Opposition — Bosco v. Beck

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No. 79-1643 j MICHAEL ROUAK, JR., CLERR

In the Supreme Court of the United States

OCTOBER TERM, 1979

MARGARET E. BOSCO, PETITIONER

Vv.

ECKARDT C. BECK, ETC... ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WapbE H. McCrer, JR.

Solicitor General

JAMES W. MoorMAN

Assistant Attorney General

EDWARD J. SHAWAKER

THOMAS H. PACHECO

Attorneys

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the Hnited States

OcTOBER TERM, 1979

No. 79-1643

MARGARET E. Bosco, PETITIONER

Vv.

ECKARDT C. BECK, ETC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

_ The court of appeals affirmed the decision of the

district court without opinion (Pet. App. 34). The opinion

of the district court (Pet. App. 37-72) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 34)

was entered on January 18, 1980. A petition for a writ of

certiorari was filed on April 15, 1980. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Environmental Protection Agency proper-

ly concluded that an environmental impact statement was

not required in connection with federal funding of a

sewerage collection and treatment project.

(1)

2

STATUTE INVOLVED

Section 102(2)(C) of the National Environmental Policy

Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). is reproduced

in the opinion of the district court (Pet. App. 44-45).

STATEMENT

The Clean Water Act, 33 U.S.C. 1251 ef segq..,

established aj program under which EPA may make grants

to a_ state,’ municipality, interstate agency or inter-

municipal agency for the construction of publicly-owned

wastewater treatment works. 33 U.S.C. 128I(g). Under

this program, EPA is funding 75% of the construction

costs of such/a project for Belvidere. New Jersey. See 33

U.S.C. 1282; see also 40 C.F.R. 35.900 e7 seg. (1978).

EPA determined that since the project did not have a

significant effect on the environment, no EIS_ was

required.' On September 8, 1978, EPA issued “negative

declarations” and an Environmental Impact Appraisal

(EIA) in support of this decision, as required by its

regulations (A.R. 32, 33)?. The EIA addressed the

environmental aspects of the project as required by 40

C.F.R. 6.212(b)(2)(i). Following issuance of the negative

declarations and EIA, public comments were solicited. No

significant environmental issues were raised during the

comment period. EPA awarded the construction grants

on September 29, 1978. Construction of the project began

on October 15, 1979, and continues at this time.

On June 13, 1979, petitioner sued the federal and state

respondents, alleging essentially that an EIS was required

in connection with the sewerage collection and treatment

'See 40 C.F.R. Part 6, Subpart E (1978) for EPA regulations

implementing NEPA in connection with wastewater treatment works

construction grants. New regulations appear at 44 Fed. Reg. 64174

(1979).

“AR.” refers to the administrative record.

3

project and seeking to enjoin the construction of the

project until an EiS was filed under 42 U.S.C. 4332(2)(C).

Following trial, the district court denied injunctive relief

and dismissed the complaint on August 30, 1979 (Pet.

App. 35-36). The district court held that EPA’s decision

not to prepare an EIS was justified because there were no

significant environmental impacts associated with the

sewerage project. The court of appeals affirmed without

opinion (Pet. App. 34).

ARGUMENT

The decision below is correct, does not conflict with the

decision of any other circuit, and does not raise any

important questions warranting this Court’s review.

The district court, in a considered opinion (Pet. App.

37-72), correctly held that EPA had assessed the

environmental impacts of the proposed sewerage project,

and had justifiably concluded that the consequences were

too insignificant to require an EIS. The EIA assessed the

effects of the project on air quality, noise levels, natural

resources, social and economic factors, water quality, and

other aspects of the environment (A.R. 32, 33 at 1I-6).}

Alternatives to the proposed project, with evaluations of

each, were also presented (A.R. 33 at 6-9). Steps to

minimize harm to the environment during construction

were described, including the incorporation into the

construction specifications of state Department of

Environmental Protection guidelines (id. at 9-10). The

3Contrary to petitioner's assertions (Pet. 22). the EIA dealt with the

subject of odors at the plant site and reasonably concluded that this

was not.a significant environmental impact (A.R. 32. 33 at 8). The

assessment noted homes are located within 600 feet of the site (A.R.

33 at 8). Odors are to be minimized by careful operation and

maintenance practices, the use of chlorine, and screening vegetation

to reduce wind velocity (id. at 3, 5).

4

EIA noted that records of a public hearing showed no

unanswered questions concerning the project (/d. at 11).

Based on the foregoing, EPA concluded there would be

no significant impacts such e° would require an EIS

(ibid.). Petitioner does not point to one significant

environmental impact of this project.

Petitioner primarily argues (Pet. 13-19) that the district

court incorrectly applied the “arbitrary-and-capricious”

standard of review to EPA’s decision not to prepare an

EIS, rather than the “reasonableness” standard, which

petitioner prefers. This issue is illusory because the district

court specifically found both standards were met (Pet.

App. 67 n.3 (the word “reasonable” in_ petitioner's

reproduction of this footnote should read reason-

ableness”’)).

Petitioner simply challenges the wisdom of the project.

NEPA, however, does not authorize the courts to

substitute their judgment as to the desirability of a

particular project. Strycker’s Bay Neighborhood Council,

Inc. v. Karlen, No. 79-168 (Jan. 7, 1980), slip op. 5;

Jicarilla Apache Tribe of Indians v. Morton, 471 F. 2d

1275, 1279-1280 (9th Cir. 1973); Committee for Nuclear

Responsibility, Inc. v. Seaborg, 463 F. 2d 783, 786-787

(D.C. Cir. 1971).4

4Petitioner also makes several unclear allegations of conflict of

interest, political pressure and the like in connection with the decision

to construct the sewerage project (Pet. 23-31). These allegations are

irrelevant to petitioner's NEPA claim, and petitioner has failed to

provide any factua! support for them.

5

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCrer, JR.

Solicitor General

JAMES W. MoorRMAN

Assistant Attorney General

EDWARD J. SHAWAKER

THOMAS H. PACHECO

Attorneys

JUNE 1980

DOJ-1980-06