Citizens for A Better Environment v. Gorsuch

718 F.2d 1117, 231 U.S. App. D.C. 79
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 4, 1983
DocketNos. 82-1365 to 83-1368, 82-1673 to 82-1676 and 82-1770 to 82-1773
StatusPublished
Cited by44 cases

This text of 718 F.2d 1117 (Citizens for A Better Environment v. Gorsuch) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens for A Better Environment v. Gorsuch, 718 F.2d 1117, 231 U.S. App. D.C. 79 (D.C. Cir. 1983).

Opinions

BONSAL, Senior District Judge:

The intervenors in these consolidated cases,, several corporations and trade associations (collectively “the Companies”),1 appeal from orders of the United States District Court, Flannery, J., (1) denying their motion to vacate or, alternatively, to revise a settlement agreement (“the Agreement”) previously approved by the district court, and (2) denying the cross-motion of the Environmental Protection Agency (“EPA” or “the Agency”) and its Administrator to modify the Agreement due to changed circumstances. The issue presented by this appeal, as formulated in our earlier opinion, Environmental Defense Fund, Inc. v. Cos-tie, 636 F.2d 1229, 1259 (D.C.Cir.1980),2 is whether the “settlement agreement impermissibly infringes on the discretion Congress committed to the Administrator to make certain decisions under the [Clean Water Act].” For the reasons hereinafter stated, we hold that the Agreement does not impermissibly infringe on the Administrator’s discretion and accordingly we affirm the orders of the district court.

Background

The facts are set forth in some detail in our prior decision, 636 F.2d at 1234-38, familiarity with which is assumed. Briefly, the Agreement was entered into by the original parties3 to these consolidated cases in settlement of the plaintiffs’ claims that EPA had failed to carry out its statutory duty to implement certain provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (1976), known in its amended form as the Clean Water Act (“CWA” or “the Act”).4 Following negotiations between the parties, the proposed settlement agreement was submitted to the district court, which held hearings and received comments from the intervenor Companies, which opposed it. The Agreement was authorized and executed for the government by both EPA and the Department of Justice. After making some changes in the agreement, on June 9, 1976 the court entered a “Final Order and Decree” (“the Decree”) approving it as a “just, fair, and equitable resolution of the issues raised.” Natural Resources Defense Council, Inc. v. Train, 8 Env’t Rep.Cas. (BNA) 2120, 2122 (D.D.C.1976). No appeal was taken from the Decree. Therefore, the issue of whether, in a general sense, the district court acted properly in entering the June 9, 1976 Decree is not now before us.5

The Agreement contains a detailed program for developing regulations to deal with the discharge of toxic pollutants under the CWA. It required EPA to promulgate guidelines and limitations governing the discharge by 21 industries of 65 specified [83]*83pollutants. It also mandated the use of certain scientific methodologies and decision-making criteria by EPA in determining whether additional regulations should be issued and whether other pollutants should be included in the regulatory scheme. It did not specify the substantive result of any regulations EPA was to propose and only required EPA to initiate “regulatory action” for other pollutants identified through the research program. The regulations envisaged by the Agreement were, after full notice and comment, to be promulgated in phases by December 31,1979 and the industries affected were to comply with them by June 30, 1983.

The district court explained in its Decree that the Companies would be free to influence the content of the proposed regulations by participating in the rulemaking proceedings and then could attack the legality of any final regulations in court. 8 Env’t Rep.Cas. at 2121. The court also emphasized that EPA and NRDC had modified the Agreement to make clear that the court would not review EPA’s “substantive judgments” under it. Id.

When EPA’s implementation of the Agreement failed to meet the deadlines imposed therein, NRDC moved to have the Administrator held in contempt. Soon after, the Companies moved to vacate the Decree on the grounds that the 1977 Amendments to what became known as the CWA had superseded the Decree and rendered it moot, and that the Decree violated the Administrative Procedure Act’s notice and comment provisions. EPA and NRDC then jointly moved for an order modifying the Decree in settlement of NRDC’s contempt motion. On March 9, 1979 the district court modified the Decree according to EPA’s and NRDC’s request and denied the Companies’ motion to vacate the Decree. Natural Resources Defense Council, Inc. v. Costle, 12 Env’t Rep.Cas. (BNA) 1833 (D.D.C.1979). In general, the modifications granted EPA more time and flexibility to implement the requirements of the Decree in exchange for requiring EPA to provide NRDC more detailed information regarding implementation. Several of the Companies appealed the district court’s decision, which we affirmed. We found that Congress did not intend the 1977 Amendments to supersede the Decree, that the district court continued to have the power to enforce the Decree, and that the modifications in the Decree were not “rules” within the meaning of the APA for which EPA had to provide notice and comment. Environmental Defense Fund, Inc. v. Costle, supra, 636 F.2d at 1244, 1251, 1255-56. However, we remanded the case for the district court to consider whether the settlement agreement impermissibly infringes on the discretion Congress committed to the EPA Administrator to make certain decisions under the CWA. Id. at 1258-59.

On remand, the Companies filed a motion to vacate or, alternatively, to revise the Decree on the ground that it impermissibly infringed upon the Administrator’s discretion under the CWA. EPA filed a cross-motion to modify the Decree in light of changed circumstances, seeking to extend certain deadlines and to delete from the Decree those provisions compelling the performance of “discretionary” actions by the Agency.

In a memorandum opinion filed February 5, 1982, the district court found that the Agreement “does not impermissibly infringe upon the discretion accorded to the EPA Administrator by Congress.” Natural Resources Defense Council, Inc. v. Gorsuch, 16 Env’t Rep.Cas. (BNA) 2084, 2090 (D.D.C.1982). Accordingly, it entered an order on the same date denying the Companies’ motion. The district court based its decision on five factors. First, it stressed the breadth of a district court’s equitable power to give effect to remedial statutes. Second, it concluded that the Decree was “process” rather than “result” oriented. Third, it pointed out that the parties had participated extensively in formulating the Decree. Fourth, it noted that it had taken a flexible approach to fashioning the Decree, modifying it a number of times in response to objections raised by the parties. Finally, it found that Congress had the Decree in mind when it enacted the 1977 Amend[84]*84ments to the CWA and “clearly approved of its procedures.” Id. at 2087-89.

On May 7,1982 the district court issued a second order, denying EPA’s cross-motion and directing the Agency to submit proposed schedules for promulgating within one year all those regulations envisaged by the Agreement which had not yet been promulgated.6 The Companies have appealed from the district court’s first order and from that part of the second order which denied EPA’s request to delete those portions of the Decree allegedly involving matters entrusted to the Administrator’s discretion under the CWA. EPA has not appealed the denial of that request.

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Bluebook (online)
718 F.2d 1117, 231 U.S. App. D.C. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-for-a-better-environment-v-gorsuch-cadc-1983.