Petition — Chemical Manufacturers Ass'n v. U. S. Environmental Protection Agency

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WAY 28 1982

No. Si.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1981

CHEMICAL MANUFA<TURERS ASSOCIATION, ef al.,

AMERICAN [RON & STEEL INSTITUTE, ef al.,

AMERICAN Paper INSI/TUTE, ef al.,

AMERICAN PETROLEUM INSTITUTE, ef ai.,

AMERICAN TEXTILE MANUFACTURERS INSTITUTE,

NATIONAL COAL ASSOCIATION, and

VIRGINIA ELECTRIC AND PoweR COMPANY, ef al.,

Petitioners,

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY and

ANNE M. GorsucH, ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

THEODORE L. GARRETT

Patricia A. BARALD

CorINNE A. GOLDSTEIN

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioners

Chemical Manufacturers Association, et al.

May 1982

QUESTIONS PRESENTED

The decision at issue involves fundamental questions as to

the proper court for judicial review of Environmental Protection

Agency (“EPA”) regulations under the Clean Water Act

(“CWA” or “the Act”). The D.C. Circuit has asserted direct

appellate jurisdiction under Section 509(b)(1) of the Act, 33

U.S.C. § 1369(b)(1), over challenges to EPA’s general policy

and procedural regulations governing the grant or denial of

National Pollutant Discharge Elimination System (“NPDES”)

permits. In doing so, it specifically rejected the contrary reason-

ing of a decision of the Third Circuit, and upset settled ex-

pectations as to the limited breadth of appellate jurisdiction

under the Act. The questions presented are:

1. Whether EPA’s procedural regulations governing the

grant or denial of NPDES permits, 40 C.F.R. Parts 122-125

(1980), constitute “effluent limitation|s] or other limitation|s]”

under Section 509(b)(1) of the Act, reviewable in the courts of

appeals.

2. Whether the court below exceeded the statutory limits

on its jurisdiction under Section 509(b)(1) of the Act, and

misinterpreted prior decisions of this Court, in asserting appel-

late jurisdiction over the NPDES permit regulations.

PARTIES

The parties to this action are as follows: '

Chemical Manufacturers Association, Virginia Manufacturers

Association, Inc., Virginia Chemicals, Inc., American Cyana-

mid Company, Borden Inc., E. I. du Pont de Nemours & Co.,

FMC Corporation, Kaiser Aluminum & Chemical Company,

Monsanto Company, Northern Petrochemical Company, Olin

Corporation, PPG Industries, Inc., Rohm and Haas Company,

Stauffer Chemical Company, The B. F. Goodrich Company,

The Goodyear Tire & Rubber Company, Union Carbide Cor-

poration;

American Iron & Steel Institute, Allegheny Ludlum Steel

Corporation, Armco Inc., Bethlehem Steel Corporation, Cy-

clops Corporation, Inland Steel Company, Jones & Laughlin

Steel Corporation, National Steel Corporation, Republic Steel

Corporation, United States Steel Corporation;

American Paper Institute, National Forest Products Asso-

ciation;

American Petroleum Institute, Atlantic Richfield Company,

Chevron U.S.A., Inc., Conoco Inc., Exxon Corporation, Getty

Oil Corporation, Gulf Oil Corporation, Marathon Oil Com-

pany, Mobil Oil Corporation, Phillips Petroleum Company,

Shell Oil Company, Standard Oil Company (Indiana), Texaco

Inc., Union Oil Company of California;

American Textile Manufacturers Institute;

Burlington Industries, Inc.;

Citizens for a Better Environment;

'In accordance with Rule 28.1 of the Rules of the Supreme Court, the

parent companies, subsidiaries and affiliates of each corporate party to this

petition are set forth in the Appendix at A-17.

Ford Motor Company;

General Motors Corporation;

Kennecott Corporation;

National Coal Association;

Natural Resources Defense Council, Inc.;

Pennzoil Company;

State of West Virginia;

Tenneco Cil Company;

United Technologies Corporation; and

Virginia Electric and Power Company, Alabama Power Com-

pany, Allegheny Power System, Inc. , American Electric Power

Company, Inc., Baltimore Gas & Electric Company, Boston

Edison Company, Carolina Power & Light Company, Central

and South West Services, Inc. , Central Illinois Light Company,

Central Illinois Public Service Company, Cincinnati Gas &

Electric Company, Cleveland Electric Illuminating Company,

Columbus & Southern Ohio Electric Co. , Commonwealth Edi-

son Company, Consolidated Edison Company of New York,

Inc., The Dayton Power & Light Company, Delmarva Power &

Light Company, Detroit Edison Company, Duke Power Com-

pany, Edison Electric Institute, Florida Power & Light Com-

pany, Gulf States Utilities Company, Houston Lighting &

Power Company, Illinois Power Company, Indianapolis Power

& Light Company, lowa Public Service Company, Kansas City

Power & Light Company, Long Island Lighting Company,

Madison Gas and Electric Company, Middle South Utilities,

Inc., Minnesota Power & Light Company, Montaup Electric

Company, National Rural Electric Cooperative Association,

New England Power Company, New York State Electric & Gas

Corporation, Niagara Mohawk Power Corporation, Northeast

Utilities Services Company, Northern Indiana Public Service

Company, Northern States Power Company (Minn.), Ohio

Edison Company, Oklahoma Gas and Electric Company, Paci-

fic Gas & Electric Company, Pennsylvania Power & Light

Company, Philadelphia Electric Company, Potomac Electric

Power Company, Public Services Electric & Gas Company,

Public Service Company of Indiana, Inc., Rochester Gas &

Electric Company, San Diego Gas & Electric Company, South

Carolina Electric & Gas Company, Southern California Edison

Company, The Southern Company, Tampa Electric Company,

Texas Utilities Company, Toledo Edison Company, Union

Electric Company, Wisconsin Electric Power Company, Wis-

consin Power & Light Company, Wisconsin Public Service

Corporation. *

? The foregoing list comprises the petitioners who challenged EPA regula-

tions promulgated pursuant to the Clean Water Act and who therefore had an

interest in the decision below. In the proceedings below, the D.C. Circuit

has also consolidated petitions challenging EPA regulations under other

Statutes. The latter petitioners, who did not participate in the D.C. Circuit's

consideration of the jurisdictional issue involved here, are as follows:

Continental Oil Company, The Standard Oil Company (Ohio), The Ferroal-

loys Association, Allegheny Ludlum Industries, Inc., Kimberly-Clark

Corporation, Mining and Reclamation Council of America, Inc., Avtex

Fibers, Inc., Edison Electric Institute, et al., Stablex Corporation, Amer-

ican Wood Preservers Institute, G + W Natural Resources Group, Amer-

ican Chrome & Chemicals, Inc. , Linden Chemicals & Plastics, Inc., Polysar

Limited, The Lubrizol Corporation, Allied Chemical Corporation, The Dow

Chemical Company, American Mining Congress, et al., AMAX, Inc.,

Texas Oil & Gas Corp., National Solid Wastes Management Association,

Cincinnati Gas & Electric Company, Atlantic Cement Company, Inc., et

al., Tennessee Gas Transmission Company, Colt Industries Inc., Kaiser

Steel Corporation, Lone Star Steel Company, Wheeling-Pittsburgh Steel

Corporation, Kerr-McGee Nuclear Corporation, Kerr-McGee Refining

Corporation, Kerr-McGee Corporation, State of Texas, Duval Corporation,

Everest Minerals Corporation, Jefferson Lake Sulphur Company (a division

of Occidental Chemical Company), Texasgulf Inc., Independent Petroleum

Association of America, and Mid-Continent Oil and Gas Association.

TABLE OF CONTENTS

Page

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STATUTES AND REGULATIONS INVOLVED .............6.505+ 2

PR rer rere ret rare 2

A. Legislative And Administrative Background .... 3

DE, PD SOREN. CERN ee rca uwneSsseedaeve 5

REASONS FOR GRANTING THE WRIT .... 2.0... 0666 e ee eee 7

I. The Decision Below Creates A Conflict In The Circuits

And Departs From Prior Decisions Of This Court .... 8

Il. The Devision Below Involves Recurring Questions Con-

cerning Judicial Review Under The Clean Water Act. 11

lll. The Decision Below Contravenes Congress’ Limited

Grant Of Jurisdiction To The Courts A s And

Conflicts With The Structure And Purpose Clean

WES Ua vatvds b pF eecwacaecevewtceeren) (cee 13

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TABLE OF AUTHORITIES

Cases: Page

American Federation of Labor v. NLRB, 308 U.S. 401

DE: s'n6 UUadksd on Oebed¥eceee'’t.e oc tivties 13, 14, 18

American Iron & Steel Institute v. EPA, 543 F.2d 521 (3d Cir.

SE Wael oa hing CGUAb Ahn o Unt. 6B P Os-6% Punt 8.9, 10

American Power & Light Co. v. S.E.C., 325 U.S. 385 (1945) s

Assessors v. Osbornes, 9 Wall 567, 76 U.S. 567 (1869) .. 13

Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976) —10

Central Hudson Gas & Electric Corp. v. EPA, 587 F.2d 549

SE SE tht Soh ed cece tcduleu vhbueod sete 10, I

Crown Simpson Pulp Co. v. Costle, 599 F.2d 897 (9th Cir.

1979), reversed on other grounds, 445 U.S. 193

ED AS dddiwe vids 66 bad eutiltte oodedievas 10, 12, 15

E. 1. du Pont de Nemours & Company v. Train, 430 U.S. 112

EE owt t by ih oe wands Ghd ob s0ta¥e chs dacmn 4, 10, 12

Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275

IE Geno dona CWA 6 GaN eden ccs ads donned 15

EPA v. California ex rel. State Water Resources Control

Board, 426 U.S. 200 (1976) ......... ve schbilvan ites 15

Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980) .. 7, 18

Ickes v. Associated Industries of New York State, Inc., 320 U.S.

tin cis tdiuls cebusadianthwss$esddy oe be

Investment Company Institute v. Board of Governors of the

Federal Reserve System, 551 F.2d 1270(D.C. Cir. 1977) 9

Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) ..... 17

Land v. Dollar, 330 U.S. 731 (1947) 2... cee 8

Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149

PE oti bteobsEs wa den ued oprobyecscogescoud’ 14

Montgomery Environmental Coalition v. Costle, 646 F.2d 568

DEE (S¥ideandevectcegtachocccccssees 15

Sumner v. Mata, 449 U.S. 539 (1981) 6... 6c ccc eee 14

Third National Bank in Nashville \. Impac Limited, Inc., 432

IES bint dbo nen st sWbitses eoticevese 17

STATUTES:

28 U.S.C.

33 U.S.C.

42 U.S.C.

Vii

Table of Authorities Continued

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Table of Authorities Continued

Page

REGULATIONS:

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CONGRESSIONAL MATERIAL:

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) ........ 17

FEDERAL REGISTER:

44 Fed. Reg. 32854-956 (June 7, 1979) ................ 5

44 Fed. Reg. 32855 (June 7, 1979) ................455. 6

45 Fed. Reg. 33290-588 (May 19, 1980) ............... 5

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1981

No. #1-___

CHEMICAL MANUFACTURERS ASSOCIATION, ef al.,

AMERICAN IRON & Steer INstirute, et al.,

AMERICAN Paper INSTITUTE, ef al.,

AMERICAN PETROLEUM INSTITUTE, ef al.,

AMERICAN TEXTILE MANUFACTURERS INSTITUTE,

NATIONAL COAL ASSOCIATION, and

VirGINIA ELECTRIC AND Power ComPANy, ef al.,

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY and

ANNE M. Gorsuch, ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners Chemical Manufacturers Association, et al., pray

that a writ of certiorari issue to review the opinion and judgment

of the United States Court of Appeals for the District of Co-

lumbia Circuit in this case involving the parties named in the

above caption.

OPINION BELOW

The opinion of the court of appeals below is unofficially

reported at 17 E.R.C. 1007, and is reprinted in the Appendix to

this petition at A-1.

JURISDICTION

The order of the court of appeals was entered on March 2,

1982. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

Section 509(b)(1) of the CWA, 33 U.S.C. § 1369%(b)(1),

vests the federal courts of appeals with original jurisdiction to

review six specified categories of EPA action, including action:

“in approving or promulgating any effluent limitation or

other limitation under section 1311, 1312 or 1316 [of the

CWA].” 33 U.S.C. § 1369(b)(1)(E).

With limited exceptions, review of EPA action within the six

Section 509(b)(1) categories must be sought within 90 days of

the date of the challenged action. Section 509(b)(2) of the Act

provides that “[ajction of the Administrator with respect to

which review could have been obtained under [§ 509(b)(1)]

shall not be subject to judicial review in any civil or criminal

proceeding for enforcement.” 33 U.S.C. § 1369(b)(2). Section

509(b)(1) of the Act is set forth below at 14-15.

EPA’s regulations governing the procedures for issuing

NPDES permits are codified at 40 C.F.R. Parts 122-125.

STATEMENT OF THE CASE

This petition raises a central issue as to the scheme for

judicial review of agency action under the Clean Water Act. It is

of fundamental importance that the means for seeking judicial

review, and the court in which review must be sought, be

decision below has created a conflict in the circuits and has

upset settled expectations as to the courts which must review

EPA actions under the Clean Water Act.

This petition seeks review of a judgment of the D.C. Circuit

which broadly and improperly expands court of appeals

jurisdiction to cover review of EPA's policy and procedural

permit regulations under the Clean Water Act, despite the

absence of any explicit reference to such regulations in the

applicable judicial review provisions of the Act. The decision

below misconstrues a decision of this Court and involves a

recurring issue of considerable importance.

A. Legislative And Administrative Background

Congress purposely split jurisdiction over review of EPA’s

actions under the CWA between the courts of appeals and the

district courts. In sharp contrast to the jurisdictional provisions

of other environmental statutes, where Congress chose to vest

the courts of appeals with jurisdiction to review all agency

actions, ' Congress deliberately limited appellate review under

the CWA to six specified categories of EPA actions, only one of

which is involved here, namely “approving or promulgating

any effluent limitation or other limitation.” CWA

§ 509(b)(1)(E). * Jurisdiction to review all other EPA actions

under the CWA is vested in the federal district courts by 28

U.S.C. § 1331 and by certain specific review provisions in

Section 505 of the CWA, 33 U.S.C. § 1365.

The issue involve. ‘ere is whether EPA’s NPDES regula-

tions are properly reviewable in the courts of appeals under

Section 509(b)(1)(E). This issue turns on the distinction be-

tween effluent limitations under the Act and EPA’s procedural

regulations for issuance of NPDES permits.

' See, e.g., 42 U.S.C. § 7607(b\ 1) (Clean Air Act); 42 U.S.C. § 300j-7

(Safe Drinking Water Act); 42 U.S.C. § 6976 (Resource Conservation and

Recovery Act). See also n.18 below.

733 U.S.C. § 136% b\ 1 WE). Section 50%b\(1) is set forth below at

14-15.

The “WA prohibits the discharge of any pollutant into the

nation’s waters unless and until the discharger has obtained a

NPDES permit under Section 402 of the Aci, 33 U.S.C.

§ 1342. NPDES permits specify the types and amounts of

pollutants an individual source may discharge. These specifica-

tions are based primarily on numerical “effluent limitations”

guidelines promulgated by EPA pursuant to Sections 301 and

304 of the Act, 33 U.S.C. §§ 1311, 1314, which set forth the

amounts of various pollutants which may be discharged by

particular industries based upon the application of appropriate

treatment technology. Such numerical effluent limitations have

been before the Court previously, ' but are not involved here. *

The NPDES regulations in question, 40 C.F.R. Parts 122-

125, establish detailed policies and procedures for issuing and

denying NPDES permits «nder Section 402 of the CWA. For

example, the regulations govern who may sign permit applica-

tions and monitoring reports (40C.F.R. § 122.6), the duration

and termination of permits (40 C.F.R. §§ 122.9, 122.16), the

sharing of information by states with EPA (40 C.F.R.

§ 123.10), EPA review of state permits (40 C.F.R. § 123.75),

ex parte communications during permit hearings (40 C.F.R.

§ 124.78), and cross-examination during non-adversary panel

hearings (40 C.F.R. § 124.121).

See E. 1. du Pont de Nemours & Company v. Train, 430 U.S. 112

(1977).

* The Act also contains separate provisions governing discharges of pollu-

tants by new sources and requiring the establishment of toxic pollutant

standards and water quality standards. 33 U.S.C. §§ 1316, 1317, 1312 asd

1313, respectively. These new source performance standards, toxic pollu-

tant standards and water quality standards, which also form the basis for

numerical limitations in permits, are not at issue in this case.

B. Proceedings Below

The current NPDES procedural rules, which extensively

revised prior rules, were first promulgated on June 7, 1979 (44

Fed. Reg. 32854-956). The rules were then repromulgated, in

slightly modified form, as part of EPA’s consolidated permit

regulations, 45 Fed. Reg. 33290-588 (May 19, 1980). These

procedural rules are now codified at 40 C.F.R. Parts 122-125.

Challenges to both the June, 1979 NPDES and May, 1980

“consolidated permit” regulations were filed by industry and

environmental groups in both federal district courts ° and feder-

al courts of appeals. Industry petitioners have consistently

maintained that only the federal district courts have jurisdiction

over these challenges. However, in light of the uncertainty over

the courts of appeals jurisdiction under Section 509(b)(1) of the

Clean Water Act, industry petitioners filed “protective” peti-

tions for review in the courts of appeals, in order not to risk

forfeiting entirely their rights to review should a court of

appeals later decide the jurisdictional issue in its own favor. °

This forfeiture problem arises because Section 509(b)(1) re-

quires petitions for review in the courts of appeals to be filed

within 90 days of the chaiienged Agency action. Failure to do so

precludes the raising in any subsequent enforcement proceed-

ing of any issue that could have been raised before a court of

appeals. 33 U.S.C. § 1369(b)(2).

The confusion over this critical jurisdictional issue is

graphically illustrated by EPA’s own change in position on this

* American Iron & Steel Institute, ef a/. v. Costle, No. 79-1218 (W.D.

Pa.); American Petroleum Institute, ef a/. v. Costle, No. 79-0858, (W.D.

La.); Appalachian Power Co., et al. v. Costle, No. 79-0188 (W.D. Va.);

Chemical Manufacturers Ass'n... et al. v. EPA, No. 79-0184 (W.D. Va.):

and Natural Resources Defense Council. Inc. v. Costle, No. 79-2948

(D.D.C.).

* See p. 9n.12 below. The various petitions were eventually consolidated

in the D.C. Circuit.

point. Throughout the long history of these proceedings, EPA

has insisted that Section 509(b)(1) of the CWA does not vest

Original jurisdiction in the courts of appeals to review the

challenged procedural retulations. The preamble to the June,

1979 regulations ’ stated unequivocally that review in a court of

appeals under Section 509(b)(1) “is not provided for actions in

issuing general regulations governing the issuance of NPDES

permits.” 44 Fed. Reg. 32855 (June 7, 1979). In pleadings filed

in the various federal court proceedings, the Agency has reiter-

ated that:

“Neither the 1979 NPDES regulations nor the NPDES

elements of the Consolidated Regulations fall within any

of the categories specified in § 509(b)(1).”*

Not until EPA filed its brief below did it take the position that

the challenged procedural regulations were “effluent limita-

tion|s] or other limitation{s]” under Section 509(b)(1)(E).

The question of the jurisdiction of the court under Section

509(b)(1) of the CWA was presented to the D.C. Circuit on

motion of the industry petitioners to dismiss their prote= tive

petitions for lack of jurisdiction. The industry parties argued

that Section 509(b)(1) of the CWA does not apply to the

NPDES procedural regulations. Industry petitioners also

argued that substantial policy grounds exist for a narrow read-

ing of the judicial review provisions of the CWA.

After briefing and oral argument, the D.C. Circuit denied the

motion, holding that the NPDES regulations are “effluent

limitation[s] or other limitation[{s]” under Section 509(b)(1)(E)

of the Act. The court acknowledged that, on its face, this

’ As the court below noted, these regulations are the same as the current

NPDES regulations, with only “slight substantive modifications.” Appx.

A-4.

* EPA Motion to Transfer at 6 (August 22, 1980), filed in Virginia Electric

and Power Company, ef al. v. EPA, No. 79-1347 (4th Cir.).

provision appears to cover only numerical limitations oa pollu-

tant discharges, as also indicated by the usage of this phrase in

the citizen suit provision of the Act. 33 U.S.C. § 1365(a).

However, the court avoided this conclusion with the explana-

tion that Congress sometimes uses the same word with different

meanings. Appx. A-6 n.10. The court also admitted that the

Third Circuit “has adopted the position industry urges here,”

but concluded that it did not agree with that Circuit. Appx. A-7.

The D.C. Circuit expressed its view that national uniformity is

“an important goal in dealing with broad regulations,” and is

“best served by initial review in a court of appeals.” Appx.

A-10 n.15. The court did not cite any statutory language or

legislative history to support these conclusions.

As a result of the D.C. Circuit’s determination, industry

petitioners must litigate the merits of these and all other argua-

bly similar regulations in the courts of appeals, or lose their

right to challenge the substantive validity of such regulations in

any subsequent enforcement proceedings.

REASONS FOR GRANTING THE WRIT

The Court should grant the petition for certiorari in this case

for three reasons that the Court has traditionally deemed to

warrant plenary review. First, the decision below creates a

direct conflict among the circuits, and has upset settled ex-

pectations concerning judicial review under the Clean Water

Act. Second, the decision below raises a major jurisdictional

problem of nationwide importance that will continue to plague

both the federal district courts and the federal courts of appeals,

and to waste the time, energy, and resources of courts and

litigants alike, unless resolved by this Court.’ And third, the

* See, e.g., Harrison v. PPG Industries, Inc., 446 U.S. 578, 586 (1980),

in which this Court granted certiorari “because of the importance of

determining the locus of judicial review of the actions of EPA.”

decision below is at odds with the language and history of the

Clean Water Act. It presents fundamental questions of impera-

tive public importance which only this Court can determine

concerning the authority of the federal courts of appeals to

circumvent the limits on their jurisdiction iinposed by Con-

gress, and the interpretation of a statute which, since its enact-

ment, has occasioned considerable litigation. "°

I. The Decision Below Creates A Conflict In the Circuits And

Departs From Prior Decisions Of This Court

As the court below acknowledged, its decision is in direct

conflict with the decision of the Court of Appeals for the Third

Circuit in American Iron & Steel Institute (“ AIST’) v. EPA, 543

F.2d 521 (3d Cir. 1976), which held that the courts of appeals

are without jurisdiction to review NPDES regulations that

merely “prescribe the policy and procedures to be followed in

connection with applications for permits.” 543 F.2d at 526. A

revised version of the regulations at issue in that case is part of

the regulations under challenge here. '' The court in A/S/ noted

that th> Act defined an effluent limitation as a restriction on the

quantities, rates or concentrations of pollutants, and held that

EPA’s procedural regulations were not subject to review under

Section 509(b) of the CWA. Although the D.C. Circuit ad-

vanced several theories on which to explain its disagreement

with A/S/ v. EPA, the court acknowledged that it “specifically

rejected the reasoning of A/S/.” Appx. A-7.

"© It is well established in this Court that a writ of certiorari may be granted

to review an order below denying a motion to dismiss for lack of jurisdiction

where, as here, the petition presents legal issues of great public importance

that are fundamental to the further conduct of the case. Land v. Dollar, 330

U.S. 731 (1947); American Power & Light Co. v. S.E.C., 325 U.S. 385

(1945); Ickes v. Associated Industries of New York State, Inc., 320 U.S.

707 (1943) (per curiam).

"40 C.F.R. §§ 122.63(g), 122.63(h).

The decisions of the two circuits cannot be squared. In A/S/,

the court recognized the clear jurisdictional barrier to federal

appellate review of regulations that “do no more than prescribe

the policy and procedures to be followed in connection with

applications for permits,” 543 F.2d at 526, stating:

“(W]e do not believe, in view of the explicit and limited

provisions of 33 U.S.C. § 1369(b)(1)(E) and (F), that

Congress intended us to engage in deliberations of thir sort

> My = of a full and comprehensive record.” 543

.2d at 528.

The D.C. Circuit's effort to explain its disagreement with

AISI by stating that the Third Circuit has confused jurisdiction

with “considerations of ripeness for review,” Appx. A-8, illus-

trates the lack of clarity in its own reasoning. Under the D.C.

Circuit’s approach, petitioners would be forced to file protec-

tive petitions in the courts of appeals * as soon as any general

procedural NPDES regulation is promulgated that might

adversely affect the source in a future permit or enforcement

proceeding, and then move to dismiss the petitions on ripeness

grounds, " in order to be sure of preserving later review in the

proper forum in the context of a permit or enforcement proceed-

ing. We submit that the Third Circuit was neither confused nor

incorrect in holding that Congress, by narrowly and expressly

limiting original court of appeals jurisdiction under Section

509(b)(1), intended to preclude, not require, such a result.

'? The Court of Appeals for District of Columbia Circuit encouraged the

filing of “protective” petitions in other contexts. See, ¢.g., Investment

Company Institute v. Board of Governors of the Federal Reserve System,

551 F.2d 1270 (D.C. Cir. 1977).

'' In upholding its jurisdiction to review the challenged regulations, the

court below stated, “The parties have not yet briefed the issue of the ripeness

of the CPR’s, and we do not today hold that any of them are ripe for review.

We hold only that this court has authority under § 509(b)( 1 )(E) to review

any CPR’s that are ripe.” Appx. A-8 n.13.

i «al

The court below also speculated that this Court's decisions in

E. 1. du Pont de Nemours & Co. v. Train, 430 U.S. 112(1977),

and Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980),

decided after A/S/, might have caused the Third Circuit to give a

more “practical” and less “cramped” construction to the limits

on its jurisdiction under Section 509(b). Appx. A-11. The D.C.

Circuit’s conclusion that the reasoning of the du Pont and

Crown Simpson cases “strongly supports” its decisions (Appx.

A-11) instead underscores its departure from the principles in

these cases. Neither decision permits a court of appeals to

ignore the express "’ nits on its jurisdiction in order to reach a

result it considers re “practical” than that directed by Con-

gress. Moreover, as the court below acknowledged, Appx.

A-11 n.16, the regulations at issue in those cases, particularly

the du Pont case, were a far cry from the general policy and

procedural regulations at issue here. In the du Pont case, the

Court held merely that specific industry-wide effluent limita-

tions guidelines setting forth numerical limitations fell within

the courts of appeals’ jurisdiction under Section 509(b)(1)(E) of

the Act. That result is wholly consistent with the Third Circuit's

holding in A/S/. The same cannot be said for the D.C. Circuit's

effort to use the du Pont decision as a wedge to expand its

jurisdiction over regulations wholly unrelated to specific

numerical “effluent limitation[s] or other limitation|s].”

The broad construction given to Section 509(b) of the CWA

by the D.C. Circuit is also inconsistent with the approach taken

by the Second Circuit in interpreting this judicial review provi-

sion:

“{I}t seems to us that when a jurisdictional statute sets forth

with such specificity the actions of an administrative agen-

cy which may be reviewed in the courts of appeals, a

litigant seeking such review of an action that is not speci-

fied bears a particularly heavy burden.”

Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517-18 (2d Cir.

1976). See also, Central Hudson Gas & Electric Corp. v. EPA,

587 F.2d 549, 555-57 (2d Cir. 1978). We submit that this

approach taken by the Second and Third Circuits is more sound

than the expansive assertion of jurisdiction by the D.C. Circuit

below.

Il. The Decision Below Involves Recurring Questions Concerning

Judicial Review Under The Clean Water Act

Allowing the decision below to stand would raise a host of

new problems eliminated by Congress’ narrow and careful

delineation of court of appeals’ jurisdiction in Section

509(b)(1). If regulations as broad and general as those at issue

here are considered to be “effluent limitation[s] or other limita-

tion(s],” it is difficult if not impossible to limit the term rational-

ly in future cases. While the court below insisted that its

decision “does not turn § 509(b)(1) into a comprehensive re-

view provision that Congress did not intend it to be,” Appx. A-8

n.14, it fails to provide any basis whatsoever for drawing

reasonable distinctions. “

As a result of the conflict between the circuits on this critical

jurisdictional point, the many thousands of industrial dis-

chargers throughout the country that are subject to NPDES

requirements can have no certainty as to the proper forum for

judicial review of any NPDES regulations. The consequence

will necessarily be a deluge of “protective” petitions in the

federal courts of appeals each and every time NPDES regula-

tions are promulgated.

As a result, virtually any restrictions of any sort on industrial dis-

chargers (and there has yet to be an NPDES regulation that does not arguably

impose some type of restriction) must now be challenged within 90 days in

the courts of appeals. The standard announced by the court below is whether

the regulations impose any “ ‘restriction on the untrammeled discretion of

the industry’ that existed before passage of the CWA.” Appx. A-9.

Considering that the Clean Water Act and the regulations

thereunder are not only one of the most important and complex

but also one of the most hotly debated and extensively litigated

regulatory programs in existence today, the potential burden

on the courts and on litigants is truly staggering. The procedural

background of this case alone helps illustrate the magnitude of

the problem. Because of the uncertainty as to court of appeals

jurisdiction over the consolidated permi’ regulations, nce fewer

than twelve petitions for review were filed in the courts of

appeals, and at least five complaints were filed in the district

courts. After three years of active litigation, the parties are no

nearer to litigating the merits of the challenged regulations than

they were in June, 1979. In fact, given the D.C. Circuit's

Statements on the “ripeness” issue, another long, preliminary

issue lies ahead to be briefed and decided by that court. "

Although the court below apparently believed that its deci-

sion would lessen the burden on the courts by requiring initial

review in a court of appeals of such regulations, Appx. A-9-10,

and A-10 n.15, that is clearly not the case. As indicated above,

the D.C. Circuit has stated that many of such regulations may

not be ripe for review, and might thus be reviewable in a

particular factual context in connection with an enforcement

proceeding in a district court or a suit in a court of appeals

concerning the issuance of an NPDES permit. To preserve such

later review, however, petitioners will be compelled to file

protective petitions in the courts of appeals and then move to

dismiss the petitions on ripeness grounds, thereby adding to the

courts’ burdens.

'S This Court's decisions in Crown Simpson and du Pont, supra, cite only

a few of the many district court and court of appeals decisions on NPDES

issues.

The parties before the D.C. Circuit agree that certain of the NPDES

issues are ripe for review but others are not yet ripe, and have advised that

court of their intention soon to submit a motion to dismiss the unripe issues.

Moreover, with regard to future challenges to regulations

under the CWA, the D.C. Circuit’s opinion has left even the

status of court of appeals jurisdiction in complete confusion.

The court below noted that:

“Industry petitioners argue that if the CPR’s are review-

able in a court of appeals, virtually any action

under the CWA will be so reviewable, thus contravening

the congressional intent. EPA contend: however — and

does rot — that certain ‘ions under the

CWA are outside of § 509(b)(1). See EPA Brief at 27.

* * * We do not decide that we would lack jurisdiction in

all the cases EPA lists. . ..” Appx. A-8 n.14.

Virtually all EPA regulations under the Clean Water Act will

from now on be subject to challenge in both the federal courts of

appeals '’ and the district courts, where burdensome litigation

and conflicting decisions as to jurisdiction are again likely.

Only this Court can bring to a halt the tremendous waste of

judicial resources that will necessarily follow if the D.C. Cir-

cuit’s decision is allowed to stand.

Ill. The Decision Below Contravenes Congress’ Limited Grant Of

Jurisdiction To The Courts Of Appeals And Conflicts With

The Structure And Purpose Of The Clean Water Act

It is one of the most basic principles of federal jurisdiction

that the courts of appeals are courts of limited jurisdiction, with

only such jurisdiction as is expressly granted to them by statute.

American F ederation of Labor v. NLRB, 308 U.S. 401 (1940);

Assessors v. Osbornes, 9 Wall. 567, 76 U.S. 567 (1869).

Although there may be excellent policy reasons for doing so,

the courts may not expand that limited jurisdiction without

express authorization from Congress. A.F. of L. v. NLRB, 308

"’ As noted at p.5 above. the preclusive nature of Section 50% b) 1) review

in effect mandates such “protective” suits.

U.S. at 411-412. It is the responsibility of this Court to ensure

that the statutory limits and bounds of the lowe: courts’ jurisdic-

tion are not exceeded. Sumner v. Mata, 449 U.S. 539, 547 n.2

(1981); Louisville & Nashville Railroad Co. v. Mottley, 211

U.S. 149, 152 (1908).

While Congress could have vested original jurisdiction in the

courts of appeals to review virtually all regulations of general

applicability under the CWA promulgated by EPA, as it did

under other environmental statutes," it declined to do so.

Instead, Section 509(b)( 1) provides for original court of appeals

jurisdiction over EPA actions in only six enumerated situations.

These are EPA actions:

“(A) ea er oe oe

16 of this title,

“(B) in making any determination pursuant to section

1316(b)(1)(C) of this title,

“(C) in promulgating any effluent standard, prohibition,

or pretreatment standard under section 1317 ofthis tie,

“(D) in making any determination as to a State

progratn submitted under section 1342(b) of this cde,

" See, e.g., 42 U.S.C. § 7607(b)( 1) (authorizing court of appeals review

of eight specified categories of action and “any other nationally applicable

regulations promulgated or final action taken” under the Clean Air Act); 42

U.S.C. §§ 300j-7(a)( 1) and (a)(2) (authorizing District of Columbia Court

of Appeals review of four specified categories of action and “any general

regulation for the administration” of the Underground Injection Control

program under the Safe Drinking Weter Act, and court of appeals review in

the appropriate circuit of “any other regulation”); and 42 U.S.C.

§ 6976(a)(1) (authorizing the filing with courts of appeals of “a petition for

review of action of the Administrator in promulgating any regulation” under

the Resource Conservation and Recovery Act).

“(E) in approving or promulgating any effluent limita-

tion or other limitation under section 1311, 1312, or 1316

of this title, and

“(F) in issuing or ing any it under section 1342

of this title, . . ..- 33 U.S.C. § 1369(b)(1).

' As ‘s apparent from: the language of Section 509(b)(1), these six

enumerated actions fall intu two basic categories: (1) review of

final agency action in approving or disapproving state NPDES

programs and individual NPDES permits, and (2) review of the

technical effluent standards and limitations required by the

Agency to be incorporated, where applicable, in all NPDES

permits.

The language and legislative history of the Act, as well as the

relevant case law, confirm that the phrase “effluent limitation or

other limitation,” as contained in Section 509(b)(1)(E), refers

to numerical restrictions on the quantities of pollutants that may

be discharge. The phrase “effluent limitation” is defined in the

Act as:

“[A]ny restriction established by a State or the Administra-

tor on ities, rates, and concentrations of chemical,

charged from point sources into navigable waters, the

waters of the contiguous zone, or the ocean, including

schedules of compliance.” 33 U.S.C. § 1362(11).

“Effluent limitations” have been described as “aterm of art. . .

restricting the quantities of pollutants that enterprises in a given

industry may discharge.” "

Crown Simpson Pulp Co. v. Costle, 599 F.2d 897, 902 (9th Cir. 1979),

reversed on other grounds, 445 U.S. 193 (1980). “[E}fflvent limitations are

technical specifications of the quantities of various polluting substances that

a permittee may lawfully discharge.” Montgomery Environmental Coalition

v. Costle, 646 F.2d 568, 574 (D.C. Cir. 1980). Effluent limitations are

“specified maximum levels of pollution allowed to be discharged by an

individual source.” Environmental Defense Fund, Inc. v. Costle, 657 F.2d

275, 279 (D.C. Cir. 1981). See also EPA v. California ex rel. State Water

Resources Control Board, 426 U.S. 200, 204-05 (1976).

Although the phrase “effluent limitation or other limitation”

is not defined in the Act, the phrase is used in no fewer than

eight other sections of the Act. Not a single one of these sections

refers, either expressly or by implication, to regulations other

than numerical specifications on pollutant levels. * The citizen

suit provision of the Act authorizes any interested person to

commence a suit in federai district court against “any person

. . . in violation of . . . an effluent standard or limitation under

this chapter.” 33 U.S.C. § 1365(a)(1). This section, which

defines the violation of an “effluent standard or limitation” to

include “an effluent limitation or other limitation” under Sec-

tions 301 and 302, confirms that only numerical specifications

® See 33 U.S.C. §§ 1318(a) (record keeping relating to the development

of “any effluent limitation, or other limitation, prohibition, or effluent

standard, pretreatment standard of performance”); 1341(a)(4) review of the

manner in which a facility shall be operated to insure that no “effluent

limitations or other limitations or other applicable water quality require-

ments” will be violated); 1341(b) (EPA required to provide information on

“effluent limitations, or other limitations, standards, regulations, or require-

ments, or water quality criteria” to the states or other Federal departments or

agencies), 1341(d) (certification required to set forth “effluent limitations

and other limitations, and monitoring requirements” to assure compliance

with effluent limitations and standards); 1362(17) (“schedule of com-

pliance” defined to include enforceable sequence of actions leading to

compliance with “an effluent limitation, or other limitation, prohibition or

standard”); 1365(f) (for purposes of citizens’ suits, “effluent standard or

limitation” is defined to include “an effluent limitation or other limitation

under section 1311 or 1312”); 1367(d) (employee protection provisions do

not apply to deliberate violations of “any prohibition of effluent limitation or

other limitation”); and 1370 (states may not adopt or enforce any “effluent

limitation, 0: other limitation, effluent standard, prohibition, pretreatment

standard, or s' ndard of performance” less stringent than federal standards).

were intended. 33 U.S.C. § 1365(f). As the Senate Committee

on Public Works explained the citizen suit provision:

“Enforcement of pollution regulations is not a technical

matter beyond the competence of the courts. The citizen

suit provision is consistent with principles underlying the

Federal Water Pollution Control Act, that is the develop-

ment of clear and identifiable requirements. Such require-

ments should ide manageable and precise benchmarks

for enforcement. *

There is no question that the D.C. Circuit has asserted

jurisdiction over regulations which have virtually nothing to do

with identifiable limitations on discharges. The court below so

acknowledged:

“These regulations do not set any numerical limitations on

pollutant discharge. Instead, they are a complex set of

procedures for issuing or denying NPDES permits. . ..”

“The CPR’s, everyone agrees, are far more general [than

regulations based on precise, technical information and

applied to particular po eaag! point sources] and rest

dominantly on policy ” Appx. A-4, A-9.

The court nevertheless determined that, as a matter of policy, it

would be more “practical” to extend its jurisdiction under

Section 509(b)(1)(E) to include such regulations. Appx. A-11.

It is clear from the language of the statute that such an extension

of the court of appeals’ jurisdiction is unwarranted. ”

*§. Rep. No. 92-414, 92d Cong., Ist Sess. 81 (1971) (emphasis added).

” Significantly, the court below cited nothing in the language or legisla-

tive history of the Act that would warrant expanding its jurisdiction in this

fashion. Moreover, even if the statute and legislative history were at all

ambiguous on that point — which industry petitioners submit they are not —

the maxims of noscitur a sociis and ejusdem generis apply “in order to avoid

the giving of unintended breadth to the Acts of Congress.” Jarecki v. G D.

Searle & Co., 367 U.S. 303, 307 (1961). See also, Third National Bank in

Nashville v. Impac Limited, Inc., 432 U.S. 312, 322-23.

* A:

Whether or not the various policy reasons cited by the court

below ”' are valid bases for expanding court of appeals jurisdic-

tion is an issue for Congress. A.F. of L., 308 U.S. at 411-412.

In the absence of such congressional authority, the courts are

without power to take such action unilaterally, even for the best

of “policy” reasons. /d. See also, Harrison, 446 U.S. at 593.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted.

Respec “ully submitted,

THEODORE L. GARRETT

Patricia A. BARALD

CorINNE A. GOLDSTEIN

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioners

Chemical Manufacturers Association, et al.

May 1982

2 The primary policy reasons given by the court below are (1) national

uniformity, (2) judicial economy, and (3) court of appeals expertise in

reviewing “broad policy-oriented rules.” Appx. A-9-10 and A-10 n.15.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.