Opposition Brief — Bersani v. United States Environmental Protection Agency

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No. 88-902, No. 2 WQSEBH F. SPANO‘, UN.

In The A oe

Supreme Court Of The United States

October Term, 1988

JOHN A. BERSANT, et al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Repondents.

JOSEPH ROBICHAUD, et al,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Petitions For Writs of Certiorari

To the United States Court of Appeals

For The Second Circuit

BRIEF FOR RESPONDENTS

CONSERVATION LAW FOUNDATION

OF NEW ENGLAND, ETAL.,

IN OPPOSITION

Robert G. Dreher

Sierra Club Legal Defense Fund

1531 P Street, N.W., Suite 200

Washington, D.C. 20005

(202) 667-4500

Counsel of Record

(Additional counsel listed on inside cover)

Balmar Legal Publishing Division, Washington, D.C. (202) 682-9800

James T.B. Tripp

Environmental Defense Fund

257 Park Avenue, South

New York, NY 10010

(212) 505-2100

Michael J. Bean

Environmental Defense Fund

1616 P Street, N.W.

Washington, D.C. 20036

(202) 387-3500

Hope Babcock

National Audubon Society

801 Pennsylvania Avenue, S.E.

Washington, DC 20003

(202) 547-9009

Janice L. Goldman-Carter

National Wildlife Federation

1400 16th Street, N.W.

Washington, D.C. 20036

(202) 797-6880

Peter Shelley

Conservation Law Foundation

of New England

3 Joy Street

Boston, MA 02108

(617) 742-2540

Attorneys for Respondents

i

LIST OF PARTIES

The list of respondents in the petitions by John A. Bersani et

al. and Joseph Robichaud et al. omitted respondents Mas-

sachusetts Wildlife Federation and Massachusetts Association of

Conservation Commissions, who intervened as defendants-appel-

lees on behalf of respondents United States Environmental

Protection Agency in the courts below.

TABLE OF CONTENTS

pr he Fo er

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Bis To bd > oh b's 6 o 0'6 co

B. Statutory and Regulatory Framework .....

C. Factual and Procedural Background ......

pe a a oe 2 eee

RR bab eee wee wees Bet ee ee

2. Pyramid’s Petition Does Not Raise an

Important Issue of FederalLaw ........

3. The Question Presented by Robichaud et

al. Plainly Does Not Warrant This Court’s

cea shaken Aa ee ask 2 ee

CAM bo ee reece haWudasesesesee

Ark wee 2

iv

TABLE OF AUTHORITIES

CASES

( hevron, U.S.A., Inc. v. NRDC, 467 U.S. 837

CRED 6-6 0 0168) d:6 Oa ee ee es 6 a

Commonwealth of Pennsylvania v. Union Gas Com-

pany, 832 F.2d 1343 (3d Cir. 1987), cert. granted,

een Os Ges SEP CRED co ccc wen

Tull v. United States, __U.S.__, 107S. Ct. 1831

ck 0 e 0% nt eae a

United States v. Riverside Bayview Homes, Inc., 474

SP ED bn ow e.0 4d 2 6 ha ae

STATUTES

Clean Water Act, § 101, 33 U.S.C.§ 1251 .......

Clean Water Act, § 404, 33 U.S.C. § 1344 .......

REGULATIONS

SOGPR.GSMGl) ww cc cw wes

40 CFR. § 230.3(q-l), 230.41 ..............

CPCI CINE oo cc cic ccaccwncen

OTHER AUTHORITIES

45 Fed. Reg. 85,336, 85,338 (1980) ...........

10

No, 88-902, No. 88-929

In The

Supreme Court Of The United States

October Term, 1988

JOHN A. BERSANTL, et al,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al,

Repondents.

JOSEPH ROBICHAUD, et al,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Petitions For Writs of Certiorari

To the United States Court of Appeals

For The Second Circuit

BRIEF FOR RESPONDENTS

CONSERVATION LAW FOUNDATION

OF NEW ENGLAND, ET AL.,

IN OPPOSITION

STATEMENT OF THE CASE

A. Introduction

This case involves challenges to the decision of the U.S.

Environmental Protection Agency ("EPA") to prohibit the con-

struction of a shopping mall by petitioners Bersani et al.

("Pyramid") in a Massachusetts wetland known as Sweedens

2

Swamp. Using the authority granted to it in § 404(c) of the Clean

Water Act, 33 U.S.C. § 1344(c), EPA determined that filling

Sweedens Swamp would have unacceptable adverse effects on

wildlife, effectively vetoing a permit that the U.S. Army Corps of

Engineers ("the Corps") proposed to issue to Pyramid for the mall.

EPA’s action was upheld by the United States District Court for

the Northern District of New York, 674 F. Supp. 405

(N.D.N.Y. 1987), and affirmed on appeal by the United States

Court of Appeals for the Second Circuit. 850 F.2d 36 (2d Cir.

1988).

EPA’s action reflected the fundamental purpose of § 404 of

the Clean Water Act: to protect wetlands from unnecessary

destruction. The principal goal of the § 404 program is to keep

development out of wetlands if it can occur on upland sites and

still fulfill project purposes. See 40 C.F.R. § 230.10(a). EPA’s

decision to prohibit filling Sweedens Swamp was based upon its

finding that Pyramid had ignored an available upland site where

its project could have been built, averting serious adverse impacts

upon wildlife dependent upon the swamp for habitat.

Pyramid now seeks to argue to this Court that it should not

be held responsible for its decision to bypass the alternative site

because, by the time it submitted its permit application, that site

had fortuitously been acquired by another developer.! EPA deter-

mined, however, that its regulations required consideration of

! Tronically, after arguing strenuously to the Corps and EPA that the upland

site in question was unsuitable for its project, Pyramid is itself now constructing a

major shopping mall on that site as part of a joint venture with the other

developer. Respondents Conservation Law Foundation of New England et

al. learned of Pyramid’s decision to build a mall on the alternate site through news

reports while the parties’ respective motions for summary judgment were pending

before the district court. Affidavits subsequently filed by Pyramid in response to

respondents’ discovery requests averred that Pyramid still needed the § 404

permit at issue in this litigation, but did not say whether the mall described in its

permit application would still be built at the Sweedens Swamp site. Since the joint

veriture agreement between Pyrarnid and the other developer was at that time still

in draft form, respondents did not argue that the case was moot. Respondents

are now seeking further information on the status of the joint venture and

Pyramid’s plans for Sweedens Swamp.

3

alternative sites available to Pyramid during its planning process,

at the time of "market entry," when it could most readily avoid

siting its project in a wetland. EPA’s interpretation of its own

regulations on this point was upheld by the district court and the

court of appeals.

As the courts below found, EPA’s protection of Sweedens

Swamp was reasonable and consistent with EPA’s regulations, its

wetland protection policy, its statutory authority under § 404(c),

and the overall objectives of the Clean Water Act. The aspect of

EPA’s decision for which certiorari is sought is, moreover, narrowly

addressed to the unusual circumstances of this case, in which an

available upland site ignored by the permit applicant during its

project planning fortuitously became unavailable prior to submis-

sion of the formal permit application. For these reasons, respon-

dents Conservation Law Foundation of New England et a’

thirteen nonprofit state and national conservation organizations,”

submit that further review by this Court is not warranted.

B. Statutory and Regulatory Framework

The Clean Water Act, enacted in 1972, sets forth a bold

objective of maintaining and restoring the chemical, physical, and

biological integrity of the nation’s waters. 33 U.S.C. § 1251(a).

Responsibility for administering the Act lies with EPA except as

otherwise expressly provided. 33 U.S.C. § 1251(d).

Section 404 of the Act, 33 U.S.C. § 1344, creates a permit

program for any discharge of dredged or fill material into the

waters of the United States, including wetlands. Congress divided

the responsibilities for administering § 404 between EPA and the

U.S. Army Corps of Engineers (the "Corps"). It placed the actual

2 Respondents include the Conservation Law Foundation of New England,

the Sierra Club, the Environmental Defense Fund, the National Wildlife Federa-

tion, the Massachusetts Wildlife Federation, the National Audubon Society, the

Massachusetts Audubon Society, Citizens for Responsible Environmental

‘Management, the Massachusetts Association of Conservation Commissions, the

Massachusetts Society for Conservation Professionals, the Audubon Society of

Rhode Island, the Rhode Island Association of Conservation Commissioners, and

the Natural Resources Defense Council. None of these organizations has a

corporate parent, subsidiaries, or any publicly held stock.

4

permitting authority with the Corps, but in considering permit

applications the Corps must apply guidelines promulgated by

EPA, in consultation with the Corps, pursuant to § 404(b). These

"guidelines" are in fact regulations binding on the Corps and the

public. See 33 U.S.C. § 1344(b)(1); 33 C_F.R. § 323.6(a).

A basic policy of the EPA guidelines is that wetlands not be

needlessly destroyed. The guidelines forbid destruction of wet-

lands, which are "special aquatic sites," 40 C.F.R. §§ 230.3(q-1),

230.41, if there is a practicable alternative. § 230.10(a). Where

the activity is not water-dependent, ie., where the activity "does

not require access or proximity to or siting within the special

aquatic site in question to fulfill its basic project purpose,” such

alternatives are presumed to exist unless the permit applicant

clearly demonstrates otherwise. Id.

Although the Corps has the initial permitting authority for

§ 404, EPA exercises a “veto power" under § 404(c). Under this

exclusive authority, EPA may deny or restrict the use of any area

for disposal of dredged or fill material whenever it determines that

such disposal “will have unacceptable adverse effect" on specified

natural values, including wildlife. 33 U.S.C. § 1344(c). Section

404(c) empowers EPA to prohibit filling a wetland even after the

Corps issues a permit authorizing disposal at that site.

C. Factual and Procedural Background

Sweedens Swamp is a.New England red maple swamp, some

50 acres in size, located at the intersection of two major highways

in Attleboro, Massachusetts. The swamp has been found to pro-

vide "excellent wildlife habitat" by EPA, the U.S. Fish and Wildlife

Service, the Corps, and the state wildlife agency. JA 41, 140, 320.

In 1984 Pyramid submitted an application to the Corps for a

§ 404 permit to fill large portions of the site for a proposed

shopping mall. In its application and supplemental application,

Pyramid insisted that marketing considerations rendered alterna-

tive sites in the area, particularly one nearby in North Attleboro,

* References to the Joint Appendix filed in the court below are as follows:

"JA __.” References to the Appendix filed with Pyramid’s Petition are as follows:

“App. A__.”

5

Massachusetts where another developer proposed to build a

similar shopping mall, infeasible for its project. Pyramid stated

that it would not accept the North Attleboro site even if it were

offered "for free," with all necessary permits and approvals. JA

361. Because recent changes in that site’s zoning had facilitated

its use for a shopping mall, Pyramid also insisted -- in sharp contrast

to the argument it now advances -- that the practicability of

alternative sites be measured, not as of the time it submitted its

application, but at an earlier time when it was making its siting

decision. JA 374.

Finding that Pyramid had failed to demonstrate that alterna-

tive upland sites for its project were unavailable, the Corps’

regional office recommended denial of the permit. JA 209. That

recommendation was overruled by the Corps’ Director of Civil

Works, who embraced a novel theory, abandoned by Pyramid in

this litigation, that Pyramid could eliminate the adverse effects of

the project on Sweedens Swamp by constructing an artificial

wetland elsewhere. JA 109. Under direction from Corps head-

quarters, the Corps’ regional office proposed to issue the § 404

permit in June 1985.

In July 1985 EPA commenced veto proceedings pursuant to

§ 404(c). Following public hearings and opportunity for com-

ment, EPA’s Assistant Administrator for External Affairs issued

a Final Determination in May 1986, prohibiting the project be-

cause it would have unacceptable adverse impacts on wildlife.

App. C. Like the Corps’ regional office, EPA found that Pyramid

had failed to demonstrate that alternative sites were not available

for its project. As EPA noted, "The uncontested fact is that

Pyramid never checked the availability of the North Attleboro site

during its investigation of the market, notwithstanding its

knowledge that Sweedens Swamp suffered from significant en-

vironmental constraints." App. C 94a.4 EPA rejected Pyramid’s

contention that the current unavailability of the North Attleboro

‘ The North Attleboro site had been purchased by another developer in 1983,

during the approximate period when Pyramid was evaluating the market for a

location for its own project. The record submitted by Pyramid was ambiguous, at

best, concerning whether Pyramid had begun investigating the Attleboro real

6

site shielded it from responsibility for its decision to bypass an

upland site during its planning process, ruling that the availability

of alternatives to the applicant should under these circumstances

be assessed as of the time it made its siting decision (as Pyramid

had earlier advocated with respect to the practicability of such

alternatives). Id. 92a-93a.

Because filling Sweedens Swamp would inflict serious

damage upon wildlife values, and because that damage appeared

avoidable, EPA concluded that the wildlife impacts of the project

were unacceptable under § 404(c). Id. 106a-107a.°

Pyramid then commenced this action against the Corps and

EPA, challenging EPA’s action and seeking to compel issuance of

a permit. In October 1987 the district court granted summary

judgment to the government and to respondents, who had inter-

vened as defendants. That judgment was affirmed on appeal by

the Second Circuit in June 1988.

ARGUMENT

The decision of the court of appeals is correct and does not

conflict with any decision of this Court or of any other court of

appeals. Nor does the decision of the court of appeals involve an

important question of federal law which should be decided by this

Court. Accordingly, review by this Court is unwarranted.

1. The Decision of the Court of Appeals is Correct

EPA’s decision to prohibit the destruction of Sweedens

Swamp, upheld by the court of appeals, was fully consistent with

its regulations, its wetlands protection policy, statutory require-

estate market prior to the purchase of the North Attleboro site. Pyramid refused

to provide further information to EPA concerning its market investigation. EPA

accordingly concluded that Pyramid had not met its burden under 40 C.F.R.

§ 230.10(a)(3) of demonstrating that the alternative site had been unavailable.

App. C 94a-97a.

5 EPA also rejected the position of the Corps’ Director of Civil Works that an

applicant may freely substitute an artificial wetland for a natural one, finding

substantial scientific uncertainty regarding the viability of artificial wetlands.

App. C 100a-105a.

;

ments, and the broad objectives of the Clean Water Act. EPA

acted to prevent the unnecessary destruction of a wetland for a

non-water-dependent project, in conformance with the clear

direction of the guidelines it promulgated under the authority of

§ 404(b)(1) of the Clean Water Act. Those guidelines establish

presumptions, rebuttable only by clear evidence from the permit

applicant, that alternative upland sites are available for a project

such as Pyramid’s shopping mall. On the complex administrative

record developed during the Corps’ permit review and EPA’s

subsequent § 404(c) proceeding, EPA concluded that Pyramid

failed to demonstrate that an alternative site had not been avail-

able for its project.6 Finding that the loss of Sweedens Swamp

would entail serious adverse impacts on wildlife, and that those

impacts appeared to have been avoidable, EPA quite properly

concluded that the adverse impacts on wildlife were unacceptable

under § 404(c), effectively vetoing the permit.

Pyramid seeks.to argue to this Court that EPA and the court

of appeals erred in looking to the period when it selected the site

for its project, when an alternative site was available to it. Pyramid

contends that the availability of alternatives should have been

assessed only as of the later time when it filed its permit applica-

tion, after the upland alternative site had fortuitously been pur-

chased by another developer. As the court of appeals correctly

found, however, EPA acted reasonably in looking to the time

period when actual siting decisions were made by the applicant,

since that is the time when the applicant can most readily avoid

needless location of its project in a wetland. Interpretation of

EPA’s guidelines to extend to the site-decision period thus directly

® Contrary to Pyramid’s contention, EPA's finding on this point did not violate

its burden of proof under § 404(c). EPA's responsibility in invoking its authority

under § 404(c) is to justify its action. See 45 Fed. Reg. 85,336, 85,338 (1980).

That responsibility does not alter the substantive burden placed by the guidelines

on a permit applicant to "clearly demonstrate” that practicable alternatives are

-unavailable. 40 C.F.R. § 230.10(a)(3). Failure by an applicant to sustain that

burden in its application plainly provides an appropriate basis for EPA to veto a

proposed permit. EPA’s Final Determination clearly states the basis for its action

in this case, and fully satisfies its burden.

8

furthers the guidelines’ underlying policy, which is to steer private

development away from wetlands wherever possible. Pyramid

itself had earlier argued strenuously to the Corps that the prac-

ticability of alternatives should be assessed as of the time of its site

decision, rather than as of the later time of permit application, on

the grounds that to do otherwise would be fundamentally unfair

to the developer. JA 374. Thus, the decision of the court of

appeals was correct, and, as it does not conflict with the decision

of any other court of appeals, does not warrant this court’s review.

2. Pyramid’s Petition Does Not Raise an Important Issue of

Federal Law

Even apart from the correctness of the decision below, the

Court should note that the decision involves a very narrow issue,

applicable only in the highly unusual circumstances of this case.

EPA expressly limited its decision to the circumstance where a

developer enters the market area for the accomplishment of a

specific project; it did not address, and the court of appeals

decision should not be read as extending to, the relevant time

period for analysis of alternatives under other circumstances, as

where an applicant wishes to build upon property acquired or

inherited long before. App. C 93a. Even with respect to applica-

tions from developers entering a new market, analysis of alterna-

tives at the time of market entry will affect applicants only under

the most unusual of circumstances: only where an available upland

alternative ignored by a developer becomes unavailable for-

tuitously prior to actual submission of the permit application, and

only where there are no other alternative sites for the project at

the time of application.”

Contrary to the ominous claims of Pyramid and amici, there-

fore, the court of appeals’ decision will have little effect on the

normal processing of § 404 applications. Few applications, if any,

7 Respondents note that the administrative record in this case indicates that

several other alternative sites exist for Pyramid’s project, apart from the North

Attleboro site whose availability is at issue in this litigation. JA 161, 168-71. The

availability of other alternative sites would support a decision by EPA to prohibit

this project even if this Court were to reverse the court of appeals regarding the

availability of the North Attleboro site.

9

will duplicate the factual circumstances of this case. Nor will the

court of appeals’ decision create "chaos" within the development

community, as broadly asserted by Pyramid and amici. That need-

less destruction of wetlands should be avoided wherever possible

is already well-established in the § 404 program, and should

surprise no one. The application of that principle in this case is

readily comprehensible: when a developer enters a market to build

a project, it must consider upland locations for its project during

the planning leading up to its selection of a site, and should locate

the project in a wetland only if no upland sites are available.

Pyramid also errs in claiming that EPA’s decision was incon-

sistent with prior administrative practice. Precisely because the

question raised in this case will occur only under highly unusual

factual circumstances, neither EPA nor the Corps have ever had

occasion before this case to address the proper time period in

which to assess the availability of alternatives to an applicant. To

the extent they involved the question of availability of alternatives,

the judicial decisions and prior § 404(c) veto proceedings cited by

Pyramid all involved circumstances where alternative upland sites

were plainly available at the time of application. Pyramid’s

repeated contention that the Corps and EPA had previously

looked to the period of permit application is thus meaningless, for

neither agency had previously confronted the timing issue.

Pyramid is equally in error in suggesting, without the slightest

support, that the Corps of Engineers disagrees with EPA over this

issue. While EPA quite plainly disagreed with the Corps over its

decision to grant a permit to Pyramid, that disagreement was over

entirely different issues than those raised by the petitioners in this

action. Both EPA and the Corps are parties to this action, and

have joined in defending EPA’s decision on this point. The Justice

[epartment attorney representing the government on appeal

stated unequivocally to the court of appeals that he represented

the Corps and that the Corps joined fully in the briefs submitted

to that court.

The principle that Pyramid would have this Court review is

thus a narrow one, addressed to specific and unusual factual

circumstances, and developed by EPA quite properly through the

10

adjudication of the particular case where these circumstances

were found to exist. The question Pyramid raises thus falls far

short of the significance of the questions presented in cases, such

as those cited by Pyramid itself, where this Court has granted

review to decide issues central to entire regulatory programs. See,

e.g., Commonwealth of Pennsylvania v. Union Gas Company, 832

F.2d 1343 (3d Cir. 1987), cert.granted, US.__, 108

S. Ct. 1219 (1988) (certiorari granted to determine whether

private parties may sue states in federal court to recover cleanup

costs under the Superfund law); Tull v. United States, US. _,

107 S. Ct. 1831, 1835 (1987) (certiorari granted to resolve conflict

among courts of appeals regarding whether a jury trial is required

to establish liability and assess penalties for violation of § 404 of

the Clean Water Act); United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 126 (1985) (certiorari granted to determine

validity of Corps’ regulations defining "adjacent wetlands” as

"waters of the United States" under the Clean Water Act); Chev-

ron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) (certiorari granted

to review validity of EPA’s "bubble concept" under the Clean Air

Act). Accordingly, Pyramid’s petition does not raise an issue of

federal law of sufficient import to warrant review by this Court.

3. The Question Presented by Robichaud ef al. Plainly Does

Not Warrant This Court’s Review

The argument presented by petitioners Robichaud et al. is

of even less consequence than that raised by Pyramid, and was

properly rejected by the court of appeals. Robichaud et al. con-

tend that EPA erred in taking into consideration the widespread

destruction of wetland habitat throughout Massachusetts and the

northeastern United States in finding the impacts of Pyramid’s

proposed mall on wildlife unacceptable. Robichaud et al.’s argu-

ment is plainly erroneous, and unworthy of this Court’s attention.

Nothing in the language of § 404(c) so illogically restrains EPA.

Indeed, it is difficult to envision how EPA could possibly evaluate

the ecological significance of wildlife impacts in order to deter-

mine if those impacts are "unacceptable" without considering the

context in which those losses take place. To take obvious ex-

amples, how could EPA assess the significance of destruction of

11

specific habitat for a species without considering whether that

species is endangered, or otherwise under stress within its range?

Similarly, how could EPA assess the relative value of the habitat

provided by a particular parcel of wetlands without considering

the surrounding area? Fifty acres of swamp might not be sig-

nificant in the context of Florida’s Everglades, but in the increas-

ingly urbanized Northeast it may represent a precious oasis of

wildlife habitat, as EPA found here.

The contention of Robichaud et al. that EPA must blind itself

to every consideration of ecological context in invoking its powers

under § 404(c) is thus wholly without merit, and does not deserve

this Court’s attention.

CONCLUSION

For the reasons stated, the petitions for writs of certiorari

should be denied.

Respectfully submitted,

Robert G. Dreher

Sierra Club Legal Defense Fund

Counsel of Record for Respondents

James T.B. Tripp

Michael J. Bean

Environmental Defense Fund

Hope Babcock

National Audubon Society

Janice L. Goldman-Carter

National Wildlife Federation

Peter Shelley

Conservation Law Foundation

of New England

Attorneys for Respondents

January 1989