Amicus Curiae Brief — Marquette County Road Commission, Petitioner v. Environmental Protection Agency, et al.

No. 18-555

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------MARQUETTE COUNTY ROAD COMMISSION,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE

SOUTHEASTERN LEGAL FOUNDATION AND

MACKINAC CENTER FOR PUBLIC POLICY

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amici Curiae

November 28, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether an arbitrary and capricious EPA veto of

a state-approved CWA § 404 permit, a final agency action that denies the state-approved permit forevermore, and binds all parties, is subject to judicial review

under the APA.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

TABLE OF CONTENTS ........................................

ii

TABLE OF AUTHORITIES ...................................

iii

INTEREST OF AMICI CURIAE ...........................

1

SUMMARY OF ARGUMENT ................................

2

ARGUMENT ...........................................................

4

I. A strong presumption of reviewability supports judicial review of all EPA final agency

decisions .......................................................

4

A. Judicial review of the EPA’s veto of the

state-approved permit is presumed ......

4

B. Congress did not preclude judicial review of the EPA veto..............................

7

II. Denying judicial review of the EPA’s final

agency decisions violates separation of powers principles ................................................ 11

CONCLUSION .......................................................

15

iii

TABLE OF AUTHORITIES

Page

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .......... 7, 9

Alden v. Maine, 527 U.S. 706 (1999) ...........................12

Am. Sch. of Magnetic Healing v. McAnnulty, 187

U.S. 94 (1902) ............................................................4

Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150 (1970) ........................................9

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) .......... 8

Bowen v. Mich. Acad. of Family Physicians, 476

U.S. 667 (1986) .......................................... 2, 4, 7, 8, 9

City of Arlington, Tex. v. FCC, 133 S. Ct. 1863

(2013) ................................................................. 11, 12

Clinton v. City of New York, 524 U.S. 417 (1988)..... 3, 13

Dunlop v. Bachowski, 421 U.S. 560 (1975) ...................9

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) ...................... 11, 14

Geigow v. Uhl, 239 U.S. 3 (1915) ..................................5

Lane v. Hoglund, 244 U.S. 174 (1917) ..........................5

Lloyd Sabaudo Societa Anonima Per Azioni v.

Elting, 287 U.S. 329 (1932) ................................... 5, 6

Mach Mining, LLC v. EEOC, 575 U.S. ___ (2015) .........7

Marbury v. Madison, 5 U.S. 137 (1803) ........................4

McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

479 (1991) ................................................................10

iv

TABLE OF AUTHORITIES – Continued

Page

Nat’l Labor Relations Bd. v. Union Food & Commercial Workers Union, 484 U.S. 112 (1987) ............8

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617

(2018) .........................................................................1

Rapanos v. United States, 547 U.S. 715 (2006) ..........13

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004) .....................................10

Sackett v. EPA, 132 S. Ct. 1367 (2012) ......... 2, 3, 13, 14

Shalala v. Ill. Council on Long Term Care, Inc.,

529 U.S. 1 (2000) .......................................................8

Solid Waste Agency of N. Cook Cty. v. Army Corps

of Eng’rs, 531 U.S. 159 (2001) .................................13

Stark v. Wickard, 321 U.S. 288 (1944) ...................... 6, 9

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

(1994) ................................................................... 8, 10

United States v. Nourse, 9 Pet. 8 (1835) .......................2

U.S. Army Corps of Eng’rs v. Hawkes Co., 136

S. Ct. 1807 (2016) ......................................................3

Util. Air Regulation Group, et al. v. EPA, 134

S. Ct. 2427 (2014) ......................................................1

Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv.,

No. 17-71 (Nov. 27, 2018) ..........................................7

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ........................................................12

v

TABLE OF AUTHORITIES – Continued

Page

STATUTES

5 U.S.C. §§ 701 et seq. ...................................................2

5 U.S.C. § 702.............................................................7

5 U.S.C. § 704.............................................................2

33 U.S.C. §§ 1251 et seq. ..................................... passim

33 U.S.C. § 1251(c) ...................................................10

33 U.S.C. § 1362(7) ..................................................13

Pub. L. No. 95-217, 91 Stat. 1566 (Dec. 27, 1977) ........10

REGULATIONS

Clean Water Rule: Definition of “Waters of the

United States,” 80 Fed. Reg. 37,053-37,127

(Jun. 29, 2015) .........................................................14

RULES

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

OTHER AUTHORITIES

Charles Pinckney, Observations of the Plan of

Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 M. Farrand, Records of the Federal Convention of

1787 (rev. ed. 1966).............................................. 3, 13

vi

TABLE OF AUTHORITIES – Continued

Page

Louis L. Jaffe, Judicial Control of Administrative Action 320 (1965) ................................................2

S. Rep. No. 752, 79th Cong., 1st Sess. (1945) ...............7

The Federalist No. 45 (James Madison) (Clinton

Rossiter ed., 1961) ...................................................11

The Federalist Nos. 47-51 (James Madison)

(Clinton Rossiter ed., 1961) ....................................13

1

INTEREST OF AMICI CURIAE1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates constitutional individual liberties, limited government, and free enterprise in the courts of law and public opinion. SLF

drafts legislative models, educates the public on key

policy issues, and litigates regularly before the Supreme Court, including such cases as Utility Air Regulation Group, et al. v. EPA, 134 S. Ct. 2427 (2014) and

National Ass’n of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018).

The Mackinac Center for Public Policy (the Center) is a Michigan-based, nonpartisan research and

educational institute advancing policies fostering free

markets, limited government, personal responsibility,

and respect for private property. The Center is a 501(c)(3)

organization founded in 1987.

This case is of particular interest to amici because

the EPA’s assertion that courts are precluded from

reviewing its veto of state-approved plans is a prime

example of the executive branch’s unconstitutional

usurpation of power through creation of an expansive administrative state. Over the last decade, the

1

Amici curiae notified the parties 10 days before of their intent and request to file this brief. All parties consented to the filing of this brief in letters. See Sup. Ct. R. 37.2(a). No counsel for a

party has authored this brief in whole or in part, and no person

other than amici curiae, their members, and their counsel has

made a monetary contribution to the preparation or submission

of this brief. See Sup. Ct. R. 37.6.

2

administrative state has grown in two primary ways –

through the launching of new agencies and through

the expansion of existing agencies’ reach. While both

means of growth offend the founding principles of limited government and enumerated powers, the latter is

of prime concern because expansion of administrative

power raises serious constitutional concerns.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

“The availability of judicial review, is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be

legitimate, or legally void.” Louis L. Jaffe, Judicial

Control of Administrative Action 320 (1965). The common law presumption of reviewability grew out of the

constitutionally protected right to claim protection of

the laws. See Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) (citing United States v.

Nourse, 9 Pet. 8, 28-29 (1835)). Congress codified the

presumption of reviewability when it enacted the Administrative Procedure Act (APA). 5 U.S.C. §§ 701 et

seq. In designing the APA, Congress expressly provided

judicial review of final agency action, 5 U.S.C. § 704,

which is exactly what the EPA veto here is.

“The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation

conquers all.” Sackett v. EPA, 132 S. Ct. 1367, 1374

(2012). Unless an administrative agency can establish

that Congress intended to preclude judicial review,

3

courts have the power to review challenges like the one

here. It is true that Congress gave the EPA the authority to veto a state-approved permit, but it did not make

such decisions which effectively remove state input

and control of the permitting process, unreviewable.

That the EPA argues such, runs roughshod over the

Clean Water Act and the APA.

In addition, the EPA’s insistence that its veto is

unreviewable violates separation of powers principles.

The Framers of the Constitution sought to create a

government structure limited in nature. “Liberty is always at stake when one or more of the branches seek

to transgress the separation of powers.” Clinton v. City

of New York, 524 U.S. 417, 450 (1988). “In a government, where liberties of the people are to be preserved

. . . , the executive, legislative and judicial, should ever

be separate and distinct, and consist of parts, mutually

forming a check upon each other.” Charles Pinckney,

Observations of the Plan of Government Submitted to

the Federal Convention of May 28, 1787, reprinted in 3

M. Farrand, Records of the Federal Convention of 1787,

p.108 (rev. ed. 1966).

The strong presumption of reviewability supports

judicial review of the EPA’s veto of the state-approved

permit, as do basic separation of powers principles.

While it is regrettable that the Court needs to do so,

this case provides the Court with an opportunity to

make clear that it meant what it said in Sackett, 132

S. Ct. 1367, and U.S. Army Corps of Engineers v.

4

Hawkes Co., 136 S. Ct. 1807 (2016) – the EPA’s final

agency actions are judicially reviewable.

------------------------------------------------------------------

ARGUMENT

I.

A strong presumption of reviewability supports judicial review of all EPA final agency

decisions.

A. Judicial review of the EPA’s veto of the

state-approved permit is presumed.

1. This Court’s precedent antedating the APA

supports judicial review of executive action. In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice Marshall declared: “The very essence of civil liberty

certainly consists in the right of every individual to

claim the protection of the laws.” Id. at 163. In the constitutionally protected right to claim protection of

the laws is a strong presumption of judicial review.

See Bowen, 476 U.S. at 670 (citing Nourse, 9 Pet. at 2829).

Throughout history, the Court has emphasized the

need for the judiciary to review executive actions. And

despite a period of judicial restraint that resulted only

out of deference to Congress, by the early 20th century,

any perceived barriers to judicial review faded away.

See Am. Sch. of Magnetic Healing v. McAnnulty, 187

U.S. 94, 108 (1902) (explaining that the acts of all administrative agency “officers must be justified by some

law, and in the case an official violates the law to

the injury of an individual the courts generally have

5

jurisdiction to grant relief ”). The increased level of executive actions and the already growing administrative state underscored the need for judicial review.

In 1915, the Court reaffirmed the common law presumption of reviewability when it reviewed the Acting

Commissioner of Immigration’s detention of a group of

aliens for the purpose of deportation even though the

statute at issue did not provide for judicial review.

Geigow v. Uhl, 239 U.S. 3, 8 (1915). Writing for the

Court, Justice Oliver Wendall Holmes explained that

judicial review was appropriate because the statute

did not forbid courts from considering whether the

Commissioner’s act violated the statute. Id. at 9. In doing so, Justice Holmes made clear that under the common law, unless a statute forbids judicial review, the

courts have both the power and duty to review challenged executive actions.

Over the next few decades, the Court continued to

stress the need for judicial review of administrative actions. For example, in Lane v. Hoglund, 244 U.S. 174

(1917), the Court reviewed the actions of the Secretary

of Interior taken under a homestead law. In doing so,

the Court found judicial review of administrative acts

both appropriate and necessary, explaining that to find

otherwise would “limit[ ] the powers of the court” and

“be most unfortunate, as it would relieve from judicial

supervision all executive officers in the performance of

their duties.” Id. at 182. And in Lloyd Sabaudo Societa

Anonima Per Azioni v. Elting, 287 U.S. 329 (1932), the

Court reviewed the Secretary of Labor’s imposition of

fines against steamship companies for bringing aliens

6

with illnesses into the United States. The Court explained that it had the power to review the administrative action because even though “Congress confer[red]

on the Secretary great power, . . . it is not wholly uncontrolled.” Id. at 339.

In 1944, the “powers of the court” to review executive actions that the Court so often spoke about received their greatest affirmation and explanation. In

Stark v. Wickard, 321 U.S. 288 (1944), the Court explained that the presumption of reviewability arises

from Article III of the United States Constitution because “[t]he responsibility of determining the limits of

statutory grants of authority . . . is a judicial function

entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.” Id.

at 310. The Court continued: “Under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual

rights whether by unlawful action of private persons

or by the exertion of unauthorized administrative

power.” Id. Starting with the presumption of reviewability inherent in the Constitution, the Court reviewed

the statute governing the Secretary of Agriculture’s actions and, finding it silent as to judicial review, explained that “the silence of Congress as to judicial

review is . . . not to be construed as a denial of authority to the aggrieved person to seek appropriate relief in

the federal courts in the exercise of their general jurisdiction.” Id. at 309.

2. In 1946, Congress enacted the Administrative

Procedure Act and codified “the basic presumption of

7

judicial review to one ‘suffering legal wrong because of

agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute.’ ” Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)

(quoting 5 U.S.C. § 702). As the Court explained again

this term, “legal lapses and violations occur, and especially so when they have no consequence. That is why

this Court has so long applied a strong presumption

favoring judicial review of administrative action.”

Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., No.

17-71, slip op. at 11 (Nov. 27, 2018) (quoting Mach

Mining, LLC v. EEOC, 575 U.S. ___, ___-___ (2015) (slip

op., at 7-8)). When determining whether administrative action like the EPA veto is subject to judicial review, the Court demands that the APA’s “generous

review provisions . . . be given a hospitable interpretation.” Id. at 141 (internal quotations omitted). Both the

Court and Congress have emphasized that “ ‘very

rarely do statutes withhold judicial review[ ]’ ” because

to do so would convert statutes into “blank checks

drawn to the credit of some administrative officer or

board.” Bowen, 476 U.S. at 671 (quoting S. Rep. No. 752,

79th Cong., 1st Sess., 26 (1945)).

B. Congress did not preclude judicial review of the EPA veto.

This Court’s precedent establishes “that judicial

review of a final agency action by an aggrieved person

will not be cut off unless there is persuasive reason to

believe that such was the purpose of Congress.” Bowen,

476 U.S. at 670 (quoting Abbott Labs, 387 U.S. at 140).

8

“Statutory preclusion of judicial review must be demonstrated clearly and convincingly.” Nat’l Labor Relations Bd. v. Union Food & Commercial Workers Union,

484 U.S. 112, 131 (1987). Although this Court does not

apply the “clear and convincing standard” in a strictly

evidentiary sense, “the standard serves as ‘a useful

reminder to courts that, where substantial doubt

about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.’ ” Bowen, 476 U.S. at 672 n.3

(quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340,

350-51 (1984)).

Various considerations inform the Court’s analysis

of whether Congress intended to foreclose a given avenue of judicial review, including the nature of the

administrative action, and the statute’s language,

structure, objectives, and legislative history. See Block,

467 U.S. at 349; see also Bowen, 476 U.S. at 673. The

leading consideration in determining whether Congress precluded judicial review is whether a party can

obtain meaningful judicial review of the agency action

at issue if review under the APA is precluded. See

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207

(1994); Shalala v. Ill. Council on Long Term Care, Inc.,

529 U.S. 1 (2000).

The text of the Clean Water Act, 33 U.S.C.

§§ 1251 et seq., contains no provision that explicitly

prohibits judicial review when the EPA vetoes a permit

approved under a state § 404 program. Indeed, the

statute says nothing at all about judicial review of such

vetoes. “[S]ilence of Congress as to judicial review is

9

. . . not to be construed as a denial of authority to the

aggrieved person to seek appropriate relief in federal

courts.” Stark, 321 U.S. at 309; see also Dunlop v.

Bachowski, 421 U.S. 560, 566-67 (1975); Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157

(1970).

Because the plain words of the Clean Water Act

lack an express prohibition against judicial review, the

EPA “bears the heavy burden of overcoming the strong

presumption that Congress did not mean to prohibit

all judicial review of [its] decision.” Dunlop, 421 U.S. at

567. The presumption of reviewability demands that

“[t]he question is phrased in terms of ‘prohibition’ rather than ‘authorization[.]’ ” Id. (quoting Abbott Labs,

387 U.S. at 140). “[O]nly upon a showing of ‘clear and

convincing evidence’ of a contrary legislative intent

should the courts restrict access to judicial review.” Id.

(quoting Abbott Labs, 387 U.S. at 141).

Turning to the remaining factors the Court considers, the EPA has offered no evidence that the legislative history of the Clean Water Act supports

preclusion. See Bowen, 476 U.S. at 673 (noting that

the Court will consider “specific legislative history that

is a reliable indicator of congressional intent”). That

is because the Clean Water Act’s legislative history

contains no specific statement that would support preclusion of judicial review of the EPA’s veto of a stateapproved permit.

Finally, judicial review of the EPA’s final agency

decision to veto the state-approved permit is consistent

with the objective of the Clean Water Act. The Clean

10

Water Act’s “stated objective was ‘to restore and maintain the chemical, physical, and biological integrity of

the Nation’s waters.’ ” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004) (quoting 33 U.S.C. § 1251). Judicial review of the EPA’s final

agency action vetoing a state-approved permit in no

way defeats the purpose of the Clean Water Act. Instead, it is consistent with Congress’ recognition that

the states should have the primary right and responsibility over the development and use of land and water

resources. 33 U.S.C. § 1251(c) (added by Pub. L. No. 95217 § 5(a), 91 Stat. 1566 (Dec. 27, 1977)). This statutory

objective is carried out by the state § 404 programs and

statutory procedures regarding how the state and EPA

work together on § 404 permit applications. Under

those procedures, the EPA may veto a state-approved

permit. Judicial review of this veto is imperative to ensuring that the state’s original reasons for granting the

permit are not wholly dismissed by the federal agency

and that the EPA does not override Congress’ intent to

leave primary responsibility for land and water resources to the states. The EPA should not be permitted

to skirt judicial review and run roughshod over the

states.

Finally, the leading consideration in determining

whether the Clean Water Act precludes judicial review

is whether Respondents can otherwise obtain meaningful judicial review. Thunder Basin, 510 U.S. at 207.

This consideration assumes that Congress does not intend to foreclose meaningful judicial review which

would deny due process. McNary v. Haitian Refugee

11

Ctr., Inc., 498 U.S. 479, 496-97 (1991); see also Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130

S. Ct. 3138, 3150-51 (2010). The Clean Water Act offers

no “meaningful” review of the EPA’s veto of a stateapproved permit. In fact, the CWA offers no review

whatsoever. As Petitioner explains, a landowner’s only

option in this situation is to give up on the project or to

start the permit process over with the Army Corps of

Engineers.

II.

Denying judicial review of the EPA’s final

agency decisions violates separation of powers principles.

“The administrative state ‘wields vast power and

touches almost every aspect of daily life.’ ” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1878 (2013) (Roberts, C.J., dissenting) (quoting Free Enter. Fund, 130

S. Ct. at 3156). “[T]he authority administrative agencies now hold over our economic, social, and political

activities,” id. at 1878, stands in stark contrast to

the government of enumerated powers the Framers

envisioned. Our Founding Fathers sought to create a

government structure limited in nature – as James

Madison explained in an effort to ease concerns that

the proposed national government would usurp the

People’s power to govern themselves: “The powers delegated by the proposed Constitution to the federal government are few and defined . . . [and] will be exercised

principally on external objects, as war, peace, negotiation, and foreign commerce. . . .” The Federalist No. 45

(James Madison), at 289 (Clinton Rossiter ed., 1961).

12

Today’s wide-reaching “ ‘administrative state with

its reams of regulations would leave [the Founders]

rubbing their eyes.’ ” City of Arlington, 133 S. Ct. at

1878 (quoting Alden v. Maine, 527 U.S. 706, 807 (1999)

(Souter, J., dissenting)). “It would be a bit much to describe the result as the very definition of tyranny, but

the danger posed by the growing power of the administrative state cannot be dismissed.” Id. at 1879 (citation and quotation omitted).

In Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952), the Members of the Court warned that

the “accretion of dangerous power” is spawned by “unchecked disregard of the restrictions that fence in even

the most disinterested assertion of authority.” Id. at

594 (Frankfurter, J., concurring). The purpose of the

separation of powers is “not to avoid friction, but, by

means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Id. at

629. As Justice Jackson stressed, any presidential

claim to power “at once so conclusive and preclusive

must be scrutinized with caution, for what is at stake

is the equilibrium established by our constitution.” Id.

at 638 (Jackson, J., concurring).

Under these principles, any action by which one

branch of the federal government presumes to encroach upon the constitutionally assigned functions of

another branch presents a fundamental threat to liberty. “In a government, where the liberties of the people are to be preserved . . . , the executive, legislative

and judicial, should ever be separate and distinct, and

13

consist of parts, mutually forming a check upon each

other.” Charles Pinckney, Observations on the Plan of

Government Submitted to the Federal Convention of

May 28, 1787, reprinted in 3 M. Farrand, Records of the

Federal Convention of 1787, p.108 (rev. ed. 1966). See

The Federalist Nos. 47-51 (James Madison) (Clinton

Rossiter ed. 1961) (explaining and defending the Constitution’s structural design of separated powers).

“Liberty is always at stake when one or more of the

branches seek to transgress the separation of powers.”

Clinton, 524 U.S. at 450 (Kennedy, J., concurring); see

id. at 447 (opinion for the Court) (striking down the

line-item veto as unconstitutional because it “gives the

President the unilateral power to change the text of

duly enacted statutes”).

There are few administrative agencies whose actions exhibit the tyranny that our Founding Fathers

feared more than the EPA. For example, Congress

could have never predicted the vast expansion of jurisdiction that EPA has pursued since the Clean Water

Act was enacted in 1972. The Clean Water Act provides

that it covers “the waters of the United States,” 33

U.S.C. § 1362(7), but Congress did not define what it

meant by “the waters of the United States.” Since 1972,

“the EPA and the Army Corps of Engineers interpreted

the phrase as an essentially limitless grant of authority.” Sackett, 132 S. Ct. at 1375 (Alito, J., concurring).

Time and again, this Court has rejected the EPA’s expansive interpretation of its jurisdiction. See Rapanos

v. United States, 547 U.S. 715, 732-39 (2006) (plurality

opinion); Solid Waste Agency of N. Cook Cty. v. Army

14

Corps of Eng’rs, 531 U.S. 159, 167-74 (2001); Clean Water Rule: Definition of “Waters of the United States,”

80 Fed. Reg. 37,053-37,127 (Jun. 29, 2015).

The executive branch’s latest attempt to expand

its own powers underscores the need for judicial review

when it vetoes a state-approved permit. The EPA’s

insistence that the judiciary lacks any power to review its final agency decisions shows as much. Here,

preclusion not only conflicts with the presumption of

reviewability founded in common law and codified in

the APA, but it runs afoul of the Constitution. As this

Court has explained, “a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse” than

a judiciary that reviewed agency action. Free Enter.

Fund, 130 S. Ct. at 3157 (internal quotation marks, alterations, and citations omitted).

“The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation

conquers all.” Sackett, 132 S. Ct. at 1374 (majority

opinion). The lack of Congressional intent to preclude

judicial review and lack of meaningful judicial review

combined with the clear violation of separation of powers principles that preclusion would cause, supports

granting the Petition to reverse the decision below.

------------------------------------------------------------------

15

CONCLUSION

For the reasons stated in the Petition for a Writ of

Certiorari and this amici curiae brief, this Court

should grant the Petition and reverse the judgment of

the Sixth Circuit.

Respectfully submitted,

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

560 W. Crossville Rd., Ste. 104

Roswell, GA 30075

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amici Curiae

November 28, 2018