Amicus Curiae Brief — James City County v. Environmental Protection Agency

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In the

SUPREME COURT OF THE UNITED STATES:

October Term, 1993

No. 93-2045

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY

AND U.S. ARMY CORPS OF ENGINEERS,

Respondents.

BRIEF AMICUS CURIAE OF THE STATES

OF CALIFORNIA, MARYLAND, NEBRASKA,

NEVADA, NEW HAMPSHIRE, NORTH CAROLINA,

VIRGINIA AND WYOMING IN SUPPORT OF

PETITION FOR CERTIORARI

DANIEL E. LUNGREN

Attorney General] of the State of California

RODERICK E. WALSTON

Chief Assistant Attorney General

DOUGLAS B. NOBLE

Acting Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

2101 Webster Street, 12th Floor

Oakland, California 94612-3049

Telephone: (510) 286-1263

(Additional Counsel on Inside Cover)

Attomeys for Amici Curiae

J. JOSEPH CURRAN, JR.

Attorney General of the State of Maryland

DON STENBERG

Attorney General of the State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General of the State of Nevada

JEFFREY R. HOWARD

Attorney General of the State of New Hampshire

MICHAEL S. EASLEY

Attorney General of the State of North Carolina

JAMES S. GILMORE, III

Attorney General of the State of Virginia

JOSEPH B. MEYER

Attorney General of the State of Wyoming

i

TABLE OF CONTENTS

QUESTION PRESENTED

INTEREST OF AMICI STATES

SUMMARY OF ARGUMENT

ARGUMENT

I. EPA MUST CONSIDER THE

COUNTY’S WATER SUPPLY

NEEDS AND THE ADVERSE

WATER SUPPLY EFFECTS

OF A_ SECTION

VETO

Il. BY FAILING TO CONSIDER

RELEVANT FACTORS, EPA

IMPROPERLY AVOIDED

AGENCY RESPONSIBILITY

FOR A CONTROVERSIAL

POLICY CHOICE

CONCLUSION

12

13

ii

TABLE OF AUTHORITIES

Page

Cases

Bersani v. Robichaud

850 F.2d 36 (2d Cir. 1988)

cert. denied, 489 U.S. 1089 (1989) 9

California v. United States

438 U.S. 645 (1978) 4

Chevron U.S.A., Inc. v. Natural Resources

Defense Counsel, Inc.

467 U.S. 837 (1984) 5

Citizens to Preserve Overton Park, Inc.

v. Volpe

401 U.S. 402 (1971) 12

Gregory v. Ashcroft

111 S.Ct. 2395

115 L.Ed.2d 410 (1991) 6

James City County, Virginia, v. U.S.

Environmental Protection Agency and

U.S. Army Corps of Engineers

955 F.2d 254 (4th Cir. 1992) 12

James City County, Virginia, v. U.S.

Environmental Protection Agency and

U.S. Army Corps. of Engineers

12 F.3d 1330 (4th Cir. 1993) 12

Motor Vehicle Mfrs. Assn. v. State Farm

Mutual Ins. Co.

463 U.S. 29 (1983) 12

TABLE OF AUTHORITIES CONT’D

Page

New York v. United States

112 S.Ct. 2408

120 L.Ed.2d 120 (1992) 6

Federal Statutes

33 United States Code

§ 1251(g) 7

Clean Water Act

§ 101(g) 4,5, 7

§ 404(b)(1) 9

§ 404(c) passim

Federal Regulations

40 Code of Federal Regulations

§ 230.3(q) 10

§ 230.5(c) 10

§ 230.10(a) 9

§ 230.10(a)(2) 10

44 Fed. Reg. 58076 (October 8, 1979) 8, 9, 11

Proposed Determination to Prohibit, Restrict, or

Deny the Specification, or the Use for Specification,

of an Area as a Disposal Site; South Platte River

54 Fed. Reg. 36862 (September 5, 1989) 4,9

Proposed Determination to Prohibit the Use of Big

River, Mishnock River, Their Tributaries and Adjacent

Wetlands as Disposal Sites; Kent County, RI

54 Fed. Reg. 5133 (February 1, 1989) 4

iv

TABLE OF AUTHORITIES CONT’D

Federal Regulations Cont’d

Final Wetermination of Assistant Administrator

for Water Pursuant to Section 404(c) of Clean

Water Act Concerning Proposed Big River Water

Supply Impoundment in Kent County RI, 55 Fed.

Reg. 10666 (March 22, 1990)

Congressional Documents

S. Conf. Rep. No. 1236, 92d Cong. 2d Sess.,

reprinted in 1 Legislative History of the Water

Pollution Control Act Amendments of 1972

Other Authorities

Page

State of California, Department of Water Resources

California Water Supply Outlook (July 7, 1994), p. 2

State of California, Department of Water Resources

Draft Bulletin 160-93, California Water Plan Update

Vol. I, p. 57 (June 1994)

2

1

QUESTION PRESENTED

Whether the Environmental Protection Agency,

under section 404(c) of the Clean Water Act, can veto a

public water supply project for which there was no

alternative based solely on the adverse environmental

effects of the proposed project without considering the

adverse municipal water supply effects of its veto

decision.’

1 We have modified slightly the first question presented in the

Petition for Certiorari to more closely track the argument and the

specific interest of amici which is presented in this brief. This slight

rephrasing does not materially alter the issue presented for review

by petitioner.

ial i

2

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

No. 93-2045

JAMES CITY COUNTY, VIRGINIA,

Petitioner,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY

AND U.S. ARMY CORPS OF ENGINEERS,

Respondents.

BRIEF AMICUS CURIAE OF THE STATES

OF CALIFORNIA, MARYLAND, NEBRASKA,

NEVADA, NEW HAMPSHIRE, NORTH CAROLINA,

VIRGINIA AND WYOMING IN SUPPORT OF

PETITION FOR CERTIORARI

INTEREST OF AMICI STATES

The provision of water, like police and fire

protection, is one of the most basic responsibilities of

State and local government. Throughout the country,

and particularly in parts of the arid West which have

been suffering through protracted drought, the ability to

construct water storage and transport facilities to

3

alleviate water shortages is crucial.? California still

would be part of what early mapmakers called the

"Great American Desert" were it not for the ability to

bring water from where it is found in nature to where

the people are.

Every dam, reservoir, impoundment structure, and

water storage or diversion facility of any significance in

this country requires a section 404 permit. Since such

water supply projects of necessity must be built in

waterways or water areas, they inevitably have adverse

environmental aquatic impacts affording an opportunity

for a section 404(c) veto. Accordingly, amici States have

a vital interest in how EPA’s section 404(c) authority is

construed and applied.

? For example, in California, seven of the last eight years have

been either dry or critically dry water years. See State of California,

Department of Water Resources, California Water Supply Outlook

(July 7, 1994), p. 2. The six year drought of 1987-1992 was

comparable to the Dust Bowl era drought of 1929-34. State of

California, Department of Water Resources, Draft Bulletin 160-93,

California Water Plan Update, Vol. I, p. 57 (June 1994). The 1994

water year in California is shaping up to be the fourth lowest runoff

year since record-keeping began at the turn of the Century. See

California Water Supply Outlook, supra, p.2. California’s

population is expected to increase to 49 million by 2020, and even

with extensive water conservation, urban annual net water demand

will increase by between 3.8 to 10.5 million acre feet. California

Water Plan Update, supra, at 9. “By 2020, without additional

facilities and improved water management, an annual shortage of 2.2

to 4.2 maf [million acre feet] could occur during average years

depending on the outcome of various actions taking place to protect

aquatic species." Id. at 394-395.

In many Other States, including Virginia which is the State

where petitioner James City County is located, severe water

shortages have resulted in legislation to regulate groundwater and

surface water withdrawals.

SUMMARY OF ARGUMENT

As this Court explained in California v. United

States, 438 U.S. 645, 653-670 (1978), the history of water

development is largely a history of co-operative

federalism. From the Desert Land Act of 1877,

through the Reclamation Act of 1902, down to section

101(g) of the Clean Water Act, Congress has recognized

the primary role of the States in regulating and

allocating water supply, and has sought to accommodate

this historic State interest in federal regulatory programs.

This case is a sharp departure from that tradition of

cooperative federalism.

In upholding EPA’s veto of James City County’s

water supply project, the Fourth Circuit has enshrined

the rule that section 404(c) vetoes of water development

projects can be based solely on environmental harm, and

can completely ignore the countervailing State and local

interest in municipal water supply. The Fourth Circuit’s

decision goes too far in reading in a narrow "single-

issue" environmental concern into section 404(c).

To be sure, EPA’s decision to ignore the County’s

water supply needs is surprising given that EPA has

considered water supply needs in other section 404(c)

determinations.’ Moreover, section 404(c) expressly

> See EPA, Proposed Determination to Prohibit, Restrict, or Deny

the Specification, or the Use for Specification, of an Area as a Disposal

Site; South Platte River, 54 Fed. Reg. 36862, 36867-36868 (September

5, 1989); EPA, Proposed Determination to Prohibit the Use of Big

River, Mishnock River, Their Tributaries and Adjacent Wetlands as

Disposal Sites; Kent County, RI, 54 Fed. Reg. 5133, 5136 (February

5

refers to unacceptable adverse effects on "municipal

water supplies", indicating that such adverse impacts

were entitled to no less dignity than adverse effects on

“wildlife". Section 101(g) also sets forth a policy of

accommodating state water interests in implementing the

Clean Water Act which hardly squares with the notion

that water supply needs are irrelevant in making section

404(c) decisions.

But the core of amici’s argument really has to do

with agency accountability. In a case like this where

there are no alternative sources of water supply, EPA

faces a tough policy choice between wildlife protection

and public water supply. In such circumstances, EPA

must confront, not avoid that difficult policy choice, and

must give a reasoned explanation why it chose one

interest over the other. A necessary concomitant of

deference to agency decision-making -- which is even

more appropriate after Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984) -- is

the requirement that agencies explicitly make and

articulate the reasons for difficult policy choices

committed to their discretion under federal regulatory

programs. Particularly here, where the slighted interest

-- water supply -- is vital to State sovereignty and

partakes of a venerable history of cooperative federalism,

EPA should have explained why environmental harms

outweighed the countervailing interest in municipal water

supply which, in section 404(c), is just as preferred a

resource or interest as wildlife.

1, 1989).

6

If the "clear statement rule" requires Congress tc

make explicit legislative choices on matters dear to State

sovereignty, then requiring EPA’s Assistant Administrator

for Water to consider water supply needs and impacts in

section 404(c) decisions is surely appropriate. EPA’s

laudable role in protecting wetlands and wildlife will not

suffer by having it explain why these values outweigh the

public’s need for water.

The ultimate reason why EPA should confront the

tough policy choice im this case, like the reason for the

clear statement rule in general, is political accountability

-- ensuring that federal decision-makers face

controversial policy choices and the resulting electoral

consequences, rather than avoid responsibility by crafting

ambiguity in a statute, Gregory v. Ashcroft, 111 S.Ct.

2395, 115 L.Ed.2d. 410 (1991), or commandeering state

officials to act in their stead, New York v. United States,

112 S.Ct. 2408, 120 L.Ed.2d 120, 145-146 (1992), or, as

here, narrowly construing the factors deemed relevant to

avoid responsibility for a controversial decision. Because

EPA must explain to the people of James City County

why wildlife impacts outweigh their need for water, and

because the administrative law-federalism issue at stake

goes beyond the confines of this case and section 404(c),

this Court should grant the petition for certiorari.

ARGUMENT

I. EPA MUST CONSIDER THE COUNTY’S

WATER SUPPLY NEEDS AND THE

ADVERSE WATER SUPPLY EFFECTS OF A

SECTION 404(c) VETO

Section 404(c) authorizes EPA to veto a section 404

permit when the proposed discharge will have an

“unacceptable adverse effect" on certain listed resources

or interests, including "municipal water supplies" and

"wildlife." While the legislative history does not

illuminate either the meaning of "unacceptable" or the

methodology that EPA should use in exercising its

section 404(c) authority,* the word "unacceptable"

undoubtedly means that adverse effects must be

measured against something and considered in context,

not simply enumerated and deemed to justify a section

404(c) veto. Section 404(c)’s inclusion of "municipal

water supplies" as one of the preferred resources to be

protected by section 404(c), and the policy in section

101(g) of accommodating state water allocation systems

in implementing the Clean Water Act’ provide an

“ See S. Conf. Rep. No. 1236, 92d Cong., 2d Sess., reprinted

in 1 Legislative History of the Water Pollution Control Act

Amendments of 1972 at 324-325; see also id., at 177-178, 238-239.

> Section 101(g), 33 U.S.C. section 1251(g) provides:

"It is the policy of Congress that the authority of each State

to allocate quantities of water within its jurisdiction shall not

be superseded, abrogated or otherwise impaired by this Act.

It is the further policy of Congress that nothing in this Act

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unmistakable statutory foundation for requiring EPA

consideration of water supply needs in section 404(c)

veto decisions.

EPA’s regulations and past practice also

Gemonstrate that "unacceptability" is not an absolute

concept based solely on the magnitude of the adverse

environmental effects, but is a relative term dependent

upon context. First, EPA considered and analyzed water

supply needs in the course of its section 404(c)

proceedings on the proposed Two Forks Dam in

Colorado, and the proposed Big River Reservoir in

Rhode Island. See fn. 3, supra. Hence, the agency itself

has recognized the relevance of water supply needs in

determining whether to veto a proposed water supply

project under section 404(c).

Second, EPA’s practice has been to consider the

existence of alternatives in assessing whether adverse

environmental effects are "unacceptable."® If alternatives

shall be construed to supersede or abrogate rights to

quantities of water which have been established by any State.

Federal agencies shall co-operate with State and local agencies

to develop comprehensive solutions to prevent, reduce and

eliminate pollution in concert with programs for managing

water resources." (Emphasis added).

° In promulgating its section 404(c) regulations, EPA stated:

"those portions of the [section 404(b)(1)] guidelines relating to

alternative sites may be considered in evaluating the unacceptability

of the environmental impact." 44 Fed. Reg. 58076, 58078 (October

8, 1979); see also EPA, Final Determination of Assistant Administrator

for Water Pursuant to Section 404(c) of Clean Water Act Concerning

Proposed Big River Water Supply Impoundment in Kent County RI, 55

Fed. Reg. 10666 (March 22, 1990) ("EPA has determined that these

impacts are avoidable because there are practicable alternatives

available to meet projected water supply needs. These findings lead

9

are available, then a lesser magnitude of environmental

harm is needed to reach the “unacceptability" threshold,

because the existence of alternatives means that a veto

would not necessarily preclude attainment of the project

purpose. Conversely, if alternatives are not available,

then EPA has at least implicitly acknowledged that a

higher magnitude or quantum of environmental harm is

needed to reach the "unacceptable" threshold.’ In short,

to the conclusion that the discharge of dredged or fill material in

connection with the proposed Big River Reservoir would result in

unacceptable adverse effects to wildlife and recreational areas.");

Proposed Determination to Prohibit, Restrict, or Deny the Specification,

or the Use for Specification, of an Area as a Disposal Site; South

Platte River, supra, 54 Fed. Reg. at 36866 (noting that those portions

of the section 404(b)(1) guidelines "which are particularly important

in evaluating the unacceptability of environmental impacts in this

case are: - Less environmentally damaging practicable alternatives

and special aquatic sites [section 230.10(a)]")

” See 44 Fed. Reg. 58078 ("the Administrator can take into

account the fact that the alternative sites or methods are or are not

available, so that the loss of resources is avoidable or unavoidable.

Of course, even when there is no alternative available, and ‘vetoing’

the site means stopping a project entirely, the loss of the 404(c)

resources may still be so great as to be ‘unacceptable.”") (emphasis

added). In Bersani v. Robichaud, 850 F.2d 36, 41 (2d Cir. 1988),

cert. denied, 489 U.S. 1089 (1989), the presence or absence of

alternatives was determinative of whether adverse environmental

effects were "acceptable" or "unacceptable", and whether a section

404(c) veto was proper or not. As the Second Circuit said: "if

Pyramid began to search at a time before NED acquired options on

the North Attleboro site, there definitely would have been a

‘practicable alternative’ to Sweeden’s Swamp, and Pyramid’s

application should have been denied. On the other hand, if Pyramid

did not begin its search until after NED acquired options on the

North Attleboro site, then the site arguably was not ‘available’ and

the permit should have been granied.” (Italics in original, emphasis

added).

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the magnitude of environmental harm needed to reach

“unacceptability" varies along a sliding scale, depending

upon the presence or absence of alternatives in the

particular case.

Moreover, the analysis of alternatives necessarily

involves EPA in analyzing 1) economic feasibility factors,

because only "practicable" alternatives are considered, see

40 C.F.R. sections 230.3(q), 230.5(c), 230.10(a)(2), and 2)

project purpose, because one cannot begin to analyze

alternatives without initially defining the project purpose

and objective, see 40 C.F.R. section 230.3(q). Hence,

under EPA’s own regulatory methodology, the agency is

inevitably drawn into analyzing project alternatives,

purpose, and economic feasibility of alternatives when it

makes a judgment whether any particular adverse

environmental effect is "unacceptable."

Third, EPA has acknowledged at least implicitly

that it will balance the adverse environmental effects of

a section 404(c) veto against the adverse environmental

effects of the proposed project.® If EPA considers the

® One of the commenters on EPA’s proposed section 404(c)

regulations posed a hypothetical wherein the environmental

consequences of a section 404(c) veto might be worse than the

environmental consequences of the proposed project. In response,

EPA at least implicitly acknowledged that a section 404(c)

determination would balance these two types of environmental harm:

"One commenter expressed concern that 404(c) was not designed to

handle emergencies, such as pipeline repairs, where the

environmental consequence of vetoing the discharge might be worse

than that of the discharge itself. EPA feels that the authority to

‘restrict’ rather than ‘prohibit’ can be used to handle this situation.

For example, if a pipeline already crosses a site which is proposed

to be barred as a disposal site in the future, the Administrator could

simply restrict permissible discharges to those associated with

|

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adverse environmental effects of a veto, then there is no

reason why adverse municipal water supply effects of a

veto should not also be considered since "municipal water

supplies" is expressly mentioned along with “wildlife” in

section 404(c).

In sum, environmental harm is not measured in an

absolutist fashion based on some intuitive sense that a

certain impact is simply "too much". Instead,

environmental harm is a relative concept analyzed in the

context of the particular project with due regard for

project alternatives, project purposes, and adverse

consequences of a section 404(c) veto. Such an analysis

is not new or startling having been the norm under

NEPA for years.

We make no claim that EPA must do a

‘cost/benefit" analysis before vetoing any type of project

under section 404(c). Unlike shopping centers, roadways,

and other private projects for which a section 404 permit

is sought, municipal water supply has a special place in

section 404(c) and implicates State sovereign interests.

Consequently, requiring EPA to consider water supply

needs and impacts in this case sets no precedent for

requiring "cost/benefit" analyses in every future section

404(c) proceeding.

necessary pipeline repairs". 44 Fed. Reg. at 58081. (Emphasis

added).

5 a

12

Il. BY FAILING TO CONSIDER RELEVANT

FACTORS, EPA IMPROPERLY AVOIDED

AGENCY RESPONSIBILITY FOR A

CONTROVERSIAL POLICY CHOICE

While EPA ultimately has the power to veto public

water supply projects under section 404(c), its decision

must be "based on a consideration of the relevant

factors", Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416 (1971), and it cannot “entirely fail[] to

consider an important aspect of the problem", Motor

Vehicle Mfrs. Assn. v. State Farm Mutual Ins. Co., 463

U.S. 29, 43 (1983). As noted above EPA should have

considered water supply needs and the adverse water

supply effects of a veto in its section 404(c)

determination. Instead, EPA labored to avoid the

difficult policy choice between public water supply and

wildlife, first, by straining to find water supply

"alternatives" (which were more chimerical than real)

which would purportedly solve the County’s water

shortage, and then by saying that the statute elevated

environmental concerns over everything else and made

water supply needs irrelevant. Even the Fourth Circuit

shrank from the zero-sum choice between public water

supply and wildlife because it speculated that there were

water supply alternatives to the proposed project, see 12

F.3d 1330, 1334, n. 1 (4th Cir. 1993), even though it had

earlier concluded that no alternatives were available. 955

F.2d 254, 259-260 (4th Cir. 1992).

Narrowly construing Congressional mandates to

avoid deciding difficult policy trade-offs undermines the

political responsibility and accountability of administrative

13

agencies. Agencies have to make explicit policy choices

in the full light of day, particularly when interests vital to

local communities and State sovereignty are at stake.

CONCLUSION

This case raises an important issue in the

administration of the Clean Water Act. In light of the

federalism and administrative law implications of the

Fourth Circuit’s decision, the Court should grant the

petition for certiorari.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of the State of California

RODERICK E. WALSTON

Chief Assistant Attorney General

DOUGLAS B. NOBLE

Acting Assistant Attorney General

LINUS MASOUREDIS

Deputy Attorney General

J. JOSEPH CURRAN, JR.

Attorney General of the State of Maryland

DON STENBERG

Attorney General of the State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General of the State of Nevada

JEFFREY R. HOWARD

Attorney General of the State of New Hampshire

(Additional Counsel on Next Page)

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MICHAEL S. EASLEY

Attorney General of the State of North Carolina

JAMES S. GILMORE, III

Attorney General of the State of Virginia

JOSEPH B MEYER

Attorney General of the State of Wyoming

Attorneys for Amici Curiae