In 1982, the city of Norfolk sought permission from the Army Corps of Engineers to construct a 298-slip marina at the site of an abandoned ferry and near two existing marinas. The Corps issued an "environmental assessment"1 concerning the project, which concluded that the socioeconomic benefits of the project outweighed its likely adverse impact on the aquatic ecosystem. The Corps further concluded that the project would not "significantly affect . . . the quality of the human environment," see 42 U.S.C. § 4332(2)(C), thereby making unnecessary the preparation of an environmental impact statement (EIS). On the same day, the Corps issued a permit to the city clearing the project.

Petitioner, a partner in a venture that owns property near the site of the proposed marina, subsequently filed suit, challenging, inter alia, the Corps' failure to prepare an EIS.2 The District Court granted summary judgment to respondents and denied petitioner's cross-motion for summary judgment. On appeal, the Court of Appeals for the Fourth Circuit, like the District Court, employed an "arbitrary and capricious" standard in reviewing the agency's determination that the proposed marina would have no significant effect on the environment. Gee v. Hudson, 746 F.2d 1471 (1984). See also Webb v. Gorsuch, 699 F.2d 157, 160 (CA4 1983); Providence Road Community Assn. v. EPA, 683 F.2d 80, 82 (CA4 1982). The court held that neither this finding, nor the agency's failure to consider the effect of possible future marinas on the environment, was arbitrary or capricious.

The decision below is the most recent in a long line of cases that have used divergent standards of review to assess an agency's failure to prepare an EIS. The First, Second, and Seventh Circuits, like the Fourth, will reverse such agency action only if it is arbitrary or capricious. See Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (CA1 1980); Hanly v. Kleindienst, 471 F.2d 823, 828-829 (CA2 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973); Nucleus of Chicago Homeowners Assn. v. Lynn, 524 F.2d 225, 229 (CA7 1975), cert. denied sub nom. Nucleus of Chicago Homeowners Assn. v. Hill, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). Four other Circuits have employed a "reasonableness" standard of review. See Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (CA5 1973); Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (CA8), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Foundation for North American Wild Sheep v. United States Dept. of Agriculture, 681 F.2d 1172, 1177-1178 (CA9 1982); Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248-1249 (CA10 1973).3 The Third Circuit has assumed, without deciding, that a "reasonableness" standard is appropriate, Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F.2d 732, 741-742 (CA3 1982), and the Sixth Circuit has similarly declined to choose between the two standards. Boles v. Onton Dock, Inc., 659 F.2d 74, 75 (CA6 1981). The Court of Appeals for the District of Columbia has developed a four-part test to determine whether the agency action is arbitrary and capricious. Sierra Club v. Peterson, 717 F.2d 1409 (1983).4

This conflict is not merely semantic or academic. Certainly, there are individual cases in which application of one standard rather than the other makes no difference. But the lower courts that have wrestled with the question of what rule to adopt clearly have not viewed the issue as one that might be settled by the flip of a coin. Courts that have chosen the "reasonableness" standard have relied on the importance of "the basic jurisdictional-type conclusion involved,"5 or on the "mandatory nature" of the statute's language.6 In settling on this more stringent rule, the Court of Appeals for the Fifth Circuit expressed the concern that "[t]he spirit of the Act would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect environment were too well shielded from impartial review." Save Our Ten Acres, supra, 472 F.2d, at 466. In contrast, courts adopting the "arbitrary and capricious" test have emphasized that the decision not to prepare an EIS is one committed to the agency's discretion7, and that application of a more deferential standard "permits the agencies to have some leeway in applying the law to factual contexts in which they possess expertise."8 The Court of Appeals did not state in this case that it would have reached the same result under a "reasonableness" standard,9 and it is not for us to say what conclusions it might have drawn had it applied different considerations to these facts.

The lower courts have long been in disarray on what standard of review to apply to an agency's decision not to undertake an EIS. I would grant certiorari to end this confusion.