Petition for Writ of Certiorari — Ohio, ex rel. Dave Yost, Attorney General of Ohio, Petitioner v. Rover Pipeline, LLC, et al.
Supreme Court briefApr 25, 2025
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No. _____
In the Supreme Court of the United States
______________________________
STATE OF OHIO, EX REL.
DAVE YOST, OHIO ATTORNEY GENERAL,
v.
Petitioner,
ROVER PIPELINE, LLC, ET AL.,
Respondents.
______________________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF OHIO
______________________________
PETITION FOR WRIT OF CERTIORARI
______________________________
DAVE YOST
Ohio Attorney General
T. ELLIOT GAISER*
Ohio Solicitor General
*Counsel of Record
ZACHERY P. KELLER
Deputy Solicitor General
AARON S. FARMER
MORGAN N. STARIC
Assistant Attorneys General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
thomas.gaiser@ohioago.gov
Counsel for Petitioner
Dave Yost, Ohio
Attorney General
QUESTIONS PRESENTED
1. Section 401 of the Clean Water Act preserves
state sovereignty by giving States a “certification” role
in federal licensing for proposed projects that might
pollute waterways through “any discharge into the
navigable waters.” 33 U.S.C. §1341(a)(1). Before an
applicant receives a license, a State must certify that
the discharge will comply with water-quality laws. Id.
A State waives this power if it “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.” Id. But the statute does not
define a “request” for purposes of calculating waiver.
Here, the Supreme Court of Ohio held that Ohio
waived its Section 401 power by failing to act within a
year of a company’s initial submission for certification, even though that submission was not “complete”
under existing law. See Ohio Rev. Code §6111.30(A)–
(B). As to waiver, this case presents this question:
To start the States’ waiver timeframe under 33
U.S.C. §1341(a)(1), must an applicant submit a
valid certification request that satisfies applicable legal requirements?
2. This Court has held that the Natural Gas Act
sometimes impliedly preempts state laws. But the
Natural Gas Act includes a saving clause, which says,
“Except as specifically provided in this chapter, nothing in this chapter affects the rights of States under”
the Clean Water Act. 15 U.S.C. §717b(d)(3). With respect to preemption, this case presents this question:
If a State waives its certification power under
33 U.S.C. §1341(a)(1), does it retain other
“rights … under” the Clean Water Act for purposes of 15 U.S.C. §717b(d)(3)?
ii
LIST OF PARTIES
The petitioner is the State of Ohio, which sued by
and through Dave Yost, the Ohio Attorney General.
The respondents are Rover Pipeline, LLC (“Rover”)
and Pretec Directional Drilling, LLC (“Pretec”).
iii
LIST OF DIRECTLY RELATED PROCEEDINGS
1. State of Ohio, ex rel., Michael DeWine, Ohio
Attorney General v. Rover Pipeline, LLC, et al.,
Case No. 2017CV02216 (Court of Common
Pleas, Stark County, Ohio) (case dismissed on
March 12, 2019 and October 20, 2023)
2. State of Ohio, ex rel., Dave Yost, Ohio Attorney
General v. Rover Pipeline, LLC, et al., Case No.
2019CA00056 (Ohio Ct. App. 5th Dist.)
(decision issued December 9, 2019).
3. State of Ohio, ex rel., Dave Yost, Ohio Attorney
General v. Rover Pipeline, LLC, et al., Case No.
2023CA00151 (Ohio Ct. App. 5th Dist.)
(decision issued October 1, 2024).
4. State of Ohio ex rel. Dave Yost, Ohio Attorney
General v. Rover Pipeline, LLC, et al., Case No.
2020-0091 (Ohio) (decision issued March 17,
2022).
5. State of Ohio, ex rel. Dave Yost Ohio Attorney
General v. Rover Pipeline, LLC, et al., Case No.
2024-1603
(Ohio)
(discretionary
review
declined on January 28, 2025).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
LIST OF PARTIES .....................................................ii
LIST OF DIRECTLY RELATED
PROCEEDINGS .................................................. iii
TABLE OF CONTENTS ............................................ iv
TABLE OF AUTHORITIES ...................................... vi
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 3
JURISDICTIONAL STATEMENT ............................ 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................... 4
STATEMENT .............................................................. 5
I.
Legal Framework. ......................................... 5
II.
Factual Background. ................................... 11
III. Proceedings below. ...................................... 13
REASONS FOR GRANTING THE WRIT ............... 16
I.
II.
The Court should resolve when the States’
waiver clock starts under Section 401. ....... 16
A.
The Supreme Court of Ohio’s decision
added to an existing conflict between
the Second and Fourth Circuits. ........... 16
B.
This question is important. ................... 20
C.
The decision below is wrong. ................. 22
The Court should resolve the effect of
waiver under Section 401. ........................... 28
v
A.
This question is important, as it
implicates the Clean Water Act’s
constitutionality. .................................... 29
B.
The decision below is wrong. ................. 31
CONCLUSION.......................................................... 37
APPENDIX:
Appendix A: Entry, Supreme Court of Ohio,
January 28, 2025 ...................................................... 1a
Appendix B: Opinion, Court of Appeals of Ohio,
Fifth Appellate District, October 1, 2024................. 2a
Appendix C: Judgment Entry, Court of Common Pleas, Stark County, Ohio, October 20,
2023 ......................................................................... 37a
Appendix D: Opinion, Supreme Court of Ohio,
March 17, 2022 ....................................................... 61a
Appendix E: Opinion, Court of Appeals of Ohio,
Fifth Appellate District, December 9, 2019 ........... 79a
Appendix F: Judgment Entry, Court of Common Pleas, Stark County, Ohio, March 12,
2019 ......................................................................... 96a
Appendix G: Fourth Amended Complaint,
Court of Common Pleas, Stark County, Ohio,
May 6, 2022 ........................................................... 109a
Appendix H: Select Statutory Provisions ........... 150a
vi
TABLE OF AUTHORITIES
Cases
Page(s)
AES Sparrows Point LNG, LLC v.
Wilson,
589 F.3d 721 (4th Cir. 2009) ..........2, 17, 18, 19, 20
Bond v. United States,
572 U.S. 844 (2014) ............................................. 29
Cal. State Water Res. Control Bd. v.
FERC,
43 F.4th 920 (9th Cir. 2022) ................................ 16
Chamber of Commerce of the United
States v. Whiting,
563 U.S. 582 (2011) ............................................. 31
Chevron USA, Inc. v. Natural Res.
Defense Council, Inc.,
467 U.S. 837 (1984) ....................................... 18, 19
City & Cnty. of San Francisco v. EPA,
145 S.Ct. 704 (2025) ............................ 5, 20, 23, 30
Cnty. of Maui v. Haw. Wildlife Fund,
590 U.S. 165 (2020) ............................................. 20
Coeur Alaska, Inc. v. Southeast Alaska
Conservation Council,
557 U.S. 261 (2009) ............................................. 20
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ............................................... 4
Decker v. Northwest Env’tl Def. Ctr.,
568 U.S. 597 (2013) ............................................. 20
vii
Dominion Transmission, Inc. v.
Summers,
723 F.3d 238 (D.C. Cir. 2013) ............................. 33
Dubin v. United States,
599 U.S. 110 (2023) ............................................. 22
Hoopa Valley Tribe v. FERC,
913 F.3d 1099 (D.C. Cir. 2019)............................ 16
Kansas v. Garcia,
589 U.S. 191 (2020) ............................................. 31
League of Cal. Cities v. FCC,
118 F.4th 995 (9th Cir. 2024) .............................. 23
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ....................................... 19, 24
Millennium Pipeline Co., LLC v. Seggos,
860 F.3d 696 (D.C. Cir. 2017) ............................. 17
Murphy v. NCAA,
584 U.S. 453 (2018) ............................................. 30
N.C. Dep’t of Env’tl Quality v. FERC,
3 F.4th 655 (4th Cir. 2021) .................................. 17
N.Y. State Dep’t of Env’tl Conservation
v. FERC,
884 F.3d 450 (2d Cir. 2018) ............2, 18, 19, 26, 27
Nat’l Ass’n of Mfrs. v. DOD,
583 U.S. 109 (2018) ....................................... 20, 32
NFIB v. Sebelius,
567 U.S. 519 (2012) ......................................... 3, 30
viii
Ohio ex rel. Omni Energy Grp., LLC v.
Ohio Dep’t of Nat. Res.,
164 Ohio St. 3d 470 (2020) .................................. 27
Oneok, Inc. v. Learjet, Inc.,
575 U.S. 373 (2015) ....................................... 28, 32
Pereira v. Sessions,
585 U.S. 198 (2018) ............................................. 32
Printz v. United States,
521 U.S. 898 (1997) ............................................. 30
PUD No. 1 v. Wash. Dep’t of Ecology,
511 U.S. 700 (1994) ............................................. 20
Rover Pipeline, LCC,
177 FERC ¶61182 (Dec. 16, 2021) ...................... 13
S. Fla. Water Mgmt. Dist. v. Miccosukee
Tribe of Indians,
541 U.S. 95 (2004) ............................................... 20
S.D. Warren Co. v. Me. Bd. of Env’tl
Prot.,
547 U.S. 370 (2006) ............................... 1, 5, 20, 36
Sackett v. EPA,
598 U.S. 651 (2023) ............................... 1, 5, 20, 29
Schneidewind v. ANR Pipeline Co.,
485 U.S. 293 (1988) ....................................... 28, 34
Shelby Cnty. v. Holder,
570 U.S. 529 (2013) ............................................. 22
ix
South Dakota v. Dole,
483 U.S. 203 (1987) ............................................. 30
Cal. ex rel. State Water Res. Control Bd.
v. FERC,
966 F.2d 1541 (9th Cir. 1992) ............................. 20
Transcont’l Gas Pipe Line Co., LLC v.
Pa. Env’tl Hearing Bd.,
108 F.4th 144 (3d Cir. 2024) ............................... 33
Trump v. Anderson,
601 U.S. 100 (2024) ............................................. 29
Williamson v. Mazda Motor of Am., Inc.,
562 U.S. 323 (2011) ............................................. 31
State ex rel. Yost v. Rover Pipeline, LLC,
167 Ohio St. 3d 223 (2022) .................................... 3
State ex rel. Yost v. Rover Pipeline, LLC,
2019-Ohio-5179 (5th Dist.) .................................... 3
State ex rel. Yost v. Rover Pipeline, LLC,
2024-Ohio-4769 (5th Dist.) .................................... 3
State ex rel. Yost v. Rover Pipeline, LLC,
2025-Ohio-231........................................................ 3
Statutes and Rules
6 C.F.R. §25.9 ............................................................ 25
7 C.F.R. §340.5 .......................................................... 25
7 C.F.R. §4280.110 .................................................... 25
10 C.F.R. §490.806 .................................................... 25
x
12 C.F.R. §251.4 ........................................................ 25
15 C.F.R. §400.38 ...................................................... 25
16 C.F.R. §1500.89 .................................................... 25
17 C.F.R. §1.9 ............................................................ 25
18 C.F.R. §4.34 .......................................................... 20
18 C.F.R. §5.23 .......................................................... 20
18 C.F.R. §6.1 ............................................................ 20
23 C.F.R. §661.25 ...................................................... 25
24 C.F.R. §242.16 ...................................................... 25
29 C.F.R. §4220.4 ...................................................... 25
32 C.F.R. §725.9 ........................................................ 25
33 C.F.R. §325.1 ........................................................ 25
33 C.F.R. §325.2 .................................................. 20, 25
33 C.F.R. §331.2 ........................................................ 10
40 C.F.R. 124.3 .......................................................... 24
40 C.F.R. §121.5 .................................................. 10, 20
40 C.F.R. §121.6 .................................................. 11, 20
40 C.F.R. §122.21 ...................................................... 24
40 C.F.R. §123.21 ........................................................ 8
40 C.F.R. §123.61 .................................................. 8, 25
xi
43 C.F.R. §3165.3 ...................................................... 25
47 C.F.R. §1.6100 ...................................................... 25
36 Fed. Reg. 8563 (May 8, 1971) ................................ 8
85 Fed. Reg. 42210 (July 13, 2020)
...............................................2, 8, 10, 21, 24, 26, 27
88 Fed. Reg. 66558 (Sept. 27, 2023)
.................................................2, 8, 9, 10, 11, 21, 24
15 U.S.C. §717b ........................5, 15, 29, 32, 33, 34, 35
15 U.S.C. §717f ......................................................... 11
15 U.S.C. §§717r ....................................................... 27
16 U.S.C. §1451 ......................................................... 32
28 U.S.C. §1257 ........................................................... 4
33 U.S.C. §1251 ......................................1, 6, 24, 32, 33
33 U.S.C. §1311 ....................................................... 6, 7
33 U.S.C. §1313 ........................................................... 6
33 U.S.C. §1341
........... 1, 2, 5, 6, 7, 11, 16, 20, 21, 22, 23, 28, 35, 36
33 U.S.C. §1342 ............................5, 7, 8, 24, 25, 30, 36
33 U.S.C. §1344 ......................................................... 17
33 U.S.C. §1361 ..................................................... 8, 24
33 U.S.C. §1370 ..................................................... 6, 32
xii
42 U.S.C. §4332 ......................................................... 11
42 U.S.C. §7401 ......................................................... 32
47 U.S.C. §1455 ......................................................... 25
Fed. R. Civ. P 7(b)(1)................................................. 23
Ohio Adm. Code §3745-1 ............................................ 6
Ohio Adm. Code §3745-33-02 ..................................... 8
Ohio Adm. Code §3745-39-04 ..................................... 8
Ohio Rev. Code §3745.04 .......................................... 27
Ohio Rev. Code §3745.06 .......................................... 27
Ohio Rev. Code §6111.04 ............................................ 8
Ohio Rev. Code §6111.07 ............................................ 8
Ohio Rev. Code §6111.30 ...........5, 9, 10, 12, 26, 27, 28
Ohio Rev. Code §6111.041 .......................................... 6
Other Authorities
Black’s Law Dictionary (12th ed. 2024) ................... 22
Clean Water Act Section 401 Water
Quality Certification: A Water
Quality Protection Tool for States
and Tribes (2010)................................................... 9
Clean Water Act Section 401 Guidance
for Federal Agencies, States and
Authorized Tribes (2019) ..................................... 10
xiii
FERC, All Civil Penalty Actions–2024 ..................... 35
Final Environmental Impact Statement
(July 29, 2016), FERC Docket CP1593, issuance 20160729-4001.......................... 11, 12
Horizontal Directional Drill Contignecy
Plan (April 2015), FERC Docket
CP15-93, issuance 20160729-4001 ..................... 11
Letter from Todd Surrena, Application
Coordinator, to Buffy Thomason,
Rover Pipeline LLC (Aug. 9, 2016) ..................... 12
Letter from Todd Surrena, Application
Coordinator, to Buffy Thomason,
Rover Pipeline LLC (Dec. 7, 2015) ...................... 12
Olivia Amitay, Five Clean Water Act
Success Stories, PBS (Feb. 24, 2023) .................... 1
U.S. EPA, NPDES State Program
Authority (Jan. 31, 2025)....................................... 8
Webster’s New International Dictionary
(2d ed. 1948)......................................................... 22
Wetlands and 401 Certification:
Opportunities Guidelines for States
and Eligible Indian Tribes (1989)................... 9, 24
INTRODUCTION
Faced with national concern about pollution in
America’s waters, Congress enacted the Clean Water
Act in 1972. The Act “has been a great success.” Sackett v. EPA, 598 U.S. 651, 658 (2023). Ohio can attest.
Before the Act, the Cuyahoga River repeatedly caught
fire due to rampant pollution. Fish could not live in
the river. But today, after decades of cleanup efforts,
Cleveland’s big river no longer burns. Many fish now
live there. They are even safe to eat. See Olivia
Amitay, Five Clean Water Act Success Stories, PBS
(Feb. 24, 2023), https://tinyurl.com/4fc7cmnk.
The Clean Water Act has been a success in another
sense: federalism. The Act exemplifies what the
States and federal government can accomplish when
working together. The Act sets national goals, but the
States retain the “primary responsibilit[y]” for combatting water pollution. 33 U.S.C. §1251(b).
Section 401 is one “essential” way by which the Act
strikes that balance. S.D. Warren Co. v. Me. Bd. of
Env’tl Prot., 547 U.S. 370, 386 (2006). The section assigns the States a “certification” role in federal licensing. 33 U.S.C. §1341(a)(1). In that capacity, the
States review projects that contemplate discharges
into their waters. But a State waives this certification
power if it “fails or refuses to act on a request for certification, within a reasonable period of time … after
receipt of such request.” Id.
This case concerns waiver under Section 401. In
2015, a company sought to build a natural-gas pipeline running through Ohio. The Buckeye State welcomed that energy development. But, during construction, the company illegally discharged millions of
gallons of diesel-laced fluid into Ohio waters. Ohio
2
sued, alleging unlawful water pollution. State courts
held, however, that Ohio waived its claims. Against
that backdrop, this petition presents two questions.
The first question asks when Section 401’s waiver
timeframe begins. The statute says that a “request”
triggers the timeframe. §1341(a)(1). But the statute
does not define that term. Must an applicant submit
a valid request—satisfying legal requirements—to
start the clock? Or does any expression of desire for
certification (regardless of form or content) count as a
request?
The circuits are split on the topic. Compare AES
Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721,
728–30 (4th Cir. 2009), with N.Y. State Dep’t of Env’tl
Conservation v. FERC, 884 F.3d 450, 455–56 (2d Cir.
2018) (“NYSDEC”). The Supreme Court of Ohio deepened the conflict. It held that an invalid request—
which failed to meet pre-existing state-law requirements—started Ohio’s waiver clock. That is wrong.
Reading the term “request” in context, Section 401 envisions a formal request process, not a standardless
regime. Below 22–28.
But whatever the answer, this question matters to
many entities: States exercising their certifying authority; federal agencies considering permits; regulated parties seeking certification; and any interested
citizen who might want to comment on a proposed project. Given these stakes, recent federal rulemakings
have also entered this fray. See 85 Fed. Reg. 42210
(July 13, 2020); 88 Fed. Reg. 66558 (Sept. 27, 2023).
The second question concerns the consequences of
waiver. After the Supreme Court of Ohio’s waiver decision, a court of appeals held that Ohio—by failing to
participate in the Section 401 process—entirely lost
3
its ability to protect its waters. The Clean Water Act,
the court reasoned, gives the States a “choice” to either participate in the Section 401 process or have
their traditional water authority preempted.
Pet.App.19a. But that is “no real option.” See NFIB
v. Sebelius, 567 U.S. 519, 582 (2012) (Roberts, C.J.,
op.). Under our constitutional structure, the federal
government cannot “dragoon[]” the States, id., by saying, “Your assistance or your sovereignty.”
For the Clean Water Act to remain a success, it
must not damage our federalist system. If the States
are to lose their traditional authority over their waters because of inaction, the terms of such waiver
must be clear. And the federal government cannot use
the States’ sovereignty as leverage to coerce state participation in a federal certification process. The Court
should grant this petition to clarify that the Clean Water Act follows these rules.
OPINIONS BELOW
The Supreme Court of Ohio’s decision regarding
waiver is published at State ex rel. Yost v. Rover Pipeline, LLC, 167 Ohio St. 3d 223 (2022), and reproduced
at Pet.App.61a. That court’s decision denying review
as to preemption is published at State ex rel. Yost v.
Rover Pipeline, LLC, 2025-Ohio-231, and reproduced
at Pet.App.1a.
The decisions of Ohio’s Fifth District Court of Appeals are published at State ex rel. Yost v. Rover Pipeline, LLC, 2019-Ohio-5179 (5th Dist.) and State ex rel.
Yost v. Rover Pipeline, LLC, 2024-Ohio-4769 (5th
Dist.) and reproduced at Pet.App.2a, 79a.
4
The dismissal entries of the Court of Common
Pleas for Stark County, Ohio are reproduced at
Pet.App.37a, 96a.
JURISDICTIONAL STATEMENT
Ohio sued Rover and its contractors in state court,
alleging unlawful water pollution. The trial court dismissed Ohio’s lawsuit, concluding that Ohio had
waived its Section 401 certification power.
Pet.App.108a.
The court of appeals affirmed.
Pet.App.94a. The Supreme Court of Ohio reversed
and remanded. It agreed that Ohio had waived its certification power, but it held that waiver did not necessarily defeat Ohio’s claims. Pet.App.69a–70a. Because the court remanded, that decision was not final.
28 U.S.C. §1257(a); see Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 476–83 (1975).
On remand, the trial court again dismissed Ohio’s
lawsuit, holding that the Natural Gas Act preempted
Ohio’s remaining claims. Pet.App.59a. The court of
appeals affirmed. Pet.App.36a. The Supreme Court
of Ohio declined review. Pet.App.1a. This Court has
jurisdiction under 28 U.S.C. §1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article VI, clause 2 of the United States Constitution provides:
This Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which shall
be made, under the Authority of the United
States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound
5
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
The following statutory provisions are included in
the appendix filed with this petition:
15 U.S.C. §717b(d);
33 U.S.C. §1341(a)(1);
33 U.S.C. §1342(a)–(d);
Ohio Rev. Code §6111.30(A).
STATEMENT
I.
Legal Framework.
A. “For most of this Nation’s history, the regulation
of water pollution was left almost entirely to the
States.” Sackett, 598 U.S. at 659. That began to
change in 1948, when the Federal Water Pollution
Control Act slightly adjusted the traditional balance.
That legislation gave federal officials some authority
to combat water pollution. Id. at 660. But it proved
ineffective. City & Cnty. of San Francisco v. EPA, 145
S.Ct. 704, 711 (2025).
Congress eventually enacted the Water Quality
Improvement Act of 1970. That legislation—although
mostly short lived—included a provision about federal
licensing for activities “that could cause a ‘discharge’
into navigable waters.” S.D. Warren, 547 U.S. at 374.
Congress conditioned such licenses on “certification
from the State” that the discharge would “not violate
certain water quality standards.” Id.
The sea change came next. In 1972, Congress enacted the Federal Water Pollution Control Act Amendments—better known as the “Clean Water Act.” The
Clean Water Act sets a “national goal” of eliminating
6
pollution and improving water quality. 33 U.S.C.
§1251(a). The Act prohibits “the discharge of any pollutant” into the waters of the United States “[e]xcept”
for those discharges that the Act authorizes. 33 U.S.C.
§1311(a).
The Clean Water Act depends on cooperative federalism. It “recognize[s], preserve[s], and protect[s]
the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution … of land and
water resources.” §1251(b). The States retain “the
right … to adopt or enforce” other limits on the “discharges of pollutants” into their waters. §1370. The
Act also delegates authority to the States in several
ways. Three sections of the Act warrant particular
emphasis.
Section 303. Section 303 tasks the State with developing water-quality standards. §1313(a). Those
standards set “the designated uses” of covered waters
and ensure that water quality is sufficient “to protect
the public health or welfare.” §1313(c)(2)(A). Acting
on that responsibility, the Ohio EPA has crafted water-quality standards for the State. Ohio Rev. Code
§6111.041; Ohio Adm. Code §3745-1.
Section 401. The Clean Water Act retained the
state-certification process that Congress created in
1970. Under Section 401, that certification process covers applications “for a Federal license or permit to
conduct any activity …, which may result in any discharge into the navigable waters.” §1341(a)(1). An
applicant must obtain “a certification from the State
in which the discharge … will originate.” Id. The
State must evaluate whether “any such discharge will
comply with the applicable provisions of” the Clean
Water Act. Id. It must then set any limitations and
7
requirements “necessary” to ensure compliance with
applicable water-quality laws. §1341(d). Those limitations and requirements “become a condition” of the
federal license or permit. Id.
Section 401 sets the timeframe by which the States
must complete this process. It says:
If 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.
§1341(a)(1). Thus, a State waives its certification
power if it fails to act within a reasonable time. Id. A
State’s waiver clock begins to run “after receipt” of the
relevant “request for certification.” Id. But the statute does not define “request.”
Section 402. Section 402 establishes a separate
permit process. That process—often called a “national
pollutant discharge elimination system” or “NPDES”
program—governs “the discharge of any pollutant”
from a point source into navigable waters.
§1342(a)(1). The Clean Water Act authorizes such discharges only if a person obtains a Section 402 permit.
§§1311(a), 1342.
As a default, the federal EPA runs the Section 402
program. §1342(a). But each State has the option to
run “its own permit program.” §1342(b). The EPA
“shall approve each” state program that meets certain
conditions. Id. For instance, a state program must
contain an enforcement plan, including “civil and
criminal penalties,” to “abate violations.” §1342(b)(7).
8
The EPA has 90 days to review a State’s program
submission. §1342(c)(1). That timeframe begins
when a State provides a “complete program submission” that covers each required element. 40 C.F.R.
§123.61(b); see §123.21. If the EPA approves of a
State’s submission, then the “State permit program”
goes forward and the EPA “suspend[s]” its federal program for the relevant jurisdiction.
33 U.S.C.
§1342(c)(1).
Most States run their own Section 402 programs.
U.S. EPA, NPDES State Program Authority (Jan. 31,
2025),
https://www.epa.gov/npdes/npdes-state-program-authority. Ohio has done so since 1974. Id. It
therefore has laws, penalties, and enforcement options that prevent the discharge of pollutants without
a valid permit. Ohio Rev. Code §§6111.04(A), 6111.07;
Ohio Adm. Code §§3745-33-02(A), 3745-39-04.
B. The Clean Water Act grants the EPA rulemaking authority. §1361(a). Recent administrations have
promulgated detailed rules about Section 401. See 85
Fed. Reg. 42210 (July 13, 2020); 88 Fed. Reg. 66558
(Sept. 27, 2023). But the EPA was not always so active.
Rewind to 1971, shortly after Congress created the
state-certification process. That year, the EPA first
promulgated regulations about certification. 36 Fed.
Reg. 8563 (May 8, 1971). Those regulations described
how the federal EPA would proceed when it was the
relevant certifying authority. Id. at 8564–65. But
they did not dictate how the States would proceed
with their certification processes. Most relevant, the
1971 regulations did not “define what information, if
any, was sufficient to start [a State’s] review process.”
88 Fed. Reg. at 66578.
9
The EPA eventually issued a guidance handbook.
Wetlands and 401 Certification: Opportunities Guidelines for States and Eligible Indian Tribes (1989),
https://tinyurl.com/4rfyvn4n (“1989 Guidance”). That
guidance invited the States to develop a “comprehensive set of 401 certification implementing regulations.” Id. at 30. The EPA warned States that they
should “adopt rules” to “protect against an unintended
waiver” of certification power. Id. at 31. It further
encouraged States to (1) “define the major components
of a complete application” and (2) require “the applicant to submit a complete application for certification
before the official agency review time begins.” See id.
(emphasis omitted).
The EPA provided updated guidance in 2010.
Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and
Tribes (2010), https://tinyurl.com/6thtbf6j (“2010
Guidance”). That guidance again tasked the States
with determining “what constitutes a ‘complete application’ that starts the timeframe clock.” Id. at 11. The
guidance stressed the “advantage” of States providing
“a clear description of components of a complete §401
certification” so that everyone could “understand
when the review timeframe has begun.” Id. at 16.
Thus, for most of the Clean Water Act’s history, the
EPA allowed the States to establish the details of their
certification processes. Many States thus “established
their own requirements for what constitutes a request
for certification,” often by defining the components of
a “complete” request. 88 Fed. Reg. at 66578 (quotation
omitted). Since 2005, Ohio has defined the contents
of a “complete” certification application through statute. Ohio Rev. Code §6111.30. The statute lists ten
requirements, some of which apply only in certain
10
situations. Id. at §6111.30(A). A certification request
must, for example, include a letter from the U.S. Army
Corps of Engineers documenting federal jurisdiction
over the waters in question. Id. at §6111.30(A)(1); see
33 C.F.R. §331.2. The Ohio EPA informs applicants
whether their applications are complete within fifteen
business days. Ohio Rev. Code §6111.30(B).
C. Things shifted in 2019. That was when the
EPA issued revised guidance suggesting that the
State’s “timeline for review begins” upon “receipt of a
written request.” Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized
Tribes 3 (2019), https://tinyurl.com/5dzftzws.
The “2020 Rule,” however, soon supplanted that
guidance. 85 Fed. Reg. 42210. That rule established
comprehensive regulations governing the Section 401
certification process. It set a multi-part federal definition for what qualifies as a valid “certification request.” 85 Fed. Reg. at 42285. Thus, under the 2020
Rule, the States could no longer craft their own certification-request definitions. Even so, the 2020 Rule
clarified that the waiver timeframe would “not begin”
until a project proponent submits a valid “certification
request” satisfying the new definition. Id. at 42273;
see id. at 42243 (“A certification request must include
all components to start the statutory clock.”).
The EPA changed course again with the “2023
Rule.” 88 Fed. Reg. 66558. The 2023 Rule—which remains in effect—sets a different multi-part definition
of “request for certification,” which gives the States
some discretion to define the contents of a valid request. Id. at 66574; 40 C.F.R. §121.5(c). The rule then
provides that a State’s waiver “clock starts” when the
State receives a valid “request for certification” that
11
satisfies legal requirements. 88 Fed. Reg. at 66581;
see 40 C.F.R. §121.6(a).
II.
Factual Background.
A. In 2015, Rover sought to build a pipeline that
would traverse Ohio. Pet.App.4a. Rover applied to
the Federal Energy Regulatory Commission (“FERC”)
for a certificate of public convenience and necessity.
See 15 U.S.C. §717f(c). As part of that process, FERC
needed to prepare an environmental impact statement. See 42 U.S.C. §4332(C). And, because the desired project would involve discharges into the nation’s waters, Rover needed to obtain a Section 401
certification from Ohio. See §1341(a)(1).
These steps forced Rover to describe its project.
The environmental impact statement, for instance,
said Rover would use only “naturally occurring, nontoxic bentonite clay and water” when drilling under
water bodies. Final Environmental Impact Statement
2-31 (July 29, 2016), FERC Docket CP15-93, issuance
20160729-4001 (“EIS”). Rover’s drilling plan similarly said that Rover would be using “drilling mud,”
consisting “primarily of fresh water,” with some “bentonite” clay added. Horizontal Directional Drill Contignecy Plan 1 (April 2015), FERC Docket CP15-93, issuance 20160729-4001, App’x G-1 (“Drilling Plan”).
“Benonite,” the plan emphasized, “is not considered a
hazardous material.” Id. These planning documents
noted that Rover might inadvertently release drilling
fluid into waters. EIS at 2-31; Drilling Plan at 1. But
any release would have little “adverse environmental
impact,” Rover assured, because of the non-hazardous
material it planned to use. Drilling Plan at 1. The
environmental impact statement noted the chance
that “diesel fuel or oil” might spill “during
12
construction.” EIS at 4-115. Such a spill might occur,
for example, during the “refueling” of “construction
equipment.” Id. But the risks were supposedly “low.”
Id. In short, Rover in no way previewed to regulators
that it would be drilling with diesel-laced fluid.
Rover first sought Section 401 certification from
Ohio in November 2015. Pet.App.4a. But Rover’s initial submission was incomplete under Ohio’s statutory requirements. For instance, Rover failed to submit a jurisdictional determination from the Army
Corps of Engineers.
See Ohio Rev. Code
§6111.30(A)(1). The Ohio EPA soon notified Rover of
the missing information. Letter from Todd Surrena,
Application Coordinator, to Buffy Thomason, Rover
Pipeline
LLC
(Dec.
7,
2015),
http://edocpub.epa.ohio.gov/publicportal/ViewDocument.aspx?docid=362376. Rover submitted that information by July 2016. Letter from Todd Surrena,
Application Coordinator, to Buffy Thomason, Rover
Pipeline
LLC
(Aug.
9,
2016),
http://edocpub.epa.ohio.gov/publicportal/ViewDocument.aspx?docid=475383.
While Ohio was processing Rover’s completed request, Rover modified its pipeline project. Rover submitted a revised certification request on February 23,
2017. Pet.App.105a. Ohio granted certification the
next day. Id.
B. FERC approved Rover’s construction project.
But it required that Rover obtain a hydrostatic permit
from Ohio. See Pet.App.33a. Hydrostatic test water
refers to water placed in tanks or pipelines to test for
leaks. Ohio and other States grant hydrostatic permits under Section 402. EIS at 1-5. Rover applied for
13
and received a hydrostatic permit from Ohio.
Pet.App.33a.
Rover began construction in 2017, but the project
went poorly. As Ohio alleges, Rover and its contractors spilled millions of gallons of diesel-laced drilling
fluid into an Ohio wetland. Pet.App.132a. Given this
pollution, FERC halted construction so that Rover
could implement protective measures. Pet.App.4a.
Construction eventually resumed, and Rover completed its pipeline in 2018.
Meanwhile, FERC investigated Rover’s pollution.
And investigators found that Rover’s contractors intentionally added diesel fuel to drilling mud to “keep
up with drilling progress demands.” Rover Pipeline,
LCC, 177 FERC ¶61182, at 2 (Dec. 16, 2021). Rover
is currently fighting a recommended $40 million penalty in federal administrative proceedings. Id. at 4.
III.
Proceedings below.
A. Ohio sued Rover and its contractors in state
court, bringing claims of unlawful pollution. Rover removed the case, but a federal court remanded back to
state court. Pet.App.38a.
Rover and its contractors then moved to dismiss
Ohio’s claims. They argued that Ohio waived its
claims by failing to act within a year of Rover’s initial
certification submission in November 2015. The trial
court agreed and dismissed Ohio’s entire case.
Pet.App.108a. An Ohio court of appeals affirmed.
Pet.App.94a.
The Supreme Court of Ohio agreed in part with the
lower state courts. It held that Ohio had waived its
Section 401 authority. Pet.App.67a. It did not matter,
in the Supreme Court of Ohio’s view, whether Rover’s
14
November 2015 submission was complete under existing law at the time of the request. The court instead
said that “the one-year period during which the state
must act on a request for certification under section
401 begins when the application is submitted, not
when it is deemed complete.” Pet.App.66a.
Ohio’s perceived waiver, however, did not end the
case. Rather, the Supreme Court of Ohio held that the
State had waived its “authority only with respect to
the federal application.” Pet.App.67a. The “vast bulk
of the state’s rights and authority”—outside of the
Section 401 process—“remain[ed] intact.” Id. The
court thus remanded for further proceedings.
Pet.App.69a–70a.
B. On remand, Ohio filed an amended complaint,
its fourth by that point. Pet.App.109a. That complaint brings six claims against Rover and Pretec (a
contractor of Rover). Three claims (one, two, and five)
allege that Rover and Pretec illegally discharged pollutants. Pet.App.5a–6a. Two other claims (three and
four) allege that Rover and Pretec violated Ohio’s water-quality standards. Id. The final claim (six) alleges
that Rover violated its hydrostatic permit. Id.
Rover and Pretec moved to dismiss, arguing that
the Natural Gas Act preempted these claims. The
trial court agreed and dismissed all of Ohio’s claims.
Pet.App.59a.
The court of appeals affirmed. It held that the Natural Gas Act, by occupying the field of interstate natural-gas transportation, impliedly preempted Ohio’s
remaining claims. Pet.App.35a–36a. The court emphasized the “comprehensive scheme” of the Natural
Gas Act and the “exclusive jurisdiction” the Act confers upon FERC. Pet.App.15a (quotation omitted).
15
The court further stressed that FERC was already
considering federal civil penalties against Rover.
Pet.App.23a.
The court of appeals recognized that the Natural
Gas Act contains a saving clause. The clause says
that, except as the natural-gas chapter of the United
States Code “specifically provide[s],” the chapter does
“nothing” to “affect[] the rights of States under” the
Clean Water Act. 15 U.S.C. §717b(d)(3). The court
did not identify any language from the relevant chapter that “specifically provide[d]” for preemption of
Ohio’s claims. See id. But it concluded that the saving
clause protects only “those rights delegated to the
state from the federal government in the 401 Certification process.” Pet.App.21a. The court acknowledged that there are other sections of the Clean Water
Act—including Section 402—that also involve state
authority. Pet.App.28a. But because those sections
are interrelated with Section 401, the court reasoned,
they did not confer any independent rights that the
saving clause protected. Pet.App.29a.
At bottom, the court of appeals described the Clean
Water Act as offering States a “choice.” Pet.App.19a.
This “choice” is a heavy-handed one: States must either participate in the federal certification process or
have all their water-pollution authority “preempted
by federal law.” Id.; accord Pet.App.26a. It followed
that, since Ohio had “waived its ability to participate
in the 401 Certification process,” federal law
preempted Ohio’s remaining claims. Pet.App.35a.
C. Ohio appealed the preemption ruling. Over
three dissents, the Supreme Court of Ohio declined review. Pet.App.1a.
16
REASONS FOR GRANTING THE WRIT
This case presents two important questions about
the States’ authority under the Clean Water Act. The
first involves a topic on which circuits and state high
courts are split. The second raises serious concerns
about the States’ forced participation in a federal program that otherwise preempts their longstanding sovereignty. Both questions warrant this Court’s full review.
I.
The Court should resolve when the States’
waiver clock starts under Section 401.
Section 401 of the Clean Water Act establishes a
certification process, which reserves a role for the
States in federal licensing. A State waives its certification power if it “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.” 33 U.S.C. §1341(a)(1). But the Clean Water
Act does not define what qualifies as a “request” sufficient to start the waiver timeframe. That issue has
divided the Nation’s courts.
A.
The Supreme Court of Ohio’s
decision added to an existing
conflict between the Second and
Fourth Circuits.
1. For decades, parties seldom litigated waiver under Section 401. Discord has since grown. Several recent cases have addressed whether the withdrawal
and resubmission of a certification request restarts
the waiver timeframe. See, e.g., Cal. State Water Res.
Control Bd. v. FERC, 43 F.4th 920, 935–36 (9th Cir.
2022); Hoopa Valley Tribe v. FERC, 913 F.3d 1099,
1100–01 (D.C. Cir. 2019). Other cases have involved
17
what conduct qualifies as acting on a certification request for waiver purposes. See N.C. Dep’t of Env’tl
Quality v. FERC, 3 F.4th 655, 669–70 (4th Cir. 2021);
Millennium Pipeline Co., LLC v. Seggos, 860 F.3d 696,
698 (D.C. Cir. 2017).
This case presents a foundational question: Does
Section 401 require a valid request to start the waiver
clock? On that question, the circuits and state high
courts are split.
Fourth Circuit. Begin with AES Sparrows, 589
F.3d 721. There, a company wanted to build a pipeline
running through Maryland. Id. at 723. The company
initially asked Maryland for Section 401 certification
in January 2007. Id. at 725. But Maryland concluded
that the company’s submission was incomplete. Id.
While the company obtained the missing information,
it sought a Section 404 permit from the Army Corps of
Engineers. (The Army Corps is responsible for administering that section of the Clean Water Act. 33 U.S.C.
§1344.) The Army Corps verified, on April 25, 2008,
that the company had submitted a complete certification request to Maryland, and it gave Maryland a year
to act. AES Sparrows, 589 F.3d at 729. Maryland denied certification on April 24, 2009. Id. at 726.
The company nonetheless argued that Maryland
waived its Section 401 authority by failing to act
sooner. Id. at 728. The Fourth Circuit disagreed. Section 401’s text was “ambiguous,” the circuit reasoned,
as to whether a legally “valid request” was necessary
to trigger the waiver timeframe. Id. at 729. The court
thus looked to the Army Corps regulation on the subject, which required a “valid request for certification”
to commence the “waiver period.” Id. (quotation omitted).
Because requiring a “valid request” was
18
reasonable “in light of the statutory text,” the Fourth
Circuit deferred to that reading under Chevron USA,
Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837
(1984). AES Sparrows, 589 F.3d at 729.
Second Circuit. In NYSDEC, 884 F.3d 450, the
Second Circuit read Section 401 differently. There, a
company sought to build a pipeline in New York. Id.
at 453. The company first asked New York for certification in November 2015. But New York informed the
company that its submission was incomplete under
state law. Id. at 453; see Pet. Br., No. 17-3770, 2017
U.S. 2nd Cir. Briefs LEXIS 1188, at *10–*11 (Dec. 22,
2017). The company submitted additional information in August 2016 and New York denied the certification request in August 2017. NYSDEC, 884 F.3d
at 453–54.
FERC concluded that New York had waived its certification power by failing to act within a year of the
company’s initial submission. Id. at 454. The Second
Circuit agreed. That circuit held that the “plain language of Section 401 outlines a bright-line rule regarding the beginning of review.” Id. at 455. It rejected a
reading under which “state agencies decide” whether
a certification request is “complete.” Id. Thus, in the
Second Circuit’s view, New York waived its authority
regardless of whether the company’s initial submission satisfied existing legal requirements. See id.
Supreme Court of Ohio. The Supreme Court of
Ohio followed the Second Circuit’s lead. It concluded
“that the one-year period during which the state must
act on a request for certification under section 401 begins when the application is submitted, not when it is
deemed complete.” Pet.App.66a. Given that reading
of Section 401, the court did not decide whether
19
Rover’s initial submission satisfied existing law at the
time of the request. See Pet.App.67a. Notably, the
court acknowledged the Fourth Circuit’s competing
decision in AES Sparrows. Pet.App.65a. It made no
attempt to reconcile its decision with that one.
As these cases show, the Nation’s courts are in conflict as to when the States’ certification waiver clock
begins. Maryland, and other States in the Fourth Circuit, may await a legally valid certification request before starting the certification timeframe. Whereas
States like Ohio and New York more easily lose sovereignty over their own waters.
2. Two other points about the existing conflict.
First, while Chevron influenced the Fourth Circuit’s decision in AES Sparrows, the split identified
above endures. Like many decisions over the past
forty years, AES Sparrows applied the Chevron
framework. This Court recently overruled Chevron,
but it did “not call into question prior cases that relied
on the Chevron framework.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 412 (2024). Rather, it
stressed that Chevron-influenced holdings “are still
subject to statutory stare decisis despite [the] change
in interpretive methodology.” Id. It follows that AES
Sparrows remains controlling statutory precedent in
the Fourth Circuit. And regardless, the reasoning of
AES Sparrows and NYSDEC conflict. The Fourth
Circuit found Section 401’s text “ambiguous.” AES
Sparrows, 589 F.3d at 729. The Second Circuit found
it “plain.” NYSDEC, 884 F.3d at 455.
Second, federal regulations also conflict in reading
Section 401. The Army Corp’s regulation says that in
“determining whether or not a waiver period has commenced,” the Army Corp’s will “verify that the
20
certifying agency has received a valid request for certification.” 33 C.F.R. §325.2(b)(1)(ii). The EPA’s current approach is similar. See 40 C.F.R. §§121.5(c),
121.6(a). FERC’s regulations, on the other hand, start
the waiver clock upon any “written request for certification,” with no inquiry into the request’s legal validity. E.g., 18 C.F.R. §§4.34(b)(5)(iii), 5.23(b)(2), 6.1(b);
accord AES Sparrows, 589 F.3d at 728. That departs
from past practices: FERC used “to deem the one-year
waiver period to commence when the certifying
agency found the request acceptable for processing.”
Cal. ex rel. State Water Res. Control Bd. v. FERC, 966
F.2d 1541, 1552 (9th Cir. 1992).
B.
This question is important.
The importance of the waiver question strengthens
the case for certiorari. The Clean Water Act is “the
principal federal law regulating water pollution.”
Sackett, 598 U.S. at 657–58. Given the Act’s overall
import, questions about its details are often important
too. See e.g., id.; San Francisco, 145 S.Ct. 704; Cnty.
of Maui v. Haw. Wildlife Fund, 590 U.S. 165 (2020);
Nat’l Ass’n of Mfrs. v. DOD, 583 U.S. 109 (2018);
Decker v. Northwest Env’tl Def. Ctr., 568 U.S. 597
(2013); Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009); S.D. Warren, 547
U.S. 370; S. Fla. Water Mgmt. Dist. v. Miccosukee
Tribe of Indians, 541 U.S. 95 (2004); PUD No. 1 v.
Wash. Dep’t of Ecology, 511 U.S. 700 (1994).
Section 401, moreover, is an “essential” part of the
Act’s “scheme to preserve state authority.” S.D. Warren, 547 U.S. at 386. For each “Federal license or permit” that involves potential discharges, the States receive a chance to set limitations and requirements
“necessary to assure” water quality. §1341(a)(1), (d).
21
Because every certification request triggers the possibility of waiver due to inaction, the start of the waiver
clock is a frequently recurring question. The States
must understand the answer to properly structure
their certification processes. The stakes are only
heightened by the fact that the States lose some of
their sovereignty if they do not act timely.
The waiver timeframe affects others, too. Those
seeking certification need to know whether they must
supply the requisite information upfront or whether
they may provide information piecemeal. And the
public has its own interests. Section 401 requires
“public notice in the case of all applications for certification” and anticipates that States will hold “public
hearings” for many certification applications.
§1341(a)(1). When the waiver clock starts will necessarily affect the timing of those notice-and-hearing
procedures. Relatedly, how much information an applicant must provide to trigger the certification process will affect the quality of information the public
receives.
Recent administrations, for their part, have prioritized writing comprehensive rules governing Section
401. During two recent rulemakings, the EPA reviewed over 150,000 total comments from interested
parties. 85 Fed. Reg. at 42213; 88 Fed. Reg. at 66566.
Both rulemakings focused on the waiver timeframe
and the definition of certification request. E.g., 85
Fed. Reg. at 42243–50; 88 Fed. Reg. at 66573–84.
Given all this attention, the Court should not allow
existing disagreements to fester. Many States do not
yet have firm judicial guidance about when their
waiver clock starts. And even setting that uncertainty
aside, “equal sovereignty among the States” is a
22
“fundamental principle” of our federalist structure.
Shelby Cnty. v. Holder, 570 U.S. 529, 544 (2013) (quotation omitted). Currently, some States are losing
sovereignty over their waters more easily than others.
Finally, this case is an ideal vehicle for answering
this important question. While the certification
timeframe often hides in the background of disputes,
here it is front and center.
C.
The decision below is wrong.
The Supreme Court of Ohio erred in holding that
an invalid request started Ohio’s waiver clock. Ohio’s
clock did not begin until Rover submitted a valid request, which satisfied existing law at the time.
1. Return to the text. The most relevant passage
of Section 401 says this:
If 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.
§1341(a)(1). Thus, the State’s “receipt” of a “request”
starts the waiver timeframe.
The Clean Water Act does not define “request.”
And request is an elastic word that “draws meaning
from its context.” See Dubin v. United States, 599 U.S.
110, 118 (2023) (quotation omitted). In casual settings, “request” often just means “asking for something.” Webster’s New International Dictionary 2116
(2d ed. 1948). But in legal settings, formal requirements almost always attach to submitting a “request.”
See Black’s Law Dictionary 1563–64 (12th ed. 2024).
23
For example, as any federal-court practitioner knows,
a “request for a court order” is something that is
“made by motion,” “in writing,” and “with particularity.” Fed. R. Civ. P. 7(b)(1).
Here, context strongly supports reading “request”
in a formal manner. See San Franciso, 145 S.Ct. at
715 (declining to read the term “limitation” in a
“loose[] sense” for purposes of the Clean Water Act).
Recall first that the certification request is part of a
broader application process for a “Federal license or
permit.” §1341(a)(1). That is the type of setting where
one expects formal requirements. In another passage,
about public notice-and-hearing requirements, Section 401 refers to “applications for certification by” the
State. Id. That terminology further signals formality.
As normally understood, government applications involve “submitting a request through properly defined
channels” and complying with a “government-designated format.” See League of Cal. Cities v. FCC, 118
F.4th 995, 1033–34 (9th Cir. 2024) (Bennett, J., dissenting in part and concurring in part). Remember
also that a State’s ultimate task during the certification process is to identify the limitations and requirements “necessary” to ensure compliance with applicable water-quality laws. §1341(d). If requesters were
not required to supply sufficient information about
the contemplated project, a State would be hard
pressed to carry out that task.
Considering all this, an ordinary English speaker
reading the word “request” in the broader context of
Section 401 would expect that making a “request” involves meeting formal requirements. The ordinary
reader would not think that a quick email, a handwritten note, or a shout across the street would do.
24
Once one accepts that a “request” has formal requirements, the question remains what those requirements are. The Clean Water Act leaves the answer to
the EPA and the States. See 33 U.S.C. §§1251(b),
1361(a). For most of the Clean Water Act’s history—
including the timeframe relevant to this case—the
EPA allowed States to set the definition. See 1989
Guidance at 30–31; 2010 Guidance at 11, 15–16. More
recently, both the 2020 Rule and the 2023 Rule set
multi-part definitions for what qualifies as a “request.” 85 Fed. Reg. at 42285; 88 Fed. Reg. at 66662.
For all the differences between those two rules, both
rules agreed that (1) “request” requires a formal definition and (2) the States’ waiver clock does not start
until a request meets that formal definition. See 85
Fed. Reg. at 42243–45; 88 Fed. Reg. at 66581.
In sum, accounting for both text and context, Section 401 is best read to require a valid “request” to
start a State’s waiver timeframe. The statute then
leaves it to federal or state rulemaking to “fill up the
details” of what constitutes a valid request. See Loper
Bright, 603 U.S.at 395 (quotation omitted).
2. Section 401 is hardly novel in taking this approach. Other sections of the Clean Water Act have
also led to “‘completeness’ standard[s] for applications
or similar documents.” 88 Fed. Reg. at 66578. Section
402 generally discusses “application[s]” for permits.
E.g., 33 U.S.C. §1342(a)(5), (j). But corresponding regulations provide the details for the “completeness” of
“applications forms.” 40 C.F.R. §122.21(a)(2), (e). And
the EPA does not begin “the processing of a [Section
402] permit until the applicant has fully complied
with the application requirements for that permit.” 40
C.F.R. 124.3(a)(2). Remember also that, under Section 402, the EPA has 90 days to review a State’s
25
submission to run a permit program. §1342(c)(1). The
EPA, via regulation, starts that timeframe upon “the
receipt of a complete program submission.” 40 C.F.R.
§123.61(b). Similarly, for Section 404 of the Clean
Water Act, the regulatory timeframe for federal engineers to decide applications begins “after receipt of a
complete application.” 33 C.F.R. §325.2(d)(3); see
§325.1(d).
Many comparable frameworks exist in other areas
of federal law. Indeed, a host of federal regulations
use the “receipt” of a “complete” request or application
as a triggering phrase for government responsibilities.
E.g., 6 C.F.R. §25.9(d)(1); 7 C.F.R. §340.5(h)(5); 7
C.F.R. §4280.110(e); 10 C.F.R. §490.806(a); 12 C.F.R.
§251.4(b)(3); 15 C.F.R. §400.38(a); 16 C.F.R.
§1500.89(f); 17 C.F.R. §1.9(c)(5); 23 C.F.R. §661.25(d);
24 C.F.R. §242.16(f); 29 C.F.R. §4220.4(a); 32 C.F.R.
§725.9(c); 43 C.F.R. §3165.3(d).
Federal telecommunications law offers a final comparison. A federal statute mandates that state and
local governments approve certain “request[s]” involving modification to wireless towers.
47 U.S.C.
§1455(a)(1). FCC regulations give states and local
governments sixty days, after receiving a “request,” to
decide whether the request satisfies legal requirements. 47 C.F.R. §1.6100(c)(2). But state and local
governments may require “documentation or information” within a request to help with that inquiry.
§1.6100(c)(1). And the FCC tolls that period for acting
if “the reviewing State or local government determines that the application is incomplete.”
§1.6100(c)(3). Thus, the FCC has read §1455(a)(1) as
impliedly requiring that a modification “request” satisfy certain information requirements in order to trigger the relevant statutory duty.
26
The bottom line is this. Requiring a valid submission to initiate a review process—with rulemaking filling in the requirements—is a common feature of federal administrative law.
3. If Section 401 requires a valid request to initiate
the waiver timeframe, then this is an easy case. Rover
first sought a Section 401 certification on November
16, 2015. Pet.App.105a. But Rover’s initial submission was incomplete, as it did not satisfy Ohio’s
longstanding statutory requirements establishing the
contents of a certification request. See Ohio Rev. Code
§6111.30(A); above 12. So, that initial submission did
not start Ohio’s waiver clock. Rover eventually submitted a complete submission, which Ohio acted on
well within a year. Pet.App.105a. Given these circumstances, Ohio did not waive its Section 401 certification power.
4. The Supreme Court of Ohio’s and Second Circuit’s contrary decisions are unpersuasive. Both decisions said that a Section 401 “request” includes invalid requests that do not satisfy existing legal requirements. But neither decision seriously engaged with
Section 401’s surrounding text. And neither decision
identified a limiting principle for the outer boundaries
of a “request.” Does an informal email count? A scribbled note? A text message? The decisions do not say.
See Pet.App.66a–67a; NYSDEC, 884 F.3d at 455–56.
The remaining analysis within these decisions also
leaves much to be desired. The Supreme Court of Ohio
suggested that the 2020 Rule supported its reading.
Pet.App.66a–67a. Not so. The 2020 Rule concluded
that the statute’s use of “request” was ambiguous. 85
Fed. Reg. at 42246. The Supreme Court of Ohio determined it was clear. Pet.App.66a. The 2020 Rule
27
set a nationwide definition for request, but the rule
recognized that a request still needed to be valid—
meeting “all components” of the new legal definition—
to “start the statutory clock” for waiver. 85 Fed. Reg.
at 42243; accord id. at 42273. By contrast, the Supreme Court of Ohio failed to consider whether the request at issue in this case was valid under existing law
at the time of the request. See Pet.App.67a.
The Second Circuit’s discussion of practicalities in
NYSDEC also misses the mark. The court worried
about the “theoretical[]” possibility that States could
“request supplemental information indefinitely.” 884
F.3d at 456. But Ohio’s position is based on objective
legal requirements that were in place at the time of
Rover’s initial submission. Ohio Rev. Code §6111.30.
And if Ohio unreasonably delayed a decision on a request, the requester could seek judicial relief. See
Ohio ex rel. Omni Energy Grp., LLC v. Ohio Dep’t of
Nat. Res., 164 Ohio St. 3d 470, 470 (2020). (Requesters can also challenge denials of certifications.
Ohio Rev. Code §§3745.04, 3745.06. And Congress
has crafted special judicial remedies in the naturalgas context to prevent unjustified denials and delays
of permits. See 15 U.S.C. §§717r(d)(1)–(3).)
The Second Circuit also gave short shrift to competing concerns. The circuit suggested that no harm
would come from starting the States’ waiver clock
early, because States could simply deny incomplete requests. NYSDEC, 884 F.3d at 456. But that approach would make the certification process far more
adversarial, by increasing the number of denials and
litigation over those denials. Moreover, requiring
States to start their waiver clocks early would prematurely trigger public notice obligations (for all
28
applications) and hearing obligations (for some applications). See 33 U.S.C. §1341(a)(1).
Consider Ohio’s process. Within twenty-one days
of a valid request, Ohio requires that the requester
publish notice about the contemplated project “in a
newspaper of general circulation.” Ohio Rev. Code
§6111.30(C). That initiates a thirty-day comment period. Id. Ohio then sets hearings for any project for
which comments reveal a “significant public interest.”
Id. at §6111.30(D). If incomplete requests are enough
to initiate these procedures, that will result in confusing public proceedings with insufficient information.
And, if Ohio denies the incomplete request, the next
request will trigger duplicative proceedings. Outside
of giving requesters an untoward incentive to induce
mistaken waivers, this type of stop-and-start process
benefits no one.
II.
The Court should resolve the effect of
waiver under Section 401.
If the Court agrees that Ohio did not waive its certification power, then the analysis stops there. But if
the Court disagrees, this case presents an important
follow-up question: What are the consequences of
waiver?
That question matters for all scenarios in which a
certification authority might waive its power. But the
possibility of preemption under the Natural Gas Act
augments the question’s importance. The Natural
Gas Act sometimes impliedly preempts state laws relating to natural-gas transportation. Schneidewind v.
ANR Pipeline Co., 485 U.S. 293, 300, 306–07 (1988);
but see Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376
(2015). The Act, however, contains a saving clause
29
that preserves state rights under the Clean Water Act.
15 U.S.C. §717b(d)(3).
Despite the saving clause, the decision below held
that that the Natural Gas Act preempted Ohio’s
claims. That holding stemmed from an overbroad
reading of (1) the consequences of Section 401 waiver
and (2) implied preemption under the Natural Gas
Act. The lower court erred. And the errors, if left uncorrected, raise a constitutional problem.
A.
This question is important, as it
implicates the Clean Water Act’s
constitutionality.
According to the decision below, the Clean Water
Act offers the States a “choice” of either participating
in a federal program or “having state law preempted
by federal law.” Pet.App.19a. Under that reading,
Ohio lost its traditional water authority because it did
not participate in the certification process. But if that
reading is right, then Section 401 is unconstitutional.
1. In our federalist system, the States retain considerable powers. Trump v. Anderson, 601 U.S. 100,
110 (2024) (per curiam). Those retained powers include the “broad authority to enact legislation for the
public good.” Bond v. United States, 572 U.S. 844, 854
(2014). Exercising that authority, the States have traditionally been responsible for “the regulation of water
pollution.” Sackett, 598 U.S. at 659. If Congress
meant for Section 401 waiver to strip that traditional
authority, one would expect a “clear statement.”
Bond, 572 U.S. at 857–58.
The States’ retained powers include “the power …
to order the processes of its own governance.” Anderson, 601 U.S. at 110 (quotation omitted). The federal
30
government lacks “the power to issue direct orders to
the governments of the states.” Murphy v. NCAA, 584
U.S. 453, 471 (2018). That means “Congress cannot
compel the States to enact or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898,
935 (1997). Nor can it avoid “that prohibition by conscripting the State’s officers directly.” Id.
True, Congress may “encourage[]” States to participate in cooperative federalism. South Dakota v. Dole,
483 U.S. 203, 211 (1987). But States must retain their
own sovereignty “not merely in theory but in fact.” Id.
at 211–12. Key here, the federal government cannot
threaten the States with “your assistance or your sovereignty.” That is a metaphorical “gun to the head” in
our system of divided power. NFIB, 567 U.S. at 581
(Roberts, C.J., op.); see id. at 582 n.12 (discussing a
similarly “coercive proposition”).
2. These principles make the second question presented incredibly important. The States, in deciding
whether to participate in the Section 401 certification
process, need clear terms about what happens if they
do not participate.
Think, for example, of Section 402. That section
allows the States to run their own permit programs
governing the “the discharge of pollutants into the
navigable waters.” 33 U.S.C. §§1342(b), (g). Most
States have exercised that option. But the decision
below held that participating in the Section 401 certification process is a necessary predicate to exercising
Section 402 authority. See Pet.App.28a–29a. Even
without more, that makes the second question presented significant, as Section 402 is a “critical component” of the Clean Water Act’s overall scheme. San
Franciso, 145 S.Ct. at 712.
31
A deeper constitutional problem rests below the
surface. If States must either participate in the Section 401 process or lose all authority to combat water
pollution, then Section 401 no longer presents a constitutionally permissible choice. Under that reading,
Section 401 uses state sovereignty as leverage to coerce state participation in a federal process. That type
of your-assistance-or-your-sovereignty threat violates
the Constitution.
The Court should take this case to make clear that
Section 401, when properly read, presents no such dilemma. Given the importance of the Clean Water Act,
and the importance of the States retaining a choice
about whether to participate in federal programs, the
Court should not allow this question to linger.
B.
The decision below is wrong.
The decision below erred in holding that the Natural Gas Act impliedly preempts Ohio’s claims. Ohio’s
claims all fall within that Act’s express saving clause.
1. Any form of federal preemption—whether express or implied—“must stem from either the Constitution itself or a valid statute.” Kansas v. Garcia, 589
U.S. 191, 202 (2020). If a statute expressly addresses
preemption, the statute’s words supply “the best evidence of Congress’ preemptive intent.” Chamber of
Commerce of the United States v. Whiting, 563 U.S.
582, 594 (2011) (quotation omitted). Thus, when a
statute contains a “saving clause” preserving state authority, the clause provides a “direct route” for resolving preemption. Williamson v. Mazda Motor of Am.,
Inc., 562 U.S. 323, 339 (2011) (Thomas, J., concurring
in the judgment).
32
The Natural Gas Act, in its present form, contains
a saving clause. The clause says:
Except as specifically provided in this chapter,
nothing in this chapter affects the rights of
States under—
(1) the Coastal Zone Management Act of
1972 (16 U.S.C. 1451 et seq.);
(2) the Clean Air Act (42 U.S.C. 7401 et
seq.); or
(3) [the Clean Water Act] (33 U.S.C. 1251 et
seq.)
15 U.S.C. §717b(d). Those words allow for the possibility that some natural-gas statutes might “specifically” displace state rights. Id. But otherwise, natural-gas statutes do “nothing” to “affect[] the rights of
States under” the Clean Water Act. Id.
What are the “the rights of States under” the Clean
Water Act? The word “under” is a “chameleon that
must draw its meaning from its context.” Pereira v.
Sessions, 585 U.S. 198, 215 (2018) (quotation omitted).
It can mean “according to,” “in accordance with,” “pursuant to,” and “by reason of the authority of.” Id.;
Nat’l Ass’n of Mfrs., 583 U.S. at 124. Context here
supports a broad reading. This Court has “repeatedly
stressed” that “the Natural Gas Act was drawn with
meticulous regard for the continued exercise of state
power.” Oneok, 575 U.S. at 384–85. And the Clean
Water Act leaves the States with the “primary responsibilities” for combatting water pollution. §1251(b);
see §1370. It would thus be strange for Congress to
have later signaled a dramatic shift in federal-state
authority over this country’s waters by saying that it
intended to do “nothing.” See §717b(d).
33
With that in mind, the best reading is that the
States’ traditional authority over their waters form
part of “the rights of States under” the Clean Water
Act. See §717b(d)(3). Through the Clean Water Act,
Congress entered the field of water pollution. It could
have occupied the field to the limits of federal commerce power. Instead, Congress decided “to recognize,
preserve, and protect” the “rights of States” to prevent
water pollution. §1251(b). Because Congress folded
traditional state powers into the recalibrated federalstate balance, the States’ traditional powers over their
waters make up part of “the rights of States under”
the Clean Water Act.
But, at minimum, “the rights of States under” the
Clean Water Act must include the authority that the
Act specifically delegates. Thus, when a State exercises its authority under Section 303 and Section 402,
the State acts “under” (indeed, because of) the Clean
Water Act. Put differently, the Natural Gas Act does
not preempt state regulation that is “permitted under
the Clean Water Act.” Transcont’l Gas Pipe Line Co.,
LLC v. Pa. Env’tl Hearing Bd., 108 F.4th 144, 158 (3d
Cir. 2024). Nor does it block States from using “appropriate tools to effectuate” permitted regulation.
Id.; cf. Dominion Transmission, Inc. v. Summers, 723
F.3d 238, 243–44 (D.C. Cir. 2013).
2. Applying the saving clause, none of Ohio’s
claims are preempted. No statute within the naturalgas chapter of the United States Code “specifically
provide[s]” for the federal preemption of water-pollution claims. See §717b(d)(3). The key issue thus becomes whether Ohio’s claims involve “the rights of
States under” the Clean Water Act. Id.
34
They do. Recall that Ohio’s amended complaint
brings six claims. Above 14. Generally, those claims
all involve Ohio’s traditional authority to combat water pollution—authority Ohio retained under the
Clean Water Act. On a more specific level, Ohio’s
claims all trace back to authority that the Clean Water Act expressly delegates to the States. Four claims
(one, two, five, and six) involve Ohio’s Section 402 authority. Those claims allege unpermitted discharges
of pollutants and the violation of a Section 402 hydrostatic permit. See Pet.App.5a–6a. The final two
claims (three and four) allege violations of Ohio’s water-quality standards, which Ohio sets under Section
303. Id. Thus, because Ohio’s claims all arise from
authority that the Clean Water Act bestows, the Natural Gas Act does “nothing” to “affect[]” them. See
§717b(d)(3).
3. The decision below is wrong. Much of its analysis mistakenly focused on implied preemption. For
instance, the court of appeals stressed federal law’s
“comprehensive scheme” of regulating “natural gas in
interstate commerce.”
Pet.App.15a (quoting
Schneidewind, 485 U.S. at 300). But the comprehensiveness of federal regulations is irrelevant if Ohio’s
claims fall within the Natural Gas Act’s express saving clause.
The court of appeals also suggested that FERC’s
pending enforcement proceedings against Rover were
enough to protect Ohio’s interests. See Pet.App.22a.
Again, that is irrelevant. Through the saving clause,
Congress made the decision to preserve the States’ enforcement powers under the Clean Water Act. And
regardless, any recovery through those proceedings
will presumably go to the federal treasury, not Ohio.
35
See FERC, All Civil Penalty Actions–2024,
https://www.ferc.gov/all-civil-penalty-actions-2024.
The lower court’s analysis of the saving clause
fares no better. The decision below held that the saving clause did not apply because, by waiving its Section 401 certification power, Ohio waived all its rights
under the Clean Water Act. Pet.App.35a. The court
further reasoned that other sections of the Act—including Section 402—do not give the States “independent rights” that can be exercised outside of “the
401 Certification process.” Pet.App.29a. The court of
appeals made three critical mistakes.
First, the court of appeals improperly conflated the
saving-clause inquiry with waiver under Section 401.
They are separate matters. The saving clause simply
asks whether Ohio’s claims involve “rights of States
under” the Clean Water Act. §717b(d)(3). If they do,
there is no preemption. The statutory text does not
care about which sections of the Clean Water Act “the
rights of States” arise from—it protects them all.
Second, the courts of appeals misconstrued the
boundaries of Section 401 waiver. When a State
waives its certification power, it does so only “with respect to [the] Federal application” that triggered the
certification process. §1341(a)(1). Thus, if a State
chooses not to participate in the process, it waives its
certification power as to the discharges previewed in
the “Federal application.” That limit makes sense because a State’s task during the certification process is
to determine the conditions “necessary” to ensure
compliance with applicable laws. §1341(d). A State
cannot make that determination unless the applicant
has fairly described the contemplated discharges.
Here, Rover never previewed that it was going to be
36
discharging diesel-laced fluid into Ohio’s waters.
Above 11–12. So, Ohio could not have waived any
rights as to those un-previewed discharges.
Third, the court of appeals misunderstood the relationship between Sections 401 and 402. The “two
sections are not interchangeable, as they serve different purposes and use different language to reach
them.” S.D. Warren, 547 U.S. at 380. Certification
under Section 401 is a precondition that attaches to
any “Federal license or permit” that involves “discharge[s] into the navigable waters.” §1341(a)(1).
Whereas Section 402 establishes a distinct permit requirement that those seeking to discharge “any pollutant” from a point source must satisfy. §1342(a)(2).
To run their own “State permit programs” under Section 402, the States must satisfy certain conditions.
§1342(b)–(c). But none of those conditions require the
States to pledge their participation in Section 401’s
certification process. All told, Section 402 grants
rights to the States that are independent from participation in the Section 401 process. The decision below
wrongly took those rights away from Ohio.
37
CONCLUSION
The Court should grant the petition for a writ certiorari and reverse.
Respectfully submitted,
DAVE YOST
Ohio Attorney General
T. ELLIOT GAISER*
Ohio Solicitor General
*Counsel of Record
ZACHERY P. KELLER
Deputy Solicitor General
AARON S. FARMER
MORGAN N. STARIC
Assistant Attorneys General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614.466.8980
thomas.gaiser@ohioago.gov
Counsel for Petitioner
Dave Yost, Ohio
Attorney General
APRIL 2025
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.