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Natural Resources Defense Council v. Zeller

Citation: 12 ELR 21116
No. No. 82-8570, 688 F.2d 706/18 ERC 1724/(11th Cir., 09/21/1982)

The Eleventh Circuit reverses a preliminary injunction granted by the district court, ruling that an agreement between the Environmental Protection Agency (EPA) and the Department of Energy allowing site preparation for the Clinch River breeder reactor prior to preparation of a final environmental impact statement (EIS) and issuance of a national pollutant discharge elimination system permit is valid. The court rejects appellees' argument that the agreement is not legally binding. The record below provided an insufficient factual basis upon which to determine whether EPA would seek to enforce the agreement. In addition, as a matter of law, the agreement is legally binding because (1) it contains effluent limitations enforceable under the citizen suit provision of the Federal Water Pollution Control Act, (2) it can be enforced under Executive Order 12088, and (3) EPA can refuse to issue the permit.

The court also rejects the argument that the agreement is invalid under EPA regulations because signed prior to issuance of a final EIS. The regulations and the preamble to the regulations indicate that construction could commence prior to completion of the environmental review process and without an agreement. Therefore, it is a reasonable interpretation that construction can commence with an agreement that requires compliance with environmental considerations. The court also rules that appellees have offered no evidence to contradict the EPA Administrator's conclusions that site preparation will have insignificant environmental effects. Finally, the court rules that the district court has no jurisdiction to rule that the agreement violates the National Environmental Policy Act, since that is a challenge to the regulations themselves, which are already on review before the D.C. Circuit.

Counsel for Appellants
Curtis Anderson, Ass't U.S. Attorney
1800 Richard B. Russell Bldg., 75 Spring St. SW, Atlanta GA 30303
(404) 221-6954

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

Bruce Diamond
Office of General Counsel
Environmental Protection Agency, Washington, DC 20460
(202) 382-4134

Counsel for Intervenors-Appellants
G. Lee Garrett Jr.
Hansell, Post, Brandon & Dorsey
3300 First Atlanta Tower, Atlanta GA 30383
(404) 581-8000

Counsel for Appellees
J. Taylor Banks
Natural Resources Defense Council, Inc.
1725 I St. NW, Suite 600, Washington DC 20006
(202) 223-8210

Lee L. Bishop
Harmon & Weiss
1725 I St. NW, Suite 506, Washington DC 20006
(202) 833-9070

Before RONEY, FAY and VANCE, Circuit Judges.