Respondents 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, DBA ARABELLA FARM, ET AL.,

Petitioners,

v.

NATURALAND TRUST, ET AL.,

Respondents.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

__________

BRIEF IN OPPOSITION

__________

MICHAEL G. MARTINEZ

AMY ARMSTRONG

LAUREN M. MILTON

S.C. ENVIRONMENTAL

LAW PROJECT

407 Church Street

Suite E

Georgetown, SC 29440

(843) 527-0078

April 3, 2023

MICHAEL K. KELLOGG

Counsel of Record

GREGORY G. RAPAWY

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(mkellogg@kellogghansen.com)

QUESTION PRESENTED

Petitioners err in claiming that this case presents

the question of how “comparable” a State’s law

must be to the Clean Water Act’s administrativepenalty provisions in order to trigger the “diligent

prosecution” bar for citizen suits under 33 U.S.C.

§ 1319(g)(6)(A)(ii). The court of appeals did not reach

that question, ruling only that, on the facts of this

case, the South Carolina Department of Health and

Environmental Control had not “commenced . . . an

action” within the meaning of that provision. If this

Court were to grant certiorari, therefore, the only

question properly presented would be:

Whether, at the time this citizen suit was filed,

the Department had commenced an action within the

meaning of 33 U.S.C. § 1319(g)(6)(A)(ii).

ii

RULE 29.6 STATEMENTS

Respondents Naturaland Trust, South Carolina

Trout Unlimited, and Upstate Forever state the

following:

Naturaland Trust is not a publicly held entity, has

no parent corporation, and has not issued any stock.

South Carolina Trout Unlimited is not a publicly

held entity, has no parent corporation, and has not

issued any stock.

Upstate Forever is not a publicly held entity, has no

parent corporation, and has not issued any stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

RULE 29.6 STATEMENTS ........................................ ii

TABLE OF AUTHORITIES ...................................... iv

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 3

REASONS FOR DENYING THE PETITION ......... 10

THIS CASE DOES NOT PRESENT ANY

QUESTION ON WHICH THE CIRCUITS

ARE SPLIT .......................................................... 10

A. This Case Does Not Implicate the

Asserted Split ................................................. 10

B. No Circuit Disagrees with the Court of

Appeals on the Issue It Decided .................... 15

C. The Decision of the Court of Appeals

Was Correct .................................................... 17

D. Even the Asserted Split Is Dubious .............. 21

CONCLUSION.......................................................... 24

iv

TABLE OF AUTHORITIES

Page

CASES

Advocate Health Care Network v. Stapleton,

581 U.S. 468 (2017) ............................................. 20

Arkansas Wildlife Fed’n v. ICI Ams., Inc.,

29 F.3d 376 (8th Cir. 1994) .............................9, 10,

11, 12,

16, 20, 22, 23

Black v. Cutter Labs., 351 U.S. 292 (1956) .............. 22

Blackstone Headwaters Coal., Inc. v. Gallo

Builders, Inc., 32 F.4th 99 (1st Cir. 2022) .......... 12

Caraco Pharm. Labs., Ltd. v. Novo Nordisk

A/S, 566 U.S. 399 (2012) .................................... 17

Citizens for a Better Env’t.-California v. Union

Oil Co. of California, 83 F.3d 1111 (9th

Cir. 1996) ........................................................13, 16

Department of Revenue v. ACF Indus., Inc.,

510 U.S. 332 (1994) ........................................ 17-18

Friends of Milwaukee’s Rivers v. Milwaukee

Metro. Sewerage Dist., 382 F.3d 743 (7th

Cir. 2004) ...................................................9, 11, 13,

15, 16, 20

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167 (2000) ................ 4

Henderson v. Shinseki, 562 U.S. 428 (2011) .............. 7

Jones v. City of Lakeland, 224 F.3d 518 (6th

Cir. 2000) ............................................12, 16, 23, 24

Lagos v. United States, 138 S. Ct. 1684 (2018) ....19, 21

Law v. Siegel, 571 U.S. 415 (2014) ......................17, 19

v

Lockett v. EPA, 319 F.3d 678 (5th Cir. 2003).... 11, 12, 15

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

(11th Cir. 2003) ................................................8, 10,

11, 12,

16, 22, 23, 24

Middlesex Cnty. Sewerage Auth. v. National

Sea Clammers Ass’n, 453 U.S. 1 (1981) ................ 4

North & South Rivers Watershed Ass’n, Inc.

v. Town of Scituate, 949 F.2d 552 (1st

Cir. 1991) ............................................12, 16, 22, 23

Paper, Allied-Indus., Chem. & Energy Workers

Int’l Union v. Continental Carbon Co.,

428 F.3d 1285 (10th Cir. 2005) ................12, 15, 22

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d

610 (7th Cir. 1998); .............................................. 21

Republic of Sudan v. Harrison, 139 S. Ct. 1048

(2019) ................................................................... 17

South Florida Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004) ..................... 3

Stringer v. Town of Jonesboro, 986 F.3d 502

(5th Cir. 2021)...................................................... 12

CONSTITUTION, STATUTES, REGULATIONS,

AND RULES

U.S. Const. art. III ...................................................... 7

Clean Water Act, 33 U.S.C. § 1251 et seq.:

§ 101(a), 33 U.S.C. § 1251(a) ................................. 3

§ 301(a), 33 U.S.C. § 1311(a) ................................. 3

§ 306(g)(6)(B), 33 U.S.C. § 1316(g)(6)(B) ................. 5

vi

§ 309, 33 U.S.C. § 1319 ........................................ 18

§ 309(a)-(b), 33 U.S.C. § 1319(a)-(b) .................... 18

§ 309(g), 33 U.S.C. § 1319(g)................................8, 17

§ 309(g), 33 U.S.C. § 1319(g) (1988) ........................18

§ 309(g)(2), 33 U.S.C. § 1319(g)(2) ........................ 18

§ 309(g)(4), 33 U.S.C. § 1319(g)(4) ........................ 18

§ 309(g)(6), 33 U.S.C. § 1319(g)(6) ........... 7, 9, 12, 18

§ 309(g)(6)(A)(i), 33 U.S.C. § 1319(g)(6)(A)(i) ......... 4,

18, 19

§ 309(g)(6)(A)(ii), 33 U.S.C. § 1319(g)(6)(A)(ii) ... 1, 4,

7, 10,

11, 14, 19

§ 402, 33 U.S.C. § 1342 .......................................... 3

§ 402(a), 33 U.S.C. § 1342(a) ................................. 3

§ 402(b), 33 U.S.C. § 1342(b) ................................. 3

§ 502, 33 U.S.C. § 1362 ........................................ 11

§ 502(6), 33 U.S.C. § 1362(6) ................................. 3

§ 502(12), 33 U.S.C. § 1362(12) ............................. 3

§ 502(14), 33 U.S.C. § 1362(14) ............................. 6

§ 505, 33 U.S.C. § 1365 .................................... 1, 18

§ 505(a), 33 U.S.C. § 1365(a) ................................. 1

§ 505(a)-(d), 33 U.S.C. § 1365(a)-(d) .................... 18

§ 505(a)(1), 33 U.S.C. § 1365(a)(1) ........................ 4

§ 505(b), 33 U.S.C. § 1365(b) ............................... 18

§ 505(b)(1)(A), 33 U.S.C. § 1365(b)(1)(A) .............. 4

§ 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B) .............. 4

vii

§ 505(f )(1), 33 U.S.C. § 1365(f )(1) ......................... 4

§ 505(f )(7), 33 U.S.C. § 1365(f )(7) ......................... 4

§ 505(h), 33 U.S.C. § 1365(h)............................... 18

Pub. L. No. 92-500, § 2, 86 Stat. 816 (1972) ....... 18

86 Stat. 859-60 ............................................... 18

86 Stat. 888-89 ............................................... 18

Resource Conservation and Recovery Act of 1976,

42 U.S.C. § 6901 et seq. ....................................... 21

Water Quality Act of 1987, Pub. L. No. 100-4,

§ 314(a), 101 Stat. 7, 46-49 .................................. 18

33 U.S.C. § 1907(b) ................................................... 20

S.C. Code Ann. § 48-1-10 et seq. ................................ 3

40 C.F.R.:

§ 22.13 .................................................................... 8

§ 22.38 .................................................................... 8

§ 22.45 .................................................................... 8

§ 122.26(b)(14)-(15) ................................................ 4

§ 122.26(c)(1) .......................................................... 4

§ 123.25(a)(9) ......................................................... 4

Fed. R. Civ. P. 2 ........................................................ 17

ADMINISTRATIVE MATERIALS

Notice, Approval of the State Program for Control of Discharges of Pollutants to Navigable

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

viii

OTHER MATERIALS

Black’s Law Dictionary (5th ed. 1979) ................17, 19

1 Oxford English Dictionary (J.A. Simpson &

E.S.C. Weiner eds., 2d ed. 1989) ......................... 17

INTRODUCTION

Petitioners are Dakota Finance LLC, a South Carolina event business, and its owners. While constructing their event venue, petitioners undertook a mass

grading and stripping of land in South Carolina’s

environmentally sensitive Jocassee Gorges area,

discharging tons of sediment into nearby rivers

and streams. The Clean Water Act (“CWA” or “Act”)

requires a permit for discharging pollutants into navigable waters, including discharges from clearing and

grading land. Petitioners proceeded without one. To

redress petitioners’ violations of the Act, respondents

– environmental non-profits focused on conserving the

upstate South Carolina waters that petitioners fouled

– noticed and then filed an action under the Act’s

citizen-suit provision, 33 U.S.C. § 1365(a).

The CWA provides that a violation shall not be the

subject of a citizen suit under § 1365 if “a State has

commenced and is diligently prosecuting an action”

with respect to the same violation “under a State

law comparable” to the federal scheme for assessing

administrative penalties. Id. § 1319(g)(6)(A)(ii). At

the time respondents noticed and filed their suit, the

South Carolina Department of Health and Environmental Control (“Department”) had not commenced

any action. It had issued only a Notice of Alleged

Violation/Notice of Enforcement Conference, “invit[ing]”

petitioners to a “voluntary, informal meeting” that

would be “closed to the public.” C.A. App. 54, 59. The

Department privately negotiated a consent penalty

order with petitioners, which it issued only after

respondents filed their citizen suit. Because the

Department had commenced no action when the suit

was filed, the Fourth Circuit declined to apply the

Act’s diligent-prosecution bar. That fact-bound application of the bar does not merit review.

2

Petitioners erroneously assert (at i) that the Fourth

Circuit’s decision contributed to a circuit split on the

“proper test” for determining whether a state law

is “comparable” to federal law for purposes of the

diligent-prosecution bar. But the court did not reach

comparability. It decided only that, by inviting petitioners to a voluntary, private, informal conference,

the Department had not “commenced . . . an action.”

Few other circuits have analyzed the issue of

commencement, and their decisions are consistent

with one another and with the decision below.

In any event, the Fourth Circuit’s statutory analysis

showing the Department had not “commenced . . . an

action” was sound. It focused on the plain, contemporaneous meaning of the term “action” as well as the

CWA’s context, which uses “action” consistently to

describe a formal, adversarial, and public process of

the kind that the Department had yet to commence

when respondents filed this suit. Petitioners scarcely

engage with the careful statutory interpretation that

the Fourth Circuit actually conducted.

Granting review thus would not set up the wholesale re-evaluation of the diligent-prosecution bar that

petitioners seek. It would entail review only of the

narrow commencement issue that the Fourth Circuit

actually decided, on which the few circuits to consider

the issue are all agreed.

Even if this case did implicate the test for comparing

a State’s law to federal law, the split that petitioners

assert is largely illusory. The circuits have reached

consistent results despite the alleged divergence in

tests that petitioners claim. Varying facts – not varying tests – explain why some decisions hold state laws

are comparable and others do not.

For all these reasons, review is not warranted.

3

STATEMENT

1. Congress passed the Clean Water Act “to

restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). To achieve those ends, the Act prohibits

“the discharge of any pollutant by any person” except

in compliance with the Act. Id. § 1311(a). The Act

also establishes the National Pollutant Discharge

Elimination System (“NPDES”). Id. § 1342. “Generally

speaking, the NPDES requires dischargers to obtain

permits that place limits on the type and quantity

of pollutants that can be released into the Nation’s

waters.” South Florida Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 102 (2004).

The NPDES is “administered through a scheme of

cooperative federalism.” App. A-4. States can establish and administer their own permitting programs

in lieu of the federal government’s, subject to the

approval of the Environmental Protection Agency

(“EPA”). See 33 U.S.C. § 1342(b). South Carolina

received the EPA’s approval for its NPDES permitting

program in 1975. See Notice, Approval of the State

Program for Control of Discharges of Pollutants to

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

It administers that program through its Department

of Health and Environmental Control. See S.C. Code

Ann. § 48-1-10 et seq.

NPDES permits are required for the “discharge of

a pollutant,” defined as “any addition of any pollutant

to navigable waters from any point source.” 33 U.S.C.

§§ 1342(a), 1362(12). Pollutants include “dredged

spoil,” “rock, sand, [and] cellar dirt.” Id. § 1362(6).

NPDES permits also are required for discharges of

stormwater associated with industrial or construction

activity, such as “clearing, grading, and excavating”

4

land. See 40 C.F.R. §§ 122.26(b)(14)-(15), 122.26(c)(1),

123.25(a)(9).

2. The CWA provides for federal, state, and citizen

enforcement of its requirements. Any citizen can

“commence a civil action . . . against any person . . .

alleged to be in violation of . . . an effluent standard

or limitation,” including by engaging in unpermitted

discharges or violations of NPDES permits. 33 U.S.C.

§§ 1365(a)(1), 1365(f )(1), (7). Congress crafted the

scheme of overlapping federal, state, and citizen

enforcement after earlier legislation that “emphasized

state enforcement of water quality standards . . .

proved ineffective.” Middlesex Cnty. Sewerage Auth.

v. National Sea Clammers Ass’n, 453 U.S. 1, 11 (1981).

The Act provides rules to coordinate multiple potential enforcement actions. See Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,

174-75 (2000). Before filing suit, a citizen plaintiff

must give 60 days’ notice to the EPA Administrator,

the State where the violation occurred, and the alleged

violator. See 33 U.S.C. § 1365(b)(1)(A). If the Administrator or State already “has commenced and is

diligently prosecuting a civil or criminal action” in

federal or state court, the citizen suit cannot proceed

separately, but the citizen can intervene as of right.

Id. § 1365(b)(1)(B).

Citizen suits are also barred if the Administrator

or State already “has commenced and is diligently

prosecuting” an administrative-penalty action. Id.

§ 1319(g)(6)(A)(i)-(ii). In the case of a state penalty

action, the bar applies only if the State is diligently

prosecuting “an action under a State law comparable

to” the federal administrative-penalty scheme. Id.

§ 1319(g)(6)(A)(ii). And a citizen suit may proceed

despite a federal or state administrative action if the

5

citizen suit is filed or noticed “prior to commencement

of [the] action.” Id. § 1316(g)(6)(B).

3. Respondents are three non-profit organizations

committed to conserving South Carolina’s natural

areas. Naturaland Trust is dedicated to the protection

of South Carolina’s Blue Ridge Mountains. C.A. App.

22. It conserves more than 100,000 acres in their

natural state, keeping them open for public use. Id.

Upstate Forever focuses on protecting the lands,

water, and character of the Upstate of South Carolina,

including in the Blue Ridge escarpment. C.A. App. 23.

South Carolina Trout Unlimited works on behalf

of anglers to conserve South Carolina’s cold-water

fisheries and their watersheds in order to protect and

restore trout habitat. C.A. App. 24-25.

Petitioners, Dakota Finance LLC (d/b/a Arabella

Farm) and its owners, began clearing a property in

South Carolina’s Jocassee Gorges area in 2017,

intending to use it as a working farm and event venue.

App. A-3-4. The site is bounded on three sides by

water, including a tributary of the Eastatoe River, a

popular trout-fishing destination. C.A. App. 30-31.

The Jocassee Gorges area is known for its pristine rivers and streams. C.A. App. 62-64. For that reason,

respondents are deeply involved in the area. Naturaland Trust holds two properties bordering petitioners’

construction site, and Upstate Forever holds a conservation easement on those properties to ensure their

natural qualities are preserved. C.A. App. 23-24.

Petitioners’ construction work involved grading and

stripping a 20-acre area. C.A. App. 31, 65-66. They

“dramatically altered the steep, mountainous landscape

and exposed the underlying granular soil.” App. A-3.

Unilaterally claiming an agricultural exemption from

the CWA’s permitting requirements, petitioners took

6

no measures to control sediment or stormwater. C.A.

App. 31-33, 65-66. Consequently, they discharged

massive amounts of sediment into the adjacent streams

and rivers, devastating their natural condition and

causing significant erosion. App. A-4; C.A. App. 34,

67-68.1

The Department inspected petitioners’ NPDES

compliance in April and July 2019. App. A-4; C.A.

App. 56-57.2 In September 2019, the Department sent

petitioners a “Notice of Alleged Violation/Notice of Enforcement Conference,” inviting them to a “voluntary,

informal” meeting with the staff of the Office of Environmental Quality Control scheduled for later that

month. App. A-4-5; C.A. App. 54, 59. The conference

was “ ‘closed to the public and media,’ ” so respondents

could not attend. App. A-5 (quoting C.A. App. 59).

In November 2019, respondents sent petitioners

a letter giving notice of their intent to sue, detailing

petitioners’ discharges that violated the Act. App.

A-5. In April 2020, well after the required 60-day

notice period, respondents filed suit in district court,

alleging that petitioners’ land-clearing activities

violated the Act and seeking injunctive relief and

civil penalties. App. A-5-6; C.A. App. 21-48.

1 Petitioners invoked the CWA’s exemption for “agricultural

stormwater discharges and return flows from irrigated agriculture,” 33 U.S.C. § 1362(14), representing that the “barn” at the

site was purely for agricultural use and that it would not have a

septic system or other commercial features. C.A. App. 31-32. But

there is no exemption for clearing land for farms, much less for

event venues.

2 Petitioners’ site was also inspected by Pickens County, South

Carolina, but they have disclaimed reliance on Pickens County’s

enforcement efforts. App. A-15 n.5.

7

In May 2020, a month after respondents filed their

suit, the Department and petitioners entered into a

consent order that imposed a $6,000 penalty and

required them to obtain an NPDES permit, conduct

assessments, and perform remediation. App. A-6.

4. Petitioners moved to dismiss, arguing that

the district court lacked subject-matter jurisdiction

because the Department had commenced and was

diligently prosecuting an administrative-penalty action

against them. C.A. App. 49-50.

The district court concluded that the Department

commenced its action in September 2019 when it

issued the notice. App. B-10. Finding that the State

had commenced an action and was diligently prosecuting it, the court explained that “the only remaining

consideration is the comparability analysis.” Id. The

court then compared the penalty provisions, publicparticipation provisions, and judicial-review provisions of South Carolina’s regulatory scheme to the

federal equivalents. App. B-12-16. Ultimately, the

court concluded that South Carolina’s scheme was

comparable under 33 U.S.C. § 1319(g)(6)(A)(ii), and so

dismissed respondents’ complaint for lack of subjectmatter jurisdiction. App. B-16-17.

5. The Fourth Circuit reversed. In an opinion by

Judge Heytens, joined by Judge Motz, the court of

appeals explained first that the diligent-prosecution

bar in 33 U.S.C. § 1319(g)(6) does not implicate an

Article III court’s subject-matter jurisdiction. App.

A-8-11. It followed recent decisions of this Court that

had “ ‘tried . . . to bring some discipline’ ” to the label

“ ‘jurisdictional,’ ” ruling that the bar is a limit on a

plaintiff ’s ability to bring a suit, not the court’s ability

to adjudicate it. App. A-8-9 (quoting Henderson v.

Shinseki, 562 U.S. 428, 435 (2011)).

8

Applying the diligent-prosecution bar, the court of

appeals decided this case on the threshold issue of

commencement. Just as the district court had, the

court of appeals focused on the Department’s September 2019 Notice of Alleged Violation. App. A-11.

Drawing on the use of “action” in the Federal Rules

of Civil Procedure and dictionary definitions, the

court determined that “the essential character” of an

“action” is “an adversarial proceeding initiated by a

formal, public document.” App. A-11-12.

The court also drew insight from the federal administrative process set forth in § 1319(g), to which a state

action must be “comparable” in order for the diligentprosecution bar to apply. App. A-12. That process

provides public-notice rights and judicial review. Id.

It is commenced either by filing a complaint or by

“the simultaneous issuance of a consent agreement

and final order.” Id.; see 40 C.F.R. §§ 22.13, 22.38.

Public notice must precede the assessment of any

penalty. App. A-12; see 40 C.F.R. § 22.45.

To further develop its “understanding of what it

means to commence the relevant sort of action,” the

court looked to other circuit courts’ analysis of state

schemes’ comparability to the federal process. App.

A-13. These courts have found public participation

and judicial review important. Id. (citing McAbee v.

City of Fort Payne, 318 F.3d 1248, 1251-56 (11th Cir.

2003)). Here, South Carolina does not make public

participation or judicial review available “until after

the issuance of a departmental consent order,” and the

Department did not issue a consent order to petitioners until after respondents filed suit. Id.

The court also followed rulings on commencement

by the Seventh and Eighth Circuits. The Seventh Circuit has ruled that an action commences “ ‘when notice

9

and public participation protections become available

to the public and interested parties.’ ” App. A-13-14

(quoting Friends of Milwaukee’s Rivers v. Milwaukee

Metro. Sewerage Dist., 382 F.3d 743, 756 (7th Cir.

2004)). Similarly, the Eighth Circuit has ruled that

an action commences when the State issues “a consent

administrative order,” giving interested parties rights

to notice, hearing, and intervention. App. A-14 (citing

Arkansas Wildlife Fed’n v. ICI Ams., Inc., 29 F.3d 376,

380 (8th Cir. 1994)).

The court reasoned that the Department’s notice of

violation did not commence an action for purposes of

the diligent-prosecution bar. The notice was an invitation “to an informal, voluntary, private conference,”

with no penalty for failing to attend. App. A-15.

“Although the notice may have been an important and

even necessary step in the Department’s process—like

a demand letter before civil litigation—it did not commence an action within the common understanding of

those terms.” Id. Thus, the notice of violation did not

bar respondents’ suit. Id. Because the court ruled

that the State had not commenced an action, it did not

decide whether the State was prosecuting an action

diligently or proceeding under a state law comparable

to the federal administrative process.

Judge Quattlebaum dissented. He too “start[ed]

with whether South Carolina had ‘commenced’ an

action at the time of Plaintiffs’ suit.” App. A-20. He

would have ruled that the Department’s September

2019 notice commenced an action for purposes of

33 U.S.C. § 1319(g)(6). He then “turn[ed] to the issue

of diligent prosecution” and concluded that the

Department had diligently prosecuted the action.

App. A-31-32. Lastly, he determined that the Department’s administrative proceeding is comparable to the

federal process in § 1319(g)(6). App. A-36.

10

The Fourth Circuit remanded the case to the district

court, which set a scheduling order and permitted discovery to commence. The present petition followed.

REASONS FOR DENYING THE PETITION

THIS CASE DOES NOT PRESENT ANY QUESTION ON WHICH THE CIRCUITS ARE SPLIT

Review is not warranted because this case does not

present any question on which circuit courts are split.

The Fourth Circuit decided only whether the Department had commenced an action within the meaning

of 33 U.S.C. § 1319(g)(6)(A)(ii). Petitioners assert no

split on that issue. The petition claims that a circuit

split exists on the proper test of a state law’s comparability to federal law, but the court of appeals’ ruling

that South Carolina had not commenced an action

meant that it did not need to decide whether South

Carolina’s law is comparable to federal law. Moreover, even the asserted split is dubious, because the

circuits reach consistent results despite petitioners’

claim that their comparability tests diverge.

A. This Case Does Not Implicate the Asserted

Split

1. The diligent-prosecution bar in § 1319(g)(6)(A)(ii)

blocks citizen suits “when three requirements are

satisfied.” McAbee v. City of Fort Payne, 318 F.3d

1248, 1251 (11th Cir. 2003). “First, the state must

have ‘commenced’ an enforcement procedure against

the polluter.” Id. (quoting Arkansas Wildlife Fed’n

v. ICI Ams., Inc., 29 F.3d 376, 379 (8th Cir. 1994)).

“Second, the state must be ‘diligently prosecuting’

the enforcement proceedings.” Id. (quoting Arkansas

Wildlife Fed’n, 29 F.3d at 380). “Finally, the state’s

statutory enforcement scheme must be ‘comparable’

to the federal scheme promulgated in 33 U.S.C.

§ 1319(g).” Id.

11

Courts share this three-part understanding of the

diligent-prosecution bar. See, e.g., Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382

F.3d 743, 755 (7th Cir. 2004) (“Milwaukee’s Rivers”)

(following McAbee’s delineation of “three requirements”); Lockett v. EPA, 319 F.3d 678, 683-84 (5th Cir.

2003) (“Appellants d[id] not challenge” district court’s

commencement and diligence rulings, so “the only issue before us is whether the action was brought under

a ‘comparable’ state law”); Arkansas Wildlife Fed’n,

29 F.3d at 379-82 (dealing “first” with commencement,

then with diligence, and “[t]hird” with comparability).

The dissent below likewise acknowledged “that

‘commencement,’ ‘diligent prosecution’ and ‘comparability’ are three separate elements.” App. A-29 (quoting McAbee, 318 F.3d at 1251). Petitioners appear to

agree. See Pet. 17 (diligent-prosecution bar “properly”

involves “three separate inquiries”), 28 (diligentprosecution bar requires “tripartite analysis”).

The court of appeals’ application of the diligentprosecution bar began and ended with commencement. The CWA does not define “commence” or

“action.” See 33 U.S.C. § 1362. And few circuit decisions have analyzed commencement in any depth.

See infra Part B. The court therefore undertook a

careful analysis of what it means to “commence[ ] . . .

an action” under § 1319(g)(6)(A)(ii), considering text,

context, and precedent.

The court of appeals then reached a fact-specific conclusion: “On the facts of this case, we do not think the

Department’s notice of alleged violation was enough

to commence an action that was comparable to one

brought under federal law.” App. A-14-15. It ended

its analysis there: “[B]ecause the Department had not

yet commenced an action when the conservationists

12

filed their citizen suit, the diligent prosecution bar

does not preclude them from pursuing a civil penalty

action.” App. A-15.

2. Rather than address commencement, petitioners assert (at 21-30) that the circuits have taken

differing approaches to the third part of the analysis:

comparability.

Comparability generally involves

assessing the similarity of the state scheme at issue

to the federal process in § 1319(g)(6) in terms of their

respective “penalty provisions,” “enforcement goals,”

“opportunity to participate” for interested citizens,

and safeguards for citizens’ “legitimate substantive

interests.” Stringer v. Town of Jonesboro, 986 F.3d

502, 507 (5th Cir. 2021) (quoting Arkansas Wildlife

Fed’n, 29 F.3d at 381, and collecting cases).

Tracking the dissent below, petitioners claim that

the First and Eighth Circuits employ an “overall

comparability test,” while the Tenth and Eleventh use

a “rough comparability standard.” Pet. 21-26 (for the

former, citing North & South Rivers Watershed Ass’n,

Inc. v. Town of Scituate, 949 F.2d 552, 553-56 (1st Cir.

1991), overruled on other grounds by Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc., 32 F.4th 99

(1st Cir. 2022), and Arkansas Wildlife Federation,

29 F.3d at 380-82; for the latter, citing Paper, AlliedIndustrial, Chemical & Energy Workers International

Union v. Continental Carbon Co., 428 F.3d 1285, 128894 (10th Cir. 2005) (“Paper Workers”), and McAbee,

318 F.3d at 1249-55); see App. A-34-35 (Quattlebaum,

J., dissenting).

Petitioners go beyond the dissent in an effort to

broaden the purported split. They call the Fifth,

Sixth, and Ninth Circuits’ approaches a “mixed bag.”

Pet. 26-27 (citing Lockett, 319 F.3d at 683-85; Jones

v. City of Lakeland, 224 F.3d 518, 523 (6th Cir. 2000)

13

(en banc); and Citizens for a Better Env’t.-California v.

Union Oil Co. of California, 83 F.3d 1111, 1117-18

(9th Cir. 1996) (“UNOCAL”)). And they claim that

the court below and the Seventh Circuit imposed an

“exactly comparable test.” Pet. 27-29 (citing Milwaukee’s Rivers, 382 F.3d at 755-57).

None of that matters to this case because the court

of appeals did not reach comparability. Despite petitioners’ use of quotation marks, the words “exactly

comparable” are nowhere to be found in the court’s

decision.3 The court did not say whether South Carolina’s scheme is comparable to the federal equivalent

and did not adopt any “test” for making that determination. Its ruling on commencement rendered that

inquiry unnecessary. The dissent’s lengthier analysis

of the diligent-prosecution bar makes this clear. Unlike the panel majority, the dissent would have found

commencement, so it did go on to “compar[e] South

Carolina’s penalty assessment, public participation

and judicial review provisions with the corresponding

class of federal provisions.” App. A-36. No such analysis appears in the majority opinion.

3. Petitioners make two unpersuasive efforts to

bridge the gap between the court’s limited decision on

commencement and the supposed circuit conflict on

comparability.

3 Petitioners’ amici make the same mistake of attributing

to the court below holdings that are nowhere to be found in

the court’s opinion. See, e.g., Southeastern Legal Found. Br. 13

(“exactly comparable test”); Trade Orgs. Br. 9 (“exact ‘comparability’ . . . in both features and timing”); Buckeye Inst./Cato Inst.

Br. 4 (States must “mimic the federal program”); States Br. 1

(States must “mirror every procedure and process prescribed for

federal enforcement actions”).

14

First, petitioners suggest (at 5) that there is a broad

“struggle[ ]” among lower courts “to determine when

the [diligent-prosecution] bar applies,” of which divergent comparability analyses are the most “marked”

part. But, as the circuits agree and petitioners

concede, commencement, diligent prosecution, and

comparability are different issues based on different

statutory language. The Fourth Circuit’s ruling on

one was not a ruling on the others. Nor can a split on

one issue be broadened into a split on three. Petitioners do not even argue that the circuits are split on

defining commencement or diligent prosecution.

Second, petitioners attempt (at 27-29) to link the

court’s decision on commencement to the alleged split

by characterizing the court’s analysis of “commencement” as if it were a determination of “comparability.”

That mischaracterizes the court’s opinion. The court

engaged in a close analysis of the text and context to

form a judgment about what it means to commence an

“action.” See infra pp. 17-21.

The court then looked to other circuits’ comparability analyses to confirm its insight as to what it means

to “commence[ ] . . . an action” under § 1319(g)(6)(A)(ii).

App. A-13-14. The court considered the role of public

participation and judicial review in other circuits’

comparability rulings as one of several points indicating that the Department’s September 2019 notice,

to which no rights of public participation or judicial

review attached, did not commence an “action.” App.

A-13. But the court did not say – and certainly did not

hold – that South Carolina’s scheme as a whole was

not comparable to federal law. That question may be

presented in some future case when a citizen suit is

filed after an administrative order like the May 2020

order here. The Fourth Circuit may decide that future

15

case either way, because its ruling in this case leaves

the question open.

Petitioners mischaracterize (at 27-28) the Seventh

Circuit’s Milwaukee’s Rivers decision in the same way.

As here, the Seventh Circuit ruled only that the State

had not commenced an action. See 382 F.3d at

755-57. Far from requiring “exact” comparability as

petitioners claim, the Seventh Circuit observed that

Wisconsin law did not provide for administrative

enforcement proceedings at all. Id. at 756-57. The

Wisconsin Department of Natural Resources could

meet with defendants, investigate discharges, and

issue “informal notice[s] of non-compliance,” but it

had to refer matters to the Wisconsin Department of

Justice for enforcement action, which it pursued only

in court. Id. at 755-57. Contrary to petitioners’

claims, the Seventh Circuit held appropriately, and

only, that the Department’s informal pre-referral

steps did not commence an action for purposes of the

diligent-prosecution bar. Id. at 757.

B. No Circuit Disagrees with the Court of

Appeals on the Issue It Decided

The commencement issue that the Fourth Circuit

actually decided seldom arises. Few circuit courts

have issued decisions on it, and all align with the

Fourth Circuit’s ruling. The rarity of the issue and the

uniformity of circuit authority counsel against review.

In six of the eight cases comprising petitioners’ alleged split, besides the decision below, commencement

was undisputed. See Paper Workers, 428 F.3d at 1292

(no “dispute” that Oklahoma “ha[d] commenced and

[wa]s diligently prosecuting an administrative action

under state law”); Lockett, 319 F.3d at 683-84 (no

“challenge” to district court’s holding that Louisiana

“commenced an administrative penalty action”);

16

McAbee, 318 F.3d at 1251 n.6 (“ ‘[C]ommencement’ and

‘diligent prosecution’ are not at issue in this appeal.”);

see also Jones, 224 F.3d at 523-24 (deciding only

comparability); UNOCAL, 83 F.3d at 1118 (deciding

only comparability and diligent prosecution); Scituate,

949 F.2d at 555-57 (same). The two other decisions

in the purported split – Milwaukee’s Rivers by the

Seventh Circuit and Arkansas Wildlife Federation by

the Eighth Circuit – are in line with the decision below

on the commencement of an “action.” The Fourth

Circuit expressly followed them. See App. A-13-14.

Like the court below, the Seventh Circuit understood an “action” to commence based in part on when

rights of public notice and participation would attach.

Milwaukee’s Rivers, 382 F.3d at 755-57. Its conclusion

that informal meetings and notices did not commence

an action, id., is in accord with the decision below

that a notice and invitation to an informal private

conference did not either. No circuit has disagreed

with the Seventh Circuit that commencement of an

action depends in part on the availability of public

notice and participation.

For its part, the Eighth Circuit held that the State

commenced an action when it issued a “Consent

Administrative Order” that imposed a penalty, “initiate[d] formal adjudicatory proceedings,” and triggered

public notice, hearing, and intervention procedures.

Arkansas Wildlife Fed’n, 29 F.3d at 378-80. The

Eighth Circuit pegged commencement to that order,

not to notices and meetings that preceded it. Id. at

377-78. Here, the Department did not enter into

an equivalent consent order with petitioners until

after respondents filed suit. The court’s conclusion

that the Department’s earlier notice of violation did

not commence an action draws the same line that

Arkansas Wildlife Federation did.

17

C. The Decision of the Court of Appeals Was

Correct

1. The court of appeals’ statutory interpretation

properly began “ ‘where all such inquiries must begin:

with the language of the statute itself.’ ” Republic of

Sudan v. Harrison, 139 S. Ct. 1048, 1055-56 (2019)

(quoting Caraco Pharm. Labs., Ltd. v. Novo Nordisk

A/S, 566 U.S. 399, 412 (2012)). App. A-11 (“We start,

as always, with the text.”).

The court appropriately recognized that the term

“action” has a particular legal meaning, noting its

use in the Federal Rules of Civil Procedure. App.

A-11; see Fed. R. Civ. P. 2 (“There is one form of

action—the civil action.”); 1 Oxford English Dictionary

128 (J.A. Simpson & E.S.C. Weiner eds., 2d ed. 1989)

(defining “action” as “[t]he taking of legal steps to

establish a claim or obtain judicial remedy”). As

Black’s Law Dictionary put it in 1979, between the

CWA’s passage and the adoption of § 1319(g), the term

“action” in “its usual legal sense means a suit brought

in a court; a formal complaint within the jurisdiction

of a court of law.” Action, Black’s Law Dictionary 26

(5th ed. 1979). That supports the court’s reasoning

that “the essential character” of an “action” is “an

adversarial proceeding initiated by a formal, public

document.” App. A-12. Applying this interpretation,

the court correctly concluded that South Carolina’s

invitation to a voluntary, private, informal meeting

failed to constitute the “commencement” of an “action.”

App. A-15.

The use of “action” throughout the Act confirms

this understanding. See Law v. Siegel, 571 U.S. 415,

422 (2014) (“[W]ords repeated in different parts of

the same statute generally have the same meaning.”)

(citing Department of Revenue v. ACF Indus., Inc., 510

18

U.S. 332, 342 (1994)). The 1972 Act’s authorization

of the citizen suit – a lawsuit filed in federal court –

refers to it interchangeably as “a civil action” or an

“action.” See Pub. L. No. 92-500, § 2, 86 Stat. 816,

888-89 (1972) (adding Section 505, codified in part, as

amended, at 33 U.S.C. § 1365(a)-(d), (h)). Similarly,

the 1972 Act refers interchangeably to the federal government’s suits to enforce the Act as “civil action[s]”

and “action[s].” See id., 86 Stat. 859-60 (adding Section 309, codified in part, as amended, at 33 U.S.C.

§ 1319(a)-(b)). And the original diligent-prosecution

bar in the 1972 Act blocks citizen suits when the EPA

or a State commenced and is prosecuting “a civil

or criminal action in a court of the United States,

or a State.” Id., 86 Stat. 888-89 (adding Section 505,

codified in part at 33 U.S.C. § 1365(b)).

The addition of the federal administrative-penalty

process in 1987 preserved the Act’s understanding of

“action” as a formal, adversarial, public proceeding.

See Water Quality Act of 1987, Pub. L. No. 100-4,

§ 314(a), 101 Stat. 7, 46-49 (adding Section 309(g),

codified at 33 U.S.C. § 1319(g) (1988)). That administrative process requires the EPA to give alleged violators written notice of a proposed penalty and a hearing

at which they can present evidence. See 33 U.S.C.

§ 1319(g)(2). The process also requires the EPA to give

interested persons notice and an opportunity to comment on proposed penalty orders, including the right

to request a hearing and present their own evidence

before the penalty is made final. See id. § 1319(g)(4).

The statute calls this formal, adversarial,

public process an “action,” and it triggers the

diligent-prosecution bar at issue here.

See id.

§ 1319(g)(6)(A)(i). Indeed, § 1319(g)(6) has parallel

19

provisions for federal and state enforcement that trigger the bar. See id. § 1319(g)(6)(A)(i)-(ii). The statute

uses the same language in these parallel provisions

to describe the requirement that the government,

whether state or federal, “has commenced and is diligently prosecuting an action.” Id. (emphasis added).

Thus, the “normal rule of statutory construction” that

the same word in different parts of a statute means

the same thing, Law, 571 U.S. at 422, corroborates the

court of appeals’ interpretation.

“Moreover, to consider the statutory phrase as a

whole strengthens these linguistic points considerably.” Lagos v. United States, 138 S. Ct. 1684, 1688

(2018). Though the court below did not reach whether

the Department was “diligently prosecuting,” that

text further indicates that commencing an action

means starting an enforcement process that is formal,

adversarial, and public. “Prosecution” is the archetypal term for such an enforcement process. See

Prosecution, Black’s Law Dictionary 1099 (“A criminal

action; a proceeding instituted and carried on by due

course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person

charged with crime.”); Prosecute, id. (“to carry on an

action or other judicial proceeding” or “to proceed

against a person criminally”).

The diligent-prosecution bar’s text conjoins prosecution with commencement. A State must have

“commenced and [be] diligently prosecuting” the

action for the citizen’s suit to be blocked. 33 U.S.C.

§ 1319(g)(6)(A)(ii). The court of appeals’ interpretation gives full effect to this language. If petitioners

had persuaded the Department at an informal,

private conference that they were in compliance with

the statute and the Department had stopped there

20

without going further, no one would say that it had

“prosecuted” an “action” against them.

2. Petitioners do not engage with the statute’s

text. They omit that the court below focused on determining the meaning of “action,” and they make little

effort to advance an alternative interpretation of that

term as used in the diligent-prosecution bar.

Petitioners’ view (at 28-29) that a mere notice and

invitation to an informal private conference suffice

to commence an action defies the natural meaning of

“action” in the CWA. It likewise strips meaning from

the Act’s “diligently prosecuting” language. Petitioners’ position would be more sound if the Act spoke in

terms of investigating violations. For instance, Title

33 deals elsewhere with discharges of pollution from

ships. “Upon receipt of evidence that a violation

has occurred,” the Secretary of Defense must “cause

the matter to be investigated.” 33 U.S.C. § 1907(b).

But “Congress did not adopt that ready alternative”

language here. Advocate Health Care Network v.

Stapleton, 581 U.S. 468, 477 (2017).

Moreover, petitioners lack circuit authority for

loosening what it means to commence an action. See

supra Part B. As noted, the Seventh Circuit rejected

the argument that meetings, notices, and informal

inquiries commenced an “action” under the diligentprosecution bar. See Milwaukee’s Rivers, 382 F.3d at

755-57. And the Eighth Circuit determined that an

action was commenced not by meetings and letters but

by a consent order of the kind that the Department

here did not issue until after respondents filed their

citizen suit. See Arkansas Wildlife Fed’n, 29 F.3d at

378-80.

These cases also illustrate the “practical fact” that

petitioners’ “broad reading would create significant

21

administrative burdens.” Lagos, 138 S. Ct. at 1689.

Petitioners’ view would “invite disputes” across the

range of preliminary investigative steps a State might

take. Id. Rejecting a similar interpretation of the

equivalent diligent-prosecution bar in the Resource

Conservation and Recovery Act of 1976, the Seventh

Circuit emphasized “the interminable character of

much administrative process and the difficulty of

deciding on a threshold below which the process is too

tentative to justify barring a citizen’s suit.” PMC, Inc.

v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir.

1998); see id. (“Suppose Illinois’ environmental protection agency sent a letter of inquiry . . . with no followup. Would that administrative ‘action’ bar PMC from

suing? If not, what would? How ‘diligent’ would the

agency have to be in pursuing the matter? We’d

rather not get into those questions, and we don’t think

that Congress intended us to.”).

The broad appeals by petitioners and their amici to

federalism and States’ primacy in enforcement of the

CWA do not overcome the statute’s text. “[A] broad

general purpose of this kind does not always require”

a particular statutory interpretation. Lagos, 138 S. Ct.

at 1689. Congress chose language with clear meaning.

Citizen suits are barred only when governmental

administrative enforcement satisfies each element

of the diligent-prosecution bar. The Fourth Circuit’s

decision finding that South Carolina never commenced an action properly enforced the text chosen by

Congress. The court’s correct interpretation of the

statute and application of the law to the record do not

warrant review.

D. Even the Asserted Split Is Dubious

Even as to comparability, the circuit split petitioners assert (at 21-30) is dubious and unworthy of

22

review. Petitioners do not identify any cases that

arrive at different results on equivalent records.

Instead, ostensibly different tests produce comparable

results; differing results derive more from variations

in facts than tests. See Black v. Cutter Labs., 351 U.S.

292, 297 (1956) (“This Court . . . reviews judgments,

not statements in opinions.”).

To start, the tests are more similar than petitioners

would have it. The “rough” and “overall” comparability tests they describe consider the same points of

comparison. McAbee, a “rough” comparability case,

called for comparing the “penalty-assessment,” “publicparticipation,” and “judicial-review” provisions of

state law to federal law. 318 F.3d at 1254. Arkansas

Wildlife Federation, an “overall” comparability case,

identified the same emphases: “comparable penalty

provisions” and “a meaningful opportunity [for the

public] to participate at significant stages of the

decision-making process.” 29 F.3d at 381.

The tests also tend to produce similar results. For

instance, in Paper Workers, a “rough” comparability

case, the Tenth Circuit reviewed Oklahoma’s provisions for public notice and participation and held that

the Oklahoma scheme was comparable to federal law.

See 428 F.3d at 1294-97. That is little different from

the “overall” comparability cases petitioners cite (at

21-24). Those decisions likewise reviewed state laws’

notice and participation provisions in the course of

determining that those laws were comparable to the

CWA. See Arkansas Wildlife Fed’n, 29 F.3d at 381-82;

Scituate, 949 F.2d at 556 n.7.

When results have diverged, different facts explain

them. McAbee – as noted, a “rough” comparability

case – deemed Alabama law not comparable because

of its unusually weak provisions for public notice and

23

participation. See 318 F.3d at 1256-57. The public

could participate only after the State issued a penalty

order. Notice to the public was a one-day newspaper

bulletin containing little detail that ran in a generalcirculation newspaper in the county where the

violation occurred. Id. at 1250, 1257. “[A]ggrieved”

persons had 15 days from the newspaper bulletin

to request a hearing to contest the penalty. Id. at

1257. Proper requests for a hearing were thus “nearly

impracticable.” Id.

The Sixth Circuit’s decision in Jones, which petitioners label (at 26-27) a “mixed bag” case, is similar.

As in McAbee, deficient notice and participation

provisions drove the court’s conclusion that state law

was not comparable. See Jones, 224 F.3d at 523-24.

The Tennessee agency at issue there had “unilateral

discretionary authority” to exclude interested citizens

from the administrative process. Id.

By contrast, the Arkansas and Massachusetts laws

at issue in Arkansas Wildlife Federation and Scituate

provided far more robust notice and participation

rights to the public. In Arkansas Wildlife Federation,

the citizen plaintiff was allowed to inspect the state

agency’s files, had actual notice of administrative

proceedings, and could have intervened in them. See

29 F.3d at 382. In Scituate, the state law made

administrative orders public documents and permitted any interested person – not just those “aggrieved”

as in McAbee – to intervene in administrative proceedings or request a hearing. See 949 F.2d at 556 n.7.

Accordingly, it cannot be said that these decisions

are in conflict with McAbee or Jones. Nor can it be

assumed – given the attention that the First and

Eighth Circuits devoted to public notice and participation rights – that either court would have decided

24

McAbee differently than the Eleventh Circuit or Jones

differently than the Sixth.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

MICHAEL G. MARTINEZ

AMY ARMSTRONG

LAUREN M. MILTON

S.C. ENVIRONMENTAL

LAW PROJECT

407 Church Street

Suite E

Georgetown, SC 29440

(843) 527-0078

April 3, 2023

MICHAEL K. KELLOGG

Counsel of Record

GREGORY G. RAPAWY

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(mkellogg@kellogghansen.com)