Dow Chemical Co. v. U.S. By and Through Burford

• Decision Date: 09 November 1984
• Docket Number: No. 82-1811,82-1811
• Citation: 749 F.2d 307
• Parties: , 53 USLW 2261, 14 Envtl. L. Rep. 20,858 DOW CHEMICAL COMPANY, Plaintiff-Appellee, v. UNITED STATES of America, By and Through Anne M. BURFORD, Administrator, Environmental Protection Agency, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 307

749 F.2d 307

21 ERC 1913, 53 USLW 2261, 14 Envtl.

L. Rep. 20,858

DOW CHEMICAL COMPANY, Plaintiff-Appellee, v. UNITED STATES of America, By and Through Anne M. BURFORD,

Administrator, Environmental Protection Agency,

Defendant-Appellant.

No. 82-1811.

United States Court of Appeals, Sixth Circuit.

Argued July 12, 1984.

Decided Nov. 9, 1984.

Jose R. Allen, Anne S. Almy (argued), Dirk D. Snel, Environmental Defense Section, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Jane Gootee (argued), Bernd W. Sandt, Legal Dept., Dow Chemical Co., Midland, Mich., for plaintiff-appellee.

Steven D. Ellis, Mountain State Legal Foundation, Denver, Colo., amicus curiae.

Before LIVELY, Chief Judge, MERRITT, Circuit Judge, and HORTON, District Judge. ^*

MERRITT, Circuit Judge.

In investigating Dow Chemical Company for possible violations of the Clean Air Act, the Environmental Protection Agency caused aerial photographs of Dow's 2000-acre Midland, Michigan plant to be made by a private aerial survey company. Upon learning of the EPA flyover, Dow sought declaratory and injunctive relief in the United States District Court for the Eastern District of Michigan. On cross-motions for partial summary judgment, the District Court held that EPA's detailed aerial photography was an unreasonable search and seizure under the Fourth Amendment. The District Court, 536 F.Supp. 1355, permanently enjoined EPA from conducting future aerial surveillance and photography of Dow's Midland, Michigan plant. We hold that the photographic flyover did not constitute a Fourth Amendment search and was not outside the EPA's statutory authority.

I.

The EPA began an investigation of Dow's Midland, Michigan plant during the latter part of 1977. The investigation focused on whether emissions from two coal- burning power houses violated the federal air quality standards established under the Clean Air Act.

On September 9, 1977, EPA made an on-site inspection of Dow's power plants. EPA later requested and received from Dow schematic drawings depicting both the physical layout of the power houses and the boilers and turbines within the power houses. EPA then called Dow to arrange a second inspection. Dow refused to grant entry for this inspection upon hearing that EPA inspectors planned to take photographs of the plant. After being denied entry, EPA informed Dow that it would consider seeking a search warrant to gain access to the plant.

EPA did not secure a warrant; instead, on February 6, 1978, EPA contracted with Abrams Aerial Survey Corporation, a private company located in Lansing, Michigan, to take aerial photographs of the Dow plant. EPA's stated purposes for the aerial surveillance were to create visual documentation of smokestack emissions and to obtain perspectives on the layout of the plant and its relationship to the surrounding geographic area. EPA directed Abrams to take the pictures at particular altitudes and angles; EPA informed Abrams that emissions would be more visible in early morning or late afternoon, but left the actual time of the flight to Abrams' discretion.

Abrams performed the overflight in the afternoon on February 7, 1978. The aircraft made at least six passes over the plant at altitudes of 12,000, 3,000, and 1,200 feet. Abrams used a Wild RC-10 aerial mapping camera to take approximately 75 color photographs of various parts of the Dow plant. Because of Abrams' sophisticated photographic equipment, the photographs contain vivid detail and resolution; some of the photographs can be enlarged to a scale of 1 inch equals 20 feet or greater, without significant loss of detail or resolution. The District Court found that when enlarged in this manner and viewed under magnification, the photographs show equipment, pipes and power lines as small as 1/2 inch in diameter.

EPA did not notify Dow either before or after the flight. When Dow learned of the event a few weeks later, from sources other than EPA, Dow filed this action.

The District Court reasoned that once it is established that an administrative search occurred, "[t]he question [turned] on whether EPA's authority under the Clean Air Act meets 'the sufficiently comprehensive and defined' criteria of Donovan v. Dewey ... or whether the search violated a reasonable expectation of privacy." 536 F.Supp. at 1360. The District Court concluded that Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978), controlled the present case, and that an administrative search requires a warrant, unless the search falls into one of several narrow and well-defined exceptions to the warrant requirement. In the District Court's view, EPA's search of Dow's chemical plant did not fit any of these exceptions. Hence, the Court found that EPA's aerial photography of Dow's Midland plant was an unreasonable search proscribed by the Fourth Amendment.

Although the Court "[was] fairly certain that the Fourth Amendment issue raised in this case is properly resolved on the basis of an administrative inspection analysis alone," 536 F.Supp. at 1363, nevertheless, it considered it useful to "alternately review the facts [in Dow ] under the framework of Katz." Id. According to the District Court, the search of Dow's Midland plant was unreasonable because EPA's aerial photography invaded Dow's reasonable expectation of privacy in the "interior regions of its plant"--meaning by this phrase, the open, outdoor spaces between plant buildings. The Court concluded that the photographic equipment used by EPA's agents constituted "enhanced viewing" that invaded Dow's reasonable expectation of privacy in these outdoor regions. Additionally, the search was unreasonable because EPA's needs in preventing pollution, though legitimate, were outweighed by Dow's reasonable expectation of privacy.

Lastly, the District Court held that the Clean Air Act did not authorize EPA to institute aerial surveillance of chemical plants. Hence, by conducting such surveillance, EPA exceeded its statutory authority under the Act.

Therefore, two questions are presented by this appeal. First, we must decide the constitutional issue of whether there was an unreasonable search under the Fourth Amendment. Second, did EPA exceed its statutory authority under the Clean Air Act by conducting the aerial photography?

II.

The Fourth Amendment provides for "people to be secure in their persons, houses, papers and effects against unreasonable searches ... and [that] no warrant shall issue but upon probable cause ...." U.S. CONST. amend. IV. The U.S. Supreme Court held nearly twenty years ago that these protections apply, at least in part, when a governmental agency conducts an administrative search of a commercial facility. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). More recently, in Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Court clarified the law concerning administrative searches and held that when government action constitutes a Fourth Amendment "search," the agency must get an administrative warrant, or, subject to certain exceptions, the search will be deemed unreasonable. ¹ If the government action in this case--EPA's aerial photography of Dow Chemical's Midland, Michigan plant--constitutes a Fourth Amendment "search," then Barlow's controls, and EPA's warrantless search violated Dow's Fourth Amendment rights. If, on the other hand, the aerial photography was not a search, then EPA's aerial observation did not violate the Fourth Amendment. The question before this court then is whether EPA's aerial photography was sufficiently intrusive to constitute a "search" triggering the warrant clause of the Fourth Amendment.

The issue of whether there was a search is a threshold requirement of Fourth Amendment analysis. To be entitled to Fourth Amendment protection, it is first necessary to determine whether there was a "search," a term of art with special constitutional significance. Traditionally, in defining what constituted a search, the Supreme Court interpreted the Fourth Amendment as primarily protective of property rights; a trespass was a necessary condition for determining whether a search had occurred. See Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). The Supreme Court modified this property based concept in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz defines what constitutes a search with a two-prong test: first, the person claiming Fourth Amendment protection must prove that he or she had an actual, or a subjective, expectation of privacy in the area intruded upon by the government. Second, that subjective expectation must be one that society would deem reasonable. The Katz doctrine therefore protects an individual's actual privacy interest when that interest is reasonable. In the instant case, we must determine whether the government's aerial photography of Dow's Midland plant intruded upon Dow's actual and reasonable expectation of privacy in the spaces between its buildings, or in the words of the District Court, "in the interior regions of its plant."

Before applying the Katz analysis to this case, it is important to note that the word "reasonable" is used in Fourth Amendment analysis in two different ways, and that these two ways must be separated in order to avoid confusion. A "reasonable search" is different from a "reasonable expectation of privacy." The former refers to whether "probable cause" existed or whether the officers exceeded the limits of the warrant. The latter determines whether there was a Fourth Amendment "search" at all and focuses on whether the human relationships that normally exist at the place inspected are based on intimacy, confidentiality, trust or solitude and hence give rise to a "reasonable"...