Supplemental Brief — Public Service Co. v. Seacoast Anti-Pollution League

‘}P"bupreme Court, U.

FILED

SEP 14 1978

"WICHABL RCDAK. JR., CLERK

In THe

Supreme Court of the Gnited States

Octoser Term, 1978

No. 77-1624

PUBLIC SERVICE COMPANY OF

NEW HAMPSHIRE,

v.

SEACOAST ANTI-POLLUTION LEAGUE er at.,

Respondents.

Petitioner,

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

PETITIONER’S SUPPLEMENTAL BRIEF

Tuomas G. Dienan, Jr.

G. MarsHaLtt Moriarty

R. K. Gap m

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorneys for the Petitioner

Of Counsel:

WituraM S. Ecceiinc

Farrn S. Hocuserc

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

PRESS OF GEORGE H. DEAN CO., BOSTON

es

AS Coe A ee

In THE

Supreme Court of the Gnited States

Octroser TERM, 1978

No. 77-1624

PUBLIC SERVICE COMPANY OF

NEW HAMPSHIRE,

Petitioner,

v.

SEACOAST ANTI-POLLUTION LEAGUE er at.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

PETITIONER’S SUPPLEMENTAL BRIEF

PURSUANT TO

SUPREME COURT RULE 24(4-5)

Following the issuance of the mandate of the Court of

Appeals, the Administrator of the Environmental Protec-

tion Agency conducted supplemental administrative hear-

ings in accordance with the directives contained in the Court

of Appeals’ remand order.’ On August 4, 1978, the Admin-

istrator issued his Decision on Remand, in which he re-

affirmed his original approval of the petitioner’s cooling

system.

The Solicitor General has suggested in a Supplemental

Brief for the Administrator that these intervening events

‘In light of the Court of Appeals’ mandate, petitioner is unable

to understand the Solicitor General’s repeated suggestion that the

Administrator somehow “willfully elected” to conduct these addi-

tional proceedings.

2

provide “an additional ground for denying the petition for

certiorari in the present posture of this case.” Petitioner

suggests to the contrary: these events provide further evi-

dence that the petition should not be denied.

It should perhaps first be noted that there is nothing

“additional” in the Government’s newly alleged ground. It

is fundamentally indistinguishable from the only argument

advanced in the Solicitor General’s initial Brief for the

Administrator in Opposition. Therein, despite reciting that

the Government “do[es] not concede the correctness of the

holding of the court of appeals,” the Solicitor General urged

that the petition be denied because the Administrator might

again decide in favor of the petitioner’s cooling system.

That eventuality having indeed come to pass, the only new

variation in the Government’s theme is its argument that

because petitioner might prevail in the review proceeding

which has been newly instituted in the Court of Appeals,’

the petition should be denied. This is thus not an “addi-

tional ground”; nor is it a meritorious one.

The Government’s seeming disregard for the additional

expense and burden which further — potentially wholly

unnecessary — proceedings before the Court of Appeals

will entail is perhaps understandable. More troublesome is

the assumption — express in its Brief in Opposition and

2 The Government originally contended that a second favorable

decision by the Administrator would cause the petition to become

moot. The Supplemental Brief contains no suggestion of mootness,

however; no doubt because the obvious fallacy of that earlier con-

tention has been highlighted by actual events. Predictably, re-

spondents SAPL and Audubon petitioned the Court of Appeals

for review, upon substantive and procedural grounds, of the Ad-

ministrator’s Decision on Remand within a few days of its issuance;

thereby adding another level of litigation to an already nearly

interminable process. Were this Court to grant petitioner full

relief, the Administrator’s initial approval would be reinstated and

petitioner could proceed to construct its nuclear power plant un-

encumbered by the burdens attendant upon yet another round of

procedural carping in the Court of Appeals. Plainly the issues

have not become moot.

implicit in its newly filed Supplemental Brief — that peti-

tioner’s right to challenge the incorrectness of the Court of

Appeals’ decision will be preserved notwithstanding denial

of the instant petition. More realistically, however, it must

be expected that if the petition is denied, petitioner will be

met with an argument that the decision of the First Circuit

has become the law of the case and may no longer be chal-

lenged. Whatever the validity of such a contention, it can-

not presently be supposed that denial of the petition may

not foreclose further review of the errors in the Court of

Appeals’ interpretation of the Federal Water Pollution

Control Act and the Administrative Procedure Act.

While such foreclosure would undoubtedly severely prej-

udice petitioner, of perhaps equal importance to this Court

is the effect which outright denial of the petition could have

in this area of administrative law. The decision of the Court

of Appeals for which review is presently sought is one

which expands, seemingly infinitely, the potential applica-

tion of §§ 554-57 of the APA. That expansion appears to be

directly in conflict with several recent decisions of this

Court. Further, the Court of Appeals’ decision is one which

even the government respondent does not concede to be cor-

rect (although it limply proposes to postpone its challenge

to some other day). Finally, the Court of Appeals’ decision

is, both in approach and result, decidedly out of step with

this Court’s recent reiteration of the limits upon judicial

review of administrative decisionmaking: Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519 (1978).

The Court of Appeals’ decision — thus both extremely

important and extremely dubious — should not go unre-

viewed by this Court. Certainly it should not go unreviewed

on the basis of the specious arguments advanced by the

respondents. Post-filing events in this case in no way sup-

port a denial of the petition.

4

These events may, however, indicate that plenary review

of the decision by this Court might, at this time, be inappro-

priate. Considerations of judicial economy and a recogni-

tion of the finite limits upon this Court’s calendar may

caution against setting this case down for argument. Where

there are to be further proceedings in the Court of Appeals

and where that court did not have the benefit of the opinion

in Vermont Yankee, supra, at the time it reached its earlier

decision, the alternative disposition originally suggested by

petitioner may now appear to be the better course.

Therefore, in order to preserve the extremely important

issues presented by the First Cireuit’s decision, as well as

to give that court the opportunity to reconsider its resolu-

tion of those issues, the petition should be granted, the

judgment of the Court of Appeals should be vacated and

the case should be remanded for consideration in light of

Vermont Yankee.

Respectfully submitted,

Tuomas G. Dienan, JR.

G. MarsHaLt Moriarty

R. K. Gap m1

225 Franklin Street

Boston, Massachusetts 02110

(617) 423-6100

Attorneys for the Petitioner

Of Counsel:

Wri §8. Ecce.ixe

Fairu S. Hocuserc

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110