# Joint Appendix — Ruckelshaus v. Sierra Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 680

## Text

ON WRIT OF CERTIORARI TO THE
. UNITED STATES COURT OF APPEALS
5 FOR THE DISTRICT OF COLUMBIA CIRCUIT

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-242
ANNE M. GORSUCH, ADMINISTRATOR
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER
v.

SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page
Chronological List of District of Columbia Circuit
11 coccceccecsceconcssoscoceoseces 1
Excerpts from Calendar of David G. Hawkins, As-
sistant Administrator, EPA, for April 30, 1979
and May 1, 1979, included in Environmental De-
fense Fund’s Appendix of Lodged Documents,
filed September 1, 1980, at A-5 ................ 13
Environmental Defense Fund Motion for Leave to
Obtain Discovery from Respondent EPA, with
Attachment C, filed April 11, 1980.............. 14
Memorandum in Support of EDF Motion for Leave
to Obtain Discovery from Respondent EPA, filed
D 18
Order of the United States Court of Appeals for the
District of Columbia Circuit, entered June 16,
— 24
Motion for Leave to File Affidavit of David G.
Hawkins, filed August 25, 1980................. 26

(1)

(II)

Affidavit of David G. Hawkins, filed September 5,
—
Memorandum for the Heads of Executive Depart-
ments and Agencies, from David A. Stockman,
Director, Office of Management and Budget,
1

Order allowing certiorar᷑ ru.

UNITED STATES COURT OF APPEALS

(T)6-29-79

(E)7-10-79

(G)7-16-79
(E)8-17-79

(C)8-17-79

(E)9-10-79

FOR THE

DISTRICT OF COLUMBIA CIRCUIT

GENERAL DOCKET
79-1565

Filings— Proceedings
4—Petitioner’s petition for review of an order of the
EPA

Certified copy of petition for review was mailed to
EPA

4—Motion of Alabama Power Company, et al. for
leave to intervene (m-29)

4—Motion of National Coal Association for leave to
intervene (m-29)

Clerk’s order granting the motions of Alabama Pow-
er Co., et al. and National Coal Association for
leave to intervene. Intervenor’s briefs are extend-
ed until 15 days after the party they support files
its brief.

Certified Index to Record (n-5)

Clerk’s order that this case is consolidated with
79-1719 and the motion to establish a briefing
schedule is denied without prejudice to resubmis-
sion at such time as the time for filing of petitions
for review of the order under review expires

4—Respondent’s motion to consolidate Nos
79-1565, 79-1719, 79-1867, 79-1874; to adopt the
certified index in 79-1565 as the index in 72-1719,
79-1867, 79-1874; and to stay further proceedings
pending completition [sic] of administrative action
(m-17)

Clerk’s order granting respondent's motion to con-
solidate Nos. 79-1565, 79-1719, 79-1867 and
79-1874 and the certified index filed in 79-1565
shall be deemed filed in the consolidated cases.
Petitioners’ briefs is extended until 40 days after
respondent's disposition of the pending petitions
for reconsideration of the rule at issue. Counsel
for respondent shall advise the Clerk of the status
of the petition at 60 day intervals hereafter

Date
(T)10-11-79

(D)10-26-79

(D)11-5-79

(C)11-19-79
(T)11-29-79

(C)12-4-79

(C)12-4-79

(E)12-7-79

(D)12-18-79
(D)1-7-80
(D)1-25-80
(D)2-11-80
(T)2-14-80

(D)2-22-80

(D)2-25-80

(E)2-29-80

2
Filings—Proceedings

Clerk’s order granting intervention in Nos. 79-1867
and 79-1874

4—Motion of Sierra Club/EDF for order compelling
EPA to convene proceedings for reconsideration
(m-26)

4—Respondent’s opposition to Sierra Club/EDF for
order compelling EPA to convene proceedings for
reconsideration (m-5)

4—EPA’s status report per 9/10/79 order (m-9)

4—Petitioner’s motion for leave to file out of time re-
ply to EPA’s opposition to motion for order
compelling EPA to convene proceedings for recon-
sideration (m-29)

Clerk’s order granting petitioner’s (environmental)
motion for leave to file reply to EPA’s opposition to
motion for order compelling and Clerk is directed
to file petitionezmjodged reply

4—Petitioner’s (environmental) reply to respondent’s
opposition to motion for order compelling EPA to
convene proceedings for reconsideration (m-29)

Per Curiam order denying the motion for an order
compelling the EPA to convene proceedings for re-
consideration and, sua sponte, that respondent
dispose of the pending petitions for reconsideration
on or before Jan. 31st. and that the order filed
Sept. 10th, 1979 is modified to the extent that a
status report be filed Dec. 19th, 1979 and further
reports at 20 days intervals; McGowan (who did not
participate), Tamm and Wald, CJ’s

4—Respondent’s status report (m-18)

4—Respondent’s status report (m-4)

4—Respondent’s status report (m-24)

4—Respondent’s status report

4—Petitioner’s motion to establish expeditea briefing

schedule (m-14)

4—Respondent’s response to petitioner's motion to
establish expedited briefing

4—Petitioner’s (State of CA. Air Resources Board in
79-1867) opposition to petitioner’s motion to estab-
lish expedited briefing schedule (m-22)

Clerk’s order r’s motion to consoli-

date Nos. 80-1187, 80-1201 & 80-1213 with 79-1565,
et al.

Date

(C)2-29-80

(T)3-7-80

(T)3-7-80
(D)3-7-80
(E)4-1-80

(E)4-1-80

(C)4-10-80
(E)4-18-80

(E)4-18-80
(D)5-8-80

(E)5-16-80

(E)5-16-80
(E)5-16-80

(C)6-3-80

3

Filings—Proceedings
4—Petitioners’ motion to extend time to file reply to
responses to motion to establish briefing schedule
(m-29)

Clerk’s order granting petitioners’ motion to extend
time to file reply to response to motion to establish
briefing schedule to March 3, 1980

4—Petitioners’ reply to oppositions to motion to es-
tablish expedited briefing schedule (m-3)

4—Respondent’s motion for leave to file reply to re-
sponse on briefing schedule (m-7)

Clerk’s order, sua sponte, that Nos. 79-1565, et al.
and 80-1338 are consolidated

Per Curiam order granting the motion to expedite
and the following schedule shall apply May 2ist—
petitioners’ briefs, June 23rd—respondent’s brief,
July 9th—intervenor’s briefs, July 23rd—reply
briefs. Intervenor’s briefs should not repeat argu-
ment set forth by respondents. The parties are
granted leave to proceed under Rule 30(c). The
cases will be heard at oral argument during the
September, 1980 sitting period of the Court; CJ
Wright, Tamm (who aid not participate) and
Robinson, CJ’s

4— Respondents’ motion for leave to file supplemen-
tal certified index (m-7)

Clerk’s order granting respondent's motion to file
supplemental certified index

Supplemental Certified Index (n-10)

4—EPA’s motion for leave to file supplemental certi-
fied index to record (m-8)

Clerk’s order granting respondent’s motion for leave
to file supplemental! certified

Supplemental Certified Index to Record (n)

Order per CJ Wright that in the event of a denial of
the motion for leave to take depositions or serve in-
terrogatories the following briefing schedule shall
apply: petitioners briefs— 10 days after denial of
motion, respondent’s brief —33 days after petition-
ers briefs, Intervenors’ briefs—16 days after re-
spondent’s brief, reply briefs—14 days after
intervenors’ briefs. If the motions are granted, new
motions to govern the briefing should be submitted
within 10 days of the order granting the motion.

Order per CJ Wright denying EDF’s motion for clari-
fication of order of 5/16/80

Date
(D)6-3-80

(C)6-9-80

(C)6-9-80
(C)6- 16-80

(C)6-16-80

1

Filing - Proceedings
4—Respondent’s mot ion for leave to file supplemen-
tal certified index to record (m- 3)

Clerk's order granting respondent's mot ion for leave
to file supplemental certified index

Supplemental Certified Index to Record (n)

Per Curiam order that the documents listed in EDF's
motion to supplement the record lodged with the
Court pending determination whether they should
be included in the record; Copies of the documents
shall be included in a separate volume of the joint
appendix and cited in the briefs as Appendix to
Lodged Documents (ALD); The parties in their
briefs should address the question of the relevance
of the documents and also the issues raised by
them; McGowan (who did not participate); Mikva
and Edwards, CJs

Per Curiam order that petitioner's (EDF) motion for
leave to obtain discovery is referred to the division
of this Court to be drawn to hear this case on the
merits; The parties in their briefs should address
the petitioner’s entitlement to the information re-
quested and petitioner’s need for the information
requested in order to prosecute its case fully; re-
spondent shall submit to the court within 5 days of
the date of this order an affidavit(s) providing in-
formation about the following meetings, identified
here by date with reference to the petitioner’s
motion: March 14, 1979; April 23, 1979; April 27,
1979; April 30, 1979; May 2, 1979; The affidavit
shall identify the participants in the foregoing
meetings, and shall describe as fully and accurately
as possible how the meetings came to be held and
the approximate length of each; Briefs in these
cases shall be submitted pursuant to the following
schedule:

Petitioners’ brief(s)—10 days after filing of re-
spondent’s affidavit
Respondent's brief —30 days after filing of peti-
tioners’ brief
Intervenors’ brief(s)—15 days after filing of re-
spondent’s brief
Reply brief(s)—12 days after filing of interven-
ors’ brief(s)
McGowan (who did not participate); Mikva &
Edwards, CJs

(B)08-14-80

(B)08-14-80

(C)08-25-80

5
Filings—Proceedings

4—Respondent’s motion to extend time to file affida-
vits to 6-24-80 (m-20)

4—Petitioner’s motion to extend time to file brief and
for leave to file brief exceeding page limitations
(m-20)

Clerk’s order granting respondent’s motion to extend
time to file affidavits to June 24, 1980

1—Affidavits pursuant to order of 6-16-80

Clerk’s order granting petitioner’s motion for leave to
file brief not in excess of 65 pages by standard ty-
pographical print or 85 pages by any other method
and the briefing schedule set forth in this Court’s
order of 6/16/80 is amended so that the following
schedule shall now apply:
July 11, 1980—Petitioner’s brief; August 11,
1980— Respondent’s brief; August 26, 1980—Inter-
venors’ brief(s); September 8, 1980— Reply briefs,
if any; No further extensions of time for filing
briefs shall be allowed

15—Petitioner’s brief (m-9)

4—Respondents’ motion to extend time to file brief
to 9-2-80 (m-23)

4—Petitioner’s response to respondents’ motion to
extend time to file brief (m-24)

Clerk’s order granting respondents’ motion to extend
time to file brief to 9/2/80; No further extension of
time will be granted except for extraordinary cause
shown

4—Respondents’ motion for leave to file motion to
exceed page limitations on brief (m-4)

Clerk’s order directing that Clerk to file respondents’
motion for leave to exceed page limitation in brief
and respondent is granted leave to file a brief not in
excess of 150 pages

4—Respondent’s motion for leave to exceed page lim-
itation on brief (m-4)—filed per above order

Clerk’s order, sua sponte, that this Court’s order of
8-4-80 be, and the same here by is, vacated and
that the following briefing schedule, with no fur-
ther extensions, shali apply: Respondent’s
brief —9-2-80; Intervenor’s brief(s)—9-17-80; Reply
briefs —9-30-80

4—Respondents’ motion for leave to file affidavit
(m-21)

(T)09-12-80
(T)09-17-80

(C)09-18-80
(B)09-22-80
(T)09-23-80

(B)09-25-80

6
Filings—Proceedings
4—Respondents’ motion for leave to file motion to
file brief exceeding page l. nitations (m-2)

Clerk’s order granting respondents’ motion for leave
to file affidavit

4—Respondents’ affidavit (m-21)

Clerk’s order, sua sponte, that the following times
are allotted for oral argument: Appalachian Power
Co., et al—20 minutes; Sierra Club and EDF—30
minutes (2 counsel may argue); EPA (and sup-
porting intervenor National Coal Association)—45
minutes (2 counsel may argue); TOTAL TIME—1
hour 35 minutes

Clerk’s order directing Clerk to file respondents’ sec-
ond motion for leave to extend page limitations and
granting motion

4—Respondents’ second motion for leave to extend
page limitations—granted

15—Respondents’ brief (m-2)

4—Letter from counsel for respondents advising of
additional authorities pursuant to Rule 28()j),
FRAP (m-8)

Clerk’s order, sua sponte, that this Court’s order of
September 9, 1980 is amended by deleting there-
from the instruction that two counsel may argue on
behalf of the Environmental Protection Agency and
supporting intervenor National Coal Association;
leave is granted for two counsel to argue on behalf
of the Environmental Protection Agency and one
counsel on behalf of the National Coal Association.

7—EDF’s appendix of lodged documents—lodged per
order dated 6/16/80 (m-12)

15—Intervenor’s (National Coal Associatiwn) brief
(m-17)

7—Joint appendix (Voi. I) (m-17)

Argued before Robb, Wald“ and Ginsburg, CJ’s

4—Response of Appalachian Power Co., et al. to
motion of Environmental Defense Fund for exten-
sion of briefing schedule (m-23)

Per Curiam order that petitioner is granted leave to
file a reply brief not in excess of 40 pages of
standard typographic printing or 50 pages by any
other process; and that the motion for enlargement
of time to file reply brief is denied; Robb, Wald,
and Ginsburg, CJ’s (in Nos. 79-1874 and 80-1213
only)

(T)09-25-80
(B)10-06-80

(T)10-08-80
(T)10-09-80
(T)10-14-80
(T)10-21-80
(C)10-22-80
(C)10-24-80
(C)11-05-80
(C)11-05-80
(T)01-16-81

(T)01-22-81

(T)01-26-81
(T)02-03-81
(C)02-17-81
(H)4-29-81

(H)4-29-81

(T)05-13-81
(T)05-21-81

(V)05-26-81
(B)05-29-81

7
Filing Proceedings
4—Petitioner’s motion to extend time to file reply
brief to October 14, 1980 (m-24)
Letter from Clerk to counsel requesting that certain
material be submitted
Clerk’s order denying the motion of Sierra Club, et
al. to extend time to file reply brief to
7—Joint Appendix (Volumes II through XI) (m-8)
15—Petitioner’s reply brief (m-30)
7—Corrected joint appendix volume XI (m-14)
15—Respondents’ brief (m-21)
7—Joint Appendix (Vol XII) (m-22)
15—Intervenor’s (National Coal Assoc.) brief (m-24)
15—Petitioner’s brief (m-31)
15—Petitioner’s reply brief (m-31)
4—Letter from counsel for respondents supple-

menting their 28(j) letter of September 10, 1980
(m-15)

Per Curiam order that EPA shall submit to the Court
a brief memorandum within 10 days from the issu-
ance of this order which responds to petitioners’ ar-
gument about the Bruce Mansfield data; petitioners
Appalachian Power Co., et al., are granted leave to
reply with a brief memorandv within 5 days
thereafter; Robb, Wald and Gin urg. CJs

4—Letter from counsel for EDF advising of addition-
al authorities pursuant to Rule 28(j), FRAP (m-23)

4—EPA’s supplemental memorandum (m-3)
(OK RB)

4—Response of Appalachian Power Co., et al. to
EPA’s supplemental memorandum (m-14)

Opinion for the Court filed by Circuit Judge Wald

Judgment affirming the regulations of the EPA, for
the reasons set forth in the Opinion for the Court
filed herein this date.

4—Petitioner’s motion for an award of attorneys fees
(m-12)

4—Responcent’s motion to extend time to file re-
sponse to motion for an award of attorneys fees to
June 5, 1981 (m-21)

4—EDF’s motion for an award of attorneys fees
(m-26)

Clerk’s order granting respondent's nn [sic] to
extend time to file response to motion for an
award of attorneys fees to June 5, 1981

Date

(R)06-01-81

(V)06-05-81

(B)06-18-81

(V)07-06-81

(B)07-09-81

(V)07-21-81

(B)08-03-81

(V)08-26-5.

(V)09-16-81

(V)09-22-81

(B)10-05-81

(V)10-08-81

(V)10-08-81

8
Filings—Proceedings
Per Curiam order sua sponte, that the Opinion for

the Court filed by Circuit Judge Wald in this case
on April 29, 1981 is hereby amended (See Order)

4—Respondent’s unopposed motion to extend time to
answer motions of Sierra Club and EDF for attor-
neys fees to July 3, 1981 (m-4)

Clerk’s order granting respondent’s motion to extend
time to answer motions of Sierra Club and EDF for
attorneys fees to July 3, 1981

4—EPA’s unopposed motion to extend time to an-
swer motions of Sierra Club and EDF for attorneys
fees to July 21, 1981 (m-6)

Clerk’s order that EPA’s motion to extend time to an-
swer motions of Sierra Club and EDF for attorneys
fees to July 21, 1981 is granted

4—EPA’s motion to extend time to respond to Sierra
Club’s and EDF’s motions for attorneys fees to Au-
gust 20, 1981 (m-21)

Clerk’s order granting EPA’s motion to extend time
to respond to Sierra Club’s and EDF’s motions for
attorneys fees to August 20, 1981

4—Respondent’s motion for leave to file response to
Sierra Club’s and EDF's motion for awards of at-
torneys fees, out of time (m-26)

4—Petitioner’s opposition to respondent’s motion for
leave to file response to Sierra Club’s and EDF's
motion for award of attorneys fees, out of time
(m-11)

4—Petitioner’s (EDF) motion for leave to respond to
respondent’s motions to file out of time and for en-
largement of time to respond to motions for award
of attorneys’ fees, out of time (m-22)

Per Curiam order, sua sponte, that the Sierra Club is
granted leave to amend its petition for attorneys
fees and to file said amended petition on or before
10-13-81; and sua sponte, that parties herein are
granted an extension of time to and including
10-20-81, within which to file a response to the
amended petition for attorneys’ fees; Robb, Wald,
and Ginsburg, CJ’s vacated per 10-13-81 order.

Letter dated 10/05/81 from counsel for respondent to
withdraw appearance of Nancy Long, Atty-at-Law

4—Brief of the United States on the issue of attor-
neys’ fees for losing parties under 42 U.S.C. 7607(f)
(m-5)

Date
(G)10-13-81

(G)10-13-81

(G)10-13-81

(G)10-13-81

(G)10-13-81

(V)10-13-81

(V)10-13-81

(V)10-15-81
(V)10-22-81

(B)11-02-81

9
Filings— Proceedings

Per Curiam order sua sponte, that petitioners Sierra
Club and EDF are granted leave to amend their pe-
titions for attorneys’ fees and to file said amended
petitions on or before October 19, 1981, and that
respondent is granted an extension of time to and
including October 26, 1981, within which to respond
to the amended petitions for attorneys’ fees; Robb,
Wald and Ginsburg; CJs

Per Curiam order sua sponte, that the order entered
herein on October 5, 1981, concerning the motions
for attorneys’ fees, be and it is hereby vacated;
Robb, Wald, and Ginsburg, CJs

4—Respondent’s motion to extend time to respond to
Sierra Club’s and EDF's motions for awards of at-
torneys fees (m-26) filed per above order

4—Petitioner’s (EDF) response to respondent’s
motions for leave to file out of time mot ion for en-
largement of time to respond to motions for award
of attorneys’ fees (m-22) filed per above order

4—Respondent’s reply to oppositions of Sierra Club
and EDF to motions for leave to file out of time and
enlargement of time to respond to motions for
award of attorneys’ fees (m-1) filed per above order

Letter dated 10/13/81 from counsel for EDF for ap-
pearance of Bingham Kennedy and Barry J. Tril-
ling, Esq.

4—EDF’s consent motion to extend time to file reply
memorandum to brief of the United States on the
issue of attorneys’ fees until 11/06/81 (m-13)

4—Petitioner’s amended request for attorneys’ fees
(m-13)

4—EDF’s consent motion to extend time to amend
petition for attorneys’ fees until 11/06/81 (m-21)

4— Response for the United States to the Sierra
Club’s amended request for attorneys’ fees (m-28)

Date

(B)11-03-81

(V)11-03-81
**(T)11-02-81
(T)11-05-81

(V)11-09-81

(V)11-16-81
(B)11-20-81
(B)11-20-81
(G)11-20-81

(C)12-07-81

(C)12-07-81

(C)12-07-81

(V)12-10-81

10
Filing Proceedings

Per Curiam order that petitioner’s (EDF) motion for
enlargement of time within which to amend its
motion for attorney’s fees is granted and petition-
ers (EDF and Sierra Club) are granted an exten-
sion of time, to and including 11-6-81, within which
to file their amended petitions for attorney’s fees;
and that respondents are directed to file a response
specifically directed to such amended petitions for
attorney's fees, on or before 11-20-81. No further
extensions of time will be permitted for either side,
absent showing of extraordinary cause; Robb, Wald
and Ginsburg, CJ's

4—EDF’s consent motion to extend time to file and
serve documents to 11/13/81 (m-3)

4—Respondent’s motion to bifurcate the issue of at-
torneys’ fees (m-28)

4—EDF’s opposition to motion to bifurcate the issue
of attorneys’ fees (m-5)

4-—Petitioner’s response to brief for United States on
the issue of attorneys’ fees and motion to bifurcate
decision (m-5)

4—Sierra Club’s response to the United States to
amend request for attorneys’ fees (m-12)

Clerk's order granting EDF’s motion for enlargement
of time to file and serve documents to 11-13-81

4—EDF’s amended motion for an award of attorneys’
fees (m-13)—filed per above order

4—Motion of US for leave to file motion to extend
time to file brief on attorneys’ fees (m-20)

Per Curiam that granting respondent’s motion for
leave to file motion to extend time to file brief on
attorneys’ fees and costs and the Clerk shall file
and docket respondent’s motion for extension of
time and respondent’s motion for extension of time
within which to file its brief is granted to and in-
cluding December 7, 1981; Robb, Wald & Ginsburg,
CJs

4—Respondent’s motion to extend time to file brief
on attorneys’ fees—granted

4—Reply brief for the United States on the issue of

fees for losing parties under 42 USC
7607(F) (m-4)

4—Sierra Club’s opposition to motion to set date for

filing brief on size of attorney fee award (m-7)

Date

(V)12-10-81

(V)12-14-81

(C)01-08-82

(V)01-18-82

(R)2-5-82

(C)05-05-82

(C)05-07-82
(C)05- 10-82

(C)05-17-82

(V)05-20-82

(B)05-27-82

(C)06-07-82

(C)06-07-82

(C)06-09-82

(V)06-22-82

(S)07-16-82
(8907-16-82

11
Filings— Proceedings

4—EDF’s response to December 4, 1981 reply brief
of respondent (m-4)

4—EDF’s opposition to respondent's motion to se!
date for the filing of the government's brief on the
size of any attorneys’ fee award (m-11)

4—EDF’s motion for leave to file opposition in reply
to respondent’s memorandum on the proper size of
attorneys’ fee award, time having expired (m-8)

4—Petitioner’s motion for permission to file out of
time response to memorandum for the US on the
proper size of an attorney fee award to a losing liti
gant (m-12)

Opinion Per Curiam and Order granting leave to file
documents and directing award of fees

4—Report of petitioner EDF concerning settlement
negotiations (m-5)

4—EPA's status report (m-5)

4—Sierra Club's report to the Court and secon:
amended request for attorneys’ fees (m-5)

4— Motion of EDF to amend and supplement its ap
plication for attorneys’ fees and amended applica
tion therefore (m-17)

Per Curiam order, sua sponte, that respondent may
file, at her option, a single response to the variou~
pending requests by petitioners for attorneys’ fers
and expenses; and sua sponte, that respondent's r.
sponse or responses shall be filed on or before Ma
27, 1982. Extensions of time will only be granted
showing of extraordinary cause; Robb, Wald and
Ginsburg, CJs

4— Respondent's response to Sierra Club's and
EDF's status reports and amended requests for at
torneys fees (m-27)

4— United States’ response to Sierra Club’s and
EDF's status reports and amended requests for »'
torneys fees (m-27) CORRECTED RESPONSE

4—Sierra Club’s reply to United States’ response
amended fees request (m-4)

4—Petitioner’s reply to respondent’s response
amended fees re_uest (m-9)

application for attorneys’ fees
granted; Wald and Ginsburg, CJs and SCJ Robb
Opinion per curiam
Fees are awarded in accordance with the opinion filed

Date
(8907-16-82
(8007-16-82
(0007-20-82

(8007-22-82
(¥)08- 13-82

(C)08- 18-82

(T)10- 19-82

12

Filngs— Proceedings

Standard order on mandate

Per Curiam order that the opinion is amended

Letter from counsel for EPA advising of addition-
al authorities pursuant to FRAP 280) (m-20)

4— United States’ motion for stay of mandate (m-22)

Per Curiam order that respondent's motion for stay
of mandate is granted and the Clerk is directed not
to issue the mandate herein for a period of thirty
(30) days from the date of this order; SCJ Robb,
Wald and Ginsberg, CJs

Notice from Clerk, SC that petition for writ of certio-
rari was filed in SC No. 82-242 on Aug. 11, 1982

Certified copy of order from Clerk, Supreme Court
granting petition for writ of certiorari in SC No.
82-242 on 10-18-82

13

EXCERPTS FROM CALENDAR OF DAVID G. HAWKINS,
ASSISTANT ADMINISTRATOR, EPA,
for April 30, 1979 and May 1, 1979*

Monday, April 30, 1979:
10 a.m.: WHITE HOUSE
MEETING ON NSPS

* * * KH

2:30 p. m.: MESSRS. FRED KAHN, WALT
BARBER, FRANK PRINCIOTTA &
MS. BANKOFF
RE: DRY SCRUBBING 200 OEOB

Tuesday, May 1, 1979:

10:00 a. m.: MESSRS. PHIL CUMMINGS
WALT BARBER
RE: NSPS 4204 DIRKSEN

Included in Environmental Defense Fund's Appendix of Lodged
Documents, filed September 5, 1980, at A-5

14

IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 11, 1980
No. 79-1565
79-1874
SIERRA CLUB, PETITIONER
v.

DOUGLAS M. COSTLE, ADMINISTRATOR
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

AND CONSOLIDATED CASES

ENVIRONMENTAL DEFENSE FUND MOTION FOR
LEAVE
TO OBTAIN DISCOVERY FROM RESPONDENT EPA

Pursuant to Federal Rule of Appellate Procedure 27(a)
and on the grounds set forth in the attached memorandum,
the Environmental Defense Fund (EDF) moves for leave to
take depositions of the following key respondent (EPA) of-
ficials or, in the alternative, for leave to serve interroga-
tories on these officials:

Douglas M. Costle, Administrator
Barbara Blum, Deputy Administrator
David Hawkins, Assistant Administrator for Air and
Waste Management
Charles Warren, Regional Administrator for Region
II, formerly Director, Office of Legislation
Walter Barber, Director, Office of Air Quality
Planning and Standards
The inquiries will be limited to (1) the identity of partici-
pants in post-comment period conversations and meetings
with private parties, members of Congress, and senior offi-
cials of other government agencies and offices; and (2) sim-
ple narrative descriptions of the conversations and meet-
ings, particularly by non-EPA participants.

15

The requested discovery is necessary to inform the court
of the substance of post public comment period communica-
tions with EPA by interested parties opposed to the new
source performance standards (NSPS) alternatives origi-
nally favored by the EPA. These communications included
calls, letters and meetings. Subsequent to these ex parte
communications, NSPS were promulgated which are less
stringent than the three alternatives favored within EPA
shortly after close of the public comment period. In its June
29, 1979, petition to EPA for reconsideration of the NSPS,
EDF requested that a detailed summary of each meeting be
prepared and included in the docket as part of the record
for review. The EPA Decision in Response to Petitions for
Reconsideration states that “Agency officials wrote memo-
randa of all significant oral communications between Agen-
cy officials and persons outside the executive branch.” 45
Fed. Reg. 8210, 8214. This is not correct. Furthermore, it
is not for EPA to determine which ex parte communications
after close of the public comment period are “significant”
and, therefore, subject to disclosure to the public and to
this court. EPA has not prepared summaries of meetings
held on March 14, 1979 (participants: EPA, DOI, CEQ,
DOE, White House), and March 28, 1979 (participants:
Eastern coal state Senators, White House, Costle, numer-
ous other parties). The EPA meeting summaries which do
exist are not adequate. Attachments* A, B, C and D to this
motion are EPA summaries of meeting held April 23, April
27, April 30 and May 2, 1979. It is apparent that the
sketchy EPA summaries do not disclose the comments of
the non-EPA participants. (See especially Attachment D, a
forty-nine word summary of a meeting with at least twelve
participants.)

The information sought by this discovery will aid the
court in its determination of the validity of the challenged
standards. The inquiries will be limited to factual accounts
of what was communicated, particularly by the non-EPA

*Each Attachment is part of the Record for Review: Attachment
A—IV-E-13; Attachment B—IV-E-15; Attachment C—Attached to
back of IV-E-24; Attachment D—IV-E-24.

16

participants, and will avoid prying into the mental proc-
esses of EPA decision-makers.
Respectfully requested,

/s/ ROBERT J. RAUCH
Staff Attorney
LARRY MARTIN CORCORAN
Staff Attorney

17
ATTACHMENT C

UNITED STATES ENVIRONMENTAL

SUBJECT:

FROM:

TO:

PROTECTION AGENCY
WASHINGTON, Dc 20460

Office of
Air, Noise, and Radiation

April 30, 1979

Meeting on Coal-Fired Power Plants on
April 30, 1979

Attendees: Fred Kahn, George Eads, Si
Lazarus, Walt Barber, Ai Alm, Frank
Princiotta, Barbara Bankoff, Bob Statnick
and other White House staff

David G. Hawkins, Assistant Administra-
ter for Air, Noise, and Radiation
(ANR-443)

The Files

The purpose of this meeting was to provide a technical

briefing on the so-called dry serubbing technology, to de-
scribe the state-of-the-art, future expected performance
levels, utility orders, ete.

18

IN THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1565

SIERRA CLUB, PETITIONER
Vv.

DOUGLAS M. COSTLE, ADMINISTRATOR
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

AND CONSOLIDATED CASES

MEMORANDUM IN SUPPORT OF EDF MOTION FOR
LEAVE TO OBTAIN DISCOVERY
FROM RESPONDENT EPA

The Environmental Defense Fund (EDF) moves for leave
to take depositions from or, in the alternative, to serve in-
terrogatories on five (5) key EPA officials. After the Janu-
ary 15, 1979, close of the public comment period for the new
source performance standards (NSPS), these officials par-
ticipated in no fewer than six (6) meetings with private par-
ties, members of Congress, and senior government offi-
cials, who advocated strongly against adoption of the more
stringent new source performance standards for steam
electric generating units to which the respondent EPA had
at that time restricted its consideration. The EPA also re-
ceived letters and telephone calls from the same interested
parties. There is a substantial likelihood that these commu-
nications significantly changed the NSPS.

Douglas M. Costle, Administrator; Barbara Blum, Deputy Admin-
istrator; David Hawkins, Assistant Administrator for Air and Waste
Management; Charles Warren, Regional Administrator for Region II,
formerly Director, Office of Legislation; and Walter Barber, Director,
Office of Air Quality Planning and Standards.

19

I. Need for Discovery

On September 19, 1978, proposed new source perform-
ance standards (NSPS) were published (43 Fed. Reg.
42154). Public comments were requested by December 15,
1978. Public hearings were held December 12 and 13, the
record of which was held open until January 15, 1979. The
final NSPS were published June 11, 1979 (44 Fed. Reg.
33580). After closing of the record on January 15, 1979,
EPA received and entered in the record scores of com-
ments. Telephone comments were also received. In addi-
tion, senior EPA officials are known to have participated in
at least the following six (6) meetings:

Meeting Date Participants?
March 14, 1979 EPA, DOI, CEQ, DOE, White House
March 28, 1979 Senators, White House, Costle, numerous
other parties
April 23, 1979 National Coal Association, and Senator
Byrd

April 27, 1979 DOE, OMB, EPA (dry scrubbing technical
briefing)

April 30, 1979 White House (President), Hawkins, Bar-
ber, Costle

May 2, 1979 National Coal Association, EPA, DOE,

Senator Byrd, other congressmen
Prior to these meetings, the EPA had reduced the some
15 alte ative standards under review to three (3).
@ fell scrubbing: 90% removal (annual average), 0.55
lbs. SO2/million BTU emission ceiling;
o partial scrubbing: 33% minimum removal (annual av-
erage), 0.55 lbs. SO2/million BTU emission ceiling;

® regional standard: full serubbing in the West (11
states), partial scrubbing elsewhere.

Subsequent to these meetings EPA promulgated a

standard with a ceiling of 1.2 lbs. SO2/million BTU. As the

* To the best of our knowledge.
March 9, 1979, EPA memorandum from David W. Tundermann to
Bill Drayton through Roy Gamse, subject: NSPS Update.

20

court is aware, it is the contention of the Sierra Club and
EDF that there is a substantial likelihood that the advocacy
of interested parties at the above-listed meetings signifi-
cantly changed the standards. Cf. §307(d)(8) of the Clean
Air Act, 42 U.S.C. §7607(d)(8) (“the court may invalidate
the rule only if the errors were so serious and related to
matters of such central relevance to the rule that there is a
substantial likelihood that the rule would have been signifi-
cantly changed if such errors had not been made.”). It is
apparent that in order for the court to review and decide
this controversy, it must know what happened during these
private, undocumented or poorly documented, conversa-
tions and meetings. See e.g., U.S. Lines v. Federal Mari-
time Commission, 189 U.S. App. D.C. 361, 375, 584 F.2d
519, 533 (1978). Cf. Home Box Office, Inc. v. FCC, 185
U.S. App. D.C. 142, 190, 567 F. 2d 9, 57 (1977) (“If ex parte
contacts nonetheless occur, we think that ary written docu-
ment or a summary of any oral communication must be
placed in the public file established for each rulemaking
docket immediately after the communication is received so
that interested parties may comment thereon.”) The court
can know those happenings only through the requested
discovery.

II. Court Has Authority to Order the Requested Discovery
“A reviewing court has inherent power to obtain evi-
dence needed to enable it to decide a contention of this
sort [that is that] because of procedural irregularity,
[the decision maker's] determination was a nullity.”
National Nutritional Foods Ass’n v. FDA, 491 F.2d
1141, 1144 (2d Cir. 1974), cert. denied, 419 U.S. 874,
95 S.Ct. 135 (1974).

In National Nutritional Foods Association, the Court of
Appeals held that it could order the taking of depositions of
the decision maker by a party challenging promulgated
rules. The court’s holding has never been challenged. In-
deed, in remanding Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 82 (1971),
the Supreme Court stated that, “The Court may require
administrative officials who participated in the decision to
give testimony explaining their action.” See Home Box Of-

21

fice, Inc. v. FCC, 185 U.S. App. D.C. at 185, 567 F.2d at
52 (court swa sponte ordered the Commission to provide “a
list of all of the ex parte presentations, together with the
details of each, made to it, or to any of its members or rep-
resentatives, during the rulemaking proceedings.”)

III. The “Mental Processes Rule” is Inapplicable

The requested discovery will be limited to the discussions
which occurred in post-comment period meetings. Petition-
er is simply seeking to establish, as precisely as possible,
what was said at these meetings. No inquiry into mental
processes of the decision-maker will be made. Therefore,
the restrictions of the “mental processes rule” of Morgan
IV are inapplicable.

Assuming, arguendo, that the requested discovery were
an inquiry into the mental processes of the decision maker,
the “mental processes rule“ is still inapplicable. Morgan IV
was decided at the final stage of litigation “after all claims
of procedural and constitutional irregularity had been put
to rest.. Singer Sewing Machine Co. v. NLRB, 329 F. 2d
200, 207 (4th Cir. 1964). “In an earlier stage of the litiga-
tion, Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82
L. Ed. 1129 (1938), when there had been more than a color-
able claim of procedural irregularity, examination of the
Secretary, and the receipt of other evidence, to determine
if there had been a denial of a constitutional right was
relied on in support of the conclusion that the hearing was
fatally defective.” Id.

The mental process rule is but ‘one facet of the gen-
eral presumptions of regularity’ which attaches to de-
cisions of administrative bodies. Thus, we conclude,
where a prima facie case of misconduct is shown, jus-
tice requires that the mental process rule be held inap-
plicable.” (Citations omitted.) Jd. at 208. See Hercu-
les, Inc. v. EPA, — U.S. App. D.C. , 598 F.2d
91, 123 (1978). See also Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825.

* United States v. Morgan, 313 U.S. 409, 421-22, 61 S.Ct. 999, 1004
(1941).

22

As already stated, ex parte conversations, comments,
and no fewer than six (6) meetings occurred after close of
the NSPS record. These communications violated the re-
strictions on ex parte communications generally, National
Small Shipments, etc. v. ICC, 191 U.S. App. D.C. 214,
220, 590 F. 2d 345. 351 (1978) (“the statutory requirement of
a hearing [excludes] ... recourse to ex parte communica-
tions.”), U.S. Lines v. Federal Maritime Commission, 189
U.S. App. D.C. 361, 375-76, 584 F.2d 519, 533-34 (1978),
and restrictions on congressional interference specifically,
Koniag, Inc., Village of Uyak v. Andrus, 188 U.S. App.
D.C. 338, 347, 580 F.2d 601, 610 (1978), cert. denied, 439
U.S. 1052, 99 S.Ct. 733 (1979) (letter from Congressman to
Secretary two days before reversal of a decision “compro-
mised the appearance of the Secretary’s impartiality,” even
though it did not name any particular claimants); American
Public Gas Assn’ v. FPC, 186 U.S. App. D.C. 23, 78, 567
F.2d 1016, 1069 (1977), cert. denied, 435 U.S. 907, 98 S.Ct.
1456-57 (1978) (whether proceeding is a judicial or a legisla-
tive function, “Congressional intervention which occurs
during the still-pending decisional process of an agency en-
dangers, and may undermine, the integrity of the ensuing
decision, which Congress has required be made by an im-
partial agency charged with responsibility for resolving
controversies within its jurisdietior ). Prior to these com-
munications, the respondent (EPA) had reduced the alter-
natives being considered to three,“ all more stringent than
the standard finally promulgated after these ex parte com-
munications. Even if the requested discovery were an in-
quiry into mental processes, these facts“ are a sufficiently
strong showing of improper behavior to overcome the “pre-
sumption of regularity” which prevents inquiry into
decision-maker mental processes.

5 See note 3, supra.

* See also 44 Fed. Reg. 33595-96 (As a result of the April 5, 1979
meeting between EPA and National Coal Association representatives,
“the Administrator revised his assessment of state-of-the-art coal
cleaning.”).

CONCLUSION

EPA officials participated in a number of ex parte con-
versations and meetings after the close of the NSPS rec-
ord. The final promulgated NSPS was not ameng the three
alternative standards under review before the meetings
and was less stringent. The three alternative standards un-
der review before the meetings were opposed by the inter-
ested parties at the meetings. This court has inherent au-
thority to obtain evidence of the conversations and
meetings. The taking of depositions by petitioner is an ap-
proved method of obtaining the necessary evidence. The re-
quested discovery is not an inquiry into “mental processes”
but, even if it is, it is permissible because of the strong
showing of improper behavior by the respondent.

For these reasons, petitioner is asking this court for
leave to take depositions of senior EPA officials who have
knowledge of the post-comment period conversations and
meetings.

Respectfully submitted,

/s/ ROBERT J. RAUCH
Staff Attorney

/S/ LARRY MARTIN CORCORAN
Staff Attorney

24

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1979
No. 79-1565

SIERRA CLUB, PETITIONER,
U.

DOUGLAS M. COSTLE, ADMINISTRATOR
OF THE ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT.

NATIONAL COAL ASSOCIATION
ALABAMA POWER COMPANY, ET AL., INTERVENORS.

AND CONSOLIDATED CASES

BEFORE: McGowANn*, MIKVA and EDWARDS; Circuit
Judges

ORDER

Upon consideration of the petitioner’s motion for leave to
obtain discovery, the opposition and replies thereto, and
the entire record in this case, it is

ORDERED by the Court that the aforesaid motion is re-
ferred to the division of this Court to be drawn to hear this
case on the merits.

The parties in their briefs should address the petitioner’s
entitlement to the information requested, and the petition-
er’s need for the information requested in order to prose-
cute its case fully.

IT IS FURTHER ORDERED by the Court that the re-
spondent shall submit to the Court within five days of the
date of this order an affidavit(s) providing information

Circuit Judge McGowan did not participate in the foregoing order.

25

about the following meetings, identified here by date with
reference to the petitioner’s motion:
March 14, 1979; April 23, 1979; April 27, 1979; April
30, 1979; and May 2, 1979.

The affidavit(s) shall identify the participants in the fore-
going meetings, and shall describe as fully and accurately
as possible how the meetings came to be held and the ap-
proximate length of each.

IT IS FURTHER ORDERED by the Court that briefs in
this case shall be submitted pursuant to the following
schedule:

Petitioners’ brief(s)—10 days after filing of respon-
dent’s affidavit

Respondent’s brief—30 days after filing of petitioners’
brief(s)

Intervenors’ brief(s)—15 days after filing of respon-
dent’s brief

Reply brief(s)—12 days after filing of intervenors’
brief(s)

Per Curiam

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA

Filed August 25, 1980

No. 79-1565 and
Consolidated Cases

SIERRA CLUB, ET AL., PETITIONERS
.

DouGLasS M. CosrLE, ADMINISTRATOR
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS

MOTION FOR LEAVE TO FILE AFFIDAVIT

Respondents hereby move for leave to file the attached
affidavit of David G. Hawkins, EPA Assistant Administra-
tor for Air, Noise and Radiation. The following grounds
support the granting of this motion.

1. On April 11, 1980, petitioner Environmental Defense
Fund ( EDF) moved for leave to obtain discovery. One of
EDF’s main arguments was that meetings attended by
EPA officials — the NSPS rulemaking were not
adequately documented for the purposes of judicial review.

2. On June 16, 1980, this Court issued an order that EPA
should submit affidavits providing specified information on
meetings held on March 14, April 23, April 27, April 30,
and May 2, 1979.

3. On June 24, June 25, and July 9, 1980, EPA filed affi-
davits providing the information specified by the Court’s
June 16 order.

4. EDF has vbdjected in its opening brief that relevant
meetings are still undocumented. EDF Br. at 44.

5. , EDF ob that the EPA affidavits discuss
only one Executive Branch meeting on April 30: a briefing
on dry scrubbing (June 24 Hawkins affidavit, paragraph 4).
EPA had assumed that it was this April 30 meeting that
EDF wanted documented, since EDF referred to it in its
discovery papers. EDF Motion for Leave to Obtain Discov-

27

ery from Respondent EPA at 3, n * and Attachment C. It
appears that EDF meant to refer to the other April 30
meeting (or to both). The attached affidavit therefore pro-
vides the information specified by this Court’s order of
June 16 for the other April 30 meeting.

6. EDF also objects that a May 1, 1979 meeting is
undocumented. Although this meeting was not covered by
the Court’s June 15 order, nor was it mentioned in EDF's
discovery papers, the attached affidavit supplies the infor-
mation that would be required if it were covered by the
order.

Respectfully submitted,

S CHARLOTTE URAM
Attorney, Pollution Control Section
U.S. Department ofJustice
Tenth and Pennsylvania Avenue, N. M.
Washington, D.C. 20530

S EARL SALO
Attorney, Air, Noise and Radiation Division
U.S. Environmental Protection Agency
401 M Street, S. W.
Washington, D.C. 20460

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed September 5, 1980

CITY OF WASHINGTON
SS:
DISTRICT OF COLUMBIA

AFFIDAVIT

David G. Hawkins declares as follows:

1. I am the Assistant Administrator for Air, Noise and
Radiation of the Environmental Protection Agency. I su-
pervised the development of the rule establishing new
source performance standards for electric utility steam
generating units, which was promulgated by the Adminis-
trator on June 11, 1979. 40 C.F.R. Part 60, Subpart Da; 44
Fad. Reg. 33580.

2. On April 30, 1979, EPA officials briefed the President
and Executive Branch officials on the issues and options
presented by the rulemaking. The briefing was held on
EPA’s initiative, as part of the Agency’s policy of briefing
the Executive Branch on major EPA actions. It lasted
about one hour. It was attended by the following persons:
President Carter; James Schlesinger, Secretary of Energy;
Charles Schultze, Chairman of the Council of Econornie Ad-
visors; Charles Warren, Chairman of the Council on Envi-
ronmental Quality; Alfred Kahn of the White House Staff;
Stu Eizenstat, Advisor to the President for Domestic Poli-
cy; Kitty Schirmer and perhaps Simon Lazarus of the Pres-
ident’s Domestic Policy Staff; Jim McIntyre and Elliot Cut-
ler of the Office of Management and Budget; Douglas
Costle, EPA Administrator; myself; and other employees of
the offices of the above persons, whose names I do not
recall.

3. On May 1, 1979, EPA officials briefed staff members
of the Senate Committee on Environmental and Public
Works on EPA's analysis of che effects of alternative emis-
sion ceilings on coal reserves. The briefing was held at

EPA’s initiative, and was substantially the same as the
briefing given to Senator Robert Byrd on May 2. The
briefing lasted about sue hour. It was attended by Phil
Cummings, Committee Staff Director, perhaps by John
Yago, Committee Chief Counsel and by other members of
the Committee Staff whose names I do not recall, Walt
Barber and John Haines of EPA’s Office of Air Quality
Planning and Standards, other EPA employees whose
names I do not recall, and myself. No persons other than
Committee Staff members and EPA officials attended the
briefing. It was an oversight that I did not have a memo-
randum of this briefing prepared for the rulemaking
docket.

S Davip G. HAWKINS 7

Assistant Administrator for
Air, Noise & Radiation

Executed on 8/14/80

30

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
Washington, D.C. 20503

June 11, 1981
Embargoed for Release
6:00 p.m. E.D.T
June 13, 1981

M-81-9

MEMORANDUM FOR HEADS OF EXECUTIVE
DEPARTMENTS AND AGENCIES

FROM: DAVID A. STOCKMAN
DIRECTOR

SUBJECT: Certain Communications Pursuant to Ex-
ecutive Order 12291, “Federal Regulation”

Regulatory relief is one of the cornerstones of President
Reagan’s program of economic recovery. As an important
step in achieving regulatory relief, on February 17, 1981,
the President issued Executive Order 12291, “Federal Reg-
ulation.” This memorandum explains how the Presidential
Task Force on Regulatory Relief and the Office of Manage-
ment and Budget (OMB) will communicate with the public
and the agencies regarding proposed regulations covered
by E. O. 12291. It also describes certain obligations of the
public and agencies in this regard.

A major purpose of the Executive Order is to ensure
that, to the extent permitted by law, regulatory decisions
are based upon sound analysis of the potential conse-
quences. Toward this end, a comprehensive factual basis is
essential to assist agencies and other interested parties in
assessing the economic and other ramifications of proposed
regulations.

Under the Executive Order, both the Task Force and
OMB will be reviewing factual materials related to regula-
tory proposals. Both the public and the agencies should un-
derstand that the primary forum for receiving factual com-

31

munications regarding proposed rules is the agency issuing
the proposal, not the Task Force or OMB. Factual materi-
als that are sent to the Task Force or OMB regarding pro-
posed regulations should indicate that they have also been
sent to the relevant agency. Pursuant to this policy, the
Task Force and OMB will regularly advise those members
of the public with whom they communicate that relevant
factual materials submitted to them should also be sent to
the agency for inclusion in the rulemaking record. Accord-
ingly, agencies receiving such materials from the public
should take care to see that they are placed in the record.

On occasion, the Task Force staff and OMB will receive
or develop factual material which they believe should be
considered by an agency during a particular informal
rulemaking. In accordance with advice provided by the De-
partment of Justice, such material, when submitted to an
agency for its consideration, will be identified as material
appropriate for the whole record of the agency rulemaking.

Two additional matters should be noted. First, our proce-
dures will be consistent with the holding of and policies dis-
cussed in Sierra Club v. Costle, No. 79-1565, slip op. at
212-20 (D.C. Cir. April 29, 1981). Second, these procedures
apply only to informal rulemaking proceedings and are not
in any sense intended to affect the more stringent ex parte
rules applicable to agency adjudications and formal
rulemakings. (Such proceedings are expressly intended by
Congress to be more in the nature of formal judicial pro-
ceedings and involve bars against various forms of ex parte
communication.)

32

Supreme Court of the United States
No. 82-242
ANNE M. GORSUCH, ADMINISTRATOR,
» NVIRONMENTAL PROTECTION AGENCY, PETITIONER,
U.
SIERRA CLUB, ET AL.
ORDER ALLOWING CERTIORARI. Filed October 18, 1982.
The petition herein for a writ of certiorari to the United

States Court of Appeals for the District of Columbia Circuit
is granted.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0785%3A02. Public record. Not legal advice.