Petition for Writ of Certiorari — California Trout, et al., Petitioners v. Hoopa Valley Tribe, et al.
Supreme Court briefAug 26, 2019
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No. 19-________
================================================================================================================
In The
Supreme Court of the United States
-----------------------------------------------------------------CALIFORNIA TROUT & TROUT UNLIMITED,
Petitioners,
v.
HOOPA VALLEY TRIBE & FEDERAL
ENERGY REGULATORY COMMISSION, et al.,
Respondents.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI
-----------------------------------------------------------------RICHARD ROOS-COLLINS
JULIE GANTENBEIN
WATER AND POWER
LAW GROUP PC
2140 Shattuck Avenue,
Suite 801
Berkeley, CA 94704
Counsel for Petitioner
California Trout
BRIAN JOHNSON
TROUT UNLIMITED
5950 Doyle Street,
Suite 2
Emeryville, CA 94608
Counsel for Petitioner
Trout Unlimited
ANDREW H. ERTESCHIK
Counsel of Record
SAAD GUL
JOHN MICHAEL DURNOVICH
COLIN R. MCGRATH
NATHANIEL C. ZINKOW
POYNER SPRUILL LLP
Post Office Box 1801
Raleigh, NC 27602
(919) 783-2895
aerteschik@poynerspruill.com
Counsel for Petitioners
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
The federal government licenses projects that
affect the nation’s waters, but the role of ensuring that
these projects comply with water-quality requirements
is reserved for the states. Under the Clean Water Act,
applicants for these projects must request and obtain
a certification from the affected states that any
discharges into the water will comply with federal and
state water-quality requirements.
States must “act” within one year of a request, or
under section 401 of the Clean Water Act, they waive
their authority to certify the applicant’s compliance
with water-quality requirements. 33 U.S.C. § 1341. In
complex cases, however, applicants and states alike
require more than a year to develop the record that
states need to make a decision. Thus, applicants often
withdraw and resubmit their request before the oneyear period expires to avoid forcing the state to decide
the request prematurely.
In the decision below, however, the D.C. Circuit
held that when applicants take this approach, it
results in a waiver of the states’ Clean Water Act
authority. In doing so, the court deepened a circuit
conflict, and it struck a significant blow to the states’
role in ensuring the quality of our nation’s waters.
The question presented is: Do states waive their
authority under section 401 of the Clean Water Act if
they do not approve or deny a certification request
within one year, even when an applicant withdraws
and resubmits the request before that one year ends?
ii
PARTIES
Petitioners California Trout and Trout Unlimited
were intervenors in the proceedings below.
California Trout is a nonprofit organization
dedicated to protecting California’s water resources
while balancing the needs of wild fish and people.
Trout Unlimited is a national nonprofit organization
dedicated to conserving, protecting, and restoring North
America’s coldwater fisheries and their watersheds.
The Hoopa Valley Tribe was the petitioner in the
proceedings below and is therefore a respondent here.
The Federal Energy Regulatory Commission was a
respondent in the proceedings below and is therefore a
respondent here.
American Rivers, Klamath Water Users Association,
PacifiCorp, Upper Klamath Water Users Association,
and Siskiyou County were intervenors in the proceedings
below and are therefore respondents here.
RULE 29.6 DISCLOSURE
California Trout is a nonprofit corporation organized
under the laws of the State of California. It has no
parent company, and no publicly traded corporation
owns ten percent or more of any of its stock.
Trout Unlimited is a nonprofit corporation organized
under the laws of the State of Michigan. It has no
parent company, and no publicly traded corporation
owns ten percent or more of any of its stock.
iii
RELATED CASES
•
PacifiCorp, Project No. 2082-058, Federal Energy
Regulatory Commission. Judgment entered June
19, 2014.
•
Hoopa Valley Tribe v. Federal Energy Regulatory
Commission, No. 14-1271, U.S. Court of Appeals
for the District of Columbia Circuit. Judgment
entered January 25, 2019.
iv
TABLE OF CONTENTS
OPINIONS BELOW .....................................................1
JURISDICTION ...........................................................1
STATUTORY PROVISIONS INVOLVED....................1
INTRODUCTION..........................................................2
STATEMENT................................................................8
I.
The States’ Role Under the Clean Water
Act.......................................................................8
II.
The Klamath Project..................................... 10
III.
The Klamath Settlement Agreement ...........10
IV.
The Proceedings Below .................................13
REASONS FOR GRANTING THE PETITION .........16
I.
The decision below exacerbated a circuit
conflict...............................................................16
A. Three circuits now have different
approaches to section 401 waiver ...........17
1. The Fourth Circuit’s Approach ..........17
2. The Second Circuit’s Approach ..........18
3. The D.C. Circuit’s Approach...............20
B. The decision below is already encouraging
forum shopping between the circuits......21
II.
The question presented has significant
implications for the states and the
environment..................................................23
A. The question presented has significant
implications for the states.........................23
v
B. The decision below threatens significant
and lasting environmental harm .............26
III.
Strong merits arguments support reversing
the decision below.............................................29
CONCLUSION ........................................................32
APPENDIX
United States Court of Appeals for the District
of Columbia Circuit, Opinion, January 25,
2019..........................................................................1a
United States Court of Appeals for the District
of Columbia Circuit, Order Denying Petition
for Panel Rehearing, April 26, 2019......................17a
United States Court of Appeals for the District
of Columbia Circuit, Order Denying Petition
for Rehearing En Banc, April 26, 2019.................19a
Federal Energy Regulatory Commission, Order
Denying Petition for Declaratory Order, June
19, 2014..................................................................21a
Federal Energy Regulatory Commission, Order
Denying Rehearing, October 16, 2014 ..................30a
Section 401 of the Clean Water Act,
33 U.S.C. § 1341.....................................................43a
vi
TABLE OF AUTHORITIES
Cases
AES Sparrows Point LNG v. Wilson, 589 F.3d
721 (4th Cir. 2009) ............................................. 17, 18
Alcoa Power Generating, Inc. v. FERC, 643 F.3d
963 (D.C. Cir. 2011)..................................................30
Arkansas v. Oklahoma, 503 U.S. 91 (1992).................31
California v. FERC, 966 F.2d 1541 (9th Cir.
1992).........................................................................19
Constitution Pipeline Co. v. N.Y. State Dep’t of
Envtl. Conserv., 868 F.3d 87 (2d Cir. 2017).............19
Constitution Pipeline Co., LLC, 162 FERC ¶ 61,014
(Jan. 11, 2018)............................................................4
First Iowa Hydro-Electric Coop. v. Federal Power
Comm’n, 328 U.S. 152 (1946)............................... 6, 23
Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C.
Cir. 2019)........................................................ 6, 10, 15
N.Y. Dep’t of Envtl. Conservation v. FERC, 884
F.3d 450 (2d Cir. 2018) ................................ 18, 19, 22
Pub. Util. Dist. No. 1 of Jefferson County v.
Washington Dep’t of Ecology, 511 U.S. 700
(1994) ............................................................. 6, 23, 24
Ridgewood Maine Hydro Partners, L.P., 77
FERC ¶ 62,201, 64,425 (Dec. 27, 1996).....................4
S.D. Warren Co. v. Me. Bd. of Envtl. Protection,
547 U.S. 370 (2006) ......................................... passim
vii
Statutes
15 U.S.C. § 717f(e) .......................................................28
16 U.S.C. § 797..................................................... passim
16 U.S.C. § 797(e) ..........................................................8
16 U.S.C. § 799 ............................................................28
16 U.S.C. § 825l(b) .......................................................21
28 U.S.C. § 1254(1) ........................................................1
33 U.S.C. § 1251(b) ......................................................23
33 U.S.C. § 1341(a)(1).......................................... passim
33 U.S.C. § 1341(d) .................................................... 2, 8
33 U.S.C. § 1342 ............................................................9
33 U.S.C. § 1344 ............................................................9
33 U.S.C. § 1362(3) ........................................................2
33 U.S.C. § 1369(b)(1)..................................................21
33 U.S.C. § 1377(e) ........................................................2
Cal. Water Code § 13160.............................................11
Other Authorities
116 Cong. Rec. 8984 (1970) ...........................................3
FERC, Hydropower: Commission’s Responsibilities .......27
H.R. Rep. No. 91-940 (1970)........................................30
Policy Statement on Hydropower Licensing
Settlements, 116 FERC ¶ 61,270 (Sept. 21,
2006).........................................................................25
S. Rep. No. 92–414 (1971) ...........................................29
viii
U.S. Envtl. Prot. Agency, EPA Actions on Tribal
Water Quality Standards and Contacts ...................2
U.S. Envtl. Prot. Agency, Water Quality Certification: A Water Quality Protection Tool for
States and Tribes.......................................................8
OPINIONS BELOW
The opinion of the D.C. Circuit (App. 1a) is
reported at 913 F.3d 1099 (D.C. Cir. 2019). The D.C.
Circuit’s order denying rehearing (App. 17a) is
reported at 2019 WL 3928669 (D.C. Cir. April 26, 2019),
and its order denying rehearing en banc (App. 19a) is
reported at 2019 WL 3958147 (D.C. Cir. April 26, 2019).
The decision of the Federal Energy Regulatory
Commission (App. 21a) is reported at 147 FERC
¶ 61,216 (June 19, 2014). The Commission’s order
denying rehearing (App. 30a) is reported at 149 FERC
¶ 61,038 (October 16, 2014).
JURISDICTION
Petitioners respectfully seek a writ of certiorari to
review a decision of the D.C. Circuit under 28 U.S.C.
§ 1254(1).
The D.C. Circuit issued its opinion on January 25,
2019. Petitioners’ timely petition for rehearing and
rehearing en banc was denied on April 26, 2019.
On July 23, 2019, Chief Justice Roberts extended
the time to file this petition until August 26, 2019. See
California Trout v. Hoopa Valley Tribe, No. 19A92.
STATUTORY PROVISIONS INVOLVED
Section 401 of the Clean Water Act, 33 U.S.C.
§ 1341, is reproduced in full in Appendix A to the
petition. App. 43a.
2
INTRODUCTION
This case involves when and how a state waives
its authority under the Clean Water Act to ensure that
a federally licensed project complies with waterquality requirements.
Section 401 of the Clean Water Act serves as a
critical tool for states, U.S. territories, and many
Native American tribes to protect the quality of the
waters within their boundaries.1 Under section 401, a
federal agency cannot issue a permit or license for “any
activity” that “may result in any discharge into the
navigable waters” until the state has certified that the
applicant has met certain water-quality requirements.
33 U.S.C. § 1341(a)(1). Those water-quality requirements
include EPA-approved federal requirements, as well as
the certifying states’ water-quality requirements. Id.
§ 1341(d).
As this Court has noted, “state certifications under
section 401 are essential in the scheme to preserve
state authority to address the broad range of pollution”
that threatens our nation’s waters. S.D. Warren Co. v.
1
U.S. territories are considered “states” under the Clean
Water Act. 33 U.S.C. § 1362(3). Native American tribes may also
exercise section 401 certification authority if they receive
“treatment as a State” status from the EPA. Id. § 1377(e). As of
June 2019, 45 tribes have been granted this status. See U.S.
Envtl. Prot. Agency, EPA Actions on Tribal Water Quality
Standards and Contacts (June 24, 2019), https://perma.cc/E4659GPS.
For brevity, this petition uses the term “states” to refer
collectively to the states, U.S. territories, and any tribe that has
received “treatment as a State” status.
3
Me. Bd. of Envtl. Protection, 547 U.S. 370, 386 (2006).
Congress provided the states with this power to ensure
that “[n]o State water pollution control agency will be
confronted with a fait accompli by an industry that has
built a plant without consideration of water quality
requirements.” Ibid. (quoting 116 Cong. Rec. 8984
(1970)).
Under section 401, when a license applicant
submits a request for water-quality certification, the
certifying state has one year to “act” on the request.
33 U.S.C. § 1341(a)(1). After completing its review, a
state can grant the request for certification, grant it
with conditions, or deny it. Ibid. A state waives its
certification authority only if it “fails or refuses to act
on a request for certification, within a reasonable
period of time (which shall not exceed one year).” Ibid.
In many complex cases, however, applicants and
states alike require more than a year to develop the
record that states need to make a decision on the request,
including preparing sufficient plans, measures, and
adaptive management. Complex federal licensing
proceedings typically take upwards of five years, and
not unlike the federal process, the state process requires
following procedures under state administrative
procedure acts—procedures that are necessary to
ensure the proper implementation of section 401.
Thus, applicants in complex cases often withdraw
and resubmit their request before the one-year period
expires to avoid forcing the states to decide the request
4
prematurely. That common practice reflects the fact
that the applicant is in control of their own application:
They decide when to make the request, whether to
withdraw the request, and whether to resubmit the
request.
In view of these realities, license applicants,
certifying states, and the Federal Energy Regulatory
Commission (“FERC”) have long operated under a
common understanding: that an applicant’s decision to
withdraw and resubmit a section 401 request triggers
a new one-year deadline for the certifying state to act,
and does not result in a waiver of the state’s authority.
See, e.g., Constitution Pipeline Co., LLC, 162 FERC
¶ 61,014 at 23 (Jan. 11, 2018); App. 40a; Ridgewood
Maine Hydro Partners, L.P., 77 FERC ¶ 62,201, 64,425
(Dec. 27, 1996).
The decision below, however, upends that decadeslong practice. The D.C. Circuit held that if states do not
approve or deny a certification request within one year,
even when the applicant withdraws and resubmits the
request before the one-year period, states waive their
section 401 authority.
That holding deepened an existing circuit conflict.
Now, the Second Circuit, Fourth Circuit, and D.C.
Circuit all have their own, different approaches to
determining when and how states waive their Clean
Water Act authority under section 401:
5
•
In the Fourth Circuit, states waive their
Clean Water Act authority if they fail to act
within one year of the date that the
applicant’s section 401 request is deemed
complete.
•
In the Second Circuit, states waive their
Clean Water Act authority if they fail to act on
a request (whether complete or incomplete)
within one year, but not if the applicant
triggers a new review period by withdrawing
the request and resubmitting a request in its
place within the one-year period.
•
In the D.C. Circuit, under the decision below,
states waive their Clean Water Act authority
if they do not approve or deny a certification
request within one year, even when the applicant
withdraws and resubmits the request within
the one-year period.
This division of authority at the circuit level, by
itself, shows the need for this Court’s review. As
described below, in the immediate wake of the D.C.
Circuit’s decision, litigants are already forum shopping
between the circuits.
The D.C. Circuit’s decision also has serious
implications for state interests, and, more broadly, for
federalism principles. Under the Federal Power Act,
FERC reviews license applications, see 16 U.S.C. § 797,
but under the Clean Water Act, the role of ensuring
that proposed projects satisfy state water-quality
6
requirements is reserved for the states, see 33 U.S.C.
§ 1341.
As this Court has repeatedly recognized, these
laws preserve important federalism principles. See,
e.g., S.D. Warren Co., 547 U.S. at 386 (observing that
the section 401 certification process is “essential in
the scheme to preserve state authority”); Pub. Util.
Dist. No. 1 of Jefferson County v. Washington Dep’t of
Ecology, 511 U.S. 700, 704 (1994) [hereinafter PUD
No. 1] (noting that, under the Clean Water Act, there
are “distinct roles for the Federal and State
Governments”); First Iowa Hydro-Electric Coop. v.
Federal Power Comm’n, 328 U.S. 152, 174 (1946)
(noting that the Federal Power Act reflects a “careful
preservation of the separate interests of the States”).
The decision below undermines those federalism
principles. Under the D.C. Circuit’s approach, states
cannot fulfill their duty to complete meaningful
environmental reviews for complex federally licensed
projects. Instead, states hoping to preserve their
section 401 authority face an untenable choice: They
can issue premature certifications without an
adequate record and analysis—a tactic that invites
environmental harm lasting for many decades. Or they
can reflexively deny every certification request for a
complex project—a preservation measure that would
embroil the states in unnecessary litigation and
frustrate settlement efforts like the ones in this case.
For these and other reasons, a diverse group of
eighteen states submitted amicus briefs siding with
7
Petitioners on the state-waiver issue before the
D.C. Circuit: Alaska, California, Hawaii, Idaho,
Maine, Massachusetts, Michigan, Minnesota, New
Hampshire, New Jersey, New York, Oregon, Rhode
Island, South Dakota, Utah, Vermont, Washington,
and Wyoming. The implications of the decision below
on state interests—as evidenced by more than a third
of the states participating in this case—further shows
the need for this Court’s review.
Finally, the D.C. Circuit’s decision threatens to
create serious consequences for the quality of our
nation’s waters. FERC is already applying the D.C.
Circuit’s decision retroactively. As a result, states may
be deemed to have unknowingly waived their
certification authority on dozens of projects with
pending federal-license applications—despite FERC’s
longstanding
position
that
withdrawal
and
resubmission starts a new one-year certification
period. The result would be to exempt these projects
from critical water-quality requirements that the
states would otherwise require.
Because federal licenses for dams are typically
granted for periods ranging from thirty to fifty
years, and pipeline licenses are permanent, allowing
significant projects to bypass water-quality certifications
poses an environmental threat that would last for
generations.
In sum, the circuit conflict, as well as the broad
implications of the decision below, call for this Court’s
intervention.
8
STATEMENT
I.
The States’ Role Under the Clean Water Act
As described above, section 401 of the Clean Water
Act applies broadly to any federally permitted or
licensed “activity” that “may result in any discharge
into the navigable waters.” 33 U.S.C. § 1341(a)(1). A
common example of such an activity is a hydropower
project, like the one in this case, which requires a
license from FERC.2 See 16 U.S.C. § 797(e).
Although FERC is responsible for licensing
hydropower projects, see ibid., section 401 of the
Clean Water Act reserves for the states the role of
ensuring that the project satisfies EPA-approved
federal requirements, as well as the water-quality
requirements of the certifying state. 33 U.S.C. § 1341(d).
Section 401 of the Act requires that the license
applicant request a water-quality certification from the
state where the discharge originates. Id. § 1341(a)(1).
After the state completes its review, it has the
authority to grant, grant with conditions, or deny
certification. Ibid.
2
Section 401 certifications are required for a wide array of
federally licensed projects. Other federal licenses and permits
subject to section 401 certification include: pipelines subject to the
Natural Gas Act, National Pollutant Discharge Elimination
System permits, dredge or fill material permits, and Rivers and
Harbors Act permits for activities that have a potential discharge
in navigable waters. See U.S. Envtl. Prot. Agency, Water Quality
Certification: A Water Quality Protection Tool for States and
Tribes 1–2 (April 2010).
9
When a state grants certification (with or without
conditions), it allows the federal agency to issue
the permit or license, subject to any conditions of
the state’s certification. Ibid. When a state denies
certification, the federal agency is prohibited from
issuing the permit or license. Ibid. In other words, the
state’s decision is binding on the federal agency.
A state waives its certification authority only if it
“fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not
exceed one year).” Ibid.
If a state is deemed to have waived its section
401 authority, the consequences for the nation’s waters
are extremely serious. If waiver occurs, the federal
licensing process continues without any certification
whatsoever from the state that a project will satisfy
federal or state water-quality requirements.3 Ibid.
Because hydropower projects are not up for
relicensing for many decades, a project could operate
in a manner that harms water quality for half a
century. See infra at 28. For pipeline projects, which
receive permanent licenses, a state’s section 401
waiver means that the state has waived its authority
forever.
3
Narrow exceptions exist for circumstances where, despite a
state’s section 401 waiver, an applicant must satisfy otherwise
applicable Clean Water Act requirements, such as requirements
related to dredging activity, 33 U.S.C. § 1344, or requirements
related to the discharge of pollutants, id. § 1342.
10
II. The Klamath Project
In 1954, the Federal Power Commission (now
FERC) issued a fifty-year license to operate the 169megawatt Klamath Hydroelectric Project. App. 31a.
The Klamath Project follows a path along the Klamath
River through Oregon and California. The project has
seven hydroelectric facilities and one non-generating
dam. App. 31a.
The PacifiCorp company now operates the Klamath
Project. In 2004, PacifiCorp began the relicensing
process for the project. App. 5a. At first, PacifiCorp’s
relicensing application sought to relicense the project’s
primary generating facilities. App. 31a. But after
extensive studies and negotiations with stakeholders,
PacifiCorp ultimately agreed to decommission the
primary facilities, which would involve removing four
dams. App. 31a–32a. Removing the dams would
restore fisheries, reconnecting more than 400 miles of
salmon and steelhead habitat that the dams currently
block. Ibid.
III. The Klamath Settlement Agreement
PacifiCorp’s decision to remove the dams emerged
from lengthy settlement negotiations. See Joint
Appendix at 1–5, Hoopa Valley Tribe v. FERC, 913
F.3d 1099 (D.C. Cir. 2019) [hereinafter D.C. Cir. J.A.].
Those negotiations culminated in a settlement,
which established a process and a timeline for
decommissioning four dams within the Klamath
Project. PacifiCorp filed a copy of the principal
11
settlement agreement in March 2010 with FERC.
App. 31a.
The settlement agreement was signed by
PacifiCorp and 47 other parties. D.C. Cir. J.A. at 409–
18. Those other parties included the Governors of
California and Oregon, the U.S. Department of the
Interior, the U.S. Department of Commerce’s National
Marine Fisheries Services, the Karuk Tribe, the Yurok
Tribe, the Klamath Tribes (comprising the Klamath,
Modoc, and Yahooskin tribes), several local counties,
and conservation groups, including California Trout
and Trout Unlimited.4 Ibid.
The target date for decommissioning the Klamath
Project was 2020. App. 32a. Given the unprecedented
scale and complexity of the decommissioning, however,
the settlement agreement included certain preconditions.
Among these preconditions, the settlement
agreement required: (a) the enactment of federal legislation, which involved federal funding obligations;
(b) California voters’ approval of a $250 million bond;
(c) an affirmative determination by the Secretary of
the Interior that dam removal is in the public interest;
and (d) separate concurrences by the Governors of
California and Oregon that dam removal is in the
public interest. D.C. Cir. J.A. at 351–63, 403–04.
4
The California State Water Resources Control Board is the
agency that provides water-quality certification for hydroelectric
projects in California. See Cal. Water Code § 13160. That entity
was not a party to the settlement. D.C. Cir. J.A. at 409–18.
12
While the negotiations over the Klamath
settlement agreement were proceeding, PacifiCorp’s
relicensing application remained pending at FERC.
The potential realization of the settlement on the
horizon, however, called into question the desirability
of proceeding with a federal relicensing application.
After all, the federal relicensing application—and
the state section 401 certifications necessary to
approve that relicensing application—would become
unnecessary if the settlement was fully realized,
because an application for license surrender (requiring
new section 401 certifications) would follow. Conversely,
if the settlement was not fully realized—for example,
if the preconditions above were not satisfied—then the
original relicensing application would be heard by
FERC, and the states would act on section 401
requests for the purpose of relicensing the project on
the original application.
Accordingly, FERC stayed action on the relicensing
application while the various stakeholders negotiated
and implemented the settlement agreement. App.
28a–29a. For the same reasons, PacifiCorp withdrew
its section 401 requests to California and Oregon each
year and resubmitted section 401 requests in their
place, to ensure that California and Oregon would
not be forced to decide the requests prematurely. App.
26a–27a. PacifiCorp agreed to do so under the terms of
the settlement agreement. Ibid. All of the parties
understood that California and Oregon were not
waiving their section 401 authority, but rather, were
expressly preserving that authority. See ibid.
13
IV. The Proceedings Below
The Hoopa Valley Tribe is a tribe that resides
downstream from the Klamath Project in northwestern
California. Because the Klamath settlement agreement
contemplates removing dams that affect fisheries,
the tribe stands to gain from the increase in salmon
available for them to fish. See D.C. Cir. J.A. at 343.
But the tribe did not want the Klamath Project to
be decommissioned under the terms that PacifiCorp,
the states, the federal government, the conservation
groups, and all of the other tribes had established in
the settlement agreement. Instead, the Hoopa Valley
Tribe sought declaratory relief aimed at terminating
PacifiCorp’s relicensing application and the associated
proceedings before FERC and the states.
To that end, the tribe petitioned FERC for
declaratory relief in 2012, seeking to end relicensing.
The tribe argued that California and Oregon had
waived their section 401 authority by not granting or
denying PacifiCorp’s first certification request within
one year, even though PacifiCorp had withdrawn and
resubmitted its request. See id. at 547–54. In other
words, the tribe argued that the one-year clock started
from the first certification request. See ibid.
FERC rejected Hoopa’s argument. App. 39a–40a.
FERC noted that section 401 “speaks solely to state
action or inaction, rather than the repeated withdrawal
and refiling of applications.” App. 40a. Thus, FERC
concluded that “[b]y withdrawing its applications
before a year has passed, and presenting the states
14
with new applications,” PacifiCorp gave the states
“new deadlines.” Ibid. FERC further noted that “[t]he
record does not reveal that either state has in any
instance failed to act on an application that has been
before it for more than one year.” Ibid.
Hoopa appealed FERC’s decision to the D.C.
Circuit, and the D.C. Circuit reversed.
The D.C. Circuit held that when PacifiCorp
withdrew and resubmitted its certification requests,
it resulted in a waiver of California’s and Oregon’s
section 401 authority. App. 3a.
The D.C. Circuit first voiced agreement with
PacifiCorp, FERC, and Petitioners that “[i]mplicit
in the statute’s reference ‘to act on a request for
certification,’ the provision applies to a specific
request.” App. 11a (quoting 33 U.S.C. § 1341(a)(1)). The
court also agreed that the waiver provision “cannot be
reasonably interpreted to mean that the period of
review for one request affects that of any other
request.” App. 11a–12a.
In the court’s view, however, PacifiCorp’s decision
to withdraw the request from the states was
inconsequential. Emphasizing what it perceived to
be improper coordinated action between PacifiCorp
and the states, the court held that the new requests
were subject to the same period of review as the
first, withdrawn request. App. 12a. The court thus
concluded that the States waived their section 401
authority by failing to act on PacifiCorp’s first
request within one year. Ibid.
15
Petitioners sought rehearing en banc. Multiple
states supported Petitioners as amici at the rehearing
stage, making for a total of eighteen states that
supported Petitioners on the state-waiver issue before
the D.C. Circuit.5 See supra at 6–7.
The D.C. Circuit denied the petition for rehearing
on April 26, 2019.
5
The following states filed briefs with the D.C. Circuit
opposing Hoopa Valley’s petition for review: California, Hawaii,
Idaho, Maine, New Hampshire, New York, Oregon, Utah,
Washington, and Wyoming. Hoopa Valley Tribe, 913 F.3d 1099,
No. 14-1271, ECF Nos. 1586196, 1586214, 1589071. The following
states filed briefs supporting Petitioners’ request for rehearing:
Alaska, California, Hawaii, Idaho, Maine, Massachusetts,
Michigan, Minnesota, New Jersey, Oregon, Rhode Island, South
Dakota, Vermont, Washington, and Wyoming. Id. at ECF Nos.
1778292, 1778274.
16
REASONS FOR GRANTING THE PETITION
I.
The decision below exacerbated a circuit
conflict.
In the decision below, the D.C. Circuit deepened an
existing circuit conflict on the question of when and
how states waive their Clean Water Act certification
authority. Now, there are three distinct approaches:
•
In the Fourth Circuit, states waive their
Clean Water Act authority if they fail to act
within one year of the date that the
applicant’s section 401 request is deemed
complete.
•
In the Second Circuit, states waive their
Clean Water Act authority if they fail to act on
a request (whether complete or incomplete)
within one year, but not if the applicant
triggers a new review period by withdrawing
the request and resubmitting a request in its
place within the one-year period.
•
In the D.C. Circuit, under the decision below,
states waive their Clean Water Act authority
if they do not approve or deny a certification
request within one year, even when the
applicant withdraws and resubmits the
request within the one-year period.
As described below, this division of authority
warrants this Court’s review.
17
A. Three circuits now have different
approaches to section 401 waiver.
1.
The Fourth Circuit’s Approach
In AES Sparrows Point LNG v. Wilson, 589 F.3d
721 (4th Cir. 2009), the Fourth Circuit held that section
401 waiver occurs if the state fails to act within one
year of the date the request is deemed complete.
There, the court considered whether Maryland
waived its right to certify a natural gas project’s
compliance with the state’s water-quality requirements.
Id. at 728. When the applicant submitted its
initial section 401 request, Maryland “deem[ed]” it
incomplete and requested additional information. Ibid.
More than a year passed as Maryland “continu[ed]
to deem [the request] incomplete,” and the applicant
continued responding “with a series of submissions” to
supplement its original request. Id. at 725. Ultimately,
more than two years after the request was submitted
(but less than one year after Maryland deemed the
request complete), Maryland denied certification. Id.
at 726.
The applicant challenged Maryland’s denial. The
applicant argued that Maryland waived its right to
deny certification by failing to do so within one year of
its first submission.
The Fourth Circuit disagreed. Noting that section
401 “is ambiguous on the issue[,]” the court found that
“only a valid request . . . will trigger” the one-year
waiver period. Id. at 729. Reasoning that a request
18
must be completed to be valid, the court held that the
waiver period was not triggered by the applicant’s
earlier, incomplete submissions. Ibid. Consequently,
Maryland had not waived its section 401 authority.
Thus, in the Fourth Circuit, states waive their
Clean Water Act authority only if they fail to act within
one year of the date that the applicant’s section 401
request is deemed complete.
2.
The Second Circuit’s Approach
In N.Y. Dep’t of Envtl. Conservation v. FERC, 884
F.3d 450 (2d Cir. 2018), the Second Circuit concluded
that waiver occurs if states fail to act on a request
(whether complete or incomplete) within one year, but
not if the applicant triggers a new review period by
withdrawing the request and resubmitting a request
in its place within the one-year period.
The case involved facts similar to those of the
Fourth Circuit’s decision in AES Sparrows Point LNG
v. Wilson, 589 F.3d 721, described above. See supra at
17–18. New York deemed the applicant’s section 401
request incomplete, and the applicant supplied
additional information to support its request. New
York ultimately denied certification more than a year
after the request was submitted, but less than a year
after New York deemed the request complete. Id. at
453.
19
Unlike the Fourth Circuit, the Second Circuit
found waiver on these facts.6 Id. at 455. Critically,
however, the Second Circuit indicated that this harsh
result could be avoided if states simply “request that
the applicant withdraw and resubmit the application.”
Id. at 456.
As the court explained, if the applicant agreed to
resubmit the request, the resubmission would trigger
a new period of review. See ibid. The court also cited
with approval one of its decisions where the “applicant
for a Section 401 certification had withdrawn its
application and resubmitted at the Department’s
request—thereby restarting the one-year review period.”
Id. at 456 n.35 (citing Constitution Pipeline Co. v. N.Y.
State Dep’t of Envtl. Conserv., 868 F.3d 87, 94 (2d Cir.
2017), cert. denied, 138 S. Ct. 1697 (2018)).
Thus, in the Second Circuit, states waive their
Clean Water Act authority if they fail to act on a
request (whether complete or incomplete) within one
year, but not if the applicant starts a new one-year
period by withdrawing the request and resubmitting a
request in its place.
6
Also contrary to the Fourth Circuit’s approach, the Ninth
Circuit in California v. FERC, 966 F.2d 1541, 1552–53 (9th Cir.
1992), held that the one-year period begins when the request is
submitted, not when it is “complete.” Cf. supra at 17–18. Unlike
the Second Circuit, however, the Ninth Circuit did not address
whether a state waives its section 401 authority when an
applicant withdraws and resubmits a request within the one-year
period. California, 966 F.2d at 1552–53.
20
3.
The D.C. Circuit’s Approach
In the decision below, the D.C. Circuit adopted a
third approach, deepening the divide among the
circuits.
Notably, the court acknowledged that section 401’s
use of the language “to act on a request for certification”
suggests that “the provision applies to a specific
request.” App. 10a. The court further recognized that
the waiver provision “cannot be reasonably interpreted
to mean that the period of review for one request
affects that of any other request.” Ibid.
Nevertheless, the D.C. Circuit held that waiver
occurs if a state fails to act on a request within one year
of its first submission—even if, within the one-year
period, the applicant withdraws and resubmits the
request. App. 3a. The court also held that when an
applicant takes this approach, it does not start a new
period for review. Ibid.
The court condemned the decades-long practice
described above of withdrawing and resubmitting
certification requests—a practice that applicants and
certifying states had long followed, and which FERC
had repeatedly endorsed. See supra at 3–4. Referring
to the parties’ actions under the settlement agreement
as a “scheme” designed to “circumvent” the Clean
Water Act, the D.C. Circuit held instead that
PacifiCorp’s attempts to resubmit its certification
requests were ineffective. App. 3a.
21
Consequently, in the D.C. Circuit, states waive
their Clean Water Act authority if they do not approve
or deny a certification request within one year, even
when the applicant withdraws and resubmits the
request within the one-year period.
B. The decision below is already encouraging
forum shopping between the circuits.
In addition to deepening the circuit conflict, the
D.C. Circuit’s decision also created forum-shopping
opportunities.
This forum shopping is widely available, because
litigants in these cases generally have the option of
seeking appellate review in either: (1) the circuit court
of appeals in which the federally licensed project or
applicant is located; or (2) the D.C. Circuit. See 16
U.S.C. § 825l(b) (Federal Power Act); 33 U.S.C. § 1369(b)(1)
(Clean Water Act).
In the immediate wake of the D.C. Circuit’s
decision, litigants have already begun forum shopping.
One example involves a nearly half-billion-dollar
pipeline project to carry natural gas to New York.
See Order Granting Abandonment and Issuing
Certificates, Northern Access 2016 Project, 158 FERC
¶ 61,145, at 5, 9 (Feb. 3, 2017). A few months after the
D.C. Circuit’s decision below, FERC relied on the
decision to conclude that New York had waived its
section 401 authority. See Order Denying Rehearing,
22
Northern Access 2016 Project, 167 FERC ¶ 61,007
(April 2, 2019).
New York petitioned the Second Circuit to review
FERC’s decision. N.Y. Dep’t of Envtl. Conservation v.
FERC, No. 19-1610 (2d Cir. filed May 28, 2019). Relying
on the Second Circuit’s decision in N.Y. Dep’t of Envtl.
Conservation v. FERC, 884 F.3d 450, supra at 18–19,
New York contends that it did not waive its Clean
Water Act authority.
The pipeline company, on the other hand, argues
that the decision below controls, and, therefore, New
York waived its authority. In an effort to gain the
benefit of the D.C. Circuit’s approach and avoid the
Second Circuit’s approach, the pipeline company has
moved to transfer the case to the D.C. Circuit. See
Intervenors’ Motion to Transfer, N.Y. Dep’t of Envtl.
Conservation v. FERC, No. 19-1610, ECF 2596470 (2d
Cir. filed June 27, 2019).
As this example shows, unless the Court resolves
the conflict among the circuits, litigants in these cases
involving projects worth hundreds of millions of
dollars will forum shop for the circuit that applies their
desired approach.
These forum-shopping litigants have every
incentive to do so: The differences between the circuits’
approaches are dramatic, and they produce different
outcomes. To be sure, they would have produced
different outcomes in this case.
In sum, the circuit conflict, and the problems
associated with it, warrant this Court’s review.
23
II. The question presented has significant
implications for the states and the
environment.
The question presented has significant implications
in at least two respects. First, the question presented
implicates important state interests and, more broadly,
principles of federalism. Second, the decision below
threatens to cause immediate and lasting harm to the
environment.
A. The question presented has significant
implications for the states.
Federal law strikes a balance between the role
of the federal government and the role of the states
in addressing water pollution for federally licensed
projects. Under the Federal Power Act, FERC
reviews license applications, see 16 U.S.C. § 797, but
under the Clean Water Act, Congress explicitly sought
“to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce,
and eliminate pollution” in waters within their
boundaries. 33 U.S.C. § 1251(b).
This Court has repeatedly recognized the
federalism principles underlying that balance. See
S.D. Warren Co., 547 U.S. at 386 (observing that the
section 401 certification process is “essential in the
scheme to preserve state authority”); PUD No. 1, 511
U.S. at 704 (noting that, under the Clean Water Act,
there are “distinct roles for the Federal and State
Governments”); First Iowa Hydro-Electric Coop., 328
24
U.S. at 174 (noting that the Federal Power Act reflects
a “careful preservation of the separate interests of the
States”).
The states’ section 401 certification power is the
statutory vehicle through which the states exercise
their “primary responsibilities and rights . . . to
prevent, reduce, and eliminate [water] pollution.” 33
U.S.C. § 1251(b). In other words, section 401 is what
gives states their “distinct role” under the Clean Water
Act. PUD No. 1, 511 U.S. at 704.
The decision below undermines that distinct role
for the states, and it does so in a way that compromises
the federalism principles described above.
Under the decision below, states will be unable to
fulfill their duty to complete a meaningful review and
analysis for large and complex projects, like the one in
this case. Instead, states wishing to preserve their
section 401 authority over a complex project for which
they lack an adequate record or analysis will face
an untenable choice: They can render premature
certifications without an adequate record or analysis,
or they can reflexively deny certification requests until
a certification decision is possible. That is not the
scheme Congress designed, and either approach would
embroil the states in protracted and unnecessary
litigation.
Perhaps worse, the D.C. Circuit’s decision will
frustrate the states’ ability to pursue an important
third option: cooperative settlement agreements, like
25
the one here, which could take longer than a year to
fully realize.
Strong policy reasons counsel in favor of settling
water-quality disputes, rather than litigating them.
FERC itself has made clear that it “looks with great
favor on settlements in licensing cases” because
“hydroelectric licensing proceedings . . . are multifaceted and complex,” involving “the balancing of many
public interest factors, as well as consideration of the
views of all interested groups and individuals.” Policy
Statement on Hydropower Licensing Settlements, 116
FERC ¶ 61,270 (Sept. 21, 2006).
Yet if the only way for states to preserve their
section 401 authority is to prematurely grant or
reflexively deny certification requests, it will significantly
frustrate the states’ ability to negotiate long-term
settlement agreements, like the one here. The one-year
clock—which, under the D.C. Circuit’s approach, starts
running from the first certification request, even if the
applicant withdraws and resubmits that request—will
expire before a settlement can be reached.
Thus, as a practical matter, the decision below will
prevent states, tribes, and other interested parties
from settling the myriad water-pollution issues that
arise from complex projects—an outcome that erodes
the states’ ability to effectively address water pollution
within their boundaries.
Acting on these and other concerns, more than
one-third of all the states submitted amicus briefs to
the D.C. Circuit in support of Petitioners. These states
26
have a wide array of environmental policies and
concerns, which are as diverse as one might imagine—
for example, those of Utah versus those of Hawaii. Yet
all of these states supported Petitioners. No state took
an opposite view.
This unified and significant level of state amicus
participation only confirms that the question
presented has enormous implications for the states.
Those implications further show the need for this
Court’s review.
B. The decision below threatens significant
and lasting environmental harm.
In addition to the state interests implicated, the
decision below threatens to create consequences for the
environment that are too serious to disregard.
The D.C. Circuit did not say whether its decision
would only apply prospectively. But FERC has already
rejected such an argument, describing it as “not
convincing.” Declaratory Order on Waiver of Water
Quality Certification, Middle Fork American Project,
167 FERC ¶ 61,056 (April 18, 2019).
As a result, states may be deemed to have
unknowingly waived their certification authority
on dozens of federally licensed projects—despite
FERC’s longstanding position that withdrawal and
resubmission started a new one-year period.
27
There are 87 hydropower projects currently
undergoing licensing proceedings before FERC.7 Many
of those projects have been pending for more than a
year and, therefore, are now at great risk for a
retroactive application of the decision below.
Indeed, in the few months since the decision below
was issued, FERC has received a surge of requests
seeking a finding that states had waived their
authority in pending license applications.8 FERC has
already granted two of these requests, finding waiver
by California in a hydropower case, and waiver by New
York in a pipeline case. See Declaratory Order on
Waiver of Water Quality Certification, Middle Fork
American Project, 167 FERC ¶ 61,056; see also Order
Denying Rehearing, Northern Access 2016 Project, 167
FERC ¶ 61,007 (April 2, 2019).
7
See FERC, Hydropower: Commission’s Responsibilities, https://
www.ferc.gov/industries/hydropower.asp (follow the “Pending
Licenses, Relicenses, and Exemptions” hyperlink under the
“Licensing” column).
8
See, e.g., Southern California Edison Company’s Petition for
Declaratory Order, Six Big Creek Hydroelectric Projects, FERC
Project Nos. 67, 120, 2085, 2086, 2174, 2175 (filed June 17, 2019);
Pacific Gas and Electric Company’s Petition for Declaratory
Order, Kilarc-Cow Creek Hydroelectric Project, FERC Project No.
606 (filed May 15, 2019); Exelon Generation Company, LLC’s
Petition for Declaratory Order, Conowingo Hydroelectric Project,
FERC Project No. P-405 (filed February 28, 2019); Nevada
Irrigation District’s Request for Waiver, Yuba-Bear Hydroelectric
Project, FERC Project No. P-2266 (filed February 19, 2019).
28
Such retroactive findings of waiver, if allowed to
stand, will make for grim prospects for our nation’s
waters. Federal licenses are often granted for many
decades. For hydropower projects, like the one in this
case, federal licenses are often granted for fifty years.
See 16 U.S.C. § 799. Natural gas pipeline licenses are
permanent. See 15 U.S.C. § 717f(e).
Thus, by exempting major projects from waterquality certifications for fifty years—or, in some cases,
forever—the D.C. Circuit’s approach could result in
environmental harm that will last for generations.
29
III. Strong merits arguments support reversing
the decision below.
Regardless of which side is right on the merits,
certiorari is needed to resolve the circuit conflict. The
strength of Petitioners’ merits arguments, however,
underscores the need for this Court’s review.
On the merits, Petitioners are supported by
section 401’s text, as well as its purpose.
First, the text of section 401 provides that a state’s
authority is waived only “[i]f the State . . . fails or
refuses to act on a request for certification, within a
reasonable period of time (which shall not exceed one
year).” 33 U.S.C. § 1341(a)(1) (emphasis added).
Nothing in the text prohibits an applicant from
submitting and then choosing to withdraw its request
for certification before the one-year period expires.
Likewise, nothing in the text equates an applicant’s
choice to withdraw and resubmit a request with the
state’s failure or refusal to “act.” By holding otherwise,
the D.C. Circuit’s decision expanded section 401’s
waiver provision beyond its plain language.
Second, the D.C. Circuit’s interpretation of section
401 is contrary to the purpose of that provision. Section
401 “recast pre-existing law and was meant to
‘continu[e] the authority of the State . . . to act to deny
a permit.’ ” S.D. Warren Co., 547 U.S. at 380 (quoting
S. Rep. No. 92–414, p. 69 (1971)). As described above,
the D.C. Circuit’s decision undermines the “broad
reach” of state power envisioned by section 401. S.D.
Warren Co., 547 U.S. at 380.
30
Furthermore, when Congress enacted section
401’s waiver provision, it sought to prevent “sheer
inactivity by the State”—that is, it sought to prevent
states from “frustrat[ing] the Federal application”
process. H.R. Rep. No. 91-940, at 56 (1970) (emphasis
added); see also Alcoa Power Generating, Inc. v. FERC,
643 F.3d 963, 972 (D.C. Cir. 2011) (“[T]he purpose of
the waiver provision is to prevent a State from
indefinitely delaying a federal licensing proceeding by
failing to issue a timely water quality certification.”)
(emphasis added). Congress was not focused on the
prospect of an applicant choosing to withdraw and
resubmit its own request to improve its chances of
achieving a desired result in the federal licensing
process.
As in other withdraw-and-resubmit situations,
that is what occurred here. PacifiCorp chose to
withdraw and resubmit its own certification requests
to provide time to implement a complex settlement
agreement—a settlement agreement that PacifiCorp
entered into of its own volition, and which it desired
for its own reasons. Thus, when the D.C. Circuit
adopted its approach to section 401 waiver, it
effectively nullified a decision by the applicant—the
party that Congress intended to protect.
As these points show, there are strong reasons for
reversing the decision below. Those reasons further
demonstrate that the D.C. Circuit’s decision warrants
this Court’s review.
*
*
*
31
Section 401 of the Clean Water Act is an
“essential” federal statute that empowers the states to
address water pollution within their boundaries. S.D.
Warren Co., 547 U.S. at 386. Such an essential federal
statute should not have different meanings for states
in different parts of the country. See Arkansas v.
Oklahoma, 503 U.S. 91, 110 (1992) (noting that the
Clean Water Act was intended “to create and manage
a uniform system of interstate water pollution
regulation”). Especially given the opportunities to
forum shop, the circuit conflict calls for this Court’s
intervention.
Nor can this issue wait until the conflict worsens.
The threat to state interests is too great, as evidenced
by more than a third of all the states participating
before the D.C. Circuit as amici. And without the
Court’s intervention, the decision below will create an
environmental threat of the first magnitude.
The question presented warrants this Court’s
review.
------------------------------------------------------------------
32
CONCLUSION
The petition should be granted.
Respectfully submitted,
ANDREW H. ERTESCHIK
Counsel of Record
SAAD GUL
JOHN MICHAEL DURNOVICH
COLIN R. MCGRATH
NATHANIEL C. ZINKOW
POYNER SPRUILL LLP
Post Office Box 1801
Raleigh, NC 27602
(919) 783-2895
Counsel for Petitioners
RICHARD ROOS-COLLINS
JULIE GANTENBEIN
WATER AND POWER
LAW GROUP PC
2140 Shattuck Avenue,
Suite 801
Berkeley, CA 94704
Counsel for Petitioner
California Trout
BRIAN JOHNSON
TROUT UNLIMITED
5950 Doyle Street,
Suite 2
Emeryville, CA 94608
Counsel for Petitioner
Trout Unlimited
August 26, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.