# Opposition — Save The Bay, Inc. v. United States Corps of Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0193%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 900 ## Text Supreme Court, U.S. FILED No. 80-171 sep 19 1980 In the Supreme Court of the Hoilbi sabres * COM OCTOBER TERM, 1979 SAVE THE BAY, INC., PETITIONER v. UNITED STATES CORPS OF ENGINEERS, THE UNITED STATES ARMY, COLONEL DRAKE WILSON, AND E.I. DUPONT DE NEMOURS AND COMPANY, INC. IN PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION WADE H. MCCREE, JR. Solicitor General JAMES W. MOORMAN Assistant Attorney General Dirk D. SNEL NANCY B. FIRESTONE Attorneys Department of Justice Washington, D.C. 20580 (202) 683-2217 | In the Supreme Court of the United States OCTOBER TERM, 1979 No. 80-171 SAVE THE BAY, INC., PETITIONER Uv. UNITED STATES CORPS OF ENGINEERS, THE UNITED STATES ARMY, COLONEL DRAKE WILSON, AND E.I. DUPONT DE NEMOURS AND COMPANY, INC. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION QUESTIONS PRESENTED 1. Whether the Army Corps of Engineers rea- sonably determined that the preparation of an en- vironmental impact statement was not required when, under Section 10 of the Rivers and Harbors Act and I II Section 404 of the Clean Water Act, the Corps issued a permit for the construction of a 2,200-foot outfall line requiring the removal of 610 cubic yards of bay bottom material. 2. Whether, after the State of Mississippi had issued a valid ] ational Pollutant Discharge Elimination Sys- tem permit authorizing the discharge of treated effluent from a manufacturing facility into the Bay of St. Louis, the Army Corps of Engineers properly lim- ited the scope of its environmental assessment of a permit to construct the effluent discharge pipeline to the impacts of installation and maintenance of the pipeline itself. III TABLE OF CONTENTS Page Le Tee eT ree ee eT TET rey 1 Ps ibs oi:ks high kee) 9 000s eee eats 1 is 4 cass \ skeen daveb dn way ks be aaah 1 a iro roo ahaa hes 0 €40042 seen when hes 6 SR a dicG'c UGee'ss'glkhee bb een se eeeD ooaas 11 PE Ga seas eee Uae herbie taeéoedeens la TABLE OF AUTHORITIES Cases: Andrus v. Sierra Club, 442 U.S. 347...... 8 Atlanta Coalition, etc. v. Atlanta Regional Corn, GOO FOG 2080 civic eee besos 8 Berenyi v. Immigration Director, 385 U.S. Se USe ee SE PENG Cd NEREE OE REC CROTA' 10 Biderman v. Morton, 497 F.2d 1141 ...... 8 Branti v. Finkel, No. 78-1654 (Mar. 31, BEE send oe a's Chk Ra ele Ee a 10 Citizens for Clean Air, Inc. v. United States Corps of Engineers, 349 F. Supp. hes vas Olas os cote ea ae ete aeetaR ee 10 District of Columbia v. Schram, No. 78- 2209, (D.C. Cir. June 18, 1980) ......... 8 Friends of the Earth v. Coleman, 518 F.2d I han hes ied Ne ewe benwladls thao 8 Graver Mfg. Co. v. Linde Co., 336 U.S. 271 10 Harlem Valley Transportation Ass’n v. Stafford, 600 F’.20 G28. . scncsccvcesoes 9 Kleppe v. Sierra Club, 427 U.S. 390...... 9 IV Cases—Continued: Page Mahelona v. Hawaiian Electric Co., 418 F. a A or Pre mca ee ere er 10 NRDC v. Morton, 458 F.2d 827 .......... 9 Port of Astoria v. Hodel, 8 E.R.C. 1156, SET, COO Hie GON Bas kde be Raca kare ees 10 Save Our Ten Acres v. Kreger, 472 F.2d BOE oink Waccebn s Sh ekcdkinaehs one cee 9 Save the Bay v. Administrator of the EPA, GG ee SE bi Kei vivikscvenee tense 2 Save the Bay v. MAWPCC, Civ. No. 577- 0240 (S.D. Miss. Aug. 20, 1977), appeal dismissed, No. 77-8214 (5th Cir. June 22, RTOS 5 ios o's n.d bb eee pears oC tee 8 Save the Bay, Inc. v. United States Army, Civ. No. S18-0340(c) (S.D. Miss.), appeal argued and submitted, No. 79-2154 (5th CP. AE. SE: TURD kaos teak ee 2,8 Save the Bay, Inc. v. MAWPCC, 341 So. Be OE dain wide diva dbis chee vonemeatees 2 Sierra Club v. Froehlke, 534 F.2d 1289 ... 9 Stryckers Bay Neighborhood Council v. Barton, 466 .U 5. BES eis acecieen ccs te vs 9 Swain v. Brinegar, 542 F.2d 364 ......... 9 Texas Committee on Natural Resources v. Bergland, 573 F.2d 201 ......... thao 9 Vermont Yankee Nuclear Power Corp. v. FREREIG SEO Ts OE a ev Sato sccdenskave 9 Statutes, rules and regulations: Clean Water Act, 33 U.S.C. (Supp. I) 1341 et seq.: Section 402(b), 33 U.S.C. (Supp. I) POO oh vi Vacvivriwicicgeeeie ae 2,8 V Statutes, rules and regulations—Continued: Page Section 408, 33 U.S.C. (Supp. I) 1348 . 2 Section 404, 33 U.S.C. (Supp. I) 1344 . 5 Section 511(c), 33 U.S.C. (Supp. I) A ee 6 Fish and Wildlife Coordination Act, 16 ee aa Wb 64.0.6,0 ce esee ves 5 Marine Protection Research and Sanctuaries Act of 1972, 38 U.S.C. 1401 EE SC St ee 5 National Environmental Policy Act of 1969, Section 102(2)(C), 42 U.S.C. 43832(2)(C).. 3,5 River and Harbors Act of 1899, Section 10, a Ceniesvectens tees ee eer SM EMP AEUIO) occ ccccceccccceds 33 C.F.R. 209.120(h) (1975) .............. Er ene ee 40 C.F.R. Part 1500.6(a) (1979)........... 40 C.F.R. Part 1500.6(c) (1979) ........... SE ET CEOTO) occ ccc cccccvccses CES RES CLOTO) oo cccccccvecccis b& oon nwowwwor & Miscellaneous: Exec. Order No. 11991, 3 C.F.R. 124 (1978) 7-8 42 Fed. Reg. 37126 (1977) ..... 2 cccscveece 3 45 Fed. Reg. 56779 (1980) ............000- 8 OPINIONS BELOW The opinion of the court of appeals (Pet. App. la- 10a) is reported at 610 F.2d 322. The order of the court of appeals modifying its original opinion on denial of the petition for rehearing (App., infra, la—2a)! is not reported. The opinion of the United States magistrate (App., infra, 4a-19a) and the judgment of the district court (App., infra, 3a) are not reported. JURISDICTION The judgment of the court of appeals was entered on January 24, 1980. Rehearing was denied on March 17, 1980 (App., infra, la-2a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT This case concerns the validity of a dredge and fill permit that the Army Corps of Engineers (“Corps”) granted to E.I. DuPont De Nemours & Co., Inc. (Du- Pont), to construct a 2,200 foot effluent discharge 1 Contrary to Rule 21.1(k) of the Rules of this Court, the peti- tion does not contain the court of appeals’ order denying re- hearing, the judgment of the district court, the opinion of the United States magistrate, or the court of appeals per curiam decision dismissing the petitioner’s original appeal. Accordingly, these items are reprinted in the appendix hereto. On November 14, 1978, the court of appeals dismissed petitioner’s appeal on the ground that the judgment had been entered by a United States magistrate, rather than by a district judge (App., infra, 20a-21a). Thereafter, the district judge en- tered a judgment adopting the opinion of the magistrate (App., infra, 3a). The court of appeals affirmed (Pet. App. la-10a). The court of appeals then modified its opinion on denial of a petition for rehearing (App., infra, la—2a). 1 2 pipeline for the carriage of treated wastewater from DuPont’s titanium dioxide manufacturing facility in Delisle, Mississippi, into the Bay of St. Louis. The effluent pipeline, which is 24 inches in diameter, is now in place, and the DuPont plant has been in operation since August 1979.2 On November 21, 1974, DuPont applied to the Corps for issuance of a dredge and fill permit under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403, and Section 404 of the Clean Water Act, 33 U.S.C. 1344, to install the effluent pipeline at its De- lisle, Mississippi, plant. DuPont estimated that instal- 2 DuPont was required to secure several permits from the State of Mississippi in connection with the planning of its Delisle plant. DuPont obtained a discharge permit from the Mississippi State Marine Resources Council and an air emission and Na- tional Pollutant Discharge Elimination System (NPDES) permit from the Mississippi Air and Water Pollution Control Commis- sion. In addition, the Interstate Commerce Commission, the Corps, and the Coast Guard issued permits in connection with the construction and operation of a railroad line from Gulfport, Mississippi, to the DuPont facility. None of these permits is at issue here. Petitioner has challenged the air emission and water dis- charge permits granted by the State of Mississippi in three pre- vious cases. See Save the Bay, Inc. v. MAWPCC, 341 So.2d 98 (Miss. 1976); Save the Bay v. Administrator of the EPA, 556 F.2d 1282 (5th Cir. 1977); Save the Bay v. MAWPCC, Civ. No. 577-0240 (S.D. Miss. Aug. 20, 1977), appeal dismissed, No. 77- $214 (5th Cir. June 22, 1978). Petitioner has also sought review of two other dredge and fill permits issued by the Corps and a river crossing permit issued by the Coast Guard for construction of a railroad line from Gulfport, Mississippi, to the Delisle plant. Save the Bay, Inc. v. United States Army, Civ. No. S78-0340(c) (D. Miss.), appeal argued and submitted Aug. 12, 1980, No. 79-2154 (5th Cir.). 3 lation of the pipeline would require removal from the Bay of 610 cubic yards of dredged material. On Feb- ruary 3, 1975, the Mississippi Air and Water Pollution Control Commission, acting in a separate proceeding under a permit program approved by the Environmen- tal Protection Agency, pursuant to Section 402(b) of the Clean Water Act, 33 U.S.C. (Supp. I) 1342(b), granted DuPont’s application for a National Pollutant Discharge Elimination System (NPDES) permit to discharge treated wastewater from the Delisle plant. The Corps considered DuPont’s application under its regulations governing regulatory permits and the preparation of environmental impact statements (EIS) under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). See, 33 C.F.R. 209.120(h) (1975); 38 C.F.R. 209.410.% In accordance with its regulations, the Corps issued a public notice of the DuPont permit application and sent copies of the notice to appropriate federal, state and local agencies, and to numerous environmental groups, business or- ganizations and interested individuals. Without excep- tion, the state and federal agencies advised the Corps that the proposed permit would not have any signifi- cant adverse impact on the environment. On June 19, 1975, the Corps held a public hearing to answer ques- tions concerning the proposed pipeline permit and to 3 33 C.F.R. 209.120 (1975) was rescinded on July 19, 1977 (see 42 Fed. Reg. 37125). New regulations now govern the issuance of Corps permits under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act (see 33 C.F.R. 323.2). The new regulations do not affect the instant case. Corps regulations concerning the preparation of environmental impact statements were not changed by the 1977 regulations. rr 4 collect additional data for its environmental assess- ment. Petitioner’s representatives expressed their opinions at that hearing. On the basis of its environ- mental assessment, the Corps would then determine whether the pipeline project was a major federal ac- tion requiring preparation of an EIS. On July 17, 1975, the Corps district engineer issued an environmental assessment concerning the proposed permit. The district engineer determined that the pipeline would cause no adverse effect on air quality and that water quality would be only temporarily af- fected. The district engineer also found that construc- tion and maintenance of the pipeline would not have any significant adverse effect on land use, wildlife, ma- rine life, vegetation or historical interests. The district engineer did not re-evaluate the environmental im- pacts of the effluent discharge authorized by the NPDES permit; nor did he consider the impacts of construction and operation of the overall facility in his assessment. The district enginee: concluded that the pipeline provided an environmentally sound method of diffusing treated wastewater’ with a minimum amount of marsh destruction, and that the granting of the permit would not be a major federal action requiring preparation of an EIS. On August 6, 1975, the district engineer issued the dredge and fill permit. The permit authorized the construction of only the pipeline, and it was issued subject to several conditions, one of which 4 DuPont also considered several other discharge methods in- cluding deep well injection, which would not have required a Corps permit, but the company concluded. that the pipeline method was the most environmentally sound. 5 required that DuPont have a proper NPDES permit governing the effluent discharge. One year later, on August 5, 1976, petitioner filed this action seeking both declaratory and injunctive re- lief and money damages.® In particular, petitioner al- leged that the Corps’ issuance of the permit without preparation of an EIS violated Section 102(2)(c) of NEPA. The case was referred to a United States magistrate, who conducted a hearing on cross-motions for summary judgment and subsequently dismissed the action (App., infra, 4a-19a). The magistrate con- cluded that the Corps was required to consider in its environmental assessment only the effects of installa- tion and maintenance of the effluent pipeline, rather than the environmental consequences of the entire project, and that the Corps’ decision not to prepare an EIS was reasonable (App., inyra, 17a-18a). The court of appeals affirmed (Pet. App. la-10a). The court held that the Corps’ conclusion that the effluent pipeline would not create any substantial ad- verse environmental impact was not unreasonable be- cause it was supported by the Corps’ environmental assessment and the positive comments received by other agencies (id. at 6a). The court also found that the Corps’ decision not to reevaluate the effluent lim- itations set under the Mississippi State NPDXS permit 5 Petitioner’s claims for monetary relief and for relief under the Fish and Wildlife Coordination Act, 16 U.S.C. 662, Section 403 of the Clean Water Act, 33 U.S.C. 1343; and the Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. 1401 et seq., were all dismissed with prejudice (App., infra, 3a, 19a). Petitioner did not seek review in the court of appeals of the order dismissing these claims. 6 was proper under Section 511(c) of the Clean Water Act, 33 U.S.C. 1871(c)(2)(A)(B). Under Section 511(c) federal agencies may not invoke NEPA to review effluent limitations or impose limitations other than those set pursuant to the Clean Water Act (Pet. App. 8a). Finally, the court concluded that the Corps’ deci- sion to limit its environmental consideration to the construction and operation of the pipeline itself was not unreasonable (ibid.). While the court noted that in certain cases permissions and approvals by federal agencies may be of such significance that they effec- tively ‘“‘federalize” an otherwise private action, thereby making the private action subject to NEPA (id. at 9a), the court concluded that the federal in- volvement here was not sufficient to require NEPA review of the entire DuPont plant (id. at 10a). ARGUMENT This case presents no issue warranting review by this Court. The judgment of the court of appeals does not conflict with any decision of this Court or any other court of appeals. 1. Petitioner first contends that the Corps should have prepared an EIS to evaluate the environmental impact of the entire plant because the “cumulative im- pact” of all federal permits accompanying the plant’s construction and related activities, was sufficient to “federalize” these activities and thereby trigger the need for an EIS (Pet. 9-10). Petitioner bases its con- tention (id. at 3) on guidelines issued in 1973 by the Council on Environmental Quality (CEQ), which pro- vided for the preparation of an EIS in certain circum- 7 stances where several federal agencies independently permit separate aspects of one major action. See 40 C.F.R. Part 1500.6(a) (1979). Although DuPont’s per- mit was issued while those guidelines were in effect, they do not support petitioner’s contention. While CEQ guidelines required the preparation of an EIS “if it is reasonable to anticipate a cumulatively significant impact on the environment from [the] Fed- eral action” (40 C.F.R. Part 1500.6(a)(1979)), the guidelines further explained that the action causing the impact must be subject to federal control and re- sponsibility to be considered “federal.” Ya. at Part 1500.6(c).6 The only federal permit at issue here is that authorizing the removal of dredged material necessary for constructing the pipeline. Significantly, the NPDES permit authorizing the discharge of treated wastewater into the Bay of St. Louis was granted not by the Corps, but by the State of Mississippi Air and Water Pollution Control Commission, and it was not at 640 C.F.R. Part 1500.6(c) (1979) (emphasis added) provided in pertinent part : The identification of major actions significantly affecting the environment is the responsibility of each Federal agency, to be carried out against the background of its own particular operations. The action must be a (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 responsibility to constitute “Federal action.” = Prior to 1977, CEQ had no authority to issue regula- tions, but could issue only guidelines. See Exec. Order No. 8 issue in this case.? Moreover, the effluent pipeline it- self was not necessary for the operation of the plant, and at least one alternative not requiring any Corps permit was available to DuPont. In these circum- stances, the court of appeals was correct in concluding that the issuance of a pipeline construction permit was not a major federal action requiring an EIS concerning the environmental impact of the entire DuPont proj- ect, given the existence of a valid State NPDES per- mit.® 2. Petitioner’s principal contention (Pet. 10) is that the court of appeals erred in holding that the Corps { 11991, 3 C.F.R. 124 (1978). See also Andrus v. Sierra | Club, 442 U.S. 347, 357-358 (1979). CEQ’s regulations al-