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Dow Chem. Co. v. United States ex rel. Gorsuch

Citation: 12 ELR 20607
No. No. 78-10044, 536 F. Supp. 1355/17 ERC 1273/(E.D. Mich., 04/19/1982)

The court holds that the Environmental Protection Agency's (EPA's) warrantless aerial photography of plaintiff's chemical manufacturing plant both violated the Fourth Amendment's prohibition against unreasonable searches and lacked authorization under §114 of the Clean Air Act. The court first notes that EPA conceded that the overflight constituted a search and that it was conducted without a warrant. There are two relevant exceptions to the rule that an unconsented, warrantless administrative search is a per se violation of the Fourth Amendment. On exception, allowing warrantless searches where the federal regulatory presence concerning a given business is "sufficiently comprehensive and defined" that a person in that business should expect regular inspections, is not applicable because the chemical industry is not pervasively regulated under the Clean Air Act. The language of §114 of the Clean Air Act and its legislative history support the conclusion that it was not intended to authorize warrantless entry. The second exception is where the inspected party lacks a reasonable subjective expectation of privacy. The court rules that Dow's extensive security system and its plant layout, designed to shield some of the photographed areas from public scrutiny, demonstrate the requisite expectation. It then rules that this expectation was reasonable. EPA's high-quality aerial photography, which is capable of enlargement revealing small features in interior areas of the facility, is the type of surveillance from which society reasonably expects constitutional protection. The court next rules that, for the same reasons that it violated Dow's reasonable expectation of privacy, the EPA overflight does not qualify for the "open fields" exception to the prohibition against warrantless searches. After granting Dow's motion for summary judgment on its Fourth Amendment claim, the court declines to grant summary judgment on a Fifth Amendment taking claim because of unresolved factual issues. Turning to Dow's statutory claims, the court rules that §114 of the Clean Air Act does not authorize the Agency to use aerial photographic surveillance. The language of the statute evinces a congressional intent to limit inspections to announced on-site visits or off-site observations only of things visible to the general public. While it agrees that EPA's authority to implement so broad and complex a statute must be construed broadly, the court declines to allow the Agency to utilize authority clearly not conferred by the statute.

Counsel for Plaintiff
Jane Gootee
Dow Chemical Co.
2030 Dow Ctr., Midland MI 48640
(517) 636-0213

Counsel for Defendants
Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Daniel Berry, Michael Murchison
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134