High Court Faces Variety of Environmental Issues in 1979 Term

The October 1979 Term of the United States Supreme Court is shaping up as a full one with respect to cases raising environmental issues. Last Term, except for the important decisions supporting the National Environmental Policy Act regulations issued by the Council on Environmental Quality¹ and holding that state authority to regulate wildlife is circumscribed by the same Commerce Clause limitations applicable to their regulation of other natural resources,² the High Court's end-of-Term score card was marked by a paucity of substantive rulings in environmental cases and a plethora of refusals to review the decisions³ of lower courts. Already this year, however, review has been granted in a wide range of cases, including early argument in some, and a number of other important questions have been placed on the docket for consideration.

Water Pollution

Review has been granted in a Ninth Circuit Court of Appeals case that could have a great impact on the way in which the Environmental Protectlion Agency (EPA) administers the national pollutant discharge elimination system (NPDES). In Pacific Legal foundation v. Costle,⁴ EPA had granted and extension of an NPDES permit allowing the deep ocean dumping of sewage from Los Angeles and denied a request for an adjudicatory hearing. Though the Federal Water Pollution Control Act (FWPCA) requires that opportunity for a public hearing be afforded in such a case, the Agency denied the request on the ground that it was submitted after the time allotted by the EPA regulations and that the dispute raised legal issues appropriately resolved by EPA's General Counsel rather than material factual issues requiring adjudication. The Ninth Circuit held that EPA was required to show that material facts were not in dispute in order to justify its failure to hold a hearing and that such showing had not been made; the case was remanded to the Agency for the adjudicatory hearing. In petitioning the Court to review the Ninth Circuit's decision, EPA warned that administration of the NPDES program could be hampered by the requirement to hold hearings whenever a member of the public suggests that there is some plausible disagreement over the factual issues concerning EPA's decision to extend or revise NPDES permits.

During September, petitions for certiorari were filed in two other cases with important implications under the FWPCA. The Tenth Circuit, in Ward v. Coleman,⁵ concluded that the mandatory imposition of a statutorily denoted "civil" penalty for an oil spill was in fact "criminal" in nature and thus subject to the Fifth Amendment protection against self-incrimination. Therefore, assessment of the penalty based on information derived from the mandatory self-reporting of an oil spill was barred. The Tenth Circuit's decision, which was the first to address this issue in the context of an individual rather a corporate defendant, deviates from the clear weight of precedent,⁶ and the Supreme Court may thus have to produce yet another clarification of when a "civil" penalty is really "criminal." A petition for certiorari was also filed in Illinois v. City of Milwaukee⁷ in which the Seventh Circuit affirmed the trial court's ruling that the city's dumping of sewage into Lake Michigan constituted an enjoinable public nuisance under federal common law. The court also concluded that the FWPCA does not limit the availability of more stringent relief under the preexisting federal common law. The Supreme Court's handling of the case comes at a crucial time; if allowed to stand, Illinois, in conjunction with the Seventh Circuit's more recent expansion of the federal common law of nuisance,⁸ may mark the renaissance of this doctrine as a vital legal toiol with which to fill the gaps in the statutory remedies for relief from pollution-caused injuries.⁹

Air Pollution

The Court has agreed to hear the appeal from PPG Industries, [9 ELR 10180] Inc. v. Harrison,¹⁰ in which the Fifth Circuit concluded that it did not have jurisdiction to review an EPA order subjecting cogeneration boilers in a recently constructed power plant to the new source performance standards required under § 111 of the Clean Air Act. A decision in this case will turn on an interpretation of the extent to which the 1977 amendments to the Act turned review of EPA final actions over to the circuit courts of appeals.

An appeal filed in another case highlights a serious split among the circuits over EPA's authority to bypass the notice and comment requirements of the Administrative Procedure Act (APA) in designating non-attainment areas under the Clean Air Act in preparation for the revision of state implementation plans. In United States Steel Corp. v. Environmental Protection Agency,¹¹ the Seventh Circuit, in contrast to the Third¹² and Fifth¹³ Circuits, found that EPA had good cause to issue these designations without full compliance with the rulemaking requirements of the APA. To be weighed in this case are the short statutory timetable for EPA rule making, the importance of the deliberate APA scheme for public involvement in agency rule making, and the problem of continuing failure to achieve air pollution standards.¹⁴ In another action, the Supreme Court did, however, deny review to an Eighth Circuit decision¹⁵ which blocked judicial interference with EPA's preenforcement compliance procedures for electic utilities under the Clean Air Act.

Regulatory Costs and Benefits

One of the most important Court decisions this Term will come from its ruling on an appeal from the Fifth Circuit's decision in American Petroleum Institute v. Occupational Safety and Health Administration,¹⁶ overturning the agency's lowered health standard for work-place exposure to airborne benezene, a widely used industrial solvent and known carcinogen. The court concluded that the agency was required to estimate precisely the benefits and costs of the proposed regulation and to show that there exists a reasonable relationship between the two. Since the agency was unable to specify the health risks posed by benezene at a higher standard and thus the benefit of reducing that risk, the lower standard was struck down. This case, which was argued before the Supreme Court in early October, is an extremely important one for the entire regulatory process because at the heart of the dispute is the issue of cost-benefit analysis of environmental and health regulations, particularly when costs can be easily quantified but benefits are less capable of exact measurement.¹⁷

Another case that has been docketed but not yet accepted fr review is American Iron and Steel Institute v. Occupational Safety and Health Administration.¹⁸ In that case, the Third Circuit upheld the federal agency's work-place safety rule limiting exposure to coke oven emissions, but vacated the requirement that manufacturers must research and develop additional exposure controls if permissible exposure levels have not been met by January 20, 1978. The court's use of the substantial evidence standard in this case seems to conflict with the Fifth Circuit's approach in API v. OSHA.

Oil Resouces Development

Because of the emergence of the energy crisis as a central national concern, it is inevitable that issues dealing with oil resources would occupy a prominent place on the Supreme Court's docket.The Carter Administration has assigned an important role in assuring the domestic energy supply to new sources, such as oil shale and synthetic fuels from coal, because such fuels may increasingly be competitive in the face of rising costs for imported oil. Recently, the Supreme Court agreed to hear Shell Oil Co. v. Andrus,¹⁹ in which the Tenth Circuit held improper the Interior Department's invalidation of shale oil placer mining claims on public land. In addition, the court ruled that the Department's attempts in 1961 and 1974 to declassify oil shale as a "valuable" mineral under the general mining laws were unauthorized. Resolution of this controversy will affect the federal government's ability to speed oil shale development without the roadblocks of holdouts and judicial disputes over the validity of particular claims.

Two cases have been docketed²⁰ dealing with whether the Michigan Environmental Protection Act can block development of large untapped oil reserves in the state's Pigeon River Country State Forest, a haven for wildlife. In addition, the question of damages incurred by lessees of offshore oil and gas tracts as a result of restrictions [9 ELR 10181] placed on outer continental shelf (OCS) petroleum development immediately following the 1969 Santa Barbara oil spill has been appealed to the Supreme Court after the court of claims dismissed the lessees' petition.²¹ Finally, the Court has denied review of a Fifth Circuit decision²² upholding the Department of the Interior Secretary's rejection of the high bid for an OCS lease even though the Interior Department official authorized to evaluate the bid recommended that it be accepted.

National Environmental Policy Act

After the Supreme Court's important decision in Andrus v. Sierra Club²³ last term, giving strong judicial affirmance to the new National Environmental Policy Act (NEPA) regulations issued by the Council on Environmental Quality, the only NEPA case that has appeared so far on the Court's docket deals with consideration of alternatives under § 102(2)(E). Karlen v. Harris²⁴ involved the Department of Housing and Urban Development's sponsorship of a high-rise, low-income apartment project in New York City. After seven years of litigation, there will finally be a resolution of whether the agency properly balanced the need to guarantee an economic mix of residents against delays in completing the project.

Wildlife

In its first argument of the new Term, the Supreme Court heard an appeal from a three-judge district court's decision in Allard v. Andrus²⁵ which concluded that neither the Migratory Bird Treaty Act nor the Bald and Golden Eagle Protection Act prohibited the sale of birds or their parts that had been lawfully killed before the Acts became effective. The lower court declared void Interior Department regulations which, citing the lack of an effective way to distinguish old bird feathers from new ones, had prohibited commercial transactions to assure that living birds were not killed for commercial purposes.

Public Lands

So far, three disputes concerning the public lands have gone to the Supreme Court this Term. The Court will hear the appeal of the Tenth Circuit's decision in Utah v. Kleppe,²⁶ which held that the Taylor Grazing Act did not permit the Secretary of the Interior to refuse to convey to the state, without regard to value, public lands selected by the state as indemification for school and grants-in-place that had been denied the state because of federal reservation or private entry. Two other cases have been docketed by the Court, which has not yet decided whether it will hear the appeals. In Idaho v. Andrus,²⁷ the question is whether the Secretary of the Interior must indefinitely reserve from appropriation to other public and private uses a vast tract of desert acreage so that the state may eventually be able to select all or part of the tract for irrigation and reclamation. In United States v. Imperial Irrigation District,²⁸ the issue concerns acreage limitations and vested water rights under federal reclamation law, one of the most politically sensitive issues in the western states.

Navigable Waters

Also argued early in the 1979 Term were two cases dealing with the extent to which the public may be excluded from privately owned marinas and canals. In United States v. Kaiser Aetna,²⁹ the Ninth Circuit held that a privately owned marina created by improvement of an enclosed and navigable fish pond is a navigable water of the United States subject to the regulatory jurisdiction of the Army Corps of Engineers under the Rivers and Harbors Act. The public therefore could noit be denied access to the marina, which is now navigable in fact and capable of use for commercial purposes. On the other hand, the Louisiana Supreme Court, in Vermillion Corp. v. Vaughn,³⁰ upheld a lower court's injunction against access by commercial fishermen to privately constructed, owned, and maintained canals that are subject to tidal flows because they connect to navigable waterways.

Historic Preservation

The question of whether a federal agency's obligations under the National Historic Preservation Act (NHPA) terminate as of the effective date of a grant of federal funds for an urban renewal project has been appealed to the Supreme Court. In WATCH v. Harris,³¹ the Second Circuit affirmed an injunction against demolition of buildings that did not achieve protected status until after the federal grant contract was executed in 1973, finding violations of both NEPA and NHPA. Contrary to decisions of other federal courts, the Second Circuit held that the NHPA continues to apply to a project until the federal agency finally approves the expenditure of funds at all stages rather than when preliminary approval of federal funding is given.

[9 ELR 10182]

Conclusion

In other early action, the Supreme Court has denied review in three cases with environmental significance.³² Thus, at the beginning of its new Term, the Supreme Court already has a smorgasbord of environmental issues to consider, and some major new rulings shaping this field of the law may thus be forthcoming.

1. 47 U.S.L.W. 4676, 9 ELR 20390 (June 11, 1979). See generally, Comment, Supreme Court Relies on CEQ's NEPA Rules to Hold EIS Requirements Inapplicable to Agency Budget Requests, 9 ELR 10122 (Aug. 1979). The regulations are found at 40 C.F.R. §§ 1500-1508, 43 Fed. Reg. 55978 (Nov. 29, 1978), ELR STAT. & REG. 46015. See generally, Comment, New Rules for the NEPA Process: CEQ Establishes Uniform Procedures to Improve Implementation, 9 ELR 10005 (Jan. 1979).

2. 47 U.S.L.W. 4447, 9 ELR 20360 (Apr. 24, 1979). See generally, Comment, State Authority to Protect Wildlife Preserved as Supreme Court Finally Overturns Geer v. Connecticut, 9 ELR 10106 (June 1979).

3. See Wolf, Environmental Litigation and the United States Supreme Court, ABA ENVT'L L. 1 (Fall 1979).

4. 586 F.2d 650, 8 ELR 20731 (9th Cir. 1978), cert. granted, 47 U.S.L.W. 3797 (U.S. June 11, 1979) (No. 78-1472).

5. 598 F.2d 1187, 9 ELR 20311 (10th Cir. 1979), petition for cert. filed sub nom., United States v. Ward, 48 U.S.L.W. 3154 (U.S. Sept. 7, 1979) (No. 79-394).

6. See Comment, Tenth Circuit Bucks the Tide of Precedent in Rejecting Civil Penalties for Oil Spills Based on Self-Reporting, 9 ELR 10124 (Aug. 1979).

7. 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979), petition for cert. filed, 48 U.S.L.W. 3155 (U.S. Sept. 11, 1979) (No. 79-408).

8. City of Evansville v. Kentucky Liquid Recycling, Inc., __ F.2d __, 9 ELR 20679 (7th Cir. Aug. 9, 1979).

9. See Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Allow Municipalities to Sue for Damages, 9 ELR 10168 (Oct. 1979); Comment, Illinois v. City of Milwaukee Revisited: Seventh Circuit Charts Important New Role for Federal Common Law of Nuisance, 9 ELR 10087 (May 1979).

10. 587 F.2d 237, 9 ELR 20086 (5th Cir. 1979), cert. granted, 48 U.S.L.W. 3217 (U.S. Oct. 1, 1979) (No. 78-1918).

11. __ F.2d __, 9 ELR 20560 (7th Cir. Aug. 1, 1979), petition for cer. filed, 48 U.S.L.W. 3224 (U.S. Sept. 21, 1979) (No. 79-486).

12. Sharon Steel Corp. v. Environmental Protection Agency, 597 F.2d 377, 9 ELR 20316 (3d Cir. 1979).

13. United States Steel Corp. v. Environmental Protection Agency, 595 F.2d 207, 9 ELR 20311, 205971 (5th Cir. 1979).

14. See Comment, Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations, 9 ELR 10173 (Oct. 1979).

15. Union Elec. Co. v. Environmental Protection Agency, 593 F.2d 299, 9 ELR 20154 (8th Cir. 1979), cert. denied, 48 U.S.L.W. 3219 (U.S. Oct. 1, 1979).

16. 581 F.2d 893, 8 ELR 20790 (5th Cir. 1978), cert. granted sub nom., Industrial Union Dep't AFL-CIO v. American Petroleum Inst., 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (No. 78-911), and Marshall v. American Petroleum Inst., 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (No. 78-1036).

17. See Comment, Assessing Regulatory Costs and Benefits: Fifth Circuit Vacates OSHA Benzene Standard, 8 ELR 10250 (1978).

18. 577 F.2d 825 (3d Cir. 1978), petition for cert. filed sub nom., Republic Steel Corp. v. OSHA, 47 U.S.L.W. 3422 (U.S. Dec. 8, 1978) (No. 78-918).

19. 591 F.2d 597, 9 ELR 20530 (10th Cir. 1979), cert. granted, 48 U.S.L.W. 3217 (U.S. Oct. 1, 1979) (No. 78-1815).

20. Western Michigan Envt'l Action Council, Inc. v. Natural Resources Comm'n, 255 N.W.2d 538, 9 ELR 20487 (Mich. 1979), petition for cert. filed sub nom., Shell Oil Co. v. Western Michigan Envt'l Action Council, Inc., 48 U.S.L.W. 3132 (U.S. Aug. 29, 1979) (No. 79-335); Michigan Oil Co. v. Natural Resources Comm'n, 276 N.W.2d 141, 9 ELR 20625 (Mich. 1979), petition for cert. filed, 48 U.S.L.W. 3224 (U.S. Sept. 20, 1979) (No. 79-476). See generally, Comment, New Growth in Michigan's Environmental Protection Act: State Supreme Court Enjoins Oil Development in Wilderness, 9 ELR 10144 (Sept. 1979).

21. Pauley Petroleum, Inc. v. United States, 591 F.2d 1308 (Ct. Cl. 1979), petition for cert. filed, 48 U.S.L.W. 3009 (U.S. July 5, 1979) (No. 79-19).

22. Chevron Oil Co. v. Andrus, 588 F.2d 1383, 9 ELR 20078 (5th Cir. 1979), cert. denied, 48 U.S.L.W. 3222 (U.S. Oct. 1, 1979).

23. See note 1, supra.

24. 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978), petition for cert. filed sub nom., Strycker's Bay Neighborhood Council, Inc. v. Karlen, 48 U.S.L.W. 3049 (U.S. Aug. 1, 1979) (No. 79-168).

25. No. 75 W 1000, __ F. Supp. __ (D. Colo. June 7, 1978), cert. granted, 47 U.S.L.W. 3553 (U.S. Feb. 21, 1979) (No. 78-740). The text of the district court's opinion is available from ELR (9 pp. § 1.25, ELR Order No. C-1190).

26. 586 F.2d 756 (10th Cir. 1978), cert. granted sub nom., Andrus v. Utah, 47 U.S.L.W. 3797 (U.S. June 11, 1979) (No. 78-1522).

27. 595 F.2d 524 (9th Cir. 1979), aff'g 417 F. Supp. 873 (D. Idaho 1976), petition for cert. filed, 48 U.S.L.W. 3131 (U.S. Aug. 16, 1979) (No. 79-260).

28. 595 F.2d 524 (9th Cir. 1979), 559 F.2d 509 (9th Cir. 1977), petition for cert. filed sub nom., Bryant v. Yellen, California v. Yellen, Imperial Irrigation Dist. v. Yellen, 48 U.S.L.W. 3174 (U.S. Sept. 14, 1979) (Nos. 79-421, -425, -435).

29. 584 F.2d 378, 8 ELR 20910 (9th Cir. 1978), cert. granted, 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (No. 78-738).

30. 357 So. 2d 558 (La. 1978), denying writ to, 356 So. 2d 551 (La. Ct. App.), cert. granted, 47 U.S.L.W. 3554 (U.S. Feb. 21, 1979) (No. 77-1819).

31. __ F.2d __, 9 ELR 20565 (2d Cir. June i5, 1979), petition for cert. filed sub nom., Waterbury Urban Renewal Agency v. Waterbury Action to Conserve Our Heritage, 48 U.S.L.W. 3224 (U.S. Sept. 19, 1979) (No. 79-461).

32. Hodder v. Nuclear Regulatory Comm'n, __ F.2d __, 9 ELR 20058 (D.C. Cir. Dec. 26, 1978), cert. denied, 48 U.S.L.W. 3218 (U.S. Oct. 1, 197.) (NRC need not consider environmental impacts of improbable Class 9 accident); United States v. Smyer, __ F.2d __ (10th Cir. Apr. 2, 1979), cert. denied, 48 U.S.L.W. 3219 (U.S. Oct. 1, 1979) (the terms "ruin" and "object of ambiguity" as used in the Antiquities Act are not unconstitutionally vague); California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181, 9 ELR 20131 (9th Cir. 1979), cert. denied, 48 U.S.L.W. 3221 (U.S. Oct. 1, 1979) (Nevada county's approval of new construction is not subject to height limitations established pursuant to California-Nevada interstate compact regarding the Lake Tahoe Basin).