4 ELR 20491 | Environmental Law Reporter | copyright © 1974 | All rights reserved

Air Pollution Variance Board of Colorado v. Western Alfalfa Corp.

No. 73-690 (U.S. May 20, 1974)

Applying the "open fields" exception to the Fourth Amendment approved in Hester v. United States, 265 U.S. 52, 59, that Supreme Court unanimously rules that the Fourth Amendment is not violated when a state health inspector enters a corporation's outdoor premises without its consent to take opacity readings of stack emissions. The decision of the Colorado Court of Appeals, which had reversed the cease-and-desist order entered against the company by the state Air Pollution Variance Board, is reversed and the case remanded. The Court, per Douglas, J., holds that this action on the part of the field inspector is not an unreasonable search within the meaning of the Fourth Amendment since the inspector did not enter respondent's buildings but merely saw what anyone who is near the plant can see in the sky. The Court also rejects respondent's argument that the inspector's action constitutes an invasion of privacy. Questions concerning the legality of the state inspection in light of due process requirements under the state constitution are left open on remand.

Counsel for Petitioners
John P. Moore Attorney General
William Tucker Asst. Attorney General
John E. Bush Deputy Attorney General
John Brown Special Asst. Attorney General
State Capitol
200 East Colfax Avenue
Denver, Colo. 80203

Counsel for Respondents
Donald D. Cawelti
Lee, Bryans, Kelly & Stanfield
Room 990, 550 Fifteenth Street
Denver, Colo. 80202

Amicus Curiae for the United States urging reversal
Robert H. Bork Solicitor General
Wallace H. Johnson Asst. Attorney General
Harriet S. Shapiro Asst. to Solicitor General
Edmund B. Clark
Henry J. Bourguignon
Justice Department
Washington, D.C. 20530

Amicus Curiae for California urging reversal
Evelle J. Younger Attorney General
Robert H. O'Brien Asst. Attorney General
Nicholas C. Yost
C. Foster Knight
Daniel J. Taaffe Deputy Attorneys General
5600 State Building
217 West First Street
Los Angeles, Ca. 90012

Amicus Curiae for Ohio urging reversal
William J. Brown Attorney General
Richard P. Fahey
John Eufinger Asst. Attorneys General
State Office Building
65 South Front Street
Columbus, Ohio 43215

[4 ELR 20491]

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

An inspector of a Division of the Colorado Department of Health entered the outdoor premises of respondent without its knowledge or consent. It was daylight and the inspector entered the yard to make a Ringelmann1 and opacity reading of plumes of smoke being [4 ELR 20492] emitted from respondent's chimneys. Since that time Colorado has adopted a requirement for a search warrant for violations of air quality standards.2 At the time of the instant inspection the state law required no warrant and none was sought. Indeed the inspector entered no part of respondent's plant to make the inspection.

A federal Act under the administration of the Environmental Protection Agency sets certain air quality standards, 42 U.S.C. § 1857. The States have the primary responsibility to assure the maintenance of air quality standards, 42 U.S.C. § 1857c-2(a). Yet if the EPA has in effect "an applicable implementation" plan, a State may not adopt or enforce a "less stringent" one, 42 U.S.C. § 1857d-1. There is no conflict between a federal standard and state action, the sole question presented being whether Colorado has violated federal constitutional procedures in making the inspection in the manner described.

Respondent requested a hearing before Colorado's Air Pollution Variance Board. The Board held a hearing and held that respondent's emissions were in violation of the state act. While the test challenged here was made on June 4, 1969, the Board after noting that Colorado's Health Department had been in conference with respondent "in regard to its air pollution violations since September, 1967," after approving the readings made by the field inspector on the day in question, and after holding that tests submitted in rebuttal by respondent were not acceptable3 denied a variance and entered a cease and desist order. Respondent sought review in the District Court for Weld County which set aside the board's decision. The Court of Appeals affirmed. 510 P.2d 907; and the Supreme Court denied certiorari. Colo.

The petition for certiorari which we granted, 411 U.S. , raised three questions, presenting in differing postures questions under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643.

The main thrust of the opinion of the Court of Appeals is directed at the Fourth Amendment problem. It held that under Camera v. Municipal Court, 387 U.S. 523, and See v. City of Seattle, 387 U.S. 541, the act of conducting the tests on the premises of respondent without either a warrant or the consent of anyone from respondent constituted an unreasonable search within the meaning of the Fourth Amendment. We adhere to Camara and See but we think they are not applicable here. The field inspector did not enter the plant or offices. He was not inspecting stacks,4 boilers, scrubbers, flues, grates, or furnaces; nor was his inspection related to respondent's files or papers. He had sighted what anyone in the city who was near the plant could see in the sky — plumes of smoke. The Court in Hester v. United States, 265 U.S. 52, 59, speaking through Justice Holmes refused to extend the Fourth Amendment to sights seen in "the open fields." The field inspector was on respondent's property but we are not advised that he was on premises from which the public was excluded. Under the Noise Control Act of 1972, 42 U.S.C. (Supp. II) § 4901 et seq., an inspector may enter a railroad right-of-way to determine whether noise standards are being violated. The invasion of privacy in either that case or the present one, if it can be said to exist, is abstract and theoretical. The EPA regulation for conducting an opacity test requires the inspector to stand at a distance equivalent to approximately two stack heights away but not more than a quarter of a mile from the base of the stack with the sun to his back with a vantage point perpendicular to the plume; and he must take at least 25 readings, recording the data at 15 to 30 second intervals. Depending upon the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the "open fields" exception to the Fourth Amendment approved in Hester.

The Court of Appeals went on to say that since respondent was not aware that the inspector had been on the premises until the cease and desist notice, the hearing it received "lacked the fundamental elements of due process of law, since the secret nature of the investigation foreclosed Western from putting on any rebuttal evidence."5

Whether the Court referred to Colorado "due process" or Fourteenth Amendment "due process" is not clear.6 If it is the former, the question is a matter of state law beyond our purview. Since we are unsure of the grounds of that ruling we intimate no opinion on that issue. But on our remand we leave open that7 and any other questions that may be lurking in the case.


1. This test is prescribed by a 10 Colorado Rev. Stat. 66-29-5 (1967 Supp.). It requires a trained inspector to stand in a position were he has an unobstructed view of the smoke plume, observe the smoke, and rate it according to the opacity scale of the Ringelmann chart. The person using the chart matches the color and density of the smoke plume with the numbered example on the chart. The Ringelmann test is generally sanctioned for use in measuring air pollution. See cases collected in Portland v. Fry Roofing Co., 3 Ore. App. 352, 355-358, 472 P.2d 826, 827-829.

2. 11 Colo. Rev. Stat. 1963, 66-29-8(2)(d), Penn. Supp. 1969.

3. The Air Pollution Variance Board after issuing its cease and desist order received a request from respondent for a hearing which hearing was granted and held Sept. 11, 1969.

4. ERA studies indicate that such tests are expensive and may require 300 man-hours of skilled work. 39 Fed. Reg. 9309. And see Schulze, The Economics of Environmental Quality Measurement, 23 Jour. Air Poll. Control Assoc. 671 (1973). 40 CFR §§ 60, 85, Method 9.

5. 510 P. 2d, at 909.

6. In the District Court's opinion it is said that one challenge to the hearing before the variance board was "whether or not due process of law and equal protection of the law contrary to the Fourteenth Amendment of the Constitution of the United States and Section 25, Article 2 of the Constitution of the State of Colorado was denied" by the Board. Colo. .

7. See California v. Krivda, 409 U.S. 33; Department of Mental Hygiene v. Kirchner, 380 U.S. 194; Minnesota v. National Tea Co., 309 U.S. 551.

4 ELR 20491 | Environmental Law Reporter | copyright © 1974 | All rights reserved