Seacoast Anti-Pollution League v. Costle

United States Court of Appeals for the First Circuit · 1979 · Administrative Law

Administrative LawEPAadministrative procedureagency discretionVermont Yankeeprejudicial errorsubstantial evidenceClean Water Act

Facts

Public Service Company of New Hampshire sought approval for a once-through cooling system for the Seabrook Nuclear Power Plant under 33 U.S.C. § 1326(a) and (b). On remand, the Administrator ordered EPA staff to participate in a non-adversarial way, allowing them to testify, cross-examine witnesses, and prepare a technical summary without advocating a particular outcome. The system would draw 824,000 gallons of ocean water per minute through offshore intake structures and discharge heated water through a diffuser, with organisms drawn into the system not expected to survive. Petitioners argued that the neutral staff procedure was unlawful and that the record did not support findings regarding juvenile rainbow smelt, winter flounder larvae, and the intake location and design.

Issue

Whether the Administrator acted unlawfully by requiring EPA staff to participate neutrally rather than as advocates, and whether the Administrator's approval of the cooling system and intake location under 33 U.S.C. § 1326 was unsupported by substantial evidence or inadequately explained.

Rule

Absent law to the contrary, agencies enjoy wide latitude in fashioning their procedural rules. Under 33 U.S.C. § 1326, the Administrator's determinations that a design will assure the protection and propagation of a balanced, indigenous population and that intake structures reflect the best technology available must be upheld if supported by substantial evidence in the record. Under the APA, reviewing courts must take due account of the rule of prejudicial error, so failure to explain a noncritical order or conclusion is not reversible error absent prejudice or a need for review of that point.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Federal Water Permits Board held a remand hearing on a thermal-discharge permit for a power station near Corpus Christi, Texas. The chair directed the Board's biologists to testify, cross-examine witnesses, and prepare a technical synthesis, but barred them from arguing that the permit should be granted or denied. Opponents identify no statute or regulation requiring staff advocacy.

If the opponents petition for review claiming the hearing was invalid because agency staff remained neutral, how should a court most likely rule?

Explanation. The controlling rule is that agencies have wide latitude to fashion procedural rules absent law to the contrary. A procedure allowing staff to build and test the record without advocating a particular outcome is permissible where no statute or regulation requires adversarial staff participation. The mere claim that neutrality is unusual or undesirable does not make it unlawful. (Derived from Seacoast Anti-Pollution League v. Costle (1979).)