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Citizens for a Better Env't v. Gorsuch

ELR Citation: 13 ELR 20975
Nos. Nos. 82-1365 et al., 718 F.2d 1117/19 ERC 2057/(D.C. Cir., 10/04/1983) Denial aff'd

The D.C. Circuit affirms the decision of the district court, 12 ELR 20570, that the Natural Resources Defense Council, Inc. v. Train settlement agreement detailing a program for the Environmental Protection Agency (EPA) to develop regulations for controlling discharges of toxic pollutants under the Federal Water Pollution Control Act (FWPCA) does not impermissibly infringe on EPA discretion. The court first rules that in approving the agreement the district court was not required to exclude the "non-statutory" provisions of the agreement, e.g., those portions that required EPA to perform duties not required by the statute. In approving a consent decree, the district court need only determine that the decree is fair to the parties in the public interest, and consistent with the governing statute. The agreement in this case was consistent with the purposes of the FWPCA and it fairly resolved the dispute.

Second, the court rules that the agreement does not impermissibly infringe on EPA's discretion. The agreement does not represent improper judicial intrusion into EPA's discretion since it was largely the work of EPA and other parties. Furthermore, the Supreme Court's Vermont Yankee decision, 8 ELR 20288, does not apply to this case because the court is not ordering EPA to afford more procedural rights to the parties, but is directing EPA to comply with the statute through an agreement EPA entered into voluntarily. The court distinguishes other cases cited by the appellant companies because they do not involve consent decrees and do not support the companies' position on infringement. The agreement does not prescribe the content of the regulations or direct that they be enforced in a certain way. In addition, the court rules that the legislative history of the 1977 amendments to the FWPCA supports the conclusion that Congress implicitly sanctioned the agreement.

Finally, the court upholds the district court's decision denying EPA's cross-motion to modify the agreement, noting that only the companies, not EPA, appealed that ruling.

A dissent would rule that the agreement does infringe on EPA's discretion because it requires EPA to apply criteria and standards and undertake programs not found in the FWPCA. The agreement, by imposing on EPA's discretion, violates the doctrine of separation of powers.

[Related decisions are reported at 5 ELR 20578, 6 ELR 20588, 7 ELR 20547, 8 ELR 20881, 9 ELR 20176, 10 ELR 20803, 12 ELR 20371, 20570 — Ed.]

Counsel for Appellants
Charles F. Lettow, Douglas E. Kliever, Michael A. Wiegard
Clearly, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Stark Ritchie, James K. Jackson, Arnold S. Block
American Petroleum Inst., 2101 L St. NW, Washington DC 20037
(202) 457-7000

Michael B. Barr, Scott Slaughter
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 223-8650

Counsel for Appellees
Barry S. Neuman, Peter R. Steenland, Nancy B. Firestone, Donald W. Stever Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2664

Susan G. Lepow, Bruce M. Diamond
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Ronald J. Wilson, J. Taylor Banks
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Before: WILKEY and WALD, Circuit Judges, and BONSAL,* Senior District Judge for the Southern District of New York.