# Petition — Chemical Manufacturers Ass'n v. U. S. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0087%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 879 ## Text yO - Supreme Cor g1-2198 re") WAY 28 1982 No. Si. ne IN THE Supreme Court of the Anited States OCTOBER TERM, 1981 CHEMICAL MANUFA 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). 9 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 10 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. 12 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. 13 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. 14 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). vs wv 15 “(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). 16 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). 17 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0087%3A1. Public record. Not legal advice.