Amicus Curiae Brief — Dakota Finance LLC, dba Arabella Farm, et al., Petitioners v. Naturaland Trust, et al.

No. 22-720

In the Supreme Court of the United States

__________________

DAKOTA FINANCE LLC, D/B/A/ ARABELLA FARM, ET AL.,

Petitioners,

v.

NATURALAND TRUST, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

__________________

BRIEF OF AMICI CURIAE THE BUCKEYE

INSTITUTE AND THE CATO INSTITUTE IN

SUPPORT OF PETITIONERS

__________________

ROBERT ALT

DAVID C. TRYON

THE BUCKEYE INSTITUTE

88 East Broad Street

Suite 1300

Columbus, OH 43215

(614) 224-4422

robert@buckeyeinstitute.org

d.tryon@buckeyeinstitute.org

LARRY J. OBHOF, JR.

Counsel of Record

SHUMAKER, LOOP & KENDRICK, LLP

41 South High Street

Suite 2400

Columbus, OH 43215

(614) 463-9441

lobhof@shumaker.com

CLARK M. NEILY III

THOMAS A. BERRY

ISAIAH MCKINNEY

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

Counsel for Amici Curiae

i

QUESTIONS PRESENTED

What is the proper test for determining whether

the “diligent prosecution bar” under 33 U.S.C.

§ 1319(g)(6)(A)(ii) precludes citizen suits brought

under 33 U.S.C. § 1365(a)?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

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

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT ............................................................. 5

I.

This Court Should Grant Review Because

the Court of Appeals’ Decision is

Inconsistent

with

the

“Cooperative

Federalism” Approach of the Clean Water

Act .................................................................... 5

A.

The Clean Water Act Preserves the

States’ Primary Role in Preventing

and Eliminating Water Pollution......... 6

B.

The Decision Below Does Not Show

Proper Deference to the States’ Role

in Protecting Water Resources

Under the Clean Water Act ................ 11

CONCLUSION ......................................................... 15

iii

TABLE OF AUTHORITIES

Cases

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ........................................... 3, 5, 6

Arkansas Wildlife Fed'n v. ICI Americas, Inc., 29

F.3d 376 (8th Cir. 1994).................................... 8, 13

Cnty. of Maui, Hawaii v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ......................................... 6, 7

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) ........................... 11

McAbee v. City of Fort Payne,

318 F.3d 1248 (11th Cir. 2003)............................. 13

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ............................................... 14

New York v. United States,

505 U.S. 144 (1992) ............................................. 5, 6

Oregon v. Ice,

555 U.S. 160 (2009) ............................................... 13

Paper, Allied Indus., Chem. & Energy Workers Int’l

Union v. Cont’l Carbon Co., 428 F.3d 1285

(10th Cir. 2005) ........................................... 9, 10, 13

iv

Rapanos v. United States,

547 U.S. 715 (2006) ................................................. 6

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001) ................ 6

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ......................................... 6, 7, 8

Statutes

33 U.S.C. § 1251(a)..................................................... 6

33 U.S.C. § 1251(b)......................................... 3, 4, 5, 6

33 U.S.C. § 1313(a)(1) ................................................ 8

33 U.S.C. § 1313(a)(2) ................................................ 8

33 U.S.C. § 1319(c) ..................................................... 7

33 U.S.C. § 1319(d)..................................................... 7

33 U.S.C. § 1319(g) ................................4, 6, 12, 13, 15

33 U.S.C. § 1319(g)(6)(A)(ii) ................................. 4, 11

33 U.S.C. § 1319(g)(8) .............................................. 14

33 U.S.C. § 1342 ......................................................... 7

33 U.S.C. § 1342(a)..................................................... 7

v

33 U.S.C. § 1342(b)..................................................... 7

33 U.S.C. § 1342(b)(7) ................................................ 8

33 U.S.C. § 1344(a)..................................................... 7

33 U.S.C. § 1365(a)............................................... 3, 11

33 U.S.C. § 1365(d)................................................... 11

Ohio Rev. Code § 905.326(A) ................................... 14

Ohio Rev. Code § 905.326(E) ................................... 14

Ohio Rev. Code § 905.326(F).................................... 14

Ohio Rev. Code § 1511.10(A) ................................... 14

Ohio Rev. Code § 6111.03(V) ................................... 14

Ohio Rev. Code § 6111.33 ........................................ 15

S.C. Code Ann. § 1-23-380 ....................................... 14

S.C. Code Ann. § 48-1-200 ....................................... 14

S.C. Code Ann. § 48-1-90(A) .................................... 12

Regulations

40 C.F.R. § 19.4 .......................................................... 7

40 C.F.R. §§ 123.1-123.64 .......................................... 7

vi

40 C.F.R. § 123.27(a)(3)(i) .......................................... 8

40 C.F.R. § 123.27(b)(1) ............................................. 8

40 C.F.R. § 123.27(c) .................................................. 8

40 Fed. Reg. 28,130 (July 3, 1975)............................. 9

57 Fed. Reg. 43,733 (Sept. 22, 1992) ......................... 9

Other Authorities

Amicus Curiae Brief for the South Carolina

Department of Health and Environmental

Control in Support of Appellees’ Petition for

Rehearing En Banc, Naturaland Trust v.

Dakota Finance, LLC, No. 21-1517 (4th Cir.)

(filed Aug. 10, 2022) .......................................... 9, 10

S. Rep. No. 92-414 (1971)......................................... 11

U.S. EPA, About NPDES: Overview, available at

https://www.epa.gov/npdes/about-npdes ................ 9

U.S. EPA, NPDES State Enforcement Authority,

available at https://www.epa.gov/npdes/npdesstate-program-authority ......................................... 9

Webster’s Third New International Dictionary

(1986) ..................................................................... 13

1

INTEREST OF AMICI CURIAE 1

Amicus curiae The Buckeye Institute was founded

in 1989 as an independent research and education

institution—a “think tank”—to formulate and

promote free-market public policy in the States. The

staff at The Buckeye Institute accomplish the

organization’s mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating sound free-market

policies, and promoting those policy solutions for

implementation in Ohio and replication across the

country. Through its Legal Center, The Buckeye

Institute works to restrain governmental overreach

and engages in litigation in support of the rights and

principles enshrined in the United States

Constitution.

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. The Cato

Institute’s Robert A. Levy Center for Constitutional

Studies helps restore the principles of constitutional

government that are the foundation of liberty.

Toward those ends, Cato publishes books and studies,

1 Amici curiae state that pursuant to Sup. Ct. R. 37.2, counsel of

record for the parties received timely notice of amici curiae’s

intent to file this brief. Pursuant to Sup. Ct. R. 37.6, amici curiae

state that no counsel for any party authored this brief in whole

or in part, nor did any person or entity, other than amici, their

members, or their counsel make a monetary contribution to the

preparation or submission of this brief.

2

conducts conferences, and produces the annual Cato

Supreme Court Review.

Amici curiae support the principles of limited

government and individual liberty. They have a

strong interest in preserving the principles embodied

in the United States Constitution, including

federalism. This case raises important questions

about the principles of federalism and the role that

each level of government plays in protecting our

Nation’s water resources. Amici support a regulatory

environment which is not overly burdensome, and

which respects each State’s ability to regulate activity

within its own jurisdiction.

SUMMARY OF ARGUMENT

Amici curiae The Buckeye Institute and the Cato

Institute agree with Petitioners that this case

presents an opportunity for this Court to resolve a

conflict among the Courts of Appeals about the scope

of the Clean Water Act’s authorization for citizen

suits. See Pet. at 4. This Court should grant review in

order to resolve this conflict by clarifying the

limitations that Congress has placed on such private

enforcement actions.

Amici curiae write separately to highlight the

significant problems that the decision below poses to

the principles of federalism embodied in the Clean

Water Act (the “Act”). The Fourth Circuit’s decision

upsets a careful balance between the respective roles

of the States and the federal government. It does this

3

by interpreting the Act in a way that is inconsistent

with the ordinary plain meaning of the statutory text.

Congress designed the Clean Water Act as a

partnership between the States and the federal

government. See Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992). Under this “cooperative federalism”

framework, the States and federal government share

authority to protect the Nation’s waters. States retain

the primary responsibility for such enforcement.

Indeed, the Clean Water Act plainly states that it is

the “policy of Congress” to preserve the “primary

responsibilities and rights of States to prevent,

reduce, and eliminate” water pollution. 33 U.S.C.

§ 1251(b).

Consistent with the Clean Water Act’s cooperative

federalism framework, individual States may

establish and administer their own permitting

programs. Such is the case here. South Carolina

administers and enforces its own permitting

program—a program that has long been approved by

the United States Environmental Protection Agency

(“EPA”).

The Clean Water Act provides for citizen suits for

certain violations of the Act. See 33 U.S.C. § 1365(a).

However, the States remain primarily responsible for

enforcement. Indeed, the Act specifically bars private

enforcement actions when a State has commenced

and is “diligently prosecuting” an administrative

action “under a State law comparable” to the Clean

4

Water Act’s administrative penalty provisions. 33

U.S.C. § 1319(g)(6)(A)(ii).

Here, the Fourth Circuit determined that South

Carolina’s

enforcement

procedures

are

not

comparable to § 1319(g)’s enforcement scheme. As a

practical matter, the court’s holding offers States a

choice: either mimic the federal program, or citizen

suits will trump the State’s preferred enforcement

program.

That is not the system envisioned and enacted by

Congress. A one-size-fits-all approach runs counter to

the Clean Water Act’s cooperative federalism

framework. It fails to show proper deference to the

States’ “primary” role in regulating water resources

under the Act. See 33 U.S.C. § 1251(b). It is also

inconsistent with the Act’s plain language, which

gives some latitude to the States to adopt their own

policies.

This Court should grant review to clarify the

proper interpretation of § 1319(g), apply the plain

meaning of the statutory text, and enforce the

cooperative federalism approach embodied in the

Clean Water Act.

5

ARGUMENT

I.

This Court Should Grant Review Because

the Court of Appeals’ Decision is

Inconsistent with the “Cooperative

Federalism” Approach of the Clean Water

Act.

The Clean Water Act adopts a cooperative

federalism approach to protecting and preserving our

Nation’s waters—a partnership between the States

and federal government. See New York v. United

States, 505 U.S. 144, 167 (1992); Arkansas, 503 U.S.

at 101. The statutory scheme carefully balances the

roles of each level of government, and makes clear

that States retain the primary responsibility for

preventing and reducing water pollution. See 33

U.S.C. § 1251(b). The Court of Appeals’ decision here

upsets that balance. The decision below effectively

requires a one-size-fits-all approach, rather than

preserving the States’ flexibility to enact and enforce

their own standards and procedures.

Amici curiae respectfully submit that the Fourth

Circuit’s interpretation of the diligent prosecution bar

is inconsistent with the statutory text. The decision

below also exacerbates a circuit split over the scope of

the Clean Water Act’s authorization for citizen suits.

Importantly, the court’s errors could actually

undermine efforts to protect the Nation’s waters.

6

This Court should grant review to correct these

errors and resolve the inter-circuit conflict over the

proper interpretation of 33 U.S.C. § 1319(g).

A. The Clean Water Act Preserves the States’

Primary

Role

in

Preventing

and

Eliminating Water Pollution.

Congress designed the Clean Water Act as “a

partnership between the States and the Federal

Government, animated by a shared objective” of

restoring and maintaining the “integrity of the

Nation’s waters.” Arkansas, 503 U.S. at 101 (quoting

33 U.S.C. § 1251(a)); see also U.S. Dep’t of Energy v.

Ohio, 503 U.S. 607, 633 (1992) (White, J., concurring

in part and dissenting in part). Under this cooperative

federalism framework, the States and federal

government share authority to protect the Nation’s

waters. See generally New York, 505 U.S. at 167

(describing such federal-state partnerships as

“program[s] of cooperative federalism”).

The States retain the primary responsibility for

enforcing permitting rules and penalizing violations.

Indeed, the Clean Water Act expressly states that it

is the “policy of Congress” to preserve the “primary

responsibilities and rights of States to prevent,

reduce, and eliminate” water pollution. 33 U.S.C.

§ 1251(b); see also Rapanos v. United States, 547 U.S.

715, 722–23 (2006) (quoting § 1251(b)); Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of

Engineers, 531 U.S. 159, 166–67 (2001); Cnty. of

7

Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct.

1462, 1480 (2020).

This Court is familiar with the contours of the

Clean Water Act’s cooperative federalism framework.

See, e.g., U.S. Dep’t of Energy, 503 U.S. at 633 (White,

J., concurring in part and dissenting in part). The Act

authorizes the EPA to issue discharge permits. Id.

(citing 33 U.S.C. § 1342). Yet it also “provides that a

State may ‘administer’ its own permit system if it

complies with detailed statutory and regulatory

requirements.” Id. (citing 33 U.S.C. § 1342(b); 40

C.F.R. §§ 123.1–123.64 (1991)).

Nonexempt discharges to regulated waters

generally require a permit from the EPA, known as a

National Pollutant Discharge Elimination Program

(NPDES) permit. See 33 U.S.C. § 1342(a).

Alternatively, if the discharge involves “dredged or fill

material,” property owners must obtain a permit from

the Army Corps of Engineers. See id. § 1344(a).

Property owners can face significant civil and

criminal liability for discharging pollutants without a

required permit or violating permit conditions. See 33

U.S.C. § 1319(c), (d); see also 40 C.F.R. § 19.4.

Individual States may establish and administer

their own permitting programs, including for NPDES

permits, if the program meets certain requirements

and is approved by the EPA. For example, a State that

seeks to administer a permitting program must adopt

a system of civil penalties. See U.S. Dep’t of Energy,

503 U.S. at 633 (White, J., concurring in part and

8

dissenting in part) (citing 33 U.S.C. § 1342(b)(7)).

Federal regulations establish the minimum size of the

penalties and mandate how they must be imposed. Id.

(citing 40 C.F.R. §§ 123.27(a)(3)(i), 123.27(b)(1),

123.27(c) (1991)).

Similarly, the States still must meet certain

federal requirements for water quality standards. See

33 U.S.C. § 1313(a)(1)–(2). If a State does not

implement its own standards that satisfy the federal

requirements, the EPA will inform the State of the

changes it needs to make. Id. But even here,

cooperative federalism is at play. If any States had

implemented their own standards prior to the

enactment of the Clean Water Act, those standards

remained in effect so long as they were not

inconsistent with the Act. See id.

Significantly, States retain latitude to shape their

own policies and procedures. See, e.g., Arkansas

Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380

(8th Cir. 1994) (finding that because a state

regulatory scheme “must be ‘comparable’ to the

federal scheme … the states are afforded some

latitude in selecting the specific mechanisms of their

enforcement

program”).

Indeed,

as

Judge

Quattlebaum emphasized in his dissent from the

panel’s decision below, “the Clean Water Act’s

cooperative federalism framework encourages states

to experiment with different regulatory approaches.”

Pet. App. A-23 (Quattlebaum, J., dissenting)

(emphasis added). This experimentation includes,

inter alia, adopting different procedures or

9

administrative processes for resolving potential

violations.

Nearly

every

State

has

implemented

administrative enforcement programs under the

Clean Water Act. “Currently 47 states and one

territory are authorized to implement the NPDES

program.” 2 As Petitioners explain, these States “have

developed programs to issue permits and have

enacted administrative enforcement regimes” that

have been approved by the EPA. Pet. at 31.

Like the vast majority of States, South Carolina

administers and enforces its own permitting program.

That program was approved by the EPA thirty years

ago and is periodically reviewed. See Pet. App. B-7

(“The EPA has delegated CWA enforcement to South

Carolina.”) (citing 40 Fed. Reg. 28,130 (July 3, 1975)

(NPDES program); 57 Fed. Reg. 43,733 (Sept. 22,

1992) (general permits program)). In fact, in the

proceedings below, South Carolina argued (as amicus

curiae) that the EPA’s approval of its program

“supports a finding that the program is sufficiently

comparable to the EPA’s program, both substantively

and procedurally.” 3 Cf. Paper, Allied Indus., Chem. &

U.S. EPA, About NPDES: Overview, available at

https://www.epa.gov/npdes/about-npdes (visited Feb. 12, 2023);

see also U.S. EPA, NPDES State Enforcement Authority,

available at https://www.epa.gov/npdes/npdes-state-programauthority (visited Feb. 12, 2023) (table showing the status of

state authorizations to date).

3 Amicus Curiae Brief for the South Carolina Department of

Health and Environmental Control in Support of Appellees’

Petition for Rehearing En Banc at 6 n.1, Naturaland Trust v.

2

10

Energy Workers Int’l Union v. Cont’l Carbon Co., 428

F.3d 1285, 1296–97 (10th Cir. 2005) (“Oklahoma’s

public-participation provisions are comparable

enough to permit a delegation of CWA enforcement

authority ….”) (emphasis added).

This combination of factors is crucial here. The

Clean Water Act preserves the States’ primary

responsibility to protect its water resources.

Pursuant to the Act’s cooperative federalism

framework, South Carolina adopted a series of

policies and procedures comparable to the federal

enforcement mechanisms. The EPA approved that

enforcement program, and the State has used it for

decades.

Furthermore, in the instant matter, South

Carolina’s enforcement program did precisely what it

was designed to do. The State’s administrative action

resulted in a consent order requiring Petitioners to

obtain a Clean Water Act stormwater permit and

remediate any damage that prior discharges might

have caused. See Pet. at 7 (citing Pet. App. B-4). The

order also required Petitioners to pay a civil penalty

to the State. Id. In short, the system worked without

the need for private civil litigation.

Dakota Finance, LLC, No. 21-1517 (4th Cir.) (filed Aug. 10,

2022).

11

B. The Decision Below Does Not Show

Proper Deference to the States’ Role in

Protecting Water Resources Under the

Clean Water Act.

The decision below would effectively require

States, for the purposes of the diligent prosecution

bar, to adopt enforcement processes identical or

nearly identical to their federal counterparts. That

rigid interpretation frustrates the cooperative

federalism approach of the Clean Water Act.

To be sure, the Clean Water Act provides for

citizen suits for certain violations of the Act. See 33

U.S.C. § 1365(a). Private enforcers may seek

injunctive relief, civil penalties payable to the United

States Treasury, and certain fees and litigation costs.

See id. § 1365(a), (d).

Importantly, though, this Court has recognized

that citizen suits are “meant to supplement rather

than to supplant governmental action.” Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 60 (1987). They are proper only where the

government has failed to exercise its enforcement

responsibilities. See id. (citing S. Rep. No. 92-414, at

64 (1971)). Thus, such suits are barred where a State

agency “has commenced and is diligently prosecuting

an action” under a State law that is “comparable” to

its federal analogues. 33 U.S.C. § 1319(g)(6)(A)(ii).

Here, the state agency issued Arabella Farm a

“Notice of Alleged Violation/Notice of Enforcement

12

Conference” in September 2019. See Pet. at 13 (citing

S.C. Code Ann. § 48-1-90(A)). Respondents sued

Arabella Farm six months later. Id. at 14. Yet the

Fourth Circuit panel held that Respondents’ private

suit was not precluded by the diligent prosecution

bar.

Among other reasons for its decision, the court

determined that South Carolina had not commenced

an action “comparable” to the one set forth in 33

U.S.C. § 1319(g). See Pet. App. A-12–13. The District

Court had found that the relevant state and federal

laws do have comparable penalty provisions,

provisions providing for public participation, and

provisions providing for judicial review. See Pet. App.

B-12–16. The appellate court, however, focused not

only on the substance of those provisions, but also

their timing in the enforcement process.

The Fourth Circuit panel recognized that the

applicable state and federal laws each have provisions

protecting public participation and judicial review.

Pet. App. A-13. Yet the panel majority emphasized

that under the state law, “neither of these features is

available until after the issuance of a departmental

consent order.” Id. (emphasis in original). In other

words, although the features of the state law are

comparable, “the comparable features were not yet

available at the time this suit was filed ….” Id.

Petitioners correctly observe that the Fourth

Circuit’s decision effectively “converts ‘comparable’

into ‘carbon copy’” and requires “an EPA-style suit” in

13

order for the diligent prosecution bar to apply. See

Pet. at 21. Amici curiae respectfully submit that this

is inconsistent with both the statutory text and the

cooperative federalism that it embodies. The Clean

Water Act does not require that state statutes be

identical to their federal counterpart. Nor does it

require that they follow the same procedures at

precisely the same time the EPA does.

Unsurprisingly, other courts have concluded that

use of the word “comparable” in § 1319(g) “does not

suggest a rigid standard.” Paper, Allied-Indus., Chem.

& Energy Workers Int’l Union, 428 F.3d at 1293.

Rather, “comparable” means that a state law must be

“sufficiently similar to the federal law, not identical.”

McAbee v. City of Fort Payne, 318 F.3d 1248, 1252

(11th Cir. 2003) (quoting Arkansas Wildlife Fed’n, 29

F.3d at 381) (emphasis in original); see Paper, AlliedIndus., Chem. & Energy Workers Int’l Union, 428 F.3d

at 1293 (citing Webster’s Third New International

Dictionary 461 (1986) (defining “comparable” as

“capable of being compared; having enough like

characteristics or qualities to make comparison

appropriate”)).

By using the word “comparable,” Congress

reserved the States’ flexibility to innovate with

different regulatory approaches. See Pet. App. A-23

(Quattlebaum, J., dissenting); Arkansas Wildlife

Fed’n, 29 F.3d at 380. The statutory text allows the

States to function as laboratories for different (albeit

similar) public policy solutions. See Oregon v. Ice, 555

U.S. 160, 171 (2009) (“We have long recognized the

14

role of the States as laboratories for devising

solutions ….”); see also New State Ice Co. v. Liebmann,

285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

South Carolina served as one such “laboratory” for

decades—with the EPA’s stamp of approval.

The flexibility envisioned by Congress works well.

In fact, in some ways the States may arguably provide

even stronger procedures than federal law. For

example, the dissent below pointed out that “South

Carolina’s right to judicial review is broader than the

Clean Water Act’s corollary.” Pet. App. A-42

(Quattlebaum, J., dissenting) (emphasis added); see

id. (comparing judicial review provisions in 33 U.S.C.

§ 1319(g)(8) with provisions in S.C. Code Ann. § 48-1200 and S.C. Code Ann. § 1-23-380).

Nor should courts have the impression that States

are not proactive or otherwise engaged in preserving

their water resources. In amicus curiae The Buckeye

Institute’s home State of Ohio, for example, state

officials have adopted numerous policies in recent

years to protect and preserve Lake Erie and the

State’s waterways. These include, among others,

limiting the application of fertilizer or manure in

Lake Erie’s western basin, in order to minimize

runoff. See Ohio Rev. Code §§ 905.326(A), (E) and (F);

Ohio Rev. Code § 1511.10(A)). Ohio recently updated

its laws to require certain water treatment facilities

to undertake monthly monitoring of total and

dissolved reactive phosphorous pursuant to a NPDES

permit. See Ohio Rev. Code § 6111.03(V). It has

likewise restricted the use and placement of dredged

15

material. See Ohio Rev. Code § 6111.33. In short, the

federalism approach has worked not only in the

instant case, but in other States as well.

Rather than showing deference to the State’s

primary role under the Clean Water Act, the decision

below effectively requires a State to mimic the federal

program. Otherwise, citizen suits will trump the

State’s preferred enforcement program. States should

not be confronted with this false choice. It is

inconsistent with both the text of the Act and with

decades of practice by the States and the EPA. This

Court should grant review to clarify the proper

interpretation of 33 U.S.C. § 1319(g).

Finally, it is worth noting that the errors below

could actually undermine the Clean Water Act’s goal

of protecting the Nation’s waters. The diligent

prosecution bar incentivizes property owners to work

with state and local governments to remediate

environmental harm and avoid the threat of private

litigation. Conversely, property owners may be

dissuaded from working with regulators if they know

that they may nonetheless be subject to private

enforcement actions. Congress balanced these issues

in § 1319(g). The courts should not disturb that

balance. The statutory text should be applied as

written.

CONCLUSION

For the reasons set forth above, the petition for a

writ of certiorari should be granted.

16

Respectfully submitted,

ROBERT ALT

DAVID C. TRYON

THE BUCKEYE INSTITUTE

88 East Broad Street,

Suite 1300

Columbus, OH 43215

(614) 224-4422

robert@buckeyeinstitute.org

d.tryon@buckeyeinstitute.org

LARRY J. OBHOF, JR.

Counsel of Record

SHUMAKER, LOOP &

KENDRICK, LLP

41 South High Street,

Suite 2400

Columbus, OH 43215

(614) 463-9441

lobhof@shumaker.com

CLARK M. NEILY III

THOMAS A. BERRY

ISAIAH MCKINNEY

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

cneily@cato.org

Counsel for Amici Curiae