Other End-of-Term Supreme Court Decisions

In addition to its rulings in Kleppe v. Sierra Club,¹ Train v. Colorado Public Interest Research Group,² and Kleppe v. New Mexico³ which are individually analyzed elsewhere in this issue, the Supreme Court rendered several other significant decisions in environmental cases as part of its end-of-term flurry of activity. Resolving a split in authority among the judicial circuits,⁴ the Court ruled on June 7 that while federal facilities must comply with air and water pollution control standards and compliance schedules adopted by states pursuant to the Clean Air Act and Federal Water Pollution Control Act Amendments of 1972 (FWPCA), such installations need not obtain state-issued discharge permits required of other dischargers under these same statutes.

In reaching its decisions in Hancock v. Train⁵ and Environmental Protection Agency v. California,⁶ the Court started from the basic premise that any congressional action to subject federal installations to state regulation must be "clear and unambiguous." The two specific provisions at issue, § 118 of the Clean Air Act⁷ and § 313 of the FWPCA,⁸ respectively, call in identical language for federal compliance with "requirements respecting control and abatement of … pollution to the same extent that any person is subject to such requirements." This, the Court concluded, was not specific enough.

Relying on an analysis of the statutory structure and on portions of the legislative history for guidance, Justice White, writing for a seven-man majority, held that these provisions did not exhibit the convincing congressional intent necessary to constitute a waiver of federal supremacy as to state "procedural" requirements such as discharge permits. The Court suggested that Congress could rewrite the laws to make its intent less ambiguous, should it desire to grant the states this power over federal installations, and noted that the Senate version of the currently pending Clean Air Act Amendments of 1976⁹ would do precisely that.

Because of differences in the regulatory structures established by the two statutes, the two rulings will have different ramifications. Under the Clean Air Act, no discharge permit is now required of federal facilities since after Hancock they are exempt from the permit procedures of state implementation plans, and there is no overarching federal permit program in the field of air pollution control. Under the FWPCA, however, federal installations are required to obtain National Pollutant Discharge Elimination System (NPDES) permits,¹⁰ although from EPA rather than from the states. While EPA's intergovernmental enforcement record in the area of federal facility pollution is not impressive, this continuing permit obligation is nonetheless more rigorous than the essentially voluntary monitoring and reporting duties still applicable to federal installations under the Clean Air Act.

Under both statutes the one enforcement mechanism that remains available to the states for federal facility violations of discharge standards or compliance schedules is a citizen suit under § 304¹¹ of the Clean Air Act or § 505¹² of the FWPCA. The cost of such suits, however, in terms of time, money and manpower, limits their utility to the most serious violations. The need for some less cumbersome state enforcement device against federal polluters, especially in thearea of air quality control, has, as the Court noted, been perceived by the draftsmen of the currently pending Senate bill to amend the Clean Air Act.¹³ Congress may thus yet choose to eradicate unambiguously all vestiges of a de facto double standard for federal polluters under the two most sweeping federal pollution control statutes.

In Flint Ridge Development Co. v. Scenic River Association,¹⁴ another case dealing with federal agency obligations under NEPA, the Court on June 24 held that the Department of Housing and Urban Development (HUD) is not required to prepare an environmental impact statement in connection with its approval of a property report and statement of record filed by a private developer pursuant to the Interstate Land Sales Full Disclosure Act.¹⁵ The Court's opinion, a unanimous decision written by Justice Marshall, ruled that NEPA's impact statement requirements irreconcilably conflicted with the Disclosure Act's provision that a property report and statement of record automatically become effective 30 days after it is filed with HUD, unless the agency determines that the report is "incomplete or inaccurate in any material respect."

[6 ELR 10173]

Accepting the basic principle that NEPA was not intended to amend by implication any other statute, the Court stated that it is to such instances of statutory conflict that the NEPA language "to the fullest extent possible" was intended to speak. Compliance with NEPA's dictates, according to the Court, must yield in ceases of clear and unavoidable conflict with the requirements of other statutes to which the agency is subject.

The Court rejected plaintiffs' contention that HUD has an inherent power to suspend a property report's effective date beyond the 30-day deadline in order to prepare an environmental impact statement, and found that preparation of an impact statement in this situation was inconsistent with the HUD Secretary's mandatory duties under the Disclosure Act.

Because of its disposition of the case on the statutory conflict issue, the Court did not find it necessary to rule on HUD's additional and perhaps more serious claim that allowing a property report to become effective does not constitute major federal action. The decision will thus not have a major effect on future NEPA litigation, except perhaps in the limited number of cases¹⁶ in which agencies raise claims of irreconcilable conflicts between NEPA compliance and their express duties under other statutes.

Settling a second difference of opinion among the circuits,¹⁷ the Court on June 25 decided Union Electric Co. v. Environmental Protection Agency.¹⁸ Justice Marshall, writing for a unanimous Court, ruled that § 110¹⁹ of the Clean Air Act precludes the EPA Administrator from considering the economic and technological feasibility of a proposed state implementation plan's emission limitations in deciding whether to approve the plan. The Court affirmed the Eighth Circuit's dismissal for lack of jurisdiction of an electric utility's petition, filed directly with the court of appeals under § 307(b)(1),²⁰ which sought to overturn the Administrator's approval of the Missouri implementation plan sulfur dioxide restriction on such grounds.

A survey of the applicable statutory provisions and their legislative history led the Court to conclude that Congress intended claims of economic and technological infeasibility to be irrelevant to the Administrator's consideration of a state implementation plan. The Court began its analysis by noting the Clean Air Act's "technology-forcing character," and recognizing that its requirements are expressly designed to force regulated sources to develop pollution control devices that may initially appear economically or technologically infeasible. Pointing specifically to § 110(a)(2),²¹ Justice Marshall noted that this provision sets forth eight criteria that a state plan must satisfy, and directs that the Administrator "shall approve" a plan that meets the criteria (and certain procedural requirements). After careful scrutiny, the Court concluded that none of the eight factors permits consideration of economic or technological infeasibility.

To rule otherwise, the Court concluded, would frustrate prompt attainment of the national air quality standards by allowing a proposed implementation plan to be struck down as infeasible before it is given a chance to work, and would thereby also undercut the technology forcing thrust which undergirds the Act.

Having held that such claims may not be raised at the implementation plan approval stage, the Court took pains to emphasize the existence of several alternative forums which provide ample opportunity for the consideration of such questions. They can, for instance, be raised before the state agency formulating the implementation plan. The discharger can also apply for a state-issued variance from the plan's provisions, and such a variance may be submitted to EPA as a revision of the plan under § 110(a)(3)(A).²² In addition, technological and economic factors may be considered as mitigating circumstances in enforcement proceedings before either EPA or the state or federal courts.

In a concurrence, Justice Powell, joined by Chief Justice Burger, admitted that the majority's reasoning is "irrefutably" correct, but stated that the Act so interpreted may in certain situations impose unreasonably inflexible regulatory demands — such as the shut-down of an urban area's electrical service even though compliance may be technologically impossible — which were probably not intended by Congress when it passed the legislation.

The majority's emphasis on the petitioner's right to raise economic and technological issues as mitigating factors in enforcement proceedings, however, effectively answers this concern. The drastic remedy of plant shut-down is highly unlikely where diligent "good faith"²³ efforts have been made by the discharger to overcome outstanding economic and technological obstacles.

The Court's decision in Union Electric, in addition to being "irrefutably" correct, strongly reinforces the basic technology-forcing thrust of the Clean Air Act and evidences the Court's appreciation of the deep-rooted national commitment to clean our air.

1. __ U.S. __, 6 ELR 20532 (June 28, 1976). See Comment, NEPA Off the Top: The Supreme Court Interprets Impact Statement Requirement, 6 ELR 10164 (Aug. 1976).

2. __ U.S. __, 6 ELR 20549 (June 1, 1976). See Comment, High Court Concludes Water Act Was Not Intended to Affect Nuclear Regulatory Commission's Jurisdiction, 6 ELR 10169 (Aug. 1976).

3. __ U.S. __, 6 ELR 20545 (June 17, 1976). See Comment, Supreme Court Confirms Supremacy of Federal Authority to Manage Wildlife on Federal Lands, 6 ELR 10171 (Aug. 1976).

4. See Comment, Federa Facilities Held Subject to State Implementation Plan Permit Requirements as Circuits Split, 4 ELR 10197 (Dec. 1974); Comment, Federal Facilities Held Subject to State NPDES Permit Programs, 5 ELR 10067 (May 1975).

5. __ U.S. __, 6 ELR 20555 (June 7, 1976), aff'g 497 F.2d 1172, 4 ELR 20484 (6th Cir. 1974)

6. __ U.S. __, 6 ELR 20563 (June 7, 1976), rev'g 511 F.2d 962, 5 ELR 20213 (9th Cir. 1975).

7. 42 U.S.C. § 1857f, ELR 41211.

8. 33 U.S.C. § 1323, ELR 41121.

9. See S. Rep. No. 94-717 (1976).

10. See § 402 of the FWPCA, 33 U.S.C. § 1342, ELR 41123.

11. 42 U.S.C. § 1857h-2, ELR 41217.

12. 33 U.S.C. § 1365, ELR 41125.

13. Supra note 9.

14. __ U.S. __, 6 ELR 20528 (June 24, 1976).

15. 15 U.S.C. §§ 1701 et seq.

16. E.g., Environmental Defense Fund v. Mathews, __ F. Supp. __, 6 ELR 20369 (D.D.C. Mar. 26, 1976).

17. See Comment, Where There's A Will: Must EPA Consider the Technologic and Economic Feasibility of State Air Implementation Plans?, 5 ELR 10056 (Apr. 1975).

18. __ U.S. __, 6 ELR 20570 (June 25, 1976), aff'g 515 F.2d 206, 6 ELR 20259 (8th Cir. 1975)

19. 42 U.S.C. § 1857c-5, ELR 41204.

20. 42 U.S.C. § 1857h-5, ELR 41218.

21. 42 U.S.C. § 1857c-5(a)(2), ELR 41204.

22. 42 U.S.C. § 1857c-5(a)(3)(A), ELR 41204.

23. See § 113(a)(4) of the Act, 42 U.S.C. § 1857c-8, ELR 41206.