Petition — Union Carbide Corp. v. Natural Resources Defense Council, Inc.

FEB 14 1984

ee STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

UNION CARBIDE CORPORATION,

FMC CORPORATION,

MONSANTO COMPANY,

EXXON CORPORATION,

AMERICAN MINING CONGRESS,

AMERICAN IRON & STEEL INSTITUTE,

AND AMERICAN PETROLEUM INSTITUTE,

- Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

ENVIRONMENTAL DEFENSE FUND, INC.,

CITIZENS For A BETTER ENVIRONMENT,

AND BUSINESSMEN FoR THE PUBLIC INTEREST, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Union Carbide Corporation,

FMC Corporation, Monsanto

February 14, 1984 Company and Exzon Corporation

[Additional Counsel listed on inside cover)

WILgon . Eras Priwtine Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

DoucLas E. MCALLISTER

1920 N Street, N.W.

Washington, D.C. 20036

Counsel for Petitioner

American Mining Congress

RICHARD E. SCHWARTZ

Davip P. HACKETT

CoLLier, SHANNON, RILL & Scott

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

Counsel for Petitioner

American Iron and Steel Institute

STARK RITCHIE

JaMES K. JACKSON

1220 L Street, N.W.

Washington, D.C. 20005

Counsel for Petitioner

American Petroleum Institute

QUESTIONS PRESENTED

1. Whether, contrary to this Court’s decisions in System

Federation No. 91 and Vermont Yankee, the consent

decree entered, modified, and continued in this case

contravenes constitutional separation-of-powers prin-

ciples by requiring an official of the Executive Branch,

the Administrator of EPA, to undertake regulatory

programs and to apply regulatory criteria not man-

dated by the Clean Water Act.

Whether Congress intended that the Clean Water Act

of 1977 supersede the consent decree.

. Whether the district court has jurisdiction to preserve

and enforce the consent decree if the underlying causes

of action are moot.

(i)

ii

PARTIES TO THE PROCEEDING

Petitioners (appellants in the court of appeals) are

Union Carbide Corporation, FMC Corporation, Monsanto

Company, Exxon Corporation, American Mining Congress,

American Iron and Steel Institute, and American Petro-

leum Institute.* Other appellants in the court of appeals

(and respondents under Rule 19.6 here) were Celanese

Company, E. I. du Pont de Nemours and Company, Dow

Chemical Company, Allegheny Power System, Inc. (Mo-

nongahela Power Company, Potomac Edison Company,

West Penn Power Company), American Electric Power

Company, Inc. (Appalachian Power Company, Columbus

& Southern Ohio Electric Company, Indiana & Michigan

Electric Company, Kentucky Power Company, Ohio Power

Company), Baltimore Gas and Electric Company, Caro-

lina Power & Light Company, Central and South West

Services Inc., Central Hudson Gas and Electric Corpora-

tion, Central Illinois Light Company, Central [Illinois

Public Service Company, Cincinnati Gas & Electric Com-

pany, Cleveland Electric Illuminating Company, Common-

wealth Edison Company, Consolidated Edison Company of

New York, Inc., The Dayton Power & Light Company,

Delmarva Power & Light Company, Detroit Edison Com-

pany, Duke Power Company, Edison Electric Institute,

Florida Power & Light Company, Gulf States Utilities

Company, Houston Lighting & Power Company, Illinois

Power Company, Indianapolis Power & Light Company,

Iowa Public Service Company, Kansas City Power & Light

Company, Madison Gas and Electric Company, Middle

South Services, Inc. (Arkansas-Missouri Power Company,

Arkansas Power & Light Company, Louisiana Power &

Light Company, Mississippi Power & Light Company,

New Orleans Public Service, Inc.), Minnesota Power and

* In accordance with Rule 28.1 of the Rules of the Supreme Court,

the non-wholly owned subsidiaries and affiliates of each petitioner

are set forth in the separately-bound appendices to this petition,

App. C at Ic.

iii

Light Company, Montaup Electric Company, National

Rural Electric Cooperative Association, New England

Power Company, New York State Electric & Gas Corpo-

ration, Niagara Mohawk Power Corporation, Northeast

Utilities Service Company (The Connecticut Light &

Power Company, The Hartford Electric Light Company,

Holyoke Water Power Company, Western Massachusetts

Electric Company), Northern Indiana Public Service

Company, Ohio Edison Company, Ohio Valley Electric

Corporation, Oklahoma Gas and Electric Company, Pa-

cific Gas and Electric Company, Pennsylvania Power &

Light Company, Philadelphia Electric Company, Potomac

Electric Power Company, Public Service Company of In-

diana, Inc., Public Service Electric and Gas Company,

Rochester Gas & Electric Corporation, San Diego Gas &

Electric Company, South Carolina Electric & Gas Com-

pany, Southern California Edison Company, Southern

Company Services, Inc. (Alabama Power Company, Geor-

gia Power Company, Gulf Power Company, Mississippi

Power Company), Tampa Electric Company, Texas Utili-

ties Company, Toledo Edison Company, Union Electric

Company, Virginia Electric and Power Company, Wis-

consin Electric Power Company, Wisconsin Power and

Light Company, and Wisconsin Public Service Corpora-

tion. Each of the foregoing parties is an intervening

defendant in the district court. Other intervening defend-

ants in the district court (but not appellants in the court

of appeals) are National Coal Association, American

Cyanamid Company, Shell Chemical Company, Standard

Oil Company (Indiana), Standard Oil Company (Ohio),

Union Oil Company, Olin Corporation, The General Tire

& Rubber Company, Firestone Tire & Rubber Company,

Goodyear Tire & Rubber Company, B.F. Goodrich Com-

pany, American Paper Institute, and National Forest

Products Association.

iv

Respondents (appellees in the court of appeals) are

Natural Resources Defense Council, Inc., Environmental

Defense Fund, Inc., Citizens For A Better Environment,

and Businessmen For The Public Interest, Inc. A re

spondent under Rule 19.6 (also an appellee in the court

of appeals) is William D. Ruckelshaus, Administrator,

Environmental Protection Agency. Party plaintiffs in the

district court also include National Audubon Society,

Inc. and Dennis L. Adamezyk.

TABLE OF CONTENTS

ER MEEENIPUN ssetiteniisessinocssnnnsentnancilinheengsenennetvenssinnetititi

IIIT sana stensnvihiginsesenenanaienphntiinivnaonsnentoninanessenitnibsannaaian

CONSTITUTIONAL AND STATUTORY PROVI-

IID esccinchitnigesievnininintneunainesosnanniagesnsiondins

I Sieh htretconinotiaichetseticieleescciibiciapebiiniiaittoninee

A.

B.

C.

D.

E.

F.

Statutory Framework .....................2...0ccccceeeeeeeees

Subsequent Proceedings In District Court Re-

ee ee

The Decisions Of The Court of Appeals ............

1. The court of appeals’ “affirmed and re-

manded” decision of September 1980 ........

2. The district court’s proceedings on remand..

8. The court of appeals’ decision of October

RT EET te, ARs Pee OO Ru pion

4. Denial of rehearing en banc ..........................

I. CONTRARY TO THIS COURT’S DECISIONS

IN SYSTEM FEDERATION NO. 91 AND VER-

MONT YANKEE, THE DECREE APPROVED

BY THE COURT OF APPEALS CONTRA-

VENES CONSTITUTIONAL SEPARATION-

OF-POWERS PRINCIPLES BY CONSTRAIN-

ING THE STATUTORILY-CONFERRED DIS-

CRETION OF AN OFFICIAL OF THE EXEC-

SEU ED MIRE ciciscies nesipnicsccninnsptitatentonninnainatnrs

18

vi

TABLE OF CONTENTS—Continued

A. The Decree Exceeds The Judicial Power Con-

ferred On A Federal Court By Article III Of

, ARERR SIRNAS Sa or =Car ene

1. The decree contravenes constitutional

separation-of-powers principles ................

2. By initially consenting to the decree, EPA

could not waive a constitutionally-based

limitation on federal judicial power ........

B. The Question of Judicial Power Erroneously

Decided By The Court of Appeals Has An

Important Bearing On The Continued Inter-

action Of The Executive, Legislative, and

PE I aac taietintstincnissnerhinetpnepnsitnions

II. THE COURT OF APPEALS ERRED IN RUL-

ING THAT THE DECREE WAS NOT SUPER-

SEDED BY THE 1977 AMENDMENTS TO

THE CLEAN WATER ACT AND THAT THE

DECREE WAS ENFORCEABLE NOTWITH-

STANDING MOOTNESS OF VIRTUALLY

ALL OF THE UNDERLYING CAUSES OF

SPITE chen cnasahiiaitensnssenesiaphinnnichehaicnntsinsinilapgoiiainin

IIIT cntesannnscvascntiisinsevtensiennsntashiaimsimtaigtaellnesaitsitite

Page

18

21

8

vii

TABLE OF AUTHORITIES

Cases: Page

American Fire & Casualty Co. v. Finn, 341 U.S.

IED. cisinsnceneesegsitisinsincasishiegibtanaheatiaatiiadsatiaianaeciaeee 19, 23

Brotherhood of Locomotive Firemen & Engine-

men V. Bangor & Aroostook R.R., 389 U.S. 327

COED sccectvhckcochccucnssennetieessicenceeiliuatrancabietecdanialiiaaaninaie 2

Cutler v. Rae, 48 U.S. (7 How.) 729 (1849) ........ 23

E.I. du Pont de Nemours & Co. v. Train, 480 U.S.

BED COT UD eicnicctnieetecectnceininiaecidlis cantatas 4

FCC v. Pottsville Broadcasting Co., 309 U.S. 184

Ci eccoasssiccnssencncinetsnniccastniniadanideiasbntcntnabditinn iitedatalagh 22

FPC v. Idaho Power Co., 344 U.S. 17 (1952) ........ 22

FPC v. Transcontinental Gas Pipe Line Corp., 423

Re IED vinsitccnnionsccisitanphetnennecitbetaibiseal ahaa 22

Insurance Corp. of Ireland v. Compagnie Des

Bauzites De Guinee, 456 U.S. 694 (1982) .......... 23

Keller v. Potomac Electric Power Co., 261 U.S. 428

IID <chsics hseiedcisicpicrtesscasasibieisnightaeeiatnda te blade aaa eer 21

Marbury v. Madison, 5 U.S. (1 Cranch) 1387

RARTIIIIEDT " sccnscortiesnlibnistbasonsiosanisntesiiabintaesindtasieelbandica beta aiahaa oe 19, 21

Maryland v. United States, 51 U.S.L.W. 3682 (U.S.

RR 21

National Audubon Society, Inc. v. Watt, 678 F.2d

ee rs I os ida eecsscecsehcineesicciceniniantlmaiiesitans 26

NRDC Vv. Costle, 561 F.2d 904 (D.C. Cir. 1977) ...... 7

NRDC v. Train, 8 Env’t Rep. Cas. (BNA) 2120

CTR. IPUN . iclasscocdestninin tab nceshdhciclinneeh cheated aieabinian 6,7

NRDC V. Train, 519 F.2d 287 (D.C. Cir. 1975) ...... 5

Pope V. United States, 828 U.S. 1 (1944) ................ 19

SEC v. Chenery Corp., 8382 U.S. 194 (1947) ........ 22

Strycker’s Bay Neighborhood Council, Inc. V.

Karlen, 444 U.S. III -csnchoxntintincabiashdiaalitenda bidbctis 20, 22

System Federation No. 91 v. Wright, 364 U.S. 642

EIT - sharsiaitioctetiasiventiignindialiaiininatenieiiaiansiactil 8, 15, 18, 19, 20

United States v. International Building Co., 345

U.S. 502 (1958) ... 19

United States vy. ITT Continental Baking Co., 420

U.S. 228 (1975) ...... 23

United States v. Mendoza, 52 U.S.L.W. 4019 (U.S.

Jan. 10, 1984) 25

. “J

? 4

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Southern Ute Indians, 402 U.S.

SSE ED ee ON 19

United States v. Swift & Co., 286 U.S. 106 (1982).. 19

Vermont Yankee Nuclear Power Corp. v. NRDC,

I i a eae 8, 15, 18, 20, 22

Washington v. Penwell, 700 F.2d 570 (9th Cir.

ENS TEE hs SEC a a 20, 21

Wilbur v. United States ex rel. Kadrie, 281 U.S.

TLE ee a tinaiandle 24

Constitution:

CE, SS ssiaeals

U.S. Const. art. II, § 1 (first sentence) ....... rae er

U.S. Const. art. II, §3 .............. Jf Ek RE

TT ceinsenencose 16, 18, 19, 2

se nemontinebevebooonons

RS ee

Statutes and Rules:

Clean Water Act, as amended, 33 U.S.C. §§ 1251-

1857:

Section 301 (b), 38 U.S.C. § 1811(b) —....... 2, 4, 5, 8

Section 302, 38 U.S.C. § 1812 ..............................

Section 308, 33 U.S.C. § 1818 ..............................

Section 306, 38 U.S.C. § 1816 .............................. 2,4

Section 8307, 33 U.S.C. § 1817 .....................--...-2-- 2, 3

NNONN WY

2

2

5

8

Section 307 (a), 838 U.S.C. § 1817 (a) 00... 4,5

Section 307 (a) (5), 33 U.S.C. § 1817 (a) (5) ..... 4

Section 307 (b), 33 U.S.C. § 1817(b) 0. 4,5

Section 307 (b) (1), 38 U.S.C. § 1817(b) (1)... 5

Section 307 (c), 38 U.S.C. § 1817 (c) -.00 4

Section 518, 33 U.S.C. § 1251 (note) 00000000. 7

7

2

a A LE

EE ee a

A RS ee ii, iv

Re ii

ix

TABLE OF AUTHORITIES—Continued

Miscellaneous: Page

128 Cong. Rec. 38,949 et seq. (1977) .....-00.2--ecceeeee eee 9

128 Cong. Rec. 38,959 (1977) .................0..-.......-0000000 8

128 Cong. Rec. 38,960-61 (1977) ...0.....2.000....eeceeeeee 9

Harter, Negotiating Regulations: A Cure For

Malaise, 71 Geo. L.J. 1 (1982) ..22000.... eee 24

H.R. Rep. No. 830, 95th Cong., 1st Sess. 82-85

(1977), reprinted in 1977 U.S. Code Cong. & Ad.

RAE ERR CK earners eet Pen 9

Nagel, Separation of Powers and the Scope of Fed-

eral Equitable Remedies, 30 Stan. L. Rev. 661

I SMR ae Rak TRIS ae aA ee SO 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

UNION CARBIDE CORPORATION,

FMC CORPORATION,

MONSANTO COMPANY,

EXXON CORPORATION,

AMERICAN MINING CONGRESS,

AMERICAN IRON & STEEL INSTITUTE,

AND AMERICAN PETROLEUM INSTITUTE,

Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

ENVIRONMENTAL DEFENSE FUND, INC.,

CITIZENS For A BETTER ENVIRONMENT,

AND BUSINESSMEN FoR THE PUBLIC INTEREST, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Union Carbide Corporation, et al., respectfully petition

for a writ of certiorari to review the decisions of the

United States Court of Appeals for the District of Colum-

bia Circuit entered in this case.

OPINIONS BELOW

The opinion of the court of appeals dated October 4,

1983 is reported at 718 F.2d 1117 and is reprinted in the

separately-bound appendices to this petition, App. A at

la. The corresponding opinions of the district court were

2

dated February 5, 1982 and May 7, 1982. They were un-

officially reported at 16 Env’t Rep. Cas. (BNA) 2084 and

17 Env’t Rep. Cas. (BNA) 2013, respectively, and are

reprinted in the separately-bound appendices, App. A at

103a, 117a. The opinion of the court of appeals dated

September 16, 1980 is reported at 636 F.2d 1229, and is

reprinted in the appendices, App. A at 45a. The cor-

responding opinion of the district court was dated March

9, 1979, and was unofficially reported at 12 Env’t Rep.

Cas. (BNA) 1833. It is reprinted in the appendices, App.

A at 121la.

JURISDICTION

In its opinion dated September 16, 1980, the court of

appeals dealt with several legal issues presented to it but

remanded the case to the district court te consider an-

other issue. (App. A at 100a.) Accordingly, at that point

review by this Court on a petition for writ of certiorari

was not appropriate. See Brotherhood of Locomotive

Firemen & Enginemen v. Bangor & Aroostook R.R., 389

U.S. 327 (1967).

The further opinion and judgment of the court of ap-

peals was entered on October 4, 1983. (App. A at la

(opinion) and 195a (judgment).) A timely petition for

rehearing and a suggestion for rehearing en banc were

denied by orders of the court entered on November 18,

1983. (App. A at 208a, 205a.) The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Article I, §1, article II, §§1 (first sentence) and 3,

and article III, §§ 1 and 2 (first clause) of the Constitu-

tion, along with Sections 301(b), 302, 303, 306 and 307

of the Clean Water Act, 33 U.S.C. §§1811(b), 1812,

1313, 1816 and 1317, are reprinted in the separately-

bound appendices to this petition, App. B at 1b.

3

STATEMENT

This case concerns a consent decree which requires the

Administrator of the Environmental Protection Agency

(“EPA”) to undertake regulatory programs and to apply

regulatory criteria not mandated by statute. The court of

appeals in two opinions, one in 1980 and the other in

1988, considered the question whether the consent decree

impermissibly constrains the discretion Congress granted

to the Administrator in the Clean Water Act. In its

1983 decision, a divided panel of the court of appeals fi-

nally concluded that the constraints on the Administra-

tor’s discretion imposed by the decree were not impermis-

sible. Rehearing en banc was denied by a divided five-

to-three vote (three judges not participating).

The extended consideration accorded the constrained-

discretion issue in the court of appeals reflects that court’s

discomfiture with and uncertainty over application of this

Court’s decisions recognizing limitations on judicial power

derived from constitutional separation-of-powers prin-

ciples. The ultimate decision of the closely divided court

of appeals fails to apply those principles properly. Spe-

cifically, the 1983 decision conflicts with the premises of

this Court’s decisions in System Federation No. 91 Vv.

Wright, 364 U.S. 642 (1961), and Vermont Yankee Nu-

clear Power Corp. v. NRDC, 485 U.S. 519 (1978).

A. Statutory Framework

Under the Clean Water Act (“the Act”), EPA is di-

rected to issue four basic types of effluent regulations.

While the complaints in this litigation specifically con-

cerned two of these types of regulations, both of which

arise under Section 307 of the Act, 33 U.S.C. § 1817, the

consent decree resulting from them relates to all four

types of regulations, and specifies additional non-statutory

programs as well.

4

The four different types of effluent regulations may be

characterized as follows: Section 301(b) of the Act, 33

U.S.C. § 1811(b), calls on EPA to establish technology-

based effluent limitations regulations for the various ma-

jor segments of American industry. See E. I. dw Pont de

Nemours & Co. v. Train, 480 U.S. 112 (1977) (“du

Pont”). Section 306 of the Act, 33 U.S.C. § 1316, pro-

vides that EPA is to issue national standards of per-

formance for new sources in these major categories of

industry. See du Pont, supra, 430 U.S. at 137. Under

Section 307(a), 33 U.S.C. §1817(a), EPA is to issue

national effluent standards for toxic pollutants.’ Finally,

Sections 307(b) and (c), 38 U.S.C. §1317(b) and (c),

authorize EPA to issue pretreatment standards for ex-

isting and new sources of discharges, respectively, into

publicly owned treatment works.

B. The Complaints

Four separate complaints are involved in this litigation.

The first suit was brought in 1973 by the Natural Re

sources Defense Council, Inc. and several other groups

(“NRDC”) against EPA. NRDC alleged that the Agency

had violated Section 307(a) of the Act by developing a

list of toxic pollutants using selection criteria that were

not specified in the then-extant provisions of Section

307(a) and which improperly limited the list? NRDC

also alleged that EPA had unlawfully failed to list 25

substances. After EPA had filed the “administrative

record” regarding its actions, the district court granted

EPA’s motion to dismiss the complaint. The court held

that the Administrator had not abused his discretion

when he established the list and that the Administrator’s

consideration of other substances for inclusion on the

1In doing so, EPA may designate the categories of sources to

which each such effluent standard applies. See Section 307 (a) (5),

83 U.S.C. § 1817(a) (5).

2 NRDC Vv. Train, No. 2158-78 (D.D.C., filed Dec. 7, 1978).

5

list satisfied the statutory command that the list be re-

vised from time to time. On uppeal the court of ap-

peals reversed, holding that plaintiffs’ counsel had made

a substantial showing that the Administrator had not

produced the entire administrative record of his decision.

NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975).

The second and third complaints concerned a different

aspect of Section 307(a). NRDC and others alleged that

EPA had violated then-existing Section 307(a) of the Act

by failing to promulgate final toxic pollutant effluent

standards for the nine listed substances within six months

of proposal of such standards.’ The complaints requested

the court to order EPA to establish final standards for

the nine substances.

The fourth case addressed pretreatment standards un-

der Section 307(b) of the Act. NRDC claimed that EPA

violated Section 307(b) (1) by failing to establish final

pretreatment regulations within 90 days of the date EPA

published proposed regulations.‘

C. The Consent Decree

After the three 1975 complaints had been brought, and

the dismissal of the 1973 complaint had been reversed by

the court of appeals on a procedural ground, NRDC and

EPA began settlement negotiations. These discussions

coincided with a policy decision within the Agency to

abandon any major effort to set toxic pollutant effluent

standards based upon Section 307(a) and instead to rely

more heavily on technology-based effluent limitations and

standards based upon Sections 301(b) and 306 of the

Act. NRDC and EPA embodied these policy choices in a

joint settlement agreement intended as a resolution of the

* Environmental Defense Fund vy. Train, No. 75-0172 (D.D.C.,

filed Feb. 6, 1975); Citizens For A Better Environment v. Train,

No. 75-1698 (D.D.C., filed Oct. 15, 1975).

* NRDC Vv. Train, No. 75-1267 (D.D.C., filed Aug. 4, 1975).

6

four pending lawsuits.» As NRDC has observed, “[t]he

Agreement sets out the precise nature, scope, and timing

of every aspect of EPA’s program.” Brief for Appellees

NRDC, et al., at 4, in Environmental Defense Fund, Inc.

v. Costle, 636 F.2d 1229 (D.C. Cir. 1980). Portions of the

agreement do relate to, and require that EPA carry out,

statutory mandates.* Other portions, however, have no

direct statutory basis, i.e., they compel EPA to employ

criteria and standards not found in the Act and to imple-

ment whole regulatory programs not present in the Act.’

NRDC and EPA jointly proffered the settlement

agreement to the district court on March 31, 1976. The

district court allowed interested persons to file com-

ments regarding it, whether the persons were parties or

not, and a number of industry groups vigorously op-

posed both the settlement and entry of the settlement as

a decree of the court. After requiring several modifica-

tions to the agreement,* on June 9, 1976 the court ap-

5 Several industrial groups including the American Iron and Steel

Institute and American Petroleum Institute had intervened in one

of the cases, No. 75-0172, shortly after suit was brought. These

intervenors were given notice of the settlement agreement after it

had been negotiated hut before it was presented to the district court.

* These portions of the agreement largely concern deadlines for

issuing effluent limitation regulations. See {7 of the agreement,

App. A at 164a-166a (initial agreement), 142a-148a (March 1979

order), 118a-120a (May 1982 order). See also infra, at 18 n.11

(discussing August 1983 and January 1984 modifications to the

schedule) .

™ Examples of these provisions are {{ 4(c), 8 and 12 of the agree-

ment as modified. App. A at 14la-146a. See infra, at 19 n.13.

* Among other things, the district court advised that it would

“not review substantive judgments made by the Administrator of

EPA as the original agreement seemed to require, but will merely

ensure good faith compliance with the terms of the agreement.”

NRDC V. Train, 8 Env’t Rep. Cas. (BNA) 2120, 2121 (D.D.C. 1976),

App. A 15la (footnote omitted).

The district court acknowledged the possibility “that even this

limited role will require a substantial investment of judicia] re

sources.” Jd. at 2121, App. A 152a.

7

proved it as a “just, fair, and equitable resolution of the

issues raised.” NRDC v. Train, 8 Env’t Rep. Cas.

(BNA) 2120, 2122 (D.D.C. 1976), App. A 156a. The

agreement was entered as a decree of the court. No

appeal was taken from the order adopting the agreement.°

D. The Clean Water Act of 1977

In 1976 and 1977, Congress considered amendments to

the Federal Water Pollution Control Act (“FWPCA”’).

During Congress’ deliberations both EPA and NRDC put

forward the policy positions that had been embodied in

their settlement agreement (and thus in the district

court’s decree). In December 1977, Congress passed ex-

tensive amendments to the Federal Water Pollution Con-

trol Act (the “1977 Amendments”)’® which in effect

adopted several key aspects of the decree:

The highlight of this bill—the most important and

far-reaching amendments are contained in a pack-

age of provisions responding to the most critical

deficiencies in... [the 1972 FWPCA] dealing with

toxic pollutants and the 1983 requirements in the act

for industrial discharges.

® An appeal was taken from an order of the district court denying

the applications of several groups of manufacturers to intervene in

the litigation. The court of appeals reversed the district court’s

denial of intervention, holding that the groups were entitled to in-

tervene as of right under Fed. R. Civ. P. 24(a)(2). NRDC v.

Costle, 561 F.2d 904 (D.C. Cir. 1977).

In opposing intervention, EPA among other things had argued

that “intervention has .. . been denied . . . when private parties

have sought to interfere with a consent decree worked out by a fed-

eral agency.” Federal Defendants’ Opposition to Motion for Leave

to Intervene, served April 5, 1976, at 19. EPA also claimed that it

shared the asserted interests in the regulatory process of the indus-

try applicants for intervention. Jd. at 15. In ordering that inter-

vention be granted, the court of appeals rejected EPA’s claims.

NRDC v. Costle, supra, 561 F.2d at 908-912. |

10 The Act was also redesignated as the “Clean Water Act.” Sec-

tion 518 of the Act, 33 U.S.C. § 1251 note.

8

123 Cong. Rec. 38,959 (1977) (Statement of Con-

gressman Roberts, manager on the part of the House

of the Committee on Conference).

The toxic pollutant provisions of the 1977 Amendments

repealed then-existing requirements of Section 307 of the

Act that required EPA to proceed under a strict time

schedule to establish health-based effluent standards on

a poliutant-by-pollutant basis. Instead, the new Section

307, when taken with new Section 301(b), requires that

EPA issue technology-based effluent limitation regula-

tions for sixty-five specified pollutants on an industry-by-

industry basis.

Immediately prior to House adoption of the Confer-

ence Report, the floor manager, Congressman Roberts,

explained that the amendments gave EPA both the au-

thority and the discretion necessary for an effective

regulatory program and that the consent decree accord-

ingly should be vacated:

In summary, the revisions to the toxics regulatory

program contained in the conference report on H.R.

3199 simplify the procedures for identifying toxic

pollutants and promulgating regulations according to

their characteristics. The discretion exercised by the

Administrator is broadened, the procedures less for-

mally structured, and burdens of proof modified to

the point where the program may proceed in a more

rapid and orderly fashion without further recourse

to the courts.

Crisis-by-crisis reaction to the problem of toxics

must no longer be the norm, but [be] replaced by an

orderly program for adding compounds to the list,

with the Administrator fully in charge. It, there-

fore, would be entirely appropriate for the United

States to petition the courts to relinquish jurisdic-

tion over toxic poliutant control under Public Law

92-500 [the 1972 2 FWPCAI, now that the statutory

basis has been laid for a workable regulatory pro-

9

gram the lack whereof led to the litigation resulting

in the consent decree. This ie particularly appropri-

ate in view of the large number of potentially toxic

chemicals to be addressed by the program and the

need for administrative discretion within the revised

regulatory framework to carry out the provisions of

law enacted herein.

This is the intent of this legislation, an outgrowth

of House initiatives by the House conferees.

123 Cong. Rec. 38,960-61 (1977) (emphasis added).

Congressman Roberts was a member of the committee

that drafted the 1972 FWPCA, the Chairman of the

subcommittee of the House Corrmittee on Public Works

and Transportation that drafted the 1977 Amendments,

the Chairman of the House conferees, the Vice Chair-

man of the House-Senate Conference Committee, and the

House floor manager of the Conference Report. The

statement in question was made by him—prior to the

House vote on the 1977 Amendments—in his capacity as

the floor manager of the Conference Report on the 1977

Amendments, in order to apprise his colleagues as to the

intent of the conferees.

His statement takes on added significance in light of

the fact that the toxic pollutant provisions of the 1977

Amendments were drafted in the Conference Commit-

tee. See 123 Cong. Rec. at 38,949 et seqg., providing a

comparison of the House Bill and the Senate Bill with

the resulting 1977 Amendments. Thus, the Committee

Reports which accompanied the original bills are of no

value in interpreting the toxic pollutant provisions of

the 1977 Amendments. The only relevant legislative his-

tory with respect to these provisions is the Conference

Report (H.R. Rep. No. 830, 95th Cong., 1st Sess. 82-85

(1977), reprinted in 1977 U.S. Code Cong. & Ad. N

at 4457-60) and the statements of the members

managed the Conference Report on the floor of the

and Senate.

TE

10

E. Subsequent Proceedings In District Court Regarding

The Decree

After enactment of the 1977 Amendments, EPA did

not move to have the decree vacated. Rather the Agency

proceeded with its efforts to carry out the new statutory

requirements. However, on September 26, 1978, NRDC

moved for an order to show cause why EPA should not

be held in contempt of court for failing to meet various

deadlines set by the consent decree. EPA responded with

a motion to amend the decree by (1) extending the dead-

lines for establishing regulations, (2) modifying the

Agency’s authority to exclude certain pollutants and in-

dustry categories from regulation, and (3) extending the

deadline for compliance with the regulations to June 30,

1984. See Environmental Defense Fund, Inc. v. Costle,

636 F.2d 1229, 1237 (D.C. Cir. 1980), App. A 54a.

Contemporaneously, the industry parties who by then

had been granted intervention (“the Companies’) filed a

motion to vacate the decree. They advanced three inde-

pendent grounds for relief: (1) Congress intended that

the toxic pollutant provisions of the 1977 Amendments

supersede the provisions of the decree, (2) the decree

should be vacated because the four cases that underlay

it were moot, and (3) modification of the decree would

abridge applicable public notice-and-comment require-

ments. (See id. at 1237, App. A 54a-55a.)

NRDC then filed discovery requests concerning vir-

tually every phase of EPA’s program to implement

a tentative agreement with NRUC.

given ten days to submit written comments regarding

11

the tentative agreement. The comments submitted did

not result in any substantive revision of the tentative

agreement although certain technical changes based on

these comments were incorporated. NRDC v. Costle, 12

Env’t Rep. Cas. (BNA) 18338, 1834, App. A 123a.

To carry out their new settlement, EPA and NRDC

filed a joint motion to modify the decree and withdrew

their earlier motions. NRDC also withdrew the inter-

rogatories it had served on EPA. The Companies de-

clined to withdraw their motion to vacate. The district

court on March 9, 1979 denied the Companies’ motion to

vacate and granted the joint EPA-NRDC motion to

modify the decree. (Jd. at 1840, App. A 139a.) In deny-

ing the Companies’ motion, the court held that (1) Con-

gress did not intend the 1977 Amendments to supersede

the consent decree, (2) even assuming that some of the

four cases underlying the decree were moot, the moot-

ness challenge must fail because the original causes of

action have become inseparable and the decree represent-

ing the four cases must be taken as a whole, and (8)

the modification would not violate notice-and-comment

requirements. (/d. at 1836, 1838, App. A 128a, 182a-

136a.)

F. The Decisions Of The Court Of Appeals

1. The court of appeals’ “affirmed and remanded” de-

cision of September 1980.

Companies’ appeal, the court of appeals af-

district court’s order refusing to vacate the

is

& F

mitted to EPA to implement the Clean Water Act. En-

vironmental Defense Fund, Inc. y. Costle, 686 F.2d 1229

1259 (D.C. Cir. 1980), App. A 100a. The court of ap-

peals noted thai “(t)he Companies’ brief adverted to

12

sent it as an independent objection to the modified

settlement agreement.” (/d. at 1258 n.99, App. A 98a

n.99.) In remanding, the court commented that “EPA,

for example, seems to attach no particular significance to

the fact that the Agreement is embodied in a court or-

der’, and also that “[i]t is not clear whether EPA...

considers itself bound to follow the procedures and deci-

sionmaking criteria set out in the Agreement only for as

long as the Administrator deems them appropriate.”

(Id. at 1258, App. A 99a.)

2. The district court’s proceedings on remand.

On remand, the Companies filed with the district

court a Motion to Vacate the Consent Decree Or, Alter-

natively, to Revise the Decree. EPA filed a cross-motion

requesting that the district court modify the decree in

light of enumerated “changed circumstances.” EPA’s re-

quested modifications were comparable to the revisions

sought alternatively by the Companies. NRDC opposed

both motions.

By orders dated February 5, 1982 and May 7, 1982,

the district court denied both the Companies’ and EPA’s

motions to modify the decree. NRDC v. Gorsuch, 16 Env’t

Rep. Cas. (BNA) 2084 (D.D.C. 1982), App. A 108a, and

17 Env’t Rep. Cas. (BNA) 2013 (D.D.C. 1982), App. A 117a.

In denying the Companies’ motion, the district court said

it had “no doubt that the instant settlement agreement

infringes to some degree on the EPA Administrator’s

discretion.” (16 Env’t Rep. Cas. (BNA) at 2087, App.

A 107a.) Nevertheless, it did “not believe that this in-

fringement is impermissible.” /d.

The district court claimed “particularly broad” equi-

table powers to “utilize flexible and novel approaches to

implement congressional intent,” especially “where the

public interest is involved,” and described the entry and

continuation of the decree as an exercise of those equi-

table powers. (Jd, at 2087-88, App. A 108a-109a.) The

13

district court pointed out that a remedial order must be

based upon the “presence of unlawful or impermissible

agency action.” (Jd. at 2088, App. A 109a.) However,

the court made no attempt to find a nexus between any

unlawful agency action and the provisions of the decree.

The court did not analyze the provisions of the decree in

light of the Administrator’s statutory obligations and

possible failure to perform those obligations. Instead,

the court broadly asserted that “the agency has failed to

implement a congressionally sanctioned process aimed at

protecting the public from toxic pollutants” and that

“the aggregate record of the EPA with regard to the

regulation of these toxic pollutants can be considered

equivalent to administrative action unlawfully with-

held.” (Jd. at 2088, App. A 109a.)

Regarding EPA’s motion, the district court said it was

denying any relief because “at the present time the de-

fendants have presented insufficient justification for re-

vising the consent decree” (17 Env’t Rep. Cas. (BNA)

2015, App. A 117a), and that “at this point in time the

EPA must be pushed to work harder.” Id."

11 The court also directed EPA to complete within one year its

regulatory actions to establish technology-based regulations for var-

ious industries. See 17 Env’t Rep. Cas. (BNA) 2015-16, App. A

119a-120a. Subsequenuly, on October 26, 1982, the court granted a

different motion by EPA to modify the decree, aimed only at revis-

ing the schedule for establishing effluent regulations for certain

industries. Thereafter, on August 2, 1983 and January 6, 1984,

the court granted further motions by EPA to modify the schedule

in the decree for establishing regulations for specific industries.

NRDC’s requests for awards of attorneys’ fees have also been

disputed in the litigation. On August 16, 1978, the district court

awarded NRDC attorneys’ fees and costs of litigation totalling

$100,976.14, covering the period of September 1978 through Novem-

ber 1977. During this period, NRDC initiated the lawsuits and

negotiated the original settlement with EPA. The award of attor-

neys’ fees and costs was against the government, which took no

appeal.

On May 17, 1982, NRDC moved the court for an order awarding

further costs of litigation, including attorneys’ fees, covering the

14

3. The court of appeals’ decision of October 1983.

On appeal from the district court’s orders on remand

refusing both the Companies’ and EPA’s motions to

vacate or modify the decree, the court of appeals by

divided vote affirmed. Citizens For A Better Environ-

ment v. Gorsuch, 718 F.2d 1117 (D.C. Cir. 1983), App.

A la. In an opinion by Senior District Judge Bonsal,

sitting by designation, joined by Judge Wald, the court

held that the decree did not impermissibly infringe upon

the Administrator’s congressionally-conferred discretion.

(718 F.2d 1120, App. A 8a.) The majority acknowl-

edged, as all parties had, that the decree constrains the

discretion of EPA’s Administrator by requiring him to

apply criteria and standards not found in the Act and to

undertake programs not required by the Act. (718 F.2d

1124, App. A 17a.) The majority concluded that these

constraints were permissible, stressing that the decree

provided a means of implementing the Act “that is ac-

ceptable to both sides [sic] in this dispute” and empha-

sizing that the decree was “consistent with the purpose

of the [Act].” (718 F.2d 1126, App. A 22a.) The ma-

period of May 1978 onwards. This time, NRDC sought an award

against both EPA and the Companies. It did not, however, then

specify the amount requested. Eleven months later, on April 20,

1983, NRDC filed a detailed memorandum in support of this motion

requesting attorneys’ fees in the amount of $196,799.93. This re-

quest was based upon an extraordinarily enhanced award of 210

percent of the “lodestar” value for the time its attorneys spent re-

garding implementation of the decree (717.79 hours), and an en-

hanced award of 115 percent of the lodestar rate for 188.45 hours

spent in preparing the attorneys’ fees motion itself. NRDC has sub-

sequently requested an additional award of $15,525.50 for prepara-

tion of a reply to the oppositions of EPA and the Companies. The

district court has not yet ruled on NRDC’s motion.

NRDC’s motion for further attorneys’ fees specifically excluded

any request for an award of attorneys’ fees concerning the judicial

proceedings related to the constrained-discretion issue. NRDC im-

plied that its work regarding that issue would be covered by a sub-

sequent request.

15

jority considered that the Companies had advocated “an

overly literal reading of System Federation No. 91 V.

Wright, [364 U.S. 642 (1961)].” (718 F.2d 1125, App.

A 19a.) In the majority’s view, this Court’s reference

in that case to statutory authority for a consent decree

could be construed instead to relate merely to considera-

tion of general statutory purposes:

The statement [in System Federation No. 91] that a

district court’s ‘authority to adopt a consent decree

comes only from the statute which the decree is in-

tended to enforce,’ . . . means only that the focus of

the court’s attention in assessing the agreement

should be the purposes which the statute is intended

to serve, rather than the interests of each party to

the settlement.

(Id.)

The majority correlatively distinguished this Court’s de-

cision in Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978), on the ground that the decree in

the instant case was initially entered “with EPA’s con-

sent” (emphasis by the court). In doing so, the majority

adopted a general “public interest” test for entry of

consent decrees :

It may well be, as the Companies argue, that “a

court has a duty to determine that any consent judg-

ment rendered is within the bounds of its judicial

power, notwithstanding the parties’ consent.” Br.

for Appellants at 40. Nevertheless, as the discussion

in Part II above [regarding System Federation No.

91] indicates, a court fulfills its responsibility in this

respect simply by determining that the settlement is

consistent with the statute the consent judgment is

to enforce and fairly and reasonably resolves the

controversy in a manner consistent with the public

interest.

(718 F.2d 1128, App. A 24a-25a (emphasis added).)

16

Judge Wilkey in dissent disagreed with the funda-

mental premises of the majority’s decision. He began

his analysis with the undisputed fact that “the decree

does restrict the discretion of the Administrator of the

EPA.” (718 F.2d 1131, App. A 3838a.) In his view the

constraints were “not de minimis”; indeed, “[t]hey im-

pose[d] duties on the Administrator that differ in kind

as well as in scope from those duties imposed by the

Act.” (718 F.2d 1131-32, App. A 33a.) They were

neither mandated by the Act nor necessary to ensure

that EPA performs its duties under the statute. Id.”

Judge Wilkey looked to the constitutional limits on the

power of an article III court, and concluded from this

Court’s decisions construing those limits that a federal

court may not issue any order or decree commanding an

Executive Branch official to exercise his or her regula-

tory discretion in a particular way. (718 F.2d 1131,

App 32a.) He considered that the consent decree con-

stituted judicial action “without any statutory or con-

stitutional mandate.” (718 F.2d 1135, App. A 40a.) In

his view, permitting a federal court’s equity power to

extend so far “would abolish the principle of separation

of powers” (id.), and would weaken democratic control

over action by administrative agencies. (718 F.2d 1136,

App. A 42a-48a.)

Judge Wilkey distinguished the very broad equity

powers assumed by federal courts in apportionment cases

and in instances of violation of the equal protection and

due process clauses of the Constitution on the ground

that those cases involved the supremacy clause and this

12 Judge Wilkey also addressed the majority’s emphasis that the

decree was initially entered with the consent of an Administrator.

In his view, “(for reasons that ultimately have to do with preserv-

ing the democratic nature of our Republic, American courts have

never allowed an agercy chief to bind his successor in the exercise

of his discretion.” (718 F.2d 1134, App. A 88a-39a.)

ae

17

case concerned intra-federal separation-of-powers limita-

tions:

Courts have used their equitable powers to assume

administrative and legislative roles, supervising in a

highly active and intrusive manner prisons, school

systems, mental hospitals and electoral apportion-

ment.

In those cases, however, the court invariably acts

against state governments or individual citizens.

Those decisions in which the court seizes the broad-

est powers are also those in which it declares that

the doctrine of separation of powers does not apply

“vertically” when courts act under the Supremacy

Clause. In the case at issue, the court acts against

a coordinate and co-equal branch of government.

The court cannot take refuge in the Supremacy

Clause. The court must face head-on the separation

of powers issue.

(718 F.2d 1134-35, App. A 39a-40a (footnotes

omitted) .)

4. Denial of rehearing en banc.

A timely petition for rehearing and a suggestion for

rehearing en banc were denied by orders of the court of

appeals entered November 18, 1983. (App. A 203a,

205a.) Chief Judge Robinson and Judges Wald, Mikva,

Edwards, and Ginsburg voted to deny rehearing en banc.

Judges Wilkey, Scalia, and Starr noted that they “would

[have] grant[ed] rehearing en banc for the reasons set

forth in Judge Wilkey’s dissenting opinion” (App. A

206a), and Judges Wright, Tamm, and Bork did not par-

ticipate.

REASONS FOR GRANTING THE WRIT

The first issue presented in this petition is one of con-

siderable importance. The question whether a regulatory

officer’s statutorily-conferred discretion can be dimin-

ished by constraints in a consent decree has significant

18

implications for the continued working relationships of

the Executive, Legislative, and Judicial Branches of

the Federal government. Resolution of the issue turns

on the proper limits of the power of the federal courts

under article III of the Constitution. As Judge Wilkey

observed, a “government by consent decree” has funda-

mental, negative effects up on the processes and institu-

tions of representative democracy: it enhances the

powers of special interest groups and diminishes the

responsiveness of Federal agencies to the views of other

citizens, Congress, and even the Executive. In its de

cisions in System Federation No. 91 v. Wright, 364 U.S.

642 (1961), and Vermont Yankee Nuclear Power Corp.

v. NRDC, 485 U.S. 519 (1978), this Court drew upon

the limitations of article III of the Constitution and the

coordinate role of the judiciary in a democracy to evalu-

ate the validity of judicial actions that abridged statu-

tory commands and executive authority. The decision

by the majority of the court of appeals in this case

conflicts with principles recognized and applied in those

decisions.

I. CONTRARY TO THIS COURT’S DECISIONS IN

SYSTEM FEDERATION NO. 91 AND VERMONT

YANKEE, THE DECREE APPROVED BY THE

COURT OF APPEALS CONTRAVENES CONSTITU-

TIONAL SEPARATION-OF-POWERS PRINCIPLES

BY CONSTRAINING THE STATUTORILY-

CONFERRED DISCRETION OF AN OFFICIAL OF

THE EXECUTIVE BRANCH

A. The Decree Exceeds The Judicial Power Conferred

On A Federal Court By Article III Of The Con-

stitution

Everyone involved with this litigation has acknowl-

edged that substantial portions of the consent decree

constrain the statutorily-conferred regulatory discretion

of an Administrator of EPA either by requiring the

Agency to apply criteria and standards not found in the

Clean Water Act or by mandating the Agency to under-

19

take programs not required by the statute. These pro-

visions of the decree spring solely from the settlement

“contract” and have no basis in any duty imposed upon

EPA by the Act.

The entry, subsequent modification, and continuation

of the consent decree in this case were judicial acts.

Pope v. United States, 328 U.S. 1, 12 (1944); United

States v. Swift & Co., 286 U.S. 106, 115 (1982).% A

federal court’s power to take such action is thus cir-

cumscribed by the limits of the judicial power conferred

by article III of the Constitution. System Federation

No. 91 Vv. Wright, 364 U.S. 642, 652-53 (1961).

Article III provides that the federal judicial power

shall only extend to “cases and controversies.” ** This

“case and controversy” limitation precludes a court from

embodying in a judicial decree a settlement agreement

that goes beyond the actual legal dispute between the

parties. See Pope v. United States, 323 U.S. 1, 11-12

(1944).

18 The majority opinion in the court of appeals and Judge Wilkey’s

dissent both explore in some detail the extra-statutory criteria,

standards, and programs required by {f/4(c), 8, and 12 of the

decree. (718 F.2d 1122-24 (majority), 1182-88 (dissent), App.

A 18a-17a, 38a-35a.) In a nutshell, {7 4(c) and 8 of the decree

obligate the Administrator to apply criteria and standards not

found in the Act in making regulatory decisions. Paragraphs

4(c) and 12 of the decree require the Administrator to undertake

regulatory programs that are not required by the Act.

14 As Judge Wilkey noted, the duties imposed on the Administra-

tor by these provisions of the decree differ in kind as well as in

scope from the duties imposed by the Act. (718 F.2d 1131-32, App.

A 38a.)

15 E.g., consent decrees generally are treatod as final judgments

on the merits and accorded res judicata effect. United States v.

Southern Ute Indians, 402 U.S. 159 (1971) ; United States v. Inter-

national Building Co., 345 U.S. 502 (1958).

18 See, ¢.g., Marbury V. Madison, 5 U.S. (1 Cranch) 187 (1808);

American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951).

20

In addition, a court’s power to adopt a consent decree

derives from, and is limited by, the terms of the statute

that the decree seeks to enforce. System Federation

No. 91, supra, 364 U.S. at 652-53. The court may not

enlarge upon the statute’s substantive requirements.

Strycker’s Bay Neighborhood Council, Inc. v. Karlen,

444 U.S. 228, 227-28 (1980). Nor may it prescribe

extra-statutory rules of procedure to an administrative

agency. Vermont Yankee Nuclear Power Corp. v. NRDC,

supra, 435 U.S. at 541-49. Indeed, when a court en-

forces a consent decree it enforces the underlying stat-

ute, not a promise between the parties. System Federa-

tion No. 91 supra, 364 U.S. at 653."

The decision by the majority in the court of appeals

cannot be reconciled with these fundamental limitations

on the scope of federal judicial power under article III.'*

17 The majority in the court of appeals had no basis for abjuring

any reference to statutory provisions as an “overly literal reading of

System Federation No. 91 Vv. Wright,” and instead relying generally

on “the purposes which the statute is intended to serve.” (718 F.2d

1125, App. A 19a.)

18 The decision by the court of appeals in this case also conflicts

with decisions by other courts of appeals applying these limitations

on judicial power. For example, in Washington v. Penwell, 700 F.2d

570 (9th Cir. 1988), a district court on motion had vacated those

portions of a consent decree that required state funding of a legal

services program for prisoners. In affirming, the court of appeals

opined—

The district court could not have entered an involuntary decree

requiring state officials to do more than the minimum needed to

conform with federal law. “[A]n equitable decree shou!d not go

further than necessary to eliminate the particular constitutional

violation which prompted judicial intervention in the first in-

stance.” Similarly, the district court’s authority to adopt a

consent decree comes only from the law the decree is intended

to enforce.

[Continued }

21

1. The decree contravenes constitutional separation-

of-powers principles.

Because this case involves coordinate branches of the

Federal government, the question concerning article III

powers turns on separation-of-powers principles rather

than on the Supremacy Clause. See 718 F.2d 1134-35,

App. A 39a-40a (Wilkey, J., dissenting) .”

From the earliest days of the American Republic, fed-

eral courts have acknowledged that they could not dictate

how an officer of the Executive Branch would exercise

his or her discretion. See Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 170 (1803) (“The province of the court

is, solely, to decide on the rights of individuals, not to

inquire how the executive, or executive officers, perform

duties in which they have a discretion”). This limit on

judicial power is based upon a recognition of the sep-

aration of powers of co-equal branches of government.

Keller v. Potomac Electric Power Co., 261 U.S. 428

(1923). It has been applied by this Court in many dif-

18 [Continued ]

The funding provision, purporting to bind the state, is with-

out authority and in excess of what was required to alleviate

violations of federal law.

Id. at 574-75 (citations omitted).

Moreover, the source of the limitation on judicial power in Wash-

ington V. Penwell, supra, was the supremacy clause, not separation-

of-powers principles. This Court has accorded less scope to limita-

tions based on the supremacy clause than to those based on separa-

tion-of-powers principles. See 718 F.2d 1184-85, App. A 39a-40a

(Wilkey, J., dissenting). See also infra, n.19 and accompanying text.

19 Accordingly, the principal question posed by this petition is

similar to, but not the same as, that presented in Maryland v. United

States, 51 U.S.L.W. 3682 (U.S. Feb. 28, 1983) (Rehnquist, J., joined

by Burger, C. J., and White, J., dissenting from summary affirm-

ance). For the same reason, it is distinguishable from the question

of judicial power typically posed by reapportionment cases and in-

stances of violation of the equal protection and due process clauses

of the Constitution. See supra, at 16-17. See generally Nagel,

Separation of Powers and the Scope of Federal Equitable Remedies,

80 Stan. L. Rev. 661 (1978).

22

ferent contexts. Strycker’s Bay Neighborhood Council,

Inc. Vv. Karlen, 444 U.S. 228, 227-28 (1980); Vermont

Yankee Nuclear Power Corp. v. NRDC, supra; FPC v.

Transcontinental Gas Pipe Line Corp., 423 U.S. 326,

831-34 (1976); FPC v. Idaho Power Co., 344 U.S. 17,

20 (1952); SEC v. Chenery Corp., 332 U.S. 194, 196

(1947); FCC v. Pottsville Broadcasting Co., 309 U.S.

134 (1940).

The court of appeals’ decisions upholding the decree

in this case cannot be reconciled with the principles

that underlie these decisions. The majority in the

court of appeals misapprehended these principles when

it focused its evaluation. It asserted approvingly that

the consent decree does not compel a particular course

of action because it does not dictate the Agency’s “final

decision on the merits” and does not “prescribe the con-

tent of the regulations” that EPA is to issue. (718 F.2d

1128-29, App. A 26a.) However, the decree does “dic-

tate[] to the agency the methods, procedures, and time

dimension of the needed inquiry,” * without any statu-

tory authority for doing so. Consequently, contrary to

the conclusion of the majority of the court of appeals,

the decree “propel[s] the court into the domain which

Congress has set aside exclusively for the administrative

agency.” SEC v. Chenery Corp., supra, 332 U.S. at 196.

2. By initially consenting to the decree, EPA could

not waive a constitutionally-based limitation on

federal judicial power.

The majority in the court of appeals erred in its

assessment that the limitations on judicial power ex-

plicated in Vermont Yankee and prior decisions of this

Court were not applicable because EPA had initially

consented to entry of the decree. (718 F.2d 1128, App.

20 Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 485

U.S. at 545, quoting SEC v. Chenery Corp., 882 U.S. 194, 196

(1947).

23

A 25a-26a.) By initially consenting to the decree, EPA

could not waive or elide a constitutionally-based limita-

tion on federal judicial power. See Insurance Corp. of

Ireland v. Compagnie Des Bauzxites De Guinee, 456 U.S.

694, 702 (1982) ; American Fire & Casualty Co. v. Finn,

341 U.S. 6, 17-18 (1951); Cutler v. Rae, 48 U.S. (7

How.) 729, 731 (1849).

This case does not concern the government’s ability to

settle litigation generally; nor does it raise any broadly

inclusive issue respecting whether settlement agree-

ments should be entered as judicial decrees. A court

can enter as a decree and enforce any settlement agree-

ment the terms of which it could have included in a

direct judicial order at the end of the litigation given

the statutory violations alleged. It cannot issue a decree

which incorporates settlement terms that overreach the

provisions of the governing statute.”

21In United States v. ITT Continental Baking Co., 420 U.S. 223,

237-38 n.10 (1975), this Court commented that “consent decrees

... have attributes both of contracts and of judicial decrees,” and

that “consent decrees are treated as contracts for some purposes

but not for others.” The “contractual” aspects of the decree in

this case, however, could not properly have included waiver of a

constitutionally-based limitation on judicial power.

22 After trial of the merits, the district court neither would nor

could have entered a decree of the type it embraced as a result of

the settlement.

The settlement embodied in the decree in this case differs strik-

ingly from the typical settlement reached by EPA or any other

federal regulatory agency. Such settlements, whether of enforce-

ment or of rulemaking actions, t «ditionally have not bound the

agency to divest itself of discret' »n beyond the specific matters in

dispute. Even then, the agency a! ways is careful to retain its statu-

tory powers. One commentator described the typical settlement in

litigation over rulemaking as follows:

It is a relatively common occurrence .. . for parties that have

challenged a regulation to negotiate an acceptable agreement.

In return for withdrawing the petition challenging the rule, the

agency frequently agrees to publish a change in the regulation

24

In addition, the court of appeals chose to ignore the

fundamental distinction between an agency taking an ac-

tion because it has determined in the exercise of its ad-

ministrative discretion that it should do so and an agency

being ordered by a court to take that same action. In the

former case, the agency is always free to change its mind.

See Wilbur v. United States ex rel. Kadrie, 281 U.S. 206,

216-17 (1930). But where, as here, a court incorporates

in a judicial decree provisions of a settlement agreement

that are not required by statute, the present Administra-

tor, and future Administrators, cannot further exercise

their discretion by deciding subsequently to change their

course of action. But for the order of the district court,

EPA now would have courses of action open to it other

than those mandated by the decree.*

as a proposed rule. Because the main parties in interest ne-

gotiated the change, few comments are received, and the agency

then modifies the rules in accordance with the negotiated agree-

ment. Of course, if an agency receives comments necessitating

a change from the negotiated agreement, it must change the

rule accordingly.

Harter, Negotiating Regulations: A Cure for Malaise, 71 Geo.

L. J. 1, 87-88 (1982) (footnotes omitted).

Typically, the private and governmental parties to such a settle-

ment agree that if the Agency's fini! action does not square with

the agreed regulatory proposal, then the settlement itself is not

effective. The parties return to their original positions as adver-

saries, and can continue to litigate the dispute.

23 EPA’s unsuccessful motion in 1981 to win release from the

extra-statutory requirements of the decree was made on the grounds

that:

Extra obligations not required by statute necessarily infringe

on EPA’s ability to allocate its limited resources in the way it

finds best.

It is also important for EPA to have the flexibility to reevalu-

ate past administrative actions which are not required by stat-

ute but may require substantial resources to implement.

[Continued }

25

Moreover, as Judge Wilkey pointed out in dissent, the

relinquishment by one Administrator of his or her discre-

tion cannot legally bind his or her successors. (718 F.2d

1134, App. A 38a-39a.)**

B. The Question Of Judicial Power Erroneously De-

cided By The Court Of Appeals Has An Important

Bearing On The Continued Interaction Of The

Executive, Legislative, and Judicial Branches

If the majority in the court of appeals is correct in its

conclusion that consent decrees of the type entered in this

case are within a federal district court’s article III power,

then an agency administrator could enter into such a de-

cree with a private litigant and thereby preclude succes-

sive agency officers from exercising their congressionally

bestowed discretion by implementing different policies.”

The settling administrator would effectively enshrine his

or her views as to the exercise of discretionary authority.

In this particular instance, the resulting constraint on

agency discretion contravenes Congress’ explicit intent

that such discretion be available to cope with future is-

23 [Continued ]

Defendants’ Memorandum ...In Support of Defendants’ Cross-

Motion Toc Modify The Decree, served August 3, 1981, at 30-31.

The district court’s denial of EPA's 1981 motion is encompassed by

the petition in this case. See supra, at 18-14.

* As this Court recently observed in a related context (the in-

stitutional concerns of the Solicitor General), “the panoply of im-

portant public issues raised in governmental litigation may quite

properly lead successive Administrations of the Executive Branch

to take differing positions with respect to the resolution of a partic-

ular issue.” United States v. Mendoza, 52 U.S.L.W. 4019, 4021 (U.S.

Jan. 10, 1984).

25 Judge Wilkey observed that such an agreement could as easily

fix in place a specified low level of regulation as go beyond an agen-

cy’s statutory obligations with regard to regulation, because almost

any provisions could pass the vague tests of “public interest” and

“consistency” with the general purposes of the underlying statute.

(718 F.2d 1185-36, App. A 41la-42a.)

26

sues which could not be anticipated by Congress at the

time the enabling legislation was enacted. See supra, at

8-9, quoting Congressman Roberts, floor manager in the

House during passage of the 1977 Amendments to the

Act.

The question at issue here is by no means academic,

or unique to this one case.** Rather, it has an important

bearing on the continued interaction of the Executive,

Legislative, and Judicial Branches.”

26 The court of appeals for the D.C. Circuit has, for example, re-

cently faced the issue of the extent to which a judicial order based

upon a stipulation or contract by an agency official could prevent his

successor from changing course. National Audubon Society, Inc. v.

Watt, 678 F.2d 299, 301, 305 n.12 (D.C. Cir. 1982). Contractual ob-

ligations, however, raise less severe problems than those embodied

in a court decree because the power of the court is not implicated

so directly. Indeed, if no dispute arises over implementation of a

contractual! obligation, the courts need not be involved regarding

the contract.

27 As Judge Wilkey warned in his dissent, a discretion-constraining

decree diminishes both Executive and Congressionz] power, as well

as public participation in administrative processes. (718 F.2d 1136-

87, App. A 42a-44a.)

Such a decree would prevent any new policy initiative of the Exe-

cutive Branch from taking effect without prior judicial approval.

Conversely, and perhaps of equal importance, such a consent decree

could provide the executive with a vehicle for avoiding responsi-

bility for its administrative programs, thereby lessening agency ac-

countability in the democratic process of government.

Besides negating discretion granted to an officer by Congress in a

statute, such a decree also inhibits congressional! influence on policy

formulation and implementation by an agency. (718 F.2d 1136, App.

A 48a (Wilkey, J., dissenting).) The informal give and take with

Congress that characterizes the modern administrative process

would be stifled because an agency could not respond to congres-

sional concerns without prior approval of the court.

27

II. THE COURT OF APPEALS ERRED IN RULING

THAT THE DECREE WAS NOT SUPERSEDED BY

THE 1977 AMENDMENTS TO THE CLEAN WATER

ACT AND THAT THE DECREE WAS ENFORCE-

ABLE NOTWITHSTANDING MOOTNESS OF VIR-

TUALLY ALL OF THE UNDERLYING CAUSES OF

ACTION

Two other questions decided by the court of appeals

also merit review by this Court. In its preliminary deci-

sion of September 1980, the court of appeals concluded

that the decree in this case was not superseded by the

1977 Amendments to the Clean Water Act, notwithstand-

ing the explicit statements to the contrary by Congress-

man Roberts, the floor manager of the Conference Report

in the House (see supra, at 8-9), as well as other indicia

of legislative intent. Environmental Defense Fund, Inc.

v. Costle, 636 F.2d 1229, 1233-44 (D.C. Cir. 1980), App. A

56a-71la. In addition, the court of appeals decided that

the decree was fully enforceable and that the causes of ac-

tion underlying the decree were not moot because a rem-

nant of controversy remained regarding criteria adopted

in 1)73 to list pollutants as toxic and also because allega-

tion: in the complaints regarding pretreatment standards

had been subsumed in the “comprehensive interrelated

package” of provisions in the decree. (686 F.2d 1248,

App. A 78a.) These rulings are erroneous and deserve re-

view by this Court because of the considerable continuing

effect of the decree on the Agency’s regulatory actions

under the Clean Water Act.

CONCLUSION

The petition for a writ of certiorari should be granted.

February 14, 1984

Respectfully submitted,

CHARLES F. LETTOW

(Attorney of Record)

DouGcLas E. KLIEVER

MICHAEL A. WIEGARD

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

Washington, D.C. 200386

(202) 728-2748

Counsel for Petitioners

Union Carbide Corporation,

FMC Corporation, Monsanto

Company and Exzon Corporation

DouGLas E. MCALLISTER

1920 N Street, N.W.

Washington, D.C. 20086

Counsel for Petitioner

American Mining Congress

RICHARD E. SCHWARTZ

Davip P. HACKETT

COLLIER, SHANNON, RILL & Scotr

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

Counsel for Petitioner

American Iron and Steel Institute

STARK RITCHIE

JAMES K. JACKSON

1220 L Street, N.W.

Washington, D.C. 20005

Counsel for Petitioner

American Petroleum Institute