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

Citation: 14 ELR 20858
No. No. 82-1811, 749 F.2d 307/21 ERC 1913/(6th Cir., 11/09/1984) Rev'd

The court rules that aerial surveillance of Dow's plant by Environmental Protection Agency (EPA) inspectors searching for Clean Air Act violations does not constitute a Fourth Amendment search and is within EPA's statutory authority. The court initially rules that, contrary to the district court's analysis, 12 ELR 20607, the threshold issue in the case is whether there was a search. The court holds that Dow did not have an actual expectation of privacy. There were no objective manifestations that Dow expected to be free from aerial surveillance of the areas photographed, even though the plant is directly in the approach path for a nearby commercial airport. Dow's failure to take any precautions against such surveillance or to cite any confidential activities conducted in the areas belies its assertion of a privacy expectation. The court further holds that even if Dow had an expectation of privacy, it would not be reasonable. The reasonableness question turns on the confidential nature of the activities likely to be conducted in the area into which the government intruded. The outside areas of Dow's plant are more like "open fields" than the interior of homes and offices, where society recognizes a right of privacy. While Fourth Amendment protection has been extended to outside areas near homes under the doctrine of "curtilage," that doctrine has never been applied to industrial facilities. The court also rejects Dow's claim that the government's use of enhanced viewing technology makes the surveillance a search, pointing out that Dow did not specify any privacy interests invaded as a result of the high-resolution photographic study. Finally, the court rules that EPA's aerial surveillance is authorized by §114 of the Clean Air Act. Although the statute does not expressly sanction such investigative measures, neither does it prohibit them. EPA's general investigative authority is broad enough to authorize aerial observation so long as it does not intrude into areas protected by the Fourth Amendment.

Counsel for Appellant
Anne S. Almy, Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Counsel for Appellee
Jane Gootee
Legal Department
Dow Chemical Co., 1111 Washington St., Midland MI 48640
(517) 636-2663

Before: LIVELY, Chief Judge; MERRITT, Circuit Judge; HORTON, District Judge.*