Reply 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

______________________________

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

______________________________

REPLY IN SUPPORT 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. 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. 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

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

TABLE OF CONTENTS .............................................ii

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

REPLY ......................................................................... 1

I.

II.

The Court should resolve when the States’

waiver clock starts under Section 401. ......... 1

A.

The decision below deepened an

existing conflict. ....................................... 1

B.

The federal landscape and practical

considerations show this question’s

importance. ............................................... 3

C.

No serious vehicle concern exists. ........... 6

D.

The decision below is wrong. ................... 8

This Court should resolve the effect of

waiver............................................................. 9

III. Rover’s alternative argument provides no

basis for denying or expanding review. ...... 11

CONCLUSION.......................................................... 12

iii

TABLE OF AUTHORITIES

Cases

Page(s)

AES Sparrows Point LNG, LLC v.

Wilson,

589 F.3d 721 (4th Cir. 2009) ......................... 1, 2, 3

Cal. State Water Res. Control Bd. v.

FERC,

43 F.4th 920 (9th Cir. 2022) .................................. 4

In re Columbus S. Power Co.,

128 Ohio St. 3d 512 (2011) .................................... 8

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019).............................. 4

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ............................................... 6

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ....................................... 2, 3, 8

Masterpiece Cakeshop, Ltd. v. Colo. Civ.

Rights Comm’n,

584 U.S. 617 (2018) ............................................. 10

N.C. Dep’t of Env’tl Quality v. FERC,

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

N.Y. State Dep’t of Env’tl Conservation

v. FERC,

884 F.3d 450 (2d Cir. 2018) ............................... 2, 5

NFIB v. Sebelius,

567 U.S. 519 (2012) ............................................... 9

iv

Ohio High Sch. Athletic Ass’n v.

Ruehlman,

157 Ohio St. 3d 296 (2019) .................................. 11

Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373 (2015) ............................................. 10

S.D. Warren Co. v. Me. Bd. of Env’tl

Prot.,

547 U.S. 370 (2006) ............................................... 3

Sheetz v. Cnty. of El Dorado,

601 U.S. 267 (2024) ............................................. 10

United States v. Williams,

504 U.S. 36 (1992) ................................................. 6

Statutes and Rules

33 C.F.R. §325.2 .......................................................... 2

40 C.F.R. §121.6 .......................................................... 5

85 Fed. Reg. 42210 (July 13, 2020) ........................ 4, 5

88 Fed. Reg. 66558 (Sept. 27, 2023) ....................... 4, 5

15 U.S.C. §717b ............................................... 9, 10, 12

28 U.S.C. §1257 ......................................................... 11

33 U.S.C. §1341 ................................................... 1, 3, 6

Ohio Rev. Code §6111.30 .................................... 3, 7, 9

v

Other Authorities

Clean Water Act Section 401 Water

Quality Certification: A Water

Quality Protection Tool for States

and Tribes (2010)........................................... 3, 4, 9

Letter from Todd Surrena, Application

Coordinator, to Buffy Thomason,

Rover Pipeline LLC (Dec. 7, 2015) ........................ 7

Wetlands and 401 Certification:

Opportunities Guidelines for States

and Eligible Indian Tribes (1989)..................... 4, 9

REPLY

Section 401 of the Clean Water Act assigns the

States a “certification” role in federal licensing. 33

U.S.C. §1341(a)(1). A State waives that role 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 presents two questions about waiver under Section 401. First, when does the States’ waiver

timeframe begin? Second, what are the consequences

of waiver? These questions warrant this Court’s review. The first implicates a significant conflict. The

second raises serious constitutional concerns.

Unable to pound the law or the facts, Rover pounds

the table against review. But its positions lack merit.

I.

The Court should resolve when the States’

waiver clock starts under Section 401.

Although Rover says this case is about the Natural

Gas Act, BIO.1, its defense is premised on waiver under Section 401 of the Clean Water Act, BIO.7–8. A

State’s waiver timeframe begins upon a “request” for

certification. §1341(a)(1). But Section 401 does not

define “request.” The term’s meaning presents an important issue that has divided circuits and a state high

court. Specifically, courts disagree on whether Section 401 requires a valid request—satisfying applicable legal requirements—to start the waiver clock.

A.

The decision below deepened an

existing conflict.

The Fourth Circuit has concluded that Section 401

is “ambiguous” as to whether “an invalid” request triggers the waiver timeframe. AES Sparrows Point

LNG, LLC v. Wilson, 589 F.3d 721, 729 (4th Cir. 2009).

2

That court—deferring to a regulation of the Army

Corps of Engineers—held that “only a valid request

for § 401(a)(1) water quality certification … will trigger the one-year waiver period.” Id.; see 33 C.F.R.

§325.2(b)(1)(ii).

The Second Circuit, however, has concluded that

Section 401’s language is “plain.” N.Y. State Dep’t of

Env’tl Conservation v. FERC, 884 F.3d 450, 455 (2d

Cir. 2018) (“NYSDEC”). It read the text as “a brightline rule” under which any submission begins the

waiver timeframe, no matter whether the submission

is “complete” under applicable regulations. Id. at

455–56. Below, the Supreme Court of Ohio followed

the Second Circuit’s approach over the Fourth Circuit’s. Pet.App.65a–67a.

Rover makes no serious attempt to reconcile these

decisions. It instead tries to minimize AES Sparrows.

Rover says the decision did “not even interpret[] the

text of” Section 401 “itself.” BIO.2. That is incorrect.

In AES Sparrows, the Fourth Circuit reviewed the

“relevant” statutory language, found it “ambiguous,”

and determined that requiring a valid request was

“permissible in light of the statutory text.” 589 F.3d

at 728–29. True, the Fourth Circuit interpreted Section 401 using the (now-overruled) Chevron framework. But, as Rover does not dispute, past decisions

employing Chevron “are still subject to statutory stare

decisis.” Loper Bright Enters. v. Raimondo, 603 U.S.

369, 412 (2024). Thus, Rover cannot discard AES

Sparrows as a “15-year-old” decision. BIO.2.

Rover’s other arguments do not erase the conflict.

Rover stresses that AES Sparrows involved an Army

Corps regulation not directly at issue here. BIO.16.

Correct, but unimportant. Because Section 401

3

applies to all federal permitting, it naturally covers

many regulated areas. See §1341(a)(1). The key point

is that, in the Fourth Circuit, AES Sparrows retains

“statutory” stare decisis for purposes of Section 401.

Loper Bright, 603 U.S. at 412.

Rover also confuses a footnote within AES Sparrows. BIO.17. The footnote observed that it was the

federal agency’s responsibility (not the State’s) to decide a request’s validity. 589 F.3d at 730 n.3. The first

question, however, does not present a “who decides”

debate. It asks the meaning of “request.” Even if federal actors ultimately decide whether a request was

made, the question remains whether a submission

must be valid under applicable regulatory standards.

And, during the timeframe relevant to this case,

Ohio’s regulations set the applicable standards. See

Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and

Tribes (2010), at 11, 16 https://tinyurl.com/6thtbf6j

(“2010 Guidance”); Ohio Rev. Code §6111.30(A).

B.

The federal landscape and practical

considerations show this question’s

importance.

1. A closer look at the regulatory landscape

strengthens the case for review. Federal regulations

regarding Section 401 conflict. Pet.19–20. Rover does

not say otherwise. It simply insists the disagreement

is not worth this Court’s attention. BIO.19. Why not?

The Court recently clarified that judges—not executive actors—definitively interpret statutory language.

Loper Bright, 603 U.S. at 403. So, if an “essential”

provision of the Clean Water Act is giving federal

agencies trouble, this Court should step in. See S.D.

Warren Co. v. Me. Bd. of Env’tl Prot., 547 U.S. 370,

4

386 (2006). That is particularly true when more rulemaking might be forthcoming. See BIO.9. This Court

should reject Rover’s call for a “wait for the regulators”

approach.

The EPA’s regulatory history further supports review. Rover suggests that the first question has been

“rarely litigated,” BIO.20, but it ignores the underlying reason. For most of the Clean Water Act’s history,

the EPA left States to define what qualifies as a request. See 2010 Guidance at 11, 16; Wetlands and 401

Certification: Opportunities Guidelines for States and

Eligible Indian Tribes (1989), at 30–31 https://tinyurl.com/4rfyvn4n (“1989 Guidance”). Under that

approach, litigation was sparse. Whereas, with increased attention and regulatory changes, litigation

over waiver has picked up. E.g., Cal. State Water Res.

Control Bd. v. FERC, 43 F.4th 920, 935–36 (9th Cir.

2022); N.C. Dep’t of Env’tl Quality v. FERC, 3 F.4th

655, 669–70 (4th Cir. 2021); Hoopa Valley Tribe v.

FERC, 913 F.3d 1099, 1100–01 (D.C. Cir. 2019). But

whatever the frequency of litigation, States must constantly make decisions about their timeline for deciding certification. So, the first question presents a frequently recurring issue.

The first question also transcends recent regulatory changes. Contra BIO.21. To be sure, the waiver

events relevant here predated the 2020 Rule and the

2023 Rule. See 85 Fed. Reg. 42210 (July 13, 2020); 88

Fed. Reg. 66558 (Sept. 27, 2023). But the controlling

statutory issue remains: to start the States’ waiver

clock, does a “request” have to satisfy applicable law?

Or is any expression of desire for certification enough?

The 2020 Rule and 2023 Rule set different regulatory

standards for what counts as a request, but both rules

agree that the States’ waiver clock does not begin until

5

an applicant submits a valid request. See 85 Fed. Reg.

at 42243–45; 88 Fed. Reg. at 66581. The 2023 Rule,

for example, provides that the waiver “clock starts”

when States receive a submission satisfying the regulatory definition of “request for certification.” 88 Fed.

Reg. at 66581; see 40 C.F.R. §121.6(a). That approach—which remains in effect—conflicts with the

Second Circuit’s “bright-line rule,” under which even

incomplete submissions start the waiver clock.

NYSDEC, 884 F.3d at 455–56; accord Pet.App.66a–

67a. Given this enduring disagreement, the Court’s

answer to the first question matters going forward.

2. Practical considerations bolster the need for review. Section 401’s waiver timeline affects many actors: States, federal agencies, regulated parties, and

interested members of the public seeking to comment

on proposed projects. Pet.21. Rover does not argue

otherwise.

Instead, Rover offers a far-from-ideal suggestion.

It says that States—rather than seeking to understand Section 401’s true timeline—should simply assume Rover is correct and deny incomplete applications protectively to avoid waiver. BIO.20. But that

is no way to run a railroad. That approach would

make the certification process less collaborative and

more adversarial. Pet.27. Put it this way. Most regulated parties would prefer requests for more information over denials of their applications.

Rover’s approach would also lead to duplicative

and confusing public notice and hearing proceedings.

Pet.27–28. On this front, Rover suggests that any

problem is unique to Ohio’s certification process.

BIO.21. Wrong. Section 401’s text is what requires

“public notice” for all certification requests and “public

6

hearings” for some. §1341(a)(1). If invalid requests

are enough to trigger the States’ waiver timeline, they

are presumably enough to trigger these procedural obligations.

C.

No serious vehicle concern exists.

Rover attempts several vehicle arguments, but

none lands. Take first Rover’s argument that Ohio

“debuted” its current argument about waiver too late

in the state appellate process. BIO.23. The argument

misunderstands this Court’s “traditional rule” governing review. United States v. Williams, 504 U.S. 36, 41

(1992). Namely, this Court will review questions either “pressed or passed upon below.” Id. (quotation

omitted). The Supreme Court of Ohio undeniably

passed upon the first question presented.

Pet.App.65a–67a. Thus, any preservation concern immediately disappears. Even assuming otherwise,

Rover views Ohio’s position at the wrong level of abstraction. Parties forfeit legal claims, not in-theweeds arguments. Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 379 (1995). Here, Ohio has consistently claimed that it did not waive its certification

authority. That Ohio has refined its arguments supporting that “consistent claim” is no barrier to review.

See id.

Rover’s passing argument about Supreme Court

Rule 14.1 similarly fails. BIO.23 n.8. That rule requires a party appealing from state-court proceedings

to specify when federal questions were first raised and

how they were passed upon. Notably, the rule is written in passive voice, given that either side of a dispute

might introduce federal issues. Ohio’s petition specified that Rover raised the issue of waiver and then detailed how the courts, including the Supreme Court of

7

Ohio, passed upon the issue. Pet.13–14. Ohio’s petition thus satisfied Rule 14.1, notwithstanding Rover’s

pedantic reading.

Rover’s argument about an item omitted from the

record fares no better. See BIO.24. Rover’s point is

strange, procedurally speaking. This case was dismissed on the pleadings at Rover’s request. At that

early stage, Rover (the movant) bore the burden to

show there was no debatable question as to Ohio’s

waiver. See Pet.App.64a. Noticeably, Rover does not

contend that the omitted document it supposedly desires (its initial certification submission) satisfied

Ohio law. There is no reasonable contention to be had.

Ohio law requires that parties seeking certification

provide Ohio with a jurisdictional determination from

the Army Corps. Ohio Rev. Code §6111.30(A)(1).

Rover’s initial submission did not include one. 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. And the Supreme Court of

Ohio

said

nothing

suggesting

otherwise.

Pet.App.64a–65a. In its view, the completeness of

Rover’s submission was irrelevant. Pet.App.66a–67a.

Nonetheless, if Rover wants to prove that its application satisfied Ohio law, it could try to do so after any

remand.

Finally, Rover argues that review of the first question might not change this case’s outcome. BIO.24.

The argument has multiple holes. To begin, Rover’s

underlying state-law argument is baseless. See

BIO.24. As Rover observes, an Ohio statute provides

that the Ohio EPA shall decide certification within

180 days of a complete application. Ohio Rev. Code

§6111.30(G). But, under Ohio law, such directory

8

provisions do not yield consequences for private parties to rely upon. In re Columbus S. Power Co., 128

Ohio St. 3d 512, 520–21 (2011). And here, earlier action would have been unreasonable since Rover

changed its pipeline’s path. See Pet.12. Regardless,

even if Ohio might not ultimately prevail in this case,

that is no reason to avoid an important question about

the Clean Water Act.

D.

The decision below is wrong.

On the merits, the term “request” in Section 401 is

best read to require a valid request satisfying applicable regulatory requirements. Pet.22–23. In arguing

otherwise, Rover fails to engage with Section 401’s

surrounding text. It instead presses an isolated reading under which “request” means “any instance of asking for something.” BIO.30. But applying that definition, the hypotheticals in Ohio’s petition are far from

“strained.” Contra BIO.22. After all, an informal

email, scribbled note, text message, or verbal statement could all “ask for something.”

Rover is correct that federal statutes sometimes expressly impose completeness requirements for government applications. BIO.32 n.11. But not always. In

many instances, federal statutes leave regulators to

“fill up the details of a statutory scheme.” Loper

Bright, 603 U.S. at 395 (quotation omitted). Consequently, there are many examples across the Federal

Code where regulations themselves impose completeness requirements as a trigger for government action.

Pet.24–26 (discussing examples, including regulations concerning Section 402 of the Clean Water Act).

As for consequences, Rover’s fears are overblown.

See BIO.32–33. Rover imagines that States will abuse

any discretion allowed. Yet, for decades, the EPA

9

deferred to the States without the sky falling. See

2010 Guidance at 11, 16; 1989 Guidance at 30–31. In

any event, Ohio’s position does not demand that

States control the regulatory definition of request.

Nor does it allow the States to move the goal posts.

Rather, Ohio’s position is based on pre-existing requirements that were (1) well established at the time

of Rover’s initial submission and (2) controlling under

the EPA guidance then in place. See Ohio Rev. Code

§6111.30(A); 2010 Guidance at 11, 16.

II.

This Court should resolve the effect of

waiver.

If Ohio waived its certification authority, then a

second question follows: what are the consequences of

waiver? Below, the court of appeals held that, because

of the “choice” the Clean Water Act offers, waiver results in the States’ complete loss of water authority.

Pet.App.19a, 31a. That reading of Section 401 renders

it unconstitutional. Under our constitutional structure, the federal government cannot force participation in a federal program by threatening States with

the loss of their traditional sovereignty. See NFIB v.

Sebelius, 567 U.S. 519, 582 (2012) (Roberts, C.J., op.).

The preemption analysis below is also unsound under

the Natural Gas Act. Although that Act sometimes

impliedly preempts state laws, it contains a broad saving clause that preserves state rights under the Clean

Water Act. 15 U.S.C. §717b(d)(3).

Rover makes light of Ohio’s constitutional concern,

but it fails to address how coerced state participation

in a federal certification program is lawful. See

BIO.27. Relatedly, Rover suggests that any concern is

limited to the natural-gas context. But the decision

below is not so narrow. The court of appeals viewed

10

the Clean Water Act itself as offering the States this

coercive “choice.” Pet.App.19a. The court further reasoned that States lose all rights under Clean Water

Act if they fail to participate in the certification process. See Pet.App.31a. Even setting that logic aside,

Rover never explains why the natural-gas context

makes federal coercion okay.

Rover’s primary objection to the second question is

that it seeks review from an intermediate state court’s

decision. BIO.25. That is true, but it does not prohibit

this Court’s review. E.g., Sheetz v. Cnty. of El Dorado,

601 U.S. 267, 273 (2024); Masterpiece Cakeshop, Ltd.

v. Colo. Civ. Rights Comm’n, 584 U.S. 617, 630–31

(2018). But even if the Court would not review the

second question standing alone, it does not stand

alone in this case. It is a natural follow-up to the first

question. And Rover identifies no sound reason to refuse the second question if the Court agrees to take

the first. Both questions involve statutory interpretation (not fact-intensive analysis), so including the second question does not make this case unwieldy.

On the merits, Rover’s analysis provides even more

reason for review. Rover’s approach to preemption is

something from ages past. Rover trumpets the Natural Gas Act’s implicit preemptive power, while downplaying the Act’s express saving clause—a clause that

broadly preserves all the States’ authority under the

Clean Water Act. Compare BIO.1, 4–5, 33 with

§717b(d)(3). And Rover does not even mention this

Court’s decision in Oneok, Inc. v. Learjet, Inc., which

emphasized the Natural Gas Act’s “meticulous regard” for continued state authority. 575 U.S. 373,

384–85 (2015) (quotation omitted). If nothing else,

therefore, this Court should accept the second question to confirm that statutory text (not judicial

11

guesswork about statutory implications) remains central to preemption in the natural-gas context.

Finally, Rover oversells the importance of earlier

statements within state-court briefing. BIO.26. During earlier proceedings, Ohio acknowledged that a

State’s waiver of certification would block future

claims “within the scope of the certification it declined

to act on.” Id. But here, Ohio’s claims feature misconduct—drilling with diesel-laced fuel instead of nonhazardous material—outside the scope of the project

Rover proposed for certification. Pet.11–12, 35–36.

III.

Rover’s alternative argument provides no

basis for denying or expanding review.

Near the end of its brief, Rover identifies a supposed “threshold” issue that it claims would disrupt

review. BIO.30. It argues that some of Ohio’s claims

collaterally attack FERC orders. As Rover concedes,

the lower courts “never reached this” argument.

BIO.29. So the argument presents no impediment to

review: it is an alternative argument that Rover could

press during any further state-court proceedings.

Nonetheless, Rover casts its argument as a “jurisdictional” barrier. BIO.29. That is nonsense. This

Court has jurisdiction to review federal questions resolved by state courts. 28 U.S.C. §1257(a). This case

presents such questions. In Ohio, moreover, trial

courts are courts of general jurisdiction; they possess

subject matter jurisdiction unless an Ohio statute specifically “takes that jurisdiction away.” Ohio High

Sch. Athletic Ass’n v. Ruehlman, 157 Ohio St. 3d 296,

298 (2019). Thus, even if Rover’s argument provides

another ground for dismissal, it does not pose any subject-matter-jurisdiction concern.

12

Substantively, Rover’s argument leads back to the

Natural Gas Act’s saving clause. Again, that clause

expressly preserves state rights under the Clean Water Act. §717b(d)(3). Ohio’s claims fall within those

confines. Pet.32–34. Because the Natural Gas Act expressly preserves this state authority, no other part of

the Act implicitly removes it.

Finally, Rover can only make this collateral-attack

argument through a tortured reading of Ohio’s claims.

See BIO.29. Ohio does not challenge any of FERC’s

orders. It challenges unlawful pollution that FERC

never approved. Most importantly, Rover never previewed to regulators that it would be drilling with diesel-laced fluid. Pet.11–12. It follows that Rover did

not have FERC’s blessing to dump millions of gallons

of diesel-laced pollution into Ohio’s waters. See

Pet.App.132a; Pet.13.

CONCLUSION

The Court should grant the petition for a writ of

certiorari and reverse.

13

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

JULY 2025