Reply Brief — Louisiana, et al., Applicants v. American Rivers, et al.

No. 21A539

In the Supreme Court of the United States

STATE OF LOUISIANA; STATE OF ARKANSAS; STATE OF MISSISSIPPI; STATE OF MISSOURI;

STATE OF MONTANA; STATE OF WEST VIRGINIA; STATE OF WYOMING; STATE OF TEXAS;

AMERICAN PETROLEUM INSTITUTE, INTERSTATE NATURAL GAS ASSOCIATION OF

AMERICA, and NATIONAL HYDROPOWER ASSOCIATION,

APPLICANTS,

v.

AMERICAN RIVERS; MICHAEL S. REGAN; and U.S. ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

RESPONDENTS.

REPLY IN SUPPORT OF APPLICATION FOR STAY PENDING APPEAL

On Application For Stay, Or, In The Alternative, On Petition For A Writ Of

Certiorari To The U.S. Court Of Appeals For The Ninth Circuit

To the Honorable Elena Kagan

Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Ninth Circuit

GEORGE P. SIBLEY, III

HUNTON ANDREWS KURTH LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8262

(804) 788-8218 (fax)

gsibley@huntonak.com

DEIDRE G. DUNCAN

ERICA N. PETERSON

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Ave., NW

Washington, DC 20037

MISHA TSEYTLIN

Counsel of Record

SEAN T.H. DUTTON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street, Suite 3900

Chicago, IL 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

TIMOTHY L. MCHUGH

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, VA 23219

Attorneys for Applicants

[Additional counsel on following page.]

CLARE ELLIS

HUNTON ANDREWS KURTH LLP

50 California Street

Suite 1700

San Francisco, CA 94111

Attorneys for Applicants American

Petroleum Institute and Interstate

Natural Gas Association of America

JEFF LANDRY,

ATTORNEY GENERAL

ELIZABETH B. MURRILL,

SOLICITOR GENERAL

JOSEPH S. ST. JOHN,

DEPUTY SOLICITOR

LOUISIANA DEPARTMENT

OF JUSTICE

1885 N. Third Street

Baton Rouge, LA 70804

(225) 326-6739

murrille@ag.louisiana.gov

stjohnj@ag.louisiana.gov

CHARLES SENSIBA

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street NW

Suite 1000

Washington, DC 20004-2146

ELIZABETH HOLT ANDREWS

TROUTMAN PEPPER

HAMILTON SANDERS LLP

Three Embarcadero Center

Suite 800

San Francisco, CA 94111-4057

Attorneys for Applicant National

Hydropower Association

JAMES KASTE

DEPUTY ATTORNEY GENERAL

WYOMING ATTORNEY GENERAL’S OFFICE

109 State Capitol

Cheyenne, WY 82002

Attorneys for Applicant State of

Louisiana

Additional Counsel:

AUSTIN KNUDSEN

Attorney General of Montana

LESLIE RUTLEDGE

Attorney General of Arkansas

KEN PAXTON

Attorney General of Texas

LYNN FITCH

Attorney General of Mississippi

PATRICK MORRISEY

Attorney General of West Virginia

ERIC SCHMITT

Attorney General of Missouri

Attorneys for Applicants

ii

TABLE OF CONTENTS

ARGUMENT .................................................................................................................. 2

I.

The APA’s Text And This Court’s Caselaw Plainly Prohibited The

District Court’s Decision To Vacate The Section 401 Rule ............................. 2

II. Petitioners Will Suffer Irreparable Harm Absent Stay Relief, And All

Equitable Considerations And The Public Interest Call Out For A Stay ...... 7

III. The Solicitor General’s Undeveloped Suggestion That Only The Agency

Can Appeal From Vacatur Of A Rule Only Further Illustrates The

Cynical Evasion Of The APA At Issue In The Question Presented.............. 13

IV. Summary Reversal Is Particularly Appropriate Here Given Federal

Respondents’ Belated Concession That The District Court’s Decision Is

Legally Indefensible And The Posture Of This Case .................................... 14

CONCLUSION............................................................................................................. 16

TABLE OF AUTHORITIES

Cases

Catlin v. United States,

324 U.S. 229 (1945) ........................................................................................... 13

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,

140 S. Ct. 1891 (2020) ......................................................................................... 2

Fed. Aviation Admin. v. Cooper,

566 U.S. 284 (2012) ............................................................................................. 7

Ford Motor Co. v. NLRB,

305 U.S. 364 (1939) ............................................................................................. 4

Gelboim v. Bank of Am. Corp.,

574 U.S. 405 (2015) ........................................................................................... 13

Hall v. Hall,

138 S. Ct. 1118 (2018) ....................................................................................... 13

In re Clean Water Act Rulemaking,

___ F. Supp. 3d ___, 2021 WL 4924844 (N.D. Cal. Oct. 21, 2021) ................... 10

Mohawk Industries, Inc. v. Carpenter,

588 U.S. 100 (2009) ........................................................................................... 13

Morgan v. United States,

304 U.S. 1 (1938) ................................................................................................. 4

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety &

Health Admin.,

142 S. Ct. 661 (2022) ..................................................................................... 8, 12

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) ............................................................................................. 4

SKF USA Inc. v. United States,

254 F.3d 1022 (Fed. Cir. 2001) ........................................................................... 6

Turlock Irrigation Dist. v. FERC,

No. 21-1120 (D.C. Cir.)........................................................................................ 9

United States v. Chem. Found.,

272 U.S. 1 (1926) ................................................................................................. 7

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United States v. Morgan,

307 U.S. 183 (1939) ............................................................................................. 4

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519 (1978) ..................................................................................... 2, 3, 6

Webster v. Doe,

486 U.S. 592 (1988) ............................................................................................. 4

Statutes And Rules

5 U.S.C. § 551 ............................................................................................................... 14

5 U.S.C. § 553 ............................................................................................................... 14

5 U.S.C. § 701 ................................................................................................................. 5

5 U.S.C. § 702 ............................................................................................................. 5, 6

5 U.S.C. § 703 ................................................................................................................. 5

5 U.S.C. § 705 ................................................................................................................. 6

5 U.S.C. § 706 ..................................................................................................... 2, 4, 5, 6

28 U.S.C. § 1291 ........................................................................................................... 13

28 U.S.C. § 2101 ........................................................................................................... 15

33 U.S.C. § 1341 ....................................................................................................... 9, 10

9th Cir. R. 27-12........................................................................................................... 11

Sup. Ct. R. 11 ............................................................................................................... 15

Regulations

40 C.F.R. § 121.3 ...................................................................................................... 9, 10

40 C.F.R. § 121.5 .......................................................................................................... 10

40 C.F.R. § 121.6 ............................................................................................................ 9

40 C.F.R. § 121.9 .......................................................................................................... 10

Clean Water Act Section 401 Certification Rule,

85 Fed. Reg. 42,210 (July 13, 2020).......................................................... 6, 9, 10

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Administrative Decisions

Turlock Irrigation Dist. & Modesto Irrigation Dist.,

175 FERC ¶ 61,144 (May 21, 2021) .................................................................. 10

Other Authorities

FERC Response Brief, Turlock Irrigation Dist. v. FERC,

No. 21-1120 (D.C. Cir. Dec. 8, 2021)................................................................. 10

Oral Arg. Tr., Arizona v. City & Cnty. of San Francisco,

No. 20-1775 (U.S. Feb. 23, 2022) ........................................................................ 3

U.S. Amicus Brief, Montana & Wyoming v. Washington,

No. 22O152 (U.S. May 25, 2021) ...................................................................... 11

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TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF

THE UNITED STATES AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:

In their Response to the Application, Federal Respondents finally concede that

Applicants were correct all along: “the district court lacked authority to vacate the

2020 Rule without first determining that the Rule was invalid.” Fed. Resp.13. Had

Federal Respondents taken this approach below, the Rule would likely still be in place

today. Instead, Federal Respondents—cynically hoping to end prematurely a rule

that the current Administration opposes—offered only the most token resistance to

the unlawful vacatur of the Rule before the district court, then refused to appeal that

vacatur to the Ninth Circuit, and then attempted to thwart Applicants’ appeal by

raising meritless finality arguments that, if taken seriously, would render

unreviewable every unlawful vacatur-without-adjudicating-the-merits ruling.

Respondents’ various arguments against Applicants’ stay request all fail,

especially given Federal Respondents’ concession. As to the merits, only State and

Environmental Group Respondents (“State Respondents”) attempt to defend the

district court’s authority to vacate the Rule outside of the APA’s strictures, but their

reliance on certain pre-APA cases fails on its own terms, and—in any event—cannot

possibly survive the APA’s plain statutory text. As for considerations of irreparable

harm and the equities, State Respondents defeat their own argument by correctly

describing the Rule as a “dramatic[ ]” change to the prior regime, “restrict[ing]” the

considerations certification authorities’ may take into account in granting or denying

certifications and the period of time for decision-making on a certification request.

State Resp.6. Just so. Applicants strongly agree that the Section 401 Rule was a

dramatic change from the status quo, which is precisely why unlawful judicial

invalidation of the Rule harms Applicants, who are the direct beneficiaries of the

Rule’s significant changes.

ARGUMENT

I.

The APA’s Text And This Court’s Caselaw Plainly Prohibited The District

Court’s Decision To Vacate The Section 401 Rule

Under the APA’s plain text, federal courts may only set aside federal agencies’

actions “found” to be “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law,” after a “review [of] the whole record.” 5 U.S.C. § 706(2). This

specific statutory authorization satisfies the requirement that courts can only vacate

agency action “for substantial procedural or substantive reasons as mandated by

statute.” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.

519, 558 (1978) (citation omitted); Stay Appl.17–18. Violating these clear statutory

limitations and this Court’s caselaw, the district court below vacated the landmark

Section 401 Rule nationwide, without finding any aspect of the Rule unlawful, based

upon its own mere doubts about the Rule’s propriety. Stay Appl.21–22; see also Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1912 (2020) (“Even

if” one aspect of policy is “illegal,” it “could not be rescinded in full ‘without any

consideration whatsoever’ of a” policy with only the remaining provisions. (citation

omitted)).

Before this Court, Federal Respondents finally concede that Applicants were

correct all along that the district court lacked authority to vacate the Section 401 Rule

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without finding that Rule unlawful. Before the district court, Federal Respondents

did not support Applicants’ core argument that the courts cannot vacate a rule

without finding it unlawful under the APA, instead merely making some equitable

arguments against vacatur, while asking in a footnote for the opportunity to submit

additional briefing regarding the scope of vacatur. App. 452 n.2. Then, before the

Ninth Circuit, Federal Respondents only “generally agree[d]” that “where the agency

does not confess error, vacatur should be ordered only after the court has resolved the

merits and carefully considered the appropriate scope of relief.” App. 765. But now,

Federal Respondents admit what Applicants have argued all along on the core legal

issue in dispute: “the district court lacked authority to vacate the 2020 Rule without

first determining that the Rule was invalid.” Fed. Resp.13; see id. at 22.*

State Respondents do attempt to defend the legality of the district court’s

indefensible vacatur, claiming that district courts have a non-statutory, equitable

authority to vacate rules outside of the APA’s strictures. State Resp.12–13. But a

federal court can only vacate agency action where “mandated by statute, not simply

because the court is unhappy with the result reached,” Vt. Yankee, 435 U.S. at 558

(emphasis added; citation omitted). State Respondents’ pre-APA precedent reinforces

that principle, thereby defeating their argument. See State Resp.12–14. In each

* This is not the first time a new Administration has finally conceded before

this Court

that a district court had unlawfully vacated a rule issued by the immediately prior

Administration, but then both declined to appeal the district court’s decision and attempted

to thwart other parties from defending the rule. See Oral Arg. Tr. 75–76, Arizona v. City &

Cnty. of San Francisco, No. 20-1775 (U.S. Feb. 23, 2022).

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case, this Court recognized the availability of vacatur after an actual finding of actual

procedural or substantive unlawfulness, not before such a finding. Ford Motor Co. v.

NLRB, 305 U.S. 364, 372–73 (1939) (no need for court “to examine other grounds of

attack” on the “merits” of agency decision, where board’s adoption of “decision

proposed by its subordinates” without its own consideration and findings or

“opportunity [for petitioner] to be heard thereon” was sufficient grounds to remand

and set aside); Porter v. Warner Holding Co., 328 U.S. 395, 399 (1946) (in exercising

equitable authority over agency, district court may “upon a proper showing” order

preliminary relief, or after “decid[ing] all relevant matters in dispute . . . award

complete relief”); see also United States v. Morgan, 307 U.S. 183, 185, 188, 198 (1939)

(after this Court “set aside” agency action “without consideration of the merits, for

failure of the Secretary to follow the procedure prescribed by the statute” in Morgan

v. United States, 304 U.S. 1 (1938), “the full record of the Secretary’s proceedings” on

remand, “including findings supported by evidence,” would give district court “the

appropriate basis” to exercise its equitable discretion over impounded funds). In any

event, the “inescapable inference” of the APA is that this statute “restricts the court’s

jurisdiction in equity” to set aside or vacate a rule, Porter, 328 U.S. at 398, to only

circumstances where the court finds a specific statutory ground to do so, 5 U.S.C.

§ 706(2). Thus, Congress was “clear,” Webster v. Doe, 486 U.S. 592, 603 (1988), that

it intended to foreclose equitable remedies beyond those which the APA permits.

Similarly unhelpful to State Respondents is their red-herring, bizarre

suggestion that a court’s decision to remand a rulemaking back to the agency operates

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outside of the confines of the APA’s judicial-review procedures. State Resp.13–14.

State Respondents claim that any court “considering an agency’s request for

remand”—with or without vacatur—“is not engaging in judicial review of the

challenged rule” and so the APA’s judicial-review provisions, see 5 U.S.C. §§ 701–06,

do not apply, State Resp.13. But, of course, the APA’s judicial review provisions apply

to “any applicable form of legal action” concerning an agency action reviewable under

the APA, 5 U.S.C. § 703 (emphasis added), unless review by the courts is precluded

by statute or the agency’s decision “is committed to agency discretion by law,” 5 U.S.C.

§ 701(a). That is why State Respondents invoked the judicial-review provisions of the

APA in filing this lawsuit, App. 118, 132, and the district court purported to base its

erroneous decision on these APA provisions, App. 557–58.

State Respondents argue that nothing in 5 U.S.C. § 702 limits a district court’s

authority to order vacatur before a finding of unlawfulness. State Resp.15–16. But

whether a court may deny relief on a challenge to agency action under the APA is

both textually permitted, 5 U.S.C. § 702 (“Nothing herein . . . shall affect . . . the

power or duty of the court to dismiss any action or deny relief on any other

appropriate legal or equitable ground[.]”), and irrelevant to whether a court can

vacate a rule without complying with the APA’s limitations on invalidating

rulemaking, 5 U.S.C. § 706(2).

No more relevant are State Respondents’ concerns that without vacatur before

a finding of unlawfulness, agencies will be able to “withdraw dubious actions from

judicial review” and leave plaintiffs without a remedy. State Resp.17. Permitting an

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agency to reconsider a rulemaking without vacatur when doing so is not “frivolous or

in bad faith,” State Resp.17 (quoting SKF USA Inc. v. United States, 254 F.3d 1022,

1029 (Fed. Cir. 2001)), is consistent with a court’s obligation under the APA to “deny

relief on any other appropriate legal or equitable ground,” 5 U.S.C. § 702 (emphasis

added). Of course, a court may simply decline an agency’s request for remand that it

believes is “frivolous or in bad faith,” SKF USA Inc., 254 F.3d at 1029, or “issue all

necessary and appropriate process to . . . preserve status or rights,” 5 U.S.C. § 705, if

faced with a sufficiently “dubious” agency action, State Resp.17.

But under no

circumstances may a court simply vacate a rulemaking without any adjudication of

lawfulness. See Vt. Yankee, 435 U.S. at 558. The district court’s own actions below—

vacating an agency rule nationwide after two other courts declined to do so, App. 568–

69; Stay Appl.13–14, unilaterally undoing EPA’s rulemaking work of “more than

125,000 comments on the proposed rule from a broad spectrum of interested parties,”

Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42,210, 42,213 (July 13,

2020), without following the APA’s mandatory process for invalidating rules, 5 U.S.C.

§ 706(2)—shows starkly why that must be so.

Finally, State Respondents also have no answer to the APA’s limited waiver of

sovereign immunity, lamely pointing to the fact that Federal Respondents have not

raised that immunity. State Resp.15–16. But Federal Respondents now agree with

Applicants that “the district court lacked authority to vacate the 2020 Rule without

first determining that the Rule was invalid” under the APA, Fed. Resp.13, and, in

any event, “Congress alone has power to waive or qualify” sovereign immunity.

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United States v. Chem. Found., 272 U.S. 1, 20 (1926); Fed. Aviation Admin. v. Cooper,

566 U.S. 284, 299 (2012) (“When waiving the Government’s sovereign immunity,

Congress must speak unequivocally.” (emphasis added)).

II.

Petitioners Will Suffer Irreparable Harm Absent Stay Relief, And All

Equitable Considerations And The Public Interest Call Out For A Stay

A. As Applicants explained, they will suffer irreparable harm absent relief from

this Court and the balance of equities and public interest all support a stay. Stay

Appl.25–29.

The district court’s unlawful vacatur has deprived Applicants—the

States and industry actors most affected by the prior abuses that occurred before the

Rule’s enactment—of the multiple new and crucial protections that Applicants

successfully obtained by convincing EPA to adopt the Rule in the first place. Stay

Appl.25–26. As a result of the vacatur’s removal of all of these protections, Applicants

and other industry participants will continue to face substantial disruptions from the

district court’s unilateral repeal of the Rule’s corrective regulatory regime. Stay

Appl.26–27.

Moreover, vacatur harms Applicant States’ sovereignty, permitting

sister States to control Applicant States’ commerce via free-wheeling certification

decisions that go beyond the CWA’s text. Stay Appl.27–28. Without this Court’s

intervention now, Applicants are highly unlikely ever to be able to obtain relief from

the district court’s unlawful actions, as a practical matter, given the length of the

Ninth Circuit proceedings and EPA’s ongoing rulemaking. Stay Appl.27. State

Respondents have no equitable interest in the district court’s unlawful vacatur, Stay

Appl.28, while the public is well served by a stay, Stay. Appl.28–29. And given how

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clearly the district court erred, Stay Appl.17–25; supra pp. 2–3, this Court need not

“weigh . . . tradeoffs” in the equities, which do “not justify withholding interim relief.”

Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin.

(“NFIB”), 142 S. Ct. 661, 666 (2022).

B. Respondents’ equitable arguments attempt to have it both ways, arguing

that the Rule is hugely consequential, while paradoxically asserting that the very

entities that the Rule protects suffer no harm from the Rule’s sudden judicial repeal.

Respondents’ characterization of the Rule as hugely consequential is correct, which

is exactly why their arguments on the equities are wrong, assuming this Court agrees

with Applicants on the merits. Id. For example, State Respondents correctly argue

that the Rule was a “dramatic[ ]” change from the prior regime, “restrict[ing]” the

considerations certification authorities’ may take into account in granting or denying

certifications and the period of time for decisionmaking on a certification request,

State Resp.6, which is Applicants’ point.

The district court’s vacatur decision

deprived Applicants of these “dramatic[ ],” State Resp.6, and highly sought-after

corrections to the pre-Rule regime, and it is that complete deprival of those

corrections that harms Applicants. Thus, if this Court agrees with Applicants on the

merits of the issues presented, Applicants are entitled to a stay of the unlawful

vacatur decision. NFIB, 142 S. Ct. at 666.

Respondents contend that this Court should deny interim relief because

Applicants have not shown irreparable harm, State Resp.20; Fed. Resp.14–19, but

they are wrong. The Rule established numerous real and substantial changes in the

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Section 401 certification process, and Applicants and their member entities were

particular beneficiaries of the Rule and its important clarifying regulations, App. 1–

115. To take just two important protections, the Rule (1) precludes States and other

certifying authorities from delaying their consideration of a certification request

through various stratagems that seek to defeat the “not [to] exceed one year”

limitation in 33 U.S.C. § 1341(a)(1), 40 C.F.R. § 121.6, and (2) prohibits States from

including non-water-quality obligations in certification applications, 40 C.F.R.

§ 121.3. See 85 Fed. Reg. at 42,232, 42,236. Through these and other protections,

the Rule “promote[s] consistent implementation of section 401 and streamline[s]

federal license and permit processes,” and “eliminates the possibility of inconsistent

interpretation and enforcement of the certification conditions in the federal license or

permit,” 85 Fed. Reg. at 42,220, 42,276, which are the exact benefits that Applicants

received from the Rule, and the unlawful, nationwide vacatur deprives them of all of

these protections.

Applicants cannot effectively remedy the abuses that EPA

designed the Rule to combat by “challeng[ing] individual certification decisions in

state or federal court.” State Resp.21. Even if Applicants could successfully challenge

these varied and continual abuses as they inevitably come up, the Rule’s core design

was to create a uniform approach to remedying such abuses. 85 Fed. Reg. at 42,220.

Take just one example of the benefits of the Rule’s uniform protections and the

harms forcing litigants to re-fight State abuses one-by-one. In a case currently

pending in the D.C. Circuit, Turlock Irrigation Dist. v. FERC, No. 21-1120 (D.C. Cir.),

the State of California engaged in a denial-without-prejudice scheme aimed plainly

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at evading 33 U.S.C. § 1341(a)(1)’s one-year limit. See Turlock Irrigation Dist. &

Modesto Irrigation Dist., 175 FERC ¶ 61,144, 61,926–27 PP 1–7 (May 21, 2021)

(Danly, Comm’r, dissenting). That evasive scheme is contrary to the Rule, see 40

C.F.R. §§ 121.5–9; 85 Fed. Reg. at 42,236, but Turlock and Modesto—both members

of Applicant National Hydropower Association—could not rely upon the Rule’s

protections because of the district court’s vacatur below, as the Federal Energy

Regulatory Commission pointed out, see FERC Resp. Br.47, Turlock Irrigation Dist.

v. FERC, No. 21-1120 (D.C. Cir. Dec. 8, 2021) (citing In re Clean Water Act

Rulemaking, ___ F. Supp. 3d ___, 2021 WL 4924844 (N.D. Cal. Oct. 21, 2021)).

Similarly, under the pre-Section 401 Rule regime, States regularly inserted

non-water quality conditions into certifications, scuttling projects based upon

ancillary, non-water-quality-related concerns. See Stay Appl.6–7; App. 110, 497–548.

Under the Rule, that would be unambiguously forbidden. 40 C.F.R. § 121.3; 85 Fed.

Reg. at 42,232. But after the district court’s vacatur decision, States can resume

these very practices, forcing Applicants to battle against these inevitable, non-waterquality conditions in expensive, uncertain litigation.

Respondents also contend that harms to Applicant States’ sovereign interests

are too speculative to be irreparable. Fed. Resp.18–19. But again, they simply brush

aside the example case Applicants provided to this Court showing the exact harms

Applicants will face after vacatur, merely claiming that that case is now “moot.” Fed.

Resp.18–19. That case is only moot because “Millennium and its parent company,

Lighthouse, declared bankruptcy” during the pendency of the State of Washington’s

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gamesmanship and “thus abandoned its proposal to build a coal-export terminal on

that property,” negating “any interest in the fate of its application for Section 401

certification for that project.”

U.S. Amicus Br.12, Montana & Wyoming v.

Washington, No. 22O152 (U.S. May 25, 2021).

Respondents argue that Applicants have failed to move swiftly enough in this

case, and that somehow shows that their harms are not irreparable. State Resp.19–

20; Fed. Resp.15–16, 24–25. But Applicants have not come to this Court in an

emergency stay posture, and have explained that they asked this Court to issue a

stay pending appeal because that is their only option to obtain relief from the district

court’s unlawful vacatur, which vacatur has important consequences for the Nation.

Contrary to Respondents’ assertions, State Resp.19–20; Fed. Resp.15–16, there is

nothing Applicants can do before the Ninth Circuit to obtain expedition of this case.

The Ninth Circuit’s rules provide that a request to expedite an appeal will be granted

when, as relevant here, “irreparable harm may occur” without such expedition. 9th

Cir. R. 27-12. But the Ninth Circuit already denied Applicants’ prior request for a

stay because it wrongly concluded that Applicants had “not demonstrate[d] a

sufficient likelihood of irreparable harm.” App. 802. As for any delay below, it was

Respondents who sought—successfully—to delay the Ninth Circuit’s consideration of

Applicants’ stay motion by extending their stay briefing deadlines in the Ninth

Circuit, see ECF Nos. 21, 22, In re: Clean Water Act Rulemaking, No. 21-16958 (9th

Cir. Dec. 17, 2021), over Applicants’ fervent objections, see ECF No. 24, In re: Clean

Water Act Rulemaking, No. 21-16958 (9th Cir. Dec. 20, 2021).

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Respondents’ arguments on the balance of the equities and public interest are

similarly meritless. Such considerations do not come into play here given the clear

illegality of the district court’s vacatur decision, NFIB, 142 S. Ct. at 666, and

Respondents have no answer for this Court’s recent holding in NFIB reinforcing this

principle. While State Respondents contend that the Rule would create “significant

environmental harms,” State Resp.23, the legal way that State Respondents can

remedy any claims of environmental harms is to actually litigate the Rule’s legality,

as the APA plainly requires, Stay Appl.17–25; supra pp. 2–3.

No better are Federal Respondents’ arguments that staying the vacatur would

require EPA to expend resources clarifying the applicable regulatory scheme. Fed.

Resp.23. Federal Respondents now “agree with applicants that the district court

lacked authority to vacate the 2020 Rule without first determining that the Rule was

invalid,” Fed. Resp.13, so they cannot be heard to argue that complying with the law

is too much trouble. In any event, EPA already had guidance in place regarding the

Rule after its promulgation, and returning to that regime could happen quickly and

simply, without any massive undertaking by the agency. Indeed, EPA was able to

issue necessary clarification on compliance with Section 401 regulations less than two

months after the district court’s surprise, unlawful vacatur, compare App. 552–69,

with Fed. Resp.23, and a return to the Rule would be much easier.

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III.

The Solicitor General’s Undeveloped Suggestion That Only The Agency Can

Appeal From Vacatur Of A Rule Only Further Illustrates The Cynical Evasion

Of The APA At Issue In The Question Presented

Contrary to the Federal Respondents undeveloped suggestion, Fed. Resp. 19–

21, the district court’s decision is final for purposes of appeal. Section 1291 gives the

Courts of Appeals jurisdiction over appeals from “all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. In evaluating whether a decision is

final, this Court takes a “practical rather than a technical construction,” while noting

that “the statute’s core application is to rulings that terminate an action.” Gelboim

v. Bank of Am. Corp., 574 U.S. 405, 409 (2015) (quoting Mohawk Industries, Inc. v.

Carpenter, 588 U.S. 100, 106 (2009)). “The archetypal final decision is one[ ] that

trigger[s] the entry of judgment,” and “any litigant armed with a final judgment from

a lower federal court is entitled to take an appeal.” Hall v. Hall, 138 S. Ct. 1118, 1124

(2018) (citations omitted; alterations in original); see also Catlin v. United States, 324

U.S. 229, 233 (1945). Appellate courts thus clearly have jurisdiction over Applicants’

challenge to the vacatur decision. The district court terminated the action on the

merits, giving the plaintiffs the only relief they sought by “vacating the Final Rule,”

App. 146, 191, 222, 568, and left “nothing for the court to do but execute the

judgment,” Catlin, 324 U.S. at 233, which it thereafter did “to ensure appealability,”

App. 570, further confirming that its decision is final, see Hall, 138 S. Ct. at 1124.

Accordingly, Respondents’ vague claim that there is somehow doubt about appellate

jurisdiction here is a transparent effort to distract from the core issue in this

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Application, which is why Respondents do not actually attempt to develop the

argument about finality before this Court.

If anything, Respondents’ half-hearted claim that the district court’s order is

somehow not a final, appealable order only further highlights the lawlessness of how

Respondents acted below. An agency must provide notice to the public of a proposed

legislative rule and an opportunity to comment, 5 U.S.C. § 553(b), (c), including before

repealing a rule, 5 U.S.C. § 551(5). Respondents’ appellate jurisdiction argument

raised below, if taken seriously by any court, would provide a simple recipe for any

agency to evade the APA’s fundamental notice-and-comment requirements for repeal

of a rule enacted by a prior administration: litigants friendly to a new Administration

seek vacatur of the prior Administration’s rule in as many courts around the country

as needed, and once a single district court grants a nationwide vacatur as part of the

remand, the new Administration declines to take an appeal, putting an unreviewable

end to the rule. That is obviously not the law.

IV.

Summary Reversal Is Particularly Appropriate Here Given Federal

Respondents’ Belated Concession That The District Court’s Decision Is Legally

Indefensible And The Posture Of This Case

Especially given that Federal Respondents now belatedly agree that the

district court had no authority to vacate the Rule without first finding it unlawful,

Fed. Resp.13, summary reversal is a particularly suitable course. There is no textual

argument that the APA authorizes the district court’s actions, and State

Respondents’ appeals to inapposite, pre-APA cases are irrelevant. Supra pp. 3–4.

Meanwhile, cases presenting the problem here—a new Administration effectively

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abandoning the defense of a prior Administration’s rule, while at the same time

working to repeal that rule administratively—are unlikely ever to come up for this

Court’s review in the normal course, given the timeframes involved, as this case

starkly illustrates. Thus, given the “imperative public importance” of establishing

clear precedent guiding a district court’s limited ability to vacate rules under the

APA, Sup. Ct. R. 11; 28 U.S.C. § 2101(e), summary reversal here is particularly

appropriate.

Federal Respondents’ objections to summary reversal here are meritless. As

explained above, see supra Part III, Federal Respondents are incorrect when they

vaguely claim there may be jurisdictional barriers to this Court’s consideration of the

legal issue before it. Fed. Resp.24. Federal Respondents are also wrong to contend

that the Ninth Circuit could “correct the district court’s error in the normal course,”

Fed. Resp.24–25, given the timeframes involved in the Ninth Circuit’s review and the

ongoing administrative repeal-and-replacement process, supra p. 11.

Federal

Respondents also incorrectly claim that this case is not “of such imperative public

importance.” Fed. Resp.25. But State Respondents acknowledged that the effects of

the Rule were a “dramatic[ ]” shift from the 1971 regime, State Resp.6, importantly

“limit[ing]” certification authorities’ scope and time for decisionmaking, Fed. Resp.6.

And even apart from the importance of the Rule itself, the legal principle at stake—

whether a district court has the atextual, non-statutory authority to vacate agency

rulemaking without finding the rule unlawful under the APA—is of nationwide

importance, Sup. Ct. R. 11.

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CONCLUSION

This Court should stay the vacatur of the Rule or, in the alternative, construe

this Application as a petition for a writ of certiorari, grant the petition, and

summarily reverse the district court.

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Respectfully submitted,

GEORGE P. SIBLEY, III

HUNTON ANDREWS KURTH LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, VA 23219

(804) 788-8262

(804) 788-8218 (fax)

gsibley@huntonak.com

DEIDRE G. DUNCAN

ERICA N. PETERSON

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Ave., NW

Washington, DC 20037

CLARE ELLIS

HUNTON ANDREWS KURTH LLP

50 California Street

Suite 1700

San Francisco, CA 94111

Attorneys for Applicants American

Petroleum Institute and Interstate

Natural Gas Association of America

JEFF LANDRY,

ATTORNEY GENERAL

ELIZABETH B. MURRILL,

SOLICITOR GENERAL

JOSEPH S. ST. JOHN,

DEPUTY SOLICITOR

LOUISIANA DEPARTMENT OF JUSTICE

1885 N. Third Street

Baton Rouge, LA 70804

(225) 326-6739

murrille@ag.louisiana.gov

stjohnj@ag.louisiana.gov

Attorneys for Applicant State of

Louisiana

MISHA TSEYTLIN

Counsel of Record

SEAN T.H. DUTTON

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe Street, Suite 3900

Chicago, IL 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

TIMOTHY L. MCHUGH

TROUTMAN PEPPER

HAMILTON SANDERS LLP

1001 Haxall Point,

15th Floor

Richmond, VA 23219

CHARLES SENSIBA

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street NW

Suite 1000

Washington, DC 20004-2146

ELIZABETH HOLT ANDREWS

TROUTMAN PEPPER

HAMILTON SANDERS LLP

Three Embarcadero Center

Suite 800

San Francisco, CA 94111-4057

Attorneys for Applicant National

Hydropower Association

JAMES KASTE

DEPUTY ATTORNEY GENERAL

WYOMING ATTORNEY GENERAL’S OFFICE

109 State Capitol

Cheyenne, WY 82002

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Additional Counsel:

LESLIE RUTLEDGE

Attorney General of Arkansas

AUSTIN KNUDSEN

Attorney General of Montana

LYNN FITCH

Attorney General of Mississippi

KEN PAXTON

Attorney General of Texas

ERIC SCHMITT

Attorney General of Missouri

PATRICK MORRISEY

Attorney General of West Virginia

March 2022

Attorneys for Applicants

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