Opposition — Save The Bay, Inc. v. United States Corps of Engineers

80-171 /-—

Supreme Court, U.S.

No. FILR D

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, MICHAEL RODAK, JR., CLERK

: IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1980

SAVE THE Bay, INC.,

Petitioner,

Vv.

U.S. CORPS OF ENGINEERS, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for

the Fifth Circuit

RESPONSE AND BRIEF IN OPPOSITION FOR

RESPONDENT, E. I. DU PONT DE NEMOURS

AND COMPANY

ROBERT R. BONCZEK

DAVID B. SEBREE

STEVEN A. TASHER

Attorneys for the Respondent

E. I. du Pont de Nemours and Company

1007 Market Street

Wilmington, Delaware 19898

(302) 774-9715

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT ..............---

I. THE COURT OF APPEALS CORRECTLY AFFIRMED

THE FINDING OF THE UNITED STATES DISTRICT

COURT THAT THE CORPS OF ENGINEERS ON THE

BASIS OF AN ENVIRONMENTAL ASSESSMENT

CONDUCTED PURSUANT TO ITS REGULATIONS

PROMULGATED TO IMPLEMENT ITS RESPONSIBIL-

ITIES UNDER NEPA ACTED REASONABLY AND

OBJECTIVELY ON A REVIEWABLE ENVIRONMEN-

TAL RECORD IN ISSUING AN EFFLUENT OUTFALL

LINE CONSTRUCTION PERMIT ..............---

II. THE COURT OF APPEALS PROPERLY DETER-

MINED THAT NEPA DOES NOT IMPOSE UPON

THE CORPS OF ENGINEERS THE OBLIGATION TO

PREPARE AN EIS WHERE A NPDES PERMIT HAS

BEEN ISSUED UNDER THE FWPCA............

III. THE COURT OF APPEALS PROPERLY DETERMINED

THAT THE CORPS’ ISSUANCE OF A DREDGE AND

FILL PERMIT FOR THE CONSTRUCTION OF AN

OUTFALL LINE, WHICH IS INCIDENTAL AND NON-

ESSENTIAL TO RESPONDENT'S PRIVATE ACTIVI-

TIES, DID NOT CONSTITUTE A MAJOR FEDERAL

ACTION SIGNIFICANTLY AFFECTING THE QUAL-

ITY OF THE HUMAN ENVIRONMENT. ...........

IV. THE ISSUES PRESENTED ON THE PETITION FOR

CERTIORARI HAVE BEEN RENDERED MOOT BY

VIRTUE OF THE FACT THAT CONSTRUCTION OF

THE OUTFALL LINE WAS COMPLETED IN 1978

AND THE DU PONT PLANT HAS BEEN IN OPERA-

TION SINCE AUGUST OF 1979. .....ccccccccess

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O Opinion Below

10

14

17

22

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ii

TABLE OF AUTHORITIES

CASES:

Atlanta Coalition, Etc. v. Atlanta Regional Com-

mission, 599 F.2d 1833 (5th Cir. 1979) .........

Biderman v. Morton, 497 F.2d 1141 (2nd Cir. 1974) .

Citizens for Clean Air, Inc. v. U.S. Corps of Engji-

neers, et al., 349 F. Supp. 696 (S.D. N.Y. 1972) .

Citizens to Preserve Overton Park v. Volpe, 401

US. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)....

Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) .....

Florida Wildlife Federation v. Goldschmidt, 611

F.2d 547 (Sth Cir. 1980) ......... cee eeeeeeeees

Gage v. United States Atomic Energy Comm., 479

py IS | er

Kings County Economic Dev. Ass'n. v. Hardin,

478 F.2d 478 (9th Cir. 1978) .............0005.

Mahelona v. Hawaiian Electric Co., Inc., 418

F.Supp. 1328 (D. Ha. 1976) ................05.

Minnesota Public Interest Group v. Butz, 498 F.2d

EE, cen cpcccevecccsocsssccvces

New England Coalition v. U.S. Nuclear, Etc., 582

GI, BDU) coc cs cccccccccevcecees

Port - meee v. Hodel, 595 F.2d 467 (9th Cir.

eae ab ek task savsccccceccecece

Save our Ten Acres v. Kreger, 472 F.2d 463 (5th

EE

Save the Bay, Inc., et. al. v. Mississippi Air and

Water Pollution Control Commission, 341

Sener

Save the Bay v. Mississippi Air and Water Pollu-

tion Control Commission, Environmental

Protection Agency, Douglas M. Costle, Ad-

ministrator of the EPA, and the United States

of America, (S.D. Miss., Civil No. 577-0240-(N),

decided August 20,1977) ...............e cues

Save the Bay v. Mississippi Air and Water Pollu-

tion Control Commission, et. al., (5th Cir., No.

ETO

Save the Bay v. Train, 556 F.2d 1282 (5th Cir. 1977)

Page

16, 19

13

16

19

13

iii

Table of Authorities Continued

Page

Strycker’s Bay Neighborhood Council v. Karlen,

444 U.S. 223, 100 S.Ct. 497; 62 L.Ed.2d 433 (1980) 13

Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) 14

Wyoming Outdoor Coordinating Council v. Butz,

484 F.2d 1244 (10th Cir. 1973) ................. 13

STATUTES:

Rivers and Harbors Appropriation Act of 1899

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Federal Water Pollution Control Act

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83 U.S.C. 1871 (c) (1) —(2) ...... cece cece eens 8

33 U.S.C. 1871(c) (2)(A)—(B) ............005. 3, 15

National Environmental Policy Act of 1969

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a I ected: 64: c0u'e sedi cceusdea 3, 8,

10, 11

REGULATIONS:

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33 C.F.R. 209.410 (d) (2) (ii) 2.2... cece eee 11

GS 5 655 idee 040s Cekveteseicesoes 18

MISCELLANEOUS:

Legislative History of the Water Pollution Control

Act Amendments of 1972, 98d Cong. 1st Sess. at

OT Sis cwhi ys con seeeeeteeakaa ceee eee 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

SAVE THE Bay, INC.,

Petitioner,

Vv.

U.S. CORPS OF ENGINEERS, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for

the Fifth Circuit

RESPONDENT, E. I. DU PONT DE NEMOURS AND

COMPANY

BRIEF IN OPPOSITION

The Respondent, E. I. du Pont de Nemours and Company

(Du Pont), respectfully requests that this Court deny the

Petition for Writ of Certiorari, seeking review of the Fifth

Circuit’s opinion in this case. That opinion is reported at 610

F, 2d 322. |

OPINION BELOW

The United States Court of Appeals for the Fifth Circuit

affirmed the judgment of the United States District Court

for Southern Mississippi, which granted summary judgment

to Defendants (Respondents) on Plaintiff’s (Petitioner’s)

request for (1) an injunction against construction of a pipe-

line permitted by the U.S. Corps of Engineers under 33 USC

401 and 33 USC 1251, and (2) a declaratory judgment that

2

the Corps prepare an environmental impact statement

(EIS).

JURISDICTION

The opinion affirming the trial court’s judgment was ren-

dered January 24, 1980. Petition for Rehearing was denied

March 17, 1980. Stay of the Mandate pending this review

was entered April 16, 1980. Jurisdiction of this Court rests

on 28 USC 1254.

QUESTIONS PRESENTED

1. Whether the Circuit Court of Appeals was correct in

affirming the finding of the U.S. District Court that the U.S.

Corps of Engineers (Corps), on the basis of an environmen-

tal assessment conducted pursuant to its regulations

promulgated to implement its responsibilities under the Na-

tional Environmental Policy Act of 1969, 42 USC $4321 et

seq. (NEPA), acted reasonably and objectively on a review-

able environmental record in issuing an effluent outfall line

construction permit?

2. Whether NEPA imposes upon a federal agency the ob-

ligation to prepare an EIS on the effects of an effluent dis-

charge permitted under a National Pollutant Discharge

Elimination System (NPDES) permit issued under the Fed-

eral Water Pollution Control Act (FWPCA)?

3. Whether the Court of Appeals correctly determined

that issuance of a dredge and fill permit for the construction

of an outfall line did not constitute a major federal action

significantly affecting the quality of the human environment

since respondent’s private activities were incidentally and

unessentially related to the permit to construct?

4. Whether the issue of the construction and use of the

outfall line is now moot since construction was completed in

3

1978 and the plant has been in operation since August of

1979?

STATUTES INVOLVED

42 USC 4332(2)(c)

“The Congress authorizes and directs that to the fullest

extent possible...

All agencies of the Federal Government shall:

(c) Include in every recommendation or report on pro-

posals for legislation and other major federal actions sig-

nificantly affecting the quality of the human environment

a detailed statement (EIS) by the responsible official on:

(i) The environmental impact of the proposed ac-

tion,

(ii) Any adverse and environmental effects which

cannot be avoided should the proposal be implemented,

(iii) Alternatives to the proposed action,

(iv) The relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) Any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented. .. .”

33 USC 1371(c)(2)

“Nothing in the National Environmental Policy Act of

1969 shall be deemed to—

(A) authorize any Federal agency authorized to license

or permit the conduct of any activity which may result in

the discharge of a pollutant into the navigable waters to

review any effluent limitation or other requirement estab-

lished pursuant to this Act or the adequacy of any certifi-

cation under section 401 of this Act; or

4

(B) authorize any such agency to impose, as a condi-

tion precedent to the issuance of any license or permit,

any effluent limitation other than any such limitation pur-

suant to this Act.”

COUNTERSTATEMENT OF THE CASE

This case involves the construction of an outfall line from

a Du Pont titanium dioxide manufacturing plant to Bay of

St. Louis. To construct the outfall line, Du Pont first had to

obtain a permit from the Corps. In order to discharge

treated effluent through the outfall line, it was required to

obtain an NPDES permit pursuant to the FWPCA.

In 1975 Du Pont began construction of its plant at De

Lisle, Mississippi. It was completed in the summer of 1979

and has been in operation since August 1979. Pursuant to

public notice, and in most instances after public hearing, Du

Pont obtained permits or approvals from state and federal

agencies associated with construction and operation of the

plant. Various aspects of the plant’s impact on the environ-

ment were considered and environmental control measures

approved including:

¢ control and quality of treated water effluent approved

by the Mississippi Air and Water Pollution Control

Commission (MAWPCC) and the Environmental Pro-

tection Agency (EPA).

¢ control of air emissions by MAWPCC.

¢ control of solid waste by the Mississippi State Depart-

ment of Health.

¢ control of the impact on wetlands by the Mississippi Ma-

rine Resources Council.

¢ permission to drill a disposal deep well by the Missis-

sippi Oil and Gas Board.

¢ control of effluent disposed of into the deep well by

MAWPCC.

5

¢ permission to install an effluent outfall line into naviga-

ble waters by the U.S. Corps of Engineers.

It is this last permit that provides the basis for this

lawsuit.! Du Pont applied for the permit here in question on

November 21, 1974. It sought permission to install an outfall

line over a short distance of marshland and approximately

2,200 feet into the Bay of St. Louis via a ditch in the bottom

of the bay.

'In several separate but related cases, Petitioner has endeavored to

stop the effluent discharge authorized by the NPDES permit and the con-

struction and operation of a railroad line servicing the plant. This litiga-

tion provides a background against which this Petition should be exam-

ined.

In Save the Bay v. Administrator of the Environmental Protection

Agency, 556 F.2d 1282 (5th Cir., 1977), Save the Bay (STB), in an original

proceeding in the Court of Appeals, attacked the NPDES permit by chal-

lenging the EPA’s designation authority pursuant to the FWPCA, 33

USC §1251-1376. In particular, STB charged that the EPA acted improp-

erly by failing to revoke Mississippi's state NPDES permit. Briefly stated,

that Court held that STB must first exhaust its administrative remedies

before review was available in federal courts of appeals as to whether

EPA improperly failed to revoke Mississippi's state NPDES permit pro-

gram. In addition, the Court found that jurisdiction over EPA’s failure to

veto an NPDES permit was only proper in federal district court and that

in reviewing veto cases the district court may only examine (1) whether

the permit contains a violation of federal guidelines the agency has failed

to consider, and (2) whether unlawful factors have tainted the agency’s

exercise of discretion.

In Save the Bay, Inc., et al., v. Mississippi Air and Water Pollution

Control Commission, 341 So.2d 98 (Miss. 1976), STB was successful in

establishing its right to a hearing to challenge the MAWPCC permits. In

accordance with that holding, the Mississippi Supreme Court remanded

the case for further proceedings, which were held in the summer and fall

of 1977. At these hearings, STB presented evidence concerning the efflu-

ent discharge. Based on a review of this evidence, the MAWPCC, on

December 13, 1977, revised its original NPDES permit to incorporate a

number of STB’s suggestions. STB’s petition to review the revised permit

in Mississippi Chancery Court, Harrison County, No. 71954, was dis-

missed with prejudice on July 17, 1978.

6

The application was processed in accordance with the

Corps’ regulations, particularly those regulations promul-

gated to implement the Corps’ NEPA responsibilities. The

Corps solicited comments from federal and state agencies

and from the public. A public hearing was held on June 19,

1975, and an official transcript of all comments, written and

oral, was prepared. No agency expressed any concern over

environmental impact, and several expressed the view that

there would be no s.znificant impact. Various public groups

and private citizens commented in support of the proposed

action or in opposition to it.

Those who opposed, including the Petitioners, directed

their concern not to the outfall line but to the effluent that

would flow through it and be discharged into the Bay.

In Save the Bay v. Mississippi Air and Water Pollution Control

Commission, Environmental Protection Agency, Douglas M. Costle,

Administrator of the EPA and the United States of America (S.D.

Miss; Civil No. S77-0240-(N), decided August 20, 1977), STB sought,

among other things: (1) cancellation of the MAWPCC hearings being

conducted pursuant to the Mississippi Supreme Court order, (2) an in-

junction directing the MAWPCC to enjoin Du Pont from further construc-

tion on the plant, (3) cancellation of MAWPCC’s permits, (4) designation

of EPA as the appropriate agent to conduct further hearings, (5) prepa-

ration of an EIS by the PA, (6) a declaratory judgment on the issues

raised in the pleadings, (7) a writ of mandamus ordering EPA to with-

draw MAWPCC’s authority, and (8) a prayer for monetary relief. On

August 20, 1977, all of these claims were dismissed. In relevant part the

district court held (1) that EPA had no authority to cancel the permits,

(2) that there was no authority to halt construction on the plant, and (3)

that EPA did not have to prepare an impact statement, because the

NPDES permit was issued under State authority and further because

EPA is exempt from preparing impact statements under Section 511(a)

of the FWPCA, 33 USC 1871(a). [Because regulations have not been

promulgated for titanium dioxide it is not considered a new point source,

triggering the necessity for an EIS.] STB’s appeal in that case was dis-

missed by the Fifth Circuit on June 22, 1978, for lack of prosecution. Save

the Bay v. Mississippi Air and Water Pollution Control Commission

et al. (5th Cir. No. 77-8214).

7

On July 17, 1975, the Corps issued a detailed environmen-

tal assessment. It determined that the permitted activity

would have no significant impact on the environment and

deferred to the EPA and MAWPCC authorities’ expertise

regarding the quality of effluent to be discharged and the

conclusions of those agencies that the quality controls im-

posed by the NPDES discharge permit guaranteed no ad-

verse impact on the water quality of Bay of St. Louis.

On August 26, 1975 the permit issued. The permit autho-

rized construction of the outfall line. The permit contained a

condition that it did not authorize any discharge via the

pipeline to the Bay of St. Louis. Thus, such discharge was to

be controlled by NPDES permit as required by the appropri-

ate permitting agency, in this case MAWPCC.

One year after the permit issued, on August 5, 1976, Peti-

tioners brought this suit against the Corps and Du Pont in

the U.S. District Court for Southern Mississippi. Petitioners

charged the Corps with violating several federal laws and

asked that Du Pont be enjoined from constructing the line.

The court dismissed several of Petitioners’ claims, none of

which are at issue here. Ultimately, the questions before the

court were (a) did the Corps violate NEPA in failing to

prepare an EIS, (b) should outfall line construction be en-

joined until an EIS was prepared, and (c) should a prelimi-

nary injunction against construction issue pending final

judgment?

Though plant construction was under way, Du Pont stipu-

lated it would not commence construction of the outfall line

until the court ruled on the merits.

On December 9, 1977, the magistrate granted summary

judgment in favor of the Corps and Du Pont. Petitioners

appealed but sought no injunction against outfall line

8

construction pending appeal in either the trial or appellate

court, though it knew Du Pont was proceeding.”

In early 1978 STB appealed only to have the appeal dis-

missed on the technical ground that final judgment must be

entered by the judge—not his magistrate.

Upon execution of judgment by the judge, Petitioners

again appealed to the Fifth Circuit but still failed to request

interlocutory relief pending review.

In January 1980 the Fifth Circuit affirmed. The court re-

jected the appellant’s contention that the Corps’ determina-

tion was unreasonable, citing Save Our Ten Acres v. Kre-

ger, 472 F.2d 463 (5th Cir. 1973), noting that it was clear

that the Corps had testimony, evidence and comments from

individuals and governmental agencies which could lead it to

reasonably conclude that an EIS would not be necessary.

Moreover, the court rejected the appellant’s contention that

the grant of the outfall line construction permit constituted

a “major federal action significantly affecting the quality of

the human environment” under 42 USC §4332(2)(c) which

would have required the preparation of an EIS. Acknowl-

edging that the FWPCA, 33 USC §1871(c) (1) prohibits the

issuance of an NPDES permit from being deemed a major

federal action within the meaning of NEPA and that

§102(2)(c) of that Act prohibits federal agencies, under

2 Petitioner’s continued prosecution of the instant matter in light of the

failure to seek a stay against the pipeline construction is highly incongru-

ous. The clear purpose of the lawsuit was to require the United States

Corps of Engineers to prepare an EIS prior to the construction and opera-

tion of the Du Pont plant. Petitioner is fully aware that said plant has

been fully constructed and in operation since August of 1979. Petitioner's

failure to take any interlocutory action in an attempt to halt construction

during the pendency of the appeal renders the issues sought to be raised

herein as moot and the appeal should be dismissed on that ground. Flor-

ida Wildlife Federation v. Goldschmidt, 611 F.2d 547 (5th Cir. 1980).

9

guidance of NEPA, from reviewing any effluent limitation

as a condition precedent to the issuance of a license, the

court was unable to see how the granting of the outfall line

construction permit, after issuance of a valid NPDES per-

mit, could be considered a major federal action. The court

further examined and relied upon guidelines issued by the

Council on Environmental Quality which underscore the

proposition that a private project does not become a major

federal action because of some incidental federal involve-

ment. It thereupon concluded, on the unique and peculiar

facts of this case, that some greater involvement than is

present herein must be present in order for there to exist

major federal action.

SUMMARY OF THE ARGUMENT

The case at bar involves a local action which has no signifi-

cant impact upon the environment. Appellant’s unsupported

allegations concerning the massive environmental impact of

the Du Pont plant are in stark contrast to the record of this

matter which reveals the uniformly positive support and

clearance it has obtained from appropriate state and federal

environmental agencies. Construction of the effluent outfall

line from the plant to Bay of St. Louis was approved only

after a detailed environmental assessment by the Corps pur-

suant to its regulations promulgated to implement NEPA.

In deciding the case, the Fifth Circuit reviewed the volu-

minous administrative record below and relied upon factual

bases for its decision. Its resolution of the issues herein is

fully consistent with existing statutory and case law and

sets forth no novel legal theories.

The opinion of the lower court correctly notes that the

Corps of Engineers properly complied with the applicable

procedural requirements set forth in NEPA by performing

an environmental assessment before determining that this

action, i.e., issuing the permit, did not constitute a “major

10

federal action” significantly affecting the quality of the hu-

man environment and therefore did not require the prepara-

tion of an EIS.

Furthermore, the Fifth Circuit’s decision in the case at

bar appropriately recognized the clearly established man-

date of the FWPCA that the issuance of a NPDES permit

may not be deemed a “major federal action” and its further

expression that federal agencies (under guidance of NEPA)

may not review any effluent limitation under a NPDES per-

mit or impose any effluent limitation as a condition prece-

dent to the issuance of a license.

Additionally, the Fifth Circuit found that the lower court

properly determined on the unique factual record of the

case at bar that incidental and unessential federal involve-

ment in a private project does not “‘federalize” the action so

as to necessitate the preparation of an EIS.

Ultimate completion of the construction of the outfall line

and commencement of plant operations in August of 1979

viewed in light of the appellant’s failure to seek a stay of the

District Court judgment renders this petition moot and not

appropriate for consideration herein.

REASONS FOR DENYING THE WRIT

I. The Court Of Appeals Correctly Affirmed The Finding Of The

United States District Court That The Corps Of Engineers On

The Basis Of An Environmental Assessment Conducted Pursu-

ant To Its Regulations Promulgated To Implement Its Responsi-

bilities Under NEPA Acted Reasonably And Objectively On A

Reviewable Environmental Record In Issuing An Effluent Out-

fall Line Construction Permit.

Pursuant to the mandate of NEPA and as expressed in

§102(2)(c) of that Act, 42 USC 848382(2)(c), a federal

agency has the duty to prepare a detailed EIS in every ma-

11

jor federal action significantly affecting the quality of the

human environment.

In order to determine which of its actions as a federal

agency triggers the provisions of §102(2)(c), the Corps

promulgated regulations implementing NEPA. These regu-

lations, 33 CFR 209.410 et seg., require the District Engineer

to make an environmental assessment about a project be-

fore either granting a regulatory permit or withholding it

pending preparation of the EIS. They further require the

District Engineer to consider comments received from other

federal agencies as well as state and local agencies and the

public. Consequently, the Corps is able to make an informed

threshold decision on the applicability of NEPA’s mandate.

In the case at bar, it is clear that the Corps meticulously

complied with every detail of its statutory and regulatory

responsibilities by issuing a detailed environmental assess-

ment pursuant to 33 CFR 209.410(d) (2) (ii). It determined

that the permitted activity would have no significant impact

upon the environment and deferred to the EPA and

MAWPCC authorities’ expertise regarding the quality of

the effluent to be discharged and the conclusions of those

agencies that the quality controls imposed by the NPDES

discharge permit guaranteed no adverse impact on the wa-

ter quality of Bay of St. Louis. While there is little doubt

that NEPA establishes a clear mandate to all federal agen-

_ cies to give careful and informed consideration to environ-

mental values in their decision-making process, the record

of this case clearly reveals a wide ranging, good faith as-

sessment by the Corps of Engineers of the potential envi-

ronmental impact of its action. The Corps issued a public

notice of the instant permit application, seeking the input of

the appropriate federal, state and local agencies, numerous

environmental groups, various interested universities, busi-

ness groups, private organizations and individuals. Among

12

the groups included in this dissemination were: the Environ-

mental Protection Agency, the Fish and Wildlife Service, the

National Oceanic and Atmospheric Administration, Missis-

sippi’s Marine Resources Council and Air and Water Pollu-

tion Control Commission, Missigsippi’s State Clearinghouse

for Federal Programs, the Mobile Wildlife Conservation

Center, the Sierra Club and approximately 110 other groups,

agencies and individuals.

The response from appropriate state and federal agencies

was unanimously positive. The EPA informed the Corps

that it had no objections to the issuance of the Du Pont

permit. The Fish and Wildlife Service stated that the pro-

posed project would have no adverse effect on fish and wild-

life resources and expressed no objection to the issuance of

the permit. The Mississippi Marine Resources Council noti-

fied the Corps that the project would have no significant

adverse impact on coastal wetlands, and the Mississippi

State Clearinghouse for Federal Programs informed the

Corps that the action was consistent with present state

goals and policies. Only the National Marine Fisheries Serv-

ice, in a form response, failed to grant unqualified approval

of the project, based upon the fact that it had not been able

to investigate the plan. In fact, no federal, state or local

agency with expertise on these matters expressed any ob-

jection to the instant project.

In order to collect additional data for its determination of

whether the project constituted a major federal action, the

Corps conducted a public hearing at which time opponents

and proponents of the project were given the opportunity to

express their views. Only after an exhaustive review of the

extensive administrative record, a detailed examination of

five different environmental criteria, the comments of vari-

ous groups and individuals, did the District Engineer issue

the permit to dredge and fill. It is important to note that this

13

is not a case where important aspects of environmental im-

pact were not considered. Quite the contrary, the activity

permitted by the Corps received exhaustive review after

which the Corps concluded that there would be no perma-

nent or significant adverse environmental effects.

The Fifth Circuit correctly determined that the standard

for review of an agency determination that an EIS need not

be prepared is whether such determination is reasonable,

made objectively and in good faith on a reviewable environ-

mental record.* Save Our Ten Acres v. Kreger, supra. See

also Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975); Minne-

sota Public Interest Group v. Butz, 498 F.2d 13814 (8th Cir.

1973); Wyoming Outdoor Coordinating Council v. Butz,

484 F.2d 1244 (10th Cir. 1973).

Rejecting the Appellant’s contentions that the Corps’ de-

termination was unreasonable, the Fifth Circuit recounted

the extensive evidence before the Corps and the Corps’ inde-

pendent environmental assessment of the proposed action

and held that the Corps had testimony, evidence and com-

ments from individuals and governmental agencies which

could lead it to reasonably conclude that an EIS was not

necessary. This rule of reason approach is fully consistent

with the guidelines for review which have been set forth by

this Court in Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 416, 91 S.Ct. 814, 828, 28 L.Ed. 2d 136, 153

(1971). Most recently, in Strycker’s Bay Neighborhood

Council v. Karlen, 444 U.S. 228, 100 S.Ct. 497, 500, 62 L.Ed.

2d 438, 437-438 (1980), this Court has reemphasized the fact

that while NEPA has established significant substantive

3 Petitioner readily concedes that the standard applied by the Fifth Cir-

cuit is legally appropriate. They nevertheless seek, using the improper

vehicle of a Petition for Certiorari, to have this Court review a factual

determination which has previously undergone extensive administrative

and judicial scrutiny.

14

goals for the nation, it imposes upon agencies duties that

are essentially procedural and that once an agency has

made a decision subject to NEPA’s procedural require-

ments, the only role for the Court is to insure that the

agency has considered the environmental consequences. In

short, it should not interject itself within the area of discre-

tion of the executive as to the choice of action to be taken.

See also Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519, 554-555, 98 S.Ct. 1197, 1217, 55 L.Ed. 2d 460, 486

(1978).

Finally, it is evident that what the petitioners seek in the

instant writ—further review of the reasonableness of the

Corps’ determination constitutes yet another factual review

of a matter which has previously undergone extensive ad-

ministrative inquiry in addition to two levels of judicial in-

vestigation. The voluminous factual record upon which the

Corps made its determination has been exhaustively re-

viewed. It is respectfully submitted that such application

falls outside the purview of those matters reviewable within

the context of a Writ of Certiorari and should consequently

be denied.

II. The Court Of Appeals Properly Determined That NEPA Does

Not Impose Upon The Corps Of Engineers The Obligation To

Prepare An EIS Where A NPDES Permit Has Been Issued Un-

der The FWPCA.

The Fifth Circuit’s decision affirming the Corps’ determi-

nation limiting its review to construction and operation of

the outfall line and excluding the environmental conse-

quences of the effluent discharged therefrom was premised

upon the interrelationship between NEPA and the FWPCA.

More particularly, the Fifth Circuit decision is consistent

with the clearly established FWPCA mandates that the issu-

ance of a NPDES permit may not be deemed a “major fed

15

eral action” and that Federal agencies (under guidance of

NEPA) may not review any effluent limitation.

Section 511(c) (2) (A)-(B) of the Federal Water Pollution

Control Act, 33 USC 1871(c) (2) (A)-(B), expressly states

that NEPA may not be used by a Federal agency as a basis

to review any effluent limitation established pursuant to the

FWPCA or impose any effluent limitation in connection with

any permit or license other than such limitation established

pursuant to the FWPCA. Moreover, the Act expressly ac-

knowledges that no action taken by the Administrator pur-

suant to this Act shall be deemed a major Federal action

significantly affecting the quality of the human environ-

ment. That section provides, in pertinent part, that:

(c) (1)

“{njo action of the Administrator taken pursuant to

this chapter shall be deemed a major Federal action so

affecting the quality of the human environment within

the meaning of the National Environmental Policy Act

of 1969; and

(c) (2)

“Nothing in the National Environmental Policy Act of

1969 shall be deemed to

“(A) authorize any Federal agency authorized to li-

cense or permit the conduct of any activity which

may result in the discharge of a pollutant into

the navigable waters to review any effluent limi-

tation or other requirement established pursuant

to this chapter. . .or

“(B) authorize any such agency to impose, as a condi-

tion precedent to the issuance of any license or

permit, any effluent limitation other than any

such limitation established pursuant to this chap-

ter.”

16

The legislative history of this section clearly reveals the

Congressional intent that NEPA not be used to impose

stricter limitations than those imposed by the State or EPA

NPDES permit:

“(njothing in the National Environmental Policy Act

may be construed as the basis for the establishment by

other Federal agencies of more stringent controls on

the discharge of pollutants other than those provided

under this Act nor are such agencies authorized to re-

view or alter effluent limitations issued under this Act.”

Legislative History of the Water Pollution Control Act

Amendments of 1972, 93d Cong. 1st Sess. at p. 239

This position has received broad judicial approval among

the circuits. In New England Coalition v. U.S. Nuclear,

Etc., 582 F.2d 87 (1st Cir. 1978), the First Circuit has specifi-

cally determined that under Section 511(c)(2)(A) the Nu-

clear Regulatory Commission, in fulfilling its NEPA obliga-

tion, was not required to make an independent inquiry into

the EPA’s findings on the effect the Seabrook nuclear plant

would have on the aquatic environment. To that effect, the

court noted:

“The NRC argues, and we agree, that it can properly

limit its concern to deciding whether permits should be

issued given the aquatic impact as determined by the

EPA.” /d at 98.

And in Mahelona v. Hawaiian Electric Co., Inc., 418 F.

Supp. 13828, 1886 (D.Ha. 1976), a case upon which Appellant

has placed heavy reliance, the same result was reached

when the court noted that to conform with the FWPCA, an

EIS may not reassess the water quality considerations

which had already been addressed by EPA. Mahelona, su-

pra at 1336.

It is therefore clear that the court’s determination that

the instant project did not constitute a “major federal ac-

17

tion” was premised upon its proper analysis of the interrela-

tionship between the FWPCA and NEPA. The Fifth Cir-

cuit’s determination that the Corps properly limited the

scope of its environmental assessment on water quality to

the environmental consequences which would result from

the construction and operation of the outfall line and that

the environmental consequences of the effluent was a factor

to be excluded from their consideration was fully consistent

with the express mandate of the FWPCA. The FWPCA pre-

cludes the very type of duplicative review by federal agen-

cies which Petitioner seeks herein. Appellant’s assertions to

the contrary, the environmental consequences which may be

associated with the effluent have received and will con-

tinue to receive extensive environmental scrutiny by the

State of Mississippi upon whom the NPDES responsibility

on water quality has been duly conferred, and by the EPA.

III. The Court Of Appeals Properly Determined That The Corps’

Issuance Of A Dredge And Fill Permit For The Construction Of

An Outfall Line, Which Is Incidental And Nonessential To Re-

spondent’s Private Activities, Did Not Constitute A Major Fed-

eral Action Significantly Affecting The Quality Of The Human

Environment.

The STB decision represents another in a long line of

NEPA determinations with respect to an evaluation of the

question of whether a particular project constitutes a major

federal action significantly affecting the quality of the hu-

man environment. In reaching its determination herein, the

Court of Appeals simply applied the facts of the case at bar

to the applicable NEPA law. The court’s determination em-

phasized and relied upon the guidelines issued by the CEQ

which suggest that a private project does not become a “ma-

jor federal action” merely because of some incidental fed-

eral involvement. Furthermore, the Fifth Circuit carefully

examined the protracted factual record of this matter and,

based upon the particular facts established herein, properly

18

determined that Appellant failed to establish a sufficient

nexus between the Corps’ permit and the construction of the

entire Du Pont plant so as to “federalize” the project. The

soundness of this determination is evident.

Under the guidelines issued by the Council on Environ-

mental Quality, 40 CFR 1500.6(c), an agency need only pre-

pare an impact statement on an otherwise private action

when the agency has control over the “action-causing”’ im-

pact. Those guidelines state that:

The identification of major actions significantly affect-

ing the environment is the responsibility of each federal

agency, to be carried against the background of its own

particular operations. The action must be (1) “major” ac-

tion, (2) which is a “Federal” action, (3) which has a “sig-

nificant” effect, and (4) which involves the “quality of the

human environment”. The words “major” and “signifi-

cantly” are intended to imply thresholds of importance

and impact that must be met before a statement is re-

quired. The action causing the impact must also be one

where there is sufficient Federal control and responst-

bility to constitute Federal action. 40 CFR 1500.6(c)

(emphasis supplied)

Appellant’s contentions notwithstanding, a private project

does not automatically become a “major federal action”

merely on the basis of some tangential federal involvement.

The Court of Appeals carefully reviewed the cases relied

upon by STB in support of its position that the issuance of

the outfall permit by the Corps somehow served to “‘federal-

ize” the project. The Court’s rejection of appellant’s argu-

ment was not premised upon its disagreement with the gen-

eral principles set forth in those cases, but rather upon a

determination that the facts in those cases were clearly dis-

tinguishable from the case before it. Since the case of Citi-

zen’s for Clean Air, Inc. v. U.S. Corps of Engineers et al.,

349 F.Supp. 696 (S.D. N.Y. 1972) preceded the FWPCA

19

amendments of 1972, the court correctly noted that the deci-

sion was no longer supportive of the proposition advanced

by STB. With respect to Port of Astoria v. Hodel, 595 F.2d

467 (9th Cir. 1979), the court contrasted the incidental fed-

eral involvement of the case at bar with the long term con-

tractual relationship between a federal agency and a private

corporation in which the proposed private manufacturing

plant was entirely dependent upon electrical power to be

supplied by the federal agency. Finally, the court correctly

observed appellant’s misplaced reliance upon Mahelona v.

Hawaiian Electric Co., Inc., supra, where the problem was

not that the Corps failed to examine the effects of the elec-

trical generating plant, but rather failed to review the envi-

ronmental consequences of the very activity the Corps per-

mitted, i.e., a wastewater discharge facility.

A recent case arising out of the Fifth Circuit contains a

well reasoned discussion of the interrelationship between

private and federal action. In Atlanta Coalition, Etc. v.

Atlanta Regional Comm’n, 599 F.2d 1333 (5th Cir. 1979),

the court, commenting upon the relationship between the

United States Department of Transportation’s planning re-

sponsibilities and Atlanta’s local regional development plan

within the context of the applicability of NEPA to private

action, observed that while it would not quarrel with the

proposition that in some circumstances, ‘federal involve-

ment [could be] so massive, so pervasive that the acts of

the state are in reality federal actions,” the mere funding of

a particular development program by the federal agency fell

far short of the requisite involvement to “federalize” the

activity. Atlanta Coalition, Etc., supra, at p. 1846 (empha-

sis supplied).

The Court of Appeals’ determination that the grant of an

outfall line construction permit, after issuance of a valid

NPDES permit, did not constitute sufficient involvement to

20

be characterized as “major federal action” was entirely ap-

propriate. That decision was a narrow one and based en-

tirely on the unique factual circumstances set forth in this

record which clearly reveal the de minimis environmental

impact associated with the construction and operation of the

outfall line. °

Moreover, appellant’s suggestion that a private project

automatically becomes a major federal action merely be-

cause of some tangential federal involvement loses much of

its force in light of the fact that the requisite federal action

is only present when federal approval is a necessary condi-

tion precedent without which the private action could not

take place. Biderman v. Morton, 497 F.2d 1141, 1147-1148

(2nd Cir. 1974). See also Kings County Economic Dev.

Ass'n. v. Hardin, 478 F.2d 478, 480-481 (9th Cir. 1973); Gage

v. United States Atomic Energy Comm., 479 F.2d 1214,

1220 (D.C. Cir. 1973). The Fifth Circuit has correctly noted

that utilization of the outfall structure was never a condi-

tion precedent to the plant’s operation and that at least two

alternative waste disposal techniques were available. One

alternative method involved deep well injection and the

other would have resulted in discharge into the natural non-

navigable drainage swale and then into the Bay of St. Louis.

Since neither of these options would have required a permit

from the Corps, the requisite nexus between the federal

agency and the private action is missing.

In sum, it is evident that the Fifth Circuit’s determination

that the Corps’ determination that the instant project did

not constitute a “major federal action” significantly affect-

ing the quality of the human environment was correctly de-

cided on the peculiar and unique factual record set forth

below. The court’s decision was premised upon its concur-

rence with the determination of the Corps, which was per-

formed in conformity with all statutory and regulatory

21

criteria and guidance, and its careful examination and reli-

ance upon CEQ guidelines on this very point.

IV. The Issues Presented In The Petition For Certiorari Have Been

Rendered Moot By Virtue Of The Fact That Construction Of

The Outfall Line Was Completed In 1978 And The Du Pont

Plant Has Been In Operation Since August Of 1979.

Petitioner has repeatedly maintained that the courts be-

low erred in not finding that the grant of the outfall line

construction permit was a “major federal action signifi-

cantly affecting the quality of the human environment” and

therefore requiring the preparation of an EIS. However,

continued prosecution of the instant matter in light of the

failure to seek a stay against the outfall line construction is

highly incongruous.

The clear purpose of the lawsuit was to require the Corps

to prepare an EIS prior to the construction and operation of

the Du Pont plant. When the instant action was brought,

Du Pont stipulated that it would not commence outfall line

construction until the District Court ruled on the merits of

this case. After summary judgment was granted in favor of

the Corps and Du Pont, construction on the outfall line was

begun. While Petitioners filed an appeal of the lower court

determination, they failed to seek an injunction against out-

fall line construction pending appeal to either the trial or

appellate court, though they knew Du Pont was proceeding.

Construction of the outfall line was completed in October

of 1978 and the plant has been fully constructed and in oper-

ation since August of 1979. Petitioner’s failure to take any

interlocutory action in an attempt to halt construction dur-

ing the pendency of the appeal and more importantly, the

actual completion of the activity of concern renders the is-

sues sought to be raised herein as moot.

22

CONCLUSION

In sum, the lower court determination was a narrow one

and based entirely on the unique and particular factual cir-

cumstances set forth in this record. The court’s decision is

not in conflict with any previous decision of this court or any

decision of another circuit and does not establish any new or

novel legal theories or precedents. The instant application

requests that this court reexamine what is essentially a fac-

tual matter which has already received extensive regulatory

agency and judicial evaluation. For the foregoing reasons,

the Petition for a Writ of Certiorari filed by STB presents no

issues warranting further review and should be denied.

Respectfully submitted,

ROBERT R. BONCZEK

DAVID B. SEBREE

STEVEN A. TASHER

1007 Market Street

Wilmington, Delaware 19898

Counsel for E. I. du Pont

de Nemours and Com-

pany

September 4, 1980

23

CERTIFICATE OF SERVICE

I, Robert R. Bonczek, Legal Department, E. I. du Pont

de Nemours and Company, attorney for Respondent,

Du Pont, do hereby certify that I have this day mailed a

copy, postage prepaid, of the foregoing Response to Petition

for Writ of Certiorari to:

Earl L. Denham

Levi, Denham and Russell, P.A.

P.O. Box 596

Ocean Springs, Mississippi 39564

Robert W. Smith

507 Lamuese Street

Biloxi, Mississippi 39530

Chief Appellate Section

Land and Natural Resources Div.

Department of Justice

Washington, DC 20530

Attn: Nancy Firestone

DJ File # ATC: MPC

90-5-1-7-491

L. K. Travis

Asst. U.S. Attorney

P.O. Box 2091

Jackson, Mississippi 39205

This, the 4th day of September, 1980.

ZOPDEL/

Robert R. Borfezek ©

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 79-1432

SAVE THE BAY, INC.,

Plaintiff-Appellant,

V.

THE UNITED STATES CORPS OF ENGINEERS, UNITED STATES

ARMY, COLONEL DRAKE WILSON, and E.I. Du PoNT DE

NEMOURS AND COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

Jan. 24, 1980.

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

GARZA, Circuit Judge:

Appellant appeals from refusal of the United States Mag-

istrate, acting on behalf of the District Court by consent of

the parties, to require the United States Corps of Engineers

to prepare an Environmental Impact Statement (EIS) as

provided for under the National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. $4821 et seg. Appellants argue

the Court below erred in concluding that the environmental

assessment by the district engineer was reasonable and

based on substantial evidence, that the activity involved was

not a major federal action significantly affecting the quality

of the human environment, and that the Corps of Engineers

was not required to consider the environmental conse-

quences of the entire project but only the effects of the in-

stallation and maintenance of a twenty-four inch outfall

pipeline. Appellees argue on appeal that Appellants have no

2a

standing to challenge the actions of. the Corps of Engineers.

For the reasons stated below, we affirm the ruling of the

United States Magistrate.

FACTS

At the time this litigation began, the defendant, E.I.

Du Pont De Nemours & Co., Inc., proposed to construct and

operate a massive titanium dioxide manufacturing facility in

Delisle, Mississippi. Pursuant to this plan, Du Pont sought

necessary authorization and permits from appropriate state

and federal agencies.

On November 21, 1974, Du Pont sought authorization

from the defendant, Army Corps of Engineers, to install a

twenty-four inch diameter effluent line into the marshlands

and Bay of St. Louis. The effluent line would carry approxi-

mately two million gallons per day of industrial wastewater

and discharge it into the Bay of St. Louis. The line would be

approximately 2,200 feet in length extending into the Bay

and construction would require removal of 610 cubic yards

of dredged material from the Bay.

On February 3, 1975, the Mississippi Air and Water Pollu-

tion Control Commission, acting pursuant to authority dele-

gated to it by the Environmental Protection Agency, issued

a National Pollutant Discharge Elimination System

(NPDES) permit to Du Pont allowing discharge of the

wastewater in accordance with the conditions of the permit.

Following solicitation of comments from federal, state

and local agencies concerning the proposed pipeline con-

struction permit, the Corps of Engineers announced a public

hearing would be held on June 19, 1975, to answer any ques-

tions concerning issuing of the pipeline construction permit.

In keeping with the Corps’ prior determination that only the

construction of the pipeline was subject to their regulation,

3a

the public notice for the hearing was limited to the installa-

tion of the twenty-four inch diameter pipeline and made no

mention of consideration of other aspects of the Du Pont

plant in the issuance of its permit. On June 19, 1975 the

hearing was held and all proponents and opponents were

allowed to express their views. The proponents consisted

mostly of governmental or business organizations and gen-

erally testified as to the favorable economic impact the plant

would have. The opponents, consisting mostly of ecological

and recreativnal organizations, testified generally that a po-

tential danger to marine life existed and that an Environ-

mental Impact Statement was necessary.

On July 17, 1975, Colonel Drake Wilson, District Engineer

for the Mobile Corps of Engineers, issued a Statement of

Findings assessing the impact the proposed activity would

have on the environment. The Corps determined there would

be no adverse effect on air quality and that water quality

would be only temporarily affected. The findings also noted

the issuance of the NPDES permit and that the Environ-

mental Protection Agency had no objection to the issuance

of the Corps’ permit. The statement, also taking into consid-

eration the determinations of the Mississippi Marine Re-

sources Council and the Gulf Coast Research Laboratory,

found there would be no significant adverse effect on land

use, visual aesthetics, wildlife, sealife, vegetation, or histori-

cal interests. Based on the administrative record, Colonel

Wilson directed that the permit be issued. The permit only

authorized building the pipeline and was subject to several

conditions, one of which required that Du Pont have a

proper NPDES permit governing the effluent discharge.

The Plaintiff, Save the Bay, Inc., brought suit pursuant to

the National Environmental Policy Act (NEPA) against the

United States Army Corps of Engineers, the United States

Army, Colonel Drake Wilson, Mobile District Office of the

4a

Corps of Engineers, and Du Pont seeking declaratory and

injunctive relief and monetary damages. The case was re-

ferred to the United States Magistrate by the District Judge

and thereafter the defendant’s Motions for Summary Judg-

ment were granted and judgment was entered December 16,

1977 dismissing the complaint with prejudice.

STANDING

Save the Bay’s complaint alleges that it is a nonprofit cor-

poration organized under the laws of the State of Missis-

sippi; that its membership is primarily composed of numer-

ous full-time and part-time residents of Harrison and

Hancock Counties in the State of Mississippi; and that its

members will be adversely affected economically,

aesthetically and environmentally.

Appellee Du Pont urges on appeal that Save the Bay has

failed to establish standing under §10 of the Administrative

Procedures Act, 5 U.S.C. § 702. Specifically, Du Pont argues

that under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct.

1361, 31 L.Ed.2d 636 (1972) and United States v. SCRAP,

412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), Save the

Bay must allege that its members “use” the area and that

the proposed federal action will significantly affect their

“use”. Du Pont’s reliance on Sierra Club v. Morton, supra,

is misplaced. Here, the Plaintiff has alleged economic, aes-

thetic and environmental injury to its members and clearly

has gone beyond mere general allegations of grievance on

behalf of the public interest. Du Pont’s argument, that fail-

ure to specifically allege “usage” of the geographic area is

fatal to Plaintiff’s standing, is without merit. An obvious

inference of the English language is that residents of a geo-

graphical area “use” that geographical area. An allegation

of residence coupled with an allegation of injury caused by

federal action affecting the area of that residence clearly

5a

demonstrates that the party seeking review is among those

injured. We fail to see how the acts of camping, hiking, fish-

ing or sightseeing, in a particular geographic location, held

sufficient for standing in United States v. SCRAP, supra,

can be considered more relevant for purposes of standing

than can the act of residing in a particular geographic loca-

tion.

REASONABLENESS OF THE CORPS’ DECISION

The Court below noted that the standard for review of an

agency determination that an Environmental Impact State-

ment need not be prepared is whether such determination is

reasonable. This standard was set forth by this Court in

Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973).

If the determination is reasonable and made objectively and

in good faith on a reviewable environmental record, the de-

termination must be upheld. The Court below found that the

environmental assessment prepared by the Corps com-

pletely and fully addressed the possible environmental con-

sequences, that the assessment was based on substantial

evidence, and that Corps complied with appropriate federal

statutes and regulations. Appellants contend that the Corps’

determination was unreasonable. They argue that the testi-

mony and evidence offered in opposition to the building of

the pipeline and plant should compel the conclusion that an

EIS is required. The Appellants further argue that the

Corps abdicated its responsibilities by failing to conduct in-

dependent studies and by considering the evaluations of

other governmental agencies concerning the pipeline’s po-

tential adverse effects.

We do not agree with Appellant’s contentions. Without

detailing every point and counter-point of evidence before

the Corps, it is clear that the Corps had testimony, evidence

and comments from individuals and governmental agencies

6a

which could lead it to reasonably conclude that an EIS

would not be necessary. The Corps received and reviewed

comments from several governmental agencies! as well as

from quasi-governmental and business organizations. With

little exception, all comments from governmental agencies

indicated there would be no significant adverse impact on

the environment. We cannot agree with Appellant that con-

sulting with these agencies was improper. The National En-

vironmental Policy Act, 42 U.S.C. § 4832(2)(C) requires

that federal agencies consult with other agencies whose

area of expertise is superior to their own. Of course, this

should not be understood as allowing the Corps to base their

determination solely on the comments of other agencies.

Perhaps the most basic requirement of NEPA is that all

federal agencies make an independent environmental as-

sessment of the proposed action. The Court below correctly

recognized this in distinguishing this case from Mahelona v.

Hawaiian Electric Company, 418 F.Supp. 1828 (D. Hawaii

1976) wherein the Corps of Engineers erroneously consid-

ered the advisements of the EPA as determinative and con-

sequently failed to independently determine whether or not

the proposed action would have a significant impact on the

human environment. For these reasons we hold the Corps’

decision was not unreasonable.

A MAJOR FEDERAL ACTION?

Appellants contend the court below erred in not finding

the grant of the pipeline construction permit was a “major

Federal action significantly affecting the quality of the hu-

' Among those agencies were the following: the Environmental Protec-

tion Agency, the Department of Interior, Fish and Wildlife Service, the

Department of Commerce, the National Oceanic and Atmospheric Admin-

istration, the Mississippi Marine Resources Council, the Mississippi Air

and Water Pollution Control Commission, and the Mississippi State Clear-

ing House for Federal Programs.

Ta

man environment’, under 42 U.S.C. §4332(2) (C), and there-

fore requiring preparation of an EIS. In furtherance of this

contention they argue that granting almost any Federal per-

mit to this massive multimillion dollar manufacturing plant

should trigger the obligations of NEPA.

The Court below held that the provisions of NEPA must

be read in context of other language in the Federal Water

Pollution Control Act (FWPCA), 33 U.S.C. 81251 et seq.,

which places control of water pollution caused by dis-

charges of effluents in the hands of the states and the EPA.

United States v. SCRAP, supra. The court went on to hold,

citing Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1979)

and Port of Astoria v. Hodel, 8 ERC 1156, aff’d 595 F.2d 467

(9th Cir. 1979), that the issuance of the Corps’ permit was

not a sufficient nexus between the Corps and construction of

the Du Pont plant to make the Corps a partner in such con-

struction and thereby “federalize” the construction of the

Du Pont plant. In other words, the granting of the pipeline

permit by the Corps was not a “major Federal action”

within the meaning of NEPA.

In addition to the Court’s holding, it should also be noted

that FWPCA, 33 U.S.C. §1371(c)(1),? ordinarily prohibits

the issuance of a NPDES permit from being deemed a major

Federal action significantly affecting the quality of the hu-

man environment within the meaning of NEPA. Further-

more, § (c)(2) prohibits Federal agencies, under guidance

of NEPA, from reviewing any effluent limitation under a

NPDES permit or from imposing any effluent limitation as a

condition precedent to issuance of a license.

2 33 U.S.C. §1371(c) (1) and (2) provides as follows: (c) (1) Except for

the provision of Federal financial assistance for the purpose of assisting

the construction of publicly owned treatment works as authorized by sec-

tion 1281 of this title, and the issuance of a permit under section 1342 of

this title for the discharge of any pollutant by a new source as defined in

8a

The decision of the Court below in no way held that the

Corps was precluded from preparing an EIS because of

FWPCA, but instead held that the Corps’ determination, of

whether or not issuance of the construction permit was a

“major Federal action”, was limited to construction and op-

eration of the pipeline itself and correctly held that the envi-

ronmental consequences of the effluent was a factor to be

excluded from their consideration.

In reaching our conclusion on this point we are not un-

mindful of the impact that building of this massive manufac-

turing plant will have on the people of Harrison and Han-

cock Counties, but the requirements of NEPA do not reach

private acts—only “major Federal actions.” We fail to see

how granting of the pipeline construction permit, after issu-

ance of a valid NPDES permit, can be considered a major

Federal action. An examination of the guidelines issued by

the Council on Environmental Quality, 40 C.F.R. 1500.6(c),

indicates that a private project does not become a “major

Federal action” merely because of some incidental federal

involvement. In this case, the pipeline itself was not a neces-

sity for operation of the plant. At least one alternative

method of discharge, not requiring any Corps permit, was

section 1316 of this title, no action of the Administrator taken pursuant to

this chapter shall be deemed a major Federal action significantly affecting

the quality of the human environment within the meaning of the National

Environmental Policy Act of 1969 (83 Stat. 852); and (2) Nothing in the

National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed

—

(A) authorize any Federal agency authorized to license or permit

the conduct of any activity which may result in the discharge of a

pollutant into the navigable waters to review any effluent limitation or

other requirement established pursuant to this chapter or the adequacy

of any certification under section 1341 of this title, or

(B) authorize any such agency to impose, as a condition precedent to

the issuance of any license or permit, any effluent limitation other than

any such limitation established purusant to this chapter.

9a

available to Du Pont. We are not saying that the requisite

Federal action must be a condition precedent to‘private ac-

tion in order for preparation of an EIS to be required. But

we do hold that in order for there to exist “major Federal

action” some greater involvement, than is present in the

case at hand, must exist.

THE PIPELINE OR THE WHOLE PLANT?

Appellant’s most virgorously argued point on appeal and

perhaps the point which would control the outcome of this

case contests the Corps looking only to the environmental

consequences of the pipeline construction and maintenance

instead of considering the entire Du Pont project in its deci-

sion on whether or not to prepare an EIS.* Appellants assert

that narrowing the scope of inquiry to the pipeline construc-

tion alone is the “blinder” approach which should be re-

jected by this Court. By analogy they compare the Du Pont

facility to a living organism which at one end eats chlorine

gas and at the other end excretes hydrocloric acid, iron,

chromium, zinc, and other nastiness to the tune of 2,000,000

gallons per day. Their argument is that but for the permit

there would be no pipeline; without the pipeline there would

be no excretion; without the ability to excrete the plant

would suffocate in its own waste. They argue that the per-

mit “enables” the plant to exist and therefore the entire

plant should be taken into consideration in whether or not

the pipeline construction permit should be issued. In support

of this ‘Enablement Theory”, appellants cite Port of Asto-

ria v. Hodel, supra, Mahelona v. Hawaiian Electric Com-

pany, Inc., supra, and Citizens for Clean Air, Inc. et al. v.

United States Army Corps of Engineers et al., 349 F.Supp.

696 (S.D.N.Y.1972).

3 We express no opinion as to the proper scope and extent of coverage

of an EIS should one have been necessary.

10a

Upon review of these cases, this Court does not disagree

with their reasoning but the circumstances of those cases

are clearly distinguishable from those before us. The case of

Citizens for Clean Air preceded the FWPCA Amendments

of 1972 and therefore is no longer supportive of the proposi-

tion advanced here. In Port of Astoria there existed a long-

term contractual relationship between a Federal agency and

a private corporation in which the proposed private manu-

facturing plant was entirely dependent upon electrical

power to be supplied by the Federal agency. In Mahelona

the problem was not that the Corps failed to examine the

effects of the electrical generating plant, but rather failed to

review the consequences of its own construction permit al-

lowing a wastewater discharge facility. In short, the results

of these cases do not compel the conclusion which the Appel-

lants desire. Absent facts or circumstances which are not

present here, we decline to hold that NEPA required the

Corps as a matter of law to consider the entire Du Pont

facility in determining whether or not an EIS was neces-

sary.

AFFIRMED.