (1973) (formerly codified at 40 C.F.R. pt. 1500).

13. Thelegal status of the CEQ guidelines, though not now a focus of debate, could be an important issue. No one doubts that the rules were validly promulgated, nor that they are binding on federal agencies. See Andrus v. Sierra Club, 442 U.S. 347, 357, 9 ELR 20390, 20392 (1979). The question is whether the rules are legislative, interpretive, or procedural. The distinction is important because it affects the value of prior case law in construing the rules, CEQ's power to "overrule" adverse court interpretations of the rules, and, perhaps, the rules' application to independent agencies.

For the distinction between legislative and interpretive rules, see 2 K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 7:8-7:18 (2d ed. 1979). For the concept of procedural rules, see B. SCHWARTZ, ADMINISTRATIVE LAW: A CASEBOOK 248 (1977). "A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power …." 2 K. DAVIS § 7:8, at 36. Procedural rules are a subclass of interpretive rules that set internal agency procedure.

If the CEQ worst case regulation is a legislative rule, the worst case requirement may have been born with the rule. Prior cases that failed to find requirements in NEPA to deal with uncertainty are of no moment in requiring the regulation. CEQ can freely amend or repeal the requirement if it follows proper rulemaking procedures.

If the CEQ worst case regulation merely interprets NEPA, then pre-regulation cases finding a limited duty, e.g., Trout Unlimited v. Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974), may still be valid precedent. The regulation cannot create substantive obligations not in NEPA.When a court construes the rule, it is really construing NEPA in light of the rule. Though the courts should give the interpretation substantial deference, particularly since the interpretation is the product of notice and comment rulemaking, see Andrus v. Sierra Club, 442 U.S. 347, 358, 9 ELR 20390, 20392 (1979), the courts are no bound by it, nor would they be bound by amendments to the rule.

If the CEQ worst case regulation is procedural, specifying agency procedures to implement NEPA, it may go beyond the procedural minima in NEPA itself. It may establish procedural obligations not found in pre-regulation cases and CEQ may freely amend or interpret it, so long as the rule does not require less than NEPA requires. However, if it is a procedural rule, promulgated under delegation of authority from the President in Exec. Order No. 11991, § 3(h), 42 Fed. Reg. 26967 (1977), ELR REG. 45003, then the rule only applies to those agencies over which the President has authority to set internal procedures.

The courts have generally treated the worst case rule as interpretive and have treated prior case law as still relevant to understanding NEPA's uncertainty requirements. Although the Fifth Circuit in Sierra Club v. Sigler, 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983), spent a great deal of effort establishing that the rule applied to the agency in question, id. at 965-66, 13 ELR at 20213-14, and suggested that NEPA § 102(2)(B), 42 U.S.C. § 1332(2)(B), ELR STAT. 41010, gives CEQ authority to make legislative rules, 695 F.2d at 967, 13 ELR at 20214, the court concluded that "CEQ's worst case analysis regulation merely codifies … judicially created principles," and that it "closely tracks NEPA case law," id. at 971, 13 ELR at 20216. The court also noted that the government "has presented no proof that the CEQ's worst case analysis regulation as the CEQ has interpreted it conflicts with [the language and legislative intent of NEPA or the teachings of the Supreme Court]." Id. at 972, 13 ELR at 20217.

The Ninth Circuit has cited Sigler for the proposition that "[t]he worst case analysis regulation codifies prior NEPA case law." Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark (SOCATS), 720 F.2d 1475, 1478, 14 ELR 20061, 20061 (9th Cir. 1983). In Save Our Ecosystems v. Clark, the court used slightly stronger language: the regulations "are not new requirements, but rather are a codification of prior case law." 14 ELR 20241, 20242 (9th Cir. Jan. 27, 1984) (citing SOCATS).

At present, then, courts are treating the rule as interpretive and distinguishing adverse pre-regulation precedent. See, e.g., SOCATS, 720 F.2d at 1479, 14 ELR at 20062. All pronouncements on the issue so far have been dicta, though. The issue may become important if CEQ amends or interprets the rule to conflict with recent court rulings, or if an agency refuses to prepare a worst case analysis in apparent violation of the regulation in a case on all fours with a pre-regulation case not requiring analysis of unlikely impacts.

14. 40 C.F.R. § 1502.22, ELR REG. 46023.

15. Id. § 1502.22(a), ELR REG. 46023.

16. Id. § 1502.22(b), ELR REG. 46023.

17. Id.

18. 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983).

19. 720 F.2d 1475, 14 ELR 20061 (9th Cir. 1983).

20. 14 ELR 20349 (D. Or. Apr. 3, 1984).

21. 40 C.F.R. § 1502.22(b), ELR REG. 46023.

The Ninth Circuit has suggested that the "essential" and "important" standards may be better read as a single standard, requiring analysis of "significant" uncertainty. Save Our Ecosystems v. Clark, 14 ELR 20241, 20242 n.5 (9th Cir. Jan. 27, 1984). There is merit in this approach. It ties the worst case requirement to a standard well developed in NEPA case law and regulations. It also eliminates an otherwise puzzling aspect of the regulation: as written, the regulation seems to require analysis of important uncertainty that cannot be eliminated at any cost, but not require analysis of important uncertainty that can only be eliminated at great cost. Why the cost of obtaining the information should have a bearing on how to proceed without it is unclear. Shortly after deciding Save Our Ecosystems, the court in Village of False Pass v. Clark, 733 F.2d 605, 14 ELR 20398 (9th Cir. 1984), advised district courts to continue to treat "essential" and "important" as separate standards. Id. at 614, 14 ELR at 20403. Judge Canby, in the dissent, endorsed the Save Our Ecosystems single standard. Id. at 617 n.1, 14 ELR at 20404 n.1.

22. Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18032 (1981) (Answer to Question 20b) [hereinafter cited as CEQ's Most Asked Questions].

23. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. 41010. See also 40 C.F.R. § 1508.27, ELR REG. 46034 (defining "significantly").

24. NEPA §§ 102(2)(C)(iii) & 102(2)(E), 42 U.S.C. §§ 4332(2)(C)(iii) & 4332(2)(E), ELR STAT. 41010; 40 C.F.R. § 1502.14, ELR REG. 46022.

25. NEPA § 102(2)(C)(i), 42 U.S.C. § 4332(2)(C)(i), ELR STAT. 41010; 40 C.F.R. § 1502.16, ELR REG. 46022 (discussing coverage of environmental consequences in an EIS); id. § 1508.8, ELR REG. 46032 (defining "effects").

26. See, e.g., Missouri ex rel. Ashcroft v. Department of the Army, 672 F.2d 1297, 12 ELR 20368 (8th Cir. 1982); National Indian Youth Council v. Watt, 664 F.2d 220, 12 ELR 20110 (10th Cir. 1981); Citizens for Balanced Environment & Transportation, Inc. v. Volpe, 650 F.2d 455, 11 ELR 20889 (2d Cir. 1981); National Wildlife Federation v. Appalachian Regional Comm'n, 677 F.2d 883, 11 ELR 20386 (D.C. Cir. 1981); Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 11 ELR 20087 (1st Cir. 1981); Jackson County v. Jones, 571 F.2d 1004, 8 ELR 20300 (8th Cir. 1978); Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973).

27. See Sigler, 695 F.2d at 965, 13 ELR at 20213.

28. E.g., Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980); Trout Unlimited a Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974).

29. See supra note 4.

30. 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983).

31. 720 F.2d 1475, 14 ELR 20061 (9th Cir. 1983).

32. Id. at 1478-79, 13 ELR at 20062.

33. Comment, supra note 1, at 10073.

34. 14 ELR 20349 (D. Or. Apr. 3, 1984).

35. 720 F.2d at 1479, 14 ELR at 20062.

36. 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980).

37. The SOCATS court made a point of distinguishing between cases involving uncertainty of risk and uncertainty of exposure, but the court did not suggest that different rules apply to the two situations. 720 F.2d at 1478-79, 14 ELR at 20062.

38. This obligation follows from the requirements set out in the first paragraph of the worst case regulation and subsection (a) that the agency disclose uncertainty and obtain important information. 40 C.F.R. § 1502.22, ELR REG. 46023.

39. Id. § 1502.22(b), ELR REG. 46023.

40. This obligation is set out in the last sentence of subsection (b), id.

41. According to CEQ, "full disclosure to the public of the potential consequences of agency decisions" is part of the purpose of the worst case rule. CEQ's Most Asked Questions, supra note 22.

42. 720 F.2d at 1480-81, 14 ELR at 20062-63.

43. Id. at 1480, 14 ELR at 20063.

44. 733 F.2d 605, 14 ELR 20398 (9th Cir. 1984).

45. Judge Canby's dissent argued that the government did not have complete discretion to deny development rights after selling a lease, and that the worst case analysis should be done before the lease sale. 733 F.2d at 617, 14 ELR at 20404.

46. Id. at 614, 14 ELR at 20403.

47. The situation is analogous to the agency's task of examining alternatives under NEPA. There are an unlimited number of alternatives to any proposal.

To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility …. Common sense … teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 8 ELR 20288, 20295 (1978).

Another writer captured the essence of the problem: "Who is't can say 'I am at the worst'? …. The worst is not/So long as we can say 'This is the worst.'" W. SHAKESPEARE, KING LEAR, Act IV, scene i, lines 29-35.

48. 695 F.2d at 974, 13 ELR at 20217.

49. 14 ELR 20241 (9th Cir. Jan. 27, 1984).

50. 14 ELR at 20243 n.7 and accompanying text. See also CEQ's Most Asked Questions, supra note 22 ("the worst case analysis should also include a spectrum of events").

51. 14 ELR at 20243.

52. See SOCATS, 720 F.2d at 1481, 14 ELR at 20063, holding that for purposes of awarding attorneys fees, the agency's decision not to do a worst case analysis in 1982 may have been substantially justified in light of the uncertain state of the law, but its continued argument against doing the analysis was unjustified in light of recent interpretations of the rule.