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Colorado v. Department of the Interior

Citation: 19 ELR 21127
No. Nos. 87-1265, -1266, 880 F.2d 481/30 ERC 1044/(D.C. Cir., 07/14/1989)

The court rules that the scope of the Interior Department's "Type A" regulations for assessing natural resource damages under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 and Federal Water Pollution Control Act § 311(f) reasonably implement congressional intent, but remands the rules to the Interior Department for revision in accordance with a decision in the companion case on Type B regulations, Ohio v. United States Department of the Interior. Type A regulations are simplified procedures requiring minimal field observation, and the Type B regulations are protocols for individualized damage assessments. The court first holds that it has jurisdiction to consider this lawsuit. Although the Interior Department may promulgate additional Type A regulations in the future, the Department asserts that existing Type A regulations satisfy CERCLA's requirements, so this court has jurisdiction under the judicial review provisions of CERCLA § 113(a). The court next holds that the type A regulations are not invalid even though they apply only to minor, point source discharges near the water surface of coastal or marine environments. Although this is a narrow class of cases, CERCLA's mandate is ambiguous and the available scientific data and computer technology are limited. The legislative history indicates that Congress intended to give the Interior Department leeway to exercise its professional discretion, and though some senators spoke against the regulations during CERCLA reauthorization in 1986, the remarks are unconnected with passage of relevant portions of CERCLA.

Nonetheless, the Type A regulations suffer from the same flaws as the Type B regulations. The Type A rules impermissibly rely exclusively on lost use values.

[The companion case appears at 19 ELR 21099. The brief for states and environmental groups is digested at ELR PEND. LIT. 66001.]

Counsel for Petitioners
Michael R. Hope, Deputy Attorney General; James D. Ellman, Ass't Attorney General
CERCLA Litigation Section, Colorado Department of Law
1560 Broadway, Ste. 250, Denver CO 80202
(303) 894-2299

Erik D. Olson
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 637-3739

Counsel for Respondents
Margaret Kane Harrington
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before: WALD, Chief Judge, and ROBINSON and MIKVA, Circuit Judges.