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

Supreme Court briefOct 28, 2024

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No. 24-350

In the

Supreme Court of the United States

PORT OF TACOMA, ET AL.,

Petitioners,

PUGET SOUNDKEEPER ALLIANCE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE NATIONAL ASSOCIATION

OF WATERFRONT EMPLOYERS,

PACIFIC MARITIME ASSOCIATION,

AND PACIFIC MERCHANT SHIPPING

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

AMORIE I. HUMMEL

Counsel of Record

COZEN O’CONNOR

One Liberty Place

1650 Market Street

Suite 2800

Philadelphia, PA 19103

(215) 665-2000

ahummel@cozen.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

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

INTRODUCTION AND

SUMMARY OF ARGUMENT ..............................4

ARGUMENT ..............................................................7

The Ninth Circuit Decision Delegates

Federal Lawmaking to States Where

Congress Never Intended Such Result. ..............7

II. The Ninth Circuit Decision Has Created A

Regulatory Loophole in the Cwa Permitting

Regime. ...............................................................12

A. Private citizens have no greater rights

than EPA ..................................................13

B. The Ninth Circuit decision creates an

inequitable, jurisdictional distinction

between state- versus EPA-issued

NPDES permits which depends solely

on a permit holder’s location. ....................14

III. Stakeholders Affected By Environmental

Law Regimes Depend Upon Jurisdictional

Certainty. ...........................................................21

IV. If The Law Does Not Provide A Remedy,

Neither Should Any Court .................................24

CONCLUSION .........................................................26

TABLE OF AUTHORITIES

Page(s)

Cases

Atlantic States Legal Foundation, Inc. v.

Eastman Kodak Co.,

12 F.3d 353 (2d Cir. 1993), cert.

denied, 513 U.S. 811 (1994) ............................. 5, 19

City of Tacoma v. FERC,

460 F.3d 53 (D.C. Cir. 2006) .............. 16, 17, 18, 20

Colorado River Water Conservation

District v. United States,

96 S. Ct. 1236 (1976) ............................................ 24

EPA v. California,

426 U.S. 200 (1976) ................................................ 9

Gundy v. United States,

588 U.S. 128 (2019) ................................................ 7

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

484 U.S. 49 (1987) ................................................ 13

Hertz Corporation v. Friend,

559 U.S. 77 (2010) ................................................ 21

J.W. Hampton, Jr. & Company v.

United States,

276 U.S. 394 (1928) ................................................ 7

iii

Lake Carriers’ Association v. EPA,

652 F.3d 1 (D.C. Cir. 2011) (per

curiam) ..................................................... 17, 18, 19

Lake Erie Alliance for Protection of

Coastal Corridor v. U.S. Army Corps

of Engineers,

526 F. Supp. 1063 (W.D. Pa. 1981),

aff’d, 707 F.2d 1392 (3d Cir. 1983) ...................... 16

Merrell Dow Pharmaceuticals v.

Thompson,

478 U.S. 804 (1986) .............................................. 24

Merrill Lynch, Pierce, Fenner & Smith

Inc. v. Manning,

578 U.S. 374 (2016) ........................................ 21, 22

Mobil Oil Corporation v. Kelley,

426 F. Supp. 230 (S.D. Ala. 1976) ....................... 17

North Carolina Department of

Environmental Quality v. FERC,

3 F.4th 655 (4th Cir. 2021) ............................ 17, 20

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) .............................................. 25

Northwest Environmental Advocates v.

City of Portland,

56 F.3d 979 (9th Cir. 1995) .............................. 9, 19

Ohio Valley Environmental Coalition v.

Fola Coal Company, LLC,

845 F.3d 133 (4th Cir. 2017) .......................... 19, 20

Pan American Petroleum Corporation v.

Superior Court,

366 U.S. 656 (1961) .............................................. 22

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ................................................ 7

Parker v. Scrap Metal Processors, Inc.,

386 F.3d 993 (11th Cir. 2004) .............................. 19

Puget Soundkeeper Alliance v. Port of

Tacoma,

104 F.4th 95 (9th Cir. 2024) ...................... 5, 18, 19

Roosevelt Campobello International

Park Commission v. EPA,

684 F.2d 1041 (1st Cir. 1982) ............ 16, 17, 18, 20

United States Telecom Association v.

FCC,

359 F.3d 554 (D.C. Cir. 2004) .................... 8, 10, 11

United Mine Workers of America v.

Gibbs,

383 U.S. 715 (1966) .............................................. 25

United States v. Mazurie,

419 U.S. 544 (1975) ................................................ 7

West Virginia v. EPA,

597 U.S. 697 (2022) .......................................... 7, 25

Constitutional Provisions

U.S. Const. art. III, § 2, cl. 1 ..................................... 24

Statutory Provisions

22 U.S.C. § 1341 ........................................................ 15

28 U.S.C. § 1367 .................................................. 24, 25

33 U.S.C. § 1251 et seq. ......................................... 4, 22

33 U.S.C. § 1251(a) .................................................... 14

33 U.S.C. § 1251(b) .................................................... 15

33 U.S.C. § 1288 .......................................................... 4

33 U.S.C. § 1311 ........................................................ 13

33 U.S.C. § 1312 ........................................................ 13

33 U.S.C. § 1316 ........................................................ 13

33 U.S.C. § 1317 ........................................................ 13

33 U.S.C. § 1318 ........................................................ 13

33 U.S.C. § 1319 .................................................... 4, 13

33 U.S.C. § 1328 ........................................................ 13

33 U.S.C. § 1329 .................................................... 4, 13

33 U.S.C. § 1341(a)(1) ............................................... 10

33 U.S.C. § 1342 .................................................... 4, 15

33 U.S.C. § 1343 .......................................................... 4

33 U.S.C. § 1344 .......................................................... 4

33 U.S.C. § 1345 .................................................... 4, 13

33 U.S.C. § 1362(12) ...................................... 11, 15, 23

33 U.S.C. § 1362(19) .................................................. 23

33 U.S.C. § 1365(a)(1) ............................................... 15

33 U.S.C. § 1365(a)(1), (f) .......................................... 22

33 U.S.C. § 1365(d) .................................................... 25

33 U.S.C. § 1365(f)......................................... 14, 15, 21

33 U.S.C. § 1370 ........................................................ 15

42 U.S.C. § 6901 et seq. ............................................. 22

42 U.S.C. § 7401 et seq. ............................................. 22

Pub. L. No. 95-217, 91 Stat. 1566 (1977) .................... 9

Pub. L. No. 100-4, 101 Stat. 7 (1987) ........................ 10

Wash. Rev. Code § 90-48-020 .................................... 23

Wash. Rev. Code § 90-48-080 .................................... 23

Regulatory Provisions

40 C.F.R. § 122.26(b)(14)(viii) ................................... 11

vii

40 C.F.R. § 122.26(b)(15) ........................................... 23

40 C.F.R. § 123.1(i)(2).......................................... 13, 21

Wash. Admin. Code § 173-226-050 ........................... 23

Other Authorities

Amy Coney Barrett, Congressional

Insiders and Outsiders, 84 U. Chi. L.

Rev. 2193, 2209 (2017) ......................................... 12

NPDES State Program Authority,

https://www.epa.gov/npdes/npdesstate-program-authority (last

updated Apr. 22, 2024) (last visited

Oct. 25, 2024) ....................................................... 12

S. Rep. No. 95-370 (1977), reprinted in

U.S.C.C.A.N. 4326............................................ 9, 10

Water Quality General Permits,

https://ecology.wa.gov/WaterShorelines/Water-quality/Waterquality-permits/Water-Qualitygeneral-permits (last visited Oct. 25,

2024) ............................................................... 22, 23

INTERESTS OF AMICI CURIAE1

West Coast ports support more than 12 million

jobs nationwide, nearly two trillion in total economic

value, and almost nine percent of U.S. gross domestic

product. Ensuring the vitality of the global supply

chain is critically important to obtaining basic

necessities for average American life. The National

Association of Waterfront Employers (NAWE), Pacific

Maritime Association (PMA), and Pacific Merchant

Shipping Association (PMSA) each play a role in

ensuring the integrity and vitality of this economy.

Each are deeply concerned with the implications of

the Ninth and Second Circuit split on a fundamental,

jurisdictional issue with the potential to impact the

shipping industry nationwide. Collectively, amici

curiae have an interest in ensuring even-handed,

uniform administration of justice in the enforcement

of their members’ environmental permits.

NAWE is a trade association whose members

include privately owned stevedores, marine terminal

operators, and other waterfront-related employers

that do business on the Atlantic and Pacific Coasts,

the Gulf of Mexico, the Great Lakes, Canada, and

Puerto Rico. As a result of the circuit split before the

Court, NAWE members on the West Coast, Gulf

Coast, and Southern East Coast will be subject to

Counsel for the parties received timely notice of amici

curiae’s intent to file this brief. Pursuant to Supreme Court Rule

37.6, amici curiae states that no counsel for any party authored

this brief in whole or in part. No entity or person, aside from

amici curiae, its non-party members, or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

litigation in state and federal courts for pure, state

law environmental regimes, while NAWE members on

the Northern East Coast are subject to litigation in

state courts alone. NAWE has an interest in ensuring

regulatory uniformity for its members nationwide.

PMA members include domestic carriers,

international carriers, marine terminal operators,

and stevedores on the West Coast. PMA is responsible

for negotiating and administering maritime labor

agreements with the International Longshore and

Warehouse Union (ILWU) and is committed to the

economic vitality of West Coast ports, which in turn

results in benefits to ILWU. The economic vitality of

West Coast ports and the attendant benefits that flow

to its workers2 depend on the ability to compete with

counterparts operating on the East and Gulf Coasts

and Canada. On the West Coast, if regulated entities

cannot uniformly navigate the regulatory regime, in

many cases they can easily turn north to Canadian

ports to obtain regulatory certainty. PMA has an

interest in ensuring the U.S. regulatory regime does

not incentivize loss of cargo, work, and investment to

other shores.

PMSA is an independent, not-for-profit trade

association whose members include ocean carriers,

marine terminal operators, and other maritime and

supply chain stakeholders that conduct business at

West Coast ports. The principal purposes of PMSA

include representation and promotion of its members’

2 Full-time ILWU workers make on average $233,000 per

year across 16,402 ILWU registered workers, for a total of 2.2

billion in wages paid.

interests in legislative, legal, and administrative

matters affecting the West Coast shipping industry,

maritime commerce, and trade. Like PMA, PMSA has

an interest in ensuring the shipping economy for its

members is as vibrant and competitive in Washington

state as it is in New York or Canada.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In enacting and amending the Clean Water Act

(CWA), 33 U.S.C. § 1251 et seq., Congress did not

delegate to the states the ability to make federal,

environmental law beyond the bounds of the CWA

itself, nor did Congress grant federal jurisdiction

based on state law claims. CWA “federal law”

regulates “point sources” of pollution into the Nation’s

waters through the National Pollutant Discharge

Elimination System (NPDES) permit program under

Section 402. 33 U.S.C. §§ 1342–43, 1345. It regulates

the dredging and filling of the Nation’s waters

through permits issued under Section 404. 33 U.S.C.

§ 1344. States regulate remaining, nonpoint sources

under Section 208 (water quality management plans)

and Section 319 (water quality standards), with no

enforcement mechanism granted to the U.S.

Environmental Protection Agency (EPA) against

private persons. See 33 U.S.C. §§ 1288, 1319, 1329.

Any law within the confines of these latter provisions

is plainly “state law” subject to state policy choices. To

ensure state efforts are not undermined, under

Section 401, certification from the state is a condition

precedent to any federal license (assurance that the

state’s water quality standards are being met). 33

U.S.C. § 1342.

This delicate federal and state law balance is

cooperative. But it does not vest EPA with greater

enforcement rights than the CWA dictates, vest states

with the ability to confer jurisdiction in federal courts

pursuant to their own state law, or vest private

citizens with jurisdiction based on state law claims.

The decision in Puget Soundkeeper Alliance v. Port of

Tacoma, 104 F.4th 95 (9th Cir. 2024) is plainly wrong

in deciding otherwise and interpreting the CWA’s

Section 505 citizen-suit provision to expand the

statute’s carefully drawn boundaries.

The circuit split between the Ninth Circuit and the

Second Circuit in Atlantic States Legal Foundation,

Inc. v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993),

cert. denied, 513 U.S. 811 (1994) has also created an

inequitable, jurisdictional loophole. As a result,

NPDES permit holders are subject to greater, and

more costly, litigation in Washington (Ninth Circuit)

than permit holders in New York (Second Circuit) and

permit holders in New Hampshire or Puerto Rico

where EPA administers the program and Section 401

state water quality certifications are required (First

Circuit). Amici curiae’s members do business in all of

these circuits and application of CWA jurisdictional

law now depends solely on their location. Remedying

this unequal treatment under the law is important.

The jurisdictional question before the Court also

raises important issues of court and statutory

enforcement administration. District Courts, EPA,

state environmental agencies, potential citizen-suit

plaintiffs, and private parties like amici curiae’s

members need jurisdictional clarity and uniformity in

the enforcement of environmental permits. The first

question any court asks when a case is before it,

whether the plaintiff should be here, should not take

years and vast resources to answer.

The Ninth Circuit decision and the jurisdictional

loophole it has created seriously undermines the

expectations of amici curiae’s members. They

presume the federal legislature makes “federal law”

with federal remedies and state legislatures make

“state law” with state remedies. The remedies under

CWA federal law are vast. The remedies for private

citizens under Washington state law are nonexistent

here. Ultimately, this policy question is for a state

legislature, not the judiciary.

ARGUMENT

I. The Ninth Circuit Decision Delegates

Federal Lawmaking to States Where

Congress Never Intended Such Result.

The suggestion that state agencies could expand

federal CWA legislation or “federal law” through their

run-of-the-mill, delegated general NPDES permitting

authority is a dangerous one. It is also plainly

unsound under the delicate balance of powers

embedded in our Constitution and the CWA. There is

no such authority.

It is hornbook administrative law that Congress

must lay down intelligible principles when delegating

decision making to agencies. Panama Refining Co. v.

Ryan, 293 U.S. 388, 429–430 (1935); J.W. Hampton,

Jr. & Co. v. United States, 276 U.S. 394, 409 (1928);

see also Gundy v. United States, 588 U.S. 128, 156

(2019) (Gorsuch, J., joined by Roberts, C.J. and

Thomas, J. concurring) (explaining the vesting

clauses are “designed to protect [] liberties, minority

rights, fair notice, and the rule of law.”). Congress may

also delegate lawmaking authority to independent

authorities with preexisting authority over the subject

matter. United States v. Mazurie, 419 U.S. 544, 557

(1975). But before finding delegation of that authority,

it necessarily follows that the delegating entity must

have power to regulate that area. West Virginia v.

EPA, 597 U.S. 697, 744 (2022) (Gorsuch, J., joined by

Alito, J. concurring) (to ensure the “federalism canon

. . . courts must be certain of Congress’s intent before

finding that it legislate[d] in areas traditionally

regulated by the States.” (internal citations omitted,

alteration in original)).

In the case of “subdelegation” to a state agency,

there must be clear Congressional intent to do so.

[W]hile federal agency officials may

subdelegate their decision-making

authority to subordinates absent

evidence of contrary congressional

intent, they may not subdelegate to

outside

entities—private

sovereign—absent

affirmative

evidence of authority to do so.

United States Telecom Ass’n v. FCC, 359 F.3d 554, 566

(D.C. Cir. 2004). The District of Columbia Circuit has

articulated three things federal agencies may do in

coordination with state agencies, short of delegation.

They may (1) “condition [] grant of permission on the

decision of another entity, such as a state, local, or

tribal government, so long as there is a reasonable

connection between the outside entity’s decision and

the federal agency’s determination”; (2) “use an

outside entity, such as a state agency or a private

contractor, to provide the agency with factual

information”; and (3) “turn to an outside entity for

advice and policy recommendations, provided the

agency makes the final decisions itself.” Id. at 567–68.

Instead of “coordination,” however, the Ninth Circuit

decision implies Congress delegated to EPA, to

delegate to states, the ability to bypass the CWA

rulemaking process and to make “federal law” which

can only be reviewed at the federal level when the

permit holder is sued by a private party in an

enforcement matter. That is untenable.

The original Ninth Circuit decision underlying the

case at issue here relied upon EPA v. California, 426

U.S. 200 (1976) for the proposition that this Court

“has acknowledged citizen standing under CWA §

505(a)(1) and (f)(6), to enforce permit conditions based

on both EPA-promulgated effluent limitations and

state-established standards.” Northwest Envtl.

Advocates v. City of Portland, 56 F.3d 979, 988 (9th

Cir. 1995). Yet, the Ninth Circuit case ignored the

important context that Congress was so disenchanted

by the federal courts’ interpretations of the CWA that

it amended the entire statute just a year after EPA v.

California was decided, in 1977. See Pub. L. No. 95217, 91 Stat. 1566 (1977); S. Rep. No. 95-370, at 1

(1977), reprinted in U.S.C.C.A.N. 4326, 4327 (“The

1972 Amendments . . . were initiated by the Congress

and enacted over the President’s veto. Their

implementation has been uneven, often contrary to

congressional intent, and, frequently more the result

of judicial order than administrative initiative.”). In

doing this, Congress loudly reiterated what was

“federal law” and what was not.

In 1972, the Congress made a clear and

precise distinction between point

sources, which would be subject to

direct Federal regulation, and nonpoint

sources, control of which was

specifically reserved to State and local

governments through the section 208

process.

S. Rep. No. 95-370, at 8. Where Congress wanted a

state provision to be “federal law,” they amended the

act with language to make that clear. Id. at 4384

(“Section 402(b)(8) is amended to . . . make the

requirements of local pretreatment programs

enforceable under sections 309 and 505 of this act.”).

Where they sought to make permitting under the

federal regime “condition[ed]” on state requirements,

United States Telecom Ass’n, 359 F.3d at 567, they

also made that clear. 33 U.S.C. § 1341(a)(1) (“No

license or permit shall be granted if certification has

been denied by the State[.]”). Congress envisioned a

federal and state regime that would “coordinate and

integrate” permits, not subdelegate federal,

lawmaking power. S. Rep. No. 95-370, at 78.

Although discretion is granted to

establish separate administration for a

State permit program, the authority of

the

Administrator

assure

compliance with guidelines in the

issuance and enforcement of permits

and in the specification of disposal sites

which is provided in sections 402(c)

through (k) and 404(c) is in no way

diminished.

Id. And Congress did not fundamentally alter this

regime in 1987 when it decided the states’ handling of

nonpoint sources required more support and the statedriven water quality standard requirements in

Section 319 were enacted. See Pub. L. No. 100-4, 101

Stat. 7 (1987) (not including Section 319 to EPA’s

permit enforcement authority under Section 309 or to

Section 505).

The CWA includes no language that indicates EPA

can delegate its regulatory authority to sharpen the

contours of “federal law” to states. Instead, the

legislative history plainly indicates Congress’ decision

to segregate the two functions—making the federal

regime focus around “point sources” and leaving

nonpoint sources within the prerogative of states and

their laws. What is and is not subject to the point

source regime is carefully prescribed by federal law.

See 33 U.S.C. § 1362(12) (limiting the phrase

“discharge of a pollutant” as one from any “point

source”);

§ 1362(14)

(excluding

“agricultural

stormwater discharges” from the definition of “point

source”); § 1342(p) (excluding stormwater from

NPDES permitting entirely, with only enumerated

exceptions remaining, including “[a] discharge

associated with industrial activity”); 40 C.F.R. §

122.26(b)(14)(viii) (regulating stormwater on “vehicle

maintenance shops, equipment cleaning operations,

or airport deicing operations” for “[t]ransportation

facilities”). States may coordinate their own

requirements, they may provide factual information,

they may make policy recommendations when EPA

enacts CWA regulations, United States Telecom Ass’n,

359 F.3d at 567–68, but they cannot transform their

state’s nonpoint source law into federal law.

The result reached by the Ninth Circuit in this

case ignores this explicit balance in the CWA, and

turns form into substance by creating “federal law”

based on the sole act of placing a state’s law into a

NPDES permit. This is directly contrary to the plain

language of the statutory text and Congressional

and by extension nondelegation principles

and our federal Constitution.

intent,3

II. The Ninth Circuit Decision Has Created A

Jurisdictional Loophole in the CWA

Permitting Regime.

The Ninth Circuit does in fact place the CWA at

war with itself by granting private citizens greater

rights than EPA. But the conflict stems beyond just

this result and beyond the Ninth and Second Circuit

split. The decision also creates a clear inequity

between NPDES permit holders located in states

where the state issues the permit and NPDES permit

holders in states where EPA issues the permit.4 In

addition, private citizens now have greater federal,

jurisdictional rights when seeking to enforce state

standards than permit holders have to challenge the

lawfulness of those same state standards when

3 Considering legislative history and construing the statutory

text as a hypothetical legislator would is most faithful to our

system of government in the form of a republic. Amy Coney

Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev.

2193, 2209 (2017) (“In reading a statute as a lawyer would, a

court is not betraying the ordinary people to whom it owes

fidelity, but rather employing the perspective of the

intermediaries on whom ordinary people [or voters] rely.”).

4 Currently, the District of Columbia, Massachusetts, New

Hampshire, New Mexico, and the territories of American Samoa,

Puerto Rico, Guam, Johnston Atoll, Northern Mariana Islands,

Midway Island, and Wake Island have no authority to

administer the individual or general NPDES permitting regime

under the CWA. NPDES State Program Authority,

https://www.epa.gov/npdes/npdes-state-program-authority (last

updated Apr. 22, 2024) (last visited Oct. 25, 2024).

embedded in a water quality certification. This is

clearly inequitable.

A. Private citizens have no greater rights

than EPA.

Private citizens have no greater enforcement

rights than EPA. Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)

(citizen suits “supplement rather than [] supplant”

agency enforcement). As a result, private citizens can

have no additional forum for relief when compared to

instances where EPA administers the NPDES

program. EPA has long held the view that it cannot

enforce broader state standards in CWA permits. 40

C.F.R. § 123.1(i)(2) (“If an approved State program

has greater scope of coverage than required by

Federal law[,] the additional coverage is not part of

the

Federally

approved

program.”).

That

interpretation is firmly rooted in the CWA text.

EPA can only enforce permit limitations involving

effluent limitations from point sources (33 U.S.C. §§

1311–12); national standards of performance (33

U.S.C. § 1316); toxic and pretreatment effluent

standards (33 U.S.C. § 1317); records and reporting

provisions (33 U.S.C. § 1318); aquaculture projects (33

U.S.C. § 1328); and sewage sludge (33 U.S.C. § 1345)

when these requirements are embedded in a stateissued NPDES permit. 33 U.S.C. § 1319(a). Notably

absent from the plain text are the ability to enforce

water quality standards (33 U.S.C. § 1329) and

nonpoint sources regulated under state law (i.e.,

stormwater from non-industrial areas). See id. This

glaring, statutory omission should not be ignored as

Congress did not intend to give private citizens

primacy over EPA in the enforcement context.

B. The Ninth Circuit decision creates an

inequitable, jurisdictional distinction

between state- versus EPA-issued NPDES

permits which depends solely on a permit

holder’s location.

The statutory provision at issue in this case,

Section 505 of the CWA, grants private citizens power

to enforce both Section 402 NPDES permits (whether

state- or EPA-issued) and Section 401 water quality

certifications. 33 U.S.C. § 1365(f). A definitive body of

jurisdictional case law in the state water quality

certification context is drastically at odds with the

decision in the Ninth Circuit (and the Eleventh

Circuit and Fourth Circuit that followed suit).

Looking at the statutory text in Section 505, Congress

made no distinction between Section 401 private

enforcement and Section 402 private enforcement.

The two regimes must be aligned to avoid the

jurisdictional loophole that now exists in legal

interpretations of the same statute.

1. Section 505 should be applied equally to

alleged Section 402 violations and alleged

violations

state

water

quality

certifications under Section 401.

The CWA was enacted to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). To do this,

Congress created a variety of requirements in the

management of water. These requirements were

meant to be a floor, with states free to create more

standards with a greater scope of coverage as states

had the “primary responsibilities and rights” to

preserve their water resources. See 33 U.S.C. §

1251(b). Before the Court now is a permit requirement

under Section 402 for discharges of pollutants from

any “point source” as defined by Congress, which may

include a broader (not less so) state standard based on

delegation of permitting authority to a state. 33

U.S.C. §§ 1362(12), 1342, 1370. Another integral part

of the CWA regime requires applicants of federal

permits to obtain a water quality certification from

the applicable state where there is a potential for

discharge into the Nation’s waters—a requirement

that the state can waive. See generally 22 U.S.C.

§ 1341. As a result, in states where EPA administers

NPDES permits, an applicant will need to obtain both

the federal Section 402 permit from EPA and a stateissued water quality certification under Section 401,

unless waived (i.e., in New Hampshire or Puerto

Rico).5

At the heart of the parties’ dispute here is the

definition of “effluent standard or limitation under

this chapter” in Section 505, which is a statutory

limitation around what private citizens can (or

cannot) enforce. 33 U.S.C. § 1365(a)(1). That

definition includes “a certification under [Section

401]” and “a permit or a condition of a permit issued

under [Section 402]”—the latter being the primary

language in dispute here. 33 U.S.C. § 1365(f).

Quite obviously, whether there is federal

jurisdiction to hear a citizen suit challenge to state5 See supra, n.4.

only requirements should not drastically differ

depending on what discreet part of a subsection is at

issue unless there is language to indicate Congress

intended a distinction to be made. There is no

language in Section 505 that indicates that is true. See

id. As a result, any jurisdictional rules that apply to

Section 401 enforcement by private citizens should

also apply to Section 402 enforcement by private

citizens. But, that is not how the law is currently or

will be applied.

2. Section 402 jurisdictional law is now at odds

with Section 401 jurisdictional law.

Section 402 jurisdictional law (at issue here) is now

drastically at odds with Section 401 jurisdictional law

depending on location. When examining Section 401

of the CWA, federal courts uniformly agree that state

certification is the “exclusive prerogative of the state”

and “federal courts and agencies are without

authority to review the validity of requirements

imposed under state law or in a state’s certification.”

Lake Erie All. for Prot. of Coastal Corridor v. U.S.

Army Corps of Engineers, 526 F. Supp. 1063, 1074

(W.D. Pa. 1981), aff’d, 707 F.2d 1392 (3d Cir. 1983)

(addressing the issuance of a CWA Section 404 permit

by the Army Corps of Engineers and the authority to

review the attendant state-issued water quality

certification); Roosevelt Campobello Int’l Park

Comm’n v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982)

(addressing the issuance of a NPDES permit from

EPA and the courts’ and EPA’s limited authority to

review the attendant state-issued water quality

certification); see also City of Tacoma v. FERC, 460

F.3d 53, 67 (D.C. Cir. 2006) (“In most cases, if a party

seeks to challenge a state certification issued

pursuant to section 401, it must do so through the

state courts.”) (declining to hear a challenge to a stateissued water quality certification in the context of a

license for a hydroelectric project issued by the

Federal Energy Regulatory Commission (FERC));

N.C. Dep’t of Envtl. Quality v. FERC, 3 F.4th 655, 666

(4th Cir. 2021) (declining to hear a challenge to a

state-issued water quality certification in the context

of FERC’s issuance of a license for a hydroelectric

project); Lake Carriers’ Ass’n v. EPA, 652 F.3d 1, 10

(D.C. Cir. 2011) (per curiam) (advising Section 402

permit applicants to file in state court to challenge the

District of Columbia’s water quality certification,

citing Roosevelt, supra and City of Tacoma, supra);

Mobil Oil Corp. v. Kelley, 426 F. Supp. 230, 234–235

(S.D. Ala. 1976) (“Since EPA was not intended to

exercise any review over State action on certification

and since no other federal agency may exercise such

review under the National Environmental Policy Act,

it follows that the proper forum for judicial review of

state certification is in state court.”) (addressing the

issuance of a drilling permit from the Army Corps of

Engineers and the authority to review the attendant

state-issued water quality certification). EPA also has

no authority to challenge or change that certification.

Lake Carriers’ Ass’n, 652 F.3d at 10 (“given the case

law and the arguments that EPA had before it, the

agency correctly concluded that it did not have the

ability to amend or reject conditions in a [state’s] CWA

401 certification” (internal quotations omitted,

alteration in original)).

The First Circuit decision in Roosevelt Campobello

involved a private challenge to EPA’s issuance of a

NPDES permit before the state of Maine was

delegated authority to issue NPDES permits. See

supra, n.4. There, a private citizen could not challenge

the issuance of the water quality certification in

federal court. Roosevelt Campobello Int’l Park

Comm’n, 684 F.2d at 1056. It necessarily follows that

they would not have been able to enforce that same

certification in federal court. The remaining case law

involves a permit applicant’s challenges to a federal

permit and the state water quality certification that

goes with it. In that context, the permit applicant is

consistently sent to state court to challenge “state

law” (i.e., state standards with broader scope of

coverage) pursuant to and subject to state law alone.

The exception to the above, general rule for state

law in state water quality certifications that federal

courts have carved out is simple enough: “If the

question regarding the state’s section 401 certification

is not the application of state water quality standards

but compliance with the terms of section 401[,]” then

a federal agency (including EPA) may address it. Port

of Tacoma, 460 F.3d at 68. The reviewable “federal

law” is whether or not the state issuance complied

with Section 401 procedural requirements. Id. This

carefully crafted exception avoids inquiry “into every

nuance of state law.” Id. Yet another obvious

exception is where there is a claim that the “state’s

law imposes an unconstitutional burden on interstate

commerce[,]” which can also be challenged in federal

court. Lake Carriers’ Ass’n, 652 F.3d at 10. Put

together, the “federal law” only requires compliance

with the procedural mechanisms in the CWA and, of

course, the U.S. Constitution, but does not extend to

the broader state requirements, including water

quality standards—which are matters of state law,

state policy preferences, and state prerogatives.

Limits on federal review of state water quality

certifications based on Constitutional principles

should be a guidepost. As a result of the Section 402

circuit split here, however, if a state issues a Section

402 NPDES permit in the Ninth or Eleventh or

Fourth Circuits and that permit includes a state law

requirement that is broader in scope as a purely state

matter, a private citizen can enforce that state

provision in a federal District Court, regardless of

whether that state allows citizen suits. See Puget

Soundkeeper Alliance, 104 F.4th at 103–04 (relying on

Northwest Envtl. Advocates, 56 F.3d at 979); Ohio

Valley Envtl. Coal. v. Fola Coal Co., LLC, 845 F.3d

133 (4th Cir. 2017); Parker v. Scrap Metal Processors,

Inc., 386 F.3d 993, 1008 (11th Cir. 2004). If a state

issues a Section 402 NPDES permit in the Second

Circuit and that permit includes a state law

requirement that is broader in scope, a private citizen

cannot enforce that provision in a federal District

Court and must go to state court. Atlantic States Legal

Foundation, 12 F.3d 353. If EPA (and not the state)

issues the Section 402 NPDES permit and the broader

state requirements are part of the Section 401 water

quality certification (e.g., New Hampshire and Puerto

Rico in the First Circuit, or the District of Columbia),6

a private citizen can only enforce those state

requirements in state court. See, e.g., Lake Carriers’

6 See supra, n.4.

Ass’n, supra. These vastly different results depending

on where the permit holder is and who is issuing the

permit are cause for serious concern.

The outcome in the Fourth Circuit is particularly

inequitable. There, a permit holder that seeks to

challenge state water quality standards embedded in

a state certification has no access to a federal District

Court. See N.C. Dep’t of Envtl. Quality., 3 F.4th at 666

(declining to hear a challenge to a state-issued water

quality certification in the context of FERC’s issuance

of a license for a hydroelectric project, citing Roosevelt,

supra and City of Tacoma, supra). But if that exact

same standard gets embedded in a state-issued

NPDES permit, a private citizen can seek to enforce it

in federal District Court. See generally Ohio Valley

Envtl. Coal., 845 F.3d 133. Both of these outcomes

cannot be logically or statutorily correct.

Ultimately, whether a District Court has

jurisdiction under the CWA’s permitting regime is

pure geographical happenstance. It depends on the

location of the permit holder and whether or not EPA

has granted (or revoked) state authority over the

NPDES permitting program. And, at least in the

Fourth Circuit, it depends on whether the case is

brought by the permit holder versus a private citizen.

Amici curiae’s members do business in the Ninth

Circuit, in the Second Circuit, in the Eleventh Circuit,

and in the Fourth Circuit. The enforcement of their

environmental permits should not depend upon where

their ships are located on any particular day or which

circuit their terminals are located in. Not only is this

illogical, it is inequitable.

III. Stakeholders Affected By Environmental

Law

Depend

Upon

Jurisdictional

Certainty.

Not long ago, this Court reiterated that

jurisdictional statutes must have some level of

“jurisdictional simplicity” to avoid confusion, which in

turn would avoid the exact situation created here—a

split of authority as between two coasts of the same

nation and private citizens seeking to enforce permit

conditions in a judicial forum that an agency itself

believes it cannot. Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 578 U.S. 374, 399 (2016)

(quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010));

40 C.F.R. § 123.1(i)(2).

The jurisdictional phrase at issue here requires

interpretation of CWA’s “issued under [Section 402]”

language for purposes of Section 505 citizen suit

enforcement. 33 U.S.C. § 1365(f).7 District Courts,

EPA, state environmental agencies, potential citizensuit plaintiffs, and private parties need clarity around

the “convoluted arising-under standard” in the

Constitutional sense as it relates to the CWA Section

505 “issued under” standard in the citizen suit

enforcement context. Merrill Lynch, Pierce, Fenner &

Smith Inc., 578 U.S. at 399 (Thomas, J., joined by

Sotomayor, J. concurring); id. Hornbook “arising

under” case law does not provide a ready answer. Not

long ago, this Court found no distinction between the

7 For purposes of comparison, Section 505 uses the phrase

“certification under” as it relates of Section 401 enforcement. 33

U.S.C. § 1365(f). It is reasonable to assume the same word, in the

same provision, of the same statute—“under” —will have the

same meaning to the drafter. See supra, n.3.

statutory phrase “brought to enforce” and the phrase

“arising under” for jurisdictional purposes. Id. at 387.

That law indicates federal jurisdiction lies “if ‘it

appears from the face of the complaint that

determination of the suit depends upon a question of

federal law.’” Id. (quoting Pan American Petroleum

Corp. v. Superior Court, 366 U.S. 656, 663 (1961)).

“Th[e] inquiry focuses on . . . whether the plaintiff

seeks relief under state or federal law.” Id. But none

of this case law addresses Section 505’s “issued under”

language or a dual, federal and state regime, common

in environmental law addressing water (33 U.S.C. §

1251 et seq.), waste (42 U.S.C. § 6901 et seq.), and air

pollution (42 U.S.C. § 7401 et seq.).

As a result of the confusion, the parties now tussle

with a seemingly simple jurisdictional phrase—

“issued under.” 33 U.S.C. § 1365(a)(1), (f). Does

“issued under” take on a traditional “arising under”

analysis? Does it mean “brought to enforce”? Does it

mean “pursuant to” or “by reason of authority of”?

Does it mean something else unique to the legislative

context of the CWA? A ready and uniform answer is

required, particularly in the context of general

permits, which are intended to be the simplest form of

the CWA permitting regime.

The state of Washington currently has twenty

water quality general permits,8 at least five of which

See

Water

quality

general

permits,

https://ecology.wa.gov/Water-Shorelines/Water-quality/Waterquality-permits/Water-Quality-general-permits (last visited Oct.

25, 2024).

are stormwater discharge related.9 They affect many

activities across many sectors—for example, including

any construction activities involving just one acre or

more. 40 C.F.R. § 122.26(b)(15). As this case aptly

demonstrates, a federal limitation is not always a

limitation under state law. Compare Wash. Rev. Code

§ 90-48-020 (defining “pollution” to include any

“alteration of the physical, chemical or biological

properties, of any waters of the state”); Wash. Rev.

Code § 90-48-080 (prohibiting anyone from

“permit[ting]” pollution into the waters of the state);

Wash. Admin. Code § 173-226-050 (providing no

limitation on the authority of the Washington

Department of Ecology for general permits of

“[s]tormwater sources”); with 33 U.S.C. § 1362(19)

(defining “pollution” as the “man-made or maninduced alteration of the chemical, physical,

biological, and radiological integrity of water”);

§ 1362(12) (limiting the phrase “discharge of

pollutant” as one from any “point source”); § 1362(14)

(excluding “agricultural stormwater discharges” from

the definition of “point source”); § 1342(p) (excluding

stormwater from NPDES permitting entirely, with

only enumerated exceptions remaining).

As they are issued routinely, general permits from

state agencies with delegated permitting authority

often contain many provisions of federal and state

law. Knowing what is “state law” for jurisdictional

purposes and “federal law” for jurisdictional purposes

should not lead to endless litigation and depend on

which state and circuit a purported violation occurred.

9 See supra, n.8 (follow “All stormwater permits” hyperlink).

This result is not only inequitable, it frustrates the

goals of the CWA and private industry’s attempts to

adhere to environmental law more generally.

Moreover, if an allegation is made that a party is

violating state law, that party should have an

opportunity to take that issue to the state’s highest

court sooner rather than later. Doing so will not only

answer the state law question for that party, but

everyone else as well. Where the state law question is

the only issue, the state court should as a federal,

Constitutional matter decide the issue. See U.S.

Const. art. III, § 2, cl. 1. Where the state law issue is

a pendant issue, the District Court may decline to

hear the issue under a traditional, pendant

jurisdiction analysis or the doctrine of abstention. See

28 U.S.C. § 1367; Colorado River Water Cons. Dist. v.

United States, 96 S. Ct. 1236 (1976). These traditional

analyses promote the efficiency of the court system,

provide final answers to state legal questions faster,

and recognize the Constitutional principle that

federal courts are courts of limited jurisdiction. See

Merrell Dow Pharmaceuticals v. Thompson, 478 U.S.

804, 807 (1986). Congress did not (nor could it) throw

all of this away in enacting the CWA.

IV. If The Law Does Not Provide A Remedy,

Neither Should Any Court.

The Ninth Circuit decision seriously undermines

the regulatory expectations of amici curiae’s

members. Their members presume that legislatures

(federal or state), not courts, provide statutory

remedies granted in environmental statutes—

remedies that may call for fines, penalties, and

payment of attorney fees. See., e.g., 33 U.S.C.

§ 1365(d). The Ninth Circuit decision here is

particularly suspect because the “traditional” way of

engaging in a jurisdictional analysis of a state law

claim, discussed supra, would leave Washington state,

and not private citizens, to enforce its own

environmental laws. The plaintiff here would have no

relief under state law if not for Ninth Circuit common

law.

Historically, the “weighty policies of judicial

economy and fairness to parties” allowed District

Courts to entertain pendant jurisdiction over state

law claims. United Mine Workers of America v. Gibbs,

383 U.S. 715, 724 (1966). That exercise of jurisdiction

is wholly discretionary. Id. at 726. These principles of

fairness and of providing whole relief, now codified at

28 U.S.C. § 1367, assume that the plaintiffs would

have access to the state court in the first instance.

Here, the plaintiff would have no court access because

Washington itself does not have a citizen suit

provision. The plaintiff would have no right, and by

extension no state claim, to enforce the environmental

laws of Washington.

The jurisdictional policy of providing whole relief

has been turned on its head to create relief where none

would otherwise exist. Whether or not a state

implements a citizen suit provision to enforce its own

state laws is a major policy decision currently subject

to “novel social and economic experiment” at the state

level. West Virginia, 597 U.S. at 739 (Gorsuch, J.,

joined by Alito, J. concurring) (quoting New State Ice

Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting)). The policy decision of any particular

state, including Washington, is not to be intruded

upon lightly. Even if that state enforcement choice is

contrary to the policy choice made in the CWA, that is

not reason enough to override it. Here, however, in

order to conclude the Ninth Circuit was correct, one

would also have to conclude that Congress delegated

to EPA, to delegate to states, to delegate to private

citizens the enforcement of state law even though the

state legislature itself did not grant that ability. That

cannot possibly be true.

Whatever good intentions may underly the Ninth

Circuit’s decision, it creates a jurisdictional morass in

environmental law that undermines the expectations

of amici curiae’s members. It is plainly wrong. It also

raises important issues implicating federalism

principles, proper court administration, and uniform

application of the law affecting amici curiae’s

members nationwide.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

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Respectfully submitted,