John Paul Stevens

“ In this case, for example, it would not have violated NEPA if the Forest Service, after complying with the Act's procedural prerequisites, had decided that the benefits to be derived from downhill skiing at Sandy Butte justified the issuance of a special use permit, notwithstanding the loss of 15 percent, 50 percent, or even 100 percent of the mule deer herd. Other statutes may impose substantive environmental obligations on federal agencies, [14] but NEPA merely prohibits uninformed-rather than unwise-agency action. ”

“ The Study considered the effect of each level of development on water resources, soil, wildlife, air quality, vegetation, and visual quality, as well as land use and transportation in the Methow Valley, probable demographic shifts, the economic market for skiing and other summer and winter recreational activities in the Valley, and the energy requirements for the ski area and related developments. ”

“ More generally, omission of a reasonably complete discussion of possible mitigation measures would undermine the "action-forcing" function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects. An adverse effect that can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be modestly ameliorated through the commitment of vast public and private resources. ”

“ Because the deer harvest is apparently proportional to the size of the herd, the state agency predicted that "Washington business can expect to lose over $3 million annually from reduced recreational oppo tunity." Ibid. The Forest Service's own analysis of the impact on the deer herd was more modest. It first concluded that the actual operation of the ski hill would have only a "minor" direct impact on the herd, [7] but then recognized that the off-site effect of the development "would noticeably reduce numbers of deer in the Methow [Valley] with any alternative." ”

“ With regard to other wildlife, the Study considered the impact on 75 different indigenous species and predicted that within a decade after development vegetational change and increased human activity would lead to a decrease in population for 31 species, while causing an increase in population for another 24 species on Sandy Butte. Ibid. Two species, the pine marten and nesting goshawk, would be eliminated altogether from the area of development. ”

“ To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. [15] The requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from the language of the Act and, more expressly, from CEQ's implementing regulations. ”

“ The state agency estimated that the total population of mule deer in the area most likely to be affected was "better than 30,000 animals" and that "the ultimate impact on the Methow deer herd could exceed a 50 percent reduction in numbers." Ibid. The agency asserted that "Okanogan County residents place a great deal of importance on the area's deer herd." ”

“ As was true of its discussion of air quality, the EIS also described both on-site and off-site mitigation measures. Among possible on-site mitigation possibilities, the Study recommended locating runs, ski lifts, and roads so as to minimize interference with wildlife, restricting access to selected roads during fawning season, and further examination of the effect of the development on mule deer migration routes. ”

“ It evaluated five alternative levels of development of Sandy Butte that might be authorized, the lowest being a "no action" alternative and the highest being development of a 16-lift ski area able to accommodate 10,500 skiers at one time. ”

“ Our decision in Marsh appears at 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377.↑ The developer is chosen based on: (1) " [k] ind and quality of services to be offered"; (2) " [f] inancial capability"; (3) " [e] xperience and qualifications in relation to the proposed use"; (4) " [a] bility to perform according to permit terms including Federal, State, and local laws"; and (5) " [c] ontrol of private lands necessary to develop the proposed use." ”