Petitioners Reply Brief — Union Carbide Corp. v. Natural Resources Defense Council, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

UNIv N 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.

On Petition For A Writ of Certiorari To The United States

Court of Appeals For The District Of Columbia Circuit

REPLY BRIEF FOR PETITIONERS

CHARLES F. LETTOW

(Attorney of Record)

DouG.Las E. KLIEVER

MICHAEL A. WIEGARD

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

Washington, D.C. 20086

(202) 728-2748

Counsel for Petitioners

Union Carbide Corporation,

FMC Corporation, Monsanto

May 11, 1984 Company and Exzon Corporation

[Additional Counsel listed on inside cover]

Witson - Eras Pruwrine Co.. Inc. - 7869-0096 . WasHiINeTON. D.C. 20001

DouGLas E. MCALLISTER

1920 N Street, N.W.

Washington, D.C. 20036

Counsel for Petitioner

American Mining Congress

RICHARD E. SCHWARTZ

DAVID 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 Sys-

tem Federation No. 91 and Vermont Yankee, the consent

decree entered, modified, and continued in this case con-

travenes constitutional separation-of-powers principles by

requiring an official of the Executive Branch, the Admin-

istrator of EPA, to undertake regulatory programs and

to apply regulatory criteria not mandated by the Clean

Water Act.

2. Whether Congress intended that the Clean Water

Act of 1977 supersede the consent decree.

8. Whether the district court has jurisdiction to pre-

serve and enforce the consent decree if the underlying

causes of action are moot.

(i)

TABLE OF CONTENTS

SGPT IN detsiiinnncsentinidntdbtinenanitenienuiesensnnniate

A. The Constrained-Discretion Question Is An Im-

portant And Recurring Issue Of Law Which

Arises In An Area Where This Court’s Role His-

torically Has Been Especially Important ..............

B. No Procedural Impediment Exists Which Would

Hinder This Court’s Consideration Of The Ques-

ETERS Le ES Ste tn coe ian ee

SETI siietadistiatadescntaihtaiahclscasinsiiiientassininidetetiliagiiampinadeasn

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Alliance To End Repression v. Chicago, Nos. 83-

iy i Te I eapecrcncdeceene dicta ccetnsianseantbiediabent 4,5

ICC v. New York, New Haven & Hartford R.R.,

gk EB ISAS TERA St 3

Marbury v. Madison, 5 U.S. (1 Cranch) 187

(RP ERRCAPEIR Tere SE SRE eee aR 7m.» Aan Or Mea 8,4

NRDC v. Costle, 561 F.2d 904 (D.C. Cir. 1977).... 6

SEC v. Chenery Corp., 382 U.S. 194 (1947) .......... 8

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

CES ato: aed Seas earners 5

Vermont Yankee Nuclear Power Corp. v. NRDC,

485 U.S. 519 (1978) ...... PAE he, Ce AY CE 5

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

EMEP STRATTON 5

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

SE Oe ae eta 3

Statutes and Rules:

Administrative Procedure Act, 5 U.S.C. § 551 et

EEE Es Se ER eT irc te ER a ED Me 8

Clean Air Act, as amended, 42 U.S.C. §§ 7401-7626:

Section 807 (b) (1), 42 U.S.C. § 7607 (b) (1)... 5

Clean Water Act, as amended, 83 U.S.C. 88 1251-

1857:

Section 505 (a) (2), 38 U.S.C. § 1865 (a) (2).... 3

Be Es GREE ccc nicsntssntalhgidiadiedsiiamnbnandiaieabiamends 8

Be Ses SEU, | citincerecsetencncsens 8

es a il 6

Miscellaneous :

Environmental Protection Agency, Paragraph 4 (c)

Summary Report (January 1984)... 7,8

49 Fed. Reg. 10,357 (March 20, 1984)... 7,8

49 Fed. Reg. 16,379 (April 19, 1984) _................ 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1345

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.

On Petition For A Writ of Certiorari To The United States

Court of Appeals For The District Of Columbia Circuit

REPLY BRIEF FOR PETITIONERS

INTRODUCTION

The main questi i. presented in this case is important

and worthy of thi; Court’s attention, as the federal re-

spondent (“EPA”) acknowledges. EPA’s Response, at

2

case poses that question in a procedurally proper setting

where a sharply divided court of appeals explored the

merits of the issue after lengthy and detailed considera-

tion. EPA nonetheless suggests that the Court should

deny certiorari, and Natural Resources Defense Coun-

cil, et al. (“NRDC”) have strongly opposed granting the

writ. The reasons given by them, however, actually illus-

trate the desirability of review by this Court.

A. The Constrained-Discretion Question Is An Important

And Recurring Issue Of Law Which Arises In An Area

Where This Court’s Role Historically Has Been Espe-

cially Important

1. NRDC’s response perhaps makes the best argument

for review by this Court. NRDC acknowledges that the

consent decree in this case imposes significant constraints

on EPA’s discretion and argues that imposition of such

constraints was fully within the district court’s power.’

NRDC, however, nowhere explains the jurisdictional basis

for the district court’s entry of a decree curtailing EPA’s

1 NRDC summarizes its views as follows:

In essence, NRDC claimed that EPA applied the wrong statu-

tory criteria and did not exercise its discretion properly.

EPA claimed the opposite. A classic settlement followed where

the parties agreed on the appropriate criteria and an appro-

priate way to guide EPA’s exercise of discretion within the

authority provided by the Act.

If a court had no power to enter such a settlement, it would

surely chill the judicial policy favoring settlement in any case

where the alleged violations include an abuse of discretion.

NRDC’s Response, at 12 (footnote omitted).

EPA circumspectly avoids any characterization of the nature of the

constraints on its discretion due to the decree. Instead, it argues

that a discretion-constraining decree is “appropriate” where the

required course of action “is substantively in accord with the agen-

cy’s intentions and of relatively brief duration.” EPA’s Response,

at 11. EPA thus argues substantively that de minimis or small

constraints are permissible, and by doing so perhaps might seem to

imply that the constraints in the decree in this case fall into that

category. They do not, for the reasons noted by both the majority

and the dissent in the court of appeals. See 718 F.2d 1122-24 (ma-

jority) and 1182-83 (dissent), l’et. App. 18a-17a, 38a-S6a.

3

discretion, or the rationale for avoiding constitutional

separation-of-powers limits on the exercise of the juris-

diction possessed by the district court.2 Moreover, al-

though NRDC does not ask this Court to limit a funda-

mental separation-of-powers tenet first explicated by this

Court in Marbury v. Madison, 5 U.S. (1 Cranch) 187

(1803), that is the effect of its argument. In Marbury,

Chief Justice Marshall’s opinion for this Court said:

2 Such jurisdiction is not supplied by 28 U.S.C. § 1861 (added by

the Mandamus and Venue Act of 1962). Each of the four com-

plaints cited that statute as a basis for the district court’s jurisdic-

tion (Ct. Appls. Appendix in Nos. 76-1664, etc., at 15-16, and Ct.

Appls. Appendix in Nos. 79-1473, etc., at 67-68, 79, and 96), but

mandamus lies only to correct a non-discretionary governmental

duty or action. Wilbur v. United States ex rel. Kadrie, 281 U.S. 206,

218 (1980). The citizens-suit provision in 38 U.S.C. § 1865(a) (2),

also cited by NRDC in the complaints, similarly pertains only to an

alleged “failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the Administra-

tor.”

The federal-question jurisdictional statute, 28 U.S.C. § 18381,

when taken together with the Administrative Procedure Act, au-

thorizes review of agency action among other things to determine

whether there has been an abuse of discretion. However, when such

an abuse is found, the remedy is to remand for the agency to correct

its error, not to interpose a specific judicially-dictated action. SEC

v. Chenery Corp., 882 U.S. 194, 196 (1947).

Even a less-sweeping argument by NRDC—that the contested

EPA actions were arguably or colorably compelled by the statute—

would not have sufficed to support the district court’s decree. As

this Court said in ICC v. New York, New Haven & Hartford R.R.,

287 U.S. 178, 204 (1982) (Cardozo, J.):

Where a duty is not plainly prescribed, but is to be gathered

by doubtful inference from statutes of uncertain meaning, “it

is regarded as involving the character of judgment or discre-

tion,” (Wilbur v. United States ex rel. Kadrie, supra), and

mandamus is thereby excluded.

Compare NRDC’s Response, at 11-13.

In short, NRDC’s theory of this case is fundamentally at odds

with longstanding constitutional and statutory principles of federal

jurisdictional and administrative law.

4

Where the head of a department acts in a case, in

which executive discretion is to be exercised; in which

he is the mere organ of executive will; it is again

repeated, that any application to a court to control,

in any respect, his conduct, would be rejected with-

out hesitation.

(5 U.S. at 170-171.)

Ever since Marbury v. Madison, this Court has under-

taken a special role in arbitrating constitutional separa-

tion-of-powers issues. This case stems from the same root

as the Court’s prior decisions on the subject and deserves

this Court’s attention.’*

2. The separation-of-powers issue is, as EPA’s re-

sponse says, “of undoubted importance.” EPA’s Response

at 11. The issue has arisen in a number of other cases,

and is of obvious relevance to the ongoing practical func-

tioning of federal administrative law, particularly in

light of the burgeoning number of lawsuits being

brought under various statutory citizens-suit provisions to

force agency action alleged to be unlawfully withheld.

Considerable pressure exists in such cases to turn the

focus of settlement discussions away from statutorily-

mandated actions, and instead te emphasize actions that

fall within the agency’s discretion, as this case illus-

trates.‘

%In a mistake so evident as to be startling, NRDC’s response

refers to the supremacy clause rather than separation-of-powers

principles as the basis for the constitutional claim in this case.

NRDC’s Response, at 10.

*This tendency is understandable, given the broader power

typically available to an agency under its discretionary authority.

The relative importance of the issue is also shown by the number

of votes of active judges in the D.C. Circuit to hear this case en

banc. (Pet. App. 206a.) Also, in one of the other pending cases cited

in EPA’s response as raising a similar question, Alliance To End

5

8. The precedent established by the D.C. Circuit’s deci-

sion will have a considerably greater impact on federal

administrative law than a decision by another court of

appeals. Depending upon the statutory scheme for judi-

cial review, either the U.S. District Court for the District

of Columbia or the U.S. Court of Appeals for the District

of Columbia Circuit often is a nationally available forum

for a plaintiff or a petitioner who desires to contest

agency action. Indeed, under some statutes, the D.C.

federal courts provide the only permissible venue.* More-

over, because of the D.C. Circuit’s diverse administrative-

review caseload, the precedent established by the panel

majority of that court in this case will affect many dif-

ferent agencies and circumstances. It is quite relevant

that a decision which will be so broadly applied is

wrong.®

B. No Procedural Impediment Exists Which Would Hinder

This Court’s Consideration Of The Questions Presented

1. Each of the questions presented is properly before

the Court. Each was put at issue before the district

Repression v. Chicago, Nos. 83-1853, etc. (7th Cir.), the U.S. Court

of Appeals for the Seventh Circuit has granted rehearing en banc

and will rehear argument on June 18, 1984. The main question pre-

sented in that case, however, involves the interpretation of a consent

decree rather than its validity.

Finally, as noted in the petition at 20-21 n.18, the decision of the

court of appeals in this case conflicts with the decision of the Ninth

Circuit in Washington v. Penwell, 700 F.2d 570 (9th Cir. 1983)

(supremacy clause grounds for constitutional limitation on district

court’s power).

5 F.g.,. Section 807(b)(1) of the Clean Air Act, 42 U.S.C.

§ 7607 (b) (1).

® The dissent by Judge Wilkey more faithfully reflects this Court’s

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

(1961), Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519 (1978), and related cases. Notably, although NRDC sup-

ports the panel majority’s rationale, EPA’s response adopts a posi-

tion tending more toward Judge Wilkey’s dissent than to the ma-

jority. See EPA's Response, at 11-12 & n.16, in part quoted supra,

atu.

WH

>

6

court and thereafter in the court of appeals, and decided

on the merits by both of those courts.’

2. Similarly, there is no danger that the case will be-

come moot during this Court’s consideration. Both NRDC

and EPA claim that discretion-constraining aspects of the

decree have either been or are about to be completed,

but they do not address all of EPA’s continuing work

under the pertinent parts of the decree. EPA’s work to

implement paragraph 12 of the decree, one of the discre-

tion-constraining provisions, has in fact been completed,

now that NRDC has withdrawn its earlier objections.®

7 EPA does raise two red herrings. EPA’s response halfheartedly

suggests that petitioners may not have standing to raise these ques-

tions and that the dispute may not be ripe for review because

petitioners can challenge any final rules EPA may issue. EPA's

Response, at 12-18 n.17. These two claims were never presented

either to the district court or to the court of appeals, and they have

no basis. An argument by EPA somewhat akin to that now put

under the ripeness label was raised in the appellate litigation over

the entitlement of some of the petitioners to intervene as of right

under Fed. R. Civ. P. 24(a)(2). The court of appeals in 1977

rejected that claim, among others, and ruled that petitioners were

entitled to intervene as of right. NRDC v. Costle, 561 F.2d 904

(D.C. Cir. 1977). Neither EPA nor anyone else contested the mat-

ter further.

® One of the peculiarities of the decree in this case is that EPA

often is able to assure itself that it has completed a task only when

NRDC concedes as much. For example, EPA initially published its

“Paragraph 12 Strategy” on February 3, 1982 (Ct. Appls. Appendix,

at 772) and should then have been able to treat paragraph 12 as

fulfilled. However, on March 15, 1982, NRDC wrote the Agency to

assert “that EPA stands in direct violation of the Consent Decree,”

on the ground that EPA’s published strategy was inadequate. (Ct.

Appls. Appendix, at 705.) NRDC threatened action to seek a con-

tempt citation from the district court:

In sum, EPA has failed in every material respect to comply

with Paragraph 12. We request a meeting with you to discuss

these violations and to consider any solutions you might care

to offer. If we do not hear from you within two weeks, we will

seek a contempt citation against you.

(Ct. Appis. Appendix, at 711.)

The dispute between EPA and NRDC was not resolved until

NRDC filed its response to the petition in this case. Only then, and

7

However, as both EPA and NRDC acknowledge, EPA

has work remaining under paragraphs 7 and 8 of the

decree. Paragraph 7 requires EPA to establish effluent

limitations regulations for specified industries under a

court-imposed deadline, and paragraph 8 specifies criteria

not mandated by the statute for EPA’s decisions as to

the coverage of such regulations.® In addition, despite

NRDC’s and EPA’s claims that the Agency has com-

pleted its work under paragraph .4(c), another dis-

cretion-constraining provision, the Agency in a very

recent report has estimated that another 26 to 32 months

actually will be required to complete its work under

that provision." In short, EPA still has over two years’

under the pressure of this litigation, did NRDC concede “that the

Agency now has completed all its commitments under Paragraph

12.” (NRDC’s Response, at 7.)

® EPA is having particular difficulty in issuing effluent limitation

regulations for the organic chemicals and plastics and synthetics

industries. The deadline currently in paragraph 7 for issuing final

regulations is February 1985. However, EPA has announced that

the data available are not adequate. It has sought extensive addi-

tional data, by way of over 3,000 separate questionnaires to industrial

facilities and also through a further plant-effluent sampling pro-

gram. EPA currently plans to issue a Federal Register notice in

August 1984, reopening the period for comment on the new data.

See 49 Fed. Reg. 16,879 (April 19, 1984). An affidavit by Mr.

Steven Schatzow of EPA, accompanying a motion to the district

court dated December 22, 1988, advised that February 1985 was

“the earliest date, based on best-case assumptions, by which EPA

can [could] complete the formidable tasks before it and responsibly

promulgate this regulation.” (Schatzow Affidavit, 12.) EPA

warned that if the new information being gathered turned out to be

not “generally consistent with [its] expectations,” then it would

have to revise portions of its analyses and would require significant

additional time to do so. (/d., 18.) Petitioners have been advised

that EPA currently is running more than several months behind

this “best-case” schedule.

10 Paragraph 4(c) requires EPA to identify and to regulate by.

pretreatment standards pollutants other than those on lists specified

in the decree. EPA on March 20, 1984 gave notice that it was

making available a “Paragraph 4(c) Program Summary Report”

8

work to satisfy the portions of the decree at issue in

this case, and, as noted, several of the remaining tasks

are quite significant to petitioners and other members of

the public. In seeking to dissuade the Court from grant-

ing review, NRDC, and to a lesser extent EPA as well,

have omitted to state facts that show that this case is

definitely not moot, nor likely to become so in the coming

several years.

8. EPA’s response advises that “the [current] Ad-

ministrator has indicated his willingness to abide by the

terms of the decree” (id., at 14), and EPA’s opposition to

granting certiorari seems to hinge on that circumstance.

EPA’s response suggests that the circumstance lessens

the separation-of-powers concerns and that there thus is

no need for this Court to hear the case. But, as Judge

Wilkey pointed out in his dissent in the court of appeals,

“(flor reasons that ultimately have to do with preserv-

ing the democratic nature of our Republic, American

describing its work thus far under that portion of the decree. 49

Fed. Reg. 10,8357 (March 20, 1984). In its report, EPA disclosed

that it had listed six compounds and would begin regulatory action:

Paragraph 4(c) requires EPA to undertake regulatory action

for the compounds on the list. Because Paragraph 4(c) deals

with pretreatment standards, EPA will initiate an engineering

study to support development of pretreatment standards for the

six compounds.

Summary Report, at 26.

EPA estimated that over two years would be requir complete

its work:

At this time it is estimated that it will least eleven

months to complete the plant selection, sampiiug, and analyses

phase of the program. Decisions on regulatory strategy and

completion of the engineering report are expected to take an

additional three months. Proposal and promulgation of rules

could take an additional twelve to eighteen months. We antici-

pate that the engineering study will start during the second

quarter of 1984.

Summary Report, at 28.

A copy of the Summary Report has been lodged with the Clerk for

this Court’s reference.

9

courts have never allowed an agency chief to bind his

successor in the exercise of his discretion.” (718 F.2d

1134, Pet. App. 38a-39a (footnote omitted).) Especially

given the remarkable lack of consistency in the attitudes

of the current and prior Administrators towards the de-

cree, the seemingly reluctant embrace of the decree by

the current Administrator should not affect this Court’s

consideration." If the discretion-constraining portions of

the decree are not constitutionally valid, they are invalid

for this Administrator as well as for all of his predeces-

sors and successors. Neither this Administrator nor any

other can waive a constitutionally-based limitation on fed-

eral judicial power. See Petition, at 22-25.”

11 During the nearly eight years of the decree’s existence, the

Administrators of EPA have taken a variety of inconsistent posi-

tions regarding the decree. Indeed, individual Administrators have

not themselves always been consistent in their approach. These

zig-zags are reflected in the record, and especially in the fact that

an Administrator sought essentially the same modification of the

decree to remove the discretion-constraining provisions as that

which petitioners sought; procedurally, the denial both of EPA’s

motion and of petitioners’ motion is before the Court in this case.

See EPA’s Response, at 7-8, 12-13 n.16.

12 A bar to consideration of the separation-of-powers issue might

assert without elaboration that “Congress has specifically approved

and endorsed the provisions of the Decree.” NRDC’s Response, at

18. EPA suggests that Congress may have implicitly sanctioned

some of the substantive terms of the decree. EPA’s Response, at 18.

The issue came before the court of appeals in 1980 in connection

decided the negative proposition, i.e., that Congress had no such

by the second question in the petition. The court of

the decree. This is also shown by the fact that the court

time remanded the litigation to the district court for consideration

of the constrained-discretion issue (6386 F.2d 1258-59, Pet. App.

10

CONCLUSION

The petition for certiorari should be granted.

In very recent reports, EPA has stated that approxi- ~

mately 26 to 32 months will be required to complete ac-

tion on the discretion-constraining portions of the decree.

The Agency nonetheless suggests that the case is moot or

nearly so. If this Court does not opt to consider this case

fully on the merits, it should vacate the decision of the

court of appeals and remand to that court for further

proceedings to determine whether the decree should be

terminated or modified in light of EPA’s suggestion of

mootness.

Respectfully submitted,

CHARLES F. LETTOW

(Attorney of Record)

DouGuas E. KLIEVER

MICHAEL A. WIEGARD

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

* Washington, D.C. 20086

(202) 728-2748

Counsel for Petitioners

Union Carbide Corporation,

FMC Corporation, Monsanto

Company and Exzon Corporation

Doucias E. MCALLISTER

1920 N Street, N.W.

Washington, D.C. 20036

Counsel for Petitioner

American Mining Congress

RICHARD E. SCHWARTZ

Dav P. HACKETT

CoLLier, SHANNON, RILL & Soort

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

Counsel for Petitioner

American Iron and Steel Institute

Petitioner

May 11, 1984 American Petroleum Institute