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

Supreme Court briefMar 3, 2023

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No. 22-720

IN THE

Supreme Court of the United States

DAKOTA FINANCE LLC, DBA ARABELLA FARM, ET AL.,

Petitioners,

NATURALAND TRUST, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Braden H. Boucek

SOUTHEASTERN LEGAL

FOUNDATION

560 W. Crossville Rd.

Suite 104

Roswell, GA 30075

(770) 977-2131

Thomas R. McCarthy

Counsel of Record

Tiffany H. Bates

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

March 3, 2023

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT ............................................................... 4

The

Clean

Water

Act

advances

environmental protection by prioritizing

state and local action ............................................ 4

A. Environmental federalism is important

in an ecological diverse nation ....................... 4

B. States are best suited to advance

environmental protection ............................... 7

II. The decision below undermines the

cooperative federalism scheme Congress

enacted in the Clean Water Act ......................... 10

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

TABLE OF AUTHORITIES

Cases

Addington v. Texas,

441 U.S. 418 (1979)..................................................5

Alden v. Maine,

527 U.S. 706 (1999)..................................................4

Am. Paper Inst., Inc. v. EPA,

890 F.2d 869 (7th Cir. 1989)....................................7

Ark. Wildlife Fed'n v. ICI Americas, Inc.,

29 F.3d 376 (8th Cir. 1994).................................... 11

Arkansas v. Oklahoma,

503 U.S. 91 (1992)....................................................6

Bond v. United States,

564 U.S. 211 (2011)..................................................5

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. EPA, 846 F.3d 492 (2d Cir. 2017).................6

County of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020)..............................................8

District of Columbia v. Schramm,

631 F.2d 854 (D.C. Cir. 1980) ..................................3

Friends of the Earth v. Carey,

535 F.2d 165 (2d Cir. 1976) ................................... 12

Gulf Restoration Network v. McCarthy,

783 F.3d 227 (5th Cir. 2015)....................................6

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49 (1987) ................ 2, 12

Hudson Cnty. Water Co. v. McCarter,

209 U.S. 349 (1908)..................................................7

iii

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)..............................................1

McAbee v. City of Fort Payne,

318 F.3d 1248 (11th Cir. 2003).............................. 15

Nat'l Ass'n of Mfrs. v. Dep't of Def.,

138 S. Ct. 617 (2018)................................................1

Piney Run Pres. Ass’n v. Cnty. Comm’rs,

523 F.3d 453 (4th Cir. 2008).............................. 2, 11

Save the Bay, Inc. v. EPA,

556 F.2d 1282 (5th Cir. 1977)..................................7

Seila L. LLC v. CFPB,

140 S. Ct. 2183 (2020)..............................................4

Shanty Town Assocs. Ltd. P'ship v. EPA,

843 F.2d 782 (4th Cir. 1988)....................................8

Sierra Club v. U.S. Army Corps of Eng'rs,

909 F.3d 635 (4th Cir. 2018).................................. 12

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

Army Corps of Eng'rs, 531 U.S. 159 (2001) ........ 2, 6

United States v. Cooper,

482 F.3d 658 (4th Cir. 2007)................................ 2, 6

United States v. Homestake Min. Co.,

595 F.2d 421 (8th Cir. 1979)....................................6

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014)..................................................1

Constitution

Colo. Const. art. XXVII, §1..........................................8

Fla. Const. art. II, §7 ...................................................8

Pa. Const. art. I, §27....................................................9

R.I. Const. art. I, §17 ...................................................9

Statutes

33 U.S.C. §1251(b) ................................................... 2, 7

33 U.S.C. §1311(a) ..................................................... 10

33 U.S.C. §1319(g)(6)(A)............................................ 12

33 U.S.C. §1319(g)(6)(A)(ii) ................................... 3, 12

33 U.S.C. §1342(a) ..................................................... 10

33 U.S.C. §1342(b) ............................................... 11, 14

33 U.S.C. §1365(a) ............................................... 11, 12

33 U.S.C. §1365(b) ................................................. 3, 12

Regulations

40 C.F.R. §123.21(a)(5) .............................................. 14

40 C.F.R. §123.22(c) .................................................. 14

40 C.F.R. §123.27 ...................................................... 14

Other Authorities

Jonathan H. Adler, Conservative Principles for

Environmental Reform, 23 Duke Env’t L. &

Pol’y F. 253 (2013) ...................................................7

Jonathan

Adler,

Uncooperative

Environmental Federalism 2.0, 71 Hastings

L.J. 1101 (2020) .......................................................9

Erwin Chemerinsky, The Values of Federalism,

47 Fla. L. Rev. 499 (1995).................................... 3, 4

Robin Kundis Craig, Environmental Law in

Context (4th ed. 2016) ..................................... 10, 11

EPA, About NPDES, perma.cc/6BRR-GZK8 ............ 14

EPA,

Ecoregions

North

America,

perma.cc/RL9R-H97T ......................................... 5, 6

Sarah

Fox,

Localizing

Environmental

Federalism, 54 U.C. Davis L. Rev. 133 (2020) ........7

Michael W. McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. Chi. L. Rev. 1484

(1987) ........................................................................5

Roger Meiners & Bruce Yandle, Common Law

and the Conceit of Modern Environmental

Policy, 7 Geo. Mason L. Rev. 923 (1999) ............... 10

Erin

Ryan,

Negotiating

Environmental

Federalism: Dynamic Federalism as a Strategy

for Good Governance, 2017 Wis. L. Rev.

Forward 17 (2017)........................................ 2, 5, 6, 7

S. Rep. No. 92-414 (1971) .................................... 11, 12

Damien Schiff, Keeping the Clean Water Act

Cooperatively Federal—Or, Why the Clean

Water Act Does Not Directly Regulate

Groundwater Pollution, 42 Wm. & Mary Env’t

L. & Pol’y Rev. 447 (2018) ..................................... 10

Jeffrey S. Sutton et al., State Constitutional Law

(3d ed. 2020) .............................................................8

The Federalist No. 45 (J. Madison) ............................4

The Federalist No. 47 (J. Madison) ............................4

The Federalist No. 51 (J. Madison) ............................5

INTEREST OF AMICUS CURIAE 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging overreaching governmental and other

actions in violation of the constitutional framework.

See, e.g., Util. Air Regul. Grp. v. EPA, 573 U.S. 302

(2014); Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.

617 (2018). SLF also regularly files amicus curiae

briefs with this Court about issues of agency

overreach and deference. See, e.g., Kisor v. Wilkie, 139

S. Ct. 2400 (2019).

1 Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus curiae or its counsel has made a monetary

contribution to the preparation or submission of this brief.

Parties received timely notice of the intent to file this brief.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Environmental law “uniquely showcases the need

for … federalism.” Erin Ryan, Negotiating

Environmental Federalism: Dynamic Federalism as a

Strategy for Good Governance, 2017 Wis. L. Rev.

Forward 17, 20 (2017). Our sprawling nation is

comprised of vastly different lands and ecosystems,

and solutions to environmental problems are often

completely dependent on the landscape of specific

areas. Because local and tailored policymaking often

generates better environmental outcomes, states and

local communities must play an important role in

making certain land and water decisions.

Congress recognized this in enacting the Clean

Water Act (CWA). It embraced “a scheme of

cooperative federalism,” United States v. Cooper, 482

F.3d 658, 667 (4th Cir. 2007), a partnership that

honors the states’ “traditional and primary” role over

land and water use, Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174

(2001). Indeed, Congress explicitly acknowledged that

states have “primary responsibilit[y]” over land and

water resources. 33 U.S.C. §1251(b).

In addition to making states the “primary

enforcer[s]” of the Clean Water Act, Piney Run Pres.

Ass’n v. Cnty. Comm’rs, 523 F.3d 453, 459 (4th Cir.

2008), Congress also provided for citizen suits as an

important backup role when the government

“cannot or will not command compliance.” Gwaltney of

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

U.S. 49, 62 (1987). But a private party may not

commence a citizen suit if a state is already “diligently

prosecuting” an enforcement action. See 33 U.S.C.

§1365(b). This diligent prosecution bar allows states

to enforce their own tailored administrative schemes

without interference and to encourage alleged

violators to cooperate with state officials to correct

environmental harms. The “diligent prosecution bar”

is triggered by the state’s “commence[ment]” of “an

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

federal statute addressing “administrative penalties”

that the government may assess for violations of the

Clean Water Act. 33 U.S.C. §1319(g)(6)(A)(ii).

Today, significant confusion exists as to when a

state has “commenced” an action that triggers the

diligent prosecution bar. And the decision below only

adds to that confusion. In refusing to “respect[]” South

Carolina’s “view of what commences” a state

enforcement action, Pet. App. 23 (Quattlebaum, J.,

dissenting), the Fourth Circuit turned its back on the

“strong current of federalism” running through the

CWA, District of Columbia v. Schramm, 631 F.2d 854,

863 (D.C. Cir. 1980). The court held that the diligent

prosecution bar did not apply and allowed a

burdensome and duplicative citizen suit to proceed.

That decision “threatens the States’ ability to

implement their environmental laws, exposes …

property owners to duplicative penalties and

regulatory burdens, and impedes the Act’s goal to

protect the Nation’s waters.” Pet. 4. “The Framers

envisioned that the vast majority of governance would

be at the state and local levels and that federal actions

would be relatively rare and limited.” Erwin

Chemerinsky, The Values of Federalism, 47 Fla. L.

Rev. 499, 525 (1995). But the Fourth Circuit’s decision

undermines that scheme. Reading the Clean Water

Act to permit the citizen suit here “to proceed despite

the measures South Carolina had already taken …

elevates citizen suits above their supplemental role,”

Pet. App. 18 (Quattlebaum, J., dissenting), and

upends the cooperative federalism scheme Congress

enacted in the CWA.

The Court should grant the petition and reverse

the decision below.

ARGUMENT

The

Clean

Water

Act

advances

environmental protection by prioritizing

state and local action.

A. Environmental federalism is important

in an ecological diverse nation.

In designing the Constitution, the Framers

recognized the dangers of “consolidat[ed] … power[].”

The Federalist No. 47 (J. Madison). “Their solution to

governmental power and its perils was simple: divide

it.” Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202 (2020).

Thus they “split[] the atom of sovereignty,” and

“established two orders of government.” Alden v.

Maine, 527 U.S. 706, 751 (1999) (cleaned up). While

the powers of the new federal government would be

“few and defined,” those retained by the states would

be “numerous and indefinite … extend[ing] to all the

objects which, in the ordinary course of affairs,

concern the lives, liberties, and properties of the

people, and the internal order, improvement, and

prosperity of the State.” The Federalist No. 45 (J.

Madison).

This structure was not an aesthetic choice.

Instead, the “federal balance” was “an end in itself,”

meant “to ensure that States function as political

entities in their own right.” Bond v. United States, 564

U.S. 211, 221 (2011). For good reason. Leaving policy

choices to more responsive state and local

governments would allow for more effective, tailored

solutions, and more efficient action. See Michael W.

McConnell, Federalism: Evaluating the Founders’

Design, 54 U. Chi. L. Rev. 1484, 1493-94 (1987).

Indeed, this scheme would ensure states were “free to

develop a variety of solutions to problems and not be

forced into a common, uniform mold.” Addington v.

Texas, 441 U.S. 418, 431 (1979); see also Bond, 564

U.S. at 221 (“The federal structure allows local

policies more sensitive to the diverse needs of a

heterogeneous society, permits innovation and

experimentation, enables greater citizen involvement

in democratic processes, and makes government more

responsive” to its citizenry. (cleaned up)). After all,

that is the very “essence of federalism.” Addington,

441 U.S. at 431.

Environmental law “uniquely showcases the need

for … federalism.” Ryan, supra, 20. Solutions to

environmental problems are often “completely

contingent on the landscape” and unique conditions of

specific areas. Id. at 23. And in an “extended republic”

like ours, The Federalist No. 51 (J. Madison), lands

and ecosystems across the nation vary greatly, see

Ryan, supra, at 23. The United States is home to

twelve broadly defined ecological regions, including

deserts, tropical wet forests, tundra, great plains, and

forested mountains. See EPA, Ecoregions of North

America, perma.cc/RL9R-H97T. And some states

contain numerous ecological regions within them. Id.

Texas, for example, is comprised of North American

desert, great plains, and eastern temperate forests.

Id. Naturally, then, what makes for good

environmental policy in Alaska is unlikely to work in

Florida or Arizona, see generally Ryan, supra, at 2324, which in turn makes uniform national

environmental regulation unworkable.

Congress designed the Clean Water Act to respect

the fact that environmental issues are first and

foremost a matter of state policy. Recognizing that the

vast differences between states and even local

communities must play an important role in making

certain land and water decisions, the CWA embodies

a system of cooperative federalism. See Gulf

Restoration Network v. McCarthy, 783 F.3d 227, 230,

241 (5th Cir. 2015) (“[T]he CWA is a cooperative

federalism regime.”); Cooper, 482 F.3d at 667 (“In the

CWA, Congress expressed its respect for states’ role

through a scheme of cooperative federalism.”); United

States v. Homestake Min. Co., 595 F.2d 421 (8th Cir.

1979) (noting the “vigorous federalism” underlying the

CWA).

While the Clean Water Act “anticipates a

partnership between the States and the Federal

Government,” Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992), it allows states to retain their “traditional

and primary” power over environmental and resource

matters, Solid Waste Agency of N. Cook Cnty., 531

U.S. at 174; see also Catskill Mountains Chapter of

Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 514 (2d

Cir. 2017) (“[T]he Act largely preserves states’

traditional authority over water allocation and use.”).

Congress explicitly recognized that it is the “primary

responsibilit[y] and right[] of States to prevent,

reduce, and eliminate pollution, to plan the

development and use (including restoration,

preservation, and enhancement) of land and water

resources.” 33 U.S.C. §1251(b) (emphasis added). And

“numerous courts have recognized ‘the primacy of

state and local enforcement of water pollution controls

[as] a theme that resounds throughout the history’ of

the [CWA].” Am. Paper Inst., Inc. v. EPA, 890 F.2d

869, 873 (7th Cir. 1989) (quoting Save the Bay, Inc. v.

EPA, 556 F.2d 1282, 1294 (5th Cir. 1977)); see Hudson

Cnty. Water Co. v. McCarter, 209 U.S. 349, 356 (1908)

(explaining that the public interest in state power over

water usage and management is “obvious,

indisputable,” and “omnipresent”). Indeed, “[s]tate

power has historically been at its strongest when

talking about local control over land use and property

rights.” Sarah Fox, Localizing Environmental

Federalism, 54 U.C. Davis L. Rev. 133, 157 (2020).

States are best suited

environmental protection.

advance

Issues

environmental

protection and

conservation are intrinsically bound up in specific

waters and lands within the states. See supra, §I.A;

see also Jonathan H. Adler, Conservative Principles

for Environmental Reform, 23 Duke Env’t L. & Pol’y

F. 253, 278-80 (2013). Vastly different areas of land

require “wholly different” sets of “expertise and

management strategies.” See generally, Ryan, supra,

at 24. Managing water pollution in a certain area

requires decisionmakers to know, among other things,

“the contours of the land, the elevation, the

precipitation, seasonal weather patterns, prevailing

winds, watershed, soil quality, habitat, population

density, zoning laws, cultural uses, local economies,

where the local industry is operating at any given

time, [and] what the major stressors are in that

particular area.” Id.; see also County of Maui v. Haw.

Wildlife Fund, 140 S. Ct. 1462, 1488-89 (2020) (Alito,

J., dissenting) (“Non-point source pollution … often

presents more complicated issues that are better

suited to individualized local solutions.”); Shanty

Town Assocs. Ltd. P’ship v. EPA, 843 F.2d 782, 791

(4th Cir. 1988) (“[T]he control of nonpoint source

pollution was so dependent on such site-specific

factors as topography, soil structure, rainfall,

vegetation, and land use that its uniform federal

regulation was virtually impossible.”). And states are

most likely to have the requisite knowledge.

Moreover, states and localities care greatly about

maintaining clean air and water. Forty-six states have

specific environmental provisions in their state

constitutions. See Jeffrey S. Sutton et al., State

Constitutional Law 689-95 (3d ed. 2020). Florida

dedicates an entire section of its Constitution to

conserving its unique ecology from the Everglades to

the Emerald Cost beaches, leading with the sweeping

declaration that it is “the policy of the state to

conserve and protect its natural resources and scenic

beauty.” Fla. Const. art. II, §7. Colorado pledges the

same for its Rocky Mountains and Great Plains. See

Colo. Const. art. XXVII, §1 (creating the Great

Outdoors Colorado Program “to preserve, protect,

enhance, and manage the state’s wildlife, park, river,

trail, and open space heritage”). Similarly,

Pennsylvania’s Environmental Rights Amendment

secures to its citizens the “right to clean air, pure

water, and to the preservation of the natural, scenic,

historic and esthetic values of the environment.” Pa.

Const. art. I, §27. And as far back as 1842, the Rhode

Island Constitution extended protections to “all the

rights of fishery, and the privileges of the shore.” R.I.

Const. art. I, §17.

States are also best positioned to prioritize local

needs. Environmental policy makers must make

choices that “necessarily implicate normative

concerns that are beyond any scientific or technical

analysis.” Jonathan H. Adler, Uncooperative

Environmental Federalism 2.0, 71 Hastings L.J. 1101,

1108 (2020). Those choices often involve “subjective

value preferences about how to prioritize competing

goods when resources are scarce.” Id. And individuals

on the ground in specific areas are best suited to tailor

those decisions to state or community needs.

“Localized knowledge is difficult to accumulate and

deploy from a centralized administrative agency.” Id.

at 1107. And “[r]egional differences mean that federal

policies will often fail to account for local particulars.”

Id. As a result “uniform policies are likely to be overprotective in some areas, and under-protective in

others.” Id. In practice, that means that “one size fits

all” policies become “one size fits nobody” policies. Id.

And the environment will be worse because of it.

Local and tailored policymaking often generates

better outcomes. Scholars have observed that “[t]he

common law, combined with various state-level

controls, was doing a better job addressing most

environmental

problems”

than

the

federal

government, “which directed most environmental

policy for the last part of this century.” Roger Meiners

& Bruce Yandle, Common Law and the Conceit of

Modern Environmental Policy, 7 Geo. Mason L. Rev.

923, 925 (1999); see also Damien Schiff, Keeping the

Clean Water Act Cooperatively Federal—Or, Why the

Clean Water Act Does Not Directly Regulate

Groundwater Pollution, 42 Wm. & Mary Env’t L. &

Pol’y Rev. 447, 448 n.6 (2018) (collecting examples).

“[C]entral environmental planning” is simply

“incompatible with … environmental protection

itself.” Meiners & Yandle, supra, at 925. At bottom,

states are the nation’s frontline environmental

protectors. Uniform policies often fail to account for

the specifics needs of different regions or states. And

states and localities are better suited to advance

environmental protection.

II. The decision below undermines the

cooperative federalism scheme Congress

enacted in the Clean Water Act.

“[T]he Clean Water Act’s cooperative federalism

framework encourages states to experiment with

different regulatory approaches.” Pet. App. 23

(Quattlebaum, J., dissenting). Relevant here, the

CWA prohibits individuals from discharging

pollutants without a permit, including a National

Pollutant Discharge Elimination System (NPDES)

permit. See 33 U.S.C. §1311(a). While the EPA

Administrator has the authority to issue NPDES

permits, see 33 U.S.C. §§1311(a), 1342(a), “states may

apply to the EPA for authority to issue such permits

to the dischargers within their borders,” Robin Kundis

Craig, Environmental Law in Context 948 (4th ed.

2016) (citing 33 U.S.C. §1342(b)). Not only does the

CWA express “a clear preference that states take over

the NPDES permit program,” id. at 949, but the EPA

has “applauded the states’ role in the permitting

process,” id. at 1115. In its 2001 strategic plan for the

CWA, the EPA stated: “[a] state’s authorization to

implement this program allows state managers to set

priorities and tailor the program to meet the

challenges facing the waters in that state and to

satisfy the desires of its citizens. … As ‘co-regulators,’

the authorized states play a unique role by helping to

shape and develop the national program.” Id.

By adopting this approach, Congress properly

rejected a one-size-fits-all scheme by empowering

states to develop water management and pollution

mitigation strategies best suited to their individual

needs and priorities. See supra Section I.B. Congress

also made states the “primary enforcer[s]” of the Act.

Piney Run, 523 F.3d at 459. And it “afforded” states

“latitude in selecting the specific mechanisms of their

enforcement program[s].” Ark. Wildlife Fed’n v. ICI

Americas, Inc., 29 F.3d 376, 380 (8th Cir. 1994).

Indeed, the authors of the CWA anticipated that “the

great volume of enforcement actions [should] be

brought by the State.” S. Rep. No. 92-414, at 64 (1971).

Recognizing that public scrutiny and citizen

participation may also help to ensure government

accountability in enforcing the CWA, Congress also

provided that “any citizen” may bring a civil action

against any person alleged “to be in violation” of

certain provisions of the act, including the NPDES

permitting requirement. 33 U.S.C. §1365(a); see S.

Rep. No. 414, at 72; Friends of the Earth v. Carey, 535

F.2d 165, 172 (2d Cir. 1976) (“Congress made clear

that citizen groups are not to be treated as nuisances

or troublemakers but rather as welcomed participants

in the vindication of environmental interests.”).

Citizen suits can serve an important role in

helping to preserve the nation’s shared water

resources. But, as this Court has recognized, citizen

suits are intended to “supplement rather than to

supplant governmental action” and are subject to

procedures and limitations deferential to government

action. Gwaltney, 484 U.S. at 60 (emphasis added); see

33 U.S.C. §1319(g)(6)(A). Just as “Congress did not

intend to allow federal agencies to override” state

policy determinations that reflect the legitimate

reasons and concerns of the state, Sierra Club v. U.S.

Army Corps of Eng’rs, 909 F.3d 635, 648 (4th Cir.

2018), neither did it allow citizen suits to trump a

state’s preferred enforcement approach.

Importantly, the CWA prohibits citizen suits

when government is already taking enforcement

action. See 33 U.S.C. §1365(b). Only when federal,

state, and local agencies “cannot or will not command

compliance,” does the CWA permit citizen suits

seeking injunctive relief or damages. Gwaltney, 484

U.S. at 62; see 33 U.S.C. §1365(a). The Act bars citizen

suits when a state has “commenced and is diligently

prosecuting” an administrative penalty action under a

state law “comparable” to the Clean Water Act’s

administrative penalty provisions. 33 U.S.C.

§1319(g)(6)(A)(ii).

The diligent prosecution bar plays an important

role in the environmental federalism scheme. It allows

states to enforce their tailored administrative

schemes without interference and to encourage

alleged violators to cooperate with state officials to

correct environmental harms. But determining when

a state law is “comparable” to one of the CWA’s

administrative penalties has produced conflicting and

unworkable tests in the lower courts that have become

less deferential to state enforcement decisions.

The Fourth Circuit’s newly concocted test is least

deferential of all. Here, the state of South Carolina

issued Petitioners a “Notice of Violation” for failing to

obtain a permit for a project they believed fell under

an exemption and eventually entered into a Consent

Order, requiring Petitioners to obtain a permit,

remediate any damages, and pay a penalty. See Pet.

6-7. Rather than look to the comparability of the

overall regulatory scheme or to each category of statelaw provisions, the court below held that the state’s

“Notice of Violation” to Petitioners did not commence

an action exactly comparable to an EPA proceeding

under §1319(g). See Pet. 11. Having failed to meet the

court’s “exactly comparable test,” Pet. 6, the majority

held that the diligent prosecution bar did not apply,

and a citizen suit against Petitioners could proceed.

That decision ignores the text of the CWA,

undermines Congress’s envisioned cooperative

federalism framework, and interferes with states’

ability to effectively manage environmental impact.

First, the Fourth Circuit’s test undermines

cooperative federalism by requiring all state

regulations to precisely mirror federal regulatory

procedures. Prior to the EPA authorizing a State to

administer the NPDES program, the State must

submit a detailed program description outlining how

the State intends to carry out its responsibilities, and

must provide the EPA with copies of “all applicable

State statutes and regulations, including those

governing State administrative procedures.” 40 C.F.R.

§123.21(a)(5) (emphasis added); see 40 C.F.R.

§123.22(c) (requiring program descriptions to include

“[a] description of applicable State procedures,

including … any State administrative or judicial

review procedures”). By authorizing a state program,

the EPA Administrator affirms that the State’s

enforcement

mechanism—including

its

administrative procedures—are sufficient to enforce

violations of the CWA. See 33 U.S.C. §1342(b); 40

C.F.R. §123.27.

That means that when a state initiates an action

against an alleged violator of the CWA, it does so

through the state laws and “State administrative

procedures” that were approved prior to the EPA

conferring NPDES permitting authority. See 40

C.F.R. §123.21(a)(5); 40 C.F.R. §123.22(c). It would

thus be illogical to disregard the state’s approved

enforcement scheme and insist upon a federal

analogue. On top of that, almost every state has

implemented administrative enforcement programs

under

NPDES.

See

EPA,

About

NPDES,

perma.cc/6BRR-GZK8 (“Currently 47 states and one

territory are authorized to implement the NPDES

program.”). This system allows states to create

permitting and enforcement mechanisms particular to

their unique needs. But despite receiving EPA-

approval, minor differences between state and federal

administrative procedure could result in a barrage of

citizen suits burdening landowners, small business

owners, and the state regulators tasked with

enforcing water regulations. Simply put, “the state’s

view of what commences its proceeding should be

respected.” Pet. App. 23 (Quattlebaum, J., dissenting).

Moreover, allowing citizen suits where states are

already acting results in duplicative enforcement

actions that, paradoxically, can harm the

environment. The decision below makes it easier for

private parties to bring duplicative lawsuits that seek

duplicative remedies. Under that scheme, property

owners may have less incentive to work with state

officials to remedy environmental harm. “There is

simply no incentive to settle a dispute on the front end

when alleged violators know that they will face

subsequent draconian penalties and staggering

attorneys’ fees on the back end.” Pet. 20. “If citizen

suits are permitted when the government cannot or

does not act, they should not be allowed when the

government is enforcing the Clean Water Act through

a lawsuit or administrative proceedings.” Pet. App. 20

(Quattlebaum, J., dissenting); see McAbee v. City of

Fort Payne, 318 F.3d 1248, 1249 (11th Cir. 2003).

At bottom, the CWA strikes a “delicate balance

between various competing interests.” Pet. App. 49

(Quattlebaum, J., dissenting). But the decision below

“overrid[es] th[at] delicate balance.” Id. By concluding

that South Carolina had not commenced an

administrative action against Petitioner, the court

below “broaden[ed] the scope of when citizen suits are

permissible,” id., and undermined the state’s ability to

consider its own priorities and to provide effective,

tailored, and efficient action to protect its waters.

CONCLUSION

For these reasons, the Court should grant the

petition and reverse the decision below.

Respectfully submitted,