Amicus Curiae Brief — Shannon Poe, Petitioner v. Idaho Conservation League

No. 23-1028

In the Supreme Court of the United States

SHANNON POE,

Petitioner,

v.

IDAHO CONSERVATION LEAGUE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF OF AMICUS CURIAE CENTER FOR

CONSTITUTIONAL RESPONSIBILITY

IN SUPPORT OF PETITIONER

Karen R. Harned

Executive Director

CENTER FOR

CONSTITUTIONAL

RESPONSIBILITY

4532 Cherry Hill Road,

No. 538

Arlington, VA 22207

Steven P. Lehotsky

Counsel of Record

LEHOTSKY KELLER

COHN LLP

200 Massachusetts Ave. NW

Washington, DC 20001

(512) 693-8350

steve@lkcfirm.com

Andrew B. Davis

LEHOTSKY KELLER

COHN LLP

408 W. 11th St., 5th Floor

Austin, TX 78701

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page(s)

Interest of Amicus Curiae .................................................. 1

Summary of Argument ........................................................ 1

Argument .............................................................................. 3

I.

The Clean Water Act’s Private Right of Action

Presents Serious Article II Problems................... 3

A. Article II bars private citizens from

exercising executive power. ............................ 3

B. The CWA authorizes private citizens to

exercise unsupervised executive power

contrary to Article II. ...................................... 6

II. The Decision Below Accentuates the Article II

and Practical Problems with Citizen-Suit

Provisions. .............................................................. 10

A. This case exemplifies the Article II

problems with the CWA’s citizen-suit

provision. ......................................................... 10

B. This Court should grant the petition to

constrain private attorneys general under

the CWA. ......................................................... 13

Conclusion ........................................................................... 14

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Buckley v. Valeo,

424 U.S. 1 (1976) ..................................................... 5, 6, 7

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

467 U.S. 837 (1984) ....................................................... 14

DOT v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) ........................................................... 8

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

Servs.,

528 U.S. 167 (2000) ................................................... 8, 12

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ........................................................... 9

Heckler v. Chaney,

470 U.S. 821 (1985) ......................................................... 5

Idaho Conservation League v. Poe,

No. 1:18-CV-353-REP, 2022 WL

4536465 (D. Idaho Sept. 28, 2022) ............................... 13

In re Aiken Cnty.,

725 F.3d 255 (D.C. Cir. 2013) .................................. 5, 10

Laufer v. Arpan LLC,

29 F.4th 1268 (11th Cir. 2022) ................................. 6, 11

iii

Lucia v. SEC,

585 U.S. 237 (2018) ......................................................... 5

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ..................................................... 5, 6

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) ........................................................... 4

Morrison v. Olson,

487 U.S. 654 (1988) ......................................................... 8

Myers v. United States,

272 U.S. 52 (1926) ........................................................... 4

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) ....................................................... 11

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ......................................................... 4

Rybachek v. EPA,

904 F.2d 1276 (9th Cir. 1990) ....................................... 14

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ................................................. 4, 7

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ......................................................... 5

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ....................................................... 12

United States v. DTE Energy Co.,

No. 10-CV-13101, 2020 WL 10730046

(E.D. Mich. Dec. 3, 2020) ............................................... 9

iv

United States v. Germaine,

99 U.S. 508 (1879) ........................................................... 5

United States v. Nixon,

418 U.S. 683 (1974) ......................................................... 5

Statutes

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

33 U.S.C. § 1365(a) ............................................................... 7

33 U.S.C. § 1365(b) ............................................................... 9

33 U.S.C. § 1365(g) ............................................................... 7

42 U.S.C. § 7604(c)(3) ........................................................... 9

U.S. CONST. art. II, § 1..................................................... 2, 4

U.S. CONST. art. II, § 2 ........................................................ 5

U.S. CONST. art. II, § 3................................................. 2, 4, 6

Other Authorities

David E. Adelman & Jori Reilly-Diakun,

Environmental Citizen Suits and the

Inequities of Races to the Top, 92 U.

Colo. L. Rev. 377 (2021) ............................................... 10

Eric Biber & Berry Brosi, Officious

Intermeddlers or Citizen Experts?

Petitions and Public Production of

Information in Environmental Law,

58 UCLA L. Rev. 321 (2010) ....................................... 11

v

Jonathan H. Adler, Stand or Deliver:

Citizen Suits, Standing, and

Environmental Protection, 12 Duke

Env’t L. & Pol’y F. 39 (2001). .................................. 7, 11

Richard J. Pierce, Jr., Agency Authority to

Define the Scope of Private Rights of

Action, 48 Admin. L. Rev. 1 (1996) ............................. 11

Tara Leigh Grove, Standing as an Article

II Nondelegation Doctrine, 11 U. Pa. J.

Const. L. 781 (2008) ...................................................... 12

Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which Rest

upon the Legislative Power of the

States of the American Union (2d ed.

1871) ................................................................................. 4

INTEREST OF AMICUS CURIAE

Amicus curiae is the Center for Constitutional Responsibility. 1 The Center is a nonprofit organization that

is dedicated to preserving the separation of powers and

the accountability of the political branches at all levels of

government in the United States. In particular, the Center is concerned with the increasingly common delegation

to unaccountable private parties of the Executive’s exclusive power to enforce public laws. This delegation—which

deputizes the plaintiffs’ bar and private citizens to act as

roving, unaccountable “private attorneys general”—is a

threat to democratic accountability and the cohesiveness

of our union. Laws, especially on contentious topics,

should be enforced by government officials that answer to

the Constitution and the people. The Center aims to prevent the unwise and unconstitutional delegation of sovereign enforcement authority.

SUMMARY OF ARGUMENT

The decision below reads the Clean Water Act

(“CWA”) in a way that expands its substantive reach, and

thus expands the ability for policy-motived entities like

Respondent to enforce the law under the CWA’s citizensuit provision—a provision that poses significant Article

II problems because it delegates executive enforcement

authority to private individuals. That deserves this

Court’s review.

Pursuant to this Court’s Rule 37.2, amicus curiae provided timely

notice of intent to file this brief to counsel of record for the parties. In

accordance with Rule 37.6, no counsel for a party authored this brief

in whole or in part or made a monetary contribution intended to fund

the preparation or submission of this brief, and no person other than

amicus curiae, its members, and its counsel made such a monetary

contribution.

1

2

Article II of the Constitution vests “the executive

Power” in the “President of the United States,” U.S.

CONST. art. II, § 1, and charges the President to “take

Care that the Laws be faithfully executed,” id. art. II, § 3.

These provisions ensure that the President—who is accountable to the American people—and his subordinates—who are accountable to the President—exclusively wield the executive power to enforce federal law. To

be sure, private plaintiffs may sue to vindicate their own

private rights, even when doing so may have the indirect

effect of enforcing federal law. But a private citizen has no

ability to act as a private attorney general. When private

plaintiffs do so, they violate Article II because law enforcement is a power reserved exclusively for the Executive Branch.

The CWA nevertheless through its citizen-suit provision grants law enforcement power to any individual with

Article III standing. A CWA plaintiff suing under that

provision is not limited to private remedies, such as an injunction to stop a defendant’s activities that are harming

it. Instead, a CWA plaintiff is authorized to seek substantial civil monetary penalties payable to the United States

Treasury—a quintessential public remedy that Article II

demands reside within the Executive Branch. And there

are virtually no guardrails to this authority. So long as the

Executive is not already taking enforcement action, a private party may at its own discretion seek to enforce a perceived violation of the CWA, threatening the allegedly offending entity with ruinous fines and litigation costs.

The CWA’s delegation of executive authority to selfappointed private attorneys general produces the practical problems that Article II was designed to prevent. Article II vests the executive power in the President because

the President is accountable to the people and thus can be

expected to exercise prudent judgment when exercising

3

his discretion to take enforcement action. Private parties—especially advocacy organizations—do not have this

constraint and thus act very differently. They can—and

do—pursue claims to advance ideological or policy agendas specific to them and their members. And they do so

(by definition) only when the Executive has decided that

an enforcement action is not appropriate.

That is what happened in this case. Respondent is an

environmental advocacy organization that filed suit to enforce the CWA and obtained a $150,000 civil penalty judgment even though the Environmental Protection Agency

(“EPA”) chose not to do so. Put bluntly, because Respondent believed that the elected President was not exercising

his enforcement discretion appropriately, Respondent

stepped in and exercised the President’s discretion differently. That is what Article II is meant to prevent.

Against this backdrop, it is important for this Court to

review the lower court’s broad reading of a substantive

provision of the CWA regarding what constitutes the “discharge of a pollutant.” When courts broadly read substantive provisions of the CWA, they expand the ability for

self-appointed individuals and organizations to enforce

more violations of the CWA contrary to Article II. Moreover, the lower court’s deference to the EPA’s interpretation of the CWA is problematic because it allows an

agency to erode the President’s power to control enforcement actions as Article II mandates.

ARGUMENT

I. THE CLEAN WATER ACT’S PRIVATE RIGHT OF ACTION

PRESENTS SERIOUS ARTICLE II PROBLEMS.

A. Article II bars private citizens from exercising executive power.

Only the President has the power and responsibility to

direct the actions of individuals who exercise executive

4

power. This principle of the separation of powers is so fundamental to our Constitution that no fewer than three

constitutional provisions work together to ensure that the

executive authority is not outside the President’s control.

Most directly, the Vesting Clause ensures Presidential

control over executive actions. That clause provides: “The

executive Power shall be vested in a President of the

United States of America.” U.S. CONST. art. II, § 1. This

Clause prohibits the vesting of the executive power in anyone else or any other branch of government, because “all

of it” resides with the President. Seila Law LLC v. CFPB,

140 S. Ct. 2183, 2191 (2020). The proposition that the Congress could “vest [the executive power] in any other person” has long been “utterly inadmissible.” Martin v.

Hunter’s Lessee, 14 U.S. 304, 329-30 (1816) (Story, J.).

The Take Care Clause—which states that the President “shall take Care that the Laws be faithfully executed”—serves a similar function. U.S. CONST. art. II, § 3.

That Clause necessarily gives the President, as “the chief

constitutional officer of the Executive Branch,” “supervisory . . . responsibilit[y]” over those who execute the law.

Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). If the President were deprived of the “general administrative control

of those executing the laws,” it would be “impossible” for

him “to take care that the laws be faithfully executed.”

Myers v. United States, 272 U.S. 52, 117, 163-64 (1926);

see also Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative

Power of the States of the American Union 63 (2d ed.

1871) (“[W]here a general power is conferred or duty enjoined, every particular power necessary for the exercise

of the one, or the performance of the other, is also conferred.”).

Finally, the Appointments Clause states that the President “shall nominate, and by and with the Advice and

5

Consent of the Senate, shall appoint . . . Officers of the

United States . . . which shall be established by Law.” U.S.

CONST. art. II, § 2. The Clause also states that “Congress

may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the

Courts of Law, or in the Heads of Departments.” Id. A

person is an officer under the Appointments Clause if he

holds a “continuing” office established by law and wields

“significant authority.” Lucia v. SEC, 585 U.S. 237, 245

(2018) (quoting United States v. Germaine, 99 U.S. 508,

511-12 (1879); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per

curiam)).

Together, these clauses ensure that the power to enforce federal law—and accountability for enforcement decisions—rests solely with the Executive Branch. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (The

Executive Branch’s obligation to “take Care that the

Laws be faithfully executed” is its “most important constitutional duty.” (citation omitted)). That power includes,

at its core, the “exclusive authority and absolute discretion to decide whether to prosecute a case.” United States

v. Nixon, 418 U.S. 683, 693 (1974); see also Heckler v.

Chaney, 470 U.S. 821, 832 (1985) (explaining decision to

“refus[e] to institute proceedings” is part of the Executive

Branch’s Article II powers).

“[C]ivil enforcement decisions”—that is, decisions to

bring suit in federal court for civil violations of federal

law—likewise fall within the Executive Branch’s exclusive

power. In re Aiken Cnty., 725 F.3d 255, 264 n.9 (D.C. Cir.

2013) (Kavanaugh, J.). When the United States decides

whether to bring a civil suit to enforce “general compliance” with federal law, it exercises a quintessential Executive Branch function. TransUnion LLC v. Ramirez, 594

U.S. 413, 429 (2021). That is why the Federal Election

Commission cannot be part of the legislative branch—it

6

wields “enforcement power, exemplified by its discretionary power to seek judicial relief.” Buckley, 424 U.S. at 138.

None of this, of course, prohibits private citizens with

a private cause of action from suing to redress concrete

and solely personalized injuries caused by violations of

federal law. But it does limit them to redressing only

“[i]ndividual rights,” not “public rights.” Lujan, 504 U.S.

at 578. A private individual who has personally been injured (say, because she was fired due to a disability) may

file suit to redress that injury (seeking, for example, reinstatement and backpay) provided she has a cause of action. See id. at 577-78. That kind of suit incidentally advances the public interest in rooting out disability discrimination, but the primary result is the redress of the plaintiff’s personal, specific injuries. See Laufer v. Arpan LLC,

29 F.4th 1268, 1291 (11th Cir. 2022), vacated as moot, 77

F.4th 1366 (11th Cir. 2023) (Newsom, J., concurring).

Suits that advance “the public interest,” by contrast,

are “the function of Congress and the Chief Executive.”

Lujan, 504 U.S. at 576. If private citizens share the power

to advance “the undifferentiated public interest in . . .

compliance with the law,” they usurp “the Chief Executive’s most important constitutional duty, to ‘take Care

that the Laws be faithfully executed.’” Id. at 577 (quoting

U.S. CONST. art. II, § 3).

B. The CWA authorizes private citizens to exercise unsupervised executive power contrary

to Article II.

The CWA raises serious Article II concerns because it

delegates unsupervised executive authority to private citizens. Like nearly every federal environmental statute,

the CWA includes a citizen-suit provision that authorizes

members of the public to initiate lawsuits against private

entities that allegedly violate its substantive provisions.

The citizen-suit provision states that “any citizen may

7

commence a civil action” against “any person” for a violation of the Act. 33 U.S.C. § 1365(a)(1). It then defines “citizen” very broadly—virtually to the far reaches of Article

III standing requirements—to mean any “person or persons having an interest which is or may be adversely affected” by the alleged violation. Id. § 1365(g).

These citizens have a panoply of remedies available to

them under the CWA. “Most environmental citizen-suit

provisions only provide for injunctive relief and legal

costs, (including attorneys’ fees) for successful plaintiffs”

because “the relief is aimed at remedying the permit violation or other illegal action.” Jonathan H. Adler, Stand

or Deliver: Citizen Suits, Standing, and Environmental

Protection, 12 Duke Env’t L. & Pol’y F. 39, 47 (2001). The

CWA is different. It authorizes private plaintiffs to impose on private defendants civil fines that are payable to

the federal treasury. 33 U.S.C. § 1365(a) (providing that

private plaintiffs may seek “to apply any appropriate civil

penalties under 1319(d) of this title”). And these civil fines

are significant, reaching as high as “$25,000 per day for

each violation.” Id. § 1319(d).

This ability for a self-appointed plaintiff to enforce the

CWA against a private defendant through a lawsuit seeking (often ruinous) civil penalties payable to the United

States treasury is in severe tension with our constitutional

design vesting all executive power in the President. A

“lawsuit,” after all, “is the ultimate remedy for a breach of

the law, and it is to the President . . . that the Constitution

entrusts [that] responsibility.’” Buckley, 424 U.S. at 138.

And “the power to seek daunting monetary penalties

against private parties on behalf of the United States in

federal court” is “a quintessentially executive power.”

Seila Law, 140 S. Ct. at 2200.

Justice Kennedy explicitly recognized this tension between the CWA’s private right of action and Article II in

8

his concurrence in Friends of the Earth, Inc. v. Laidlaw

Environmental Services, 528 U.S. 167 (2000). He wrote

that “[d]ifficult and fundamental questions are raised

when we ask whether exactions of public fines by private

litigants, and the delegation of Executive power which

might be inferable from the authorization, are permissible

in view of the responsibilities committed to the Executive

by Article II.” 528 U.S. at 197 (2000) (Kennedy, J., concurring). 2 Justice Scalia, joined by Justice Thomas in dissent,

went further. He explained that the CWA is not merely

providing private individuals with a remedy for individual

harm; it is instead “giving an individual plaintiff the power

to invoke a public remedy.” Id. at 204-05 (Scalia, J., dissenting). Thus, “[b]y permitting citizens to pursue civil

penalties payable to the Federal Treasury, the [CWA]

does not provide a mechanism for individual relief in any

traditional sense, but turns over to private citizens the

function of enforcing the law.” Id. at 209.

Still, there are some indications in this Court’s caselaw

that individuals exercising such executive power need not

be fully accountable to the president so long as they are

meaningfully supervised or constrained. In Morrison v.

Olson, 487 U.S. 654 (1988), for example, this Court held

that an independent counsel provision did not “impermissibly undermine” the powers of the Executive Branch because there were “several means of supervising or controlling” the independent counsel. Id. at 693-96 (internal

quotation marks omitted). But see id. at 705-06 (Scalia, J.,

Cf. DOT v. Ass’n of Am. R.Rs., 575 U.S. 43, 62 (2015) (Alito, J., concurring) (“Private entities are not vested with legislative Powers. Nor

are they vested with the executive Power, which belongs to the President. Indeed, it raises difficult and fundamental questions about the

delegation of Executive power when Congress authorizes citizen

suits.” (cleaned up) (citing Laidlaw, 528 U.S. at 197 (Kennedy, J., concurring))).

2

9

dissenting) (explaining that the President is vested not

with “some of the executive power, but all of the executive

power”).

But the CWA does not have any meaningful guardrails

to constrain self-appointed private attorneys’ general and

save its constitutionality. A provision prohibiting private

parties from filing a citizen suit “if the [EPA] or State has

commenced and is diligently prosecuting a civil . . . action

. . . to require compliance with the standard, limitation, or

order” does not meaningfully constrain private litigates.

33 U.S.C. § 1365(b)(1)(B). Rather, it serves as a one-way

ratchet. If the government is not enforcing against a violation—including when it chooses not to enforce as an exercise in prosecutorial discretion—then the private citizen

is still empowered to prosecute in its sole discretion. The

requirement that a private plaintiff provide 60-days’ notice of the alleged violation to the EPA and to the proposed defendant is similarly unconstraining. Id.

§ 1365(b)(1)(A). It adds a procedural hurdle, but does not

prohibit a private plaintiff from enforcing the CWA. See

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,

Inc., 484 U.S. 49, 60 (1987) (noting this requirement is intended to provide the proposed defendant “an opportunity to bring itself into complete compliance . . . and

thus . . . render unnecessary a citizen suit”). Finally, the

government’s ability to “submit its comments” with respect to any consent decree under the act (42 U.S.C.

§ 7604(c)(3)), does not relieve the tension with Article II.

Nothing prohibits the parties from entering into a settlement agreement—as compared to a consent decree—to

resolve the private enforcement without the government’s

involvement, see United States v. DTE Energy Co., No.

10-CV-13101, 2020 WL 10730046, at *1 (E.D. Mich. Dec.

3, 2020), and, in any event, the district court is free to enter a consent decree to which the Executive objects.

10

In short, the CWA’s citizen-suit provision is in substantial tension with Article II as it authorizes private entities to take law enforcement into their own hands and

without any meaningful supervision or control by the

President or his lawful appointees.

II. THE DECISION BELOW ACCENTUATES THE ARTICLE

II AND PRACTICAL PROBLEMS WITH CITIZEN-SUIT

PROVISIONS.

A. This case exemplifies the Article II problems

with the CWA’s citizen-suit provision.

Article II protects individual liberty by leaving to the

elected Executive the discretion not to enforce violations

of law when enforcement would be unjust or unwise. As

then-Judge Kavanaugh explained in In re Aiken:

One of the greatest unilateral powers a President possesses under the Constitution, at least

in the domestic sphere, is the power to protect

individual liberty by essentially under-enforcing federal statutes regulating private behavior. . . . After enacting a statute, Congress may

not mandate the prosecution of violators of that

statute. Instead, the President’s prosecutorial

discretion and pardon powers operate as an independent protection for individual citizens

against the enforcement of oppressive laws

that Congress may have passed.

725 F.3d at 264.

The CWA’s citizen-suit provision robs the Executive

of this discretion. Indeed, commentators routinely recognize that a fundamental characteristic of citizen-suit provisions is their circumvention of executive discretion. E.g.,

David E. Adelman & Jori Reilly-Diakun, Environmental

Citizen Suits and the Inequities of Races to the Top, 92 U.

Colo. L. Rev. 377, 380 (2021) (“[C]itizen suits are lauded

11

for augmenting government enforcement and compelling

ideologically antagonistic administrations to take legally

required action.” (collecting authorities)); Eric Biber &

Berry Brosi, Officious Intermeddlers or Citizen Experts?

Petitions and Public Production of Information in Environmental Law, 58 UCLA L. Rev. 321, 345 (2010) (noting

that “citizen suit provisions could help to ensure that

agencies were not fully ‘captured’ by regulated entities”).

The Executive—who is accountable to the American

people—can be expected to strive to exercise prudent

judgment and only take enforcement action when doing

so is reasonable and in the public interest. The environmental organizations that routinely enforce the CWA pursuant to its citizen-suit provision, however, cannot. These

organizations do not need to take a broader view of enforcement because they “face no significant political repercussions for setting unwise enforcement priorities.”

Adler, 12 Duke Env’t L. & Pol’y F. at 49. See also Richard

J. Pierce, Jr., Agency Authority to Define the Scope of

Private Rights of Action, 48 Admin. L. Rev. 1, 12 (1996)

(noting that a critical shortcoming of citizen suits is the

“lack of political accountability for important policy decisions”). To the contrary, they often enforce the law in service of their own ideological or policy goals. As Justice

Breyer explained outside of the CWA context: “The delegation of state authority to private individuals authorizes

a purely ideological plaintiff . . . to bring into the courtroom the kind of political battle better waged in other forums.” Nike, Inc. v. Kasky, 539 U.S. 654, 679 (2003)

(Breyer, J., dissenting).

Worse, private enforcers can mix ideology and policy

with plainly improper motivations for enforcement because they are “unencumbered by the legal and practical

checks that constrain public enforcement agencies.” Arpan, 29 F.4th at 1295 (Newsom, J., concurring) (quoting

12

Tara Leigh Grove, Standing as an Article II Nondelegation Doctrine, 11 U. Pa. J. Const. L. 781, 837 (2008)).

There is nothing stopping private enforcers of public statutes from selecting their targets for improper reasons,

like the resources the defendant has available to fight the

allegation, whether the defendant is a competitor to a

friend’s or family member’s business, or even the defendant’s political stances.

This unconstrained discretion is particularly problematic with respect to the CWA because that law imposes

“crushing” consequences “even for inadvertent violations.” U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S.

590, 602 (2016) (Kennedy, J., concurring). “The availability of civil penalties vastly disproportionate to the individual injury gives citizen plaintiffs massive bargaining

power—which is often used to achieve settlements requiring the defendant to support environmental projects of

the plaintiffs’ choosing.” Laidlaw, 528 U.S. at 209-10

(Scalia, J., dissenting) (describing the result as “a public

fine diverted to a private interest”).

This case is an example of a private entity exercising

that unconstrained discretion under the CWA to act

where the Executive has not. The Executive chose not to

prosecute Petitioner for his dredge mining. In 2014, the

EPA sent Petitioner a notice of violation. App. 52a-53a.

Petitioner responded to the notice by disputing that the

CWA required him to obtain a permit. Id. And the EPA

never followed-up. That is unsurprising. Petitioner’s conduct is precisely the type that the Executive reasonably

does not prosecute because the violation is predominantly

on paper and does not cause meaningful environmental

harm. The district court made this clear, explaining that

“it is important to keep in mind that suction dredge mining is allowed on the [river]. In other words, this is not a

case of [Petitioner] suction dredge mining at a time and

13

place where it was not lawfully permitted.” Idaho Conservation League v. Poe, No. 1:18-CV-353-REP, 2022 WL

4536465, at *12 (D. Idaho Sept. 28, 2022). Rather, this is

merely a case of an individual engaging in activity without

completing the proper federal paperwork (on his attorney’s advice), even as he obtained a state permit for that

same activity. Id. The EPA could have decided to prosecute this supposed offense. It did not. And the only reason

Petitioner has had to defend himself for years in court,

and is now subject to a judgment requiring him to pay

$150,000 to the United States Treasury (App. 60a) is because a policy-oriented private entity decided that he

should. 3

B. This Court should grant the petition to constrain private attorneys general under the

CWA.

The question presented in this petition for certiorari—

whether resuspending material in a riverbed that was already there constitutes the “discharge of a pollutant” under the CWA—is an issue of statutory interpretation important not only for the substance of the CWA, but for its

citizen-suit provision. That is because, when private entities with ideological or policy agendas and no political accountability enforce laws like the CWA, they have every

incentive to push expansive views of the statute’s substantive provisions, as Respondent did here. This Court’s review is needed to ensure that the broadest possible constructions of a substantive law favored by the most aggressive private enforcers of that law do not supersede

Congress’s intent, especially where that construction will

open the door to more private actions that are inconsistent

with Article II.

Respondent is also seeking over $250,000 in attorneys’ fees. See

ECF Dkt. Entry 81.

3

14

Moreover, this Court’s review is necessary because of

the way in which the lower court here resolved this statutory interpretation question. The decision below relied on

Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990), which deferred under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), to the EPA’s

interpretation that resuspending existing material constitutes an “addition” of a pollutant under the CWA. App. 8a.

Although this Court has instructed courts to give deference to reasonable federal agency interpretations in certain circumstances, doing so in the face of a broad citizensuit provision intensifies the Article II problems discussed above. When the EPA broadly reads the CWA, or

any other act with a citizen-suit provision, it inevitably invites additional private suits attempting to enforce that

broad interpretation of the law in circumstances where

the EPA is unwilling to enforce itself. Such an interpretation, therefore, delegates even further enforcement authority to politically unaccountable organizations, in tension with Article II vesting the executive power solely

with the President.

CONCLUSION

The Court should grant the petition for a writ of certiorari.

15

Respectfully submitted,

Karen R. Harned

Executive Director

CENTER FOR

CONSTITUTIONAL

RESPONSIBILITY

4532 Cherry Hill Road,

No. 538

Arlington, VA 22207

Steven P. Lehotsky

Counsel of Record

LEHOTSKY KELLER

COHN LLP

200 Massachusetts Ave. NW

Washington, DC 20001

(512) 693-8350

steve@lkcfirm.com

Andrew B. Davis

LEHOTSKY KELLER

COHN LLP

408 W. 11th St., 5th Floor

Austin, TX 78701

Counsel for Amicus Curiae

APRIL 18, 2024