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

————

AMICUS CURIAE WASHINGTON PUBLIC

PORTS ASSOCIATION ET AL. BRIEF

IN SUPPORT OF PETITIONERS’ PETITION

FOR A WRIT OF CERTIORARI

————

SARA B. FRASE

Counsel of Record

HOLLY M. STAFFORD

TIMOTHY D. SCHERMETZLER

CSD ATTORNEYS AT LAW P.S.

1500 Railroad Avenue

Bellingham, WA 98225

(360) 671-1796

sfrase@csdlaw.com

Counsel for Amicus Curiae

Washington Public Ports

Association et al.

October 28, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

TABLE OF CONTENTS

Page

I.

IDENTITY AND INTERESTS OF AMICI ..........1

II. SUMMARY OF ARGUMENT ..............................5

III. ARGUMENT IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI ..........9

A. Ports and Economic Development. ..................9

B. Economic Development is Dependent Upon Job

Stability and Job Availability. ........................... 11

C. Ports Are Bound by a Strict Statutory

Budgeting Scheme. ............................................. 14

D. Attorneys’ Fees and Costs are Almost Always

Awarded to Citizen Suit Plaintiffs. .................... 16

E. Ports are Environmental Stewards. .............. 18

F. Ecology’s Prosecutorial Discretion Should be

Respected. ........................................................... 19

G. Undermining the Diligent Prosecution Bar. . 20

H. Expanding the CWA Citizen Suit Provision

Goes Against Congress’s Intent. ........................ 22

IV. CONCLUSION.................................................... 25

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., 12 F.3d 353 (2d Cir. 1993) .................. 10

Board of Commissioners of Boulder County v. Suncor

Energy (U.S.A.) Inc., 25 F 4th 1238 (10th Cir. 2022)

................................................................................ 23

California Sportsfishing Protection Alliance v. Chico

Scrap Metal, Inc., 728 F. 3d 868 (9th Cir. 2013) .. 20

Conservation Law Foundation Inc. v. Busey, 79 F. 3d

1250 (1st Cir. 1996) ............................................... 23

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013)... 2

In re Volkswagen “Clean Diesel” Marketing, Sales

Practices, and Products Liability Litigation, 894 F.

3d 1030 (9th Cir. 2018) .......................................... 23

Knee Deep Cattle Co., Inc. v. Bindana Inv. Co. Ltd., 94

F.3d 514 (9th Cir. 1996) ........................................ 21

Natureland Trust v. Dakota Finance, LLC, 41 F. 4th

342 (4th Cir. 2022) (cert denied May 15, 2023) .... 21

Puget Soundkeeper Alliance v. Total Terminals

International, No. 2:18-cv-00540-RSL (W.D. Wash)

(2019)........................................................................ 7

Wash. PIRG v. Pendleton Woolen Mills, 11 F. 3d 883

(9th Cir. 1993) ........................................................ 21

STATUTORY AND REGULATORY

PROVISIONS

33 U.S.C. § 1365(b)(1)(B) .................................... 20, 21

iii

TABLE OF AUTHORITIES—Continued

Page(s)

33 U.S.C. § 1365(d) .................................................... 16

33 U.S.C. § 1365(f)..................................................... 23

33 U.S.C. §§ 1319(g)(6)(A)(i)–(iii).............................. 20

40 C.F.R. § 123.1(i)(2)............................................ 8, 24

42 U.S.C. § 7602(k) .................................................... 23

42 U.S.C. § 7604(a)(1). .............................................. 23

42 U.S.C. § 7604(a)(3) ............................................... 23

42 U.S.C. § 7604(f)(1) ................................................ 23

Wash. Admin. Code § 173-201A-530 ........................ 21

Wash. Rev. Code § 53.08.245 ...................................... 9

Wash. Rev. Code § 53.35 et seq. ................................ 15

Wash. Rev. Code § 53.35.010 .................................... 14

Wash. Rev. Code § 53.35.020 .................................... 15

Wash. Rev. Code § 53.35.030 .................................... 15

Wash. Rev. Code § 53.36.020 .................................... 14

Wash. Rev. Code § 90.48 et seq. .................. 5, 8, 20, 21

Wash. Rev. Code § 90.48.037 .............................. 20, 21

OTHER AUTHORITIES

California Association of Port Authorities, New Study

Shows CA Ports Drive $416 Billion in Trade Value,

$38.1 Billion in Tax Revenue, 3.1 Million Jobs

iv

Nationally, https://californiaports.org/portsday23/

(last visited Oct. 28, 2024). .................................... 11

Decl. of Dianne K. Conway in Support of Defs.’ SSA

Terminals (Tacoma), LLC and SSA Terminals,

LLC’s Mtn. for an Award of Att’y Fees and Costs,

(Sept. 29, 2021), Case No. 3:17-cv-05016-BHS. .... 17

Overview of California Ports, Assembly Select

Committee on Ports and Goods Movement, Hon.

Mike

A.

Gipson,

Chair,

https://lao.ca.gov/handouts/resources/2023/PortsOverview-081723.pdf (Aug. 17, 2023) ................... 15

State Water Resources Control Board, National

Pollutant

Discharge

Elimination

System

(“NPDES”) – Stormwater: Do I Need an NPDES

Permit?,

https://www.waterboards.ca.gov/water_issues/prog

rams/npdes/ (last visited Oct. 27, 2024). ................. 6

The Export-Import Bank: Impact on Washington State

Trade, WASHINGTON INTERNATIONAL TRADE ASS’N,

https://www.wita.org/atp-research/the-exportimport-bank-impact-on-washington-state-trade

(last visited October 20, 2024)............................... 12

Washington Public Ports Association, Commissioner

Resource

Guide,

(https://static1.squarespace.com/static.pdf) (March

2010), ...................................................................... 10

1

I.

IDENTITY AND INTERESTS OF AMICI

Petitioners Port of Tacoma, SSA Terminals,

LLC, and SSA Terminals (Tacoma), LLC’s

(“Petitioners”) Petition for a Writ of Certiorari (the

“Petition”) is one of vital interest to amici curiae the

Washington Public Ports Association (“WPPA”), the

American Association of Port Authorities (“APPA”),

the Pacific Northwest Waterways Association

(“PNWA”), the International Longshore and

Warehouse Union Coast Longshore Division

(“ILWU”), the California Association of Port

Authorities (“CAPA”), and each of their respective

members. 1 If upheld, the Ninth Circuit Court of

Appeals’ ruling, will have a detrimental effect on not

only Washington ports, but port districts throughout

the United States, the tens of thousands of industries

utilizing port facilities to conduct their business and

the various local governments, private industrial

facility operators, municipalities, animal feeding

operations,

construction

facilities,

boatyards,

shipping terminals, and transportation and rail

operators that may be required to hold a National

Pollutant Discharge Elimination System (“NPDES”)

permit administered by the states.

The WPPA was created in 1961 and represents

the collective interests of the 75 municipal, taxpayerfunded port districts within the State of Washington.

Of those 75 ports, 69 are WPPA members who pay

annual dues to provide the bulk of the WPPA budget.

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

and no party, counsel for a party, or person or entity other than

amicus curiae, its members, and its counsel made a monetary

contribution intended to fund the brief’s preparation for

submission. Counsel of record for the parties received timely

notice of amicus’s intent to file this brief.

2

Washington has the largest locally controlled public

port system in the world and collectively handles 7%

of exports from the United States and 6% of all

imports to the United States. The Port of Seattle and

Port of Tacoma, both members of the WPPA,

combined constitute the fourth largest container

complex in North America. It is important to note,

however, that the Ports of Tacoma and Seattle are in

the minority of port districts in Washington in terms

of size and revenue. In actuality, the majority of

Washington’s ports have a much smaller tax base.

WPPA’s members own, lease, and license

numerous docks and wharfs that sit adjacent to and

above the navigable waters in Washington State and

are used for cargo transport. Rain falls on these docks

and wharfs and drains into the water below. These

discharges of stormwater have been exempted from

regulation under the federal Clean Water Act (“CWA”)

since 1987, when Congress exempted most

“‘discharges composed entirely of stormwater.’”

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 603

(2013) (quoting 33 U.S.C. § 1342(p)(1)). Instead,

Congress limited stormwater regulation to those

discharges “associated with industrial activity,” and

entrusted the Environmental Protection Agency

(“EPA”) to define what constitutes industrial activity.

33 U.S.C. § 1342(p)(2)(B).

The AAPA is the unified voice of the seaport

industry in the Americas, representing more than 130

public port authorities in the U.S., Canada, the

Caribbean and Latin America. For more than 100

years, AAPA has promoted the efforts of the Port

industry by educating stakeholders and advocating

for policies that strengthen the ability of member

seaports to serve their global customers and create

3

economic and social value for their communities. The

efficient functioning of seaports is critical to the

nation’s ability to maximize economic and social value

and compete with neighboring ports. AAPA advocates

for U.S. seaports, focusing on the most urgent policy

issues and common interests of trade and

infrastructure, striving to provide industry leadership

on environmental concerns, security, trade,

transportation, infrastructure, funding, and other

issues related to port development and operations.

PNWA, established as the Inland Empire

Waterways Association in 1934, is a non-profit, nonpartisan trade association with over 150 members

that advocates for federal policies and funding in

support of regional economic development to

efficiently move goods, like grain, forest products, and

liquid fuels, on waterways and through Northwest

ports. PNWA exists as a collaboration of ports,

businesses, and public agencies who combine their

economic strength and channel their advocacy in

support of safe and efficient navigation, energy, trade,

economic

development,

and

environmentally

sustainable waterways throughout the Pacific

Northwest. The scope of PNWA’s members includes

public ports, tug and barge companies, steamship

operators, grain elevator operators, agricultural

producers, forest products manufacturers, electric

utilities, irrigation districts, other businesses, public

agencies, and individuals throughout Washington,

Oregon, and Idaho.

The ILWU International was founded in 1934

to represent longshore and maritime workers on

docks, with stevedores, at waterfront terminals, and

in warehouses. It is comprised of approximately

40,000 members in over 50 local unions in the states

4

of California, Washington, Oregon, Alaska, and

Hawaii. The ILWU International longshore division

is the exclusive bargaining representative on the West

Coast for these workers and represents approximately

22,000 workers at 29 ports from San Diego, California

to Bellingham, Washington.

Longshore workers load, unload, and manage

cargo from vessels, trucks, and rail. They also load

and unload cargo to and from ships, barges, trains,

and trucks. Marine clerks within the ILWU perform

the associated record-keeping and tracking to ensure

proper positioning of cargo at the terminals for

loading and unloading. Much of this work involves

physically demanding and often dangerous tasks

performed in a hazardous environment. Although

this work is highly sought after for providing a livable

family wage, many longshore workers do not have

steady jobs and are dispatched daily depending on

work availability.

The availability of work is wholly dependent on

cargo ships calling on the west coast’s port terminals.

If there are no ships or terminals, there is no work.

CAPA is made up of 11 major deepwater port

authorities across the State of California. It is

committed to advocating and advancing the public

policy objectives of the California ports at all levels of

government. CAPA educates state and federal policy

makers on port operations and advances the best

interests of the maritime community. CAPA also

maintains formal agreements on behalf of the

association and its member ports with the Federal

Maritime Commission (“FMC”) and communicates

regularly with the FMC and other national interests.

CAPA’s members are dedicated to environmental

stewardship and sustainable operations and have

5

invested significantly in new technologies, creating

some of the world’s most environmentally friendly and

innovative port facilities and operations.

II.

SUMMARY OF ARGUMENT

Under the authority of the CWA, EPA issued

regulations defining industrial activity to include, as

relevant here, marine transportation facilities that

have “vehicle maintenance shops, equipment cleaning

operations, or airport deicing operations.” 40 C.F.R. §

122.26(b)(14)(viii). EPA is clear that the regulation of

stormwater under the CWA is limited to “[o]nly those

portions of the facility that are either involved in

vehicle maintenance (including vehicle rehabilitation,

mechanical

repairs,

painting,

fueling,

and

lubrication), equipment cleaning operations, [or]

airport deicing operations . . .” Id. Stormwater

discharges from areas where ports do not conduct

such activities, such as on docks and wharfs, are

distinctly and purposefully exempted from CWA

regulation.

The CWA is implemented through a

cooperative

federalism

paradigm.

Congress

authorized EPA to delegate regulatory authority to

states that have EPA-approved water quality

enforcement programs. EPA delegated authority to

the Washington State Department of Ecology

(“Ecology”) to issue and enforce CWA NPDES permits.

The Washington Legislature adopted the State

Water Pollution Control Act (“WPCA”) in 1945. Wash.

Rev. Code § 90.48 et seq., which is also enforced by

Ecology.

Ecology utilizes its delegated federal

authority, combined with its authority under the

WPCA, to issue a general permit that covers certain

enumerated categories of industrial stormwater

6

discharges 2 under the Industrial Stormwater General

Permit (“ISGP”) at issue here. Essentially every

Washington port deals with ISGP coverage either by

itself or through one or more of its tenants. CAPA

members are subject to a similar state permitting

scheme, under the delegated authority of EPA to the

California State Water Resources Control Board (the

“State Water Board.”).

State Water Resources

Control Board, National Pollutant Discharge

Elimination System (“NPDES”) – Stormwater: Do I

Need

an

NPDES

Permit?,

(https://www.waterboards.ca.gov/water_issues/progra

ms/npdes/) (last visited Oct. 27, 2024).

As the Petition explains, beginning in 2010

Ecology

began

instructing

ports—somewhat

vaguely—that once a facility has permit coverage, the

ISGP’s requirements apply to all areas of “industrial

activity.” This resulted in Washington public ports

investing significant resources to expand the scope of

their stormwater collection, treatment, and

monitoring operations. Ecology recognized that its

position changed created significant economic

consequences and used its enforcement discretion to

give ports additional time to make improvements

needed to satisfy these additional requirements.

This was important, as even if this requirement

was found in the ISGP, most port docks and wharfs

presently have no means to collect or treat

stormwater, let alone in a safe manner.

The

technology to do so simply does not exist, so any

requirement to install such systems creates

significant regulatory uncertainty and imposes

2 Ecology also issues other general NPDES permits pursuant to

both federal and state authority, all of which are also affected by

the Ninth Circuit decision at issue in this Petition.

7

millions of dollars in capital costs on individual ports

and port tenants, assuming that compliance was even

possible.

In the present case, Puget Soundkeeper

Alliance (“PSA”) has attempted to invoke the CWA

citizen suit provision found at 33 U.S.C. § 1365 to

enforce ISGP requirements articulated by Ecology

that are broader than—and explicitly exempted from

coverage under—the CWA. See 33 U.S.C. § 1342(p)(1).

PSA filed similar allegations against the Port of

Seattle and its tenant in Puget Soundkeeper Alliance

v. Total Terminals International, No. 2:18-cv-00540RSL (W.D. Wash), and PSA has sent other ports

threatening messages through public records requests

concerning discharges from wharfs and docks,

suggesting that PSA is likely to continue filing similar

suits throughout Washington.

The Ninth Circuit’s ruling below contradicts

Congress’s intent in drafting the CWA, exacerbates an

already existing Circuit split, and completely ignores

the widespread negative impact its holding will have

on U.S. ports generally. The flow-through effect of

these impacts will be detrimental to local economies;

international trade; U.S.-based manufacturing and

shipping operations; and industries and trades that

heavily rely upon the effectiveness of those water

dependent industries to promote an efficient and

productive economy.

PSA’s attempt to use federal CWA citizen suit

authority to enforce requirements that Congress

exempted from the CWA should be rejected for several

reasons.

First, the CWA citizen suit provision is clear on

its face that its jurisdiction extends only to the

enforcement of effluent standards or limitations

8

issued “under” the CWA. 33 U.S.C. § 1365(a)(1). To

the extent that the ISGP can be read to regulate

stormwater discharges to include non-industrial

areas at ports like docks and wharfs, Ecology has

broadened the ISGP’s scope solely as a matter of state

law, not “under” the CWA. Because there is no cause

of action (state or federal) to enforce state permit

requirements imposed exclusively under the WPCA,

PSA’s arguments fail as a matter of law.

Second, PSA’s position would upset the CWA’s

delicate balance between state and federal

responsibilities. The CWA empowers EPA to expand

the scope of stormwater discharges covered by the

CWA, and generally affords states a limited role in

that process. 33 U.S.C. § 1342(p)(4)-(5); 40 C.F.R. §

122.26. Hence, if a state water quality program has a

greater scope than federal law, that additional

coverage is not part of the federal program, absent

compliance with this process. 40 C.F.R. § 123.1(i)(2).

While Congress allows for individual states to enforce

stricter and broader regulations pursuant to their

delegated authority, under the CWA, those are

outside of the CWA and, accordingly, are for the state

to interpret and adjudicate, not the federal courts.

The Ninth Circuit’s ruling effectively bypasses the

purposeful structure of the CWA while also taking

away an individual states’ ability to enforce its own

laws. Simply put, the ruling is nothing short of

dangerous.

Third, the ramifications of the Ninth Circuit’s

ruling on entities most often targeted by citizen

groups like PSA, will have immediate and

longstanding detrimental effects on ports, their

tenants, and the public at large. Ports use the tax

revenues of their constituents to invest in

9

infrastructure designed to grow the economy. As a

result of the Ninth Circuit’s ruling, citizen suit

litigation against entities like port districts will result

in hundreds of thousands of taxpayer dollars going

directly into the pockets of the attorneys for private

organizations rather than towards projects that

improve the environment and promote economic

development.

For these reasons, and those more fully

presented below, the Court’s review is warranted in

order to review and settle the current circuit split that

the Ninth Circuit’s recent ruling exacerbates and to

make clear the proper role of the CWA’s citizen suit

provision in the federal courts.

III.

ARGUMENT IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

A. Ports and Economic Development.

Public ports are vital to economic development

across the nation. In Washington, the legislature has

deemed that “[i]t shall be in the public purpose for all

port districts to engage in economic development

programs.” RCW 53.08.245. Washington public ports

fulfill this mandate by using various—but limited—

financing opportunities including taxes, service fees,

bonds, and grants or gifts.

Additionally, 90% of Washington ports promote

economic development for their community and region

through brick-and-mortar investment in facilities and

programmatic engagement in job growth or general

economic resiliency. Port infrastructure and the

efficient movement of cargo is imperative since 7580% of Washington’s trade is discretionary cargo,

meaning that it could move through other gateways.

WPPA, Commissioner Resource Guide, at 7,

10

(https://static1.squarespace.com/static.pdf)

(March

2010).

The ports on the Columbia and Snake Rivers,

which run through Idaho, Oregon, and Washington,

export 60% of U.S. wheat exports annually. These

ports connect inland farmers to global markets. In

2022, this river system imported and exported over

$31 billion in trade.

Citizen suit enforcement of the state law

provisions of the ISGP, which are much broader in

scope than the CWA’s requirements, increases the

costs of moving cargo through Washington ports,

making them less competitive for discretionary cargo

that can move through other gateways like ports in

the Second Circuit. The acknowledged circuit split

has real life implications for amici and the

communities they serve. For example, the Port of

Grays Harbor (“POGH”), is the only deep-draft port

directly on the Pacific Ocean in Washington capable

of handling ocean-going vessels, and one of

Washington’s most export-oriented ports, with more

than 95% of shipping activity based on exports. One

of POGH’s largest customers can alternatively send

its cargo through east coast ports (where Atlantic

States Legal Foundation, Inc. v. Eastman Kodak Co.,

12 F.3d 353 (2d Cir. 1993) applies), or POGH, where

this case now controls.

California’s ports similarly play a pivotal role

in connecting California’s farmers, autoworkers,

refineries, and laboratories to customers around the

world. CAPA’s membership includes three of the

largest ports in the nation which serve a vital and

unique role for the state and the nation. Almost 40%

of the total containerized cargo entering the U.S.—

and almost 30% of the nation’s exports— flow through

11

California’s ports making them a critical link in the

international supply chain and a vital component of

California’s local, regional, state, and national

economic well-being. In 2020, trade from California

ports generated an estimated $38.1 billion in tax

revenue, supporting an estimated 3.1 million jobs

across the nation. CAPA, New Study Shows CA Ports

Drive $416 Billion in Trade Value, $38.1 Billion in

Tax Revenue, 3.1 Million Jobs Nationally,

https://californiaports.org/portsday23/ (last visited

Oct. 28, 2024).

B. Economic Development is Dependent

Upon Job Stability and Job Availability.

Promoting economic development is crucially

dependent upon the efficiency of the individual

laborers utilized at the ports and those who employ

them. Most notably, and perhaps most visibly to those

on the outside looking in, are the longshoremen and

warehouse workers who are on the ground ensuring

that those goods coming in and out of coastal ports, as

well as ports located along major waterways, are

safely handled, stored, and transported according to

state and federal standards.

Organizations and labor unions like the ILWU

serve to protect their members by fighting for fair

wages, safe working conditions, and the preservation

of marine ports in the U.S. and internationally. In

2019,

the

Washington

International

Trade

Association (“WITA”) found that “[a]pproximately

40% of all jobs in Washington are tied to trade,

making [it] the most trade dependent state in the

nation.”

The Export-Import Bank: Impact on

Washington

State

Trade,

WASHINGTON

INTERNATIONAL

TRADE

ASS’N,

12

https://www.wita.org/atp-research/the-export-importbank-impact-on-washington-state-trade (last visited

October 20, 2024). The import and export of goods at

coastal ports occurs at marine terminals, each of

which contains a wharf. These wharfs are designed

and sized to support the movement of goods for

domestic and international trade. For example, the

wharf at Terminal 18 in Seattle is 14.55 acres, the

wharf at Terminal 5 in Seattle is 17.3 acres, and the

wharf at the Sitcum Waterway in Tacoma is 12.6

acres.

In the Washington State Court litigation

involving challenges to Ecology’s post hoc

interpretation as to the scope of coverage of the ISGP,

Petitioners explained at length why the expansion of

ISGP coverage requirements at marine terminals in

Washington would have a devastating effect on

Washington’s economy. Most existing wharfs at the

affected marine terminals—built decades ago at a

cost of millions of dollars—are not designed to allow

for stormwater sampling or treatment in a reasonable

or safe manner. While citizen-suit plaintiffs like PSA

argue that this is a simple fix requiring those ports

with marine terminal wharfs to either retrofit or

replace their existing wharfs to allow for stormwater

sampling and treatment, if necessary, this argument

does not consider the financial toll such financial

projects would have on a port or the related impacts

to the local, state, and national economy.

The cost of retrofitting or, more likely,

replacing the wharfs at marine terminals so that

stormwater sampling and, if necessary, treatment

could occur, will cost tens to hundreds of millions of

dollars. It would also require extensive shutdowns of

13

entire wharfs, or portions thereof, causing commerce

to grind to a halt.

In 2020, the Northwest Seaport Alliance

(“NWSA”), a marine cargo operation partnership

between the Ports of Seattle and Tacoma, estimated

that the cost to install catchment and treatment

systems at NWSA’s piers to align with Ecology’s

interpretation of the ISGP—applying to the entirety

of NWSA container facilities—would be $1.1 million

per acre, amounting to approximately $100 million.

These numbers are four years old, do not consider the

current cost of construction or inflation in the

intervening years, and do not account for permitting

expenses and the years-long delays associated with

permitting such projects.

The effect of wharf closures on the public would

be devastating. The timeframe of any project that

involves the permitting, closure, removal, and/or

reconstruction of a marine terminal wharf along the

Washington coast alone would take years. During

these years of closure—or reduction in capacity for

imports and exports—the ports themselves will suffer

immense revenue loss. Market demands will also

drive cargo to other modes of transportation or to

other markets, and once the infrastructure

investments are made, the supply chain will have

fundamentally shifted away from these ports.

What is also often forgotten in these scenarios

is the loss to laborers and their families who depend

upon the certainty that marine terminals provide.

Rural coast ports in particular serve as important

assets to their local communities and typically

represent a large share of local employment as

thousands of local jobs are linked to port operations,

14

ranging from dock workers and shipping agents to

truck drivers and logistics coordinators.

A loss in certainty of the future availability of a

family-wage job has historically been the impetus for

the mass migration of people in search of a new source

of income for themselves and their families. Whether

temporary or permanent, the impact upon the

economy because of the loss of jobs to the tens of

thousands of workers dependent upon global trade

through marine terminals would be nothing short of

disastrous.

C. Ports Are Bound by a Strict Statutory

Budgeting Scheme.

As the economic engines for their communities,

ports use the tax revenues of their constituents to

invest in infrastructure designed to grow the

economy. Ports are municipal governments. Ports do

not have unlimited funds at their disposal, nor do they

possess an unlimited or guaranteed source of revenue

that can be allocated to hundreds of millions of dollar

projects every year.

The Washington Legislature limits the rate at

which a port district may levy taxes to finance its

general purposes, including capital improvements, to

45 cents per $1,000 of assessed value on taxable

property. RCW 53.36.020. Furthermore, on or before

September 15th of each year, every port in Washington

must submit a preliminary budget for the following

fiscal year “showing the estimated expenditures and

the anticipated available funds from which all

expenditures are to be paid.” RCW 53.35.010. This

preliminary budget must be made available to the

district’s taxpayers for their review and a date set for

a public hearing “for the purpose of fixing and

15

adopting the final budget.” RCW 53.35.020. At the

hearing, “[a]ny person may present objections to the

preliminary budget following which the commission

shall, by resolution adopt a final budget.” RCW

53.35.030. Washington Port districts must also

observe strict timelines for this process. Wash. Rev.

Code § 53.35 et seq..

In California, ports have historically been selfsupported through funds that come “directly through

fees and other revenue the ports generate from their

users or tenants, in addition to occasional state and

federal grants.” Cal. Harb. & Nav. Code § 1690(c). In

2023 the California Legislative Analyst’s Office

(“LAO”) explained that “Ports [in California] are

primarily funded by lease and fee revenues from

shipping businesses and freight operators.” Overview

of California Ports, Assembly Select Committee on

Ports and Goods Movement, Hon. Mike A. Gipson,

Chair,

at

4

(https://lao.ca.gov/handouts/resources/2023/PortsOverview-081723.pdf) (Aug. 17, 2023). The LAO’s

report further stated that although they exist, “[n]o

ongoing federal or state funding is dedicated to

California’s port operations or infrastructure

projects.” Id.

The infrastructure required for compliance

under an NPDES permit is expensive and can take

years to fully install. Ports are, therefore, acutely

aware

that

necessary

stormwater

system

infrastructure must be included in their yearly

budgets along with every other project to be tackled

that year. Unfortunately, the effect of the Ninth

Circuit’s ruling shifts a port’s ability to allocate funds

from environmental stewardship, such as replacing

16

aging infrastructure with more species friendly

designs, towards the costs of excessive litigation.

D. Attorneys’ Fees and Costs are Almost

Always Awarded to Citizen Suit Plaintiffs.

Although up to the discretion of the Court, the

ability to seek an award of attorneys’ fees and costs is

an attractive factor in the decision to bring a CWA

citizen suit:

The court, in issuing any final order in

any action brought pursuant to this

section, may award costs of litigation

(including reasonable attorney and

expert witness fees) to any prevailing

party, whenever the court determines

such award is appropriate.

33 U.S.C. § 1365(d).

As most often occurs in civil litigation, citizen

suits rarely go to trial and tend to settle by way of a

Consent Decree filed with the court. The Consent

Decree will, in part, mandate the fees and costs paid

by the defendant(s) to the plaintiff(s). Even for the

largest of ports, these fee awards are often

monumental.

As was noted in briefing at the Ninth Circuit,

the law firm of Smith & Lowney, representing PSA

here, advertises itself as an expert in CWA citizen-suit

actions. During the fourteen-year period from 1996 to

2020, Smith & Lowney brought over two hundred

CWA citizen-suit actions on behalf of plaintiffs such

as PSA. See Decl. of Dianne K. Conway in Support of

Defs.’ SSA Terminals (Tacoma), LLC and SSA

17

Terminals, LLC’s Mtn. for an Award of Att’y Fees and

Costs, at ¶ 4 (Sept. 29, 2021), Case No. 3:17-cv-05016BHS.

Between 2014 and 2024, consent decrees

entered in CWA citizen suits brought in the United

States District Court for the Western District of

Washington have cost ports, port tenants, and

businesses a staggering $17,855,250 in payments in

lieu of penalty and $12,203,126.34 in plaintiff’s

attorneys’ fee payments. These numbers do not

include the costs associated with satisfying the

injunctive relief portion of the consent decree—which

are often substantial—or defense costs. Of those

cases, those lodged against Washington public ports

cost taxpayers $3,379,000 in payments in lieu of

penalty and $2,131,450 in plaintiff’s attorneys’ fees, in

addition to costs of injunctive relief and defense costs.

These examples also do not account for the same

attorneys’ fees threat to private third-party terminal

operators and to business moving through the ports.

If upheld, the Ninth Circuit’s ruling will cause

port districts across the nation to re-evaluate how

they formulate their yearly budgets to account for the

hundreds of thousands, if not millions, of dollars they

may be forced to pay for CWA citizen-suit actions. As

noted by the Petitioners, it is nonsensical for penalties

resulting from violations to state law be paid to the

U.S. Treasury, as is required under the CWA, let

alone to private organizations, as occurs in

settlements with citizen suit plaintiffs.

Not to be forgotten, the money set aside for

potential litigation costs in a port’s annual budget

comes directly from the taxes and revenue collected

from port tenants and other constituents. So, rather

than being able to use those funds for infrastructure

18

and programming aimed towards economic

development—as is the statutory purpose of a port

district—the public’s dollars will instead go directly

into the pockets of private organizations and/or the

U.S. Treasury. See Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 53 (1987).

Judge Kleinfeld noted in his dissent in

Northwest Envtl. Advocs. v. City of Portland, that

“citizens’ suits may produce too much of a good thing

with regard to enforcement,” and that the “burdens”

on courts and regulated parties often outweigh the

“benefits” to water quality. 11 F.3d 900, 992-93 (9th

Cir. 1993). The Ninth Circuit’s decision below invites

even more excessive and costly litigation, with

unchecked demands for excessive attorneys’ fees by

the small group of plaintiffs’ attorneys who do this

work.

This is particularly troubling given that the

majority of port districts, especially in Washington

State, have a much smaller tax base than, say, the

Port of Tacoma or Port of Seattle. This logically

translates to a smaller budget, a smaller staff, and

now, lesser opportunity to invest in infrastructure

needed to promote economic development—and far

more effective environmental protections—in their

jurisdiction.

E. Ports are Environmental Stewards.

Along with promoting economic development,

port districts proudly remediate contaminated

property within their districts and implement

environmental protection measures to ensure

preparation for future development.

The Port of Tacoma, for example, has invested

$12.8 million in a dual stage stormwater treatment

19

system for its West Sitcum terminal, and many other

ports are making similar investments. Notably, many

of these Ecology-approved projects were completed

before Ecology’s shift in its reading of Washington law

and were instead a result of the WPPA and individual

ports working directly with Ecology on CWA issues.

But not all Washington ports have the

resources that larger ports, like the Port of Tacoma,

have at their disposal. The majority of ports are

significantly more limited as far as their available

funding for infrastructure projects, including

stormwater systems.

California ports are similarly dedicated to

environmental stewardship by working to improve air

quality, protect water quality, and enhance wildlife

protection throughout their state. The Port of Los

Angeles and the Port of Long Beach have expanded

their water quality programs with the development of

a coordinated Water Resources Action Plan (“WRAP”).

The WRAP is a comprehensive effort to target

remaining water and sediment pollution sources in

the San Pedro Bay and has greatly improved water

and sediment quality in San Pedro Bay over the last

40 years. The WRAP’s success stems from the ports

working closely with federal and state officials and

other stakeholders to develop measures that will

further minimize landside and waterside sources of

pollutants.

Expanding CWA citizen suits to encompass

state standards is unnecessary and a waste of the

Court’s, and the public’s, resources.

F. Ecology’s Prosecutorial Discretion Should

be Respected.

20

The Washington Legislature has the power to

include a citizen suit provision within the WPCA for

the enforcement of state water quality laws and

regulations.

But rather than allowing for a flood of citizen

suits under the broader WPCA in the state courts, the

Legislature instead chose to leave such crucial

enforcement solely to the discretion of Ecology:

The department [of Ecology], with the

assistance of the attorney general, is

authorized to bring any appropriate

action at law or in equity, including

action for injunctive relief, in the name

of the people of the state of Washington

as may be necessary to carry out the

provisions of this chapter or chapter

90.56 RCW.

RCW 90.48.037. This decision should be respected.

G. Undermining the Diligent Prosecution

Bar.

The CWA includes statutory bars that prohibit

a citizen suit in cases where the state or federal

government pursues enforcement actions with respect

to the same alleged violations. 33 U.S.C. §§

1319(g)(6)(A)(i)–(iii),

1365(b)(1)(B);

California

Sportsfishing Protection Alliance v. Chico Scrap

Metal, Inc., 728 F. 3d 868 (9th Cir. 2013).

The CWA declares that no citizen suit action

may be commenced if the “State has commenced and

is diligently prosecuting a civil or criminal action in a

court of the United States, or a State to require

compliance with the standard, limitation, or order...”

21

33 U.S.C § 1365(b)(1)(B) (emphasis added). The

diligent prosecution bar under 33 U.S.C. § 1319(g)(6)

prohibits citizen suits when the “State has commenced

and is diligently prosecuting an action under a State

law comparable to this subsection.”

(emphasis

added). For Section 1319 to apply, the comparable

state law must contain penalty provisions, and a

penalty must actually have been assessed under state

law. Knee Deep Cattle Co., Inc. v. Bindana Inv. Co.

Ltd., 94 F.3d 514 (9th Cir. 1996); Wash. PIRG v.

Pendleton Woolen Mills, 11 F. 3d 883 (9th Cir. 1993)).

Under relevant case law, a proceeding is “commenced”

by filing a complaint or issuance of a consent decree

and final order. Natureland Trust v. Dakota Finance,

LLC, 41 F. 4th 342 (4th Cir. 2022) (cert denied May 15,

2023).

Under the Ninth Circuit’s ruling, Ecology could

issue a notice of violation to a port for allegedly

violating portions of the NPDES permit based on the

WPCA and, at the same time, a citizen could sue the

port in federal court under the CWA. This is because

Ecology’s enforcement actions are not “under a

comparable statute” since the WPCA does not contain

public participation and notice for enforcement

actions like Section 1319 of the CWA. See RCW

90.48.037; WAC 173-201A-530.

Facing this reality, what incentive will ports

have to resolve issues with Ecology if they will still be

subject to CWA citizen suits? Particularly given that

such CWA citizen suits were not authorized by the

WPCA. Nor were they authorized by the CWA

because the laws at issue are state laws. If the

Washington legislature wanted to allow for such

citizen suits, Ecology’s administrative enforcement

22

statutory scheme would have to change to mirror that

of the EPA’s. This has not occurred.

H. Expanding the CWA Citizen Suit

Provision Goes Against Congress’s Intent.

We can further deduce that Congress

specifically intended for it to be left up to the states

whether to allow for citizen suits over state law

provisions by looking to language of other similarly

situated federal statutes. The Clean Air Act (“CAA”)

(42 U.S.C. § 7401 et seq.) being a perfect example.

Under the CAA, EPA has developed National

Ambient Air Quality Standards (“NAAQS”). 42

U.S.C. § 7409. Each state is also responsible for

developing its own State Implementation Plan

(“SIP”), approved by EPA, for achieving and

maintaining compliance with NAAQS. 42 U.S.C. §

7410.

Like the CWA, the CAA includes a citizen suit

provision:

…any person may commence a civil

action on his own behalf…(3) against any

person who proposes to construct or

constructs any new or modified major

emitting facility without a permit

required under part C of subchapter I

(relating to significant deterioration of

air quality) or part D of subchapter I

(relating to nonattainment) or who is

alleged to have violated (if there is

evidence that the alleged violation has

been repeated) or to be in violation of any

condition of such permit.

23

42 U.S.C. § 7604(a)(3).

Noteworthy in its deviation from the CWA, the

CAA explicitly allows citizen suits that target state

SIPs. 42 U.S.C. § 7604(f)(1); 42 U.S.C. 7602(k);

Conservation Law Foundation Inc. v. Busey, 79 F. 3d

1250 (1st Cir. 1996):

For purposes of this section, the term

“emission standard or limitation under

this chapter” means—

…

(4) any other standard, limitation, or

schedule established under any permit

issued pursuant to subchapter V or

under

any

applicable

State

implementation plan approved by the

Administrator, any permit term or

condition, and any requirement to obtain

a permit as a condition of operations.

42 U.S.C. § 7604(f)(4) (emphasis added). This is

different than the CWA citizen suit provision’s

definition of “effluent standards or limitations” which

does not include state standards. 33 U.S.C. § 1365(f).

The CAA was designed as a floor upon which

states could build, and not a ceiling. Board of

Commissioners of Boulder County v. Suncor Energy

(U.S.A.) Inc., 25 F 4th 1238 (10th Cir. 2022). The CAA

also contains a similar diligent prosecution bar as the

CWA. In re Volkswagen “Clean Diesel” Marketing,

Sales Practices, and Products Liability Litigation, 894

F. 3d 1030 (9th Cir. 2018); 42 U.S.C. § 7604(a)(1).

24

In other words, the CAA specifically allows

citizen suits to be brought to enforce state standards.

This is plainly distinguishable from what Congress

intended for enforcement of the CWA, as recognized

by EPA’s own regulations:

(i) Nothing in this part precludes a State

from:

…

(2) Operating a program with a greater

scope of coverage than that required

under this part. 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.

40 C.F.R. § 123.1(i)(2); See also Glazer v. Am. Ecology

Env’t Servs. Corp., 894 F. Supp. 1029, 1041 (E.D. Tex.

1995). Glazer, although not a CWA lawsuit, includes

a reiteration of the Second Circuit’s findings in

Atlantic States Legal Foundation v. Eastman Kodak

Co., (12 F.3d 353, 358-59) regarding the scope of a

CAA citizen suit versus that of a CWA citizen suit.

Specifically, Atlantic

States did

not

involve a CAA claim; rather, it concerned

a CWA claim. This is significant, because

the court's conclusion rested on 40

C.F.R. § 123.1(i)(2), which states that

state programs broader in scope than the

federal requirement are not a part of the

federal

program. Id. No

equivalent

25

regulation has been promulgated

concerning the CAA. Cf. 40 C.F.R. §

271.1(h)(i)(2).

Glazer, 894 F. Supp. at 1041.

In sum, had Congress wanted the citizen suit

provision under the CWA to extend to state law

standards that differed from federal ones, it certainly

knew how to say so. To declare otherwise, as the

Ninth Circuit has done below, effectively strips the

states of their authority to enforce their own laws and

undermines the careful balance between federal and

state enforcement authority.

IV.

CONCLUSION

For the reasons set forth herein, it is of

paramount interest to amici curiae that the

Petitioners’ Petition for Writ of Certiorari should be

granted by this Court.

RESPECTFULLY SUBMITTED this 28th day of

October, 2024

SARA B. FRASE

Counsel of Record

HOLLY M. STAFFORD

TIMOTHY D. SCHERMETZLER

CSD ATTORNEYS AT LAW P.S.

1500 Railroad Avenue

Bellingham, WA 98225

(360) 671-1796

sfrase@csdlaw.com

Counsel for Amicus Curiae

Washington Public Ports

Association et al.