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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1219

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1415%3A5. Public record. Not legal advice.