Kalur v. Resor, Water Quality and NEPA's Application to EPA

In Kalur v. Resor, 1 ELR 20637 (D.D.C. Dec. 21, 1971), the district court held that the Refuse Act Permit Program (RAPP), as implemented in regulations promulgated by the Army Corps of Engineers, conflicted with the 1899 Refuse Act and with the National Environmental Policy Act of 1969. [See ELR 46301 for the Corps' RAPP regulations; ELR 41141 for the 1899 Refuse Act; ELR 41009 for NEPA; and 1 ELR 10009, 1 ELR 10029, and 1 ELR 10133 for previous ELR Comments on RAPP] The Corps had proposed to issue permits for discharges into both navigable and non-navigable streams, but the court held that the Refuse Act, while forbidding any discharge into navigable streams or their tributaries, allowed the Corps to issue permits only for discharges into navigable streams. The court further held that the Corps could not exempt RAPP from the procedural requirements of NEPA. Finally, the court held that the Corps could not pass its responsibilities under NEPA to the Environmental Protection Agency, but must itself engage in the balancing operation which NEPA requires.

The plaintiffs in Kalur were explicitly motivated by a belief that RAPP would slow down any attempt to reach the goal of clean water for the nation. In an article¹ describing the suit, one of the plaintiffs traced the history of the enforcement of the Refuse Act which he characterized as "the only federal law which environmentalists can use in the fight to restore America's waterways." The guidelines the Department of Justice first issued, then withdrew, which would have authorized United States Attorneys to sue under the Act only when violations were accidental rather than continuous, were highlighted. These guidelines, the author suggested, were motivated by "increasingly frequent prosecution of … corporate [political] supporters." The author concluded:

With this background, the government's purpose in proposing the permit program can be understood. Once a person has a permit, he cannot be prosecuted…. Given the government's previous attempts to destroy the effectiveness of the [Refuse] Act, and the Corps' long history of ignoring environmental concerns in its public works programs, could it be seriously contended that the permit program would prevent water pollution? We thought not, and therefore we sued.

The plaintiffs have stated that the system of water pollution control which they favor is for the Department of Justice, in consultation with the Environmental Protection Agency, to promulgate national water standards and announce that Department policy will be to prosecute dischargers who do not meet the standards within the stated periods. No permits at all would be issued.

The government has appealed the Kalur decision. The plaintiffs have cross-appealed, arguing that the District [2 ELR 10026] Court failed to rule on plaintiffs' argument that any discharge into a river impairs the rights reserved to them by the Ninth Amendment to the Constitution. During the pendancy of the appeal, EPA is continuing to process permit applications, although, in conformity to the injunction, no permits have been issued. ELR understands that the court has granted a delay in filing the record on appeal until May 5, 1972.

The Administrator of EPA, William D. Ruckleshaus, has stated that Congress will be asked to provide legislative relief from the requirements of NEPA as applied to RAPP if necessary.

The government believes that the Kalur decision will destroy RAPP and may make the environmentally protective work of EPA more difficult. The administrative burden of preparing full NEPA statements for each RAPP permit (40,000 RAPP permits are expected) is said to be intolerable. Moreover, the Corps' lack of authority to issue permits for discharges on non-navigable streams creates both practical and legal problems in administering any program based on the Refuse Act. Of still greater concern to the government is the suggestion in Kalur, and in two other cases, Sierra Club v. Sargent, 2 ELR 20131 (W.D. Wash., Mar 15, 1972) and Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 1 ELR 20346 (D.C. Cir., 1971) (in dicta), that the procedural requirements of NEPA apply to the Environmental Protection Agency even when it is engaged in environmentally protective regulatory activities.

This Comment considers whether the distinction made by the court in Kalur between permits in navigable and non-navigable streams is sound; whether the court's order in either Kalur or Sargent requires a NEPA statement for each RAPP permit issued; whether Kalur was a well-conceived piece of litigation; and whether NEPA ought to apply to EPA.

The Navigability Issue and Water Quality

The Refuse Act provides:

It shall not be lawful to throw, … any refuse matter … into any navigable water or into any tributary of any navigable water from which the same shall float or be washed into such navigable water … provided … [the Corps of Engineers] may permit the deposit of any material above mentioned in navigable waters … [emphasis supplied]

The court in Kalur read this provision literally to mean that Congress had forbidden completely the discharge of refuse into any non-navigable tributary and had intended to withold authority from the Corps to issue permits for such discharges. Therefore, any discharges into non-navigable streams are irremediably unlawful and subject to the penalties of the Act.

If such a reading of the Refuse Act prevails on appeal, the government will be faced with both a practical and a legal issue each time a permit is requested. First, the factual question whether a stream was navigable would have to be answered. Under present Corps of Engineers definitions of navigability, more than half of the permits upon which applications have been received are for discharges into streams currently classified as non-navigable. Corps spokesmen have stated that new regulations defining navigability are in the process of being prepared. Although a resurvey of streams will be required in many cases to determine whether formerly non-navigable streams will become navigable under the new regulations, it is predicted by the Corps that many streams will be so reclassified. The practical effect of the Kalur distinction between navigable and non-navigable rivers, coupled with the new navigability regulations, is to place many permit applications in doubt. Second, as each permit is issued for discharges into a river of uncertain navigability, the Kalur result raises the possibility that issues of constitutional law would have to be resolved as to the limits of the federal navigation power. Although some might welcome any device to slow down the issuance of permits, it is doubtful that the irrelevant consideration of navigability is the optimal issue to be considered by a court in determining a water quality question. Moreover, in many cases the delay would benefit the discharger who might be permitted to continue discharging while the court decided the navigability issue.

Could the court have ruled differently in making the distinction between navigable and non-navigable rivers in Kalur? As a matter of statutory construction, the court's reading of the Refuse Act has the bare grammatical logic of the words to recommend it. The legislative history of the 1899 Act is obscure² and is particularly unilluminating on this distinction. The 1899 Act was presented to Congress as being merely an opportunity to collect into one act, without substantive changes of law, all the various Rivers and Harbors Acts enacted in the prior decade. Reading the legislative history of those earlier acts suggests that Congress had the issues of navigation and navigational obstructions in mind when the various laws were enacted.³ It seems unlikely that Congress would have had the protection of the pristine quality of non-navigable streams in mind when the 1899 Act was passed. Congress probably intended (to the extent it had any now discernable intentions concerning the 1899 Rivers and Harbors Act) only to make certain that by means of a permit federal control was retained over any person anywhere the federal navigation power ran who threw refuse into a [2 ELR 10027] stream. The 1899 Act has no legislative history of value on this question and is inartfully drawn in a number of instances. Congress may have intended to cover all streams but by faulty drafting omitted certain ones.

If the legislative history is unclear, the policy reasons certainly do not support restricting the Refuse Act's coverage in the way the Kalur court did. Such policy reasons, rather than time-obscured original intent of Congress, ought to be examined. Unfortunately, the court in Kalur failed to do an adequate job.

The Kalur Case and RAPP

The Kalur case proceeded from a belief that the Refuse Act alone was better than RAPP as a method for combating water pollution. Even at the time the case was filed, however, it should have been apparent that this preference for the Refuse Act was problematic. One may concede that the Act was an important rallying point for citizens angry with administrative delay and that some highly successful suits had been brought under it by enterprising United States Attorneys. But the early hope which environmentalists held that it would be the citizens' tool to fight water pollution has been dashed. The perfect law, from the environmentalist's point of view, would be one which set a strict standard, had an easy standard of proof, and could be invoked by a citizen without governmental action. Although the Refuse Act met the first two tests, it is settled law that an individual citizen cannot force the United States Attorney to bring a suit under the Act. Courts have uniformly held that the discretion to bring a suit under the Act lies wholly with the United States Attorney; mandamus to compel him to sue will not lie. Likewise, private attempts to collect the informer's bounty which the Refuse Act offers by means of an action based on qui tam have failed.⁴ Therefore, only where a United States Attorney takes it upon himself — with permission from Washington — to prosecute vigorously might the Refuse Act be effective. Thus, the genuine strengths which the Act possesses are ofno benefit unless the government chooses to invoke them.

By EPA's count, from December 3, 1970 through January 31, 1972 (a period of 14 months), 136 Refuse Act prosecutions (both civil and criminal) were filed. At least 36 of these were for "spills" rather than for ongoing discharges. If the Department of Justice wished to prosecute within a reasonable time the estimated 40,000 permit applicants, it would have to step up its prosecution rate a thousand-fold; moreover, it would have to sustain that rate for over 3 years. Even if only a selection of dischargers from among the 3,000 largest dischargers were prosecuted, there would have to be a commitment of Departmental resources far greater than is likely. Supposing the Department of Justice were to turn upon industry, the Refuse Act is deficient without standards which would come from EPA. Yet, under the holding of the Kalur case itself, standards emanating from EPA would be an unlawful delegation of power from the Corps and thus invalid. The truth which Kalur may have pointed out is that the Refuse Act alone is legally unable to support a water pollution control scheme because of the difficulties of delegation of power created by the Act itself within federal departments.

Of course RAPP was far from being a satisfactory method of hastening improvements in water quality. ELR, in previous Comments, has pointed out shortcomings in the Program. RAPP imported too many of the failings of the Federal Water Pollution Control Act into the Program. The forced marriage between the Refuse Act (which basically is an effluent standard) and the FWPCA, a limping, cumbersome administrative nightmare (based on ambient water quality) was unlikely to be a happy one. While RAPP had the shortcut remedies which the Refuse Act provides, it dragged the failures of the FWPCA with it. One should not support a program which is merely a substitute for effective action.

But the solution which apparently motivated the bringing of Kalur is little better. Since it is unlikely, either as a practical or a political matter, that the Department of Justice would choose to prosecute even a significant percentage of dischargers violating the Refuse Act, the destruction of RAPP by Kalur fails to carry out any goal which environmentalists ought to support.

It is difficult to conceive of a water pollution control system in which most of the dischargers are operating outside the law. A manufacturer who discharged into a non-navigable stream could be unwilling to incur the expense of installing pollution control equipment unless he were quite certain of two things. First, he would have to understand that he had no alternative but to comply. Second, he would have to know that his competitors would also have to meet the same standards. In each respect, the Refuse Act as interpreted by Kalur is deficient in forcing action. As to the first point, a manufacturer can look at the history of the enforcement of the Refuse Act and know that on any kind of "gambler's choice" he stands little chance of having to face prosecution. Moreover, he will understand that his chances of facing prosecution do not materially increase because of the Kalur decision, since it is unlikely that the Justice Department will begin widespread prosecutions. Therefore, the manufacturer will understand that he faces little actual risk of prosecution. As to the second point, the manufacturer knows that since the Refuse Act is enforced by different United States Attorneys, the vigor of is enforcement will vary. If his facility is located on an admittedly non-navigable waterway, he may have competitors who are located on navigable streams where they may obtain permits. Therefore, until he is actually forced to do so, he has no positive [2 ELR 10028] motivation (and much disinclination) voluntarily to install treatment equipment.

If the foregoing analysis is correct, some RAPP-like program would be an improvement over any pure Refuse Act-only scheme, assuming that RAPP were pursued with firm intent to combat water polution and assuming that problems of proper delegation of authority of EPA could be managed. Therefore, it is possible to suggest that Kalur ought not to have been brought. This analysis is bolstered by the effects which the case has had among agencies which do not view NEPA with favor. ELR understands that some agencies are suggesting that the rationale of the Kalur case extends to every permit issued by any federal agency. This over-broad reading of the case has been given as a reason for excluding the NEPA process, with its attendant publicity and weighing of alternatives, from areas of decision-making. Although this result could not have been predicted before the case was brought, it makes the decision even more unfortunate.

Is A Separate NEPA Statement Required for Each RAPP Permit?

The Environmental Protection Agency has pointed out that during 1971, approximately 2,000 final NEPA Statements were received by the Council on Environmental Quality. EPA claims that if the Kalur decision requires a full environmental impact statement be prepared for each of the 40,000 permit applications expected, the program will be administratively impossible. This claim is somewhat exaggerated, since EPA itself has stated it is reviewing closely the permit applications from the 3,000 largest polluters, not from all 40,000.

The government's fears that NEPA applied to RAPP will make the Agency prepare 40,000 (or 3,000) statements are misplaced. The fears proceed from a reading of the case which is not demanded by the Opinion, the Order or by logic. In the opinion, the court states that in issuing a permit, water quality standards established by the Federal Water Pollution Control Agency must be recognized:

[b]ut they need not end the matter. The Corps of Engineers can then go on to perform the very different operation of balancing the over-all benefits and costs of a particular proposed project, and consider alterations above and beyond the applicable water quality standards that would further reduce environmental damage. [emphasis added]

The court's reference to a "particular proposed project" is as close as the opinion comes to suggesting a NEPA statement for each permit. Yet the Kalur case was not brought to enjoin any particular permit and there is no hint within the opinion that this phrase was intended to be especially significant. Moreover, the Order does not speak to the issue at all, but merely states:

ORDERED, that these same regulations, insofar as they exempt the defendants and applicants from the requirementsof filing detailed environmental impact statements, is [sic] declared ultra vires as being in excess of and beyond the defendants' authority …

No mandate forcing thousands of NEPA statements to be prepared can be implied from this language.

Even the more recent case, Sierra Club v. Sargent, 2 ELR 20131 (W.D. Wash. March 16, 1972), does not require that result. The Sierra Club sought an injunction to prevent the Corps of Engineers from issuing a RAPP permit to the Atlantic Richfield Company (Arco) for discharges into the Puget Sound from Arco's Cherry Point Refinery. The briefs in the case make it clear that a number of theories were pressed, including that NEPA applied to the issuance of any permit for an action which significantly affected the environment. However, both plaintiffs and the government acknowledged that if the granting of a RAPP permit would have effects beyond water quality, the Corps by its own regulations had bound itself to prepare a NEPA statement.⁵ The order in Sargent finds a probability that issuance of the RAPP permit is a major federal action significantly affecting the environment. That Order does not forclose the possibility that the court based its decision on the narrow ground that the Corps' own regulations required an impact statement. The order in Sargent is notable for its caution in avoiding any hint whatsoever of the grounds for decision; an attorney in the case has stated that Judge Lindberg gave no further hints outside of what appears in the Order. If this reading of the case is correct, then Sargent, like Kalur, does not stand for the proposition that every RAPP permit must be accompanied by a NEPA statement.

The philosophy of NEPA itself would argue against any such requirement. Although a major virtue of NEPA is that it requires actual projects to be studied in detail, so that real problems can be faced in a real way, there is a danger of excessive narrowing. By binding the decision-maker's range to minute increments of a decision, the broad-based approach demanded by NEPA is made impossible and a genuine look at wide-ranging alternatives is made unnecessarily difficult. Indeed, a focussing on each permit as it is proposed would make a true consideration of alternatives impossible since decisions made on a permit-by-permit basis would lessen the opportunity to make trade-offs among different dischargers.

The Federal Highway program provides an apt analogy. The impact of a highway is impossible to study if the planners' vision is narrowed only to quarter mile segments, or broadened to include the entire Interstate System. There is a balancing process in the very act of deciding when a NEPA study will be greatest benefit.

Instead of interpreting the Kalur and Sargent decisions so negatively, the government ought to take the position that groups of statements could be clustered in logically supportable fashion. The operations of a [2 ELR 10029] single large polluter might require a separate NEPA statement before a permit is issued; an industry (such as paper pulping or petrochemicals) might be studied together and a NEPA statement issued for the industry; all dischargers seeking permits on one river might be the subject of a single impact statement. With such logically clustered statements prepared, the job of deciding whether or not to issue a given permit would have been largely decided at an earlier stage. The policy of NEPA could be effected without imposing overwhelming administrative burdens. The integrity of the process would be preserved, since the balancing and discussion of alternatives would not be bound to an incremental decision or to such a large, abstract program that individual cases of special impact were ignored.

Should NEPA Apply to All Activities of EPA?

The government is exceedingly concerned that Kalur will be upheld on the issue that when EPA is engaged in environmentally protective regulatory activities (such as passing on RAPP permits), the procedural duties of NEPA apply, including the duty to produce a complete Section 102 Statement for comment.⁶ (There appears to be no argument with the notion that even EPA must comply with the substantive duties of NEPA outlined in Section 101.)

The debate over NEPA's application to EPA falls into two parts. First, there is disagreement over whether the legislative history of NEPA overcomes the clear language of Section 102 requiring statements from "all agencies of the Federal Government." Second, there is the policy argument whether it is appropriate, given the nature of the NEPA process and the mission of the Environmental Protection Agency, for Section 102 procedures to apply.

The arguments based on legislative history are inconclusive at best. Section 102 of NEPA states:

The Congress authorizes and directs that, to the fullest extent possible … all agencies of the Federal Government shall … include in every recommendation … for … major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on … the environmental impact of the proposed action, … [emphasis added]

Despite this clear language, the Council on Environmental Quality in its guidelines on proposed federal actions affecting the environment, 36 Fed. Reg. 7725, ELR 46049, stated:

5(d) Because of the Act's legislative history, environmental protective regulatory activities concurred in or taken by the Environmental Protection Agency are not deemed actions which require the preparation of environmental statements under section 102(2) (C) of the Act.

This starting departure from the statutory language would lead one to believe that the legislative history is plain; yet it is simply unclear on this point. Senator Jackson, speaking of the National Park service, the Federal Water Pollution Control Agency and the National Air Pollution Control Administration, said:

The provisions of Section 102 (as well as 103) are not intended to result in any change in the manner in which they carry out their environmental protection authority. 115 Cong. Rec. 40417.

In a colloquy with Senator Boggs, Senator Muskie stated that Section 102 was designed:

to apply strong pressures on those agencies that have an impact on the environment, [but as to environmental improvement agencies] it is clearly understood that those agencies will operate on the basis of the legislative charter that has been created and is not modified in any way by [NEPA]. 115 Cong. Rec. 40425.

On the other hand, this legislative history may not be directed to the issue whether NEPA statements must be prepared at all. Senator Muskie, in discussing the impact of the phrase "to the fullest extent possible" in Section 102, said:

We were concerned that [NEPA], through such language as that which I have just quoted, should not have the effect of changing the basic legislation governing the operation of the agencies such as those to which I have referred. 115 Cong. Rec. 40423.

This suggests that Senator Muskie was concerned not with the Section 102 process, but rather with the scheme of legislation which governed the operations of the agencies under the direction of the Senate Committee on Public Works (of which Senator Muskie was a member). Reading the legislative history as a whole, it is possible to infer that Senator Muskie was concerned only that NEPA, a bill which came from the Senate Interior and Insular Affairs Committee, should not encroach upon the work of agencies under the Public Works Committee's control. The fear was that it would change the "basic" operation of those agencies. This view is supported by the fact that the debate centered primarily on the water and air programs, not on any other environmentally protective programs.

Finally, the legislative history is unpersuasive since Congress could scarcely have been considering the problem of EPA when NEPA was passed. Reorganization Plan No. 3 of 1970, which established EPA, was transmitted to the Congress a half-year after NEPA became law. In the reorganization, EPA not only received the federal air and water programs which were the focus of concern in NEPA's legislative history, but also substantial authority over pesticides, radiation and solid wastes as well.

ELR understands that EPA is aware that the legislative history is less persuasive than it might be. Therefore, the government is also arguing on policy [2 ELR 10030] grounds that it would be inappropriate and duplicative of effort for the Agency to follow the NEPA procedures in its environmentally protective actions. One spokesman has suggested that avoiding NEPA would result in greater protection for the environment. According to this theory, EPA could be more cautious in its actions, since it would not have to weigh factors in the explicit fashion demanded by NEPA. Thus, it is suggested, a proposal by an industry could be resisted on the grounds that EPA's scientists were uneasy about the action, but were unable to explain in scientific terms the nature of their unease. This theory would, and should, receive short shrift if argued in a lawsuit. It is little more than an attractively disguised version of every administrative officer's desire to operate without explaining to all affected parties the basis of his decisions. The court in Ely v. Velde, 1 ELR 20612 (4th Cir. 1971), expressed judicial reaction to this position when it said:

We note, however, that a federal agency obligated to take into account the values NHPA and NEPA seek to safeguard, may not evade that obligation by keeping its thought processes under wraps.

… The agency must not only observe the prescribed procedural requirements and actually take account of the factors specified, but it must also make a sufficiently detailed disclosure so that in the event of a later challenge to the agency's procedure, the courts will not be left to guess whether the requirements of NHPA and NEPA have been obeyed. 1 ELR at 20615.

Such unsupported decisions would undermine the credibility of EPA since environmental groups might come to believe that they had unequal opportunities for access. Such undermining of credibility would be unfortunate.

A second argument advanced by the government in suggesting that EPA should be released from the duty of complying with the procedures outlined in NEPA, is summarized by the government's Memorandum in Support of Motion for Summary Judgment in Sierra Club v. Sargent, supra. After discussing the Calvert Cliffs' case, the government asserted:

The balancing process described by the Court of Appeals [in Calvert Cliffs'], and the environmental impact provision in aid of that process (with its requirement of consultation with and comments by agencies expert in the environment), are clearly intended for use by those Federal agencies with statutory programs directed toward other, non-environmental ends, which agencies must now take environmental factors into account for the first time. However, these provisions and their purpose do not rationally apply to programs whose chief function is regulation of the environment. The regulatory agencies in charge of such programs need perform no balancing since they have no other substantive purposes or concerns to balance against the primary concern of environmental quality which motivates these programs.⁷

This argument is difficult to accept unless one believes that all the programs within EPA have only environmental protection as their sole goal. Yet EPA does not stand for zero discharge standards in every situation. If EPA believed that, it would rarely register a pesticide, permit a new building, or otherwise undertake any action which degraded the environment. It would object, through Section 309 of the Clear Air Amendments, to virtually every action proposed which conceded any environmental harm. In fact, of course, EPA lives in a world of compromises. It is those compromises and trade-offs — "balancing" as the Calvert Cliffs' court called it — that NEPA would make explicit.

To summarize: the taking of various factors into account and weighing risks against benefits is at the heart of the NEPA process and is exactly the nature of the decision-making which EPA ought to be engaging in. The requirement of Section 102 that the "balancing" be carried on in public and in an orderly way, with opportunities for comment, is a useful addition to Agency procedure. As stated in recent testimony before a Congressional committee, "the requirements of Section 102(2) (C) to [the] … trade-offs would give much-needed specificity to EPA's articulation of the risks and costs inherent in its decisions."⁸

1. Donald W. Large, Permit Program Was A Setback, Newsletter, Ohio Chapter, Sierra Club, Vol. 4, No. 2, March-April, 1972. Although this article appears in a Sierra Club publication and some reports have referred to the case as a Sierra Club litigation (see, e.g. 2 ER-Current Developments 1049, December 31, 1971, in which the plaintiffs are referred to as "legal representatives of the Sierra Club"), ELR understands that the Sierra Club was asked to be a plaintiff in the suit and refused to participate.

2. See, Comment, 2 ELR 10019, in this issue of ELR detailing the legislative history of Sections 9 and 10 of the Rivers and Harbors Act of 1899. That Comment provides illumination concerning the difficulty of discerning Congressional intent for the Act.

3. That navigational obstructions were the principal concern of Congress does not negative the implication that the Refuse Act covers all pollutants. See United States v. Republic Steel corp., 362 U.S. 482 (1960) and United States v. Standard Oil Co., 384 U.S. 224 (1966).

4. See Connecticut Action Now, Inc. v. Roberts Plating Co., 1 ELR 20370, aff'd. __ F.2d __, 2 ELR 20157 (2d Cir. March 21, 1972).

5. 33 C.F.R. § 209.131 (1)(2), ELR 46306.

6. Both Kalur and Sargent raise indirectly the issue whether EPA is engaged in environmentally protective regulation under RAPP, since it is the Corps of Engineers which has the statutory duty to prepare the NEPA statement as the "responsible official." Nonetheless, because of EPA's close involvement with RAPP, the holdings of both these cases have been taken to be requirements applying to EPA's activities.

7. The moving papers will be available through ELR's Digest-Facsimile Service shortly.

8. Statement by Frederick R. Anderson before the Joint Hearing of the Senate Committees on Public Works and Interior and Insular Affairs on the National Environmental Policy Act; March 7, 1972.