Natl Wldlf Fed v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2000 Decided January 30, 2001

No. 00-1258

National Wildlife Federation, et al.,

Petitioners

v.

Carol M. Browner,

Administrator, Environmental Protection Agency and

Environmental Protection Agency,

Respondents

American Forest and Paper Association, Inc.,

Intervenor

On Motion to Dismiss the Petition

for Want of Jurisdiction

Raymond B. Ludwiszewski argued the cause for Industry

Petitioners Boise Cascade Corporation, et al. With him on

the briefs were Peter E. Seley and Scott H. Segal. Gene E.

Godley entered an appearance.

Neil S. Kagan argued the cause and filed the brief for

petitioners National Wildlife Federation, et al.

Jon M. Lipshultz, Attorney, U.S. Department of Justice,

argued the cause for respondents. Lois J. Schiffer, Assistant

Attorney General, Karen L. Egbert, Attorney, and Carol Ann

Siciliano, Attorney, Environmental Protection Agency, were

on the brief. Seth M. Barsky, Attorney, U.S. Department of

Justice, entered an appearance.

Before: Williams and Tatel, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: The National Wildlife Federation

and various pulp, paper, and paperboard companies petitioned

for review of the Environmental Protection Agency's new

effluent guidelines for paper mills. At this stage of the

proceedings, we consider Industry petitioners' motion to dis-

miss NWF's petition for lack of subject matter jurisdiction.

This is a simple issue. Because the statutory provision

Industry petitioners invoke is not jurisdictional, we deny their

motion.

I

In April of 1998, EPA promulgated regulations, known as

the "Cluster Rules," governing parts of the paper and pulp

industry. The Rules include both effluent limitation guide-

lines under the Clean Water Act and emission standards

under the Clean Air Act. See National Emission Standards

for Hazardous Air Pollutants for Source Category: Pulp and

Paper Production, 63 Fed. Reg. 18,504 (April 15, 1998).

Six environmental groups, including the National Wildlife

Federation, filed a joint petition for review of the Clean

Water Act portion of the Rules in the Ninth Circuit. Various

paper producers--we will refer to them collectively as "Indus-

try petitioners"--then filed petitions for review of the effluent

guidelines here and in the Fourth and Eleventh Circuits.

The three Industry petitions were transferred to the Ninth

Circuit, which consolidated them with NWF's. Industry peti-

tioners moved to dismiss the NWF petition for lack of subject

matter jurisdiction or, in the alternative, to transfer the case

to this circuit.

Without ruling on the motion to dismiss, the Ninth Circuit

transferred the case here. Nat'l Wildlife Fed'n v. Browner,

No. 98-70506 (9th Cir. Nov. 3, 1989) (order granting transfer

of venue to D.C. Circuit). We bifurcated the motion to

dismiss and the merits, holding the merits in abeyance pend-

ing resolution of the jurisdictional issue. Both NWF and

EPA opposed the motion to dismiss. While that motion was

pending, Industry petitioners filed an additional motion to

sanction both NWF and EPA for alleged disclosure, conceal-

ment, and use of protected confidential business information.

II

Section 509(b)(1) of the Clean Water Act provides:

Review of the [EPA] Administrator's action (A) in pro-

mulgating any standard of performance under section

1316 of this title, (B) in making any determination pursu-

ant to section 1316(b)(1)(C) of this title, (C) in promulgat-

ing any effluent standard, prohibition, or pretreatment

standard under section 1317 of this title, (D) in making

any determination as to a State permit program submit-

ted under section 1342(b) of this title, (E) in approving or

promulgating any effluent limitation or other limitation

under section 1311, 1312, 1316, or 1345 of this title, (F) in

issuing or denying any permit under section 1342 of this

title, and (G) in promulgating any individual control

strategy under section 1314(l) of this title, may be had by

any interested person in the Circuit Court of Appeals of

the United States for the Federal judicial district in

which such person resides or transacts business which is

directly affected by such action upon application by such

person....

33 U.S.C. s 1369(b)(1) (emphasis added). Industry petition-

ers assert that the language specifying review in the circuit

where a petitioner "resides or transacts business" is jurisdic-

tional. They urge us to dismiss for lack of jurisdiction

because, they claim, only one of the NWF petitioners--the

Clark Fork-Pend Oreille Coalition--"resides or transacts

business" in the Ninth Circuit, and this petitioner lost stand-

ing (or, alternatively, its claim became moot) nine months

after NWF's petition was filed. Disagreeing, NWF argues

that the "resides or transacts business" clause in section

509(b)(1) is a venue provision, that venue in the Ninth Circuit

was properly established, and that Industry petitioners'

standing and mootness arguments are without merit. To

resolve Industry petitioners' motion to dismiss, we need

address only the parties' disagreement over the meaning of

section 509(b)(1).

So far as we can tell, no court has yet decided whether the

"resides or transacts business" requirement of section

509(b)(1) is jurisdictional. Courts and commentators, howev-

er, have assumed that similar provisions in other statutes

determine venue, not jurisdiction. See Fed. Power Comm'n

v. Texaco, 377 U.S. 33, 37-39 (1964) (assuming a provision

stating that an aggrieved party "may obtain review ... in the

court of appeals of the United States for any circuit wherein

the natural-gas company to which the order relates is located

or has its principal place of business, or in the United States

Court of Appeals for the District of Columbia" was a venue

provision, despite an explicit reference to "jurisdiction" later

in the provision, see 15 U.S.C. s 717r(b)); 15 Charles Alan

Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure s 3816 at 166-67 n.4 (2d ed. 1986)

(implying that a provision in the Federal Trade Commission

Act allowing review in "any circuit ... where such person,

partnership, or corporation resides or carries on business" is

a venue provision). Moreover, in Texas Municipal Power

Agency v. EPA, 89 F.3d 858 (D.C. Cir. 1996), we decided that

an analogous provision of the Clean Air Act, section 307(b)(1),

determines venue. That section provides that

[a] petition for review of action of the Administrator in

promulgating any national primary or secondary ambient

air quality standard, [any standard or any requirements

under a variety of other specified sections of the Act], or

any other nationally applicable regulations promulgated,

or final action taken, by the Administrator under this

chapter may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for

review of ... any other final action of the Administrator

under this chapter ... which is locally or regionally

applicable may be filed only in the United States Court

of Appeals for the appropriate circuit.

42 U.S.C. s 7607(b)(1) (emphasis added). We rejected EPA's

contention that the section was jurisdictional. Noting that it

"[could] be read as prescribing the choice among circuits and

not the power of a particular federal circuit court to hear a

claim," see Texas Mun., 89 F.3d at 867, we suggested that

"the provision's reference to where a petitioner may 'file' "

and its "unequivocal characterization in the legislative history

as a venue provision" both supported the view that it speci-

fied venue. Id. Although we acknowledged that there was

"some 'jurisdictional' language" elsewhere in the section, such

as a "clearly jurisdictional 60-day limit for filing petitions for

review," and that the language was "mandatory rather than

providing a 'choice' of circuits," we nevertheless thought these

facts "not determinative":

we think it more significant that federal court power to

entertain petitions is clear, that the provision refers to

where a petitioner must file, and that the apparent

congressional purpose was to place nationally significant

decisions in the D.C. Circuit. Given the less than clear

language, the structure of the section--dividing cases

among the circuits--and the legislative history indicate

that s 307(b)(1) is framed more as a venue provision.

Id.

In light of Texas Municipal, we think the statute at issue

in this case determines venue, not jurisdiction. Like the

statutory language in Texas Municipal, section 509(b)(1)'s

language--"[r]eview of the Administrator's action ... may be

had by any interested person in the Circuit Court of Appeals

of the United States for the Federal judicial district in which

such person resides or transacts business"--is best read as

"prescribing the choice among circuits and not the power of a

particular federal circuit court to hear a claim." See Texas

Mun., 89 F.3d at 867. In fact, for at least two reasons, this

reading has even more facial plausibility here than it did in

Texas Municipal. To begin with, the provision at issue in

Texas Municipal contained exclusive language stating that a

petition for review "may be filed only" in the specified circuit.

See id. at 867 n.6 (emphasis added). Despite similar language

in, for example, the general venue statute for the district

courts, see 28 U.S.C. s 1391 (a) & (b), this exclusive language

could have been taken to suggest that the specified court had

exclusive jurisdiction over a particular kind of case. In

concluding otherwise, we relied on a variety of other factors,

including the legislative history and the provision's focus on

where a petitioner had to "file." Because section 509(b)(1)

contains no such exclusive language, it is far less plausible to

think it confers exclusive jurisdiction in the first place. The

Clean Air Act provision at issue in Texas Municipal, more-

over, required petitioners to file particular kinds of petitions

in particular courts--petitions for review of national actions in

this circuit, and petitions for review of regional actions in the

geographically appropriate circuit. Section 509(b)(1) simply

allows for review of any enumerated claim in whichever

circuit an interested person resides or transacts business. Its

purpose is thus even more clearly to "divid[e] cases among

the circuits," see Texas Mun., 89 F.3d at 867, placing deci-

sions in the circuits in which "interested person[s]" are locat-

ed, and thus ensuring, as EPA suggests, that "the appellate

court that hears the matter has some direct connection to the

parties involved in the proceeding." Brief for EPA at 3.

Our conclusion that section 509(b)(1) determines venue

finds further support from the fact that, as in Texas Munici-

pal, "federal court power to entertain petitions" under the

section is clear: under section 509(b)(1), every interested

person challenging an enumerated action has a court in which

to obtain review. Industry petitioners' interpretation con-

flicts with this broad grant of power, since under their

reading, "the punishment for a petitioner's failure to file its

petition initially in the proper circuit court of appeals ... is

dismissal of the petition for want of jurisdiction, even where

the petitioner otherwise can demonstrate standing to bring its

petition," Brief for EPA at 3, thus either denying review to an

otherwise qualified person, if the statute of limitations has

run, or making review more burdensome. Reading section

509(b)(1) as a venue provision comports better with the broad

grant of appellate authority, since the standard remedy for

improper venue is to transfer the case to the proper court

rather than dismissing it--thus preserving a petitioner's abili-

ty to obtain review. See Wright, Miller, & Cooper s 3827 at

268-29 ("It is not surprising that in most cases of improper

venue the courts conclude that it is in the interest of justice to

transfer to a proper forum rather than to dismiss.").

Disagreeing with this reading of the statute, Industry

petitioners argue that Texas Municipal actually supports

their claim that section 509(b)(1) is jurisdictional, pointing out

that the provision at issue in that case specified where a

petition for review "may be filed," while the provision here

specifies where "[r]eview ... may be had." Noting that our

decision in Texas Municipal singled out, among other factors,

"the provision's reference to where a petitioner may 'file,' "

Texas Mun., 89 F.3d at 867, Industry petitioners argue that

"the Court recognized [in Texas Municipal] that the lan-

guage in Clean Air Act s 307(b)(1) is intended to limit the

petitioner's ability to file a challenge to agency action in

particular fora. The language of Clean Water Act

s 509(b)(1), on the other hand, limits the court's ability to

review such a petition." Brief for Appellant at 7 n.1.

Though perhaps not "frivolous" in the Rule 11 sense, see

Fed. R. Civ. P. 11(b)(2), this argument is exceptionally uncon-

vincing. As we have already pointed out, our concern with

the word "file" in Texas Municipal was motivated by the

exclusive language in the provision there--language not found

in section 509(b)(1). More to the point, it is simply not clear,

as Industry petitioners assert, that section 509(b)(1)'s lan-

guage focuses on courts rather than petitioners. The provi-

sion does not explicitly address the courts: it does not say,

for example, that "only the court where any interested party

resides" may review a petition. Instead, it limits only where

review "may be had." And unlike the other provisions Indus-

try petitioners mention that confer jurisdiction based on

residence, section 509(b)(1) never uses the word "jurisdic-

tion." Cf., e.g., 26 U.S.C. s 7609(h)(1); Deal v. United States,

759 F.2d 442, 444 (5th Cir. 1985) (interpreting 26 U.S.C.

s 7609(h)(1) as a jurisdictional provision). Moreover, al-

though section 509(b)(1) does not use the word "file," it does

state that review may be had by an interested person in the

appropriate circuit "upon application by such person" (em-

phasis added). Thus, like the provision in Texas Municipal,

it clearly directs petitioners where to file.

Even more unconvincing is Industry petitioners' second

(and main) argument for reading section 509(b)(1) as jurisdic-

tional. Pointing out that courts have found other provisions

in the same section--such as the enumeration of Administra-

tor actions and the limitation to "interested persons"--to be

jurisdictional, see City of Baton Rouge v. EPA, 620 F.2d 478,

480 (5th Cir. 1980) (stating that "the Courts of Appeals have

jurisdiction for direct review only of those EPA actions

specifically enumerated in 33 U.S.C. s 1369(b)(1)"), Mont-

gomery Envtl. Coalition v. Costle, 646 F.2d 568, 577-78 (D.C.

Cir. 1980) (finding that the term "interested person" in

section 509(b) incorporates the jurisdictional injury-in-fact

requirement), Industry petitioners argue that it would be

"anomalous if all the different limitations on judicial review

embodied in section 509(b)(1) are considered jurisdictional

except the provision limiting the court in which review may be

had." Brief for Appellant at 6. Wholly undercutting this

argument, Texas Municipal found the fact that the judicial

review provision at issue there also contained some jurisdic-

tional restrictions to be "not determinative." 89 F.3d at 867.

Industry petitioners could have argued--but did not--that

unlike in Texas Municipal, the legislative history of the Clean

Water Act is not "unequivocal." The Senate Report accom-

panying the original Senate version of the Act states that

"[f]or ... actions which run only to one region, [section 509]

places jurisdiction in the U.S. Court of Appeals for the

Circuit in which the affected State or region ... is located."

S. Rep. No. 92-414, at 85 (1971) (emphasis added). Even if

the significance of this snippet of legislative history were

clear, we doubt it would change our view of section 509(b)(1).

For at least two reasons, however, its significance is not at all

clear. First, the judicial review provision in the Senate

version of the bill differed substantially from the one enacted.

See S. Conf. Rep. No. 92-1236, at 147-48 (1972). The legisla-

tive history cited above thus cannot be viewed as commenting

directly on the language at issue here. Second, Congress

subsequently revised section 509(b)(1), changing the original

phrase, "resides or transacts such business," to "resides or

transacts business which is directly affected by such ac-

tion...." See Historical and Statutory Notes, 1987 Amend-

ment, 33 U.S.C.A. s 1369, at 381 (West Supp. 2000). The

legislative history accompanying these revisions expressly

refers to section 509(b)(1) as a "venue" provision at least six

separate times. See S. Rep. No. 99-50, at 31 (1985) ("The

purpose of the changes ... is to clarify the proper venue for

court of appeals review....") (emphasis added); id. at 32

("In order to eliminate ... the potential for threshold litiga-

tion over proper venue, the Committee amendment changes

the venue provision....") (emphasis added); H.R. Conf. Rep.

No. 99-1004, at 164 (1986) ("The purpose of the changes ...

is to clarify the proper venue for court of appeals review....

The Senate bill provides that proper venue for judicial review

... shall be in the Circuit Court of Appeals [where] the

applicant resides or transacts business....") (emphasis add-

ed); Section-by-Section Analysis of the Water Quality Act of

1987, 133 Cong. Rec. H131 (daily ed. Jan. 7, 1987), reprinted

in 1987 U.S.C.C.A.N. 5, 42 ("Subsection (a) amends Section

509(b)(1) ... by modifying the choice of venue available for

persons seeking judicial review of certain actions taken by the

Administrator.") (emphasis added). Though it is certainly

true, as Industry petitioners argue, that "subsequent legisla-

tive history is a hazardous basis for inferring the intent of an

earlier Congress," Pension Benefit Guaranty Corp. v. LTV

Corp., 496 U.S. 633, 650 (1990) (internal quotation marks

omitted), it is nonetheless sufficient in this case to offset any

weight we might give the fragment from the earlier Senate

Report.

In view of these considerations, we hold that section

509(b)(1) determines venue, not jurisdiction. Since objections

to venue may be waived, see Wright, Miller, & Cooper

s 3829 at 309, and since Industry petitioners concede that

"[t]he proper venue of the present case is no longer at issue,"

Reply Brief for Appellant at 2, we reach neither Industry

petitioners' nor NWF's remaining arguments. Industry peti-

tioners' motion to dismiss is denied, and their additional

motion for sanctions is deferred to the merits panel.

So ordered.