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

No. 24-350

In the Supreme Court of the United States

_______________

PORT OF TACOMA; SSA TERMINALS, LLC; AND SSA

TERMINALS (TACOMA), LLC,

Petitioners,

v.

PUGET SOUNDKEEPER ALLIANCE

Respondent.

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_________________________________

BRIEF OF IOWA AND 24 OTHER STATES

AS AMICI CURIAE IN SUPPORT OF

GRANTING THE PETITION

__________________________________________________

BRENNA BIRD

Attorney General of Iowa

ERIC WESSAN

Solicitor General

Counsel of Record

BREANNE STOLTZE

1305 E Walnut Street

Des Moines, IA 50319

(515) 823- 9117

eric.wessan@ag.iowa.gov

Counsel for Amici Curiae

(additional counsel listed in addendum)

i

QUESTION PRESENTED

Whether Section 505 of the Clean Water Act

(“CWA”) authorizes citizens to invoke the federal

courts to enforce conditions of State-issued pollutantdischarge permits adopted under State law that

mandate a greater scope of coverage than required by

the CWA?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..................................... i

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

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

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

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT .......................................................... 5

I. COOPERATIVE

FEDERALISM

PRINCIPLES

MUST

DRIVE

ANY

INTERPRETATION OF THE CLEAN

WATER ACT................................................ 5

1.

States possess a vital historical role in

water regulation. ................................................... 5

2.

The Clean Water Act recognizes the

States’ water protection role, creating a

cooperative federalism regime. ............................. 9

II. FEDERALISM PRINCIPLES UNDERLIE

ANY

CLEAN

WATER

ACT

INTERPRETATION. ................................. 12

III.THE

NINTH

CIRCUIT’S

RULING

DISRUPTS

THE

COOPERATIVE

FEDERALISM BALANCE OF THE CLEAN

WATER ACT.............................................. 15

1.

The Ninth Circuit’s interpretation

undermines federalist principles. ....................... 16

2.

The Ninth Circuit’s interpretation stifles

State environmental protection efforts. ............. 19

CONCLUSION ..................................................... 21

ADDITIONAL COUNSEL ................................... 1a

iii

TABLE OF AUTHORITIES

Cases

Am Farm Bureau Fed’n v. EPA, 792 F.3d 281 (3d Cir.

2015) ..................................................................... 2, 6

Arkansas v. Oklahoma, 503 U.S. 91 (1992) .......... 2, 13

Arkansas v. Wildlife Fed’n v. ICI Americas, Inc., 29

F.3d 376 (8th Cir. 1994) ......................................... 26

Askins v. Ohio Dep’t of Agric., 809 F.3d 868 (6th Cir.

2016) ....................................................................... 17

Atl. Richfield Co. v. Christian, 590 U.S. 1 (2020)....... 8

Atl. States Legal Found., Inc. v. Eastman Kodak Co.,

12 F.3d 353 (2d Cir. 1993) ................................... 3, 4

Bond v. United States, 564 U.S. 211 (2011) ............. 18

Budget Prepay, Inc. v. AT&T Corp., 605 F.3d 273 (5th

Cir. 2010) .................................................... 18, 19, 22

California v. United States, 438 U.S. 645 (1978) . 8, 13

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528 (1985) ............................................................... 19

Global Naps, Inc. v. Mass. Dep’t of Telecomms. &

Energy¸427 F.3d 34 (1st Cir. 2005) ....................... 19

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...... 19, 20, 23

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) .... 2, 11, 12, 176, 18

Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349

(1908) ........................................................................ 8

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ...... 28

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) ...... 11

Martin v. Lessee of Waddell, 16 Pet. 367 (1842)......... 7

McDonnell v. United States, 579 U.S. 550 (2016) ... 19,

20

Nat. Res. Def. Council, Inc. v. EPA, 859 F.2d 156

(D.C. Cir. 1988). ..................................................... 15

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)26

iv

New York v. United States¸ 505 U.S. 144 (1992) ..... 18,

19, 23

Nw. Env’t Advocs. v. City of Portland, 74 F.3d 945

(9th Cir. 1996) (O’Scannlain, J., dissenting from

denial of rehearing) .................................... 4, 5, 6, 31

Rapanos v. United States, 547 U.S. 715 (2006) ........ 17

S. Side Quarry, LLC v. Louisville & Jefferson Cnty.

Metro. Sewer Dist., F.4th 684 (6th Cir. 2022) ...... 15

Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023)7, 8,

20, 21

Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir. 1978) 15

Sierra Club v. U.S. Army Corp. of Eng’rs, 909 F.3d

635 (4th Cir. 2018) ....................................... 5, 11, 23

Solid Waste Agency of N. Cook Cnty. v. U.S. Army

Corps of Eng’rs (SWANCC), 531 U.S. 159 (2001) .. 2,

5, 10, 12, 15

Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941

(1982) ...................................................................... 12

Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614

(2013) ........................................................................ 7

United States Dep’t of Energy v. Ohio, 503 U.S. 607

(1992) .................................................................... 4, 6

United States Forest Serv. v. Cowpasture River Pres.

Ass’n, 590 U.S. 604 (2020) ..................................... 20

United States v. Bass, 404 U.S. 336 (1971) .............. 21

United States v. New Mexico, 438 U.S. 696 (1978) ... 12

United States v. Puerto Rico, 721 F.2d 832 (1st Cir.

1983) ....................................................................... 11

Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)

................................................................................ 21

Wisconsin Dep’t of Health & Fam. Servs. v. Blumer,

534 U.S. 473 (2002) ................................................ 20

Statutes

33 § 1342(b) ................................................................ 14

v

33 U.S.C. § 1251(a) .................................................... 13

33 U.S.C. § 1251(b) ...................................... 2, 5, 14, 21

33 U.S.C. § 1313(c) .................................................... 14

33 U.S.C. § 1319(a) .................................................... 14

33 U.S.C. § 1342 ........................................................ 14

33 U.S.C. § 1342 (d)(2)............................................... 14

33 U.S.C. § 1342(b) ................................................ 4, 15

33 U.S.C. § 1342(c) .................................................... 14

33 U.S.C. § 1342(h) ...................................................... 4

33 U.S.C. § 1342(k) .................................................... 14

33 U.S.C. § 1344(t)....................................................... 5

33 U.S.C. § 1365 .................................................... 4, 16

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

33 U.S.C. § 1365(b)(1)(A) ........................................... 16

33 U.S.C. § 1365(b)(1)(B) ........................................... 16

42 U.S.C. § 6972(a)(2) ................................................ 25

Ark. Code § 15-22-906 ............................................... 12

Iowa Code § 455B.173 ............................................... 12

Neb. Rev. Stat. § 81-1506(2)(f) .................................. 12

W. Va. Code § 22-11-2(a) ........................................... 11

W. Va. Code § 22-11-8(b)(4) ....................................... 12

Wyo. Stat. § 35-11-301............................................... 12

Regulations

40 C.F.R. § 123.1(i)(2) .................................................. 4

40 C.F.R. §§ 123.1, et seq. ......................................... 14

Constitutional Provisions

Ala. Const. art. IV, §§ 93.14-16 ................................. 10

Cal. Const. art. XIII, § 8 .............................................. 9

Fla. Const. art. VII, § 14............................................ 10

Iowa Const. Art. VII, § 10 ........................................... 9

La. Const. art. IX, § 1 ................................................ 10

Mass. Const. art. XCVII ............................................ 10

vi

Mich. Const. art. IV, § 52 .......................................... 10

Mo. Const. art. III, § 37 ............................................. 11

N.C. Const. art. XIV, § 5............................................ 10

N.M. CONST. art. XX, § 21 ....................................... 10

Pa. Const. art. I, § 27 ................................................. 10

Other Authorities

Charles S. Abell, Ignoring the Trees for the Forests:

How the Citizen Suit Provision of the Clean Water

Act Violates the Constitution’s Separation of Powers

Principle, 81 Va. L. Rev. 1957 (1995) .............. 24, 25

Courtney M. Price, Private Enforcement of the Clean

Water Act, Nat. Resources & Env’t, Winter 1986 ... 3

Federalist No. 39 (C. Rossiter ed. 1961) ................... 18

Frank B. Cross, Rethinking Environmental Citizen

Suits, 8 Temp. Envt’l L. & Tech. 55 (1989) .... 22, 27,

28, 29

Henry N. Butler & Nathaniel J. Harris, Sue Settle,

and Shut Out the States: Destroying the

Environmental Benefits of Cooperative Federalism,

37 Harv. J.L. & Pub. Pol’y 579 (2014) ..................... 9

Jonathan H. Adler, Stand or Deliver: Citizen Suits,

Standing, and Environmental Protection, 12 Duke

Env’t L. & Pol’y F. 39 (2001)................ 24, 28, 29, 30

Karl Hausker, Reinventing Environmental

Regulation: The Only Path to a Sustainable Future,

29 Envtl. L. Rep. 10 (March 1999) ........................ 30

Linda Malone, State and Local Land Use Regulation

to Prevent Groundwater Contamination, 1 Env’t

Reg. of Land Use § 9:16 (Feb. 2024 Update) ......... 11

Michael S. Greve, The Private Enforcement of

Environmental Law, 65 Tul. L. Rev. 339 (1990) ... 25

Michael W. McConnell, Federalism: Evaluating the

Founders’ Design for Federalism, 54 U. Chi. L. Rev.

1484 (1987) ............................................................. 27

vii

NPDES State Program Authority, EPA,

https://perma.cc/EEU4-EKF9 ................................ 15

Phillip J. Weiser, Federal Common Law, Cooperative

Federalism, and Enforcement of the Telecom Act,

76 N.Y.U. L. Rev. 1692 (2001) ................................. 6

Robert L. Fischman, Cooperative Federalism and

Natural Resources Law, 14 N.Y.U. Env’t L.J. 179

(2005) ........................................................................ 9

S. Rep. No. 92-414 (1971) .......................................... 16

Scott A. Keller, How Courts Can Protect State

Autonomy from Federal Administrative

Encroachment, 82 S. Cal. L. Rev. 45 (2008) .......... 24

Sen. Kevin Cramer, Restoring States’ Rights and

Adhering to Cooperative Federalism in

Environmental Policy, 45 Harv. J.L. & Pub. Pol’y

481 (2022) ................................................................. 3

Susan A. Macmanus, The Impact of Litigation on

Municipalities: Total Cost, Driving Factors, and

Cost Containment Mechanisms, 44 Syracuse L.

Rev. 833 (1993) ....................................................... 29

INTEREST OF AMICUS CURIAE 1

Amici curiae States of Iowa, Alabama, Alaska,

Arkansas, Georgia, Idaho, Indiana, Kansas,

Louisiana, Mississippi, Missouri, Montana, Nebraska,

New Hampshire, North Dakota, Ohio, Oklahoma,

South Carolina, South Dakota, Tennessee, Texas,

Utah, Virginia, West Virginia, and Wyoming (“amici

States”) submit this brief in support of Petitioners,

Port of Tacoma, et al., urging this Court to reverse the

Ninth Circuit’s decision. That decision authorized an

environmental activist organization to pursue a

federal lawsuit to enforce State-law water-pollution

requirements that “mandate ‘a greater scope of

coverage than that required’ by” the Clean Water Act.

Pet.App.12a–13a.

Amici States have a strong interest in this

case’s outcome. The Ninth Circuit’s decision to allows

private citizens to enforce state-issued pollutant

discharge permits conditions in federal court that

exceed those required under the Clean Water Act. This

expansion of the Clean Water Act’s citizen-suit

provision disregards the States’ longstanding

historical role in water regulation. Congress has long

recognized that historical role and wove it directly into

the cooperative federalist framework of the Clean

Water Act.

The Ninth Circuit’s interpretation interferes

with State authority over water resources and

severely constrains congressionally approved State

discretion over Clean Water Act enforcement. Beyond

the constitutional indignity, the decision undermines

Pursuant to Rule 37.2, amici provided timely

notice of their intent to file this brief to all parties.

1

2

State

environmental

environmental benefit.

innovation

with

little

SUMMARY OF ARGUMENT

“[I]n the Clean Water Act Congress struck a

careful balance among competing policies and

interests.” Arkansas v. Oklahoma, 503 U.S. 91, 106

(1992). When it enacted the 1972 law, Congress did

not intend to readjust the longstanding federal-state

balance in water regulation. Solid Waste Agency of N.

Cook Cnty. v. U.S. Army Corps of Eng’rs (SWANCC),

531 U.S. 159, 174 (2001). “Rather . . . Congress chose

to ‘recognize, preserve, and protect the primary

responsibilities and rights of the States . . . to plan the

development and use . . . of land and water resources.”

Id. (quoting 33 U.S.C. § 1251(b)). Under the Clean

Water Act, “the [Environmental Protection Agency]

and the states participate in a ‘cooperative federalism’

framework working together to clean the Nation’s

waters.” Am Farm Bureau Fed’n v. EPA, 792 F.3d 281,

288 (3d Cir. 2015).

Under the cooperative federalism model, “states

are partners, if not leaders, when it comes to

environmental statutes.” Sen. Kevin Cramer,

Restoring States’ Rights and Adhering to Cooperative

Federalism in Environmental Policy, 45 Harv. J.L. &

Pub. Pol’y 481, 500 (2022). Citizen-suit provisions

under these laws are merely meant “to spur and

supplement government enforcement.” Courtney M.

Price, Private Enforcement of the Clean Water Act,

Nat. Resources & Env’t, Winter 1986, at 31, 32.

Citizen suits thus exist to ensure “compliance with the

[Clean Water Act].” Gwaltney of Smithfield, Ltd. v.

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

(emphasis added). They are not meant to enforce State

3

water-pollution laws independent of the Clean Water

Act.

By ruling for the Plaintiffs here, the Ninth

Circuit drastically expanded Clean Water Act citizen

suits—and did so based on a flawed textual

interpretation. When faced with the same question,

the Second Circuit correctly concluded that state

regulations that “mandate ‘a greater scope of coverage

than that required’ by the federal [Clean Water Act]

and its implementing regulations are not enforceable

through citizen suit.” Atl. States Legal Found., Inc. v.

Eastman Kodak Co., 12 F.3d 353, 354 (2d Cir. 1993),

as amended (Feb. 3, 1994) (citing 33 U.S.C. § 1365; 40

C.F.R. § 123.1(i)(2); United States Dep’t of Energy v.

Ohio, 503 U.S. 607, 624 (1992)).

States may enact stricter standards than those

contained in the Clean Water Act and federal

regulations. See id. (citing 33 U.S.C. § 1342(b)). The

States or the Environmental Protection Agency may

then enforce these States’ standards under the Clean

Water Act, “but private citizens have no standing to do

so.” Id. (33 U.S.C. § 1342(h)). In other words, [t]he

Clean Water Act allows citizens to enforce effluent

limitations contained in federal permits, but the Act

does not permit citizens to enforce general water

quality provisions.” Nw. Env’t Advocs. v. City of

Portland, 74 F.3d 945, 946 (9th Cir. 1996)

(O’Scannlain, J., dissenting from denial of rehearing).

The Ninth Circuit’s approach here “would

significantly upset Congress’s carefully prescribed

allocation of authority.” See Sierra Club v. U.S. Army

Corp. of Eng’rs, 909 F.3d 635, 647 (4th Cir. 2018). The

Clean Water Act explicitly recognizes that “[i]t is the

policy of the Congress to recognize, preserve, and

4

protect the primary responsibilities and rights of the

States to prevent, reduce, and eliminate pollution, to

plan the development and use (including restoration,

preservation, and enhancement) of land and water

resources.” 33 U.S.C. § 1251(b).

Indeed, the Act declares that, unless expressly

provided, “nothing . . . shall preclude or deny” the

rights of States to “control the discharge of dredged or

fill material in any portion of the navigable waters

within the jurisdiction of such State.” 33 U.S.C.

§ 1344(t). Accordingly, “[w]hile state water quality

standards may serve as an important source of

authority for a state to impose additional pollution

control requirements,” these standards “should not be

used as a vehicle for flooding the federal courts with

citizen suits against permittees who are meeting the

specific requirements (i.e., effluent limitations)

outlined in those permits.” Nw. Env’t Advocs., 74 F.3d

at 946. “[A]llowing citizens to enforce standards that

Congress specifically allocated to” government

entities, “upset[s] the delicate balance envisioned by

Congress in its promulgation of the current

enforcement regime for environmental law.” Id.

This Court can restore that balance. Here, the

Court can ensure that the Clean Water Act’s citizensuit provisions are read through the proper

cooperative federalist lens as provided in the Act’s

text.

5

ARGUMENT

I.

COOPERATIVE

FEDERALISM

PRINCIPLES

MUST

DRIVE

ANY

INTERPRETATION OF THE CLEAN

WATER ACT

The Clean Water Act “establishes a distinctive

variety of cooperative federalism.” Ohio, 503 U.S. at

633 (White, J., concurring in part and dissenting in

part). “Under [the CWA], the EPA and the states

participate in a ‘cooperative federalism’ framework

working together to clean the Nation’s waters.” Am.

Farm Bureau Fed’n, 792 F.3d at 288. The cooperative

federalism approach allows States to tailor federal

regulatory programs to local conditions, promote

competition within the federal regulatory framework,

and allow experimentation with different approaches

that might help find an optimal regulatory strategy.

Phillip J. Weiser, Federal Common Law, Cooperative

Federalism, and Enforcement of the Telecom Act, 76

N.Y.U. L. Rev. 1692, 1695–98 (2001). Indeed, the

cooperative federalism approach is baked into the text

of the Clean Water Act, and any interpretation which

ignores cooperative federalism principles ignores

critical historical and contextual context.

1. States possess a vital historical role in

water regulation.

Regulating “land and water use lies at the core

of traditional state authority.” Sackett v. Env’t Prot.

Agency, 598 U.S. 651, 679 (2023); see also SWANCC,

531 U.S. at 173 (recognizing “the State’s traditional

and primary power over land and water use.”);

Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614,

631 (2013) (“We have long understood that as

6

sovereign entities in our federal system, the States

possess an ‘absolute right to all their navigable waters

and the soils under them for their own common use.’”

(quoting Martin v. Lessee of Waddell, 16 Pet. 367, 140

(1842))).

Indeed, “few public interests are more obvious,

indisputable, and independent of particular theory.”

Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349,

356 (1908). As such, “[f]or most of this Nation’s

history, the regulation of water pollution was left

almost entirely to the States and their political

subdivisions.” Sackett, 598 U.S. at 659; see also Atl.

Richfield Co. v. Christian, 590 U.S. 1, 36 (2020)

(Gorsuch, J., concurring in part and dissenting in part)

(“[T]he protection of natural resources is a traditional

and central responsibility of state governments.”).

The States have long held this vital role because

“[t]he very vastness of our territory as a Nation” has

“all but necessitated” different approaches to water

management and resource conversation. California v.

United States, 438 U.S. 645, 684 (1978). “Those who

first set foot in North America from ships sailing the

tidal estuaries of Virginia did not confront the same

problems as those who sailed flat boats down the Ohio

River in search of new sites to farm.” Id. So too “[t]hose

who cleared the forests in the old Northwest Territory

faced totally different physiological problems from

those who built sold huts on the Great Plains.” Id.

This “strong tradition of decentralized

management” allows for “significant customization of

standards” and allows States to tailor their standards

based on the individual needs in their communities.

Robert L. Fischman, Cooperative Federalism and

Natural Resources Law, 14 N.Y.U. Env’t L.J. 179,

7

192–93 (2005). Thanks to this flexibility, States can

experiment with different pollution-regulation

methods and can quickly and efficiently respond to

changes while quickly reversing or amending

ineffective policies. See Henry N. Butler & Nathaniel

J. Harris, Sue Settle, and Shut Out the States:

Destroying the Environmental Benefits of Cooperative

Federalism, 37 Harv. J.L. & Pub. Pol’y 579, 610 (2014).

States have embraced their environmental

stewardship role with many State constitutions

enshrining natural resource protections. See, e.g.,

Iowa Const. Art. VII, § 10 (creating a natural

resources trust fund); Cal. Const. art. XIII, § 8

(protecting the “use or conservation of natural

resources”); La. Const. art. IX, § 1 (requiring that

natural resources be “protected” and “conserved” for

the “health, safety, and welfare of the people”).

For clean water specifically, North Carolina

“conserve[s] and protect[s]” its “waters” and “control[s]

and limit[s] the[ir] pollution.” N.C. Const. art. XIV,

§ 5.

New Mexico and Michigan require their

legislatures to “provide for control of pollution and

control of despoilment” of state waters. N.M. CONST.

art. XX, § 21; see also Mich. Const. art. IV, § 52

(similar).

Massachusetts and Pennsylvania go even

further, enshrining the right to “clean” and “pure”

water. Mass. Const. art. XCVII; Pa. Const. art. I, § 27.

And several States’ constitutions put these

commitments into action by establishing commissions

or setting up funds to keep water and other natural

resources clean. See, e.g., Ala. Const. art. IV, §§ 93.14-

8

16 (creating soil and water conservation coalition and

water management districts); Fla. Const. art. VII, § 14

(authorizing state bonds without elections for “water

pollution control and abatement” measures); Mo.

Const. art. III, § 37(b)-(c), (e) (setting up a “water

pollution control fund” that allows state financing to

protect “the environment through the control of water

pollution”

Both before and after the Clean Water Act’s

enactment, State laws and regulations thus have been

“the prime bulwark in the effort to abate water

pollution.” Keating v. FERC, 927 F.2d 616, 622 (D.C.

Cir. 1991); accord Sierra Club, 909 F.3d at 648; United

States v. Puerto Rico, 721 F.2d 832, 838 (1st Cir. 1983).

And States are “[i]ncreasingly” enacting the “most

stringent protections against water pollution.” Linda

Malone, State and Local Land Use Regulation to

Prevent Groundwater Contamination, 1 Env’t Reg. of

Land Use § 9:16 (Feb. 2024 Update).

For example, West Virginia’s Water Pollution

Control Act declares that water purity and quality are

“the public policy” of the State. W. Va. Code § 22-112(a). To further that policy, the Act creates water

quality standards that limit the number of pollutants

that may flow into State waters. Id. § 22-11-8(b)(4).

And West Virginia is not alone in codifying its water

protections. See, e.g., Iowa Code § 455B.173 (tasking

State Environmental Protection Commission with

developing comprehensive water pollution plans and

programs); Ark. Code § 15-22-906 (directing the

State’s Natural Resources Commission to develop a

comprehensive groundwater program); Neb. Rev.

Stat. § 81-1506(2)(f) (prohibiting the discharge of

dredged material without a permit); Wyo. Stat. § 35-

9

11-301 (barring any person from causing, threatening,

or allowing the discharge of pollution wastes into

State waters without a permit).

2. The Clean Water Act recognizes the

States’ water protection role, creating a

cooperative federalism regime.

Congressional respect for State water-related

jurisdiction is well-established. See United States v.

New Mexico, 438 U.S. 696, 702 n.5 (1978) (Congress

had identified 37 statutes “in which Congress has

expressly recognized the importance of deferring to

state water law”) (citations omitted); accord Sporhase

v. Nebraska, ex rel. Douglas, 458 U.S. 941, 958 (1982);

cf California, 438 U.S. at 653 (“the consistent thread

of purposeful and continued deference to state water

law by Congress” runs through the history of water

reclamation laws). Indeed, at least as early as 1879,

“Congress deferred to growing local laws.” Id. at 654.

Consistent with Congress’s historical deference

to the States’ water protection role, the Clean Water

Act “provides for an intricate system of federal-state

interaction in the administration and enforcement of

the Act, with emphasis on state responsibility.”

Charles W. Smith, Highlights of the Federal Water

Pollution Control Act of 1972, 77 Dick. L. Rev. 459, 460

(1973). The Clean Water Act regime thus provides

more than simple federal approval of State action.

Instead, it “anticipates a partnership between the

States and the Federal Government animated by a

shared objective: ‘to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.’” Arkansas, 503 U.S. at 101 (quoting

33 U.S.C. § 1251(a)). “In doing so, Congress chose to

“recognize, preserve, and protect the primary

10

responsibilities and rights of States to prevent, reduce,

and eliminate pollution, to plan the development and

use (including restoration, preservation, and

enhancement) of land and water resources.”

SWANCC, 531 U.S. at 166–67 (quoting 33 U.S.C.

§ 1251(b)).

Under this State-federal partnership, the Clean

Water Act authorizes EPA to issue pollution discharge

permits. 33 U.S.C. § 1342. But the law also provides a

State may “administer” its own permit system so long

as that system complies with detailed federal

statutory and regulatory requirements. Id. § 1342(b);

40 C.F.R. §§ 123.1–123.64. Though even under an

approved State permitting system, EPA reviews water

quality standards, 33 U.S.C. § 1313(c), and retains

authority to object to the issuance of particular

permits and to monitor State programs for continuing

compliance with federal requirements. Id. §§ 1342(c),

(d)(2). The federal government also has the power to

enforce the CWA terms of State permits when the

State has not instituted its own enforcement

proceedings but cannot enforce terms in State permits

that come from State law. Id. § 1319(a). “Under this

unusual statutory structure, compliance with a stateadministered permit is deemed compliance with the

CWA.” Ohio, 503 U.S. at 634 (White, J., concurring in

part and dissenting in part) (citing 33 U.S.C.

§ 1342(k)).

Accordingly, “States play the primary role in

administering the Act.” Nat. Res. Def. Council, Inc. v.

EPA, 859 F.2d 156, 184 (D.C. Cir. 1988). The States

retain the power “to administer [their] own permit

program for discharges into navigable waters within

[their] jurisdiction.” 33 U.S.C. § 1342(b). And although

11

the Congress gave EPA the authority to issue permits

in the first instance, “Congress clearly intended that

the states would eventually assume the major role in

the operation” of that process. Shell Oil Co. v. Train,

585 F.2d 408, 410 (9th Cir. 1978). The States have

accepted that role, and 47 States now process National

Pollutant Discharge Elimination Permits. See NPDES

State

Program

Authority,

EPA,

https://perma.cc/EEU4-EKF9.

Congress also intended that the States would

take a key role in Clean Water Act enforcement. When

a person violates the Clean Water Act by failing to

meet permit standards—or by failing to get a permit

altogether—“the EPA and the states form the first line

of defense.” S. Side Quarry, LLC v. Louisville &

Jefferson Cnty. Metro. Sewer Dist., 285 F.4th 684, 690

(6th Cir. 2022). But, in limited circumstances, the

Clean Water Act also permits citizen suits. See 33

U.S.C. § 1365.

Federalism concerns shape the scope of these

citizen-suit provisions. The Clean Water Act thus

contains several limitations on citizen suits. First, the

Clean Water Act requires a would-be litigant to send

notice of his intent to sue to the EPA Administrator,

the State in which the violation allegedly occurred,

and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). The

law then precludes the citizen from suing for sixty

days, during which, EPA or State may decide to file

suit on its own. Id. Second, the Act bars citizen suits

when government enforcement is underway. Id.

§ 1365(b)(1)(B).

The Clean Water Act’s statutory history

reinforces this limited view of citizen suits. Gwaltney,

484 U.S. at 60. In particular, “[t]he Senate Report

12

noted that ‘[t]he Committee intends the great volume

of enforcement actions [to] be brought by the State,’

and that citizen suits are proper only ‘if the Federal,

State, and local agencies fail to exercise their

enforcement responsibility.’” Id. (quoting S. Rep. No.

92-414, p. 64 (1971)). Congress thus intended Clean

Water Act citizen suits to play an “interstitial,” rather

than a “potentially intrusive role.” Gwaltney, 484 U.S.

at 61; see also Askins v. Ohio Dep’t of Agric., 809 F.3d

868, 875 (6th Cir. 2016) (Clean Water Act citizen suits

“serve[] only as backup, ‘permitting citizens to abate

pollution when the government cannot or will not

command compliance.’” (quoting Gwaltney, 484 U.S.

at 62).

Overly expansive interpretation of the Clean

Water Act’s provisions would “result in a significant

impingement of the State’s traditional and primary

power over land and water use.” Rapanos v. United

States, 547 U.S. 715, 737–38 (2006) (quoting

SWANCC, 531 U.S. at 174).

II.

FEDERALISM PRINCIPLES UNDERLIE

ANY

CLEAN

WATER

ACT

INTERPRETATION.

Even if Congress had not written cooperative

federalism into the Clean Water Act, the principles of

statutory construction also favor reading the Act

through a State-protective lens. Under the nation’s

federalist system, “States are not mere political

subdivisions of the United States,” and “State

governments are neither regional offices, nor

administrative agencies of the federal government.”

New York v. United States¸ 505 U.S. 144, 188 (1992).

13

The Constitution instead “leaves to the several

States a residuary and inviolable sovereignty.” The

Federalist No. 39, at 245 (C. Rossiter ed. 1961). “The

Framers concluded that allocation of powers between

the National Government and the States enhances

Freedom, first by protecting the integrity of the

governments themselves, and second by protecting the

people, from whom all governmental powers are

derived.” Bond v. United States, 564 U.S. 211, 221

(2011). This allocation of powers “preserves the

integrity, dignity, and residual sovereignty of the

States.” Id. Federalism also secures to citizens the

liberties that derive from the diffusion of federal

power.” New York, 505 U.S. at 181 (citation and

internal quotation marks omitted).

The cooperative federalism framework in

particular “necessarily implies that states may reach

differing conclusions on specific issues relating to the

implementation of the Act. Budget Prepay, Inc. v.

AT&T Corp., 605 F.3d 273, 281 (5th Cir. 2010) (citing

Global Naps, Inc. v. Mass. Dep’t of Telecomms. &

Energy¸427 F.3d 34, 46 (1st Cir. 2005)). “Far from

being a bug, a patchwork of state-by-state

implementation rules is a feature of this system of

cooperative federalism.” Id.

This Court has consistently understood that

“[t]he States unquestionably do retai[n] a significant

measure of sovereign authority . . . to the extent that

the Constitution has not divested them of their

original powers and transferred them to the Federal

Government.” New York, 505 U.S. at 156 (quoting

Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528, 549 (1985)). Courts thus “begin with the axiom

that, under our federal system, the States possess

14

sovereignty concurrent with that of the Federal

Government, subject only to limitations imposed by

the Supremacy Clause. Gregory v. Ashcroft, 501 U.S.

452, 457 (1991).

For example, in McDonnell v. United States,

this Court declined to construe a criminal statute “in

a manner that leaves its outer boundaries ambiguous

and involves the Federal Government in setting

standards of good government for local and state

officials.” 579 U.S. 550, 576–77 (2016) (citation and

internal quotation marks omitted). This Court instead

chose a “more limited interpretation” that was both

textually supported and free of “federalism concerns.”

Id.

And when interpreting statutes designed to

advance cooperative federalism in particular, this

Court “ha[s] not been reluctant to leave a range of

permissible choices to the States, at least where the

superintending federal agency has concluded that

such latitude is consistent with the statute’s aims.”

Wisconsin Dep’t of Health & Fam. Servs. v. Blumer,

534 U.S. 473, 495 (2002).

If Congress “wishes to significantly alter the

balance between federal and state power,” the Court

“require[s] Congress to enact exceedingly clear

language.” Sackett, 598 U.S. at 679 (quoting United

States Forest Serv. v. Cowpasture River Pres. Ass’n,

590 U.S. 604, 621–22 (2020)) (internal quotation

marks omitted). This clear-statement rule recognizes

that Congress’s ability to “legislate in areas

traditionally regulated by the States” is an

“extraordinary power in the federalist system,” so

courts “must assume Congress does not exercise [that

power] lightly.” Gregory, 501 U.S. at 460. As such,

15

Congress must use “unmistakably” clear language

that places its intent beyond dispute. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 65 (1989). Without

such language, statutes “will not be deemed to have

significantly changed” the federal-state balance.”

United States v. Bass, 404 U.S. 336, 349 n.16 (1971).

The requirement holds additional force under the

Clean Water Act given the Act’s “express policy to

‘preserve’ the States’ ‘primary’ authority over land and

water use.” Sackett, 598 U.S. at 680 (quoting 33 U.S.C.

§ 1251(b)).

Layering these federalism principles over the

text of the Clean Water Act and the States’ historical

role in water regulation establish why courts should

“avoid the significant constitutional and federalism

question” that overbroad interpretations create.

SWANCC, 531 U.S. at 174.

III.

THE

NINTH

CIRCUIT’S

RULING

DISRUPTS

THE

COOPERATIVE

FEDERALISM BALANCE OF THE

CLEAN WATER ACT.

The Ninth Circuit stripped federalism

principles and historical context from its purported

textual interpretation. Its expanded view of the Clean

Water Act’s citizen-suit provision frustrates core

federalism principles by replacing State primacy in

Clean Water Act enforcement with unelected and

unchecked citizen plaintiffs.

Too-broad citizen-suit regimes, like those here,

undermine federalism and frustrate the States’ and

Congress’s priorities. Cooperative federalism gives

States discretion and creative latitude. Budget

Prepay, 605 F.3d at 281. But the fear of overzealous

16

citizen suits prevents States from experimenting with

regulatory approaches. Gwaltney, 484 U.S. at 60.

Indeed, “citizen enforcement may not be an effective

means of ensuring the most efficient implementation

of environmental laws,” and “[i]n some cases,

environmental suits may even frustrate the objective

of environmental protection.” Frank B. Cross,

Rethinking Environmental Citizen Suits, 8 Temp.

Envt’l L. & Tech. 55, 64 (1989).

1. The Ninth Circuit’s interpretation

undermines federalist principles.

Federalism is not just an end in itself: Rather,

the federalist structure “assures a decentralized

government that will be more sensitive to the diverse

needs of a heterogeneous society[,] increases

opportunity for citizen involvement in the democratic

processes[,] allows for more innovation and

experimentation in government[, and] makes

government more responsive by putting States in

competition for a mobile citizenry.” Gregory, 501 U.S.

at 458 (citations omitted).

Under the cooperative federalism system, “[i]f

state residents would prefer their government devote

its attention and resources to problems other than

those deemed important by Congress, they may choose

to have the Federal Government rather than the State

bear the expense of a federally mandated regulatory

program.” New York, 505 U.S. at 168. States also have

the option to supplement the federal program to the

extent State law is not preempted. Id.

Either way, “[w]here Congress encourages state

regulation rather than compelling it, state

governments remain responsive to the local

17

electorate’s preferences[, and] state officials remain

accountable to the people.” Id. “For example, the state

may be more concerned with preserving places for fish

to spawn than preventing erosion and sedimentation.”

Sierra Club, 909 F.3d at 648. In other words, “the state

may prefer protecting the environment one way to

protecting it another way.” Id. Cooperative federalism

allows States to take different approaches provided

they still satisfy the baseline federal standards.

But expanded citizen suits interfere with those

State decisions. These suits thus take the federalism

concerns already present in administrative law, Scott

A. Keller, How Courts Can Protect State Autonomy

from Federal Administrative Encroachment, 82 S. Cal.

L. Rev. 45, 94 (2008), and multiply them hundredfold.

Where, as here, a court grants citizen plaintiffs broad

enforcement authority, it creates an army of “private

attorneys general,” who lack the institutional

concerns and built in checks that could temper even a

federal agency. See Charles S. Abell, Ignoring the

Trees for the Forests: How the Citizen Suit Provision of

the Clean Water Act Violates the Constitution’s

Separation of Powers Principle, 81 Va. L. Rev. 1957,

1964 (1995). Unlike government enforcers, “[c]itizensuit plaintiffs . . . face no significant political

repercussions for setting unwise enforcement

priorities,” allowing them to pursue even “technical”

violations of state-law conditions that go beyond the

EPA. Jonathan H. Adler, Stand or Deliver: Citizen

Suits, Standing, and Environmental Protection, 12

Duke Env’t L. & Pol’y F. 39, 43, 49–50, 56–57, 62

(2001).

These concerns help explain why Congress’s

approach to this “private [environmental] law

18

enforcement” shows “a vague sense of suspicion and

discomfort” with the citizen suit mechanism. Michael

S. Greve, The Private Enforcement of Environmental

Law, 65 Tul. L. Rev. 339, 342 (1990). Statutory

limitations to citizen suits, such as the sixty-day notice

requirement and government enforcement bar to suit,

suggest “the citizen suit is meant to supplement

rather than supplant government action.” Gwaltney,

484 U.S. at 60; see also Abell, supra, at 1961–62

(“limitations on citizen involvement” under the Clean

Water Act “were designed to ensure that citizen suits

play a supplementary, and not a superseding, role in

the enforcement” of the Act). In addition, all civil fines

that a citizen suit obtains are payable to the United

States Treasury. 33 U.S.C. § 1365(a); 42 U.S.C.

§ 6972(a)(2). This prohibition on profitable citizen

enforcement “would be inexplicable if Congress

considered

private

enforcement

wholly

unproblematic.” Greve, supra, at 342.

Congressional limits thus ensure that citizen

suits “are only proper when the federal state, or local

agencies fail to exercise their enforcement

responsibility, and that such suits should not

considerably curtail the governing agency’s discretion

to act in the public interest.” Arkansas v. Wildlife

Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.

1994). Indeed, the Clean Water Act’s overarching

cooperative-federalism regime means little without

clear citizen suit limitations. Yet the Ninth Circuit

undermines these principles by removing a key

jurisdictional limitation, upending this delicate

balance.

19

2. The Ninth Circuit’s interpretation

stifles State environmental protection

efforts.

An overly broad citizen-suit provision further

frustrates core federalism tenets by hampering

regulatory innovation. “It is one of the happy incidents

of the federal system that a single courageous State

may, if its citizens choose, serve as a laboratory and

try novel social and economic experiments without

risk to the rest of the country.” New State Ice Co. v.

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

dissenting). Federalism recognizes “the political

reality that a smaller unit of government is more

likely to have a population with preferences that

depart from the majority’s. So it is more likely to try

an approach that could not command a national

majority.” Michael W. McConnell, Federalism:

Evaluating the Founders’ Design for Federalism, 54 U.

Chi. L. Rev. 1484, 1498 (1987). Put simply: “Lower

levels of government are more likely to depart from

established consensus simply because they are

smaller and more numerous.” Id. This means that “[i]f

innovation is desirable, it follows that decentralization

is desirable.” Id. As such, “local laws can be adapted to

local conditions and local tastes, while a national

government must take a uniform–and hence less

desirable approach.” Id. at 1493. This flexibility also

gives local governments “greater opportunity and

incentive to pioneer useful changes.” Id.

That is one reason why “[t]he EPA’s regulations

are drafted to be applied with discretion.” Cross,

supra, at 66. For example, a proposed effluent control

system might “greatly reduce average contaminant

levels, but . . . cause[] a periodic ‘spike.’” See Adler,

20

supra, at 69 n.140. “Such a system may significantly

reduce a facility’s environmental impact and yet

would be vulnerable to a citizen suit because its

operation produced an occasional permit violation.”

Id. But an overbroad citizen-suit provision interferes

with this discretion and discourages just such an

innovation.

Expanded citizen suits also “run the risk of

inconsistent and unfair enforcement, as citizens may

pursue even small and unavoidable violations of the

Clean Water Act.” Cross, supra, at 66. “To dedicated

environmentalists, such ‘over-enforcement’ may seem

unimportant, or even beneficial, [but] the Supreme

Court has emphasized that the Act is not simply ‘to

eliminate water pollution,’ [rather] Congress created a

’balance of public and private interests.” Id. (quoting

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987)).

These suits also come at considerable taxpayer

expense as litigation expenses can divert funds from

essential government services. See Pet.32–35; see also

Susan A. Macmanus, The Impact of Litigation on

Municipalities: Total Cost, Driving Factors, and Cost

Containment Mechanisms, 44 Syracuse L. Rev. 833,

840–41 (1993).

Perhaps the policy could be justified if citizen

suits somehow enhanced water resource protection,

but increased citizen suits do not have that effect.

“While some citizen suits are no doubt motivated by

pure intentions, and some certainly produce tangible

environmental gains, it is not clear how much

environmental benefit citizen-suit provisions actually

provide.” Adler, supra, at 51.

It might seem natural to assume that more

citizen suits mean more environmental protection,

21

“[u]nfortunately, citizen enforcement may not be an

effective means of ensuring the most efficient

implementation of environmental laws[, and] . . . may

even frustrate the objective of environmental

protection.” Cross, supra, 64. That is because citizen

plaintiffs do not face the same political and economic

constraints that might limit government enforcement.

Adler, supra, at 51. Instead, “citizen-suit provisions

encourage the filing of suits against vulnerable

plaintiffs irrespective of the environmental benefit.”

Id. at 51. And “[e]nvironmental citizen suits facilitate

and encourage litigation over paperwork violations

and permit exceedences, which may or may not impact

environmental quality. Id. at 58.

Indeed, “[t]here is a growing consensus in

environmental law that environmental regulations

can better achieve their goals if they are more

flexible.” Adler, supra, at 66 (citing Karl Hausker,

Reinventing Environmental Regulation: The Only

Path to a Sustainable Future, 29 Envtl. L. Rep. 10, 148

(March 1999)). The Ninth Circuit’s result removes

that flexibility and instead “promises to invite

excessive, costly, and counterproductive citizen suits,

funded by the taxpayers for the enforcement of

standards that are imprecise and astronomically

costly to the municipalities affected.” Nw. Env’t

Advocs., 74 F.3d at 946 (O’Scannlain, J., dissenting

from denial of rehearing). The cooperative federalism

woven into the Clean Water Act is meant to avoid just

such a result.

CONCLUSION

This Court should grant certiorari to reverse

the Ninth Circuit Court’s judgment.

22

Respectfully submitted,

BRENNA BIRD

Attorney General

State of Iowa

ERIC WESSAN*

Solicitor General

BREANNE A. STOLTZE

Assistant Solicitor General

BREANNE STOLTZE

(515) 823- 9177

eric.wessan@ag.iowa.gov

breanne.stoltze@ag.iowa.gov

1305 E Walnut Street

October 28, 2024

*Counsel of Record

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Additional Counsel .............................................. 1a

1a

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General of

Alabama

TREG TAYLOR

Attorney General of

Alaska

TIM GRIFFIN

Attorney General of

Arkansas

CHRIS CARR

Attorney General of

Georgia

RAÚL R. LABRADOR

Attorney General of

Idaho

THEODORE E. ROKITA

Attorney General of

Indiana

KRIS KOBACH

Attorney General of

Kansas

LIZ MURRILL

Attorney General of

Louisiana

LYNN FITCH

Attorney General of

Mississippi

ANDREW T. BAILEY

Attorney General of

Missouri

AUSTIN KNUDSEN

Attorney General of

Montana

MICHAEL T. HILGERS

Attorney General of

Nebraska

JOHN M. FORMELLA

Attorney General of

New Hampshire

DREW WRIGLEY

Attorney General of

North Dakota

DAVE YOST

Attorney General of

Ohio

GENTNER DRUMMOND

Attorney General of

Oklahoma

2a

ALAN WILSON

Attorney General of

South Carolina

MARTY JACKLEY

Attorney General of

South Dakota

JONATHAN SKRMETTI

Attorney General of

Tennessee

KEN PAXTON

Attorney General

Texas

SEAN D. REYES

Attorney General of

Utah

JASON S. MIYARES

Attorney General of

Virginia

PATRICK MORRISEY

Attorney General of

West Virginia

BRIDGET HILL

Attorney General of

Wyoming

of