Amicus Curiae Brief — Simpson Paper (Vermont) Co. v. Department of Environmental Conservation

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FILED

JUN 9 1993

OFFICE OF THE CLERK

‘4

No. 92-1012

Iu the Supreme Court of the Unite

OCTOBER TERM, 1992

SIMPSON PAPER (VERMONT) COMPANY, PETITIONER

Vv.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

AND SIERRA CLUB

ON PETITION FOR A WRIT OF CERTIORARI

TO THE VERMONT SUPREME COURT

BRIEF FOR THE UNITED STATES AS AMICUS C°JRIAE

Drew S. Days, ITI

Solicitor General

MYLEs E. FLINT

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

Davip C. SHILTON

ALBERT M. FERLO, JR.

Attorneys

Department of Justice

, Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

Whether the Vermont Department of Environmen-

tal Conservation exceeded its authority under federal

law by conditioning a water quality certification

under Section 401 of the Clean Water Act, 33 U.S.C.

1341, for a federally licensed hydroelectric project on

the licensee’s attainment of aesthetic and recreational

goals.

(1)

TABLE OF CONTENTS

Page

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Nee a cscsccehbuusnsicbavawnnsneivonsess 18

TABLE OF AUTHORITIES

Cases:

Arkansas V. Oklahoma, 112 S. Ct. 1046 (1992) ...... 11

Black v. Cutter Laboratories, 351 U.S. 292 (1956).. 15

California Vv. FERC, 495 U.S. 490 (1990) —........... 4,16,17

Coleman v. Thompson, 111 S. Ct. 2546 (1991) ...... 10, 11

Gilman Paper Co., 33 F.P.C. 1021 (1965) _.............. 4

Michigan V. Long, 463 U.S. 1032 (1983) ................. 10, 11

Niagara Mohawk Power Corp. v. New York State

Dep’t of Envtil. Conservation, 592 N.Y.S.2d 141

(1993), motion for leave to appeal granted

EES I tL 17-18

Summit Hydropower Vv. Commissioner of Environ-

mental Protection, No. CV91-050-26-43 (Conn.

Super. Ct. July 20, 1992), appeals pending, Nos.

see oe Beene (000M,) .....................-............. 17

Vermont v. New Hampshire, 289 U.S. 593 (1933).. 4

Washington Dep’t of Ecology v. PUD No. 1 of

Jefferson County, 849 P.2d 646 (Wash. 1993),

petition for cert. pending, No. 92-1911 _............... 17

Constitution, statutes and regulations:

Neen meunnetatngvancntanucecens 11

Clean Water Act (Federal Water Pollution Con-

trol Act), 33 U.S.C. 1251 et seq.:

I i re I icc ciaeewmennecnstnncnnccencenenee 2

§ 401, 33 U.S.C. 1841 ...................... Sear CL passim

= en tes, Oe Ue, 1061 (@)................................ 3

§ 401 (d), 38 U.S.C. 1841 (d) ............0..... a. 3,17

Federal Power Act, 16 U.S.C. 791a et seq. ............ 3, 16

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(111)

IV

Statute and regulations—Continued : Page

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40 C.F.R.:

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Miscellaneous:

Office of Hydropower Licensing, Div. of Project

Review, FERC, Environmental Assessment for

Hydropower License, Gilman Hydroelectric

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Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1012

SIMPSON PAPER (VERMONT) COMPANY, PETITIONER

Vv.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

AND SIERRA CLUB

ON PETITION FOR A WRIT OF CERTIORARI

TO THE VERMONT SUPREME COURT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s

invitation to the Solicitor General to file a brief

expressing the views of the United States.

STATEMENT

Petitioner Simpson Paper (Vermont) Company

challenges a condition included in a water quality

certification issued by the Vermont Department of

Environmental Conservation. Petitioner sought that

certification pursuant to Section 401 of the Clean

Water Act, 33 U.S.C. 1341, in connection with its

filing of an application with the Federal Energy Reg-

ulatory Commission for a license to operate a hydro-

electric dam facility.

(1)

2

1. a. Section 303 of the Clean Water Act (Fed-

eral Water Pollution Control Act), 33 U.S.C. 1313,

allows States to adopt “water quality standards” for

all navigable waters within the State.’ A State’s

water quality standards must encompass three basic

elements. See 40 C.F.R. 131.6. First, they must des-

ignate the intended “use” for each water body—e.g.,

whether it is intended for recreational uses, includ-

ing swimming and fishing. 40 C.F.R. 131.6(a),

131.10. Second, the water quality standards must

establish specific “criteria,” which may be expressed

either as numerical limitations on the presence of

certain constituents in the water, or as narrative

descriptions of the water quality generally necessary

to support the designated use. 40 C.F.R. 131.6(c),

131.11.° Finally, the standards must incorporate an

“antidegradation” policy designed to prevent the

gradual deterioration of the quality of the water body

1The Environmental Protection Agency (EPA) defines

water quality standards as—

provisions of State or Federal law which consist of a

designated use or uses for the waters of the United

States and water quality criteria for such waters based

upon such uses. Water quality standards are to protect

the public health or welfare, enhance the quality of

water and serve the purposes of the Act.

40 C.F.R. 131.3 (i).

2 EPA’s regulations define “criteria” as—

elements of State water quality standards, expressed as

constituent concentrations, levels, or narrative state-

ments, representing a quality of water that supports a

particular use. When criteria are met, water quality

will generally protect the designated use.

40 C.F.R. 131.3(b).

3

and the resultant loss of the existing “use.” 40 C.F.R.

131.6(d), 131.12.

Section 401(a) of the Clean Water Act, 33 U.S.C.

1341(a), requires any applicant for a federal li-

cense or permit for an activity that “may result in

any discharge into the navigable waters,” to obtain

a water quality certification from the State in which

the discharge will occur. The certification is intended

to ensure that the activity licensed or permitted pur-

suant to federal law will comply with the State’s

water quality standards. Under Section 401(d) of

the Clean Water Act, 33 U.S.C. 1841(d), the State

must list in its certification any effluent and other

limitations (as well as monitoring requirements) to

assure that the applicant will comply with applicable

effluent limitations and other standards under speci-

fied provisions of the Clean Water Act, as well as

“with any other appropriate requirement of State

law”; those limitations then “shall become a condi-

tion on any Federal license or permit” that is subject

to Section 401.

b. The Federal Power Act, 16 U.S.C. 791a et seq.,

authorizes the Federal Energy Regulatory Commis-

sion (FERC) to issue licenses for hydroelectric proj-

ects “necessary or convenient * * * for the develop-

ment, transmission, and utilization of power across,

along, from, or in any of the streams * * * over

which Congress has jurisdiction.” 16 U.S.C. 797(e).

In issuing a license, FERC is required to impose con-

ditions necessary to ensure that the project “will be

best adapted to a comprehensive plan for improving

or developing a waterway * * * for the adequate pro-

tection, mitigation, and enhancement of fish and wild-

life (including related spawning grounds and habi-

4

tat), and for other beneficial public uses, including

* * * yecreational and other purposes.” 16 U.S.C.

803(a)(1). The Act also directs FERC to “give

equal consideration to the * * * protection of recrea-

tional opportunities, and the preservation of other

aspects of environmental quality.” 16 U.S.C. 797(e).

See generally California v. FERC, 495 U.S. 490, 494-

495 (1990).

2. This case involves petitioner’s application to

the Vermont Department of Environmental Conser-

vation (DEC) for a certification under Section 401

of the Clean Water Act in connection with petition-

er’s operation of the Gilman Project on the Con-

necticut River.* The project dam, which is approxi-

mately 300 feet in length, was constructed around

the turn of the century. It creates an impoundment

that extends 2.9 miles upstream of the dam and that

has a surface area of 130 acres. Pet. App. 6a. A

license was issued for the project under the Federal

Power Act in 1965, retroactive to 1941. Gilman

Paper Co., 33 F.P.C. 1021 (1965).* In September

1988, petitioner applied to FERC for a new license

for the project under the Federal Power Act.°

3 The boundary between the States of Vermont and New

Hampshire is set at the historic low water mark on the Ver-

mont side of the Connecticut River. See Vermont v. New

Hampshire, 289 U.S. 598, 619 (1933).

4 The Gilman Project previously was owned by the Georgia-

Pacific Corporation. After the Project was purchased by peti-

tioner, FERC transferred the license to petitioner in 1992.

See Pet. 12 n.25. References herein to “petitioner” include

its predecessor, Georgia-Pacific.

5 The original license expired in 1990. Since January 1991,

petitioner has continued to operate the project, in conformity

oO

In August 1988, in anticipation of filing its re-

licensing application with FERC for the Gilman

Project, petitioner filed an application with the Ver-

mont DEC for a certification under Section 401 of

the Clean Water Act. DEC rendered its decision on

the certification application on July 28, 1989. See

Pet. App. 19a-28a. DEC first recited the findings on

which its decision was based. See id. at 19a-26a.

DEC then set forth the conditions it found necessary

“lijn certifying that there is a reasonable assurance

that project activities will be conducted in a manner

that will not violate applicable water quality stand-

ards” (id. at 26a). See id. at 26a-28a.

DEC was especially concerned about compliance

with the State’s standards for dissolve' oxygen

(DO) content downstream of the dam c .ring low

summer flows. See Pet. App. 2la-24a. DEC deter-

mined that operation of the project strictly on a run-

of-river basis—1.e., with discharges at the same rate

that water enters the impoundment upstream of the

dam (see Pet. 10 n.16)—would not “in and of itself

assure [that state water quality] standards will be

met.” Pet. App. 23a. Rather, DEC found that “210

cfs [cubic feet per second] must be spilled” over the

dam during the summer months to satisfy the State’s

DO standards. Jd. at 23a-24a. DEC accordingly im-

posed a condition on its water quality certification

requiring petitioner to maintain ‘“[a] minimum in-

stantaneous flow of 210 cfs * * * spilled at the dam

during the period June 1 through October 15 to pro-

tect downstream water quality.” Jd. at 27a. In addi-

tion, in the pcrtion of its decision reciting its findings

with the terms of the original license, under annual licenses

issued by FERC. See Jt. Br. in Opp. 3 & n.2; 16 U.S.C. 808.

6

(but not in its statement of conditions), DEC found

that the required minimum flow “will also serve to

restore to a degree the aesthetics of this river reach.

This is particularly important during the high public

recreational use period.” Jd. at 26a.

3. Petitioner sought judicial review of the certifi-

cation in state court.’ Petitioner argued, inter alia,

(1) that there was not substantial evidence in the

record to support DEC’s imposition of the minimum-

flow requirement, and (2) that DEC erred in taking

into account aesthetic factors because, in petitioner’s

view, Section 401 does not permit a State to impose

conditions on a federal license that serve only aes-

thetic purposes. The trial court affirmed DEC’s deci-

sion. Pet. App. 5a-18a. It found substantial evidence

in the record to support DEC’s determination to re-

quire the minimum flow of 210 cfs from June 1 to

October 15 in order to meet the criteria for DO

below the dam, id. at 14a-15a, observing that this

was the sort of “highly technical matter” on which

deference to the administrative judgment is appro-

priate under Vermont law. Jd. at 14a. The trial

court also noted that DEC had concluded that the

minimum flow “was required to safeguard the aes-

thetic appeal of the river to the numerous persons

who use the river for recreation during the speci-

fied time period,” zbid., and it held that the aesthetic

® We do not question the authority of a state court to review

the action of a state agency in issuing the certification con-

templated by Section 401 of the Clean Water Act. No ques-

tions are presented here concerning the effect to be given in

subsequent proceedings before FERC to determinations by

the state agency or state court on questions of federal law.

See Pet. 17-18.

7

determination “forms a strong independent basis

upon which to uphold the 210 cfs continuous spill

requirement.” bid.

The trial court denied petitioner’s request to re-

mand the case to DEC for consideration of an alter-

native method proposed by petitioner for operating

the project to meet the State’s DO standards; that

method would have entailed continuous monitoring

of downstream DO conditions during the specified

times of the year and spillage of additional water

only when there was a measurable DO deficit. Pet.

App. 15a-17a. The court explained that petitioner

had failed to avail itself of the opportunity to present

its alternative plan to DEC, and that petitioner’s plan,

in any event, “has already been found flawed by an

agency with considerable expertise in the area of

hydropower management, the Federal Energy Regu-

latory Commission.” Jd. at 16a. The latter observa-

tion referred to the fact that FERC, in an environ-

mental assessment dated April 4, 1990, had rejected

petitioner’s alternative plan of operation in favor of

DEC’s minimum-flow requirement. FERC found

that the minimum flow requirement is “an easily

gaged and monitored parameter, to meet specific fu-

ture DO goals downstream of the project,” while

petitioner’s proposed plan, “which depends on an un-

proven predictive water quality model, would be

difficult to monitor and enforce for compliance with

the goal of maintaining DO at the sag point.” Id.

at 17a (quoting Office of Hydropower Licensing, Div.

of Project Review, FERC, Environmental Assess-

ment for Hydropower License, Gilman Hydroelectric

Project (Apr. 4, 1990) ).

4. Petitioner appealed to the Vermont Supreme

Court, which affirmed the trial court’s judgment in

8

a four-page “entry order.” Pet. App. la-4a. As

relevant here, the Vermont Supreme Court first re-

cited petitioner’s arguments, and then responded with

a brief description of the applicable legal framework,

fo!lowed by a statement of the court’s legal conclu-

sions (id. at 3a-4a) :

[Petitioner] * * * contend[s] [1] that the spillage

requirement was not supported by the evidence

and [2] that it was beyond the DEC’s authority

under federal law to consider aesthetic and rec-

reational factors as grounds for the spillage re-

quirement.” The Clean Water Act allows the

state to impose conditions in a § 401 certification

to ensure applicant’s compliance with certain

criteria, including “any other appropriate re-

quirement of State law.” 33 U.S.C. 1341(d).

Vermont’s water quality standards promulgated

in accordance with this Act require that the Con-

necticut River be managed for “water of a qual-

ity which consistently exhibits good aesthetic

value . .. and recreation.” Vermont Water

Quality Standards § 3-03. The DEC spillage re-

quirement was amply supported by the evidence.

Not only were aesthetics and recreation consid-

ered relevant, ease of administration and moni-

7 See also Jt. Br. in Opp. App. lla (reproducing petitioner’s

brief in the Vermont Supreme Court) (stating issues to be,

inter alia, whether (1) the minimum flow requirement is

“unsupported by substantial evidence in the administrative

record,” and (2) if the minimum flow could not be “sustained

as a necessary water quality restriction,” whether it was

“beyond * * * [the State’s] and the trial court’s ~uthority

under applicable federal law to base such a spillage require-

ment alternatively on generalized, nonspecific considerations

of ‘aesthetics’ and/or ‘recreation’”); see generally id. at

44a-58a, 58a-62a.

9

toring were fostered by the requirement. See Jn

re Sherburne, 154 Vt. 596, 607, 581 A.2d 274,

280 (1990) (added deference afforded agency

determinations in highly technical fields).

DISCUSSION

Petitioner contends that the Vermont Department

of Environmental Conservation erred in imposing a

condition on its certification for the Gilman hydro-

electric project under Section 401 of the Clean Water

Act that is intended to promote aesthetic and recrea-

tional values. In petitioner’s view, such a condition

is entirely unrelated to water quality and is, for that

reason, beyond Vermont’s authority under Section

401 to impose.

The scope of a State’s power under Section 401

presents issues of substantial importance to the

United States, both in enforcing the Clean Water Act

and in licensing and permitting of hydroelectric and

other projects. Those issues might well be appro-

priate for consideration by this Court in a future

ease. This case, however, is not the proper vehicle

for that purpose.

l.a. The judgment of the Vermont Supreme

Court rests on an adequate and independent state

ground. The Vermont DEC specifically concluded

that the 210 cfs minimum-flow requirement is neces-

sary in order “to protect downstream water quality,”

Pet. App. 27a—i.e., to ensure compliance with the

State’s dissolved oxygen (DO) standards downstream

of the dam during the low flow period between June 1

and October 15 of each year. See id. at 21a-24a.

That determination was sustained by the state trial

court, which found it supported by substantial evi-

dence in the record, id. at 14a-15a, and then by the

10

Vermont Supreme Court, which concluded that

“Tt]he DEC spillage requirement was amply sup-

ported by the evidence.” Jd. at 3a.

In this Court, petitioner does not challenge DEC’s

determination that the 210 cfs minimum-fiow require-

ment between June 1 and October 15 is necessary

to assure compliance with Vermont’s DO standards.*

Because the judgment of the Vermont Supreme Court

sustaining DEC’s decision is fully supported by that

independent DO-based ground that petitioner does not

challenge, it follows that this Court is without juris-

diction to review the judgment below.

b. Petitioner does not dispute that an affirmance

of DEC’s decision by the Vermont Supreme Court on

the ground that the minimum-flow condition was nec-

essary to assure compliance with Vermont’s DO

standards would constitute an adequate and inde-

pendent state ground of decision, which would bar

review by this Court of any alternative holding by

the Vermont Supreme Court that the minimum-fiow

requirement was appropriate to further purely aes-

thetic goals. See Pet. 17 n.37 (citing Michigan v.

Long, 463 U.S. 1032, 1042 (1983), and Coleman v.

Thompson, 111 8S. Ct. 2546, 2556-2558 (1991));

Reply Br. 3.° Petitioner argues, however, that the

8 Nor does petitioner renew its claim that the case should

have been remanded to DEC for consideration of the suitabil-

ity of petitioner’s management plan as an alternative to the

minimum-flow requirement for assuring compliance with the

State’s DO standards.

® Because petitioner apparently concedes that an affirm-

ance by the Vermont Supreme Court of DEC’s decision on

the DO rationale would constitute an adequate and independ-

ent state ground—and because petitioner does not in any event

TN

11

Vermont Supreme Court’s judgment does not actually

rest on that alternative ground; as petitioner reads

the decision below, the Vermont Supreme Court did

not resolve the DO issue, but instead rested its deci-

sion entirely on DEC’s determination that the

minimum-fiow requirement was justified on aesthetic

grounds. See Pet. 17; Reply Br. 3. We disagree.

In Michigan v. Long, this Court announced a gen-

eral rule that when “a state court decision fairly ap-

pears to rest primarily on federal law, or to be inter-

woven with the federal law, and when the adequacy

and independence of any possible state law ground

is not clear from the face of the opinion, [the Court]

will accept as the most reasonable explanation that

the state court decided the case the way it did be-

cause it believed that federal law required it to do

so.” 463 U.S. at 1040-1041; see also Coleman v.

Thompson, 111 S. Ct. at 2555-2559. As we explain

below, from our review of the decisions and petition-

er’s arguments in the lower courts, we believe it is

clear under Michigan v. Long and Coleman v. Thomp-

son that the Vermont Supreme Court’s judgment is

fully supported by an adequate and independent state

ground.

DEC justified the minimum-flow condition pri-

marily on the basis that it is necessary to assure

seek review of the Vermont Supreme Court’s judgment to the

extent it rests on the DO ground—there is no occasion in

this case to consider whether a state court’s affirmance of a

state agency’s imposition of a condition on a certification

under Section 401 of the Clean Water Act might in some

circumstances present a question of federal law that is sub-

ject to review in this Court under 28 U.S.C. 1257 and Article

III of the United States Constitution. Cf. Arkansas v. Okla-

homa, 112 S. Ct. 1046 (1992).

12

compliance with the State’s DO standards down-

stream of the dam. DEC devoted the bulk of its dis-

cussion to the DO problem (see Pet. App. 21la-24a),

and the need to safeguard against a DO deficit was

the only basis cited by DEC in the portion of its

decision that actually imposed conditions (including

the minimum-flow condition) on the certification.

See id. at 27a (prescribing minimum-fiow condition

“to protect downstream water quality’). The sole

reference to “aesthetics” was in two sentences of

DEC’s antecedent statement of its findings. There,

DEC found that the minimum-flow condition “will

also serve to restore to a degree the aesthetics of this

river reach,” which is “particularly important dur-

ing the high public recreational use period.” Id.

at 26a.

Similarly, the state trial court devoted the bulk of

its discussion of the minimum-flow condition to the

DO justification announced by DEC and the evidence

in the record supporting it. See Pet. App. 7a-12a.

The trial court affirmed that ruling, and then stated

that DEC’s aesthetic determination formed an “in-

dependent basis” for DEC’s decision. Jd. at 14a.

Finally, on appeal to the Vermont Supreme Court,

petitioner devoted the principal portion of its chal-

lenge to DEC’s decision on the merits to the DO basis

on which DEC relied. Petitioner argued that, under

state-law principles governing judicial review of

agency action, DEC’s decision on that point was not

supported by the evidence in the record. See Jt. Br.

in Opp. App. 44a-58a. Petitioner further argued that

“Tijf’ the minimum-flow requirement could not be

sustained as a necessary water quality condition to

assure compliance with DO standards, it was beyond

13

DEC’s authority to impose for “aesthetic” or “recrea-

tion” reasons. Jd. at 1la; see id. at 58a-62a. In our

view, the Vermont Supreme Court’s decision unques-

tionably rejects both of these arguments.

The one paragraph of the Vermont Supreme

Court’s opinion that is relevant for present purposes

consists of five sentences. See Pet. App. 3a-4a

(quoted at pages 8-9, supra). The first sentence

identifies petitioner’s two arguments, just discussed.

The next two sentences set forth the applicable legal

framework for addressing those two arguments; the

second sentence describes Section 401 of the federal

Clean Water Act, and the third sentence describes

Vermont’s water quality standards promulgated in

accordance with the Clean Water Act. The fourth

sentence then rejects petitioner’s challenge to the

minimum-flow requirement insofar as it rests on the

need to assure compliance with the State’s DO stan-

dards, concluding that ‘“‘[t]he DEC spillage require-

ment is amply supported by the evidence.” Pet. App.

3a. The final sentence responds to petitioner’s alter-

native argument, explaining that “[n]ot only were

aesthetics and recreation considered relevant,” but

also that “ease of administration and monitoring

were fostered by the requirement.” Jbid."°

The Vermont Supreme Court thus affirmed both of

what the trial court regarded (Pet. App. 14a) as

10 The Vermont Supreme Court’s reference to “ease of ad-

ministration and monitoring” presumably was to the trial

court’s adoption of FERC’s determination, in rejecting peti-

tioner’s proposed management plan, that the minimum-flow

requirement is an “easily gaged and monitored parameter, to

meet specific future DO goals downstream of the project,”

Pet. App. 16a-17a,

14

“independent” bases for DEC’s decision.“ Because

‘petitioner seeks review only on the latter ground—

and because the former ground appears to rest en-

tirely on state law (see page 12 and note 9, supra;

Jt. Br. in Opp. App. 44a-58a)— the judgment of the

Vermont Supreme Court is fully supported by, and

therefore rests on, adequate and independent state

grounds. As such, it is beyond the jurisdiction of this

Court to review.

2. Even if we assume, arguendo, that this Court

has jurisdiction to review the Vermont Supreme

Court’s judgment, this case would not, in our view,

present an appropriate occasion on which to consider

whether (and, if so, in what manner) a state agency

may consider “aesthetic” factors in imposing condi-

tions on a certification under Section 401 of the Clean

Water Act. At the very least, DEC’s certification

decision makes clear that, in DEC’s view, the mini-

mum-flow condition was fully justified by the need

11 Petitioner errs in contending (Reply Br. 3) that the

Vermont Supreme Court “never expressly addressed the DO

issue.” To be sure, the court did not use the term “DO” or

“dissolved oxygen.” But it is clear from the structure of the

court’s opinion and the way in which petitioner briefed the

case that the court’s holding (in the fourth sentence of the

relevant paragraph) that “[t]he DEC spillage requirement

was amply supported by the evidence” responded to petition-

er’s argument in its brief that the record did not support the

DO basis for the condition. See Jt. Br. in Opp. App. 44a-58a.

Moreover, the first sentence of the relevant paragraph in the

court’s opinion, in which the court identified petitioner’s two

contentions on the merits, makes clear that this DO/evidence-

in-the-record issue was distinct from the basically legal, rather

than evidentiary, issue of whether Section 401 of the Clean

Water Act permitted DEC to consider aesthetic and recrea-

tional factors in imposing the minimum-flow condition.

15

to assure compliance with Vermont’s DO standards,

and the courts below sustained that reasoning. Ac-

cordingly, even if this Court were to grant review

in this case and hold that a State may not consider

“aesthetic” factors unrelated to measurable water

quality criteria, both the DEC decision and the Ver-

mont Supreme Court’s judgment affirming it would

be unaffected. As a result, the judgment below would

have to be regarded for present purposes as correct.

Because this Court “reviews judgments, not state-

ments in opinions,” Black v. Cutter Laboratories, 351

U.S. 292, 297 (1956), the view expressed in the opin-

ion below regarding the relevance of aesthetic factors

does not warrant certiorari in this case.

There are still further reasons why that issue is

not suitably presented for review in this case. First,

it is not clear precisely what DEC meant by its ref-

erence to “the aesthetics of this river reach.” Pet.

App. 26a."7 DEC might have had in mind the need

to preserve a certain minimum level of water in the

river so that the scenic vista of the river would be

pleasing. Alternatively, DEC might have had in

mind aesthetics related to the quality of the water

itself—e.g., the odor that could be emitted if the

DO content of the water was reduced to a level that

would lead to releases of hydrogen sulfide, which are

associated with low levels of dissolved oxygen. This

Court should not consider the difficult and potentially

fact-dependent questions concerning the relevance of

aesthetic factors in the issuance of a state certifica-

12 Like respondents (Jt. Br. in Opp. 10), we believe this

reference, on its face, focuses on (or at least includes) down-

stream aesthetics, not merely aesthetics in viewing the dam

itself, as petitioner suggests (see Pet. 15, 17-18, 23-24).

16

tion under Section 401 in the absence of a ciear ex-

plication by the state agency and state courts of the

basis for the challenged certification condition.”

Second, the minimum-flow requirement that peti-

tioner challenges in this case has received a prelim-

inary endorsement by FERC. In rejecting petition-

er’s request for a remand to DEC for consideration of

its alternative management plan, the trial court re-

ferred to the conclusion in FERC’s environmental

assessment that the minimum-flow requirement could

be “easily gaged and monitored,” while petitioner’s

alternative plan, “which depends on an unproven

predictive water quality model, would be difficult to

monitor and enforce for compliance with the goal of

maintaining DO.” Pet. App. 16a, 17a. The trial court

then adopted FERC’s opinion as its own, stating (id.

at 17a):

The court sees no reason to doubt FERC’s exper-

tise in this area, finds its conclusions to be sup-

portable, and accepts as fact FERC’s negative

scientific assessment of [petitioner’s] proposal.

Thus, in the context of this case, petitioner cannot

credibly claim that the DEC’s imposition of the min-

imum-flow condition presents any ripe conflict with

federal law or with actions taken by FERC in its

administration of federal law."

-— We likewise are reluctant to express a view on those

questions in the highly abstract context of this case.

‘. Petitioner contends (Pet. 25-29) that the Vermont Su-

preme Court’s “expansive” view of a State’s authority under

Section 401 would allow States to circumvent the primacy of

the federal licensing scheme set forth in the Federal Power

Act, 16 U.S.C. 791a et seq., and recently reaffirmed in Cali-

fornia v. FERC, 495 U.S. 490 (1990). As respondents point

en

For the foregoing reasons, review is not warranted

in this case.”

out (Jt. Br. in Opp. 20-21), however, petitioner did not

make an argument based on the Federal Power Act in

the Vermont Supreme Court, and that court did not discuss

the Federal Power Act. That Act therefore does not furnish

an independent basis for review in this case. Of course, if the

Court were to grant review, it nonetheless would be relevant

to consider the interaction of Section 401 and the statutory

provisions governing FERC’s licensing authority.

15 On June 1, 1993, a petition for a writ of certiorari was

filed seeking review of the decision of the Washington Su-

preme Court in Washington Dep’t of Ecology v. PUD No. 1

of Jefferson County, 849 P.2d 646 (Wash. 1993). See PUD

No. 1 of Jefferson County & City of Tacoma v. Washington

Dep’t of Ecology, petition for cert. pending, No. 92-1911.

The Washington Supreme Court in that case addressed many

of the issues petitioner attempts to raise in this case, includ-

ing the interaction of Section 401 of the Clean Water Act

and FERC’s licensing authority under the Federal Power Act

and California v. FERC. See 849 P.2d at 653-657. The Wash-

ington Supreme Court also considered the scope of the refer-

ence in Section 401(d) of the Clean Water Act, 33 U.S.C.

1841(d), to “any other appropriate requirement of State

law” (see 849 P.2d at 651-653), an issue that is not involved

in this case. No response has yet been filed to the certiorari

petition in No. 92-1911, and we express no view at this time

on whether the Court should grant review in that case.

In Summit Hydropower v. Commissioner of Environmental

Protection, No. CV91-050-26-43 (Conn. Super. Ct. July 20,

1992), appeals pending, Nos. SC12618 & 14619 (Conn. ar-

gued May 4, 1993), the state agency also conditioned its

certification under Section 401 on a minimum-flow require-

ment. Unlike the condition at issue in this case, however,

the minimum-fiow requirement in Summpf- Hydropower was

imposed solely for aesthetic purposes; Connecticut con-

ceded that the project would otherwise meet water quality

requirements. A case raising similar issues is also pending

before the New York Court of Appeals. See Niagara Mohawk

18 ;

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DrEw S. Days, III

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

DAVID C. SHILTON

ALBERT M. FERLO, JR.

Attorneys

JUNE 1993

Ae aaa” Lai thd ls

Power Corp. Vv. New York State Dep’t of Envtl. Conservation,

592 N.Y.S.2d 141 (1993), motion for leave to appeal granted

(May 11, 1993).

W ov. 3. GOVERNMENT PRINTING orrics; 1993 342479 60310