Amicus Curiae Brief — City and County of San Francisco, California, Petitioner v. Environmental Protection Agency

No. 23-753

In the Supreme Court of the United States

CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,

PETITIONER,

v.

ENVIRONMENTAL PROTECTION AGENCY.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL

MINING ASSOCIATION, ET AL.,

SUPPORTING PETITIONER

TAWNY BRIDGEFORD

CAITLIN MCHALE

NATIONAL MINING

ASSOCIATION

101 Constitution Avenue,

NW, Suite 500 East

Washington, DC 20001

Counsel for Amicus

Curiae National Mining

Association

MISHA TSEYTLIN

Counsel of Record

SEAN T.H. DUTTON

ABBEY M. THORNHILL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae

(Additional counsel listed on inside cover.)

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

ERICA KLENICKI

MICHAEL A. TILGHMAN II

NAM LEGAL CENTER

733 Tenth Street, NW

Suite 700

Washington, DC 20001

Counsel for Amicus

Curiae the Chamber of

Commerce of the United

States of America

Counsel for Amicus

Curiae National

Association of

Manufacturers

LEAH PILCONIS

ASSOCIATED GENERAL

CONTRACTORS OF AMERICA

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

MICHAEL FORMICA

NATIONAL PORK

PRODUCERS COUNCIL

122 C Street, NW

Suite 875

Washington, DC 20001

Counsel for Amicus

Curiae the Associated

General Contractors of

America

Counsel for Amicus

Curiae National Pork

Producers Council

QUESTION PRESENTED

Whether the Clean Water Act allows EPA (or an

authorized State) to impose generic prohibitions in

NPDES permits that subject permitholders to

enforcement for exceedances of water quality

standards without identifying specific limits to which

their discharges must conform.

ii

TABLE OF CONTENTS

Page

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

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

INTERESTS OF AMICI CURIAE ..............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................8

ARGUMENT .............................................................11

I.

The Ninth Circuit’s Ruling Harms The

Business Community And The Economy ......11

II. The Ninth Circuit’s Ruling Creates A Split

With The Second Circuit, While Conflicting

With The CWA’s Text And Design ................18

CONCLUSION ..........................................................23

iii

TABLE OF AUTHORITIES

Cases

Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs,

261 F.3d 810 (9th Cir. 2001)............................... 15

Cal. Sportfishing Prot. All. v. Chico

Scrap Metal, Inc.,

728 F.3d 868 (9th Cir. 2013)............................... 16

Cebollero-Bertran v. Puerto Rico Aqueduct

& Sewer Auth.,

4 F.4th 63 (1st Cir. 2021).................................... 16

E.I. du Pont de Nemours & Co. v. Train,

430 U.S. 112 (1977)....................................... 12, 17

EPA v. Cal. ex rel. State Water Res.

Control Bd.,

426 U.S. 200 (1976)................................. 11, 20, 22

Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp.,

629 F.3d 387 (4th Cir. 2011)............................... 16

La. Env’t Action Network v. City of Baton

Rouge,

677 F.3d 737 (5th Cir. 2012)............................... 16

Nat. Res. Def. Council v. EPA,

808 F.3d 556 (2d Cir. 2015) ...............10, 18, 19, 20

Nat. Res. Def. Council, Inc. v. Cnty. of L.A.,

725 F.3d 1194 (9th Cir. 2013)............................. 12

iv

Naturaland Tr. v. Dakota Fin. LLC,

41 F.4th 342 (4th Cir. 2022) ............................... 16

Nw. Env’t Advocs. v. City of Portland,

56 F.3d 979 (9th Cir. 1995)................................. 16

Ohio Valley Env’t Coal. v. Fola Coal Co.,

845 F.3d 133 (4th Cir. 2017)............................... 17

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

of Carroll Cnty., MD,

523 F.3d 453 (4th Cir. 2008)............................... 16

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

268 F.3d 255 (4th Cir. 2001)......................... 11, 17

S. River Watershed All., Inc. v. Dekalb

Cnty., Georgia,

69 F.4th 809 (11th Cir. 2023) ............................. 16

Sackett v. EPA,

598 U.S. 651 (2023)................................. 14, 15, 17

Sierra Club v. ICG Hazard, LLC,

781 F.3d 281 (6th Cir. 2015)............................... 12

Tex. Indep. Producers & Royalty Owners

Ass’n v. EPA,

435 F.3d 758 (7th Cir. 2006)............................... 13

Statutes And Rules

28 U.S.C. § 2462 ....................................................... 15

33 U.S.C. § 1311 ................................................. 17, 21

33 U.S.C. § 1319 ................................................. 14, 15

v

33 U.S.C. § 1342 ................................................. 11, 21

33 U.S.C. § 1343 ....................................................... 21

33 U.S.C. § 1344 ......................................................... 8

33 U.S.C. § 1365 ....................................................... 15

Federal Water Pollution Control Act, Pub.

L. 91-224, 84 Stat. 91 (1970) .............................. 20

Sup. Ct. R. 10 ........................................................... 18

Regulations

40 C.F.R. § 19.4 ........................................................ 15

40 C.F.R. § 122.1 ...................................................... 21

40 C.F.R. § 122.2 ...................................................... 21

40 C.F.R. § 122.44 .................................................... 21

40 C.F.R. § 122.45 .................................................... 21

45 Fed. Reg. 33,290 (May 19, 1980) ............ 11, 12, 17

Other Authorities

David Adelman & Jori Reilly-Diakun,

Environmental Citizen Suits and the

Inequities of Races to the Top, 92 U. Colo. L.

Rev. 377, 424 (2021)............................................ 17

James T. Lang, Citizens’ Environmental

Lawsuits, 47 Tex. Env’t L.J. 17 (2017)......... 15, 16

vi

U.S. Gov’t Accountability Off., Clean Water Act:

EPA Needs to Better Assess and Disclose

Quality of Compliance and Enforcement Data

(July 2021) .......................................................... 13

W.M. Stewart, et al., The Contribution of

Commercial Fertilizer Nutrients to Food

Production, Agronomy Journal, Jan. 2005 .......... 7

INTERESTS OF AMICI CURIAE1

Amici Curiae are leading national trade

associations whose members have long been impacted

by environmental laws and regulations on the

business community in general, including the mining,

energy, manufacturing, construction, chemical,

farming, and agricultural sectors. As relevant here,

Amici have members who are subject to National

Pollutant Discharge Elimination System (“NPDES”)

permits, many of which include generic conditions

like those at issue in this case. If the Ninth Circuit’s

decision stands, Amici’s members will likely see

drastically increased liability and exposure for

alleged violations of such permits.

The National Mining Association (“NMA”) is a

national trade association whose 280-plus members

include most of the producers of the Nation’s coal,

metals, agricultural, and industrial minerals; the

manufacturers of mining equipment; and other firms

serving the mining industry.

NMA’s members

produce a range of commodities, all of which are

essential to U.S. economic and national security,

1 Pursuant to this Court’s Rule 37.2, Amici provided timely

notice to all parties of their intent to file this amicus brief.

Further, pursuant to this Court’s Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part, and

that no entity or person, aside from Amici Curiae, their

members, or their counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

supply chain, and energy and infrastructure

priorities. The NMA is the only national trade

association that serves the voice of the U.S. mining

industry and the thousands of American workers it

employs before Congress, the federal agencies, and

the judiciary.

The American Chemistry Council (“ACC”)

represents the leading companies engaged in the

business of chemistry, which is a $639 billion

enterprise and a key element of the Nation’s economy.

ACC participates on behalf of its members in

administrative proceedings and in litigation arising

from those proceedings.

The American Farm Bureau Federation (“AFBF”)

was formed in 1919 and is the largest nonprofit

general farm organization in the United States.

Representing about six million member families in all

50 States and Puerto Rico, AFBF’s members grow and

raise every type of agricultural crop and commodity

produced in the United States. AFBF’s mission is to

protect, promote, and represent the business,

economic, social, and educational interests of

American farmers and ranchers. To that end, AFBF

regularly participates in litigation, including as an

amicus in this and other courts.

The American Forest & Paper Association

(“AF&PA”) serves to advance U.S. paper and wood

products manufacturers through fact-based public

policy and marketplace advocacy. The forest products

3

industry is circular by nature. AF&PA member

companies make essential products from renewable

and recyclable resources, generate renewable

bioenergy, and are committed to continuous

improvement through the industry’s sustainability

initiative—Better Practices, Better Planet 2030:

Sustainable Products for a Sustainable Future. The

forest products industry accounts for approximately

five percent of the total U.S. manufacturing GDP,

manufactures about $350 billion in products

annually, and employs about 925,000 people. The

industry meets a payroll of about $65 billion annually

and is among the top 10 manufacturing sector

employers in 43 States.

The

American

Fuel

and

Petrochemical

Manufacturers (“AFPM”) is the leading trade

association for the domestic refining and

petrochemical industry, and its members produce

most of the refined petroleum products and

petrochemicals manufactured in the United States.

The American Gas Association (“AGA”)

represents critical domestic infrastructure—namely,

local natural gas distribution companies that deliver

natural gas to homes and businesses. AGA, founded

in 1918, represents more than 200 local energy

companies that deliver clean natural gas throughout

the United States. There are more than 77 million

residential, commercial, and industrial natural gas

customers in the United States, of which 96 percent—

more than 74 million customers—receive their gas

4

from AGA members. AGA and its members advocate

for the safe, reliable, and environmentally responsible

delivery of natural gas across the country. Today,

natural gas meets nearly one-third of the United

States’ energy needs.

The Associated General Contractors of America

(“AGC of America”) is the Nation’s leading

construction trade association. AGC of America

represents more than 27,000 firms through a network

of chapters in all 50 States, the District of Columbia,

and Puerto Rico. AGC of America’s commercial

construction firms are engaged in building, heavy,

civil, industrial, utility, and other construction for

both public and private property owners and

developers. These construction activities on land and

water often require Clean Water Act permits before

proceeding.

The American Petroleum Institute (“API”) is a

national trade association that represents all

segments of America’s natural gas and oil industry,

which supports nearly 11 million U.S. jobs and is

backed by a growing grassroots movement of millions

of Americans. API’s nearly 600 member companies

produce, process, and distribute the majority of the

Nation’s energy. API was formed in 1919 as a

standards-setting organization and has developed

more than 800 standards to enhance operational and

environmental safety, efficiency, and sustainability.

5

The Chamber of Commerce of the United States

of America (“Chamber”) is the world’s largest

business federation. It represents approximately

300,000 direct members and indirectly represents the

interests of more than 3 million companies and

professional organizations of every size, in every

industry sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts. To

that end, the Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of

concern to the Nation’s business community.

The National Association of Home Builders of the

United States (“NAHB”) is a Washington, D.C.-based

trade association whose mission is to enhance the

climate for housing and the building industry.

Founded in 1942, NAHB is a federation of more than

800 state and local associations. About one-third of

NAHB’s more than 140,000 members are home

builders or remodelers, who construct 80 percent of all

new homes in the United States.

The National Association of Manufacturers

(“NAM”) is the largest manufacturing association in

the United States, representing small and large

manufacturers in all 50 States and in every industrial

sector. Manufacturing employs 13 million men and

women, contributes $2.85 trillion to the U.S. economy

annually, has the largest economic impact of any

major sector, and accounts for over half of all private-

6

sector research and development in the Nation. The

NAM is the voice of the manufacturing community

and the leading advocate for a policy agenda that

helps manufacturers compete in the global economy

and create jobs across the United States.

The National Federation of Independent Business

Small Business Legal Center, Inc. (“NFIB Legal

Center”) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the Nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (“NFIB”),

which is the Nation’s leading small business

association. NFIB’s mission is to promote and protect

the rights of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

The National Pork Producers Council (“NPPC”) is

an association of 43 state pork producer organizations

and the global voice in Washington, D.C. for the

Nation’s nearly 60,000 pork producers.

NPPC

conducts public policy outreach at both the state and

federal level with a goal of meeting growing

worldwide demand for pork while simultaneously

protecting animal welfare and the capital resources of

pork producers and their farms. More broadly, NPPC

and its members throughout the United States work

to promote the social, environmental, and economic

7

sustainability of U.S. pork producers and their

partners. As part of that mission, it regularly

participates as an amicus in court proceedings.

The Southeastern Lumber Manufacturers

Association is a trade organization established in

1962 to promote family-owned lumber businesses.

The Association represents lumber manufacturers in

17 States, primarily in the South. With an emphasis

on government affairs, marketing, management, and

operational issues, the Association offers programs to

support independent lumber manufacturers.

The Fertilizer Institute (“TFI”) represents

companies engaged in all aspects of the United States’

fertilizer supply chain. The industry is essential to

ensuring farmers receive the nutrients needed to

enrich soil and grow the crops that feed our Nation

and the world. Fertilizer is critical to feeding a

growing global population, which is expected to

surpass 9.5 billion people by 2050. Half of all grown

food around the world today is made possible through

the use of fertilizer production in the United States

and foreign markets.2 The U.S. fertilizer sector is

comprised of producers, importers, wholesalers, and

retailers. The industry supports 487,000 American

jobs with annual wages in excess of $34 billion.

W.M. Stewart, et al., The Contribution of Commercial

Fertilizer Nutrients to Food Production, Agronomy Journal,

Jan. 2005, at 1–6.

2

8

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 1972, Congress replaced the Federal Water

Pollution Control Act with the Clean Water Act

(“CWA”), overhauling the Nation’s clean water

regulatory framework. As part of this sea change,

Congress created the National Pollutant Discharge

Elimination System (“NPDES”) permit program,

solving many of the compliance and enforcement

difficulties with the prior statutory regime.3 The

NPDES program is a critically important, central

aspect of the CWA, with over 330,000 facilities

nationwide maintaining active NPDES permits.

Under this program, a project operator responsible for

a discharge applies for a permit either to the State or

to the U.S. Environmental Protection Agency (“EPA”),

depending on the applicable regulatory agency. The

CWA then requires the State or EPA to establish

effluent limits that permittees must meet to comply

with applicable water quality standards, specifying

such limitations in the text of each permit.

An NPDES permit serves the dual purposes of

protecting water quality and offering permittees

security under the CWA’s “Permit Shield” for actions

that conform to the permit. Permittees that comply

3 While similar, the NPDES program differs from the CWA’s

Section 404 permit program, which deals only with dredged or

fill material into navigable waters of the United States at

specified sites. 33 U.S.C. § 1344.

9

with their NPDES permits know that they cannot be

sued based upon allegations that their permitted

discharges nevertheless violated the CWA.

The Ninth Circuit’s decision upholding generic

conditions within NPDES permits—such as those

that simply require the permittee to ensure that its

discharges do not contribute to a violation of water

quality standards in any receiving water—undercuts

the NPDES program, including the Permit Shield.

For an NPDES permit to provide the permittee with

the certainty that the CWA promises, the permit

conditions must be expressed in numeric discharge

limits or at least be specific enough for operators to

know what operational actions or management

practices they must employ to ensure compliance.

EPA has promulgated regulations specifying how

those effluent limitations are to be derived by permit

writers. But under the generic conditions that the

Ninth Circuit approved, no predictability is possible.

After all, any amount of discharge into a receiving

water could contribute (or not) to a violation of water

quality standards and thus potentially violate a

generic condition, subjecting the permittee to a

potentially ruinous enforcement action or citizen suit.

Amici represent nearly every business sector

across the U.S. economy and are concerned about the

devastating consequences of the Ninth Circuit’s

wrongheaded decision, which approves such generic

conditions. Congress created the CWA’s Permit

Shield to allow regulators to impose the specific

10

effluent limitations that are necessary to protect

water quality, while providing permittees fair notice

of their regulatory obligations and security from

unexpected CWA liability.

The Ninth Circuit’s

decision effectively eliminates these protections in the

Nation’s largest circuit because operators now cannot

know whether they are complying with their permits.

In blessing the generic prohibitions at issue in

this case, the Ninth Circuit also split with the Second

Circuit, while contradicting the text and core design

of the CWA. The Second Circuit in Natural Resources

Defense Council v. EPA, 808 F.3d 556 (2d Cir. 2015)

(“NRDC”), correctly rejected just these kinds of

generic limitations, holding that NPDES permits

must provide permittees with specific guidance as to

what discharges they may make to comply. Congress

made clear in the CWA that permittees need not work

backwards from established water quality standards

to determine the lawful level of discharge into a

receiving water. EPA’s conditions in this case do just

that, requiring Petitioner to determine (somehow) the

lawful levels of discharge based on the relevant

receiving water’s current water quality, rather than

providing Petitioner with appropriate discharge

limits.

This Court should grant the Petition.

11

ARGUMENT

I.

The Ninth Circuit’s Ruling Harms The

Business Community And The Economy

The Ninth Circuit’s blessing of generic conditions

in NPDES permits will cause widespread regulatory

uncertainty and litigation risk for the business

community, undermining the core purpose of the

NPDES permitting program and the Permit Shield.

Amici’s members, who represent virtually every

part of the U.S. economy, rely on a clear and

predictable permitting process to operate their

businesses with confidence, including the CWA’s

critically important Permit Shield. Under the CWA,

“[c]ompliance with a permit issued” pursuant to

Section 1342 “shall be deemed compliance” with

various substantive provisions of the CWA, 33 U.S.C.

§ 1342, “plac[ing] the burden on permit writers rather

than permittees to search through the applicable

regulations and correctly apply them to the permittee

through its permit,” 45 Fed. Reg. 33,290, 33,312 (May

19, 1980).

In other words, with some limited

exceptions, “if a permit holder discharges pollutants

precisely in accordance with the terms of its permit,

the permit will ‘shield’ its holder from CWA liability.”

Piney Run Pres. Ass’n v. Cnty. Comm’rs, 268 F.3d 255,

266 (4th Cir. 2001); see also EPA v. Cal. ex rel. State

Water Res. Control Bd., 426 U.S. 200, 205 (1976). The

“purpose” of the Permit Shield is “to insulate permit

holders from changes in various regulations during

12

the period of a permit and to relieve them of having to

litigate in an enforcement action the question

whether their permits are sufficiently strict.” E.I. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 138

n.28 (1977). The Permit Shield “affords consistent

treatment to NPDES permit holders nationwide,”

Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 291

(6th Cir. 2015), and works as a “major benefit to a

permittee because it protects the permittee from any

obligation to meet more stringent limitations

promulgated by the EPA unless and until the permit

expires,” Nat. Res. Def. Council, Inc. v. Cnty. of L.A.,

725 F.3d 1194, 1204 (9th Cir. 2013) (citations

omitted). Permit holders can look to their permits

and understand what they need to do to comply with

the law, offering certainty and “finality.” E.I. du Pont

de Nemours, 430 U.S. at 138 n.28.

EPA has recognized this important aspect of the

NPDES permit program. As EPA explained, the

purpose of an NPDES permit “is to prescribe with

specificity the requirements that a facility will have

to meet . . . so that the facility can plan and operate

with knowledge of what rules apply,” while allowing

“the permitting authority [to] redirect its standardsetting efforts elsewhere.” 45 Fed. Reg. at 33,312.

“[A] permittee may rely on its [ ] permit document to

know the extent of its enforceable duties.” Id.

NPDES permits have become ubiquitous. The

federal government estimates that more than 330,000

project operators nationwide maintained active

13

NPDES permits in fiscal year 2020. U.S. Gov’t

Accountability Off., Clean Water Act: EPA Needs to

Better Assess and Disclose Quality of Compliance and

Enforcement Data 7 (July 2021).4 This includes

operators that maintain individual permits governing

their own activities and many other permittees

covered by “general permits,” id., which States or EPA

issues “for specific types of activities [that] establish[ ]

specific rules for complying with the permit” for all

regulated entities engaging in that activity, Tex.

Indep. Producers & Royalty Owners Ass’n v. EPA, 435

F.3d 758, 761 (7th Cir. 2006) (citation omitted). The

statutory scheme of permits that contain specific

effluent limitations, combined with a provision

providing that compliance with such limitations

shields permittees from liability, affords Amici’s

members and other operators the predictability that

they

need

to

deliver

the

transportation,

infrastructure,

manufacturing,

agriculture

production, and investment in U.S. operations that

are essential to the Nation’s well-being.

But given the increasingly “frequent[ ]” use of

generic permit conditions, App.34, as well as the

Ninth Circuit’s decision approving of such conditions,

many permittees will no longer enjoy the recognized

benefits of obtaining an NPDES permit. As a

practical matter, when an operator discharges a

pollutant, its permit application will identify the

pollutant, the State or EPA will consider the pollutant

4 Available at https://www.gao.gov/assets/gao-21-290.pdf.

14

and any data on discharges, and the relevant agency

will establish an effluent limitation based on: (i) the

operator’s likely discharge and (ii) either the

application of a technology-based effluent limit or the

development of a water quality-based limit reflecting

the level of pollutant the receiving water can

assimilate before such waters cannot achieve water

quality standards. If the permit application is tied to

the construction of a new facility, the permit

conditions and effluent limitations will bear greatly

on how the permittee designs its operational and

treatment systems to ensure compliance with the

permit. A permittee may even alter its raw material

inputs and processing technology to minimize the

presence of certain expensive-to-treat pollutants that

may be strictly limited by an NPDES permit.

Permittees can spend millions or even billions of

dollars designing and building wastewater treatment,

storage, and management systems in reliance on their

permits. Vague permit requirements undercut those

investments and leave permittees vulnerable to

“crushing consequences,” App.65 (Collins, J.,

dissenting) (quoting Sackett v. EPA, 598 U.S. 651, 660

(2023)), despite their best efforts at compliance.

The consequences can indeed be “crushing.” Id.

The CWA creates the potential for criminal liability

for mere negligent discharge of “pollutants,”

attaching “severe criminal penalties including

imprisonment.” Sackett, 598 U.S. at 660 (citing 33

U.S.C. § 1319).

On the civil side, “expansive

interpretations of the term ‘violation,’” in addition to

15

a lengthy five-year statute of limitations period, also

increase operators’ potential exposure in the face of

civil penalties, which “can be nearly as crushing as

their criminal counterparts.” Id. (citing 28 U.S.C.

§ 2462; Borden Ranch P’ship v. U.S. Army Corps of

Eng’rs, 261 F.3d 810, 813, 818 (9th Cir. 2001)).

Section 1319 authorizes civil penalties of more than

$66,000 per day a permittee remains in “violation,” in

addition to injunctive relief, which, depending on the

nature of the injunctive relief, may come at significant

cost. 33 U.S.C. § 1319(b), (d); 40 C.F.R. § 19.4. With

its “capacious definition of ‘pollutant,’ its low mens

rea, and its severe penalties,” “[t]he CWA is a potent

weapon.” Sackett, 598 U.S. at 660.

In addition, the CWA authorizes “citizen suits,”

such that even if regulators do not choose to pursue

an enforcement action, a permittee may still be forced

to defend itself in court for potential permit violations.

Under Section 1365, the CWA authorizes “any

citizen” to “commence a civil action on his own behalf”

“against any person” for violation of CWA effluent

standards or limitations placed on permits. 33 U.S.C.

§ 1365(a). Like States and EPA, citizens may seek the

“crushing” civil penalties assessed on a per-day basis,

Sackett, 598 U.S. at 660, and injunctive relief, 33

U.S.C. § 1365(a), as well as litigation costs, id.

§ 1365(d), an incentive for bringing suit, see James T.

Lang, Citizens’ Environmental Lawsuits, 47 Tex.

Env’t L.J. 17, 22 (2017). Citizen suits have thus

16

become commonplace,5 increasing permittees’

exposure in addition to their expected litigation costs.

“The legal and scientific complexity inherent” in

CWA litigation “drives up cost,” often requiring

consultants, testifying experts, and laboratory

testing, in addition to attorneys’ fees and other

traditional litigation costs. Lang, supra, at 22–23.

The complexity is even greater in cases where a

plaintiff claims a violation not of specific numerical

effluent limits but instead of generic conditions,

which involve a much more complex question of

whether a discharge is contributing to a violation of

water quality standards in a receiving water like the

Pacific Ocean. In the face of such a citizen suit, a

permittee will have to pay its own litigation costs,

and, if found liable, may face crippling civil penalties,

injunctive terms requiring additional expenditures,

and even the payment of a plaintiffs’ own costs. See

David Adelman & Jori Reilly-Diakun, Environmental

See, e.g., S. River Watershed All., Inc. v. Dekalb Cnty.,

Georgia, 69 F.4th 809 (11th Cir. 2023); Naturaland Tr. v. Dakota

Fin. LLC, 41 F.4th 342 (4th Cir. 2022); Cebollero-Bertran v.

Puerto Rico Aqueduct & Sewer Auth., 4 F.4th 63 (1st Cir. 2021);

Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d

868 (9th Cir. 2013); La. Env’t Action Network v. City of Baton

Rouge, 677 F.3d 737 (5th Cir. 2012); Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp., 629 F.3d 387 (4th Cir. 2011);

Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., MD, 523

F.3d 453 (4th Cir. 2008); Nw. Env’t Advocs. v. City of Portland,

56 F.3d 979 (9th Cir. 1995).

5

17

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

U. Colo. L. Rev. 377, 424 (2021).

This case exemplifies problems that Amici’s

members face under the Ninth Circuit’s approach.

Petitioner cannot translate the generic conditions in

its NPDES permit into numeric discharge limits or

definitive actions, requirements, or practices that

Petitioner may reference to “know the extent of its

enforceable duties.”

45 Fed. Reg. at 33,312.

Petitioner cannot look to its permit and know whether

its discharges are “precisely in accordance with” its

terms. Piney Run, 268 F.3d at 266. After all,

depending on the pollution levels of the receiving

water, any amount of discharge of certain pollutants

could “contribute” to a violation of water quality

standards. App.65 (Collins, J., dissenting). Without

specific

permit

conditions

establishing

the

“limitations” necessary “to implement any applicable

water quality standard,” 33 U.S.C. § 1311(b)(1)(C),

Petitioner may not know whether a discharge violates

its NPDES permit until after the discharge is made,

Petitioner is sued, and a reviewing court determines

the precise level of discharge that may contribute to a

violation of a water quality standard, see, e.g., Ohio

Valley Env’t Coal. v. Fola Coal Co., 845 F.3d 133, 136–

38 (4th Cir. 2017). Petitioner’s permit provides it no

“finality,” E.I. du Pont de Nemours, 430 U.S. at 138

n.28, and leaves Petitioner exposed to enormous

liability and “‘crushing consequences’ . . . ‘even for

inadvertent violations.’”

App.65 (Collins, J.,

dissenting) (quoting Sackett, 598 U.S. at 660).

18

II. The Ninth Circuit’s Ruling Creates A Split

With The Second Circuit, While Conflicting

With The CWA’s Text And Design

As Petitioner well explains, Pet.21–27, the Ninth

Circuit’s decision also creates a split with the Second

Circuit and contradicts the CWA.

A. The Ninth Circuit majority’s decision below

conflicts with the Second Circuit’s holding that

generic conditions instructing permittees to “comply

with water quality standards” are not permissible in

NPDES permits. See Sup. Ct. R. 10(a).

In NRDC, the Second Circuit decided whether

EPA could regulate the discharge of ballast water

from ships with a permit condition requiring that any

“discharge must be controlled as necessary to meet

applicable water quality standards in the receiving

water body or another water body impacted by [the]

discharges.” 808 F.3d at 577–78. The Second Circuit

held that EPA’s imposition of this generic condition

was unlawful because the condition did not “ensure

compliance with water quality standards” and failed

to “giv[e] specific guidance on the discharge limits”

applicable to the permittee. Id. NRDC explained that

a critical problem was that the generic condition was

“insufficient to give a [permittee] guidance as to what

is expected or to allow any permitting authority to

determine whether a [permittee] is violating water

quality standards.” Id. at 578. Instead, the condition

19

simply instructed the permittee to comply with any

applicable water quality standards. Id.

In blessing EPA’s NPDES permit here, the Ninth

Circuit split with the Second Circuit regarding

whether it is permissible for States and EPA to

impose generic prohibitions as a part of the NPDES

permitting program. The panel majority held that the

generic prohibitions “are consistent with the CWA

and its implementing regulations” because they

“simply require that [Petitioner]’s discharges comply

with applicable state [water quality standards],” a

requirement that “is frequently employed by EPA in

other NPDES permits.” App.34. That is contrary to

the Second Circuit’s holding that NPDES permits

must “giv[e] specific guidance on the discharge limits”

applicable to a permittee to “ensure compliance.”

NRDC, 808 F.3d at 578. And the “frequen[cy],”

App.34, of these generic conditions in NPDES permits

is a powerful reason for this Court’s review.

The Ninth Circuit tried to distinguish the Second

Circuit’s decision in NRDC by reasoning that the

NRDC

challenger

sought

“more

stringent

enforcement than the EPA required,” whereas, here,

Petitioner “seeks less stringent enforcement.”

App.35. But the question in both cases is the same:

whether a generic NPDES condition complies with

the CWA. Just like the challenged provision in

NRDC, the generic conditions in the present case

require the permittee to prevent the receiving waters

from exceeding water quality standards, App.22,

20

rather than providing the permittee actual “guidance

as to what is expected” for controlling its own

discharge to achieve compliance with the CWA,

NRDC, 808 F.3d at 578. By allowing these generic

conditions that do not “give a [permittee] guidance as

to what is expected or . . . allow any permitting

authority to determine whether a [permittee] is

violating water quality standards,” id. at 577–78, the

Ninth Circuit created a clear circuit split.

B. The Ninth Circuit’s approval of generic

NPDES conditions violates the CWA, reviving a core

aspect of the pre-CWA regulatory regime that

Congress deliberately rejected in 1972.

The CWA’s predecessor, the Federal Water

Pollution Control Act, Pub. L. 91-224, 84 Stat. 91

(1970), differed fundamentally from the CWA in a

respect directly relevant here. Under the Federal

Water Pollution Control Act’s now-repealed regime,

regulatory agencies focused on managing polluted

waters, rather than preventing pollution in the first

place, and routinely found themselves “work[ing]

backward from an overpolluted body of water to

determine which point sources [were] responsible and

which must be abated.” Cal. ex rel. State Water Res.

Control Bd., 426 U.S. at 204. Acknowledging the

significant flaws in this approach, Congress adopted

the CWA regulatory framework in 1972 and created

the NPDES permit program. Id.

21

The CWA’s new permit-based system focuses on

limiting the level of effluent that may be discharged

from a point source.

33 U.S.C. §§ 1311(a)–(b),

1342(a); 40 C.F.R. § 122.1(b)(1). For any operator to

“discharge . . . any pollutant,” that operator must

receive an NPDES permit, 33 U.S.C. §§ 1311(a)–(b),

1342(a), which permit must ensure that the discharge

of a pollutant satisfies water quality standards, id.

§§ 1342(a), 1343. A permit, in turn, must sufficiently

describe any “limitation” that is “required to

implement any applicable water quality standard

established pursuant to this chapter.”

Id.

§ 1311(b)(1)C).

EPA regulations define effluent

limitations as “any restriction imposed . . . on

quantities, discharge rates, and concentrations of

‘pollutants’ which are ‘discharged’ from ‘point sources’

into ‘waters of the United States.’” 40 C.F.R. § 122.2.

Effluent limitations are commonly expressed either

numerically, as the maximum amount of pollutant

that a permittee may discharge, id. § 122.45(f); see

also 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.44(d),

or by imposition of “best management practices”

through specific schedules of activities, prohibition of

practices, maintenance procedures, and specific

operational mandates or prohibitions where numeric

effluent limitations are not feasible, 40 C.F.R.

§§ 122.2, 122.44(k)(3). Despite the Ninth’s Circuit’s

conflation of the terms, “effluent limitations” are

different than “water quality standards”—effluent

limitations are the specific limits and/or tools

necessary to ensure compliance with water quality

standards.

Here, EPA did not provide specific

22

effluent limitations, guidance, or best management

practices to ensure that Petitioner’s discharges would

comply with its NPDES permit.

The Ninth Circuit’s blessing of generic conditions

violates the CWA’s mandatory framework. EPA in

this case imposed generic conditions requiring the

permittee to prevent the receiving waters from

exceeding water quality standards, thereby forcing

Petitioner to “work backward[s]” from acceptable

pollution levels to Petitioner’s own discharges, rather

than “defin[ing]” appropriate discharge limits and

“facilitat[ing]” compliance with the CWA. Cal. ex rel.

State Water Res. Control Bd., 426 U.S. at 204, 205.

EPA’s permit tied Petitioner’s CWA compliance to the

ultimate water quality standards, not to any specific

effluent limitation or demonstrable best management

practice.

App.31–36.

Indeed, any amount of

discharge into a receiving water “taken together with

any other sources of pollution” could cause or

contribute to that water violating applicable

standards. See App.64–65 (Collins, J., dissenting). In

allowing such generic conditions within NPDES

permits, the Ninth Circuit violated the statutory

requirement that States and EPA issue NPDES

permits that ensure permittees can demonstrate

compliance with effluent limitations or best

management practices, and therefore show that they

are not violating water quality standards.

23

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

TAWNY BRIDGEFORD

CAITLIN MCHALE

NATIONAL MINING

ASSOCIATION

101 Constitution Avenue,

NW, Suite 500 East

Washington, DC 20001

Counsel for Amicus

Curiae National Mining

Association

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus

Curiae the Chamber of

Commerce of the United

States of America

MISHA TSEYTLIN

Counsel of Record

SEAN T.H. DUTTON

ABBEY M. THORNHILL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae

ERICA KLENICKI

MICHAEL A. TILGHMAN II

NAM LEGAL CENTER

733 Tenth Street, NW

Suite 700

Washington, DC 20001

Counsel for Amicus

Curiae National

Association of

Manufacturers

24

LEAH PILCONIS

ASSOCIATED GENERAL

CONTRACTORS OF AMERICA

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

MICHAEL FORMICA

NATIONAL PORK

PRODUCERS COUNCIL

122 C Street, NW

Suite 875

Washington, DC 20001

Counsel for Amicus

Curiae the Associated

General Contractors of

America

Counsel for Amicus

Curiae National Pork

Producers Council

February 2024