Amicus Curiae Brief — Port of Tacoma, et al., Petitioners v. Puget Soundkeeper Alliance

Supreme Court briefOct 28, 2024

Ask Donna

What actually matters in this document.

Text

No. 24-350

In the

Supreme Court of the United States

PORT OF TACOMA; SSA TERMINALS, LLC; AND SSA

TERMINALS (TACOMA), LLC,

Petitioners,

PUGET SOUNDKEEPER ALLIANCE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE

WALLENIUS WILHELMSEN OCEAN AS

IN SUPPORT OF PETITIONERS

TANYA BARNETT

Counsel of Record

JOSEPH A. REHBERGER

CASCADIA LAW GROUP PLLC

606 Columbia Street NW, Suite 212

Olympia, WA 98501

(360) 786-5057

tbarnett@cascadialaw.com

Counsel for Amicus Curiae

Wallenius Wilhelmsen Ocean AS

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ........................ 1

SUMMARY OF ARGUMENT ................................. 3

ARGUMENT ............................................................ 4

A. Clean Water Act Citizen Suits Present

Enormous Financial Risks to NPDES

Permit Holders .............................................. 4

B. Permittees Such as Amicus Must

Comply with Complex Requirements That

Implement Both the Clean Water Act

and Additional State Laws ........................... 9

C. The Ninth Circuit’s Expansion of

Citizen Suits Should Be Reviewed

Because It Exposes Thousands of

Permittees to Federal Citizen Suit

Enforcement of State Law

Requirements While Bypassing State

Law Limits on Enforcement ....................... 15

CONCLUSION ...................................................... 19

TABLE OF AUTHORITIES

Page(s)

CASES

Ackerley Commc'ns, Inc. v. City of Salem,

752 F.2d 1394 (9th Cir. 1985).............................. 7

Akiak Native Cmty. v. EPA,

625 F.3d 1162 (9th Cir. 2010).............................. 7

Arkansas v. Farm Credit Servs.,

520 U.S. 821 (1997) ............................................ 15

Bond v. United States,

572 U.S. 844 (2014) ............................................ 18

Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978) .............................................. 7

Citizens for a Better Env’t-California v.

Union Oil Co., 83 F.3d 1111 (9th Cir. 1996) ....... 8

Friends of the Earth, Inc. v.

Laidlaw Env't Servs. (TOC), Inc.,

528 U.S. 167 (2000) .............................................. 4

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................ 18

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ............................................ 4, 7

Natural Res. Def. Council v.

Southwest Marine, Inc.,

236 F.3rd 985 (9th Cir. 2000) .............................. 6

iii

Puget Soundkeeper All. v.

BNSF Ry. Co., C09-1087-JCC,

2011 WL 13233168 (W.D. Wash. Apr. 11, 2011)

............................................................................ 14

Puget Soundkeeper All. v. Department of Ecology,

PCHB No. 19-089c,

2021 WL 1163243 (Mar. 23, 2021) .................... 13

Puget Soundkeeper All. v. Pollution Control

Hearings Bd.,

545 P.3d 333 (Wash. App. 2004),

rev. denied 554 P.3d 1222 (Wash. 2024) ........... 14

Puget Soundkeeper All. v. Rainier Petroleum Corp.,

138 F. Supp. 3d 1170 (W.D. Wash. 2015) ........... 5

Sackett v. EPA,

598 U.S. 651 (2023) ............................................ 19

Sierra Club v. Chevron U.S.A., Inc.,

834 F.2d 1517 (9th Cir. 1987).......................... 6, 8

Sierra Club v. Union Oil Co.,

813 F.2d 1480 (9th Cir. 1987),

vacated, 485 U.S. 931 (1988),

reinstated with amendment,

853 F.2d 667 (9th Cir. 1988)................................ 5

St. John’s Organic Farm v. Gem Cnty. Mosquito

Abatement Dist.,

574 F.3d 1054 (9th Cir. 2009).............................. 7

U.S. Oil & Refin. Co. v. State of Washington,

633 P.2d 1329 (Wash. 1981) .............................. 17

United States Forest Serv. v. Cowpasture River

Preserv. Ass’n,

590 U.S. 604 (2020) ............................................ 19

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009)................................ 5

United States v. Hubenka,

438 F.3d 1026 (10th Cir. 2006)............................ 5

United States v. Smithfield Foods, Inc.,

191 F.3d 516 (4th Cir. 1999)................................ 6

Waste Action Project v. Atlas Foundry & Mach. Co.,

No. C97-5082-JCC,

1998 WL 210846 (W.D. Wash. Mar. 5, 1998) ..... 8

Wild Fish Conservancy v. Cooke Aquaculture

Pacific, LLC, No. C17-1708-JCC,

2019 U.S. Dist. LEXIS 107054

(W.D. Wash. June 26, 2019) ............................... 8

STATUTORY AND REGULATORY PROVISIONS

28 U.S.C. § 2462 ...................................................... 6

33 U.S.C. § 1313(d) ................................................ 12

33 U.S.C. § 1319(d) .................................................. 5

33 U.S.C. § 1319(g) .................................................. 8

33 U.S.C. § 1319(g)(6) .............................................. 8

33 U.S.C. § 1319(g)(6)(A)(ii), (iii) ............................ 8

33 U.S.C. § 1342 ...................................................... 4

33 U.S.C. § 1365 ...................................................... 9

33 U.S.C. § 1365(a) .................................................. 5

33 U.S.C. § 1365(a), (f) ............................................ 4

33 U.S.C. § 1365(b)(1)(B)......................................... 8

33 U.S.C. § 1365(d) .................................................. 5

40 C.F.R. § 122.41.................................................... 9

40 C.F.R. § 122.42.................................................... 9

40 C.F.R. § 123.1(i)(2) ............................................ 18

40 C.F.R. § 131.45.................................................. 10

40 C.F.R. § 19.4........................................................ 6

40 C.F.R. Part 136 ................................................... 9

Chapter 90.48 WASH. REV. CODE ............................ 2

WASH. ADMIN. CODE § 173-200................................ 9

WASH. ADMIN. CODE § 173-201A ............................. 9

WASH. ADMIN. CODE § 173-204................................ 9

WASH. ADMIN. CODE § 173-226-030(13) ................ 12

WASH. REV. CODE § 43.05.005 ............................... 17

WASH. REV. CODE § 43.05.040(1) ........................... 17

WASH. REV. CODE § 43.21B.300(1) .......................... 8

WASH. REV. CODE § 90.48.037 ................................. 8

WASH. REV. CODE § 90.48.144(3) ........................... 17

OTHER AUTHORITIES

Wash. Department of Ecology Fact Sheet, National

Pollutant Discharge Elimination System

(NPDES) and State Waste Discharge General

Permit for Stormwater Discharges Associated

with Industrial Activities (May 1, 2019) ............. 2

Wash. Executive Order 94-07 (June 6, 1994)....... 16

INTEREST OF AMICUS CURIAE1

Amicus Wallenius Wilhelmsen Ocean AS

(Wallenius Wilhelmsen) provides shipping services

worldwide. It operates marine terminals and

vehicle and equipment processing centers in

15 states, spread across eight judicial circuits.

Wallenius Wilhelmsen plays a critical role in the

global supply chain. The company provides logistics

and marine services to the automotive industry

and, through its United States-based subsidiary,

WWL

Vehicle

Services

Americas,

Inc.,

comprehensive land-based logistics preparing

automobiles for consumers. Through another

United States-based subsidiary, Keen Transport,

Inc., Wallenius Wilhelmsen also provides heavy

haul transportation and logistics services for the

construction, mining, and agricultural equipment

markets. Wallenius Wilhelmsen handles more than

three million vehicles annually. By fleet size, it is

the world’s largest operator of pure car and truck

carriers.

Because rain falls on its marine terminal at the

Port of Tacoma and eventually discharges to surface

waters, Wallenius Wilhelmsen’s subsidiary,

Wallenius Wilhelmsen Logistics Services, LLC, is

required to obtain and comply with a National

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from Wallenius

Wilhelmsen, its members, or its counsel made any monetary

contribution intended to fund the preparation or submission

of this brief. As required by Rule 37.2, all counsel of record

received timely notice of Wallenius Wilhelmsen’s intent to file

this amicus brief.

Pollutant Discharge Elimination System (NPDES)

permit for that facility. It holds coverage under

Washington’s Industrial Stormwater General

Permit (ISGP), the permit at issue in this case,

which implements both the Clean Water Act and

state law (Washington’s Water Pollution Control

Act, ch. 90.48 WASH. REV. CODE).2

As one of the 1,200 permittees that must comply

with Washington’s ISGP, Wallenius Wilhelmsen is

subject to the constant threat of citizen suits. The

Ninth Circuit’s rule magnified that threat by

allowing plaintiffs to sue for violations of permit

conditions imposed under state laws that are

broader in scope than the Clean Water Act. Further,

absent this Court’s review, Wallenius Wilhelmsen,

with operations throughout the United States, faces

uncertainty as to whether it can work cooperatively

with state regulators over complex, and often

ambiguous, permit conditions imposed under

various state laws, or whether it instead risks

private citizen suits in federal court, unconstrained

by political accountability. The Court should grant

2 Washington’s Department of Ecology acknowledged when it

issued the ISGP that the permit limits the discharge of

pollutants under the Clean Water Act “and . . . under the

authority of Chapter 90.48 [WASH. REV. CODE].” Washington

Department of Ecology Fact Sheet, National Pollutant

Discharge Elimination System (NPDES) and State Waste

Discharge General Permit for Stormwater Discharges

Associated with Industrial Activities (May 1, 2019) at iv

(https://ecology.wa.gov/regulations-permits/permitscertifications/stormwater-general-permits/industrialstormwater-permit).

the Petition and reverse the Ninth Circuit’s

expansive interpretation of the Act.

SUMMARY OF ARGUMENT

Citizen suits under the Clean Water Act present

enormous financial risk to thousands of permittees,

including amicus. Plaintiffs may allege violation of

any NPDES permit condition, even if the alleged

violation caused no harm to water quality.

Permittees face sanctions including injunctive

relief, attorney fees, and civil penalties up to

$66,712 per day per violation. In many states,

including Washington, where regulators use

administrative penalties to enforce permits,

plaintiffs may file citizen suits even after state

regulators have taken enforcement action for the

same violations.

NPDES permits such as Washington’s

Industrial Stormwater General Permit are

extremely complex. They are based on requirements

of both federal and state law, and include both very

specific requirements and narrative conditions,

compliance with which is a matter of judgment.

Citizen suit plaintiffs are free to second-guess

permittees and allege that their compliance

decisions violate the permit. Because of the huge

penalty exposure defendants face, and the high

likelihood that plaintiffs will recover their attorney

fees, most defendants settle. The Petition therefore

addresses a subject important to countless

permittees that might otherwise evade review.

The Ninth Circuit’s expansive interpretation

allows federal courts to impose sanctions based

solely on violation of state law, bypassing the limits

otherwise imposed by the state. Moreover, the relief

available in a Clean Water Act citizen suit far

exceeds that available to state regulators under

Washington law. This Court should grant certiorari

to restore the federal/state balance intended under

the Clean Water Act and to correct the Ninth

Circuit’s mistaken interpretation that turns the Act

into a tool for enforcing state law.

ARGUMENT

A. Clean Water Act Citizen Suits Present

Enormous Financial Risks to NPDES

Permit Holders

The Clean Water Act authorizes citizens to

commence a civil action against any person alleged

to be in violation of “an effluent standard or

limitation under this chapter,” which includes a

“permit or condition of a permit issued under

section 1342 of this title.” 33 U.S.C. § 1365(a), (f).

Permits issued under Section 1342 are NPDES

permits.

A citizen suit defendant is “in violation” if the

violation is ongoing or if there is a “reasonable

likelihood” that violations will continue. Gwaltney

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

484 U.S. 49, 57 (1987). The defendant bears a

“heavy burden of persuading” the court that alleged

violations cannot reasonably be expected to recur.

Friends of the Earth, Inc. v. Laidlaw Env't Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000). It must be

“absolutely clear” that such violations cannot be

expected to recur, Gwaltney, 484 U.S. at 66,

a standard that can be extremely difficult to meet.

The citizen suit provision allows plaintiffs to

hold defendants liable for the violation of any

permit condition, no matter how insignificant. This

includes not only violations of numeric limits on the

concentration or quantity of pollutants discharged,

but violations of requirements such as sampling,

reporting, and recordkeeping. E.g., Puget

Soundkeeper All. v. Rainier Petroleum Corp.,

138 F. Supp. 3d 1170 (W.D. Wash. 2015). Liability

under the Clean Water Act is strict. E.g., United

States v. Bailey, 571 F.3d 791, 805 (8th Cir. 2009).

Even de minimis violations can give rise to liability,

Sierra Club v. Union Oil Co., 813 F.2d 1480,

1491-92 (9th Cir. 1987), vacated, 485 U.S. 931

(1988), reinstated with amendment, 853 F.2d 667

(9th Cir. 1988), and a plaintiff need not prove that

a violation harmed waters of the United States.

United States v. Hubenka, 438 F.3d 1026, 1035

(10th Cir. 2006).

Citizen suit plaintiffs may seek three forms of

relief: monetary penalties, injunctions, and

attorney fees. 33 U.S.C. § 1365(a) (district courts

have jurisdiction to enforce effluent standards or

limitations and may “apply any appropriate civil

penalties under section 1319(d) of this title”) and

33 U.S.C. § 1365(d) (district court may award costs

of litigation, including reasonable attorney and

expert witness fees, to any prevailing or

substantially prevailing party). Congress originally

authorized civil penalties up to $25,000 per day per

violation. 33 U.S.C. § 1319(d). However, under the

Federal Civil Penalties Inflation Adjustment Act

Improvements Act of 2015, Pub. L. No. 114-74, that

amount has more than doubled, to $66,712 per day.

40 C.F.R. § 19.4.

If a district court concludes that a violation

occurred, a penalty is mandatory. E.g., Natural Res.

Def. Council v. Southwest Marine, Inc., 236 F.3rd

985, 1001 (9th Cir. 2000). Judges have broad

discretion when setting penalty amounts.

E.g., United States v. Smithfield Foods, Inc.,

191 F.3d 516, 529 (4th Cir. 1999). They may impose

penalties for violations that occurred up to five

years before the citizen suit plaintiff provided notice

of its intent to sue. 28 U.S.C. § 2462; Sierra Club v.

Chevron U.S.A., Inc., 834 F.2d 1517, 1520-22

(9th Cir. 1987) (although the Clean Water Act

contains no statute of limitations, 28 U.S.C. § 2462

is a “relevant” federal statute of limitations that

applies to claims brought under the Act).

Thus, if violations are established in a case that

proceeds to trial two years after the complaint is

filed, a defendant may face penalties for up to

2,615 days: the five years preceding issuance of the

notice of intent, the 60 days between issuance of the

notice and the commencement of suit, and the two

years following commencement. At a maximum

daily penalty of $66,712, the defendant would risk

a total penalty of nearly $175 million.

That amount is for violating a single permit

condition throughout the limitations period.

However, citizen suit plaintiffs typically allege

violations of many permit conditions. If a plaintiff

alleged violations of just ten permit conditions, a

defendant’s total penalty exposure could exceed one

billion dollars.

A defendant’s exposure in a citizen suit also

includes the plaintiff’s litigation expenses. In the

Ninth Circuit, fee awards to plaintiffs are “‘the rule

rather than the exception.’” St. John’s Organic

Farm v. Gem Cnty. Mosquito Abatement Dist.,

574 F.3d 1054, 1062 (9th Cir. 2009) (quoting

Ackerley Commc'ns, Inc. v. City of Salem, 752 F.2d

1394, 1396 (9th Cir. 1985)). Although the Act

provides that the prevailing party is entitled to

claim such expenses, a prevailing defendant cannot

recover from the plaintiff unless the action was

“frivolous, unreasonable, or groundless.” Akiak

Native Cmty. v. EPA, 625 F.3d 1162, 1166 (9th Cir.

2010) (quoting Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421 (1978)). Therefore, a

permittee that prevails in a citizen suit is very

likely to pay its own litigation expenses.

Finally, despite this Court’s statement that the

Clean Water Act allows citizens to step in when

government regulators “cannot or will not command

compliance,” Gwaltney, 484 U.S. at 62, citizen suits

can be brought even after a state has taken

enforcement action. The Clean Water Act bars

citizen suits if a state is “diligently prosecuting” the

same violations. But actions Washington and other

states take to enforce permits such as the ISGP do

not constitute “diligent prosecution.”

Washington’s Department of Ecology typically

uses an administrative process to assess penalties.

Civil penalties for the violation of any wastewater

discharge

permit,

including

combined

NPDES/state waste discharge permit, “shall be

imposed by a notice in writing” from the

department. WASH. REV. CODE § 43.21B.300(1).

Penalties issued under this state law are not

considered diligent prosecution under 33 U.S.C.

§ 1365(b)(1)(B) because they are not prosecuted “in

a court,” as required by that statute. Sierra Club,

834 F.2d at 1525 (citizen suit is not precluded by

nonjudicial enforcement action by California’s

Regional Water Quality Control Board, an

administrative agency).3

Nor are such penalties deemed diligent

prosecution under 33 U.S.C. § 1319(g)(6), because it

bars citizen suits only for violations that a state is

diligently prosecuting “under a State law

comparable to this subsection” or for which the

violator “has paid a penalty assessed under this

subsection, or such comparable State law.”

33 U.S.C. § 1319(g)(6)(A)(ii), (iii) (emphasis added).

To be “comparable,” the state law must require

public notice and comment procedures like those set

forth in 33 U.S.C. § 1319(g). Citizens for a Better

Env’t-California v. Union Oil Co., 83 F.3d 1111,

1118 (9th Cir. 1996). Washington law does not

“‘contain mandatory safeguards of public

participation and notice comparable to § 1319(g).’”

Wild Fish Conservancy v. Cooke Aquaculture

Pacific, LLC, No. C17-1708-JCC, 2019 U.S. Dist.

LEXIS 107054, *31 (W.D. Wash. June 26, 2019)

(quoting Waste Action Project v. Atlas Foundry &

Mach. Co., No. C97-5082-JCC, 1998 WL 210846, *6

(W.D. Wash. Mar. 5, 1998)).

3 The Department of Ecology has authority to bring actions in

court to enforce wastewater permits, WASH. REV. CODE

§ 90.48.037, but it very rarely exercises that authority.

Consequently, an administrative penalty issued

by the Department of Ecology to enforce a permit

condition will not bar a citizen suit to enforce the

same condition. As a result, permittees may be

subject to successive enforcement actions for the

same alleged violation—first by the state, under

state law, and then by a citizen plaintiff under

33 U.S.C. § 1365. The Ninth Circuit’s rule

compounds this problem by allowing the duplicative

enforcement to extend to permit conditions based on

state law that are broader in scope than federal law.

B. Permittees Such as Amicus Must

Comply with Complex Requirements

That Implement Both the Clean Water

Act and Additional State Laws

Washington’s ISGP is a complex document

imposing a very long list of requirements arising

under both the Clean Water Act and state law. They

include a mixture of vague narrative conditions and

highly specific and detailed requirements. The

permit itself is nearly 70 pages long. It requires

compliance with thousands more pages of state

manuals and regulations,4 as well as federal

regulations.5

4 For example, the ISGP prohibits the permittee from causing

or contributing to violations of state standards contained in

WASH. ADMIN. CODE § 173-200, 173-201A, and 173-204.

3-ER-365-66 (ISGP Conditions S10.A and S12).

5 For example, the ISGP requires compliance with 40 C.F.R.

Part 136, 40 C.F.R. § 122.41, and 40 C.F.R. § 122.42. 3-ER-343,

369 (ISGP Conditions S4.C and G11). It also prohibits the

permittee from causing or contributing to violations of

For example, the ISGP requires permittees to

prepare and implement a Stormwater Pollution

Prevention Plan (SWPPP), a document that

frequently runs hundreds of pages. The SWPPP

must identify a wide variety of “best management

practices,” including treatment systems, operating

procedures, and practices to control runoff, spills,

and leaks. These practices must meet several

objectives, including providing all known, available,

and reasonable methods of prevention, control, and

treatment of stormwater pollution, as required

under Washington law. 3-ER-332, 376 (ISGP

Condition S3.A.1.a. and ISGP Appendix 2

[definition of “best management practices”]). The

SWPPP also must ensure that the permittee’s

discharge does not cause or contribute to a violation

of state water quality standards, and that it

complies with applicable federal technology-based

treatment requirements. 3-ER-332 (ISGP Condition

S3.A.1.b and c). It is the permittee’s responsibility

to review the state Department of Ecology’s

voluminous Stormwater Management Manual and

select best management practices that will ensure

compliance with each of these narrative standards.6

standards contained in 40 C.F.R. § 131.45. 3-ER-365-66

(ISGP Conditions S10.A).

6 The 2024 edition of the Stormwater Management Manual

for Western

Washington

1,350

pages

long.

https://fortress.wa.gov/ecy/ezshare/wq/SWMMs/2024SWMM

WW/Content/Resources/DocsForDownload/2024SWMMWW_

6-14-24.pdf. The 2024 edition of the Stormwater Management

Manual for Eastern Washington is 1,368 pages long.

https://fortress.wa.gov/ecy/ezshare/wq/SWMMs/2024SWMME

Each permittee’s SWPPP also must meet

numerous highly specific requirements. For

example, it must contain a site map depicting the

location of fourteen discrete features at the facility,

as well as identifying the distance between them

and the size of the property. 3-ER-333-34

(ISGP Condition S3.B.1). The SWPPP must include

a sampling plan addressing thirteen separate

elements. 3-ER-340 (ISGP Condition S3.B.5). It also

must contain a detailed facility assessment

consisting of a description of the facility; an

inventory of activities, equipment, and materials

that contribute or have the potential to contribute

pollutants to stormwater; a Spill Prevention and

Emergency Cleanup Plan; a plan to train

employees; and procedures to ensure compliance

with inspection and recordkeeping requirements.

3-ER-334-35, 337-38 (ISGP Conditions S3.B.2,

S3.B.4.b.i.5, and S3.B.4.b.i.6).

The ISGP also requires permittees to collect

samples of stormwater and ensure they are

analyzed by accredited laboratories using specific

analytical methods; inspect the facility and correct

deficiencies; prepare, submit, and retain various

reports; and pay permit fees. The ISGP establishes

numeric levels for pollutants in stormwater

discharges. Some of the levels are effluent limits,

exceedance of which constitutes a permit violation.

Others are “benchmarks,” defined as a “pollutant

concentration used as a permit threshold, below

which a pollutant is considered unlikely to cause a

W/Content/Resources/DocsForDownload/2024SWMMEW_614-24.pdf.

water quality violation, and above which it may.

When pollutant concentrations exceed benchmarks,

corrective action requirements take effect.”

3-ER-376 (ISGP Appendix 2). These requirements

include reviewing the SWPPP to ensure that it

“fully complies” with the permit and revising it to

include extra best management practices.

Additional requirements apply to facilities that

discharge stormwater to waterbodies that are

“impaired” for purposes of 33 U.S.C. § 1313(d).

Even for companies committed to full

compliance with the ISGP, like amicus, it is

challenging to meet every requirement of the permit

consistently. The Department of Ecology may

exercise its enforcement discretion with respect to

inadvertent or inconsequential noncompliance. But

under the Ninth Circuit’s rule, any noncompliance

forms the basis of a citizen suit.

The ISGP is a “general” permit; that is, a permit

issued to provide coverage for an entire category of

dischargers. WASH. ADMIN. CODE § 173-226-030(13).

General permits ease the burden on regulators that

issue permits to thousands of dischargers. But a

permit issued to so many different facilities cannot

be as precise as one issued to a single facility.

Washington’s Department of Ecology might never

visit a facility holding coverage under the ISGP, and

therefore could not undertake the in-depth facility

evaluation that allows it to write specific conditions

in individual permits. Conditions of general permits

such as the ISGP often are expressed in narrative

terms, requiring the permittee to determine exactly

what it must do to maintain compliance.

For example, rather than requiring permittees

to install a specific technology to control pollutants

in their stormwater discharge, as individual

permits would, the ISGP requires each permittee to

develop and then to implement its own control

plan—the SWPPP discussed above. And since

compliance with this requirement requires the

exercise of the permittee’s judgment, a citizen suit

plaintiff can easily allege that the practices chosen

in the SWPPP are inadequate—and therefore a

violation of the ISGP.

The specific permit condition addressed by the

lower courts in this case—describing the ISGP’s

geographic scope at transportation facilities—

illustrates the ambiguities faced by permittees.

Five tribunals—three federal courts, a state court,

and the state Pollution Control Hearings Board

(PCHB), a quasi-judicial body that reviews

decisions made by the Department of Ecology—

have considered whether the ISGP applied to the

entire footprint of a transportation facility or only

those areas where vehicle maintenance, equipment

cleaning, or airport deicing took place. Three

concluded that the ISGP covered the entire

footprint, and the other two concluded that it

covered only the areas where those activities

occurred.

The PCHB found that “Ecology’s claim that the

2020 ISGP covers the entire transportation facility

is without support from the plain language of the

permit.” Pet. App. 17a (quoting Puget Soundkeeper

All. v. Department of Ecology, PCHB No. 19-089c,

2021 WL 1163243, *9 (Mar. 23, 2021)). The

Washington court of appeals reversed, ruling that

the permit applied to the entire transportation

facility. Pet. App. 18a (citing Puget Soundkeeper All.

v. Pollution Control Hearings Bd., 545 P.3d 333, 346

(Wash. App. 2004), rev. denied 554 P.3d 1222

(Wash. 2024)). Similarly, the district court in this

matter determined that the “plain language of the

ISGP” did not cover the entire transportation

facility, but only that portion where vehicle

maintenance, equipment cleaning, or airport

deicing took place, Pet. App. 43a-45a, while the

Ninth Circuit reached the opposite conclusion.

Pet. App. 8a-10a. And in an unrelated case, a

district court, while finding the permit language

“ambiguous,” determined that Ecology intended to

expand coverage under the ISGP to include the

entire facility. Puget Soundkeeper All. v. BNSF Ry.

Co., C09-1087-JCC, 2011 WL 13233168, *1-2

(W.D. Wash. Apr. 11, 2011).

If judges trained to interpret legal documents

reach different conclusions about the geographic

scope of coverage under the ISGP, certainly

permittees can be expected to do so, too. The

prospect of a citizen suit if they guess wrong is

alarming.

Given the ease with which plaintiffs may bring

citizen suits, the ambiguities contained in the ISGP,

the enormous penalty exposure in a citizen suit, the

near certainty of an attorney fee award in favor of

the plaintiff, and the inherent risks of litigation,

defendants usually settle these cases, which

therefore evade review. This case is a rare example

of one that did not settle, and it presents a clear

opportunity to address the Question Presented.

C. The Ninth Circuit’s Expansion of

Citizen Suits Should Be Reviewed

Because It Exposes Thousands of

Permittees to Federal Citizen Suit

Enforcement

State

Law

Requirements While Bypassing State

Law Limits on Enforcement

The Question Presented focuses on the critical

balance of state and federal authorities. This Court,

in other contexts, has recognized the paramount

interest of states in the integrity of their own chosen

processes for applying and enforcing state law. As

the Court has observed, “[t]he federal balance is

well served when the several states define and

elaborate their own laws through their own courts

and administrative processes and without undue

interference from the federal judiciary.” Arkansas v.

Farm Credit Servs., 520 U.S. 821, 826 (1997)

(applying the federal Tax Injunction Act). The

Ninth Circuit’s rule allows citizen suits to bypass

the enforcement tools selected by the state.

Moreover, under the Ninth Circuit’s interpretation

the relief available to citizen suit plaintiffs under

the Clean Water Act exceeds the enforcement

powers of state agencies responsible for overseeing

compliance with water quality permits. This impact

on state law makes the Question Presented

extraordinarily important to anyone subject to an

NPDES permit that includes conditions based on

state laws that are broader in scope than the Clean

Water Act.

Although the numerous state law requirements

embedded in Washington’s Industrial Stormwater

General Permit are complex, and often involve

subjective

judgments

about

stormwater

management, state law limits enforcement and

penalties in ways that help regulated parties

comply. For example, both the legislative and

executive branches have encouraged state agencies

to provide technical assistance to regulated entities

before taking enforcement action. In 1994,

then-Governor Mike Lowry adopted an executive

order directing state regulatory agencies to promote

compliance

through

technical

assistance.

Executive Order

94-07

(June

1994)

(https://governor.wa.gov/sites/default/files/exe_orde

r/eo_94-07.pdf). The following year, Washington’s

Legislature enacted the Regulatory Reform Act,

which provides, in relevant part:

The legislature finds that, due to the

volume and complexity of laws and rules

it is appropriate for regulatory agencies to

adopt programs and policies that

encourage voluntary compliance by those

affected by specific rules. The legislature

recognizes that a cooperative partnership

between agencies and regulated parties

that

emphasizes

education

and

assistance before the imposition of

penalties will achieve greater compliance

with laws and rules and that most

individuals and businesses who are

subject to regulation will attempt to

comply with the law, particularly if they

are given sufficient information.

WASH. REV. CODE § 43.05.005. The Act requires that

the owner and operator of a regulated facility

“be given a reasonable period of time to correct

violations identified during a technical assistance

visit before any civil penalty provided by law is

imposed for those violations.” WASH. REV. CODE

§ 43.05.040(1).

Not only does Washington law promote technical

assistance and cooperation from the enforcement

agency, but the penalties that can be imposed under

Washington’s Water Pollution Control Act for

violating a permit are significantly lower than

under the Clean Water Act. Washington limits the

maximum daily penalty to $10,000, or less than

one-sixth the penalty available in a Clean Water

Act citizen suit. WASH. REV. CODE § 90.48.144(3).

In addition, the statute of limitations for penalties

based on the violation of a state water quality

permit is two years, U.S. Oil & Refin. Co. v. State of

Washington, 633 P.2d 1329 (Wash. 1981), compared

to five years under the Clean Water Act.

Washington law does not allow a prevailing party in

an environmental enforcement action to recover

attorney fees. Nor does it allow citizen suits.

The Ninth Circuit rule allows citizen suit

plaintiffs to bypass a state’s choices for enforcement

of its own laws. Instead of first providing technical

assistance to a permittee who might have violated

the permit, a citizen suit plaintiff in the Ninth

Circuit may simply file a complaint 60 days after

sending notice of its intent to sue. Instead of facing

a maximum penalty of $10,000 per day for each

violation of a permit condition based on state law, a

citizen suit defendant may be ordered to pay up to

$66,712 per violation per day. Instead of recovering

penalties for violations occurring no more than two

years prior, citizen suit plaintiffs may recover

penalties for violations occurring up to five years

before the notice of intent was sent. And instead of

all parties bearing their own litigation expenses in

a state administrative hearing, citizen suit

defendants are almost certain to have to pay the

plaintiff’s federal court litigation expenses.

The Ninth Circuit’s rule further disrupts the

federal-state balance that Congress selected

because it allows citizen suit plaintiffs to enforce

permit conditions that EPA itself is not allowed to

enforce. Pet. 25-26 (state-law requirements that are

broader in scope than the Clean Water Act are not

federally enforceable, citing 40 C.F.R. § 123.1(i)(2)).

Moreover, in the Ninth Circuit such plaintiffs can

obtain significantly greater relief by enforcing state

law requirements in federal court than the state

would receive from enforcing its own permits under

state law.

It is a “well-established principle that ‘it is

incumbent upon the federal courts to be certain of

Congress’ intent before finding that federal law

overrides’ the ‘usual constitutional balance of

federal and state powers,’” Bond v. United States,

572 U.S. 844, 858 (2014) (quoting Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991), requiring a

“clear indication” from Congress to intrude on the

police power of the states. Id. at 860. This Court

recently affirmed that it “‘require[s] Congress to

enact exceedingly clear language if it wishes to

significantly alter the balance between federal and

state power and the power of the Government over

private property.’” Sackett v. EPA, 598 U.S. 651, 679

(2023) (quoting United States Forest Serv. v.

Cowpasture River Preserv. Ass’n, 590 U.S. 604, 62122 (2020)). This case directly implicates these

important concerns because the Ninth Circuit’s

interpretation grants to citizen suit plaintiffs

powers that exceed those of state and federal

regulators and, in doing so, bypass important state

limits on enforcement of state law requirements.

States in the circuit have no power to prevent

their state law-based permit conditions from being

enforced in a citizen suit in ways that Congress

never authorized or intended. These results flow

from the Ninth Circuit’s interpretation of the Clean

Water Act, and they can be addressed only by this

Court’s review.

CONCLUSION

The petition should be granted and the decision

below should be reversed.

RESPECTFULLY SUBMITTED this 28th day of

October, 2024.