Citizens for a Better Environment v. Gorsuch, s. 82-1365
| Citation | 718 F.2d 1117,231 U.S.App.D.C. 79 |
| Decision Date | 04 October 1983 |
| Docket Number | Nos. 82-1365,s. 82-1365 |
| Parties | , 231 U.S.App.D.C. 79, 13 Envtl. L. Rep. 20,975 CITIZENS FOR A BETTER ENVIRONMENT, Dennis L. Adamczyk v. Anne GORSUCH, Administrator, U.S. Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC., v. James I. AGEE, In his Official Capacity as Assistant Administrator for Water and Hazardous Materials Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC., a Non-Profit New York Corporation, et al. v. Anne M. GORSUCH, as Administrator, Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. ENVIRONMENTAL DEFENSE FUND, INC., a Non-Profit New York Corporation, et al. v. Anne M. GORSUCH, as Administrator, Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC. a Non-Profit New York Corporation, et al. v. Anne M. GORSUCH, as Administrator, Environmental Protection Agency Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC. v. James I. AGEE, In his Official Capacity As Assistant Administrator for Water and Hazardous Materials Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. ENVIRONMENTAL DEFENSE FUND, INC., a Non-Profit New York Corporation, et al. v. Anne M. GORSUCH, as Administrator, Environmental Protection Agency Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. CITIZENS FOR A BETTER ENVIRONMENT, et al. v. Anne M. Gorsuch, Administrator, U.S. Environmental Protection Agency, et al. Appeal of AMERICAN IRON AND STEEL INSTITUTE, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. v. Anne M. GORSUCH, Administrator, Environmental Protection Agency, et al. Appeal of ALABAMA POWER COMPANY, et al. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al. v. James I. AGEE, In His Official Capacity as Assistant Administrator For Water and Hazard |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeals from the United States District Court for the District of Columbia(D.C. Civil Action Nos. 75-01698, 75-01267, 73-02153 & 75-00172).
Charles F. Lettow, with whom Douglas E. Kliever, Michael A. Wiegard, Douglas E. McAllister, Richard E. Schwartz, Stark Ritchie, James K. Jackson, Arnold S. Block, Michael B. Barr and Scott Slaughter, Washington, D.C., were on brief, for appellants.
Barry S. Neuman, Atty., Dept. of Justice, with whom Peter R. Steenland, Jr., Nancy B. Firestone, Attys., Dept. of Justice, Michael Brown, Deputy Gen. Counsel, E.P.A., Bruce M. Diamond, Acting Associate Gen. Counsel, and Susan G. Lepow, Asst. Gen. Counsel, E.P.A., Washington, D.C., were on brief, for appellees, Anne M. Gorsuch, et al. Donald W. Stever, Atty., Dept. of Justice, Washington, D.C. also entered an appearance for appellees, Anne M. Gorsuch, et al.
Ronald J. Wilson, with whom J. Taylor Banks, Washington, D.C., was on brief, for appellees, Natural Resources Defense Council, Inc., et al.
William Scott Ferguson, Stamford Ct., entered an appearance for appellees, Olin Corp. in 82-1365 to 82-1368.
Before WILKEY and WALD, Circuit Judges, and BONSAL, * Senior District Judge for the Southern District of New York.
Opinion for the Court filed by Senior District Judge BONSAL.
The intervenors in these consolidated cases, several corporations and trade associations (collectively "the Companies"), 1 appeal from orders of the United States District Court, Flannery, J., (1) denying their motion to vacate or, alternatively, to revise a settlement agreement ("the Agreement") previously approved by the district court, and (2) denying the cross-motion of the Environmental Protection Agency ("EPA" or "the Agency") and its Administrator to modify the Agreement due to changed circumstances. The issue presented by this appeal, as formulated in our earlier opinion, Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1259 (D.C.Cir.1980), 2 is whether the "settlement agreement impermissibly infringes on the discretion Congress committed to the Administrator to make certain decisions under the [Clean Water Act]." For the reasons hereinafter stated, we hold that the Agreement does not impermissibly infringe on the Administrator's discretion and accordingly we affirm the orders of the district court.
The facts are set forth in some detail in our prior decision, 636 F.2d at 1234-38, familiarity with which is assumed. Briefly, the Agreement was entered into by the original parties 3 to these consolidated cases in settlement of the plaintiffs' claims that EPA had failed to carry out its statutory duty to implement certain provisions of the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq. (1976), known in its amended form as the Clean Water Act ("CWA" or "the Act"). 4 Following negotiations between the parties, the proposed settlement agreement was submitted to the district court, which held hearings and received comments from the intervenor Companies, which opposed it. The Agreement was authorized and executed for the government by both EPA and the Department of Justice. After making some changes in the agreement, on June 9, 1976 the court entered a "Final Order and Decree" ("the Decree") approving it as a "just, fair, and equitable resolution of the issues raised." Natural Resources Defense Council, Inc. v. Train, 8 Env't Rep.Cas. (BNA) 2120, 2122 (D.D.C.1976). No appeal was taken from the Decree. Therefore, the issue of whether, in a general sense, the district court acted properly in entering the June 9, 1976 Decree is not now before us. 5
The Agreement contains a detailed program for developing regulations to deal with the discharge of toxic pollutants under the CWA. It required EPA to promulgate guidelines and limitations governing the discharge by 21 industries of 65 specified The district court explained in its Decree that the Companies would be free to influence the content of the proposed regulations by participating in the rulemaking proceedings and then could attack the legality of any final regulations in court. 8 Env't Rep.Cas. at 2121. The court also emphasized that EPA and NRDC had modified the Agreement to make clear that the court would not review EPA's "substantive judgments" under it. Id.
pollutants. It also mandated the use of certain scientific methodologies and decision-making criteria by EPA in determining whether additional regulations should be issued and whether other pollutants should be included in the regulatory scheme. It did not specify the substantive result of any regulations EPA was to propose and only required EPA to initiate "regulatory action" for other pollutants identified through the research program. The regulations envisaged by the Agreement were, after full notice and comment, to be promulgated in phases by December 31, 1979 and the industries affected were to comply with them by June 30, 1983.
When EPA's implementation of the Agreement failed to meet the deadlines imposed therein, NRDC moved to have the Administrator held in contempt. Soon after, the Companies moved to vacate the Decree on the grounds that the 1977 Amendments to what became known as the CWA had superseded the Decree and rendered it moot, and that the Decree violated the Administrative Procedure Act's notice and comment provisions. EPA and NRDC then jointly moved for an order modifying the Decree in settlement of NRDC's contempt motion. On March 9, 1979 the district court modified the Decree according to EPA's and NRDC's request and denied the Companies' motion to vacate the Decree. Natural Resources Defense Council, Inc. v. Costle, 12 Env't Rep.Cas. (BNA) 1833 (D.D.C.1979). In general, the modifications granted EPA more time and flexibility to implement the requirements of the Decree in exchange for requiring EPA to provide NRDC more detailed information regarding implementation. Several of the Companies appealed the district court's decision, which we affirmed. We found that Congress did not intend the 1977 Amendments to supersede the Decree, that the district court continued to have the power to enforce the Decree, and that the modifications in the Decree were not "rules" within the meaning of the APA for which EPA had to provide notice and comment. Environmental Defense Fund, Inc. v. Costle, supra, 636 F.2d at 1244, 1251, 1255-56. However, we remanded the case for the district court to consider whether the settlement agreement impermissibly infringes on the discretion Congress committed to the EPA Administrator to make certain decisions under the CWA. Id. at 1258-59.
On remand, the Companies filed a motion to vacate or, alternatively, to revise the Decree on the ground that it impermissibly infringed upon the Administrator's discretion under the CWA. EPA filed a cross-motion to modify the Decree in light of changed circumstances, seeking to extend certain deadlines and to delete from the Decree those provisions compelling the performance of "discretionary" actions by the Agency.
In a memorandum opinion filed February 5, 1982, the district court found that the Agreement "does not impermissibly infringe upon the discretion accorded to the EPA Administrator by Congress." Natural Resources Defense Council,...
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