Opposition Brief — Alabama ex rel. Siegelman v. United States Environmental Protection Agency

No. 89-378 “~ : OCT @& ih

IN THE CLERK

SUPREME COURT OF THE UNITED STATES... ... | in

October Term, 1989

STATE OF ALABAMA, ex. rel. DON SIEGELMAN,

ATTORNEY GENERAL, AND DON SIEGELMAN,

INDIVIDUALLY AS A CITIZEN OF THE STATE OF

ALABAMA,

Petitioners,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, AND LEE M. THOMAS, ADMINISTRATOR

OF THE ENIVRONMENTAL PROTECTION AGENCY,

AND CHEMICAL WASTE MANAGEMENT, INC., AND

~ THE STATE OF TEXAS,

Respondents.

On Petition for a Writ Of Certiorari to the United States

Court Of Appeais For The Eleventh Circuit

RESPONDENT STATE OF TEXAS’ BRIEF IN

OPPOSITION

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant Attorney General

NANCY N. LYNCH *

Assistant Attorney General

Chief, Environmental Protection

Division

JOHN R. CARTER

Assistant Attorney General

Environmental Protection Division

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2012

Attorneys for Respondents

October 1989 * Counsel of Record

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‘BEST AVAILABLE COPY “1 ail

TABLE OF CONTENTS

Page

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Respondent’s Brief in Opposition............... 1

8 ee ee 1

ee ee ee ee ee 3

Reasons Writ Should Be Denied................ 3

I. The Court of Appeals was correct in denying

Petitioner Siegelman standing to raise clairas

under the Due Process Clause of the United

eee eee on

Pe ee er 3

B. The constitutional violations Petitioner

alleged are not the cause in fact of any

environmental injury.........:...... 4

II. The Court of Appeals correctly ruled that the

United States District Court lacked

jurisdiction over Petitioners’ statutory claims... . 6

EE 0a Cie EN pa tae ree ee era Wht ara 7

ii

TABLE OF AUTHORITIES

) Page

Cases _

Abbott Laboratories v. Gardner, 387 US. 136, 87

ee, Bee SE soe vee eee rate Pg iad aE 7

Alabama v. United States Environmental

Protection Agency, 871 F.2d 1548 (llth Cir.

Bsc & a.> aoa hae ees 2,4, 5,6

CROs kk nee eh ckeg Lee 4,5

Estep v. United States, 327 U.S. 114, 66 S.Ct.

SEO 6 60k os Ca ea ee ee 7

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., 454 U.S. 464, 102 S.Ct. 752 (1982)......... 4

Constitutions

7. Gi RE, GY ons bv eet eee ee 3

Statutes

Administrative Procedure Act, 5 U.S.C. §702....... 7

Comprehensive Environmental Response,

Compensation and Liability Act of 1980, 42

re ein ss xe 2.

Section 113 (h), 42 U.S.C. §9613(h).........: 6

Section 113(h)(1), 42 U.S.C. §9613(h)(1)..... 6

Section 113(h)(4), 42 U.S.C. §9613(h)(4)..... 6

aa

iil

Superfund Amendments and Reauthorization Act

of 1986, Public Law No. 99- 499, 100 Stat. 1613

re ctr ee kk wae Kole ees

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No. 89-378

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

STATE OF ALABAMA, ex. rel. DON SIEGELMAN,

ATTORNEY GENERAL, AND DON SIEGELMAN,

INDIVIDUALLY AS A CITIZEN OF THE STATE

OF ALABAMA, —

Petitioners,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, AND LEE M. THOMAS,

ADMINISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY, AND CHEMICAL

WASTE MANAGEMENT, INC., AND THE STATE

OF TEXAS,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

RESPONDENT STATE OF TEXAS’ BRIEF IN

OPPOSITION

STATEMENT OF THE CASE

The case below was an action brought by the

State of Alabama and three individuals (each of whom

happened to be a state official) seeking to enjoin federal

funding of a remedial action being undert: ken at the

Geneva Industries site in South Houston, Texas

pursuant to the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, 42

U.S.C. §§9601, et seq. (CERCLA), as amended by the

Superfund Amendments and Reauthorization Act of

1986, Pub. L. No. 99-499, 100 Stat. 1613 et seq. (1986)

(SARA). The Geneva Industries site is an abandoned

petrochemical plant which has been listed on the

National Priorities List (NPL) as a candidate eligible

for remedial action under CERCLA; it is what is

commonly known as a Superfund site.

Because the remedial action chosen for the

Geneva Industries site involved the disposal of PCB

(polychlorinated biphenyl) contaminated soils at a

commercial landfill owned by Chemical Waste

Management, Inc. near Emelle, Alabama, plaintiffs

below brought suit in the United States District Court

for th Middle District of Alabama, alleging that EPA’s

failure to give notice to Alabama that the soils might be

sent there violated their right to due process and the

EPA’s duties under CERCLA and SARA. Plaintiffs

sought and obtained a temporary injunction halting the

remedial action and later obtained summary judgment

- ordering the EPA to reopen the Geneva Industries

Record of Decision (ROD) to consider Alabama’s

objections to the remedial action chosen.

The EPA and Chemical Waste Management and

the State of Texas, both of whom had intervened, all

appealed. The United States Court of Appeals for the

Eleventh Circuit reversed the District Court’s

summary judgment, dissolved the temporary

injunction, and ordered the case dismissed. State of

Alabama v. United States Environmental Protection

Agency, 871 F.2d 1548 (llth Cir. 1989). From that

decision the State of Alabama and one individual, Don

Siegelman, the Attorney General, have applied for a

writ of certiorari.

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SUMMARY OF ARGUMENT

No writ should be granted because the Court of

Appeals was correct in ruling that plaintiffs below

lacked standing to raise the constitutional claims they

presented and in ruling that the District Court lacked

jurisdiction over the statutory claims. Petitioners’

lawsuit is nothing more than a taxpayer suit foreclosed

by a long line of legal precedent.

REASONS THE WRIT SHOULD BE DENIED

I. THE COURT OF APPEALS WAS CORRECT IN

DENYING PETITIONER SIEGELMAN

STANDING TO RAISE CLAIMS UNDER THE

DUE PROCESS CLAUSE OF THE FIFTH

AMENDMENT.

A. This is a taxpayer suit.

Petitioner Don Siegelman, the Attorney General

of Alabama, seeks a writ of certiorari in order to pursue

his claim of a deprivation of his rights as an individual

under the Due Process Clause of the United States

Constitution, U.S. Const., amend. V. The rights he

claims as an individual are no different than the rights

of any other Alabama citizen, and, more importantly,

the injuries he claims he will suffer are injuries which,

as pled by Petitioner, are common to the entire

citizenry of Alabama.

It bears repeating that, as Petitioner forthrightly

admits, this lawsuit does not challenge the remedial

action chosen for the Geneva Industries site (Petition,

p. 29). What Petitioner has always challenged is federal

funding of that remedy. By so doing, Petitioner has

confined his suit to a taxpayer suit and doomed it to

the fate of such suits.

Petitioner’s claimed injuries are deprivation of

"the use and enjoyment of their state resources’

(Petition, p. 18). Petitioner’s continued use of the plural

possessive, despite the other plaintiffs’ abandonment of

further appeal, only serves to underscore the collective

nature of his claimed injury. Petitioner has failed to

identify how he personally will suffer the direct

tangible injury necessary to confer standing. Allen v.

Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324 (1984).

Instead, he presents only a generalized grievance

common to all Alabamians, and that type injury will

not support standing. Valley Forge Christian College v.

Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 483, 102 S.Ct. 752, 764 (1982).

_B. The constitutional violations Petitioner alleges are

not the cause in fact of any environmental injury.

Because the Court of Appeals liberally construed

Petitioner's lawsuit to allege environmental injury

upon which sufficient injury in fact to support federal

court jurisdiction could be based,! Petitioner has recast

the nature of his lawsuit to fit that mold. In doing so,

he has also misunderstood the Court of Appeals finding

of no "causal connection between the injury to

Alabama’s environment and the lack of notice and

opportunity to participate in the selection of the

remedial action," 871 F.2d at 1556.

Petitioner’s complaint that the Court of Appeals

based its decision on a "presumption that the plaintiffs

would be unable to prevail even if granted their

procedural rights" (Petition, p. 23) indicates a basic

misunderstanding of why "Plaintiffs injury also is not

1The State of Texas would dispute any characterization of

the pleadings below as alleging environmental injury and would

maintain that plaintiffs always deliberately disclaimed any such

injury.

likely to be redressed by a reopening of the Record of

Decision," id. Contrary to Petitioner’s assertion, and as

a reading of the entire passage from which it is taken

will make clear, the Court of Appeals did not presume

that the Administrator would ignore Alabama’s

protestations if the Record of Decision were reopened.

The Court of Appeals simply stated that so long as

plaintiffs did not directly challenge the shipment of

wastes from Texas to Alabama, the injury they claim is

not going to be rectified.

That plaintiffs failed to show the required causal

connection between the violations alleged and the

injury claimed and that-the threatened injury resulting

from the action challenged is not likely te be redressed

in a judicial action, Allen v. Wright, 454 U.S. °+ 751,

104 S.Ct. at 3324, is easily illustrated by Petitioner’s

continued insistence that neither Texas nor Chemical

Waste Management has been enjoined from carrying

out the Geneva Industries remedial action. If this were

so,2 then Petitioner would suffer the alleged injuries

whether or not the Record of Decision were reopened

and regardless of the Administrator’s decision.

Similarly, so long as the Emelle facility remains in

operation, any environmental injuries complained of

will continue whether or not the Geneva remedial

actions were ever undertaken.

By purposely avoiding any direct challenge to

the active shipment and disposal of toxic wastes to

Emelle, Petitioner failed to show the causal connection

between the alleged violation and the alleged injury

2Prior to the mandate, all Respondents acted as if it were

not and that they were enjoined.

3It was undisputed below that the type of materials from

Geneva Industries to be disposed of at Emelle were no different

from the macerials received there for disposal every day.

necessary to confer standing. Because plaintiffs chose

to base their lawsuit on federal funding of the remedy

but not to challenge the remedy directly, their own

actions confined them to a taxpayer’s suit.

Il. THE COURT OF APPEALS CORRECTLY

RULED THAT THE UNITED STATES

DISTRICT COURT LACKED JURISDICTION

OVER PETITIONERS’ STATUTORY CLAIMS.

The Court of Appeals correctly ruled that the

"Timing of review" provision of Section 113(h) of

CERCLA, 42 U.S.C. §9613(h), restricts federal court

jurisdiction to review challenges to remedial actions

until after that action has been taken. This is clear, as

the Court of Appeals held, both from the language of

the statute itself and from its legislative history, 871

F.2d at 1557.

Contrary to Petitioners’ assertions, Section

113(h) is meant to preclude judicial review from more

than just potentially responsible parties (PRP’s) before

the remedial action is taken. It is also intended to

prevent citizen challenges such as this one. That is

obvious from both the specific reference in Section

113(h\4) to citizen suits for review of remedial actions,

42 U.S.C. §9613(h)(4), and from the _ separate

codification of the pre-SARA case law proscribing pre-

enforcement review in Section 113(h)(1), 42 U.S.C.

§9613(h)(1). See also 871 F.2d at 1558 (citing cases).

Petitioners’ argument that such ccnstruction

effectively precludes them from ever obtaining judicial

review only further demonstrates that the Geneva

Industries remedial action will not cause

environmental or any other harm to Petitioners. If the

remedial action were to cause any such harm to

Petitioners, it could be addressed in a suit for judicial

review after the action has been taken. Petitioners’

insistence that the present suit is their only vehicle

through which their injuries can be addressed

(Petition, p. 33) demonstrates that it is not

environmental injuries of which they complain and

that it is not the remedial action which will cause them

injury.

In the hue and cry of Petitioners’ insistence that

they will irreparably suffer the loss of their right to

judicial review if they cannot obtain it now, it must be

remembered that judicial review of administrative

action is not an inherent right, and except where the

Constitution requires it, may be granted or withheld as

Congress chooses. Estep v. United States, 327 U.S. 114,

120, 66 S.Ct. 423, 426 (1946). While the Administrative

Procedure Act, 5 U.S.C. §702, generally grants such a

right, see Abbott Laboratories v. Gardner, 387 US.

136, 140, 87 S.Ct. 1507, 1510 (1967) (citing cases), it

can be restricted by Congress. Congress has clearly

done so here, and if Petitioners must suffer a wrong

without a remedy it is because Congress specifically

chose not to avail them one.

CONCLUSION

The Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

First Assistant Attorney

General

LOU McCREARY

Executive Assistant Attorney

General

NANCY N. LYNCH*

Assistant Attorney General

Chief, Environmental

Protection Division

‘JOHN R. CARTER

Assistant Attorney General

Environmental Protection

Division

P. 0. Box 12548

Austin, Texas 78711-2548

512/463-2012

* Counsel of record

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