The Supreme Court: The 1985-86 Term in Review and a Look Ahead

Barnett M. Lawrence

Editors' Summary: The Burger Court, in its final Term, issued seven major decisions on environmental law. These opinions construed provisions of the Clean Air Act, the FWPCA, CERCLA, and the Bankruptcy Code. The opinions also involve the availability of attorneys fees under environmental statutes, the investigatory power of agencies that enforce environmental law, and the future of two species of wildlife. The author reviews these decisions and notes the further development of patterns established by the Court in recent years. The author also reviews the cases scheduled to be heard this Term by the Rehnquist court and discusses the possible impact of Justice Scalia on the Court's ideological balance.

[16 ELR 10325]

The final Term for the Burger Court saw the further development of trends established in recent years. The Court continued its pattern of substantial deference to administrative interpretation of environmental statutes.¹ The Court generally denied review of cases challenging federal agency action, and when it granted review, it upheld the agency action. The issue of the scope of state authority in environmental regulation was again before the Court. The Court continued its tendency to expand on the areas in which states may exercise such authority, even if it runs up against a competing federal interest.² The Court also issued opinions that may have significant impacts on the ability of regulatory agencies and the public to enforce environmental statutes.

In all, the Court denied review³ of over 50 cases on environmental law or related areas during the 1985-86 Term, granted review in 9 cases, and issued 7 decisions. The Court issued opinions construing provisions of the Clean Air Act,⁴ the Federal Water Pollution Control Act (FWPCA),⁵ the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁶ and the Bankruptcy Code.⁷ The decisions also affect the availability of attorneys fees under environmental statutes, the investigatory power of agencies that enforce environmental laws, and the future of two species of wildlife.

The Decisions

Clean Air Act

Although the Court issued no decisions construing the major substantive provisions of the Clean Air Act, it decided two cases that will have important impacts on how the Act is enforced. The Court issued opinions on the Environmental Protection Agency's (EPA's) investigator authority and the availability of attorneys fees under the Act, two key components to an enforcement program. The first decision appears to make EPA's task of uncovering violations of the Act a little easier, while the second may encourage more private enforcement by making the award of attorneys fees available for a wider scope of activities. These decisions, although issued in Clean Air Act cases, also have implications for the enforcement of other environmental statutes.

In Dow Chemical Co. v. United States,⁸, the Court interpreted the scope of EPA's investigatory authority under the Act and the Fourth Amendment. The Court unanimously held that EPA's use of a commercial aerial photographer to take pictures of a Dow Chemical Company manufacturing facility was within the Agency's authority under Clean Air Act § 114(a).⁹ Dow had denied EPA's request for a second on-site inspection of emission levels from the facility's power plants, objecting to EPA's proposal [16 ELR 10326] to photograph the facility. Instead of seeking an administrative search warrant, EPA chose to hire a commercial aerial photographer to get the pictures. The Court ruled that although § 114(a) does not explicitly authorize aerial observation, it expands EPA's general investigative powers. EPA, the Court reasoned, does not require an explicit statutory blessing to employ investigative techniques commonly available to the public.

The Court then held, by a bare majority, that the taking of the aerial photographs without a warrant was not a search under the Fourth Amendment. The Court first noted that warrantless surveillance of private property using sophisticated equipment not generally available to the public, such as satellite technology, might be unconstitutional. However, the Court held that photographs taken from a commercial camera commonly used in mapmaking, revealing only outlines of buildings and equipment, are permissible. The Court reasoned that the open areas of the complex are comparable to an open field and thus are open to the view of aircraft lawfully in the public airspace.

In Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,¹⁰ the Court sent mixed signals to groups and individuals who seek to enforce the Act through citizen suits.¹¹ The Court first ruled that § 304(d) authorizes attorneys fees for time spent by counsel in administrative proceedings. The court found § 304(d) analogous to § 1988 of the Civil Rights Act,¹² which has been held to authorize fees for post-judgment monitoring of consent decrees. The Court thus concluded that plaintiffs are entitled to recover fees for time spent by counsel in state and federal regulatory proceedings to enforce a consent decree.¹³

The Court's other holding in this case, however, may partially offset the benefits to private enforcers of the Act. The Court held that the "lodestar value"¹⁴ should not ordinarily be adjusted upward to reflect superior performance by counsel. The Court observed that under its previous decisions,¹⁵ the lodestar value is normally reflected in the reasonable hourly rate. The Court reasoned that the availability of an enhanced lodestar is not necessary to serve the purpose of the fee-shifting statutes of enabling plaintiffs to secure legal assistance. Thus, the Court concluded, an enhancement of the lodestar based on counsel's performance is permissible only in rare and exceptional cases when the claim is supported by specific evidence on the record and detailed findings by the lower courts. The Court reserved until next Term its decision on the issue of whether the lodestar figure can be enhanced based on the likelihood of success.¹⁶

On balance, enforcement of environmental law should be slightly improved as a result of the Court's two Clean Air Act decisions. After the expansive reading of EPA's investigatory power under the Act in Dow, the Agency may begin to use more aggressive investigatory techniques to uncover violations of the Act. The decision may also facilitate EPA's efforts to investigate violations of other statutes that contain similar provisions.¹⁷ Moreover, state environmental agencies are likely to benefit in their own enforcement efforts.

The impact of Delaware Valley on citizen enforcement is less clear. While time spent in administrative proceedings is now clearly compensable, removing the lure of enhanced lodestars for superior performance in all but the rarest cases¹⁸ might make it more difficult for some individuals or groups to attract highly qualified counsel.

Federal Water Pollution Control Act

Early last Term, the Court issued its first decision construing the Army Corps of Engineers' dredge and fill regulation program under FWPCA § 404. In United States v. Riverside Bayview Homes, Inc.,¹⁹ the Court upheld the Corps' broad reading of its § 404 jurisdiction over wetlands. The Court initially rejected the Sixth Circuit's conclusion that a narrow reading of the Corps' authority was necessary to avoid a regulatory taking.²⁰ The Court then held that the Corps' exercise of jurisdiction over land that was not periodically inundated was valid under the Corps' regulatory definition of wetlands. Further, the Corps' regulations were reasonable in view of the FWPCA's statutory language, policies, and legislative history. Riverside has important implications for both takings law and wetlands regulation.²¹

CERCLA

In Exxon v. Hunt,²² the Court was faced with discerning Congress' view of the respective roles of the federal and state governments under CERCLA in cleaning up the nation's hazardous waste sites. In a challenge to the New Jersey Spill and Compensation and Control Act, the Court ruled that CERCLA § 114(c)²³ preempts state superfunds financed by special taxes and used to pay expenses that could be paid under CERCLA. Congress reacted to this decision by simply removing § 114(c) from the statute in its 1986 authorization package.²⁴ Under the new law, no [16 ELR 10327] portions of state superfunds are preempted and states are free to institute tax plans to raise as much revenue for their cleanup programs as they wish. Thus, the Exxon decision remains important principally to the extent that it sheds some light on what Congress intended when it deleted § 114(c) in the 1986 reauthorization.²⁵

Bankruptcy Code

The conflicts between bankruptcy law and environmental law have become the subject of much litigation in recent years.²⁶ The liberalization of the requirements for bankruptcy under the Bankruptcy Reform Act of 1978, coupled with the increasing vigilance of state and federal governments in enforcing their hazardous waste laws, has increased the tension between the two areas of law. Two cases have risen to the Supreme Court.²⁷ In Midlantic National Bank v. New Jersey Department of Environmental Protection,²⁸ decided last Term, the court held that a bankruptcy trustee may not abandon²⁹ a hazardous waste site when such abandonment would violate reasonable state health and safety laws. While the Court concluded that Congress did not intend to overturn long-standing restrictions on the common law abandonment power, it reserved judgment on whether some state laws might be so onerous as to impermissibly interfere with bankruptcy adjudication. The Court emphasized that this exception to the abandonment power is a narrow one that applies only to violations of state laws that are reasonably calculated to protect the public health or safety from imminent and identifiable harm.³⁰ After Midlantic National Bank, an insolvent polluter can no longer use bankruptcy to walk away from contaminated property.³¹

Wildlife

The eagle and the whale have become perhaps the two best-known symbols of the wildlife conservation movement. The Court issued opinions last Term that will affect the future of both species. In United States v. Dion,³² a unanimous Court held that the Bald and Golden Eagle Protection Act³³ abrogates rights granted in an 1858 treaty to the Yankton Sioux Tribe to hunt bald and golden eagles on the Yankton reservation. Thus, a member of the tribe could not assert treaty hunting rights as a defense to a prosecution for violation of the Endangered Species Act.³⁴ The Court may have relaxed the required showing for when a statute abrogates Indian treaty rights. While some past cases required an explicit statement by Congress, the test set out in Dion is whether there is clear and reliable evidence that Congress actually considered the conflict between the statute and the treaty rights, and resolved the conflict by abrogating the treaty.

In Japan Whaling Association v. American Cetacean Society,³⁵ the Court ruled that neither the Pelly nor the Packwood Amendment³⁶ requires the Secretary of Commerce to certify to the President that a foreign nation is "diminishing the effectiveness" of an international fishery conservation program whenever that country exceeds the quotas imposed by the International Whaling Commission. The Court noted that once the Secretary makes a determination that a foreign nation is "diminishing the effectiveness" of the International Convention for the Regulation of Whaling (ICRW), he must report the offending nation to the President, who must then impose sanctions on that nation. However, the Court ruled that the initial determination of whether a nation is "diminishing the effectiveness" of an international fishery conservation program is within the Secretary's discretion. The Secretary, the Court concluded, did not abuse that discretion when he decided that Japan's agreement to end its commercial whaling by 1988 would do more to promote the effectiveness of the ICRW than the imposition of sanctions.

Lessons from 1985-86 Term

The Court followed its pattern of deferring to administrative interpretations in Dow Chemical Co., Riverside Bayview, and Japan Whaling Association. As a result, the regulated community and private groups are likely to increase their focus on the administrative process. Further, if Congress is not pleased with how agencies are interpreting its laws, it cannot rely as heavily on the courts to resolve the situation — more specific or amended legislation may be necessary.

The Court decided two cases involving conflicts between state and federal interests. In Midlantic National Bank, the Court continued its tendency to approve of the exercise [16 ELR 10328] of state environmental authority, even though the exercise of that authority arguably conflicts with the federal interest in an efficient bankruptcy process. However, in Exxon, the Court limited, at least temporarily, the role of the states in funding the cleanup of the nation's hazardous waste sites.

The Court issued two opinions with implications for the enforcement of environmental statutes. The Court's expansive reading in Dow of EPA's investigative power under the Clean Air Act may promote the use of more aggressive investigatory techniques by federal and state regulatory agencies. The impact on citizen enforcement of the Court's rulings in Delaware Valley on the availability of attorneys fees is hard to predict. While the Court's ruling that time spent by counsel in administrative proceedings is compensable may promote citizen enforcement, its imposition of a strong presumption against enhanced lodestars could have the opposite effect.

Major Cases Set for Review in 1986-87 Term

The Rehnquist Court began its first Term on October 6, 1986. The Court will hear several important environmental cases carried over from last Term. These cases involve attorneys fees, preemption of permit requirements in California's coastal management program, the availability of state tort remedies in interstate waters under the FWPCA, takings law, the availability of a jury trial in FWPCA suits for civil penalties, a court's duty to impose injunctive relief when it finds a violation of an environmental law, the right to appeal a district court's denial of intervention as of right in litigation over a hazardous waste site, and EPA's authority to enter private property to clean up hazardous waste sites.

The Court must resolve the issue it reserved from last Term in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air³⁷ — whether the lodestar figure in an attorneys fee award under the Clean Air Act and comparable statutes can be increased based on the likelihood of success in the case. The Third Circuit³⁸ had affirmed the district court's application of a multiplier of two to the lodestar value calculated for certain stages of the underlying litigation based on the low likelihood of success that plaintiffs faced in those stages. The Court, noting a conflict in the Circuits, reserved the issue for reargument for the 1986-87 Term.³⁹ Based on its reasoning for imposing a strong presumption against enhancing the lodestar figure for superior performance, it seems likely that the Court will impose a similar presumption against enhancing the lodestar based on the risk of loss. Under the logic from its earlier opinion, the Court would ask whether an adjustment of the fee based on the risk of loss is necessary to sever the statutory purpose of enabling plaintiffs to secure legal assistance. Although it is arguable that some attorneys are attracted to "high risk" cases if there is hope of an enhanced fee, the answer is likely to be no.

In California Coastal Commission v. Granite Rock Co., the Court again must decide what role states play in regulating private activity on federal land.⁴⁰ The Court will review a Ninth Circuit decision⁴¹ holding that the Mining Law of 1872⁴² and Forest Service regulations preempt the provision in California's state program under the Coastal Zone Management Act⁴³ that requires operators to obtain a state permit before mining on national forest land in California's coastal zone. The Court must decide whether the Mining Act preserves a role for states in regulating private mining on federal lands.

Continuing with the preemption theme, the Court will determine whether the FWPCA preserves state tort remedies for damages from interstate water pollution, and if so, which state's law applies. The Court will review a Second Circuit decision holding that the FWPCA preserves state remedies and that the law of the state where the alleged injury took place applies.⁴⁴ The Second Circuit's holding is at odds with a Seventh Circuit decision holding that the law of the polluter's state applies.⁴⁵ The Court's opinion in this case should resolve the remaining unsettled issues on the law of interstate water pollution.⁴⁶

In Tull v. United States, the Court will review a Fourth Circuit decision⁴⁷ holding that a defendant has no Seventh Amendment right to a jury trial in an FWPCA action for civil penalties. The government argues that this action by the Corps of Engineers under FWPCA § 404 is one of regulatory and statutory interpretation that is for resolution by a court, not a jury. The defendant, noting the growing number of statutes allowing federal agencies to seek civil penalties, argues that a jury trial should be available when an agency has the power to sue a private party for substantial damages.

The Court may also review the Ninth's Circuit rule that a preliminary injunction must issue when a court finds that a federal agency has violated the procedural requirements of an environmental protection statute, absent "unusual circumstances."⁴⁸ The Court will review a Ninth Circuit opinion⁴⁹ holding that the district court violated this rule [16 ELR 10329] when it refused to enjoin oil and gas exploration off the Alaska coast even though it found a strong likelihood that the Secretary of the Interior had failed to comply with § 810 of the Alaska National Interest Lands Conservation Act⁵⁰ by not determining whether the activities would affect subsistence rights of native Alaskans.

In agreeing to hear another Ninth Circuit decision in which environmental interests prevailed, the Court must determine whether a citizen group can seek an immediate appeal of a federal district court order that denied the group's motion for intervention as of right but allowed limited permissive intervention. The Ninth Circuit held that the group could appeal the district court's denial of its motion to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) in a case brought by the government to compel responsible parties to clean up a hazardous waste site, even though the district court allowed the group to participate through permissive intervention.⁵¹

The Court will consider a regulatory takings claim when it reviews a Third Circuit decision holding that the Pennsylvania Mine Subsidence Act does not violate the Takings or Contract Clauses of the U.S. Constitution.⁵² A group of mine owners claimed that the law, which requires miners to leave 50 percent of their coal in the ground to prevent subsidence, constitutes a taking of their property without just compensation. The Court must decide whether the Third Circuit properly distinguished the Court's decision in Pennsylvania Coal Co. v. Mahon⁵³ when it held that the law did not work a taking. The Court will also decide the proper standard of review of the miners' claim that the law impairs the rights of surface landowners to sign contracts relinquishing their rights to protection from subsidence.

The Court will again have a chance to decide the issue of whether a monetary remedy is constitutionally required when a regulatory taking is found. While the Court has managed to avoid this question several times in recent years,⁵⁴ the Court has again granted review of a California decision holding that inverse condemnation is not an available remedy for a regulatory taking.⁵⁵

On the first day of the 1986-87 Term, the Court granted review of a Third Circuit decision holding that CERCLA § 104⁵⁶ does not authorize EPA to enter a hazardous waste site on private property to conduct surveys, take samples, and conduct other preliminary activities for a planned $21 million remedial operation.⁵⁷ Based on the Court's broad reading last Term of EPA's investigatory powers under the Clean Air Act,⁵⁸ the Court seems likely to reverse the Third Circuit's ruling. Moreover, the CERCLA reauthorization measure passed by the Congress explicitly expands governmental authority to enter private property in connection with a cleanup action.⁵⁹

Impact of Justice Scalia

The retirement of Chief Justice Burger presented President Reagan with the opportunity to name a new Chief Justice and to appoint his second member of the Court. The President selected Justice Rehnquist to become the Chief Justice and Antonin Scalia of the District of Columbia Circuit as the new Associate Justice. Since Justice Scalia is, in effect, replacing Burger's vote, the Court's ideological balance will likely not be affected. Both men are known as judicial conservatives. Thus, the moderate Justices will continue to hold the key votes.

During his tenure at the D.C. Circuit, Justice Scalia considered several cases involving challenges to regulatory actions taken by EPA and the Interior Department. He recently authored a decision in New York v. Thomas,⁶⁰ the well-publicized acid rain case. Writing for the majority, Scalia held that EPA is not bound by a letter written by a former EPA Administrator to order emissions reductions in states that contribute to acid rain in Canada. In 1984, Justice Scalia wrote the opinion for the court holding that EPA's plan to allow offsets in motor vehicle emission levels among different model years violated the Clean Air Act.⁶¹

1. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 14 ELR 20507 (1984).

2. See Pacific Gas & Electric Co. v. State Energy Conservation & Development Commission, 461 U.S. 190, 13 ELR 20519 (1983).

3. The Court's refusal to review a case can be as significant as an opinion. For example, the Court last Term left standing a Sixth Circuit ruling that EPA is authorized under the Clean Air Act to consider the transport of air pollutants in determining whether a county should be included in an attainment area. Ohio v. Thomas, No. 85-1372, 54 U.S.L.W. 3809, 16 ELR 10232 (June 9, 1986). For summaries of all the Court's activities during the 1985-86 Term, see "In The Supreme Court" at 15 ELR 10371, 10408; 16 ELR 10020, 10050, 10079, 10107, 10125, 10148, 10171, 10231, 10270, 10307.

4. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

5. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

6. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

7. 11 U.S.C. §§ 101-151326.

8. 16 ELR 20679 (U.S. May 19, 1986).

9. 42 U.S.C. § 7414(a), ELR STAT. 42219.

10. 16 ELR 20801 (U.S. July 2, 1986).

11. See Clean Air Act § 304, 42 U.S.C. § 7604, ELR STAT. 42256.

12. 42 U.S.C. § 1988. Although § 1988, which authorizes fees in "any action or proceeding," is arguably broader than § 304(d), which applies to "any action," the Court did not find this difference in the statutory language dispositive.

13. The Court observed that it did not decide whether fees are available for time spent in a federal administrative proceeding if there is no related court action. Delaware Valley, 16 ELR at 20805 n.6.

14. The lodestar approach to calculating attorneys fees involves two steps. First, a lodestar value is determined by multiplying the hours spent on a case by a reasonable hourly rate. Second, the court can adjust the lodestar, either upward or downward, based on the quality of counsel's performance and the likelihood of success.

15. Hensley v. Eckerhart, 461 U.S. 424 (1983); Blum v. Stenson, 465 U.S. 886 (1984).

16. See infra notes 37-39 and accompanying text for a discussion of this aspect of the case.

17. See, e.g., FWPCA § 308, 33 U.S.C. § 1319, ELR STAT. 42130; RCRA § 3007, 42 U.S.C. § 6928, ELR STAT. 42021; CERCLA § 104(e)(1), 42 U.S.C. § 9604(e)(1), ELR STAT. 41946; FIFRA § 9, 7 U.S.C. § 135g, ELR STAT. 42307; TSCA § 11, 15 U.S.C § 2610, ELR STAT. 41345.

18. The dissent contended that it may be virtually impossible for a plaintiff to meet the standard imposed by the Court. Delaware Valley, 16 ELR at 20807.

19. 16 ELR 20086 (U.S. Dec. 4, 1985).

20. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 14 ELR 20365 (6th Cir. 1984).

21. See Comment, The Supreme Court Endorses a Broad Reading of Corps Wetlands Jurisdiction Under FWPCA § 404, 16 ELR 10008 (Jan. 1986).

22. 16 ELR 20396 (U.S. Mar. 10, 1986).

23. 42 U.S.C. § 9614(c), ELR STAT. 41952.

24. H.R. 2005, 99th Cong., 2d Sess., § 114, 132 CONG. REC. H9032 (daily ed. Oct. 3, 1986). The Senate and House conferees reached agreement on a reauthorization package on October 2, 1986. However, President Reagan may veto the bill because of his objections to the funding provisions. Washington Post, Oct. 3, 1986, at 1, col. 1.

25. For a discussion of Exxon and the implications of Congress' deletion of § 114(c) on CERCLA's cleanup program, see Comment, CERCLA Reauthorization: The Wise Demise of § 114(c) and Exxon v. Hunt, 16 ELR 10286 (Oct. 1986).

26. See Comment, Bankruptcy and Environmental Regulations: An Emerging Conflict, 13 ELR 10099 (Apr. 1983); Drabkin, Moorman, & Kirsch, Bankruptcy and the Cleanup of Hazardous Waste: Caveat Creditor, 15 ELR 10168 (June 1985); Morris, State Enforcement of Environmental Laws Against Bankrupt Entities, 16 ELR 10143 (June 1986).

27. In the first, Ohio v. Kovacs, 105 S. Ct. 705, 15 ELR 20121 (1985), the Court ruled that the obligation under an injunction to clean up a hazardous waste site is a debt subject to discharge under the Bankruptcy Code.

28. 16 ELR 20278 (U.S. Jan. 27, 1986).

29. Under § 554 of the Bankruptcy Code, a trustee may abandon burdensome or valueless property of the bankrupt estate. 11 U.S.C. § 554.

30. The courts have begun to explore the scope of this exception. See, e.g., In re Oklahoma Refining Co., No. BK-84-2763-A, slip op. (Bankr. W.D. Okla. July 31, 1986) (courts must consider, but are not strictly bound by, state environmental laws when deciding whether to permit abandonment).

31. See Morris, State Enforcement of Environmental Laws Against Bankrupt Entities, 16 ELR 10143 (June 1986). The author observes that the breadth of the decision in Kovacs on the dischargeability of state law environmental obligations may be limited by the Court's recognition in Midlantic National Bank that the interests of state enforcement may take precedence over those of the bankrupt and the creditors.

32. 16 ELR 20676 (U.S. June 11, 1986).

33. 16 U.S.C. §§ 668-668d, ELR STAT. 41807.

34. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

35. 16 ELR 20742 (U.S. June 30, 1986).

36. The Pelly Amendment to the Fisherman's Protective Act, 22 U.S.C. § 1978, passed in response to enforcement problems under the International Convention for the Regulation of Whaling and other international fishery conservation programs, requires the Secretary of Commerce to certify to the President fishing operations of foreign nations that diminish the effectiveness of one of these programs. The President, in his discretion, may then impose import prohibitions on the offending nation. In response to the failure of the President to impose sanctions authorized by the Pelly Amendment, Congress passed the Packwood Amendment to the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et. seq. to require the imposition of sanctions when the Secretary of Commerce so certifies a nation.

37. See supra notes 10-16 and accompanying text for a discussion of the portion of the case decided last Term.

38. Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 762 F.2d 272, 15 ELR 20475 (3d Cir. 1985), cert. granted sub nom. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, No. 85-5, 54 U.S.L.W. 3223, 15 ELR 10371 (U.S. Oct. 7, 1985) (No. 85-5).

39. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 16 ELR 20801, 20807 (U.S. July 2, 1986).

40. See Secretary of the Interior v. California, 462 U.S. 312, 14 ELR 20129 (1984).

41. Granite Rock Co. v. California Coastal Commission, 768 F.2d 1077, 15 ELR 20919 (9th Cir. 1985), cert. granted sub nom., California Coastal Commission v. Granite Rock, 54 U.S.L.W. 3647, 16 ELR 10125 (U.S. Mar. 31, 1986) (No. 85-1200).

42. 30 U.S.C. §§ 21 et seq.

43. 16 U.S.C. §§ 1451-1464, ELR STAT. 41701.

44. Ouellette v. International Paper Co., 16 ELR 20012 (2d Cir. Nov. 4, 1985), cert. granted sub nom. International Paper Co. v. Ouellette, 54 U.S.L.W. 3630, 16 ELR 10125 (U.S. Mar. 24, 1986) (No. 85-1233).

45. Illinois v. City of Milwaukee, 731 F.2d 403, 14 ELR 20359 (7th Cir. 1984).

46. For a detailed discussion of this litigation, see Comment, State Law Remedies for Interstate Water Pollution: The Legacy of Illinois v. Milwaukee, 16 ELR 10136 (June 1986).

47. United States v. Tull, 769 F.2d 182, 15 ELR 21061 (4th Cir. 1985), cert. granted sub nom. Tull v. United States, 54 U.S.L.W. 3777, 16 ELR 10231 (U.S. May 27, 1986) (No. 85-1259).

48. The Ninth Circuit has found such "unusual circumstances" where issuance of an injunction would cause irreparable harm to the environment. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 15 ELR 20035 (9th Cir. 1984).

49. Village of Gambell v. Hodel, 774 F.2d 1414, 16 ELR 20562 (9th Cir. 1985), cert. granted sub nom. Amoco Production Co. v. Village of Gambell, 54 U.S.L.W. 3793, 16 ELR 10231 (U.S. June 2, 1986) (85-1239); Hodel v. Village of Gambell, 54 U.S.L.W. 3793, 16 ELR 10231 (U.S. June 2, 1986) (No. 85-1406; and Village of Gambell v. Hodel, 54 U.S.L.W. 3793, 16 ELR 10271 (U.S. June 2, 1986) (No. 85-1608).

50. 16 U.S.C. § 3120.

51. United States v. Stringfellow, 755 F.2d 1383, 15 ELR 20402 (9th Cir. 1985); 783 F.2d 821, 16 ELR 20458 (9th Cir. 1986), cert. granted sub nom. Stringfellow v. Concerned Neighbors in Action, 54 U.S.L.W. 3793, 16 ELR 10271 (U.S. June 2, 1986) (85-184).

52. Keystone Bituminous Coal Association v. Duncan, 771 F.2d 707, 15 ELR 20862 (3d Cir. 1985), cert. granted, 54 U.S.L.W. 3630, 16 ELR 10271 (U.S. Mar. 24, 1986) (No. 85-1092).

53. 260 U.S. 393 (1922).

54. See MacDonald, Sommer & Frates v. Yolo County, 16 ELR 20807 (U.S. June 25, 1986).

55. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (Cal. Ct. App. June 25, 1985), cert. granted, 54 U.S.L.W. 3859, 16 ELR 10271 (U.S. June 30, 1986) (No. 85-1199).

56. 42 U.S.C. § 9604, ELR STAT. 41945.

57. Outboard Marine Corp. v. Thomas, 773 F.2d 883, 15 ELR 21094 (7th Cir. Sept. 23, 1985), cert. granted sub nom. Thomas v. Outboard Marine Corp. (U.S. Oct. 6, 1986) (No. 85-1735).

58. See supra notes 10-16 and accompanying text.

59. H.R. 2005, 99th Cong., 2d Sess., § 104(m), 132 CONG. REC. H9032 (daily ed. Oct. 3, 1986) (amending § 104(e)).

60. Nos. 85-5970 et al., slip op. (D.C. Cir. Sept. 18, 1986).

61. Center for Auto Safety v. Ruckelshaus, 747 F.2d 1, 14 ELR 20863 (D.C. Cir. 1984).