Reexamination of Environmental Court Study: Outlook for Improvement in Judicial Review of Environmental Decision-Making

Walter Kiechel Jr., Deputy Assistant Attorney General, Land and Natural Resources Division, Department of Justice

Thank you Professor Murphy, I think. I'm linked in your introduction with the bureaucrats who were going off or on welfare and am given the left-handed compliment of being an experienced person. We have been treated to a very youthful presentation this morning. All of these sallies and circumstances cause me to pull back and reflect. Fred Anderson this morning announced what I suppose will be the battle-cry of this conference — stamp out thinking of the 1930s. Somehow that accusation is associated with experience and might even be associated with me. So at the outset I want to say that while I was around in the thirties, I wasn't even thinking at that time.

Judge Bue, Mr. Mashaw, Chairman Greene, President-Elect Fellers, Ladies and Gentlemen, it is a pleasure to be here. I am operating under certain handicaps, as is readily apparent. I'm brought back, as they say in "show biz," for a return engagement, speaking on the same subject as I did last year and to some of the same people, and I am not going to give you any warmed-over speech. The second handicap is the fact that in an unguarded moment, in response to the blandishments of your very persuasive Manager of this Conference, John O'Connor, I sent him an outline, or a sort of a text, which he said he needed for Tom Greene's purpose for introduction. So last night I see upon coming in that there were copies of my text available and I saw everybody picking it up and, of course, poring over it. This is perhaps attributable not so much to the fact that it's a real piece of deathless prose, which it is, but the lack of nightlife around Airlie House. So, I've got to say something different or more than is in those prepared remarks. I suppose the third handicap is that I am chaperoned on this panel by a distinguished Federal Judge before whom I've not had the pleasure to appear, [4 ELR 50144] but people from my staff do from time to time, and I am very conscious of the fact that Judges who render environmental decisions against the government are to be treated with great and diplomacy.So, I am on my good behavior today.

Those of you who read the Wall Street Journal regularly may recall that it has devoted several columns in the last few months to "Rules and Laws" which seem to govern our society these days. Of course, we bureaucrats have long been charged with "Parkinson's Law" just as the people in corporate structures have been enlightened by the Peter Principle. One of the basic principles that I have found almost as immutable as the Law of the Medes and Persians is Murphy's Law: "if anything can go wrong, it will." But columnist Vermont Royster has added to that a "Miles Law" which states that "where you stand depends on where you sit" — he says this law is a crystallization of the common experience that a government official's position on a given issue is shaped less by his personal philosophy than by the goals of the agency for which he works. To this "lore of laws" I would add that of a litigator: what Fritz Weiner in his book on appellate advocacy calls the "taxi-cab answer," that is, the apt and responsive answer to the unexpected question asked by the judge in oral argument, the good answer occurring to you on the way back to the office or hotel after the argument. As a final comment on this subject and to make it pertinent to the subject at hand, I would propose another law and would even be so presumptuous as to claim it as Kiechel's Law: Once a substantial and long-gestating study is put in print, you get all sorts of brilliant new ideas, none of which are reflected in the report.

So, I am pleased to have this invitation to come back to talk you you primarily on this subject of the Environmental Court Study. The President, through the Attorney General, was mandated by a section of the Federal Water Pollution Control Act Amendments of 1972, to study the feasibility of a court system or a court dealing with environmental matters and to report back within a year. Last spring about this time I gave you a preview of that study which was submitted in October, 1973, to the Congress. We, as you probably were not surprised to hear from my preview last year, recommended against the establishment of an environmental court. At least we didn't recommend for it. There were several reasons for this, all of which are spelled out in the report itself. It was rather a disappointment to me, and I suppose we should have foreseen this from the fact that we made a negative recommendation, that the congressional committee decided that they wouldn't print it. I had the expectation that they would come out with a nice printed congressional document. Unfortunately the committee decided that since no affirmative recommendation was made, they would not expend the $40,000 required to print it.

The Problem

Please note the rather ponderous title of my talk — "Reexamination of Environmental Court Study: Outlook for Improvement in Judicial Review of Environmental Decision Making." It reflects several things: my discovery in law school that law review articles captioned with compound or double-barrelled titles sound profound (especially if the title is followed by some nonsensical quotation from Lewis Carroll); but more substantially, and with respect to the theme of this Conference, it reflects my judgment that even though an environmental court may not now be appropriate for the reasons set forth in our study, the mechanism for environmental decision-making and the judcial review thereof, needs improvement.

Background

May I give you a little historical perspective without associating myself with this evil thinking of the 1930s? I still am not prepared to go to that time, but from an historical point of view I think it might be useful to to back a few, a couple of decades anyway.

Environmental litigation, like environmental regulation, is fairly new on the federal level. From an historical point of view I think it can be dated from 1948, when the Congress passed the rather pallid (as compared to its present state) Federal Water Pollution Control Act. From these humble beginnings, the federal role in environmental regulation has grown to very extensive proportions. By way of a footnote, I want to anticipate any charge that by specifying 1948 as the beginning point of significant federal involvement in environmental control, I am forgetting or denigrating the Refuse Act, Section 13 of the Rivers and Harbors Act of 1899. Not so; I am a firm supporter of that venerable statute as a pollution control measure — in fact, as I have said on other occasions, I come to praise the Refuse Act, not to bury it. And, as of this week let me point out that it is not dead, it is alive and doing well. Judge Miles Lord, on Monday of this week, entered an order in the Reserve Mining case, a case which we brought primarily under the Refuse Act. We had two other counts added — the common law nuisance under the Illinois v. Milwaukee decision of the Supreme Court and the Federal Water Pollution Control Act Amendments. Judge Lord's preliminary opinion actually relied on the latter two, but he said he would in the course of his full opinion, to follow shortly, develop the extent to which he relied upon the Refuse Act.

And, as a continuation of this footnote, I would add my hope that with the expiration of the "moratorium" which is engrafted on the Refuse Act by the Water Pollution Control Act Amendments of 1972, said moratorium to expire at the end of this year, we in the Department of Justice can resume the use of the Refuse Act in our water pollution abatement program. But the reason that I do not date this historical analysis from 1899 is that it was not until 1970 that the Refuse Act began to be utilized as a pollution control measure.

Extensive federal regulatory and enforcement authority was added by amendments to the Federal Water Pollution Control Act in the 1950s and 1960s; air pollution received similar treatment in the Clean Air Act. [4 ELR 50145] These two Acts remain the major federal environmental control Acts; they were joined in 1972 by the Noise Control Act and the Ocean Dumping Act, both of which give federal regulatory authority to new areas of our environment.

Pollution control litigation in a substantial quantity dates from the year 1970. This is because of the coincidence of: (1) that is the year in which we in the Land and Natural Resources Division initiated under the Refuse Act a major enforcement program; and (2) that was the year, specifically on January 1, 1970, in which the President signed the National Environmental Policy Act. The latter Act, known to all of us working in the environmental field as NEPA, has spawned a major regulation and litigation program. It is primarily with respect to NEPA as well as the extensive litigation now arising under the Clean Air and Water Control Acts that a pressing need for improvement of review procedures is presented.

In my remarks last year at this Conference, I outlined the reasons for our taking a negative view toward establishment of an environmental court. One of those reasons was that there was no discernible support for such. We found this reason, among others, to be persuasive not because we wanted to be on the popular side of the issue, but because of our judgment that any radical change in our institutional or court set up would need broad-based support to succeed and endure. This was certainly not the major reason for our final conclusions to recommend against the establishment of an environmental court. The other reasons are set forth in the report as "previewed" here last year and included (1) the difficulties of defining "environmental cases," (2) the meager number, compared to the overall caseload of the federal courts, of environmental cases, (3) the difficulty of bifurcation of civil litigation and criminal jurisdiction constitutionally required to remain in Article III courts, and (4) the advantage of having "generalist" judges to review environmental cases as compared to a specialized court.

I did qualify my remarks of last year with an expression that even if we all rejected the environmental court, we should seek:

(1) a system of more effective regulation within the executive branch of the formulation and consideration of environmental impact statements; (2) establishment of a uniform scope of judicial review of executive agency compliance with NEPA; and (3) any additional measures which would promote the orderly and expeditious resolution of environmental issues administratively and judicially.

Experience of the Last Year

Although I am not here to claim any great powers of prescience and I do not take any pleasure from this, it is quite clear that the record in improving both administrative and judicial review of federal environmental decisions in the past year is a spotty one at best. In the view of some the situation has gotten worse instead of better. The Council on Environmental Quality (CEQ) has undertaken to improve the process of preparation and review of environmental impact statements by new Guidelines promulgated in 1973. Such guidelines cannot of course cure the deficiency of the statutory scheme of NEPA whereby environmental impact statements are circulated to other federal agencies and submitted to the Council on Environmental Quality, but with any sanctions for inadequacy of the statements left to the judicial process.

And with respect to judicial review, the diversity among the courts of the scope of judicial review of executive compliance with NEPA has increased. In addition, adding to the litigation problem has been the plethora of petitions of review to the various courts of appeals of actions of the Administrator of the Environmental Protection Agency. These petitions to date have been mainly under the Clean Air Act, including challenges to EPA's approval of state air pollution control implementation plans. Those several hundred cases now on appeal will be miniscule, however, in comparison to the appeals from thousands of permits anticipated under the provisions of the Water Control Act Amendments.

Outlook for Improvement

Insofar as improvement of the administrative process of NEPA compliance, I think the last year has seen some progress. NEPA environmental impact statements are getting better. This means more effective consideration of environmental values. It also means that judicial review of those statements has resulted in fewer injunctions, and less dislocation of federal programs and projects. It remains my view, however, that some executive agency, most appropriately the Council on Environmental Quality, should have authority not only to review but to require modification of agency environmental impact statements.

On the subject of scope of judicial review of the NEPA statement, the federal courts are using a variety of criteria. This would be cured by a Supreme Court decision on the subject. There were two NEPA cases, both from the Ninth Circuit, currently before the Supreme Court on petitions for certiorari which would give the Court the opportunity to clarify and prescribe the scope and criteria of judicial review under NEPA. However, certiorari was denied on one of the cases this week¹ so it is likely certiorari will be denied on the other.² If certiorari is not granted in those cases, of course, we'll have to wait for other cases presenting such issues to the Court.

Environmental Court Study Revisited

Let me share my after-thoughts, based on our experience in the last year, of our conclusions in the environmental [4 ELR 50146] court studies. Events of this year have cast some doubt on two of the bases for our negative view: (1) insufficient caseload to justify an environmental court, and (2) advantages of generalist judges.

We submitted the study on the feasibility of establishing a separate court for environmental matters, as required by § 9 of the Act of October 18, 1972, within the year allowed by that Act. The letter of the Attorney General of October 11, 1973, transmitting this study pointed out that one of the problems in the environmental field not within the ambit of the study was modification of direct appellate review of actions taken by the Administrator, Environmental Protection Agency, as now authorized by the federal Clean Air and Water Pollution Control Acts.

In the course of the next few weeks the proportions of this problem referred to in the letter of transmittal by the Attorney General became painfully clear. In the month of November 1973, some 70 petitions were filed in the Ninth Circuit Court of Appeals alone to review the actions of the Administrator of the Environmental Protection Agency under the authority of the Clean Air Act in promulgating transportation controls for Southern California. During the same period of time a number of petitions were filed in the Fifth Circuit Court of Appeals to review the Administrator's transportation control plans for the Houston area; similarly, several petitions were filed in the First Circuit Court of Appeals to review the transportation control plans promulgated for the Boston area.

The Houston cases have been consolidated for argument before the Fifth Circuit Court of Appeals. The Court found it necessary to have a pretrial, not only to get some ground rules as to what the record was but also to allot the time. It's a three hour argument in which are appearing the state of Texas, City of Houston, Harris County, the oil companies, environmental organizations, and of course the government. These appeals as we have briefed them in collaboration with out client, EPA, involve very technical questions of fact. It is difficult to present them to judges of several different circuits and expect these generalist judges to have the inclination to master even for the purposes of the cases the technical information. Judge Leventhal had some thoughtul remarks on that last year. Many of his proposals have merit. However, I would take exception to the use of a special master as any kind of solution in environmental cases. I've been involved in enough special master cases, original actions in the Supreme Court, and as well in the District Court cases, to know that it does substantially extend the time for adjudication. If the judge puts it to a special master he's going to have him in the usual case not only make findings of fact, but conclusions of law. Findings of fact will expedite the matter when it gets back up to the Judge, but he still is going to have to reexamine de novo matters of the law. Even if one doesn't subscribe to the view that specialist judges would be better in these kinds of cases I would suppose that everybody would recognize the economy and efficiency in attorney and judge time by having one panel of generalist judges to decide all of the cases which involve the same technical information. That's one of the rather distressing consequences of this present situation. The same questions are pending before most of the circuit courts of appeals. We can move to transfer them so as to consolidate similar cases in one Court of Appeals. But it is discretionary with the Court if it wants to transfer to another Court of Appeals which has that same matter at hand. And we've already gotten some indication that they don't think they would do that because they feel the responsibility to hear and decide these questions which deal with their region, their circuit court area. This is certainly understandable and to their credit.

Withoug undue self-flagellation, I would suggest that we did not adequately foresee the utility of a single environmental court to handle these appeals. One of the court models we postulated for our analysis of the feasibility of an environmental court was a panel of judges having the sole function and exclusive jurisdiction to review federal administrative orders affecting the environment. Such a court would be more than occupied with the number of appeals now pending.

Conclusion

Environmental law is a dynamic field. We learn as we go. And if the present kind and quantity of appellate litigation continues to demonstrate the need for an environmental court, then a proposal for such will, I am sure, be seriously considered. It was premature to recommend a separate environmental court last year and it may still be too soon to do so. In my opinion, however, the time is not far away (1) when the volume of the environmental cases will require some amelioration of the already congested dockets of the federal courts of appeal, and (2) the complexity of the subject matter will warrant a court with expertise in its members and retainers to deal effectively with these scientific and technical issues.

1. Environmental Defense Fund, Inc. v. Armstrong (New Melones), 487 F.2d 814 (C.A. 9, 1973), cert. den., EDF v. Stamm, __ U.S. __.

2. Life of the Land v. Brinegar, 414 U.S. 1052 (1973).