Opposition Brief — Nevada Irrigation District, et al., Petitioners v. California State Water Resources Control Board, et al.
Supreme Court briefApr 10, 2023
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No. 22-743
In the Supreme Court of the United States
NEVADA IRRIGATION DISTRICT, ET AL., PETITIONERS
v.
CALIFORNIA STATE WATER RESOURCES
CONTROL BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
MATTHEW R. CHRISTIANSEN
General Counsel
ROBERT H. SOLOMON
Solicitor
JARED B. FISH
Attorney
Federal Energy Regulatory
Commission
Washington, D.C. 20426
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The Federal Energy Regulatory Commission (Commission) has authority to issue licenses for the construction, operation, and maintenance of hydroelectric projects on jurisdictional waters. See 16 U.S.C. 797(e). Under the Clean Water Act, 33 U.S.C. 1251 et seq., an applicant for a hydroelectric license from FERC is required to apply for a certification from the State in
which the licensed project may result in a discharge into
navigable waters. 33 U.S.C. 1341(a)(1). The Commission generally cannot issue a federal license until the
applicant obtains the requisite state water-quality certification. The Clean Water Act provides, however, that
“[i]f the State * * * fails or refuses to act on a request
for certification, within a reasonable period of time
(which shall not exceed one year) after receipt of such
request, the certification requirements of this subsection shall be waived with respect to such Federal application.” Ibid. In these consolidated cases, the Commission found that a California state agency had coordinated with petitioners to withdraw and resubmit the
same requests over and over again, as a means of circumventing the statutory one-year period for acting on
a pending certification request. The Commission relied
on its findings of coordination to determine that the
state agency had waived its certification authority. The
question presented is as follows:
Whether the court of appeals erred in holding that
the administrative record lacks substantial evidence to
support the Commission’s findings of coordination.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statement ...................................................................................... 2
Argument..................................................................................... 13
Conclusion ................................................................................... 23
TABLE OF AUTHORITIES
Cases:
Alcoa Power Generating Inc. v. FERC,
643 F.3d 963 (D.C. Cir. 2011) ............................................... 4
Biestek v. Berryhill, 139 S. Ct. 1148 (2019) .................. 16, 17
Citizens of Goleta Valley v. Board of Supervisors,
801 P.2d 1161 (Cal. 1990) ..................................................... 5
City of Carmel-by-the-Sea v. United States Dep’t of
Transp., 123 F.3d 1142 (9th Cir. 1997) ............................... 5
Clean Water Act Rulemaking, In re,
60 F.4th 583 (9th Cir. 2023) ............................................... 23
Consolidated Edison Co. v. NLRB,
305 U.S. 197 (1938).............................................................. 17
Escondido Mut. Water Co. v. La Jolla Band
of Mission Indians, 466 U.S. 765 (1984) ............................ 3
Hoopa Valley Tribe v. FERC,
913 F.3d 1099 (D.C. Cir.), cert. denied,
140 S. Ct. 650 (2019) ....................................................... 7, 15
Louisiana v. American Rivers,
142 S. Ct. 1347 (2022) ......................................................... 23
New York State Dep’t of Envtl. Conservation
v. FERC, 884 F.3d 450 (2d Cir. 2018) ......................... 19, 20
New York State Dep’t of Envtl. Conservation
v. FERC, 991 F.3d 439 (2d Cir. 2021) ......................... 19, 20
(III)
IV
Cases—Continued:
Page
North Carolina Dep’t of Envtl. Quality v. FERC,
3 F.4th 655 (4th Cir. 2021) ............................................ 20-22
PUD No. 1 v. Washington Dep’t of Ecology,
511 U.S. 700 (1994)................................................................ 3
S. D. Warren Co. v. Maine Bd. of Envtl. Prot.,
547 U.S. 370 (2006)................................................................ 3
Turlock Irrigation Dist. v. FERC,
36 F.4th 1179 (D.C. Cir. 2022), petition for cert.
pending, No. 22-616 (filed Jan. 4, 2023) ............................ 22
Statutes, regulations, and rule:
Clean Water Act, 33 U.S.C. 1251 et seq. ................................ 3
33 U.S.C. 1251(b) ............................................................... 4
33 U.S.C. 1341 (§ 401) ....................................... 3-17, 19-23
33 U.S.C. 1341(a) (§ 401(a)) ........................................ 4, 14
33 U.S.C. 1341(a)(1) .....................................3, 4, 13, 14, 21
33 U.S.C. 1341(d) ........................................................... 3, 4
Federal Power Act, 16 U.S.C. 791a et seq. ............................ 2
16 U.S.C. 797(e) ............................................................. 2, 3
16 U.S.C. 803 ...................................................................... 2
16 U.S.C. 808(a)(1)............................................................. 2
16 U.S.C. 808(e) ................................................................. 2
16 U.S.C. 811 ...................................................................... 3
16 U.S.C. 825l(b) .............................................................. 16
National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seq. ............................................................ 5
California Environmental Quality Act of 1970,
Cal. Pub. Res. Code §§ 21000 et seq. (West 2016) ............. 5
Cal. Water Code § 13160(b)(2) (West Supp. 2022) ............... 6
18 C.F.R.:
Section 4.34(b)(5)(iii) ......................................................... 4
V
Regulations and rule—Continued:
Page
Section 16.18 ...................................................................... 2
Cal. Code Regs. tit. 14 (Oct. 14, 2022):
§ 15050(a)............................................................................ 6
§ 15051 ................................................................................ 6
§ 15084(a)............................................................................ 6
Sup. Ct. R. 10 ......................................................................... 17
Miscellaneous:
85 Fed. Reg. 42,210 (July 13, 2020) ...................................... 22
86 Fed. Reg. 29,541 (June 2, 2021) ....................................... 23
87 Fed. Reg. 35,318 (June 9, 2022) ....................................... 23
In the Supreme Court of the United States
No. 22-743
NEVADA IRRIGATION DISTRICT, ET AL., PETITIONERS
v.
CALIFORNIA STATE WATER RESOURCES
CONTROL BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENT
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-30a)
is reported at 43 F.4th 920. The court’s opinion addressed consolidated petitions for review of three sets
of orders by the Federal Energy Regulatory Commission. The orders of the Commission in Nevada Irrigation District (Pet. App. 31a-46a, 47a-52a) are reported
at 171 F.E.R.C. ¶ 61,029 and 172 F.E.R.C. ¶ 61082,
respectively. The orders of the Commission in Yuba
County Water Agency (Pet. App. 53a-71a, 72a-76a) are
reported at 171 F.E.R.C. ¶ 61,139 and 172 F.E.R.C.
¶ 61,080, respectively. The order of the Commission in
Merced Irrigation District (Pet. App. 77a-97a) is reported at 171 F.E.R.C. ¶ 61,240.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
August 4, 2022. A petition for rehearing was denied on
October 7, 2022 (Pet. App. 99a-102a). On December 21,
2022, Justice Kagan extended the time within which to
file a petition for a writ of certiorari to and including
February 6, 2023, and the petition was filed on that
date. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATEMENT
1. The Federal Power Act, 16 U.S.C. 791a et seq.,
provides the Federal Energy Regulatory Commission
(FERC or Commission) with the authority to issue licenses for the construction, operation, and maintenance
of non-federal hydroelectric projects on jurisdictional
waters. 16 U.S.C. 797(e). The Commission may issue
hydroelectric licenses for up to 50 years. 16 U.S.C.
808(e). In deciding whether to issue or reissue a license,
the Commission is required to consider “the power and
development purposes for which licenses are issued,”
and to “give equal consideration to the purposes of energy conservation, the protection, mitigation of damage
to, and enhancement of, fish and wildlife * * * , the protection of recreational opportunities, and the preservation of other aspects of environmental quality.” 16
U.S.C. 797(e). If a new license is not granted prior to
the expiration of an existing license, the Commission
may issue to the licensee an annual license to operate
the project from year to year, “under the terms and conditions of the existing license until * * * a new license
is issued.” 16 U.S.C. 808(a)(1); see 18 C.F.R. 16.18.
The Commission generally operates under a broad
mandate to specify the conditions on which a license is
granted. See 16 U.S.C. 803. In certain circumstances,
3
however, the Commission can be required to include licensing terms established by other agencies. 16 U.S.C.
797(e), 811; see Escondido Mut. Water Co. v. La Jolla
Band of Mission Indians, 466 U.S. 765, 772 (1984).
These consolidated cases concern one such situation, in
which the Commission can be required to incorporate
into the terms of a federal license certain water-quality
measures established by state agencies under the Clean
Water Act, 33 U.S.C. 1251 et seq.
Section 401 of the Clean Water Act provides that any
applicant seeking a federal license for activities “which
may result in any discharge into the navigable waters”
must provide the federal licensing authority with a “certification from the State in which the discharge originates or will originate” that certain effluent limitations
and water-quality requirements will be met. 33 U.S.C.
1341(a)(1). Operating a dam to produce hydroelectricity may result in a “discharge” into navigable waters,
ibid., and FERC licensing or relicensing proceedings
for such a project therefore generally trigger Section
401’s water-quality certification process. See S. D.
Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370,
373-374 (2006); see also id. at 377 (explaining that the
term “ ‘discharge’ ” bears its “plain meaning” in this context and includes the release of water from a hydroelectric dam) (citation omitted).
A State may condition its certification under Section
401 “upon any limitations necessary to ensure compliance with state water quality standards or any other
‘appropriate requirement of State law.’ ” PUD No. 1 v.
Washington Dep’t of Ecology, 511 U.S. 700, 713-714
(1994) (quoting 33 U.S.C. 1341(d)); see id. at 705 (explaining that the Clean Water Act permits States to
“impose more stringent water quality controls” than
4
federal law would otherwise prescribe). FERC, in turn,
is required to incorporate any limitations or conditions
specified in a State’s water-quality certification into
any license the Commission ultimately grants for the
project at issue. 33 U.S.C. 1341(d). If the State denies
the requested Section 401 certification, then “[n]o [federal] license or permit shall be granted.” 33 U.S.C.
1341(a)(1).
By interposing the States in the process for granting
federal licenses, Section 401 furthers the Clean Water
Act’s policy to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” 33 U.S.C. 1251(b). At
the same time, Section 401 is not designed to be a vehicle for States to “indefinitely delay[]” federal licensing
proceedings. Alcoa Power Generating Inc. v. FERC,
643 F.3d 963, 972 (D.C. Cir. 2011). Congress therefore
specified that the water-quality certification requirements set forth in Section 401(a) are deemed to be
“waived” for a given federally licensed activity if a State
“fails or refuses to act on a request for certification[]
within a reasonable period of time (which shall not exceed one year) after receipt of [a] request” for certification. 33 U.S.C. 1341(a)(1); cf. 18 C.F.R. 4.34(b)(5)(iii)
(FERC regulation treating the statutory maximum oneyear period as the applicable deadline). If a State
waives certification, FERC may proceed to act on a licensing application. See 33 U.S.C. 1341(a)(1) (“No license or permit shall be granted until the certification
required by this section has been obtained or has been
waived.”) (emphasis added).
2. Petitioners are California public agencies that operate hydroelectric projects in California. Pet. App. 9a10a. In the 1960s, the Commission’s predecessor
5
agency granted long-term licenses to operate the projects. Id. at 10a, 13a, 15a-16a. As those licenses have
expired in recent years, petitioners have sought new
long-term licenses from the Commission. The projects
are currently being operated under annual licenses issued by the Commission to maintain the status quo during the relicensing proceedings. See ibid. The Commission has yet to issue a new long-term license for any
of the projects.
Petitioners’ licensing applications triggered Section
401’s requirement for state water-quality certifications
for each project. Petitioners each applied for a certification from the relevant California state agency, the
California State Water Resources Control Board (State
Board or Board). Pet. App. 10a, 13a, 16a.
Under California law at the time, the State Board
could not grant a Section 401 certification until the
Board received an environmental impact report under
the California Environmental Quality Act of 1970
(CEQA), Cal. Pub. Res. Code §§ 21000 et seq. (West
2016). See Pet. App. 6a-7a. CEQA is the state-law analogue to the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq. Much like NEPA,
CEQA “sets procedural requirements,” including the
preparation of an “Environment Impact Report,” to ensure that state and local officials take into account “ ‘the
environmental consequences of their decisions before
they are made.’ ” City of Carmel-by-the-Sea v. United
States Dep’t of Transp., 123 F.3d 1142, 1163 (9th Cir.
1997) (quoting Citizens of Goleta Valley v. Board of Supervisors, 801 P.2d 1161, 1167 (Cal. 1990)). If an environmental report is required under CEQA for a project
involving multiple public agencies, California law designates a “lead agency” that is responsible for preparing
6
the report. Cal. Code Regs. tit. 14, § 15084(a) (Oct. 14,
2022); see id. §§ 15050(a), 15051.1
As a practical matter, it was “often not feasible” for
the report required by CEQA to be completed within
the one-year period established by Section 401 for a
State to act on a pending certification request. Pet.
App. 8a. Over time, a practice developed in California
(and elsewhere) in which applicants submitted certification requests, withdrew them before the end of Section
401’s one-year period, and then “resubmit[ted] them as
new requests.” Ibid. The theory behind the practice
was that “a withdrawn-and-resubmitted request” would
restart Section 401’s one-year clock, “affording the project applicant more time to comply with procedural and
substantive prerequisites to certification and the state
more time to decide whether and under what conditions
it will grant the certification request.” Ibid. Although
the Commission “expressed misgivings” about potential
delay of federal licensing proceedings through such
practices, it accepted for many years that withdrawal
and resubmission of an application operated to restart
Section 401’s one-year period. Id. at 8a-9a.
In 2019, however, the D.C. Circuit held that that two
States had waived their Section 401 authority by agreeing with project applicants to withdraw and resubmit
the same certification requests over an extended period
After the events at issue here, California amended its laws to
permit the State Board to grant certification before the CEQA process is complete. Pet. App. 6a n.2. Specifically, the Board may now
grant a certification request under Section 401 “before completion
of the [CEQA] environmental review,” when the Board determines
that “waiting until completion of that environmental review * * *
poses a substantial risk of waiver of the state board’s certification
authority.” Cal. Water Code § 13160(b)(2) (West Supp. 2022).
1
7
of time. See Hoopa Valley Tribe v. FERC, 913 F.3d
1099, 1104, cert. denied, 140 S. Ct. 650 (2019). In that
case, a FERC relicensing application for a project consisting of a network of hydroelectric dams had triggered a requirement for the applicant to request waterquality certifications from both California and Oregon.
Id. at 1101. The applicant proposed to relicense only
some of the existing dams in the project and to decommission others; in the course of negotiations about decommissioning, the applicant and the States “agreed to
defer the one-year statutory limit for Section 401 approval by annually withdrawing-and-resubmitting the
water quality certification requests.” Ibid. A third
party challenged that agreement in proceedings before
FERC, arguing that the States had waived their Section
401 authority. Id. at 1102. The Commission found no
waiver, ibid., but the D.C. Circuit disagreed. The D.C.
Circuit viewed the case as concerning “a written agreement with the reviewing states to delay water quality
certification,” and held that Section 401’s statutory oneyear period for acting on a certification request does not
permit such a tolling arrangement. Id. at 1104.
3. The Commission applied Hoopa Valley Tribe in
petitioners’ licensing proceedings and found in each
case that the State Board had waived its water-quality
certification authority by “coordinating” with petitioners in a scheme to withdraw and resubmit the same requests multiple times to circumvent Section 401’s oneyear deadline. Pet. App. 9a. For each project, petitioners were responsible under state law for preparing the
environmental reports required by CEQA, and petitioners did not do so. See id. at 10a-17a. Petitioners instead
withdrew and resubmitted their requests over a period
of years while their CEQA obligations remained unmet.
8
After Hoopa Valley Tribe, the State Board denied the
most recently refiled certification requests for each project, within one year of receiving those requests. Petitioners sought relief from the Commission, which found
waiver.
a. Nevada Irrigation District. Petitioner Nevada
Irrigation District first submitted a certification request for the Yuba-Bear Project to the State Board in
2012. Pet. App. 10a. In 2013, two weeks before the expiration of Section 401’s one-year period, petitioner
filed a letter with the Board seeking to withdraw and
resubmit the request. Id. at 11a. The Board obliged
and treated the resubmitted request as triggering a
new one-year period under Section 401. Ibid. Petitioner again withdrew and resubmitted its certification
request each year from 2014 to 2018. Id. at 12a.
In 2019, on the same day that the D.C. Circuit issued
its decision in Hoopa Valley Tribe, the State Board
acted on petitioner’s most recently filed request—
within one year of the most recent resubmission of that
request—by denying the request without prejudice for
failure to have completed the CEQA process. Pet. App.
12a; see id. at 36a. Petitioner did not resubmit its request to the Board after the request was denied without
prejudice; instead, petitioner asked FERC to find
waiver in light of Hoopa Valley Tribe. Id. at 37a.
The Commission found that the State Board had
waived its Section 401 certification authority for the
Yuba-Bear Project. Pet. App. 31a-46a; see id. at 47a52a (rehearing). The Commission acknowledged that
the State Board and petitioner had never entered into
any “explicit written agreement” on withdrawal and resubmittal as a means of evading Section 401’s one-year
period. Id. at 41a. But the Commission viewed the par-
9
ticular facts here as included within the rationale of
Hoopa Valley Tribe, relying in part on a filing the Board
had submitted to FERC indicating that the Board itself
fully “expected [petitioner] to withdraw and refile its
application,” which petitioner did. Ibid. The Commission emphasized that the certification proceedings had
lasted “nearly six years beyond” the one-year deadline
triggered by petitioner’s initial request. Id. at 42a.
b. Yuba County Water Agency. Petitioner Yuba
County Water Agency first submitted a Section 401 certification request for the Yuba River Project to the State
Board in 2017. Pet. App. 13a. Shortly before the oneyear period would have expired for petitioner’s request,
an employee of the Board emailed petitioner a reminder
about the upcoming deadline, noting that petitioner had
not prepared the CEQA report (and that the Board
therefore could not grant the request), and stating:
“Please submit a withdraw/resubmit of the certification
application as soon as possible.” Id. at 14a (quoting
email). Petitioner complied. Ibid. In 2019, after Hoopa
Valley Tribe, the Board denied the resubmitted request
without prejudice, based on petitioner’s “failure to begin
the CEQA process.” Id. at 15a.
The Commission determined that the State Board
had waived its certification authority under Section 401
for the Yuba River Project. Pet. App. 53a-71a; see id. at
72a-76a (rehearing). Although the Board found no “explicit written agreement to withdraw and refile,” id. at
63a, it relied on the email described above (and related
later correspondence) to find that petitioner’s “withdrawal and refiling of its application was in response to
the Board’s request that it do so.” Ibid. The Commission
stated that such “coordination” was itself “sufficient evidence that the California Board sought the withdrawal
10
and resubmittal * * * to circumvent the one-year statutory deadline for the state agency to act.” Id. at 64a.
c. Merced Irrigation District. Petitioner Merced Irrigation District first submitted a water-quality certification request for the Merced River Project in May 2014.
Pet. App. 16a. In 2015, about one month before the end
of Section 401’s one-year period for the State Board to
act on that request, a staff member for the Board sent an
email to petitioner regarding the upcoming deadline,
stating: “Please withdraw the [request] and simultaneously resubmit an application for water quality certification prior to May 13, 2015.” Ibid. (quoting email). Petitioner withdrew and resubmitted its request in 2015—
and again in 2016, 2017, and 2018. Id. at 17a.
A similar process played out for the Merced Falls
Project. The original licensee for that project was Pacific
Gas & Electric (PG&E). Pet. App. 15a-16a. PG&E submitted a certification request to the State Board for the
Merced Falls Project in May 2014; PG&E withdrew and
resubmitted that request in 2015 and again in 2016. Id.
at 79a, 81a-82a. In 2017, PG&E transferred its license
for the project to petitioner, Merced Irrigation District,
which then became the lead agency under California law
for preparing the CEQA report. Id. at 16a n.10, 94a n.74.
In 2017 and 2018, petitioner withdrew and resubmitted a
certification request for the project. Id. at 82a-83a.
After Hoopa Valley Tribe, the State Board denied petitioners’ certification requests for both projects without
prejudice to resubmission, relying in each case on petitioner’s “failure to comply with CEQA.” Pet. App. 17a.
Petitioner sought relief from the Commission, which
found that the Board had waived its Section 401 authority. Id. at 77a-97a. In particular, the Commission found
that, “based on the four years of the applicants with-
11
drawing and resubmitting their applications with nearly
identical two-page letters and without filing a new application or any new supporting information,” the Board
had “de facto consented” to the repeated withdrawals
and resubmissions “for the purpose of avoiding [Section
401’s] one-year deadline.” Id. at 93a. In the Commission’s view, the Board’s “actions, whether implied or explicit, constituted a failure to act within the one-year
deadline.” Ibid.
4. The State Board and several environmental
groups petitioned the Ninth Circuit for review of the
Commission’s orders. Pet. App. 18a. The court of appeals consolidated the petitions. 20-72432 C.A. Order
(May 20, 2021). In a unanimous opinion, the court
granted the petitions and vacated the Commission’s orders with respect to each project. Pet. App. 1a-30a.
The court of appeals recognized that, after Hoopa
Valley Tribe, the Commission had begun finding waiver
in cases “where project applicants had withdrawn and
resubmitted certification requests,” even in the absence
of any “express agreement[] to delay certification.”
Pet. App. 20a. Those cases involved what the Commission described as “coordinated schemes” to evade the
one-year period in Section 401, even though the coordination was “informal” rather than explicit. Ibid. The
Commission had distinguished cases of informal coordination from others involving “an applicant’s unilateral
withdrawal and resubmittal,” which the Commission
viewed as “not trigger[ing] a waiver.” Id. at 20a-21a.
The court of appeals declined to address whether the
“coordination standard” that the Commission had begun to apply after Hoopa Valley Tribe “is consistent
with the text of Section 401.” Pet. App. 22a. The court
instead agreed with the State Board’s alternative argu-
12
ment that “FERC’s findings of coordination are not
supported by substantial evidence.” Ibid.
For example, in Nevada Irrigation District, the
Commission had found that the Board had coordinated
with the Nevada Irrigation District to evade the oneyear deadline in part based on certain comments the
Board had submitted to FERC during the federal environmental review process for the Yuba-Bear Project.
Pet. App. 23a. The court of appeals, however, viewed
that evidence as failing to warrant an inference of coordination, stating that the comments “show[ed] merely
that the State Board predicted that [the Nevada Irrigation District] would decide to withdraw and resubmit.”
Ibid. The court did not view the Board’s comments as
suggesting that the Board was “working to engineer” a
withdrawal and resubmission. Ibid. Likewise, the court
was unpersuaded by the emails on which the Commission had relied to find coordination in Yuba County Water Agency and Merced Irrigation District. The court
viewed the emails as showing only that the Board had
“predict[ed]” that petitioners would avail themselves of
the opportunity to withdraw and resubmit, not that the
Board was coordinating with petitioners to circumvent
Section 401’s one-year period. Id. at 25a.
The court of appeals also emphasized other evidence
in the record which it viewed as tending to undercut the
Commission’s findings of coordination. The court noted
that the Board was apparently prepared to deny petitioners’ certification requests without prejudice, within
the one-year period for acting, had petitioners not withdrawn and resubmitted them. Pet. App. 25a-26a. The
court further noted that petitioners, as the parties that
had “failed to comply with CEQA,” appeared to have a
“motive for delay.” Id. at 24a. By contrast, the court
13
viewed the Board as having “an interest in moving [the
process] along,” so that the Board could exercise its authority under Section 401 to impose water-quality conditions on any long-term licenses the Commission may
issue. Id. at 26a. The projects are currently operating
under annual licenses that do not incorporate such conditions. See ibid.; see also p. 5, supra.
Petitioners sought rehearing en banc, which the
court of appeals denied without any noted dissent. Pet.
App. 99a-102a.
ARGUMENT
Petitioners contend (Pet. 27-33) that the court of appeals incorrectly decided an important question concerning the circumstances in which a State waives its
certification authority under Section 401 of the Clean
Water Act, 33 U.S.C. 1341(a)(1). But petitioners largely
fail to grapple with the actual holding of the decision below. The Ninth Circuit held that, on the particular record here, substantial evidence did not support the Commission’s findings that the State Board had coordinated
with petitioners in a withdrawal-and-resubmission
scheme to evade Section 401’s one-year deadline for the
Board to act on a pending request. That highly factbound decision does not warrant further review. Petitioners further contend (Pet. 19-26) that the decision
below implicates a conflict of authority in the courts of
appeals regarding Section 401 and waiver. But petitioners fail to demonstrate any substantial disagreement
that would warrant review at this time. Accordingly,
the petition for a writ of certiorari should be denied.2
A related question concerning Section 401 and waiver is pending
before the Court in Turlock Irrigation District v. FERC, No.
22-616 (filed Jan. 4, 2023).
2
14
1. In these consolidated cases, the Commission held
that the State Board had waived its certification authority under Section 401 by coordinating with petitioners
in a scheme to withdraw and resubmit the same certification requests multiple times as a means of evading
Section 401’s one-year period for the Board to act on a
pending request. The court of appeals, in turn, held that
the Commission’s findings of coordination lacked a basis in substantial evidence. Pet. App. 22a. Although the
Commission disagrees with that holding, the decision
below does not satisfy this Court’s ordinary criteria for
certiorari. The question whether substantial evidence
supported the Commission’s findings of coordination is
highly fact-bound, lacks prospective significance, and
does not otherwise warrant further review.
a. Section 401 provides that, if a State “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year)
after receipt of such request,” then the water-quality
certification requirements of Section 401(a) “shall be
waived with respect to” the federal licensing or permit
application that triggered the Section 401 certification
process. 33 U.S.C. 1341(a)(1). By the express terms of
the statute, the one-year period in Section 401 begins to
run upon “receipt” of the relevant certification request.
Ibid. When an applicant submits a request but then
withdraws it before the one-year mark, there is no request pending before the State and thus nothing for the
State to grant or deny. A State does not “fail[] or refuse[] to act” on a certification request when the applicant’s unilateral withdrawal of the request deprives the
State of an opportunity to address it. Ibid.
Harder questions may arise when an applicant withdraws a certification request and then resubmits the
15
same or a substantially similar request. Historically,
the Commission had declined to look behind any particular withdrawal and had treated each refiling of a certification request as restarting the one-year period prescribed in Section 401. See Pet. App. 8a-9a (collecting
decisions). The Commission began to take a different
approach only after the D.C. Circuit’s decision in Hoopa
Valley Tribe v. FERC, 913 F.3d 1099, cert. denied, 140
S. Ct. 650 (2019), which marked the first occasion when
any court of appeals had found a Section 401 waiver
based on a pattern of withdrawals and resubmissions.
As explained above (at pp. 6-7), Hoopa Valley Tribe
involved a settlement agreement between a licensee and
two States that “explicitly required” the licensee to
withdraw and resubmit the same Section 401 certification requests over and over again as a way of purportedly holding the Section 401 proceedings in “abeyance”
while the parties negotiated over decommissioning certain dams. 913 F.3d at 1101; see id. at 1101-1102. The
D.C. Circuit viewed that aspect of the settlement agreement as an impermissible effort to “toll[]” Section 401’s
one-year period for a State to act on a pending request.
Id. at 1103. The court held that a State waives its Section 401 certification authority when it agrees with an
applicant to engage in such a “coordinated withdrawaland-resubmission scheme.” Ibid.
In a series of orders after Hoopa Valley Tribe, including the orders at issue here, the Commission has
determined that a State waives its Section 401 authority
when it “coordinate[s]” with an applicant to withdraw
and resubmit the same certification request, even in the
absence of any explicit agreement. Pet. App. 9a. The
Commission has thus viewed the logic and rationale of
Hoopa Valley Tribe as extending to some informal or
16
implicit forms of coordination to circumvent Section
401’s one-year period. See id. at 38a (explaining that a
“formal agreement” is not “necessary to support a finding of waiver,” given other evidence of coordinated action); see also id. at 40a-45a, 63a-66a, 89a-94a.
b. Here, the court of appeals reserved judgment on
whether “the coordination standard” reflected in the
Commission’s orders “is consistent with the text of Section 401.” Pet. App. 22a. The court thus expressly declined to “reach the statutory-interpretation issue” of
whether or under what circumstances a State’s informal
or implicit coordination on withdrawal and resubmittal
can give rise to waiver. Id. at 22a n.11. The court instead held only that, even if coordination is a permissible basis for finding waiver, the Commission’s “findings
of coordination [were] not supported by substantial evidence in the record.” Id. at 22a.
Petitioners assert (Pet. 3) that the court of appeals
committed a “clear error of law” when it did not “defer
to FERC’s assessment” that the State Board had coordinated with petitioners. But petitioners do not dispute
that the Commission’s findings of fact are reviewed under the substantial-evidence standard. See 16 U.S.C.
825l(b) (“The finding of the Commission as to the facts,
if supported by substantial evidence, shall be conclusive.”) (emphasis added). As this Court has recently reiterated, “[t]he phrase ‘substantial evidence’ is a ‘term
of art’ used throughout administrative law to describe
how courts are to review agency factfinding.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). An agency’s findings are supported by substantial
evidence if the agency had before it “such relevant evidence as a reasonable mind might accept as adequate to
17
support a conclusion.” Ibid. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The court of appeals correctly identified the governing substantial-evidence standard for review of the
Commission’s factfinding. See Pet. App. 18a (recognizing that substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion”) (citation omitted). In the Commission’s view, the court erred when applying that
standard to this record. But a “petition for a writ of
certiorari is rarely granted when the asserted error
consists of erroneous factual findings or the misapplication of a properly stated rule of law.” Sup. Ct. R. 10.
And petitioners identify no sound basis for departing
from the Court’s traditional approach here.
Petitioners contend (Pet. 20) that the decision below
necessarily addressed “a legal issue” rather than a
“substantial evidence question,” on the theory that the
decision “reflects an interpretation of what” it means
for a State to fail or refuse to act under Section 401. As
already explained, however, the court of appeals declined to address the statutory-interpretation question.
See Pet. App. 22a. The court instead proceeded on the
assumption that FERC is correct that a State fails or
refuses to act when it coordinates with an applicant on
a withdrawal-and-resubmission scheme to evade Section 401’s one-year period, but the court found that this
particular administrative record lacks substantial evidence of coordination. See ibid.
Petitioners further contend (Pet. 30) that the court
of appeals failed to take account of “established * * *
practice” in California, which they describe as having
created “a legal regime where the State’s [Section 401]
decision necessarily takes more than a year.” But the
18
court of appeals acknowledged the historical practices
that petitioners invoke, including the ways in which California law had previously contributed to those practices by requiring that the State Board receive a CEQA
report before granting certification. See Pet. App. 8a9a. Those historical practices do not establish that all
withdrawals and resubmissions in California during the
relevant period necessarily occurred in coordination
with the Board, rather than as a result of the applicant’s
independent decisionmaking—including, for example, a
judgment by the applicant that it would prefer to withdraw and resubmit its request rather than have the
Board be compelled to deny the request on CEQA
grounds. And petitioners agree (Pet. 30) that a “State
does not waive its authority if applicants independently
withdraw their requests for certification and then later
resubmit those requests.”
In these cases, the Commission found that petitioners had not acted independently but had instead acted
in coordination with the Board; the court of appeals disagreed, holding that the record lacks substantial evidence of coordination; and the substantial-evidence
holding does not warrant further review.
2. The decision below does not conflict with any decision of this Court or another court of appeals, nor does
it otherwise warrant review. Petitioners’ contention
that the decision below “deepens” an existing conflict of
authority lacks merit. Pet. 19 (capitalization and emphasis omitted); see Pet. 19-27. Petitioners do not identify any substantial conflict of authority and fail to show
that these cases would have come out differently in another circuit.
a. Petitioners principally contend (Pet. 19-22) that
the decision below conflicts with the D.C. Circuit’s deci-
19
sion in Hoopa Valley Tribe. As the Ninth Circuit explained, however, these cases are a step removed from
the facts of Hoopa Valley Tribe, because these cases do
not involve any “express agreement[] to delay certification through withdrawal-and-resubmission.” Pet. App.
20a. These cases instead involve what the Commission
found to be “informal” or implicit coordination between
the State Board and petitioners. Ibid. The D.C. Circuit
has not yet had occasion to address how Hoopa Valley
Tribe applies to a case involving such coordination. And
in any event, the Ninth Circuit did not actually resolve
whether coordination warrants a finding of waiver even
in the absence of an express agreement; the court held
only that this record lacks substantial evidence of coordination. See p. 18, supra.
Petitioners maintain (Pet. 22) that Hoopa Valley
Tribe and the decision below are necessarily in conflict
because a settlement agreement is “no different” than
what petitioners describe as California’s “established
regime” of anticipating and encouraging withdrawaland-resubmission practices. In general, the Commission has taken the position that the critical question is
not whether an explicit agreement exists but rather
whether the State coordinated with the applicants in the
scheme or was otherwise complicit in an effort to evade
Section 401’s one-year period. See FERC C.A. Br. 5253. As described above, however, the Ninth and D.C.
Circuits have yet to definitely address FERC’s position,
and petitioners thus fail to demonstrate any conflict.
b. Petitioners likewise err in contending (Pet. 22-24)
that the decision below conflicts with a pair of Second
Circuit decisions: New York State Dep’t of Envtl. Conservation v. FERC, 991 F.3d 439 (2021) (New York II),
and New York State Dep’t of Envtl. Conservation v.
20
FERC, 884 F.3d 450 (2018) (New York I). In both cases,
the Second Circuit rejected efforts by a New York state
agency to evade Section 401’s one-year period by altering the date on which a certification request was
deemed to have been received by the agency (and thus
the start of Section 401’s one-year clock)—either by unilaterally declaring the request to have been received
only when the agency considered it complete, see New
York I, 884 F.3d at 455-456, or by agreeing with the applicant to alter the date of receipt, see New York II, 991
F.3d at 447-448. Because the Second Circuit rejected
those efforts, it agreed with the Commission that both
cases involved a State failing to take action on a pending
request at the one-year mark, which is an express basis
for finding waiver under Section 401. See id. at 444,
447-450; New York I, 884 F.3d at 455-456.
Petitioners invoke general language in both decisions about the “bright-line rule” established by Section
401. Pet. 23 (citation omitted). But the relevant bright
line to which the Second Circuit was referring was the
requirement that a State act on a pending request
within one year of receiving it. See, e.g., New York II,
991 F.3d at 450. The two decisions did not involve withdrawal of a request before the one-year deadline and
subsequent resubmission of the same request, and they
do not demonstrate any conflict of authority between
the Second and Ninth Circuits.
c. Petitioners lastly contend (Pet. 25) that the Second and D.C. Circuit decisions described above are in
conflict with the Fourth Circuit’s decision in North Carolina Dep’t of Envtl. Quality v. FERC, 3 F.4th 655
(2021). That contention is incorrect and, in any event,
would not support further review here, in a case arising
21
from the Ninth Circuit that does not itself implicate or
create any circuit conflict.
In North Carolina, the Commission found that a
State had waived its Section 401 authority by coordinating with an applicant on a scheme to withdraw and resubmit the same request in order to give the State more
time for considering the request. 3 F.4th at 667. FERC
had relied on Hoopa Valley Tribe in finding waiver. Id.
at 668. The Fourth Circuit reviewed Hoopa Valley
Tribe and described it as a “very narrow decision flowing from a fairly egregious set of facts.” Id. at 669. Ultimately, however, the Fourth Circuit declined to “definitively resolve” the circumstances under which a coordinated withdrawal-and-resubmission scheme might
warrant a finding of waiver. Id. at 671. The Fourth Circuit instead “assume[d] for purposes of [its] opinion that
FERC’s approach to the issue is correct, such that a finding of waiver under § 401 is appropriate if the applicant
and state agency, in order to avoid the one-year review
period, coordinate on a withdrawal-and-resubmission
scheme.” Ibid. The Fourth Circuit went on to hold that
the administrative record in North Carolina lacked
substantial evidence of coordination. See id. at 671-676.
The Ninth Circuit charted a similar analytical path
in the decision below. See Pet. App. 30a (relying on
North Carolina and describing the Fourth Circuit as
having “reached the same conclusion in a case with similar facts”). Accordingly, both circuits have not yet definitively resolved whether or when coordination is a
permissible basis for finding waiver under Section 401.3
In a portion of the Fourth Circuit’s decision in North Carolina
that petitioners do not invoke, the court hypothesized that a State
may “act” on a pending certification request for purposes of Section
401, 33 U.S.C. 1341(a)(1), by taking “significant and meaningful”
3
22
3. Further review is unwarranted for two additional
reasons. First, in 2020, after the events at issue here,
California amended its laws to permit the State Board
to grant Section 401 certification without first receiving
a completed CEQA report. See Pet. App. 6a n.2; p. 6
n.1, supra. Petitioners acknowledge (Pet. 9 n.3) those
changes but speculate that the Board will continue to
“evade[]” Section 401 through “withdrawal-and-refile
procedure[s].” Yet petitioners fail to explain why the
Board would have any incentive to do so. If the Board
wishes to grant a request before the CEQA process is
complete, it may now do so (subject to the requirements
of state law as amended). See, e.g., Turlock Irrigation
Dist. v. FERC, 36 F.4th 1179, 1182 (D.C. Cir. 2022), petition for cert. pending, No. 22-616 (filed Jan. 4, 2023).
State law also permits the Board to deny a request without prejudice to resubmission, as the Board ultimately
did here for all the projects. See pp. 8-10, supra.
Second, further review is unwarranted at this time
because the procedures for granting or denying certification under Section 401 are currently the subject of ongoing federal rulemaking proceedings. In 2020, the Environmental Protection Agency (EPA) promulgated a
rule setting forth requirements for Section 401 certifications, including provisions to address waiver. See 85
Fed. Reg. 42,210, 42,286 (July 13, 2020). The Section
401 proceedings at issue here predated the effective
steps with regard to the request short of granting or denying it,
North Carolina, 3 F.4th at 670. That reading of the statute would
be incorrect and anomalous. See FERC C.A. Br. 40-45; cf. North
Carolina, 3 F.4th at 670 n.5 (acknowledging that no other circuit
“has adopted this interpretation”). But the relevant discussion was
dicta and was not endorsed by the Ninth Circuit here.
23
date of the 2020 rule and thus do not reflect the changes
made by that rule.4
EPA has also since announced a new rulemaking
with regard to Section 401, 86 Fed. Reg. 29,541, 29,542
(June 2, 2021), and those rulemaking proceedings remain pending, see 87 Fed. Reg. 35,318, 35,377-35,381
(June 9, 2022) (proposed rule). EPA’s proposed rule
would not specifically address withdrawals and resubmissions. See id. at 35,341.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
MATTHEW R. CHRISTIANSEN
General Counsel
ROBERT H. SOLOMON
Solicitor
JARED B. FISH
Attorney
Federal Energy Regulatory
Commission
ELIZABETH B. PRELOGAR
Solicitor General
APRIL 2023
The 2020 rule has been the subject of several challenges. When
EPA announced its intent to engage in further rulemaking, it invited the district court in which one of those challenges had been
brought to remand the 2020 rule to the agency without vacatur. The
district court instead remanded with vacatur in an order that this
Court later stayed pending further litigation. Louisiana v. American Rivers, 142 S. Ct. 1347 (2022); see Gov’t Mem. in Opp. at 6-12,
American Rivers, supra (No. 21A539) (procedural history). The
Ninth Circuit recently held that the district court erred in vacating
the rule and reversed that aspect of the court’s order. See In re
Clean Water Act Rulemaking, 60 F.4th 583, 593-596 (2023). The
2020 rule thus remains in force, although it does not apply here for
the reasons explained above.
4
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.