Memorandum For the Federal Respondents in Oppostion — Louisiana, et al., Applicants v. American Rivers, et al.
Supreme Court briefMar 28, 2022
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No. 21A539
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
STATE OF LOUISIANA, ET AL., APPLICANTS
v.
AMERICAN RIVERS, ET AL.
_______________
ON APPLICATION FOR A STAY OR, IN THE ALTERNATIVE,
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_______________
MEMORANDUM FOR THE FEDERAL RESPONDENTS IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
ADDITIONAL RELATED PROCEEDINGS
United States District Court (N.D. Cal.):
American Rivers v. Wheeler, No. 20-cv-4636 (Dec. 7, 2021)
California v. Wheeler, No. 20-cv-4869 (Dec. 7, 2021)
Suquamish Tribe v. Wheeler, No. 20-cv-6137 (Dec. 7, 2021)
United States Court of Appeals (9th Cir.):
In re: Clean Water Act Rulemaking, Nos. 21-16958, 21-16960,
21-16961 (Feb. 24, 2022)
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 21A539
STATE OF LOUISIANA, ET AL., APPLICANTS
v.
AMERICAN RIVERS, ET AL.
_______________
ON APPLICATION FOR A STAY OR, IN THE ALTERNATIVE,
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
_______________
MEMORANDUM FOR THE FEDERAL RESPONDENTS IN OPPOSITION
_______________
The Solicitor General, on behalf of the federal respondents,
respectfully files this memorandum in opposition to the application for a stay pending appeal or, in the alternative, petition
for a writ of certiorari before judgment to the United States Court
of Appeals for the Ninth Circuit.
This case involves a challenge to a rule promulgated by the
Environmental Protection Agency (EPA) in 2020 setting forth requirements for water-quality certification under Section 401 of
the Clean Water Act (CWA), 33 U.S.C. 1341.
(July 13, 2020) (2020 Rule).
See 85 Fed. Reg. 42,210
Approximately one year after pub-
lishing the 2020 Rule, EPA decided to commence a notice-and-comment
2
rulemaking with the goal of issuing a revised rule in spring 2023.
EPA therefore asked the district court to remand the 2020 Rule to
the agency without vacatur.
vacatur.
The court instead ordered remand with
Various States and industry groups that had intervened
to defend the Rule (collectively, applicants) appealed that vacatur to the Ninth Circuit, and both the district court and the court
of appeals denied applicants’ requests for a stay pending appeal.
Applicants now request a stay from this Court.
should be denied.
That request
As the lower courts found, applicants have not
demonstrated that they will likely suffer irreparable harm from
the vacatur -- the effect of which is merely to reinstate, until
the agency issues a new rule in spring 2023, the regulations that
had been in place during the 50 years before the 2020 Rule was
adopted.
Nor have applicants demonstrated a reasonable probabil-
ity that this Court will grant certiorari if the court of appeals
ultimately rules against them.
That court may dismiss applicants’
appeals for lack of appellate jurisdiction without reaching the
merits of the validity of the district court’s order.
And even if
the court of appeals reaches the merits and affirms the district
court’s judgment, its decision is unlikely to warrant review under
this Court’s usual certiorari criteria.
Moreover, given that ap-
plicants have delayed in seeking a stay and that a stay at this
juncture would cause substantial disruption, the balance of equities likewise favors denying applicants’ requested relief.
3
Applicants’ alternative request for certiorari before judgment should also be denied.
Applicants cannot demonstrate that
this case “is of such imperative public importance as to justify
deviation from normal appellate practice and to require immediate
determination in this Court.”
Sup. Ct. R. 11.
Applicants express
concern that EPA’s issuance of a new rule will moot this case
before the Court has an opportunity to grant review in the ordinary
course. But if applicants in fact have a strong practical interest
in speedy resolution of this suit, a request that the court of
appeals expedite their appeals would have been a more appropriate
means of seeking to vindicate that interest.
Far from supporting
applicants’ request for certiorari before judgment, the likelihood
that the district court’s vacatur order will have only a shortlived practical impact weighs against this Court’s review.
STATEMENT
1.
In 1970, Congress amended the Federal Water Pollution
Control Act (FWPCA), ch. 758, 62 Stat. 1155, by enacting the Water
Quality Improvement Act, Pub. L. No. 91-224, 84 Stat. 91.
As
amended, Section 21(b)(1) of the FWPCA prohibited any federal
agency from issuing a license or permit for an activity that “may
result in any discharge into the navigable waters of the United
States” unless “the State in which the discharge originates or
will originate” either (1) certified that “there is reasonable
assurance” that “such activity will be conducted in a manner which
4
will not violate applicable water quality standards,” or (2) waived
the certification requirement.
108.
Sec. 103, § 21(b)(1), 84 Stat. at
Section 21(b)(1) specified that, if a State “fail[ed] or
refuse[d] to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt
of such request, the certification requirements
waived.”
* * *
shall be
Ibid.
In 1971, EPA promulgated regulations to implement the certification requirement.
36 Fed. Reg. 8563 (May 8, 1971) (40 C.F.R.
Pt. 121 (2019)). The 1971 regulations require that a certification
include, among other things, a “statement that there is a reasonable assurance that the activity will be conducted in a manner
which will not violate applicable water quality standards” and a
“statement of any conditions which the certifying agency deems
necessary or desirable with respect to the discharge of the activity.”
40 C.F.R. 121.2(a)(3) and (4) (2019).
The 1971 regula-
tions further provide that the certification requirement “shall be
waived” when either (a) the certifying authority provides written
notification that it expressly waives its certification authority,
or (b) the federal licensing or permitting agency sends written
notification to EPA that the certifying authority failed to act on
a certification request “within a reasonable period of time after
receipt of such request, as determined by the licensing or permitting agency (which period shall generally be considered to be
5
6 months, but in any event shall not exceed 1 year).”
40 C.F.R.
121.16(a) and (b) (2019).
In 1972, Congress further amended the FWPCA.
Federal Water
Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, § 2,
86 Stat. 816.
CWA.
As amended, the FWPCA became commonly known as the
See 33 U.S.C. 1251 note.
Section 401 of the CWA carried
forward the certification requirement that had first appeared in
Section 21(b)(1) of the FWPCA.
Under Section 401 of the CWA, a
federal agency may not issue a license or permit for any activity
that “may result in any discharge into the navigable waters” unless
“the State in which the discharge originates or will originate”
either (1) certifies that “any such discharge will comply with
applicable provisions of sections 1311, 1312, 1313, 1316, and 1317
of [Title 33],” or (2) waives the certification requirement.
33
U.S.C. 1341(a)(1); see 33 U.S.C. 1377(e) (authorizing EPA “to treat
an Indian tribe as a State” for purposes of Section 401 in certain
circumstances).
Like its predecessor provision, Section 401 spec-
ifies that, if a State “fails or refuses to act on a request for
certification, within a reasonable period of time (which shall not
exceed one year) after receipt of such request, the certification
requirements
* * *
shall be waived.”
33 U.S.C. 1341(a)(1).
Section 401 of the CWA further provides that “[a]ny certification
* * *
shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that
6
any applicant for a Federal license or permit will comply with any
applicable effluent limitations and other limitations,
* * *
and
with any other appropriate requirement of State law set forth in
such certification.”
33 U.S.C. 1341(d).
The limitations included
in the certification “shall become a condition on any Federal
license or permit.”
Ibid.
The 1971 regulations remained in effect after the CWA was
enacted.
In July 2020, EPA promulgated the 2020 Rule, which re-
vised the 1971 regulations.
The 2020 Rule provided, among other
things, that the “scope of a Clean Water Act section 401 certification is limited to assuring that a discharge from a Federally
licensed or permitted activity will comply with water quality requirements.” 40 C.F.R. 121.3 (2021); see 40 C.F.R. 121.1(n) (2021)
(defining “water quality requirements”).
The 2020 Rule further
provided that “the reasonable period of time” within which a certifying authority may act on a certification request “shall not
exceed one year from receipt,” 40 C.F.R. 121.6(a) (2021), and
defined “[r]eceipt” to mean “the date that a certification request
is documented as received by a certifying authority in accordance
with applicable submission procedures,” 40 C.F.R. 121.1(m) (2021)
(emphasis omitted).
The 2020 Rule took effect in September 2020.
85 Fed. Reg. at 42,210.
2.
trict
of
After EPA published the 2020 Rule, 20 States, the DisColumbia,
several
Tribes,
and
various
environmental
7
groups
(collectively,
plaintiffs)
filed
three
separate
suits
against EPA and its Administrator in the United States District
Court for the Northern District of California.
146, 165-192, 198-223.
Appl. App. 116-
Plaintiffs alleged that the 2020 Rule was
contrary to the CWA and sought an order vacating the Rule under
the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. Appl.
App. 139-146, 188-191, 219-222.
defend the 2020 Rule.
Applicants moved to intervene to
Id. at 556.
The district court granted
their motions to intervene, see id. at 115, 666; 20-cv-4636 D. Ct.
Doc. 78, at 1 (Oct. 9, 2020), and consolidated the cases, see
20-cv-4636 D. Ct. Doc. 89, at 1 (Oct. 23, 2020).
In January 2021, the President issued an Executive Order directing federal agencies to review regulations issued during the
previous Administration related to the protection of public health
and the environment.
Exec. Order No. 13,990, 86 Fed. Reg. 7037,
7037 (Jan. 20, 2021).
The 2020 Rule was identified as one of the
regulations to be reviewed.
of
Agency
Actions
for
See The White House, Fact Sheet: List
Review
(Jan.
20,
2021),
http://www.
whitehouse.gov/briefing-room/statements-releases/2021/01/20/factsheet-list-of-agency-actions-for-review. The district court agreed
to hold these cases in abeyance while EPA reviewed the Rule.
See,
e.g., 20-cv-4636 D. Ct. Doc. 132 (Feb. 22, 2021).
In June 2021, EPA announced that it had completed its initial
review of the 2020 Rule and that it had decided to “propose revi-
8
sions to the rule through a new rulemaking effort.”
29,541, 29,542 (June 2, 2021).
86 Fed. Reg.
EPA explained that, after consid-
ering the “text of CWA Section 401” and other factors, it had
“identified substantial concerns with a number of provisions of
the [2020] Rule that relate to cooperative federalism principles
and CWA Section 401’s goal of ensuring that states are empowered
to protect their water quality.”
Ibid.
In July 2021, EPA filed a motion asking the district court to
remand the 2020 Rule to the agency without vacating the Rule.
Appl. App. 226-243.*
In that motion, EPA argued that a remand was
appropriate because the agency had “identified ‘substantial and
legitimate concerns’ with the [2020] Rule and ha[d] publicly announced its intention to reconsider and revise the Rule.”
237 (citation omitted).
Id. at
EPA stated that it expected to publish a
proposed revised rule in the Federal Register by spring 2022 and
to promulgate a final revised rule in spring 2023.
Id. at 235-
236; see 20-cv-4636 D. Ct. Doc. 143-1, at 7 (July 1, 2021) (declaration of John Goodin).
EPA explained that “continuing to lit-
igate this case would interfere with [its] ongoing reconsideration
process by forcing the Agency to structure its administrative pro-
*
Challenges to the 2020 Rule had also been brought in the
United States District Court for the District of South Carolina
and the United States District Court for the Eastern District of
Pennsylvania. See Appl. App. 463-472. EPA likewise filed motions
in those courts to remand the 2020 Rule to the agency without
vacating the Rule, and those courts granted EPA’s motions and
remanded without vacatur. See ibid.
9
cess around pending litigation, rather than the Agency’s priorities and expertise.”
Appl. App. 239.
Plaintiffs responded that the district court should either
deny EPA’s motion or remand the 2020 Rule with vacatur.
Appl.
App. 244-265, 267-293, 424-448. EPA replied that it had “presented
a classic case for remand without vacatur,” id. at 457, and urged
the court to “follow the other two district courts in which challenges to the Rule were filed, both of which ha[d] already remanded
the [2020] Rule to EPA without vacatur,” id. at 452; see id. at
463-472.
Applicants “had no objection to the relief that EPA
requested,” id. at 474, but opposed plaintiffs’ request for vacatur, arguing that if the court was not persuaded by EPA’s arguments
for remand without vacatur, it should “deny the [agency’s] remand
motion and proceed to merits briefing,” id. at 495.
3.
On October 21, 2021, the district court vacated the 2020
Rule and remanded the Rule to the agency.
Appl. App. 552-569.
The court held that a remand was appropriate because an agency may
request a “remand to reconsider a decision without confessing error,” id. at 562, and because EPA had “expressed substantial concerns with the current formulation of the certification rule,” id.
at 563.
The court further held that vacatur of the 2020 Rule upon
remand was warranted.
Id. at 563-568.
The court stated that,
“when an agency requests voluntary remand, a district court may
10
vacate an agency’s action without first making a determination on
the merits.”
Id. at 559.
Viewing vacatur as “a form of discretionary, equitable relief,” Appl. App. 559, the court found that relief warranted for
two reasons, id. at 563-568.
First, the court expressed “signif-
icant doubts that EPA [had] correctly promulgated” the 2020 Rule
in light of what the court viewed as a “lack of reasoned decisionmaking and apparent errors” in the Rule and “indications that the
rule contravenes the structure and purpose of the Clean Water Act.”
Id. at 564-565.
In the course of “evaluating the extent of doubt
whether the agency correctly promulgated the [2020 Rule],” the court
described the Rule as “antithetical” to this Court’s interpretation
of Section 401(d) of the CWA in PUD No. 1 of Jefferson County v.
Washington Department of Ecology, 511 U.S. 700 (1994), and stated
that EPA’s “recognition of its inconsistent interpretation
* * *
compels the conclusion that the [Rule] is unreasonable.”
Appl.
App. 563-564.
Second, the district court found that vacatur would
“not intrude on any justifiable reliance” interests, given that
the Rule had “only been in effect for thirteen months.”
566.
Id. at
The court thus ordered “vacatur of the [2020 Rule] upon
remand to EPA,” which it explained “will result in a temporary
return to the rule previously in force until Spring 2023, when EPA
finalizes a new certification rule.”
Id. at 568.
entered “final judgment” “in favor of plaintiffs.”
The court then
Id. at 570.
11
On November 17, 2021 -- nearly four weeks after the district
court’s decision -- applicants asked the court to stay its order
vacating the 2020 Rule pending appeal.
Appl. App. 571-601.
Ap-
plicants contended that the 2020 Rule had “clarifie[d] basic aspects of the Section 401 process, such as how time limits will be
calculated and the scope of permissible State review.”
Id. at
579. They also asserted that vacatur of the 2020 Rule would create
“substantial uncertainty” and cause “substantial delay in completing pending Section 401 reviews.”
Id. at 596.
EPA opposed the
motion, arguing that the court’s order was not appealable and that
applicants had “fail[ed] to establish that they will suffer any
irreparable harm or that the public interest favors a stay.”
20-cv-4636 D. Ct. Doc. 185, at 1 (Nov. 30, 2021).
On December 7, 2021, the district court denied applicants’
motion for a stay.
Appl. App. 612-625.
The court found that
applicants had “not made particularly strong showings of their
likelihood of success on the merits.”
Id. at 621.
The court
further found that applicants had “not clearly demonstrated serious irreparable harm absent a stay.”
Id. at 623.
The court
explained that “[m]any of the economic harms [applicants] assert,
such as unspecified delays to projects, remain too speculative to
rank as irreparable.”
Id. at 622.
And the court emphasized that
a party “can sue in district court if presented with a flawed
certification process.” Id. at 615; see id. at 623-624 (explaining
12
that applicants can challenge any application of the 1971 regulations that causes them harm).
Finally, the district court deter-
mined that, “when it comes to mitigating harm, prudence favors
maintaining the course EPA has charted the past fifty years under
the 1971 rule.”
4.
Id. at 615.
On December 15, 2021, applicants filed motions in the
court of appeals for a stay pending appeal.
Appl. App. 667-704.
EPA opposed a stay, id. at 757-780, and moved to dismiss applicants’ appeals on the ground that the district court’s order was
not appealable, id. at 783-796.
On February 24, 2022, the court of appeals denied the motions
for a stay, finding that applicants had “not demonstrate[d] a
sufficient likelihood of irreparable harm to warrant the requested
relief.”
Appl. App. 802.
The court also denied the motions to
dismiss the appeals “without prejudice to renewing the arguments
in the answering brief(s)” before the “merits panel.”
Ibid.
The
court of appeals set a briefing schedule under which applicants’
opening brief is due on April 6, 2022.
5.
Ibid.
On March 21, 2022 -- nearly one month after the court of
appeals’ decision -- applicants filed their application asking
this Court to stay the district court’s order.
6.
EPA has finished drafting a proposed revised rule and
supporting documents.
On March 25, 2022, EPA sent its proposed
revised rule to the Office of Management and Budget for review.
13
EPA still expects to publish the proposed revised rule later this
spring and to promulgate a final revised rule in spring 2023, after
receiving and addressing public comments in response to its proposal.
See p. 8, supra.
ARGUMENT
I.
APPLICANTS HAVE NOT ESTABLISHED THAT A STAY IS WARRANTED
Applicants ask (Appl. 16-29) this Court to stay the district
court’s order vacating the 2020 Rule.
In considering a stay ap-
plication on a matter pending before a court of appeals, the Court
or Circuit Justice must “try to predict whether four Justices would
vote to grant certiorari” if the court of appeals ultimately rules
against the applicant; “try to predict whether the Court would
then set the order aside”; and “balance the so-called ‘stay equities.’”
San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paul-
son, 548 U.S. 1301, 1302-1303 (2006) (Kennedy, J., in chambers)
(citation omitted); see Hilton v. Braunskill, 481 U.S. 770, 776
(1987) (traditional stay factors).
A stay on a matter currently
pending before a court of appeals is an extraordinary remedy that
is “rarely granted.”
Heckler v. Lopez, 463 U.S. 1328, 1330 (1983)
(Rehnquist, J., in chambers) (citation omitted).
The federal respondents agree with applicants that the district court lacked authority to vacate the 2020 Rule without first
determining that the Rule was invalid.
For a variety of reasons,
however, applicants have not carried their burden of showing that
14
a stay is warranted here.
Applicants have not demonstrated that
they will suffer irreparable harm if the 1971 certification rules
remain in effect during the relatively brief period while EPA
conducts its new rulemaking.
This Court would not likely grant
certiorari if the court of appeals rules against applicants in
their current appeals.
And during the five months since the dis-
trict court issued its vacatur order, EPA, federal permitting
agencies, and relevant stakeholders have readjusted their practices to conform to the vacatur order and the renewed applicability
of the 1971 regulations.
Requiring those practices to be adjusted
yet again would cause substantial disruption and disserve the public interest.
The application for a stay pending appeal should be
denied.
A.
Applicants Have Not Demonstrated A Likelihood
Irreparable Harm If A Stay Is Not Granted
Of
1.
Applicants assert (Appl. 25-28) that they will suffer
irreparable harm if the district court’s order vacating the 2020
Rule remains in effect during the pendency of their appeals.
Ap-
plicants made the same assertions below, see Appl. App. 596-599,
695-699, and both the district court and the court of appeals found
those assertions insufficient to establish the requisite likelihood of irreparable harm, see id. at 621-623, 802.
There is no
sound reason for this Court to reach a different conclusion.
Applicants do not dispute that the present controversy as to
the validity of the district court’s order will become moot when
15
EPA promulgates a final revised rule, which is expected to occur
in spring 2023.
See Appl. 27; p. 8, supra.
To justify a stay,
applicants therefore must show that the court’s order will likely
cause them irreparable harm before then.
Applicants have not made
that showing. Between 1971 and 2020, the 1971 regulations governed
implementation of the certification requirement under Section
21(b)(1) of the FWPCA and then Section 401 of the CWA.
6, supra.
See pp. 4-
As the district court explained, vacatur of the 2020
Rule simply “maintain[s] the course EPA has charted the past fifty
years under the 1971 rule” while the agency conducts a new rulemaking.
Appl. App. 615.
In contrast, the 2020 Rule had “only
been in effect for thirteen months,” a period the court found to
be “insufficient time for institutional reliance to build up around
the [2020 Rule].” Id. at 566. That finding undermines applicants’
assertion that leaving the 1971 regulations in effect until the
agency completes its new rulemaking will result in “substantial
disruption.”
Ibid.; see Appl. 26.
Indeed, it has now been more than five months since the district court vacated the 2020 Rule.
See Appl. App. 568.
Yet
applicants have not identified any substantial disruption -- let
alone irreparable harm -- caused by vacatur of the Rule during
that period.
To the contrary, their litigation conduct during the
past five months belies any suggestion of irreparable harm.
Ap-
plicants waited nearly a month after the district court issued its
16
vacatur order to seek a stay from that court.
See id. at 571.
After both that court and the court of appeals declined to issue
a stay, see id. at 612-625, 799-802, applicants delayed nearly
another month before seeking a stay from this Court.
At no point,
moreover, have they asked the court of appeals to expedite their
appeals.
See 9th Cir. R. 27-12 (providing that “[m]otions to
expedite briefing and hearing may be filed and will be granted
upon a showing of good cause,” which includes situations in which,
“in the absence of expedited treatment, irreparable harm may occur”).
Applicants’ own lack of urgency undermines their assertion
that a stay is necessary to protect them from irreparable harm.
2.
Applicants contend (Appl. 3) that they “will suffer ir-
reparable harm from the loss of the [2020] Rule’s protections”
against certain “abusive practices.”
That argument lacks merit.
Applicants assert (Appl. 26), for example, that “without the
[2020] Rule, previously offending States can now return to their
prior practice of delaying their consideration of Section 401 certifications beyond one year, contrary to the Rule’s clear limitation.”
But all of the alleged delays that applicants identify
(Appl. 7-9) happened in the past; applicants do not cite a single
pending or future project that would be threatened by such a delay
during EPA’s new rulemaking.
Nor do they explain (Appl. 26) why
such delays would be permissible “without the [2020] Rule.”
As
applicants observe (Appl. 9), “[a] number of courts have recognized
17
that allowing States to delay the start of the period of review
violates the CWA’s plain text.”
See, e.g., New York State Dep’t
of Envtl. Conservation v. FERC, 884 F.3d 450, 455 (2d Cir. 2018)
(holding that the “plain language of Section 401 outlines a brightline rule regarding the beginning of review:
the timeline for a
state’s action regarding a request for certification ‘shall not
exceed one year’ after ‘receipt of such request’”) (citation omitted).
Those decisions preceded the 2020 Rule and remain control-
ling precedent in the absence of the Rule.
Thus, as the district
court found, the “economic harms” that applicants assert from “unspecified delays to projects” “remain too speculative to rank as
irreparable.”
Appl. App. 622.
Applicants also contend that, without the 2020 Rule, “certifying authorities are no longer limited by the Section 401 regulations ‘to assuring that a discharge from a Federally licensed or
permitted activity will comply with water quality requirements’
only,
and
will
likely
resume
considering
non-water-quality-
related, project-killing conditions when granting their ‘water
quality’ certifications for disfavored industries or projects.”
Appl. 26 (citation omitted).
But applicants identify (Appl. 6-7,
26-27) only three prior instances in which a State allegedly denied
certification or imposed conditions based on non-water-qualityrelated considerations. They do not identify any pending or future
projects that would be threatened by such a practice during EPA’s
18
new rulemaking.
See Appl. App. 99 (declaration of Robin Rorick
for the American Petroleum Institute) (acknowledging that, in “the
significant majority of instances,” States “dutifully approach
their Section 401 certification obligations with a genuine interest in identifying and addressing discharges with potential adverse impacts on water quality”).
And in any event, applicants do
not explain how the 1971 regulations could be read to authorize
such a practice, given that those regulations require States, in
their certification decisions, to focus on “water quality considerations,” 40 C.F.R. 121.2(a)(2) (2019), and potential violations
of “applicable water quality standards,” 40 C.F.R. 121.2(a)(3),
121.24 (2019).
Applicants’ concerns (Appl. 26) about “non-water-
quality-related, project-killing conditions” are thus entirely
speculative.
Applicants further contend (Appl. 27) that vacatur of the
2020 Rule “deeply harms State Applicants’ constitutional rights
and sovereign interests.”
They suggest that, without the 2020
Rule, some States will use their certification decisions to burden
interstate commerce, in violation of the Dormant Commerce Clause.
Appl. 28; see U.S. Const. Art. I, § 8, Cl. 3.
But applicants cite
only one instance of such an alleged constitutional violation, in
a case that is now moot.
See Appl. App. 51-54, 550-551; U.S.
Amicus Br. at 11-13, Montana v. Washington, 141 S. Ct. 2848 (2021)
(No. 152, Orig.) (explaining that any constitutional challenge to
19
the State of Washington’s denial of Section 401 certification for
the Millennium Bulk Terminal is now moot).
And if a State issues
a certification decision that is believed to violate the Constitution, that decision can be challenged in court, regardless of
which regulations are in place.
See Appl. App. 615 (explaining
that “a party saddled with unwanted conditions can sue in district
court if presented with a flawed certification process”); id. at
623-624 (similar).
Applicants’ contention (Appl. 27) that a stay
is necessary to protect States’ “constitutional rights and sovereign interests” thus lacks merit.
Applicants therefore have “not demonstrate[d] a sufficient
likelihood of irreparable harm to warrant the requested relief.”
Appl. App. 802.
For that reason alone, their request for a stay
should be denied.
See Teva Pharm. USA, Inc. v. Sandoz, Inc., 572
U.S. 1301, 1301 (2014) (Roberts, C.J., in chambers); Ruckelshaus
v. Monsanto Co., 463 U.S. 1315, 1317 (1983) (Blackmun, J., in
chambers).
B.
Applicants Have Not Demonstrated A Reasonable Probability
That Certiorari Would Be Granted
For at least three reasons, this Court would not likely grant
review if the court of appeals rules against applicants in their
pending appeals.
First, the court of appeals may dismiss applicants’ appeals
for lack of appellate jurisdiction without determining the validity of the district court’s order.
Section 1291 of Title 28 vests
20
the courts of appeals with “jurisdiction of appeals from all final
decisions of the district courts.”
28 U.S.C. 1291.
Under Ninth
Circuit precedent, “remand orders” -- including remand orders accompanied by vacatur of the challenged agency action -- “are not
‘final decisions’ for purposes of section 1291.”
Alsea Valley
Alliance v. Department of Commerce, 358 F.3d 1181, 1184 (2004)
(citation omitted); see id. at 1185-1186.
Although the Ninth
Circuit has recognized an exception to that rule when the agency
itself seeks to appeal a remand order, that court has held that
non-agency litigants generally lack the ability to appeal such an
order.
Id. at 1184-1185.
EPA and some plaintiffs moved to dismiss applicants’ appeals
on that jurisdictional ground, and the court of appeals denied the
motions “without prejudice to renewing the arguments in the answering brief(s)” before the “merits panel.”
Appl. App. 802.
If
the panel ultimately dismisses the appeals in accordance with circuit precedent, this Court’s review would be unlikely.
The ju-
risdictional issue itself is not worthy of this Court’s review;
indeed, the Court recently denied a petition for a writ of certiorari that raised the issue.
See Scott Timber Co. v. Oregon Wild,
138 S. Ct. 1008 (2018) (No. 17-881).
And if the panel dismisses
the appeals without addressing whether a court may vacate a rule
“without first finding that the rule is unlawful,” Appl. 1, there
21
would be no court of appeals decision on that issue for this Court
to review.
Second, as applicants acknowledge (Appl. 1), by the time the
court of appeals resolves the pending appeals, EPA likely will
have completed its new rulemaking, thereby mooting applicants’
challenge to the district court’s vacatur order.
A “decision from
the Ninth Circuit may well take a year after” briefing is “scheduled to [be] complete[d]” this May, Appl. 27; see Appl. App. 802,
and EPA expects to promulgate a final revised rule in spring of
next year, see 20-cv-4636 D. Ct. Doc. 143-1, at 7.
Even if the
court of appeals issues its decision before then, this Court is
unlikely to grant review of an issue that will soon become moot.
Third, even if the court of appeals exercises appellate jurisdiction and affirms the district court’s judgment on the merits,
this Court would not likely grant review because such a decision
would not create a circuit conflict.
EPA agrees with the appli-
cants (see Appl. 1) that, when an agency seeks a voluntary remand
without confessing error, a district court cannot vacate a challenged agency rule unless it determines that the rule is invalid
and carefully considers the appropriate scope of relief. See Appl.
App. 452 n.2, 765.
To be sure, a court may grant preliminary
relief without definitively resolving the merits of such a challenge.
See, e.g., Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
But the district court in this case purported
22
to enter “final judgment” vacating the rule without first finding
the rule unlawful.
Appl. App. 570.
If the court of appeals endorses that approach, its decision
will be incorrect.
But applicants do not assert that such a
decision would conflict with any decision of another court of
appeals.
Petitioner therefore cannot demonstrate that this Court
would likely grant review even if the court of appeals upholds the
district court’s flawed approach.
C.
See Sup. Ct. R. 10.
Applicants Have Not Demonstrated That The Balance Of
Equities Favors A Stay
Equitable considerations also weigh against a stay of the
district court’s vacatur order pending appeal. As explained above,
applicants have not exercised reasonable diligence in pursuing a
stay.
See pp. 15-16, supra.
Nor have they shown that they will
suffer irreparable harm if the district court’s vacatur order remains in effect.
See pp. 14-19, supra.
In contrast, a stay at this juncture would be disruptive to
EPA, certifying authorities, federal permitting agencies, and project proponents alike.
Applicants themselves express concern
(Appl. 26) about the “whipsawing effect” of shifting from one
regulatory regime to another.
But that is precisely the effect
that the issuance of a stay now would have.
Having shifted from
the 1971 regulations to the 2020 Rule and back, EPA and relevant
stakeholders would have to shift again to the 2020 Rule, even
though the agency expects to promulgate a new rule by spring 2023.
23
Just as the Army Corps of Engineers paused permitting while it
reassessed its certification process in light of the vacatur of
the 2020 Rule, see Appl. App. 622-623, the Corps and others might
need to pause permitting again if a stay forced a return to that
Rule.
And in order to avoid regulatory confusion, EPA would likely
need to commit resources to clarifying which regulation was in place
and how to comply -- just as it did in the aftermath of the vacatur.
See EPA, Clean Water Act Section 401 Water Quality Certification:
Questions and Answers on the 2020 Rule Vacatur (Dec. 17, 2021),
http://www.epa.gov/system/files/documents/2021-12/questions-andanswers-document-on-the-2020-cwa-section-401-certification-rulevacatur-12-17-21-508.pdf.
That effort would divert time and re-
sources away from the agency’s rulemaking, which remains ongoing.
II.
APPLICANTS HAVE NOT ESTABLISHED THAT CERTIORARI BEFORE JUDGMENT
IS WARRANTED
In the alternative, applicants ask (Appl. 29) this Court to
treat their stay application “as a petition for a writ of certiorari before judgment and hear the case on the merits, including
considering the possibility of summary reversal.”
This Court typ-
ically grants certiorari before judgment, however, “only upon a
showing that the case is of such imperative public importance as
to justify deviation from normal appellate practice and to require
immediate determination in this Court.”
cants have not made that showing.
Sup. Ct. R. 11.
Appli-
24
To begin, this Court may grant certiorari before judgment
only if the case is properly “in” the court of appeals.
28 U.S.C.
1254(1); see Stephen M. Shapiro et al., Supreme Court Practice
§ 2.2, at 2-11 (11th ed. 2019) (“If there were a jurisdictional
defect that would preclude the court of appeals from reaching the
merits of the appeal, that defect likewise would prevent the Supreme Court from resolving the merits upon the grant of certiorari
before judgment.”).
The Court therefore would need to resolve
whether the district court’s remand order is a “final decision[]”
for purposes of Section 1291 before proceeding to the merits of
the issue that applicants have raised.
28 U.S.C. 1291; see
pp. 19-21, supra.
Even apart from that potential jurisdictional obstacle, applicants have not shown that this case requires “deviation from
normal appellate practice” and “immediate determination in this
Court.”
Sup. Ct. R. 11.
If the court of appeals has jurisdiction,
it is fully capable of correcting the district court’s error in
the normal course.
Applicants contend (Appl. 30) that “[t]his
Court’s immediate review is necessary because EPA is likely to
finish its new rulemaking before a full appeal can be briefed and
decided.”
But applicants could have acted on that concern by
filing a motion to expedite in the Ninth Circuit, see 9th Cir. R.
27-12, rather than delaying for one month after the court of appeals’ decision denying a stay and then asking this Court to take
25
the extraordinary step of granting certiorari before judgment.
In
any event, the fact that the district court’s vacatur order is
likely to have a practical impact only for a limited period of
time weighs against this Court’s review, not in favor of it.
Applicants also have not shown that this case is “of such
imperative public importance” as to justify the extraordinary
steps of certiorari before judgment and summary reversal.
Ct. R. 11.
Sup.
As explained above, the district court’s order merely
reinstated the 1971 regulations -- which had been in place for 50
years -- until EPA completes its new rulemaking.
See p. 15, supra.
And the question that applicants ask this Court to decide -- i.e.,
whether a court may vacate an agency rule without first finding
the rule unlawful -- is not the subject of a circuit conflict or
otherwise worthy of this Court’s review in this case.
See pp. 21-
22, supra.
Applicants’ request (Appl. 29) for summary reversal is particularly misguided.
Summary reversal would create the same sub-
stantial disruption as a stay.
See pp. 22-23, supra.
And summary
reversal on the specific ground that applicants urge -- i.e., that
the district court was required to determine whether the 2020 Rule
was valid before it could lawfully vacate that Rule -– would not
terminate the lawsuit.
Rather, it would force the parties to
return to the district court, thereby requiring EPA to divide its
resources between litigating plaintiffs’ challenge to the 2020
26
Rule and crafting a new rule in light of public comments received.
It was to avoid that division of resources that the agency requested a remand in the first place.
See Appl. App. 239 (arguing
that “continuing to litigate this case would interfere with EPA’s
ongoing reconsideration process by forcing the Agency to structure
its administrative process around pending litigation, rather than
the Agency’s priorities and expertise”); id. at 458 (asking the
district court to “grant EPA’s motion for voluntary remand without
vacatur instead of potentially requiring EPA to litigate the merits
of a rule that it has committed to reconsider and revise”).
CONCLUSION
The application for a stay pending appeal or, in the alternative, petition for a writ of certiorari before judgment should
be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
MARCH 2022
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.