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Shell Oil Co. v. Train

Citation: 9 ELR 20023
No. No. 76-1870, 585 F.2d 408/12 ERC 1547/(9th Cir., 11/03/1978)

The Ninth Circuit affirms a lower court's dismissal for lack of subject matter jurisdiction of a challenge to the California Water Quality Control Board's denial of a variance and issuance of a discharge permit under § 402(b) of the Federal Water Pollution Control Act. The assertion that the state agency's action was transformed into federal action by behind-the-scenes coercion on the part of the federal Environmental Protection Agency (EPA) is erroneous. The Act's delegation of permitting authority to states in compliance with federal guidelines is a form of cooperative federalism which is unquestionably constitutional, and application of the concepts of undue influence and duress is inappropriate in this context. Moreover, plaintiff's argument that EPA was the actual force behind the state agency's decision is unsupported by allegations showing anything more than the submission of federal advice to the state agency that the permit be denied, advice which cannot in any way be equated with or construed as coercion. A dissent contends that the complaint simply alleges that EPA made the actual decisions setting the discharge limitations in the state-issued permit, and that this is federal agency action subject to judicial review under the Administrative Procedure Act.

Counsel for Plaintiff-Appellant
Richard D. Brautigam, David M. Heilbron
McCutchen, Doyle, Brown & Enersen
Three Embarcadero Center, 28th Floor, San Francisco CA 94111
(415) 393-2000

Counsel for Defendants-Appellees
James L. Browning, U.S. Attorney
16th Floor, Federal Bldg., 450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before HUFSTEDLER and WALLACE, Circuit Judges, and GRAY,* District Judge.