Respondents Brief — Ohio, ex rel. Dave Yost, Attorney General of Ohio, Petitioner v. Rover Pipeline, LLC, et al.

No. 24-1120

In the Supreme Court of the United States

OHIO, EX REL. DAVE YOST,

ATTORNEY GENERAL OF OHIO,

Petitioner,

v.

ROVER PIPELINE, LLC, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF OHIO, STARK COUNTY

BRIEF IN OPPOSITION

BENJAMIN C. SASSÉ

TUCKER ELLIS LLP

950 Main Ave.

Suite 1100

Cleveland, OH 44113

(216) 696-3213

benjamin.sasse

@tuckerellis.com

Counsel for Respondent

Pretec Directional

Drilling, LLC

WILLIAM S. SCHERMAN

Counsel of Record

JASON J. FLEISCHER

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6550

wscherman@velaw.com

Counsel for Respondent

Rover Pipeline, LLC

QUESTIONS PRESENTED

1. Section 401(a) of the Clean Water Act provides

that if a State “fails or refuses to act on a request” for a

water-quality certification “within a reasonable period

of time (which shall not exceed one year) after receipt of

such request, the certification requirement[] * * * shall

be waived.” 33 U.S.C. § 1341(a)(1). The first question

presented is whether § 401’s one-year deadline for state

action begins to run when a State receives a request for

a water-quality certification, or only begins to run once

the State deems the request “complete.”

2. Section 401(d) of the Clean Water Act provides

that States “shall” impose any “condition[s]” on a waterquality certification that are “necessary to assure” that

the applicant “will comply” with “any * * * appropriate

requirement of State law.” 33 U.S.C. § 1341(d). For its

part, the Natural Gas Act preempts state regulation of

interstate natural gas pipeline construction, with a narrow exception that preserves “the rights of States under” the Clean Water Act. 15 U.S.C. § 717b(d). The second question presented is whether Ohio, having waived

its ability to issue a water-quality certification for

Rover’s interstate pipeline project, could nonetheless initiate subsequent litigation to enforce state water-quality laws on which it could have conditioned, but failed

to condition, a timely § 401 certification.

(I)

II

RULE 29.6 STATEMENT

Respondent Rover Pipeline, LLC (“Rover”) is a Delaware limited liability company that is owned 65% by ET

Rover Pipeline LLC, 20% by Traverse Rover LLC, and

15% by Traverse Rover II LLC. ET Rover Pipeline LLC

is owned 50.1% by Energy Transfer Interstate Holdings,

LLC, a wholly owned subsidiary of Energy Transfer LP,

and 49.9% by BCP Renaissance L.L.C. Other than Energy Transfer LP (NYSE: ET) and Blackstone Inc.

(NYSE: BX), no publicly held company owns 10% or

more of Rover’s stock.

Respondent Pretec Directional Drilling, LLC is a

Florida limited liability company that is owned 100% by

MP Drilling Holdings, LLC, a Florida limited liability

company. MP Drilling Holdings, LLC is owned 100% by

Precision Pipeline, LLC, a Wisconsin limited liability

company. Precision Pipeline, LLC is 100% owned by

Precision Acquisition, LLC, a Wisconsin limited liability

company. Precision Acquisition, LLC is 100% owned by

MasTec, Inc., a Florida corporation which is publicly

traded on the New York Stock Exchange (NYSE: MTZ).

III

TABLE OF CONTENTS

Page

Questions Presented ..................................................... I

Rule 29.6 Statement ................................................... II

Table of Authorities ..................................................... V

Introduction ................................................................. 1

Statement .................................................................... 4

I.

Legal Background ................................................. 4

A. The Natural Gas Act ...................................... 4

B. The Clean Water Act ...................................... 5

II. Factual and Procedural Background.................. 10

Reasons for Denying the Petition ............................. 15

I.

There Is No Split of Authority Among Lower

Courts. ................................................................. 15

II. This Case Does Not Present Important or

Recurring Questions, and Is a Poor Vehicle. ..... 19

A. The First Question Presented Does Not

Warrant Review. .......................................... 20

B. The Second Question Presented Does

Not Warrant Review. ................................... 25

C. This Case Also Presents Threshold

Jurisdictional Issues That Further Cut

Against Review. ............................................ 28

III. The Decision Below Is Correct............................ 30

A. The Ohio Supreme Court Correctly

Resolved the First Question Presented. ...... 30

IV

B. The Fifth District Correctly Resolved the

Second Question Presented. ........................ 33

Conclusion.................................................................. 36

V

TABLE OF AUTHORITIES

Cases:

Page(s)

Adams v. Robertson,

520 U.S. 83 (1997) .................................................... 24

AES Sparrows Point LNG, LLC v. Wilson,

589 F.3d 721 (4th Cir. 2009) ............................... 15-17

California Trout v. Hoopa Valley Tribe,

140 S. Ct. 650 (2019) .................................................. 8

Chem. Mfrs. Ass’n v. NRDC,

470 U.S. 116 (1985) .................................................... 8

City of Tacoma v. Taxpayers of Tacoma,

357 U.S. 320 (1958) .................................................. 28

Del. Riverkeeper Network v. Sec’y Pa. Dept. of

Env’t Prot., 833 F.3d 360 (3d Cir. 2016) ............. 4-5, 8

EEOC v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) .................................................. 31

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019) ............................ 8, 26

Huber v. N.J. Dep’t of Env’t Prot.,

131 S. Ct. 1308 (2011) .............................................. 25

In re Clean Water Act Rulemaking,

568 F. Supp. 3d 1013 (N.D. Cal. 2021) ...................... 8

In re Clean Water Act Rulemaking,

60 F.4th 583 (9th Cir. 2023) ...................................... 9

Islander E. Pipeline Co. v. Conn. Dept. of Env’t

Prot., 482 F.3d 79 (2d Cir. 2006) ............................ 4-5

Johnson v. California,

541 U.S. 428 (2004) .................................................. 24

VI

Cases—Continued:

Page(s)

Louisiana v. American Rivers,

142 S. Ct. 1347 (2022) ................................................ 9

Maslenjak v. United States,

137 S. Ct. 1918 (2017) .............................................. 25

Monsalvo v. Bondi,

145 S. Ct. 1232 (2025) .............................................. 30

N.C. Dep’t of Env’t Quality v. FERC,

3 F.4th 655 (4th Cir. 2021) ...................................... 20

N.Y. State Dep’t of Env’t Conservation v. FERC,

884 F.3d 450 (2d Cir. 2018) ................ 8, 15, 18, 20-21

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) .................................................. 33

PennEast Pipeline Co., LLC v. New Jersey,

141 S. Ct. 2244 (2021) .............................................. 30

Pennsylvania v. Wheeling & Belmont Bridge Co.,

54 U.S. 518 (1851) ...................................................... 6

PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of

Ecology, 511 U.S. 700 (1994) ................................... 27

S.D. Warren Co. v. Me. Bd. of Env’t Prot.,

547 U.S. 370 (2006) ................................................. 5-7

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) .................................................... 4

Seven Cnty. Infrastructure Coal. v. Eagle Cnty.,

Colo., 145 S. Ct. 1497 (2025) ................................... 35

Sierra Club v. State Water Control Bd.,

898 F.3d 383 (4th Cir. 2018) ...................................... 7

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .................................................. 32

VII

Cases—Continued:

Page(s)

Sperry v. State of Fla. ex rel. Fla. Bar,

373 U.S. 379 (1963) .................................................... 6

State v. Davis,

894 N.E.2d 1221(Ohio 2008).................................... 25

Street v. New York,

394 U.S. 576 (1969) .................................................. 23

Turkiye Halk Bankasi A.S. v. United States,

143 S. Ct. 940 (2023) ................................................ 31

Williams Nat. Gas Co. v. Oklahoma City,

890 F.2d 255 (10th Cir. 1989) .................................. 29

Statutes:

15 U.S.C. § 717b(d) .................................................. 5, 33

15 U.S.C. § 717b(d)(3) .................................................. 33

15 U.S.C. § 717f(e) ..................................................... 4, 8

15 U.S.C. § 717n(b)(1).................................................... 4

15 U.S.C. § 717o ............................................................. 4

15 U.S.C. § 717r(b)................................................... 5, 28

15 U.S.C. § 717s(a) ........................................................ 4

15 U.S.C. § 717t-1 .......................................................... 4

20 U.S.C. § 6364(f)(4)................................................... 32

22 U.S.C. § 8753(d) ...................................................... 32

33 U.S.C. § 1251(d) ........................................................ 8

33 U.S.C. § 1311 ......................................................... 5-6

33 U.S.C. § 1313 ............................................................ 6

33 U.S.C. § 1341(a) .................................................. 6, 24

33 U.S.C. § 1341(a)(1) ..................................... 6-7, 21, 30

VIII

Statutes—Continued:

Page(s)

33 U.S.C. § 1341(d) ........................................................ 7

33 U.S.C. § 1342(a) ........................................................ 6

33 U.S.C. § 1344 .......................................................... 16

33 U.S.C. § 1344(a) ...................................................... 32

42 U.S.C. § 505(f)(1)..................................................... 32

42 U.S.C. § 7651g(c)(2) ................................................ 32

42 U.S.C. § 7661b(c)..................................................... 32

Ohio Rev. Code § 6111.30(C) ....................................... 21

Ohio Rev. Code § 6111.30(G) ....................................... 24

Ohio Rev. Code § 6111.30(D). ...................................... 21

Regulations:

33 C.F.R. § 325.2(b)(1)(ii) (2008) ............................ 16-17

40 C.F.R. § 121.5(b) (2020) .......................................... 22

40 C.F.R. § 121.5(c) (2020) .......................................... 22

Statutory History:

H.R. Rep. 91-940 (1970) (Conf.) .................................... 8

Rules:

Ohio Sup. Ct. Rep. Op. R. 4.1 ...................................... 25

S. Ct. R. 14.1(g)(1) .................................................. 23-24

Administrative Materials:

Clean Water Act Section 401 Certification Rule,

85 Fed. Reg. 42,210 (July 13, 2020) ..... 8-9, 20, 22, 24

IX

Administrative Materials—Continued:

Page(s)

Clean Water Act Section 401 Water Quality

Certification Improvement Rule, 88 Fed.

Reg. 66,558 (Sept. 27, 2023) ................................ 9, 22

Comments of Louisiana et al., Docket No. EPAHQ-OW-2022-0128-0123 (Aug. 8, 2022),

https://perma.cc/N33H-S7CW ................................. 32

Millennium Pipeline Co., L.L.C.,

161 FERC ¶ 61,186 (2017) ....................................... 18

Other Authorities:

Black’s Law Dictionary (4th ed. 1968) ........................ 30

Letter from Stephen A. Ryba, Chief, Regulatory

Branch, Army Corps, to Ron Happach, CEO,

Millenium Pipeline Company, LLC (Oct. 16,

2017), FERC Accession No. 20171026-5163

attach. 2, https://tinyurl.com/4xuz925j .............. 18-19

Letter from Terry Turpin, Director, Off. of Energy

Projects, FERC, to Kelly Allen, Regul. Affairs

Dep’t Manager, Rover Pipeline, LLC (Sept. 18,

2017), FERC Accession No. 20170918-3075,

https://tinyurl.com/ydr2tf6v .................................... 11

Memorandum from Peggy S. Browne, Acting

Assistant Administrator, Off. of Water, EPA

(May 21, 2025), https://perma.cc/KC9M-WU2F........ 9

Mot. to Hold Matter in Abeyance, Louisiana v.

EPA, No. 23-cv-1714 (W.D. La. Feb. 7, 2025),

ECF No. 154 ............................................................... 9

Webster’s Third New International Dictionary

(1971) ........................................................................ 30

INTRODUCTION

Upon reading Ohio’s petition, an uninitiated

reader might be surprised to learn that it concerns the

regulation of an interstate natural gas pipeline—a

unique area subject to comprehensive regulation and

oversight by the Federal Energy Regulatory Commission (“FERC”), pursuant to a federal statute, the Natural Gas Act (“NGA”), that broadly preempts state environmental regulation in this field, subject only to

narrow exceptions of Congress’s own making. The petition—which is merely the latest chapter in Ohio’s

stubborn effort to undo the consequences of its own decisions—papers over that reality. So too does it ignore

the fact that Ohio easily could have avoided those consequences merely by taking timely action on permit

applications.

In early 2015, Rover sought authorization from

FERC to build an interstate natural gas pipeline running through Michigan, Ohio, Pennsylvania, and West

Virginia. Because of FERC’s comprehensive regulatory role under the NGA, any state regulation of this

interstate pipeline project would ordinarily be

preempted. However, under § 401 of the Clean Water

Act (“CWA”), Ohio had a one-year window to impose

state water-quality requirements on the project, in advance of construction. Thus, Congress gave Ohio an

option—if it wished—to jointly regulate a project that

would otherwise be subject solely to federal control.

But the State chose not to exercise that congressionally conferred option. Instead, it allowed its federally imposed one-year deadline to expire, waiving its

CWA authority. Then, following an extensive federal

environmental review, FERC approved the pipeline

(1)

2

and authorized its construction under the NGA, subject to extensive FERC-imposed environmental conditions.

The State later filed suit against Rover, asserting

violations of claimed state-law requirements that Ohio

could have, but did not, impose earlier through a

timely § 401 certification. After Ohio’s claims were

dismissed as inconsistent with the CWA and the background rule of preemption the NGA establishes for interstate pipeline construction, the State embarked on

a years-long unsuccessful series of state-court appeals.

The last of these was so ill-conceived the Ohio Supreme Court refused discretionary review. The State

now seeks this Court’s review, in a final effort to revive

the arguments the Ohio state courts soundly rejected.

This case is profoundly unworthy of this Court’s review. There is no split of authority on Ohio’s second

question presented (regarding the effect of its waiver),

and the State never contends otherwise. As for the

first question presented—regarding when the oneyear waiver clock begins under CWA § 401—the best

the State can muster is a supposed conflict with language in a 15-year-old Fourth Circuit decision that

was not even interpreting the text of § 401 itself.

There is accordingly no split of authority to address.

But even if Ohio’s assertion of a thin and stale circuit tension could be credited, the issue would still be

unworthy of review for multiple reasons. Most notably, the timing question Ohio’s petition presents,

which relates to when an application is considered “received” for purposes of beginning the one-year clock,

has subsequently been addressed administratively in

3

Environmental Protection Agency (“EPA”) rulemakings postdating the operative facts here. Ohio offers no persuasive reason for this Court to reach ten

years back in time, prior to EPA’s current (and quite

recent) rules addressing this, and adjudicate the timeliness of the State’s actions prior to those rules taking

effect. Indeed, this case is an almost uniquely bad candidate for review. If this Court’s review of the issues

Ohio raises were ever warranted (which is doubtful),

it would be in a case arising after the promulgation of

the most recent administrative rules on the subject.

In any event, the questions presented have rarely

been litigated and will rarely (if ever) be litigated in

the future, because States can easily avoid waiver under § 401 simply by taking timely action on certification requests. In an effort to make up for this lack of

practical importance, the State offers rhetoric about

purported threats to its sovereignty. But the State’s

quasi-constitutional puffery cannot withstand scrutiny. When Congress enacted the NGA in 1938, it occupied the field of interstate natural gas pipeline construction, subjecting the approval and construction of

such interstate projects to exclusive federal regulation.

And Congress would have been well within its constitutional authority to leave things there. As it happens, Congress later chose to give States a limited role

in regulating interstate natural gas pipeline construction via CWA § 401—albeit subject to § 401’s limits, including its express waiver provision. Ohio may be dissatisfied with the scope of its federally delegated statutory role in this congressionally crafted cooperativefederalism regime. But the State’s constitutional overtures are pure nonsense, intended to obscure the fact

4

that this case presents only splitless, infrequently

arising issues that States can easily avoid by diligently

acting on certification requests, and that EPA has issued subsequent rules to clarify. The petition should

be denied.

STATEMENT

I. Legal Background

A.

The Natural Gas Act

The NGA provides a “comprehensive scheme of federal regulation” for interstate natural gas transportation, including interstate natural gas pipelines.

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300

(1988) (citation omitted); see 15 U.S.C. § 717f(e).

Pursuant to its “exclusive jurisdiction” in this field,

FERC leads a coordinated effort to review and approve

applications for the construction of such interstate

pipelines. Schneidewind, 485 U.S. at 300-301, 308; see

Islander E. Pipeline Co. v. Conn. Dept. of Env’t Prot.,

482 F.3d 79, 84 (2d Cir. 2006); 15 U.S.C. §§ 717f(e),

717n(b)(1). If FERC determines that a proposed pipeline is required by the “public convenience and necessity,” then it “shall” issue a certificate authorizing the

pipeline. Id. § 717f(e); see Del. Riverkeeper Network v.

Sec’y Pa. Dept. of Env’t Prot., 833 F.3d 360, 367 (3d Cir.

2016). The NGA empowers FERC to monitor compliance with any conditions imposed in its certificates, to

ensure continued compliance via stop-work orders and

penalties, and to impose additional conditions if unforeseen circumstances arise. See 15 U.S.C. §§ 717o,

717t-1, 717s(a). Any party “aggrieved” by a FERC order issued under the NGA “may obtain a review of

such order” in an appropriate “court of appeals of the

5

United States.” Id. § 717r(b). And “[u]pon the filing of

such petition such court shall have jurisdiction, which

upon the filing of the record with it shall be exclusive,

to affirm, modify, or set aside such order in whole or in

part.” Ibid.

A provision of the NGA known as the “savings

clause” preserves “the rights of States under” the CWA

(as well as the Coastal Zone Management Act and the

Clean Air Act). 15 U.S.C. § 717b(d). Outside of the

federally delegated “rights” referenced in the savings

clause, States have no power to regulate the

construction of interstate natural gas pipelines. That

is because the NGA “wholly preempt[s] and completely

federalize[s] the area of [interstate] natural gas

regulation,” Islander E., 482 F.3d at 90, including

“state environmental regulation of interstate natural

gas facilities,” Del. Riverkeeper, 833 F.3d at 368.

B.

The Clean Water Act

1. The CWA establishes a comprehensive framework for regulating discharges of pollutants into waters of the United States. See S.D. Warren Co. v. Me.

Bd. of Env’t Prot., 547 U.S. 370, 385 (2006). When

crafting the CWA, Congress balanced the traditional

power of States to regulate water resources with the

need for comprehensive federal policy governing water

quality, as well as long-standing principles of federal

supremacy when licensing interstate projects. The result was a scheme of “cooperative federalism” under

which States and the federal government each have

defined roles. The CWA prohibits all discharges of pollutants into navigable waters without a permit, 33

U.S.C. § 1311, and then divides between federal agen-

6

cies and the States the authority to permit certain discharges, see id. §§ 1311, 1313, 1341(a), 1342(a).

While the CWA contemplates a limited role for

States, it does not alter the basic rule that, under longfamiliar preemption principles, “[n]o State law can

hinder or obstruct the free use of a license granted under an act of Congress.” Pennsylvania v. Wheeling &

Belmont Bridge Co., 54 U.S. 518, 566 (1851); see

Sperry v. State of Fla. ex rel. Fla. Bar, 373 U.S. 379,

385 (1963) (similar). Thus, Congress recognized that,

absent federal-law provisions creating a mechanism

for States to regulate the water-quality impacts of federally permitted projects, developers could rely on “a

Federal license or permit” to “excuse * * * a violation

of [state] water quality standard[s].” S.D. Warren, 547

U.S. at 386 (citation omitted).

2. Congress enacted CWA § 401 as the sole mechanism for States to participate in regulating federally

permitted projects’ water-quality impacts. Under

§ 401, an applicant for a federal permit “to conduct any

activity” that “may result in any discharge into the

navigable waters” must seek a certification from the

“State in which the discharge * * * will originate” that

the discharge will comply with state and federal water-quality laws. 33 U.S.C. § 1341(a)(1). Without such

a certification, the federal permit cannot be granted.

Ibid. Crucially, however, Section 401 provides that, 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.”

Ibid.

7

A State has four options when presented with an

application for a § 401 certification: (1) grant the certification outright, (2) grant the certification with conditions, (3) deny the certification, or (4) waive its certification authority. See Pet. App. 92a; Sierra Club v.

State Water Control Bd., 898 F.3d 383, 388 (4th Cir.

2018).

If the State elects the first option (grant outright),

then § 401 is satisfied and the federal permit requested by the applicant may be granted. If the State

elects the second option (grant with conditions), then

§ 401(d) specifies that the State “shall” include the

conditions “necessary to assure” that the applicant’s

activities will comply with certain listed provisions of

the CWA “and with any other appropriate requirement of State law”; once specified, the State’s conditions then become enforceable conditions on the federal permit. 33 U.S.C. § 1341(d). If the State elects

the third option (deny), then it can block the federal

project, unless its denial is successfully challenged in

court. See 33 U.S.C. § 1341(a)(1).

This case is largely about the fourth option available to States presented with a certification request

(waiver). Section 401 makes clear that, if a State fails

to act on a certification request within “one year * * *

after receipt of such request,” then the “certification

requirements of [§ 401] shall be waived with respect to

such Federal application.” 33 U.S.C. § 1341(a)(1). The

federal permit may then be issued, allowing the project to go forward without further restriction by the

State. Section 401 therefore operates to “preserve

state authority to address” water pollution, S.D. Warren, 547 U.S. at 386, while simultaneously imposing a

8

one-year deadline to prevent States from engaging in

“dalliance or unreasonable delay” when exercising

that authority, Hoopa Valley Tribe v. FERC, 913 F.3d

1099, 1104 (D.C. Cir.) (quotation omitted), cert. denied, 140 S. Ct. 650 (2019); see H.R. Rep. 91-940, at 55

(1970) (Conf.) (waiver provision intended to ensure

that “inactivity by the State * * * will not frustrate the

Federal application”). In the event of waiver, the

State’s limited grant of federal authority to impose

conditions for the relevant project dissipates and reverts back to the federal licensing agency. See Del.

Riverkeeper, 833 F.3d at 376; 15 U.S.C. § 717f(e).

3. The EPA oversees implementation of the CWA.

See 33 U.S.C. § 1251(d); Chem. Mfrs. Ass’n v. NRDC,

470 U.S. 116, 125 (1985). EPA has issued several implementing regulations for § 401 in recent years, and

is currently contemplating another revision to its

rules.

In 2020, EPA issued its first implementing rule for

§ 401 since 1971. See Clean Water Act Section 401

Certification Rule, 85 Fed. Reg. 42,210 (July 13, 2020)

(“2020 Rule”). The 2020 Rule expressly confirmed that

the one-year clock in § 401 “starts after ‘receipt of such

request’ by the certifying authority” and not “when a

State determines that a request for certification is

‘complete.’” Id. at 42,223-24 (quoting N.Y. State Dep’t

of Env’t Conservation v. FERC, 884 F.3d 450, 455-56

(2d Cir. 2018) (“NYSDEC”)); see id. at 42,243-48 (similar). A federal district court in California vacated the

2020 Rule, but this Court stayed that vacatur, and the

Ninth Circuit later reversed the district court. In re

Clean Water Act Rulemaking, 568 F. Supp. 3d 1013

(N.D. Cal. 2021), stay granted sub nom. Louisiana v.

9

American Rivers, 142 S. Ct. 1347 (2022), rev’d and remanded, 60 F.4th 583 (9th Cir. 2023).

In 2023, EPA issued a new regulation. Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66,558 (Sept. 27, 2023)

(“2023 Rule”). Over the objection of various States, the

2023 Rule backtracked in certain respects from the

2020 Rule, including by suggesting that States may establish “requirements for a request for certification

that starts the reasonable period of time.” Id. at

66,577. EPA nonetheless clarified that, even under

the new rule, the one-year clock would not be tethered

to the time “when a state deems [a request for certification] ‘complete.’” Id. at 66,576.

A consortium of eleven States and three industry

groups brought suit against EPA to challenge the 2023

Rule, and that litigation is currently pending in the

U.S. District Court for the Western District of Louisiana. In February 2025, that court placed the litigation

into abeyance after EPA represented that “new EPA

leadership” was “review[ing] the rule” to confirm that

EPA’s positions “reflect the views of current Agency

leadership.” Mot. to Hold Matter in Abeyance at 1-2,

Louisiana v. EPA, No. 23-cv-1714 (W.D. La. Feb. 7,

2025), ECF No. 154. And, in May 2025, EPA published

a memorandum announcing that it “will use a forthcoming Federal Register Notice and recommendations

docket” to consider changes to the 2023 Rule. Memorandum from Peggy S. Browne at 2, Acting Assistant

Administrator, Off. of Water, EPA (May 21, 2025),

https://perma.cc/KC9M-WU2F.

10

II. Factual and Procedural Background

1. In February 2015, Rover applied to FERC for a

certificate to construct and operate a 713-mile interstate pipeline through Michigan, Ohio, Pennsylvania,

and West Virginia. See Pet. App. 4a. With input from

Ohio, FERC developed an environmental impact statement (“EIS”) that fully considered the project’s potential environmental impacts. Id. at 17a. In February

2017, FERC issued a certificate to Rover. No party

sought judicial review of FERC’s certificate order.

Pipeline construction ended in 2020 and the project

entered service the same year.

2. In November 2015, Rover submitted a request

to Ohio for a § 401 certification. Pet. App. 4a. Ohio

did not act on that request within one year. Ibid.

Instead, Ohio informed Rover of perceived

insufficiencies in its request without taking any

formal action on the application, and ultimately

demanded that Rover “resubmit its request” for a

§ 401 certification. Pet. App 105a. Rover made its

revised request for certification on February 23, 2017.

See ibid. The next day (some 15 months after Rover

had first submitted its application), Ohio “granted the

revised request * * * without ever acting on the initial

request filed” in November 2015. Ibid.; see Pet. App.

89a (“undisputed” that Ohio “failed to act on Rover’s

original certification request within one year”).

In May 2017, Ohio asked FERC to halt construction of the project based on the same concerns that

later formed the factual predicates for this case—i.e.,

alleged “inadvertent returns” during drilling and “failure[s] to adequately control storm water runoff.” Pet.

11

App. 4a.1 FERC stopped work at some construction

sites until Rover implemented various protective

measures. See ibid. For the next several months,

Rover worked with FERC and Ohio to address the

State’s concerns.

In September 2017, FERC issued a letter order

that (1) allowed Rover to resume certain construction

activities and (2) rejected Ohio’s request that Rover be

required to meet Ohio’s new permitting demands (the

“September 2017 Order”).2 See Pet. App. 4a. Ohio did

not seek judicial review of the September 2017 Order.

From the time its FERC certificate became final to

the present, Rover has been subject to FERC’s expansive enforcement authorities. FERC is currently pursuing an enforcement action against Rover with respect to the same discharges that form this lawsuit’s

factual predicate. See Pet. App. 4a, 23a.

3. Unable to convince FERC to impose additional

conditions on Rover, Ohio attempted to impose them

de facto in November 2017 by bringing state-court litigation seeking penalties and other relief. Specifically,

Ohio’s complaint against Rover and its contractor alleged various state-law violations during the project’s

construction.

1 In the pipeline industry, the phrase “inadvertent returns” re-

fers to situations in which the drill used to bore through the

ground encounters natural fissures or other features that allow

drilling fluid to reach the surface. See Pet. App. 17a, 34a.

2 Letter from Terry Turpin, Director, Off. of Energy Projects,

FERC, to Kelly Allen, Regul. Affairs Dep’t Manager, Rover

Pipeline, LLC (Sept. 18, 2017), FERC Accession No. 201709183075, https://tinyurl.com/ydr2tf6v.

12

The defendants moved to dismiss on various

grounds, including waiver under CWA § 401 and

preemption under the NGA. In March 2019, the Ohio

Stark County Court of Common Pleas dismissed the

State’s lawsuit in full, reasoning that the State waived

all of the powers it now sought to exercise through litigation. Pet. App. 96a-108a. Ohio appealed to the

Ohio Fifth District Court of Appeals, which unanimously affirmed. Pet. App. 79a-95a.

4. The State then appealed to the Ohio Supreme

Court. In its memorandum in support of jurisdiction,

Ohio argued for the first time that the one-year clock

in § 401 does not begin to run until a State deems a

certification application to be “complete.”3 The State

also argued that even if it did waive its § 401 authority, it retained power to bring claims concerning matters outside “the scope of the certification it declined

to act on.” State’s Ohio S. Ct. Br. 18 (June 19, 2020),

2020 WL 3440352. But it conceded that it could not

“use state law to stop or remediate pollution within the

3 Ohio’s arguments at earlier stages of the litigation were much

different. In opposing the motions to dismiss at the trial court,

Ohio suggested that its February 2017 certification was timely

under a so-called “revise-and-resubmit” scheme—i.e., that Ohio

had supposedly “timely issued the 401 certification, one day after

* * * Rover reapplied,” with “364 days to spare.” Ohio Trial Ct.

MTD Opp. 24-25 (Oct. 12, 2018). As the Fifth District explained,

Ohio “abandoned” that argument on appeal. Pet. App. 89a. In

lieu of arguing that its February 2017 certification was timely,

Ohio instead insisted in its Fifth District briefs that, “even if the

State waived,” its waiver “does not preclude the[] claims” that are

supposedly “outside the scope of the Section 401 certification.”

Ohio 5th Dist. Appellant Br. 1, 16 (June 13, 2019).

13

scope of the certification it declined to act on.” Ibid.

(emphasis added); accord Pet. App. 67a.

In March 2022, the Ohio Supreme Court issued its

decision. Pet. App. 61a-78a. All seven Justices agreed

that the one-year clock in § 401 begins when the request for a certification is received, rather than when

that certification is deemed “complete” by the State.

Id. at 66a (majority), 70a (Fischer, J., concurring in

part and dissenting in part). Applying that rule to

these facts, the Ohio Supreme Court “conclude[d] that

the state waived” under § 401 and thus was prohibited

from asserting any claims within the “contours of the

Section 401 certification.” Id. at 68a-69a (majority).

However, the Court remanded on grounds that, before

dismissing the suit on the basis of waiver, the lower

court would need to determine whether Ohio’s lawsuit

(1) “assert[ed] rights related to th[e] certification” (in

which case waiver would bar the State’s claims), or instead (2) asserted rights “outside the contours of the

Section 401 certification” (in which case Ohio’s waiver

would not, in the Ohio Supreme Court’s view, bar

Ohio’s claims). Id. at 69a.4

5. On remand, and with Ohio’s agreement, the trial

court allowed the defendants to file motions to dismiss

addressing issues not resolved in the prior appeal to

the Ohio Supreme Court, including whether the NGA

preempted Ohio’s claims. See Pet. App. 6a, 40a. The

4 In his partial concurrence, Justice Fischer—joined by Justices

Kennedy and DeWine—explained that there was “no reason to

remand this case” because the record was already clear that Ohio

had “waived its ability * * * to enforce any state laws regarding

any discharges resulting from the activity of constructing the

pipeline.” Pet. App. 74a, 77a.

14

defendants explained that waiver and preemption operated together to eliminate any source of authority

the State could rely upon to maintain its lawsuit. The

Ohio trial court granted the motions to dismiss. See

id. at 37a-60a.

6. The Fifth District again unanimously affirmed.

Pet. App. 2a-36a. After first expressing frustration

with “the fluctuating arguments by [Ohio] at the various stages in these proceedings,” id. at 13a, the Fifth

District explained that, “during the permitting process, states can exercise their CWA permitting authority” through conditions in a § 401 certification, id. at

25a. However, “once the state waives this authority,

state law is preempted by federal law.” Id. at 25a-26a.

In other words, the “rights of States” protected from

preemption under the NGA’s savings clause are the

same federally delegated rights under the CWA that

are waived if the State decides not to act in a timely

manner on a § 401 certification request. More particularly, in the specific context of interstate natural gas

pipeline construction, the NGA preempts any remaining state powers (e.g., the traditional sovereign authority to regulate waters within the State’s jurisdiction). See id. at 34a-35a.

7. Ohio sought discretionary review of the Fifth

District’s 2024 opinion in the Ohio Supreme Court.

The Ohio Supreme Court declined to grant review.

Pet. App. 1a.

15

REASONS FOR DENYING THE PETITION

I. There Is No Split of Authority Among Lower

Courts.

First, this case does not warrant review because

there is no split of authority. Ohio does not contend

that there is any division of authority on its second

question presented. Rather, the State’s only asserted

split concerns the first question presented. However,

the State’s asserted split is illusory.

1. The State argues that the Ohio Supreme Court’s

unanimous decision on the question of whether

Rover’s November 2015 application triggered § 401’s

one-year clock deepened a purported split between the

Second and Fourth Circuits. Compare NYSDEC, 884

F.3d at 455-456 (2d Cir. 2018), with AES Sparrows

Point LNG, LLC v. Wilson, 589 F.3d 721, 729 (4th Cir.

2009). The State admits that the Second Circuit’s decision in NYSDEC is consistent with the Ohio Supreme Court’s decision here, see Pet. 18, so it is forced

to hang its entire argument for certiorari on the

Fourth Circuit’s 15-year-old decision in AES Sparrows. Ohio characterizes the Fourth Circuit’s decision

in AES Sparrows as having held that a “valid request”

for certification is necessary to trigger the one-year

clock. Pet. 17-18.

But AES Sparrows did not supply any interpretation of § 401 itself. Instead, as Ohio concedes, the

panel found that § 401 was “ambiguous” and granted

Chevron deference to an interpretation set forth in a

regulation of the U.S. Army Corps of Engineers

(“Army Corps”). AES Sparrows, 589 F.3d at 729. Because the Fourth Circuit did no textual analysis at

16

Chevron step one and did not deliver any holding

about the meaning of § 401, there is no conflict between AES Sparrows and NYSDEC. Indeed, as Ohio

itself conceded below, AES Sparrows at most “suggested” that Ohio’s position in this case might be correct. State’s Ohio S. Ct. Juris. Memo 3 (Jan. 17, 2020),

2020 WL 422473 (emphasis added). A “suggestion”

does not make a circuit split.

Moreover, AES Sparrows turned entirely on the

meaning of a regulation that does not even apply in

this case. See Pet. App. 65a. The regulation AES

Sparrows interpreted is an Army Corps implementing

rule for CWA § 404, 33 U.S.C. § 1344, under which the

Army Corps may grant permits for certain discharges

into navigable waters. The Army Corps regulation at

issue in AES Sparrows provided that no § 404 permit

“will be granted” by the Army Corps “until [a § 401]

certification has been obtained or has been waived,”

and that, “[i]n determining whether * * * waiver has

occurred, the [Army Corps’] district engineer will verify that the certifying agency has received a valid request for certification.” 33 C.F.R. § 325.2(b)(1)(ii).

In AES Sparrows, the Army Corps’ district engineer issued a public notice on April 25, 2008 stating

that Maryland had one year from that date to act on

the applicant’s request for a water quality certification. 589 F.3d at 729. Applying § 325.2(b), the Fourth

Circuit held that the one-year clock began to run on

the date of the 2008 notice, rather than in 2007, when

Maryland had first received the request. Ibid.

Whatever the merits of that holding, it has no application here. Rover sought a § 401 certification in

connection with its application to FERC for an NGA

17

§ 7 certificate, not in connection with an application to

the Army Corps for a CWA § 404 permit. The Army

Corps’ implementing regulations are therefore irrelevant.

In addition, the Army Corps regulation at issue in

AES Sparrows said only that the engineer should verify that “the certifying agency has received a valid request for certification.” 33 C.F.R. § 325.2(b)(1)(ii)

(2008). The regulation did not say what it meant for a

certification to be “valid,” or that the certifying State

(rather than EPA) was legally empowered to set criteria for “valid[ity].” Ohio apparently interprets AES

Sparrows to mean that, as a matter of federal law,

States must be permitted to decide whether an application for a § 401 certification is “complete.” See Pet.

9-10, 18. Ohio neglects to mention that AES Sparrows

itself rejected this interpretation, reasoning that it

would be “inconsistent with the plain language of 33

C.F.R. § 325.2(b)(1)(ii)” to suggest that “the state has

the responsibility to determine if it has received a

valid request for a § 401(a)(1) water quality certification.” AES Sparrows, 589 F.3d at 730 n.3 (citation

omitted).

In short, Ohio can marshal no case from any court

in any jurisdiction that has interpreted the actual text

of § 401 as it prefers. There is accordingly no split of

authority for this Court to resolve.

3. What’s more, the Army Corps itself has declined

to defend the interpretation of its regulation offered in

AES Sparrows. During FERC proceedings concerning

the Millenium pipeline in New York State, the parties

had the same dispute that now exists here: The pipeline developer argued to FERC that New York had

18

waived its § 401 authority by taking longer than one

year to act on its request for a certification, and New

York argued that it had not waived because the clock

did not begin running until the application was “complete.” The Army Corps wrote a letter (the “Ryba Letter”) indicating that it “does not endorse the position

taken by either side of this dispute” and that, should a

“Federal Court resolve this legal question, the Corps

would abide by [that] determination.”5

FERC ultimately agreed with the developer that

New York had waived, reasoning that the “plain

meaning” of § 401 is that the one-year clock begins

running “the day the agency receives a certification

application, rather than when the agency considers

the application to be complete.” Millennium Pipeline,

161 FERC ¶ 61,186, P 38. In so holding, FERC correctly noted that its case was “distinguishable from

AES Sparrow[s] ” because the “Corps’ interpretation of

the CWA is not at issue in this proceeding.” Id. P 31.

The Second Circuit then unanimously agreed with

FERC’s waiver ruling in Millenium Pipeline. Reviewing FERC’s orders without Chevron deference, the Second Circuit rejected New York’s argument that the

one-year timeline “applies only for ‘complete’ applications.” NYSDEC, 884 F.3d at 455-456. As noted, the

5 Letter from Stephen A. Ryba, Chief, Regulatory Branch, Army

Corps, to Ron Happach, CEO, Millenium Pipeline Company, LLC

(Oct. 16, 2017), FERC Accession No. 20171026-5163 attach. 2,

https://tinyurl.com/4xuz925j; see Millennium Pipeline Co.,

L.L.C., 161 FERC ¶ 61,186, P 31 & n.54 (2017) (discussing Ryba

Letter).

19

Army Corps itself has promised to “abide by [that] determination” rather than AES Sparrows. Ryba Letter

at 1.

4. Perhaps recognizing that it cannot credibly rely

on its flimsy alleged circuit split, Ohio asserts that

“federal regulations also conflict in reading Section

401.” Pet. 19. But this Court does not grant review to

resolve “splits” between federal regulations. Nor does

Ohio explain why supposedly different interpretations

of § 401 offered by FERC and the Army Corps would

warrant this Court’s review, given that neither of

those agencies (as opposed to EPA) has authority to

interpret § 401 itself. 6 As Ohio later sheepishly admits, Congress instead delegated that authority solely

to EPA, which has issued rulemakings on the subject

(postdating the operative facts of this case) and is continuing to examine the question. See Pet. 8; see also

pp. 8-9, supra.

II. This Case Does Not Present Important or

Recurring Questions, and Is a Poor Vehicle.

Regardless, even if the State’s assertions regarding

a supposed circuit tension could be credited, the questions presented do not warrant review—and this case

would also be an extraordinarily bad vehicle for addressing them.

6 If Ohio believes that there is a tension between EPA’s current

regulations and those of FERC, the solution is to petition FERC

to revise its rule.

20

A.

The First Question Presented Does Not

Warrant Review.

1. The question of when a certification request has

been received, thereby triggering the one-year waiver

clock, is rarely litigated. Although § 401 has existed

for more than fifty years, the petition identifies only

two other cases that have even arguably addressed the

subject. And one of those two cases—AES Sparrows—

was decided more than 15 years ago, has not been followed by any court since, and has been read narrowly

by the Fourth Circuit itself. See N.C. Dep’t of Envt.

Quality v. FERC, 3 F.4th 655, 667 n.4 (4th Cir. 2021)

(“Sparrows Point has no application” in cases that “involve withdrawn and resubmitted applications” for

§ 401 certifications).

2. There is a reason why the first question presented is so seldom litigated. As the Ohio Supreme

Court correctly recognized, if a State believes that an

application for a § 401 certification is incomplete, it

can simply deny the application within one year of receiving it. See Pet. App. 66a; accord NYSDEC, 884

F.3d at 456 (“If a state deems an application incomplete, it can simply deny the application without prejudice—which would constitute ‘acting’ on the request

under the language of Section 401.”); 2020 Rule, 85

Fed. Reg. at 42,250, 42,265 (similar). Ohio could have

timely denied Rover’s November 2015 application due

to supposed “incompleteness,” as many other States often do. The only reason this case arose is because Ohio

elected not to take that simple step. Thus, Ohio’s suggestion that the decision below threatens its “sovereignty over [its] own waters” is hyperbolic and inaccurate. Pet. 19. All a State in Ohio’s position must do to

21

fully protect its powers over waters within its borders

is to deny an application it believes is incomplete.

There is no reason to grant review to address an issue

States can avoid ever even arising simply by acting

with minimal diligence.

Ohio claims that it would prefer not to deny incomplete applications, supposedly because “that approach

would make the certification process far more adversarial” and would “prematurely trigger public notice

obligations * * * and hearing obligations.” Pet. 27-28.

But the procedural obligations Ohio discusses are all

creatures of state law. See 33 U.S.C. § 1341(a)(1) (the

“State * * * shall establish procedures for public notice” and “public hearings”); Pet. 28 (discussing rules

for hearings and comment periods under Ohio Rev.

Code §§ 6111.30(C)-(D)). If Ohio is truly concerned

about the risk of “confusing” or “duplicative” proceedings over applications it regards as incomplete, ibid.,

then it can change its procedures to address those concerns. Cf. NYSDEC, 884 F.3d at 456. Nor does Ohio

explain why denying an incomplete application without prejudice would be particularly “adversarial.”

3. Equally significant to the unworthiness of this

case for review is that EPA has addressed the timing

issue in rulemakings that postdate the operative

events in this case. See pp. 8-9, supra. It would be a

profound waste of this Court’s resources to ignore a

decade of intervening agency rulemaking on § 401 and

take up a case whose facts long predate all those

rules—especially given that the operative rules may

soon change again.

The Ohio Supreme Court issued its ruling on the

first question presented while EPA’s 2020 Rule was in

22

effect. That alone is a serious vehicle problem, given

that the regulations in place when this case was decided differ from those in place now. To make matters

worse, Ohio now seeks to draw support from the 2023

Rule, which postdates the relevant opinion below by

more than a year. But the 2023 Rule arguably allows

Ohio to implement its preferred rule on a prospective

basis—rendering it wholly pointless to grant review

here, save as an exercise in fact-specific case review

unworthy of this Court’s attention. See 2023 Rule, 88

Fed. Reg. at 66,577-78. Moreover, both the 2020 Rule

and the 2023 Rule provided that there would be certain minimum requirements for certification requests.

Thus, federal agency rulemaking has already foreclosed the State’s strained hypotheticals about

whether it would be enough to submit a certification

request via “handwritten note” or “a shout across the

street,” answering them in the negative. Cf. Pet. 23.7

And even if the first question warranted review,

that review would be premature. Litigation concerning the 2023 Rule remains ongoing, and the current

Administration has signaled that it may soon revisit

7 The 2020 Rule defined the term “certification request” and

listed certain “documents and information that must be included

in a certification request.” 85 Fed. Reg. at 42,243; see id. at

42,286 (40 C.F.R. §§ 121.5(b), (c) (2020)). Ohio’s petition does not

claim that Rover’s November 2015 certification request would be

materially incomplete under the 2020 definition of “certification

request,” which in any case postdated Rover’s November 2015

request by almost five years. Tellingly, the components that Ohio

insists were supposedly missing from Rover’s 2015 request (e.g.,

a “jurisdictional determination from the Army Corps,” Pet. 12)

were not required by EPA’s 2020 definition of “certification

request.”

23

that rule. See p. 9, supra. Granting review would

short-circuit an ongoing administrative process for no

good reason. The better approach is to let EPA’s process play out on its own terms. Ohio can participate

in that process, as other States are doing and have

done. And, should some party ultimately ask this

Court to review the validity of the 2023 Rule (or whatever new rule EPA may soon propose), this Court can

grant review at that time, if appropriate.

4. Review of the first question presented would also

be inequitable and unwarranted because Ohio did not

present its current argument concerning “complete”

applications to the trial court or the Fifth District. See

p. 12 n.3, supra. It debuted that argument at the Ohio

Supreme Court, apparently because a number of other

courts had rejected its prior “revise-and-resubmit” theory during the period after this case was filed but before it reached the Ohio Supreme Court. Even assuming that this Court could properly review the first

question despite the fact that it indisputably was not

presented at each stage of the state-court proceedings,8 the record is bereft of information that would be

8 Rover raised this preservation objection at the Ohio Supreme

Court, see Rover Ohio S. Ct. Br. 3, 40-41 (Aug. 7, 2020), 2020 WL

4677970, and that Court ultimately decided the case without

explicitly passing judgment on the preservation issue. But “[t]he

issue whether a federal question was sufficiently and properly

raised in the state courts is itself ultimately a federal question,

as to which this Court is not bound by the decision of the state

courts.” Street v. New York, 394 U.S. 576, 583 (1969).

Moreover, the petition violates this Court’s Rule 14.1, which

provides that, when “review of a state-court judgment is sought,”

the petitioner must specify “the stage in the proceedings, both in

24

critical for this Court to properly review the question.

Notably, Rover’s November 2015 certification application—the critical document on which Ohio’s entire

case now turns, see Pet. 26—is not even in the record

for this proceeding.

5. Finally, even if Ohio were correct on its first

question presented, it would not change the ultimate

result in this case. Although § 401 provides that the

maximum time to act on an application is one year, it

also makes clear that States ultimately must act

within a “reasonable period of time,” 33 U.S.C.

§ 1341(a). Many States have implemented laws interpreting the “reasonable period” to be less than one

year. See 2020 Rule, 85 Fed. Reg. at 42,235. Ohio is

one such State: Its statutes require the Ohio Department of Environmental Protection to “issue or deny” a

certification within 180 days after receipt of a “complete application.” Ohio Rev. Code § 6111.30(G). Ohio

admits that “Rover submitted a completed application” by July 2016, meaning that the deadline for State

action was January 2017. State’s Ohio S. Ct. Br. 37;

cf. Pet. 12. Thus, even if Ohio were correct that the

clock does not begin to run until an application is complete, its February 2017 certification was still too late.

the court of first instance and in the appellate courts, when the

federal questions sought to be reviewed were raised.” S. Ct. R.

14.1(g)(1) (emphasis added). The petition makes no such

disclosure. Cf. Adams v. Robertson, 520 U.S. 83, 92 n.5 (1997)

(noting non-compliance with Rule 14.1(g) before dismissing writ

of certiorari as improvidently granted); Johnson v. California,

541 U.S. 428, 431 (2004) (similar).

25

B.

The Second Question Presented Does

Not Warrant Review.

1. As to the second question presented—concerning the consequences of Ohio’s waiver for its claims in

this litigation—Ohio concedes that it seeks review of

an intermediate state appellate court decision. That

decision is binding solely in one of twelve intermediate

appellate districts in Ohio. And in the (unlikely) event

the issue ever arises in a future case, the Ohio Supreme Court is free to revisit the Fifth District’s legal

holdings. This Court rarely grants review in such circumstances. Cf. Huber v. N.J. Dep’t of Env’t Prot., 131

S. Ct. 1308, 1308 (2011) (statement of Alito, J., respecting denial of certiorari).9

The absence of any decisions from other courts addressing the second question presented—much less

decisions of federal appellate courts or state courts of

last resort—cuts sharply against review. This Court

does not customarily grant review of legal issues that

have not been addressed by any court except a single

intermediate state appellate court. Cf. Maslenjak v.

United States, 137 S. Ct. 1918, 1932 (2017) (Gorsuch,

J., concurring in part and concurring in the judgment)

(“This Court often speaks most wisely when it speaks

last.”).

The absence of other decisions addressing the

question is, moreover, entirely unsurprising. For

9 The Ohio Supreme Court’s decision not to grant discretionary

review does not constitute “a statement of opinion as to the merits

of the law stated by” the Fifth District. Ohio Sup. Ct. Rep. Op. R.

4.1; accord State v. Davis, 894 N.E.2d 1221, 1225 (Ohio 2008).

26

starters, the second question presented—properly construed—concerns only the effect of Ohio’s waiver on its

specific claims in this case. The State conceded in the

Ohio Supreme Court that waiver would prevent it

from “later us[ing] state law to stop or remediate pollution within the scope of the certification it declined

to act on”—in other words, that waiver would extinguish the State’s authority to regulate “the activity for

which a permit is sought.” State’s Ohio S. Ct. Br. 18;

cf. Pet. 12 (Ohio Supreme Court citing that concession). The Ohio Supreme Court agreed with that framing, see Pet. App. 68a-70a, and the Fifth District

simply found that Ohio lost even under that approach.

The fact that that narrow question presents no split of

legal authority (and never will) is hardly surprising.

To the extent Ohio seeks to frame its second question

presented more broadly—in terms of unspecified

“other” rights it might retain despite its waiver, and

despite the NGA’s preemptive scope, Pet. i—it forfeited any such arguments long ago.

In any event, questions about the effect of a

waiver on subsequent efforts to regulate federally permitted projects rarely arise because States seldom

waive under § 401 without intending to do so, much

less waive and then come back later seeking to use litigation to enforce environmental conditions they could

have, but did not, include in a timely § 401 certification.10 In addition, all States have to do to avoid the

situation in which Ohio found itself is either (1) deny

10 Such waivers are even less common after the D.C. Circuit’s

Hoopa Valley decision and its progeny, which clarified the

relationship between waivers under § 401 and revise-andresubmit schemes. See Hoopa Valley, 913 F.3d at 1104.

27

the application; or (2) grant the application with conditions pursuant to CWA § 401(d)—which can include

state-law water-quality-related conditions like the

ones at issue here, see PUD No. 1 of Jefferson Cnty. v.

Wash. Dept. of Ecology, 511 U.S. 700, 713 (1994). Ohio

took neither step, and now seeks discretionary relief

from a problem of its own making. But no State will

ever face the same problem if it acts diligently to deny

or conditionally grant certification requests.

2. In an effort to paper over the manifest unimportance of the second question, Ohio offers constitutional puffery—going so far as to frame the decision

below as a threat to its sovereignty. But the State’s

constitutional overtures are empty. Ohio complains

about being forced to choose between participating in

the § 401 process and having its ability to regulate interstate natural gas pipeline construction preempted.

See Pet. 31. But Congress occupied the field of interstate natural gas pipeline construction when it enacted the NGA in 1938—something it plainly had constitutional authority to do. Although Congress later

gave States a limited role in the process via § 401 and

the NGA’s savings clause, it was not constitutionally

required to give States any such role. Questions about

the scope of the NGA’s savings clause and the consequences of the CWA’s waiver provision thus have no

constitutional implications whatsoever.

3. Nor does the second question presented implicate any concerns about adequate environmental regulation of FERC-permitted infrastructure projects.

The Fifth District’s decision simply held that, due to

the combined effect of Ohio’s waiver against the back-

28

drop of preemption under the NGA, regulatory authority reverted to exclusive federal oversight. And that

federal oversight was fully exercised here. FERC

paused construction of the Rover project at Ohio’s urging to address the same concerns at issue in this case,

and millions of dollars were spent on remediation, satisfying FERC that Ohio’s environment would be adequately protected on a prospective basis. As for retrospective sanctions, FERC is pursuing an enforcement

action against Rover with respect to the same discharges that form the predicate of this suit. See p. 11,

supra.

C.

This Case Also Presents Threshold

Jurisdictional Issues That Further Cut

Against Review.

The procedural posture of the case also raises serious questions about statutory jurisdiction that could

prevent the Court from reaching the merits of most of

Ohio’s current claims. That is because, as the defendants argued below, those claims are improper collateral attacks on long-final FERC orders, which were required to be brought (if at all) in challenges to those

orders in federal appellate court.

Section 19(b) of the NGA grants the federal courts

of appeals “exclusive” jurisdiction “to affirm, modify,

or set aside” FERC’s orders. 15 U.S.C. § 717r(b). That

statute “preclude[s] de novo litigation between the

parties of all issues inhering in [a] controversy” before

FERC. City of Tacoma v. Taxpayers of Tacoma, 357

U.S. 320, 336 (1958). Thus, Ohio’s current claims are

precluded to the extent they relate to issues on which

the State lost at FERC, or could have raised at FERC

and elected not to.

29

Ohio’s claims fit that description to a tee. For example, the claims regarding drilling fluid in Counts 1,

3, and 5 are improper collateral attacks on both

FERC’s September 2017 Order (which rejected Ohio’s

arguments concerning fluid releases and allowed construction to resume over the State’s objection) and

FERC’s EIS and certificate order (which approved the

construction method Rover used and acknowledged

the eventuality of the releases to which Ohio later objected). See Pet. App. 4a, 17a, 92a. And the claims

regarding stormwater releases in Counts 2 and 5 are

improper collateral attacks on both FERC’s certificate

order (which anticipated stormwater discharges and

included conditions regulating them) and FERC’s September 2017 Order (which allowed construction to resume despite Ohio’s objection that Rover needed to obtain certain stormwater permits). See ibid.

Ohio’s sole mechanism for litigating these claims

was to raise them at FERC and then seek review of

FERC’s orders by filing a petition for review in an appropriate federal court of appeals. Cf. Pet. App. 22a.

The fact that Ohio never pursued such a petition is irrelevant, because a State cannot “circumvent the

scheme of judicial review under § 19 simply by choosing not to file a petition for review.” Williams Nat. Gas

Co. v. Oklahoma City, 890 F.2d 255, 262 n.8 (10th Cir.

1989).

This jurisdictional issue was extensively briefed

during the state-court litigation. Because the Ohio

courts resolved this case on other grounds (which were

subject-matter-jurisdictional under Ohio state law,

see Pet. App. 8a, 108a), they never reached this question. But if this Court granted review, it would need

30

to decide whether Ohio was required to litigate its current claims in the federal courts of appeals, or whether

the state courts below lacked subject-matter jurisdiction. Cf. PennEast Pipeline Co., LLC v. New Jersey,

141 S. Ct. 2244, 2254 (2021). Litigation of these

threshold jurisdictional issues would crowd out the

merits of the questions on which Ohio seeks review.

Cf. Monsalvo v. Bondi, 145 S. Ct. 1232, 1245 (2025)

(Thomas, J., dissenting) (expressing frustration that

“[t]his Court granted certiorari to decide” underlying

merits issues, but “briefing revealed a serious, novel

jurisdictional objection” concerning the lower court’s

statutory jurisdiction “that may bar our review”). If

this Court wants to review the questions presented, it

can do so in a future case free of lurking jurisdictional

problems—e.g., an appeal of challenges to an EPA implementing rule.

III. The Decision Below Is Correct.

A.

The Ohio Supreme Court Correctly

Resolved the First Question Presented.

1. As to the first question presented, Section 401

provides that the one-year clock starts upon “receipt”

of a “request for certification,” 33 U.S.C. § 1341(a)(1)—

not that it starts when the request for certification is

“complete.” Dictionaries and ordinary speakers of

English understand the word “request” to mean any

instance of asking for something. See Black’s Law Dictionary 1468 (4th ed. 1968) (noun “request” means

“[a]n asking” or “the expression of a desire to some person for something to be granted”); Webster’s Third

New International Dictionary 1929 (1971) (“request”

means “an instance of asking for something”).

31

All agree that the application Ohio received from

Rover in November 2015 asked for a § 401 certification

to be granted. That application was therefore a “request” within the ordinary meaning of that term. Ohio

nonetheless implies that the application was not “formal” enough to qualify under its atextual definition of

“request.” Pet. 23. But the November 2015 application was presented on a standard form made available

by the Ohio Environmental Protection Agency, and it

was accompanied by detailed tables, schematics,

maps, design parameters, economic and environmental analyses, and mitigation plans that together

spanned more than 1,700 pages. See Rover Ohio S. Ct.

Br. 44 & n.14. Ohio’s suggestion that Rover’s request

was akin to a “quick email” or a “handwritten note”

blinks reality. Pet. 23.

2. Ohio now insists that the term “request” actually means “complete request,” supposedly because

that meaning is evident from the “broader context” of

the statute. Pet. 23. Wrong. Congress did not use the

word “complete” in § 401, and no court may “add words

to [a] law to produce what is thought to be a desirable

result.” EEOC v. Abercrombie & Fitch Stores, Inc., 575

U.S. 768, 774 (2015); see Turkiye Halk Bankasi A.S. v.

United States, 143 S. Ct. 940, 945 (2023) (court cannot

“graft an atextual limitation” into a federal statute).

In any case, statutory context confirms that, when

Congress intended to qualify the term “application”

with the modifier “complete,” it did so. For example,

CWA § 404 provides that certain notice requirements

for permits under that Section are tethered to the

“date an applicant submits all the information required to complete an application for a permit.” 33

32

U.S.C. § 1344(a) (emphasis added)).11 That Congress

said “complete” elsewhere in the CWA, but not in

§ 401, confirms that all “requests” for certification—

not just “complete” ones—start the waiver clock under

§ 401. See Sosa v. Alvarez-Machain, 542 U.S. 692, 711

n.9 (2004) (“[W]hen the legislature uses certain language in one part of the statute and different language

in another, the court assumes different meanings were

intended.”).

3. Congress’s textual decision also dovetails with

sound policy. Ohio’s rule would defeat the purpose of

the statute by allowing States to indefinitely delay

much-needed projects via determinations that the application is not “complete” due to their own subjective

interpretations of vague and ever-shifting state laws.

As thirteen States explained in a recent letter to EPA,

crediting Ohio’s theory in this case will “enable States

to * * * frustrate infrastructure development” and

“us[e] bureaucratic games to effectively veto a project

that has significant economic effects across an entire

region.” Comments of Louisiana et al. at 7-8, Docket

No. EPA-HQ-OW-2022-0128-0123 (Aug. 8, 2022),

https://perma.cc/N33H-S7CW. This risk is particu-

11 Myriad other statutes confirm that Congress plainly knows

how to refer to a “complete” application when it wants to. See,

e.g., 42 U.S.C. § 7661b(c) (provision of Clean Air Act requiring

action on “a completed application” within “18 months after * * *

receipt thereof”); 22 U.S.C. § 8753(d) (“License determinations for

complete requests * * * shall be made not later than 90 days after

receipt”); 42 U.S.C. § 505(f)(1) (“within 30 days after receipt of a

complete application”); 42 U.S.C. § 7651g(c)(2) (“within 6 months

after receipt of a complete submission”); 20 U.S.C. § 6364(f)(4)

(“90 days after receipt of the complete application”).

33

larly dangerous in the context of interstate gas pipelines, where the applicant often must obtain 401 certifications from multiple States that have multiple

standards. Requiring States to act promptly on certification requests—rather than bogging down project

development in debates or litigation about whether

applications are “complete” enough to satisfy a particular State—is the only way to ensure such projects can

move forward.

B.

The Fifth District Correctly Resolved

the Second Question Presented.

As to the second question presented, the decision

below rested on a straightforward application of wellaccepted preemption principles against the backdrop

of Ohio’s waiver. The NGA preempts all state environmental regulation of interstate natural gas pipeline

construction except to the extent covered by its savings

clause. See pp. 4-5, supra. Thus, Ohio had no authority to regulate Rover’s construction activities except

insofar as it was exercising “rights * * * under” the

CWA. 15 U.S.C. § 717b(d). That disposes of any effort

by the State to assert its traditional (non-federally-delegated) regulatory powers in this unique context.12

And all of Ohio’s rights under the CWA were

waived. Ohio conceded below that “a State necessarily

waives its right to participate in the permitting pro-

12 Ohio halfheartedly argues otherwise, see Pet. 32-33, but the

most natural reading is that the phrase “rights * * * under” the

CWA, 15 U.S.C. § 717b(d)(3), means rights that exist “by reason

of the authority” of the CWA, Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109, 124 (2018).

34

cess, and thus waives its right to enforce state pollution laws in response to pollution that is within the

federal permit’s scope, if it fails timely to act on a certification request,” State’s Ohio S. Ct. Br. 4, and it has

now forfeited any broader argument. Moreover, as

Rover explained below, all of Ohio’s claims fall within

the scope of the federal permit, because they all pertain to Rover’s pipeline construction, and all of the requirements it sought to assert were requirements it

could have placed in § 401(d) conditions.

Thus, all of Ohio’s claims, whether nominally

granted in federally conferred rights under the CWA

or Ohio’s traditional regulatory authority, are either

waived or preempted. That narrow, case-specific decision of an intermediate state court is plainly unworthy

of review. And, once again, the decision below accords

not only with the text of the statute and with familiar

preemption principles; it accords as well with sound

policy. Through the NGA and CWA, Congress balanced the federal interest in a FERC-centered interstate pipeline development process with the States’ interest in regulating waters by creating a defined process for States to participate in pipeline regulation:

§ 401 certification. As participants in that process,

States have a time-limited opportunity to impose regulatory requirements. That process gives federal authorities timely notice of the requirements the State

seeks to impose on a project, before construction commences. But if a State chooses not to participate, it

must stand aside and cede to exclusive federal authority. A State cannot fail to participate according to the

process Congress specified, then later change its mind

and decide it wishes to impose requirements after all.

35

A contrary approach would “hamstring new infrastructure and construction projects,” Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colo., 145 S. Ct.

1497, 1514 (2025), by rendering the one-year deadline

a nullity and preventing both federal authorities and

project developers from knowing what regulatory requirements their federally permitted projects will be

subject to in a timely manner.

36

CONCLUSION

The petition should be denied.

Respectfully submitted.

WILLIAM S. SCHERMAN

Counsel of Record

JASON J. FLEISCHER

MATTHEW X. ETCHEMENDY

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6550

wscherman@velaw.com

Counsel for Respondent

Rover Pipeline, LLC

BENJAMIN C. SASSÉ

TUCKER ELLIS LLP

950 Main Ave., Suite 1100

Cleveland, OH 44113

(216) 696-3213

benjamin.sasse

@tuckerellis.com

Counsel for Respondent

Pretec Directional

Drilling, LLC

JUNE 2025