Reply Brief — Hazardous Waste Treatment Council v. Environmental Protection Agency

{

waa 24 1989

No. 88-1532 \ —

\ Ff. SPANIOL, JR.

\

IN THE hg

Supreme Court of the United States

OCTOBER TERM, 1988

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner,

Ve

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITIONER’S REPLY BRIEF

Of Counsel: CLIFTON S. ELGARTEN *

DAVID R. CASE LIDGWAY M. HALL, JR.

HAZARDOUS WASTE LUTHER ZEIGLER

TREATMENT COUNCIL CROWELL & MORING

1440 New York Avenue, N.W. 1001 Pennsylvania Ave., N.W.

Suite 310 Washington, D.C. 20004-2505

Washington, D.C. 20005 (202) 624-2500

(202) 783-0871 |

( ) 783-0870 * Counsel of Record

for the Petitioner

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

Block v. Community Nutrition Institute, 467 U.S.

340 (1984) {

Clarke v. Securities Industry Association, 479 U.S.

388 (1987) i

DeLoss v. Dep’t of Housing & Urban Development,

822 IF 2d 1460 (Sth Cir. 1987) {

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1532

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, et al..

Re sponde nts.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITIONER’S REPLY BRIEF

The Government’s brief in opposition to the petition

does not fairly address the decisions below, this Court’s

decision in Clarke v. Securities Industry Association, 479

U.S. 388 (1987), or the Hazardous Waste Treatment

Council’s interest and its relationship to Congress’ goals

in enacting RCRA. The fact remains that petitioner’s

interest—in the development of a “market and increased

demand for new, safer treatment and disposal technolo-

gies” '—is precisely what Congress sought to promote as

a means for achieving its ultimate environmental objec-

tives. To reject this interest at the threshold, through

the use of a misguided notion of “prudential standing,”

1130 Cong. Rec. $13818 (Oct. 5, 1984) (Sen. Chafee).

is effectively to determine the outcome of a host of im-

portant substantive issues arising from the implementa-

tion of a key environmental statute under the guise of

a “jurisdictional” determination.

1. The Government’s submission studiously avoids any

reference whatsoever to the test for “prudential stand-

ing’ actually applied by the court of appeals. Although

nowhere mentioned in the Government’s brief, the court

below held (in the first of the cases) that a party such

as petitioner cannot obtain judicial review under the

APA unless he can produce “explicit evidence of con-

gressional intent to benefit” him, or that he is, in the

court’s judgment, an “unusually suitable champion|] of

Congress's ultimate goals.” Pet. App. at lla, 12a, 14a.

In the second case, the court of appeals again recited and

applied this test, citing none of the alternative formula-

tions offered by the Government. Pet. App. at 34a, 36a.

Neither respondent makes any serious attempt to justify

the test for standing created and applied by the court

below.

Instead, the Government argues that the court’s anal-

ysis below was an attempt to find an “operational mean-

ing for a test that demands less than a showing of con-

gressional intent to benefit but more than a ‘marginal

relation|ship|’ to the statutory purpose.” Opp. at 8.

But the analysis described in Clarke requires no search

for an “operational meaning,” let alone an “operational

meaning” that contradicts the central premises of the

opinion from which it is supposedly drawn. Beginning

with the presumption of reviewability under the APA,

Clarke simply requires a fair appraisal of Congress’ pur-

poses in enacting a statute and an assessment of whether

the petitioner’s interest bears a “plausible relationship”

to effectuating the statute’s underlying policies. 479 U.S.

at 403. In this case, the answer to that question, which

the court of appeals declined to address, is “yes.”

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cerned abou he developmen f new treatment capac

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that it intended at “advanced treatme} recy-

ing, incineration and other hazardous waste technologies

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should replace land disposal,” that it wanted to “force

e full development of alte tive waste management

technologies currently in existence,” and that it sought to

encourage “immediate investment in [the!| development

of alternative capacity.” Pet. at 15 (citations omitted).

sum, petitioner’s interest bears far more than a

‘plausible relationship” to the statutory purposes: its

inter is in providing the technology and investing in

the treatment capacity that Congress recognized was nec-

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essary to a eve its environmental goals.

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the Treatment Council to support the statutory interest

in developing treatment capacity and technology.

3. The Government takes us to task for “confus[ing]

two related, but separate issues: reviewability . .. and

the standing zone of interests test... .” Opp. at 8 n.5.

According to the Government, “(t]he general presump-

tion in favor of judicial review of agency action under

the Administrative Procedure Act does not concern the

issue of who are proper parties to challenge agency ac-

tion.” Opp. at 8 n.5.

The Government is wrong. In Clarke, the Court em-

phasized the close relationship between the presumption

of reviewability under the APA and the proper applica-

tion of the zone of interests test. 479 U.S. at 399." This

Court’s explicit reliance on the presumption of review-

ability—and the Court’s departure from the near mysti-

‘al inquiries and tests that had come to characterize the

doctrine of “prudential standing”—was hardly inadvert-

ent. See, €.9., DeLoss v. Dep't of Housing & Urban De-

velopment, 822 F.2d 1460, 1463 & n.3 (8th Cir. 1987).

Clarke set forth a comprehensible standard, not hostile

to judicial review of agency action. Application of that

standard is to be guided by the presumption in favor of

review and adherence to congressional intent. By con-

trast, the decision below reestablishes prudential standing

as a formidable obstacle to review and gives the courts

a broad subjective discretion to determine whom they

regard as “suitable champions” of a given position.

4. The Government’s approach confuses the inquiry

about “prudential standing” with the inquiry on the

merits. Thus, the Government argues that the central

focus here is whether “ ‘petitioner’s interests’ are more

3In Clarke, the Court repeatedly equated the two inquiries. Jd.

at 399, 400 (“The inquiry into reviewability does not end with the

‘zone of interest’ test.”) See also Block v. Community Nutrition

Institute, 467 U.S. 340, 348-52 (1984

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