Amicus Curiae Brief — Arkansas v. Oklahoma

(1V ‘20 .

Nos. 90-1262 and 90-1266 Supreme Court, U.

In The JUL 22 1991

Supreme Court of the United baa Sor THE CLERK

October Term, 1991

+

STATE OF ARKANSAS, et al.,

Petitioners,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

+

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

STATE OF OKLAHOMA, et al.,

Respondents.

¢

On Writs Of Certiorari To The United States

Court Of Appeals For The Tenth Circuit

.

BRIEF OF THE STATES OF ILLINOIS, TENNESSEE,

ALABAMA, ARIZONA, CALIFORNIA, CONNECTICUT,

DELAWARE, FLORIDA, MAINE, MICHIGAN, MISSISSIPPI,

NEW JERSEY AND SOUTH CAROLINA AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

°

CHARLES W. Burson RoLanp W. Burris

Attorney General and Attorney General

Reporter ROSALYN KaPLaNn

JoHN KNox WaLkup Solicitor General

Solicitor General James L. MorGAN

Micnaet D. PEARIGEN Assistant Attorney General

Deputy Attorney General Counsel of Record

450 James Robertson 500 South Second Street

Parkway Springfield, Illinois 62706

Nashville, Tennessee (217) 782-9030

37243-0485

July 22, 1991

(Additional counsel listed on inside front cover)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Jimmy Evans

Attorney General of

Alabama

Office of the Attorney

General

State House

11 South Union Street

Montgomery, AL 36130

Grant Woops

Attorney General of

Arizona

Office of the Attorney

General

1275 West Washington

Phoenix, AZ 85007

Danie_ E. LUNGREN

Attorney General of

California

Office of the Attorney

General

Suite 511

1515 K Street

Sacramento, CA 95814

RICHARD BLUMENTHAL

Attorney General of

Connecticut

Office of the Attorney

General

55 Elm Street

Hartford, CT 06106

CuHarces M. Oper y III

Attorney General of

Delaware

Office of the Attorney

General

8th Floor

820 North French Street

Wilmington, DE 19801

Rosert A. BUTTERWORTH

Attorney General of Florida

Office of the Attorney

General

Department of Legal

Affairs

The Capitol

Tallahassee, FL 32399-1050

MicHaeEL E. CARPENTER

Attorney General

Jon H. Epwarps

Assistant Attorney

General

State House Station 6

Augusta, ME 04333

(207) 289-3661

FRANK J. KELLEY

Attorney General of

Michigan

Office of the Attorney

General

Law Building

525 West Ottawa

P.O. Box 30212

Lansing, MI 48909

Mike Moore

Attorney General of

Mississippi

Office of the Attorney

General

Department of Justice

Carroll Gartin Justice

Building

P.O. Box 220

Jackson, MS 39205

Rosert J. Det Turo

Attorney General of

New Jersey

Office of the Attorney

General

Richard J. Hughes

Justice Complex

25 Market Street

Trenton, NJ 08625

T. Travis MEDLOcK

Attorney General of

South Carolina

Office of the Attorney

General

Rembert Dennis Office

Building

1000 Assembly Street

Columbia, SC 29211

TABLE OF CONTENTS

Page

Interest of the Amici Curiae..................0005: 2

Summary of the Argument .....................45. 6

CCPC CUC CSRS UESds She evosesccccccceceses 7

I. The Tenth Circuit's Decision Complies With This

Court’s Guidelines On Statutory Interpretation 8

II. Requiring An Upstream State Discharger To

Comply With A Downstream State’s Water

Quality Standards Does Not Contravene The

eerie bash bc sae cevccccecocce 17

Ill. The Tenth Circuit’s Decision Preserves The Sov-

ereignty Of Upstream And Downstream States

Rather Than Sacrificing One For The Other... 19

Neen Te ce cee ee ccccceccnececce 22

TABLE OF AUTHORITIES

Page

Cases

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 ........ 8, 9

Edgar v. Mite Corp., 457 U.S. 624 (1982) ............. 20

Homestate Mining Co. v. EPA, 477 F.Supp. 1279

GES GOODE ccc ccndccccccsescecncesuceassaseeeses 16

International Paper Company v. Ouellette, 479 U.S.

Ge See vebnddcnnccesesecasessendeas 11, 13, 15, 21

Maine v. Taylor, 477 U.S. 131 (1986). ............5545- 19

Martin Exploration Management Co. v. FERC, 813

Rg oe Bre ee 8

Northeast Bancorp., Inc. v. Board of Governors of the

Federal Reserve System, 472 U.S. 159 (1985) ........ 17

Robertson v. California, 328 U.S. 440 (1946)........... 19

United States v. Sharpnack, 355 U.S. 286 (1958)....... 18

Western & Southern Life Insurance Co. v. State Board

of Equalization, 451 U.S. 648 (1981)................ 17

STATUTES AND REGULATICNS

Clean Water Act, as amended, 33 U.S.C. 1251-1387

sb cuvadeneescscenndshatansiesekhasseuest passim

tam BGR, FD UAB. THe occ cccscvccccccccevosnsees 9

Section 101(b), 33 U.S.C. 1251(b).............. 9, 10, 18

actions BEE, FO UG. BOGS occ ccccccvccusssccens 10, 11

Bastiom BER, BD UGG, SHED oo cccccccscsccces 10, 17, 18

Section SOc), TS USC. TSIM)... 0... ccccccccccccess 5

TABLE OF AUTHORITIES - Continued

Page

SS i nee 10

Section 402(b)(1)(A), 33 US.C. 1342..........0...... 12

Section 402(b)(5), 33 U.S.C. 1342(b)(5)............ 11, 12

Section 402(d)(2), 33 U.S.C. 1342(d)(2)............ 15, 20

Section 505(h), 33 U.S.C. 1365(h)............. 11, 12, 21

Section 510, 33 U.S.C. 1370 ..............2... 10, 16, 18

MisceLLANEOUS

ee UE hb. donde wu keen éakepecesecaseedscuvues 10

GP Rie BO oon ciccccccccccccccesevesssusee 10

54 Fed. Reg. 39,099 (1989) ....................0000.. 16

J. Nowak, R. Rotunda, and J. Young, Constitu-

SE cn tecposcducouckeansebennnenwes 18

Nos. 90-1262 and 90-1266

¢

In The

Supreme Court of the United States

October Term, 1991

+

STATE OF ARKANSAS, et al.,

Petitioners,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

+

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

STATE OF OKLAHOMA, et al.,

Respondents.

o—

On Writs Of Certiorari To The United States

Court Of Appeals For The Tenth Circuit

.

BRIEF OF THE STATES OF ILLINOIS, TENNESSEE,

ALABAMA, ARIZONA, CALIFORNIA, CONNECTICUT,

FLORIDA, MAINE AND NEW JERSEY

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

s

The States of Illinois, Tennessee, Alabama, Arizona,

California, Connecticut, Florida, Maine and New Jersey

respectfully submit this brief as amici curiae in support of

respondent and urge this Court to affirm the decision by

the United States Court of Appeals for the Tenth Circuit,

in Oklahoma v. EPA, 908 F.2d 595 (10th Cir. 1990) or the

primary issue in this case, the applicability of a down-

stream State’s standards.'

INTEREST OF THE AMICI CURIAE

In the vernacular of this litigation, the Amici States

are both “upstream States” and “downstream States”,

having navigable waters that originate within their

boundaries, waters that enter and pass through their

boundaries, and waters that serve as boundaries. The

Amici States include States which, pursuant to the statute

at issue in this litigation, commonly known as the Clean

Water Act, 33 U.S.C. 1251-1387, have been delegated

authority to issue National Pollutant Discharge Elimina-

tion System (“NPDES”) permits and thereby regulate and

control discharges into their waters. The Amici States also

include States which have not been delegated NPDES

authority. The Amici States have also promulgated water

quality standards approved by the United States Environ-

mental Protection Agency (“U.S. EPA”) for the waters

within their boundaries. Under both State and NPDES

programs, the Amici States regulate municipal dis-

chargers (such as those represented by signatories to the

amici curiae brief of the Association of Metropolitan Sew-

age Agencies, et al.) and industrial dischargers (similar to

the signatories to the amici curiae brief of Champion Inter-

national Corporation, et al.).

1 This brief is submitted on behalf of the Amici States by

their respective Attorneys General. Pursuant to Supreme Court

Rule 37.5, the consent of the parties to the filing of this brief is

not required.

Further, the State of Tennessee is party to an on-

going NPDES permit proceeding before U.S. EPA con-

cerning amicus Champion International Corporation’s

Canton, North Carolina, papermill, located on the Pigeon

River, an interstate stream which flows into Tennessee. In

that proceeding, U.S. EPA has issued an NPDES permit

which it determined to be protective of Tennessee’s water

quality standards. That permit is being challenged by

Champion International Corporation in proceedings

pending before the U.S. EPA Administrator. Champion

International Corporation has also challenged the appli-

cability of Tennessee’s water quality standards in a peti-

tion for review filed in the U.S. Court of Apneals for the

Fourth Circuit. Champion Int'l Corp. v. EPA, No. 91-2302

(4th Cir pet. filed Jan. 3, 1991).

The Amici States are vitally interested in this case

because a reversal of the Tenth Circuit’s decision would

totally undermine efforts by any State possessed of inter-

state waters to establish water quality within its bound-

aries at levels above the federal minimum standards

established pursuant to the Clean Water Act. The stated

goals of the Clean Water Act include establishing a Fed-

eral-State partnership in combating water pollution and

recognizing, preserving and protecting the primary

responsibilities and rights of the States to control and

eliminate water pollution and “to plan the development

and use * * * of land and water resources.” (Section 101).

One of the means for implementing these goals is section

303’s provision for encouraging States to improve their

water quality through the passage of their own water

quality standards.

Under the interpretation of the Clean Water Act

advocated by the Arkansas petitioners and supporting

amici (and rejected by both the U.S. EPA and the Tenth

Circuit), this goal of encouraging individual States to take

the lead in determining what uses would be made of the

waters within their boundaries and in improving water

quality as needed to allow such uses would go

unfulfilled. If an upstream State could authorize a dis-

charge which would exceed a downstream State’s stricter

water quality standards in the latter State’s waters then

the downstream State would have to choose between

eliminating, or severely restricting, any discharges within

its boundaries in order to maintain its selected uses and

enhanced water quality or abandoning those higher uses

and its stricter water quality standards. Such a choice

would inevitably lead to a progressive lowering of State

water quality standards to levels at or near the federally-

mandated minimum standards rather than advancing the

Clean Water Act’s goal of progressively cleaner water as a

result of State initiatives. Such a system would result in a

de facto abdication to the U.S. EPA of each State’s leading

role under the Clean Water Act in determining the uses of

its waters and enhancing its own water quality. States

would upgrade their water quality only when the U.S.

EPA deemed it appropriate and made every State do so in

order to avoid inflicting a disproportionate burden upon

dischargers within their boundaries. Instead of being

equal partners in the effort against water pollution,

downstream States would quickly become “silenced”

partners, no longer willing to invest any further effort or

resources in enhancing water quality.

The Tenth Circuit’s affirmance of U.S. EPA’s deter-

mination that the NPDES permit for a discharge in an

upstream State must be conditioned so as to attain com-

pliance with a downstream State’s stricter water quality

standard, where that stricter water quality standard has

been reviewed by U.S. EPA and approved as an “applica-

ble water quality standard” pursuant to Section 303(c) of

the Clean Water Act, more than adequately balances the

interests of the upstream and the downstream State. It

alone fulfills the goals of the Clean Water Act and makes

upstream and downstream States equal partners.

If upstream dischargers are not enlisted in the effort

to assure compliance with a downstream State’s

enhanced water quality standards through an across-the-

board application of a U.S. EPA-approved water quality

standard, then downstream dischargers will have to

become involved in upstream permit proceedings in

order to protect their current discharge levels. This would

only make the permit proceeding more cumbersome.

Leaving the accommodation of a downstream State’s

water quality interests to the unfettered discretion of the

permitting authority, as the Arkansas petitioners advo-

cate, is fraught with the potential for inciting economic

warfare between States. In one permit great weight may

be given to the downstream State’s desired water uses

(and correlating higher water quality standards) while in

another permit the discharger’s desire to provide as little

treatment as possible may run roughshod over the down-

Stream State’s choice of water uses. Requiring a dis-

charger whose effluent would affect water quality

downstream to comply with the downstream State’s fed-

erally-approved standards assures a more uniform

accommodation of both upstream and downstream inter-.

ests than the crazy quilt resulting from different permit-

ting agencies exercising unbridled discretion on a case-

by-case basis. The haphazard nature of such an unwieldy

system is further aggravated by the fact that this ad hoc

balancing would have to be repeated every five years as

permits are renewed.

The Amici States supporting the Oklahoma respon-

dents do so because of their interest in having a system

that promotes uniformity in balancing upstream and

downstream interests and which encourages rather than

punishes those States which seek to enhance water qual-

ity within their own boundaries. For all these reasons, the

Amici States have a compelling interest in this case and

respectfully urge this Court to affirm the decision of the

Tenth Circuit.

SUMMARY OF THE ARGUMENT

The interpretation of the Clean Water Act reflected in

the Tenth Circuit’s decision represents a proper balancing

of the goals and purposes of the Clean Water Act, princi-

ples of State sovereignty, the requirements of the Com-

merce Clause, and principles of statutory interpretation.

A reversal of that decision would allow one State to

undermine the legislative and policy choices of other

States as well as prompting abdication by the States to the

federal government of their primary responsibilities to

determine the uses of waters within their boundaries and

to protect public health and welfare and the environment.

The Tenth Circuit’s decision reflects a reasonable

interpretation of the Clean Water Act which alone fulfills

the expressed purposes and goals of the statute. Under

that decision an upstream State will regulate the dis-

chargers within its boundaries while still maintaining the

integrity of the downstream State’s desired water uses

and quality.

ARGUMENT

This case turns on the question of whether a dis-

charger in an upstream State may be allowed to under-

mine the entire system of water uses, water quality

standards, and effluent limitations established by a

downstream State and approved by U.S. EPA. Answering

this question primarily involves an issue of statutory

interpretation with implications for State Sovereignty and

. the Commerce Clause. The Amici States support the inter-

pretation of the Clean Water Act employed by U.S. EPA

and the Tenth Circuit because it preserves State sover-

eignty by maintaining each State’s right to establish the

uses and quality of the waters within its boundaries

while retaining each State’s authority to control the dis-

chargers under its jurisdiction. The Amici States submit

this brief in order to strongly urge this Court to affirm the

decision of the Tenth Circuit.

I. THE TENTH CIRCUIT’S DECISION COMPLIES

WITH THIS COURT’S GUIDELINES ON STATU-

TORY INTERPRETATION.

When measured against guidelines established by

this Court on statutory interpretation, it is clear that the

Tenth Circuit’s determination that under the Clean Water

Act, a discharger in an upstream State must demonstrate

compliance with the stricter water quality standards of a

downstream State in order to obtain an NPDES permit is

the proper interpretation of the Clean Water Act. Apply-

ing those same guidelines to the interpretation of the

Clean Water Act pressed by the Arkansas petitioners

demonstrates the inadequacy of their interpretation.

In this case, the U.S. EPA construed the Clean Water

Act to require a discharger in an upstream State whose

effluent will affect water quality in a downstream State to

demonstrate compliance with the stricter water quality

standards of the downstream State in order to obtain an

NPDES permit. Accordingly, the standards for statutory

construction enunciated by this Court in the case of Chev-

ron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984),

apply and were properly employed by the Tenth Circuit -

“Determining the extent of EPA’s authority

under the Clean Water Act is a question of law

that we review de novo. ‘Our first inquiry is

whether “Congress has directly spoken to the

precise question at issue. If the intent of con-

gress is clear that is the end of the matter; for

the Court, as well as the agency, must give effect

to the unambiguously expressed intent of Con-

gress.” ’ Martin Exploration Management Co. v.

FERC, 813 F.2d 1059, 1065 (10th Cir. 1987) (quot-

ing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837,

842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed. 2d 694

9

(1984), rev’d on other grounds, 486 US. 204, 108

S.Ct. 1765, 100 L.Ed.2d 238 (1988)). However,

where the statute is ambiguous, EPA’s construc-

tion, as that of an agency charged with adminis-

tering the statute, is entitled to substantial

deference. Chevron, U.S.A., Inc. v. NRDC, 467

U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d

694 (1984). If EPA’s interpretation of the Clean

Water Act is reasonable, we should not disturb

it unless it ‘is contrary to the policies Congress

sought to implement in enacting the statute.’ 813

F.2d at 1965; see also 467 U.S. at 845, 104 S.Ct. at

2783.” (908 F.2d at 599, 604).

In the proceedings below, both U.S. EPA and the

Oklahoma parties asserted that the inquiry could end

with the first prong of Chevron urging the Clean Water

Act’s manifestation of intent on this issue to be clear. The

Amici States would echo that assertion at this level. The

Tenth Circuit, however, went on to apply the second

prong of Chevron and upheld the U.S. EPA’s interpreta-

tion of the Clean Water Act, finding it to be “reasonable

and consistent with Congress’ purposes in enacting the

CWA” (908 F.2d at 604).

This inquiry must start with the purposes of the

Clean Water Act. Section 101 ciearly and succinctly states

those purposes. In particular, Section 101(b) states that:

“[I]t is the policy of Congress to recognize, pre-

serve, and protect the primary responsibilities

and rights of States to prevent, reduce, and

eliminate pollution, to plan the development

and use (including restoration, preservation,

and enhancement of land and water

resources ** * .”

The uses of water resources are, of course, dependent

upon the quality of that water. Recreational uses, public

10

water supply uses, irrigation uses and other uses all

require water of a certain quality. If the water is not of

that quality, it cannot be used for such purposes. Thus,

without the ability to assure that its waters are of a

certain quality, a State cannot assure the use of that water

for purposes it has chosen. Without that ability the con-

gressional purpose expressed in Section 101(b) will go

unfulfilled.

U.S. EPA’s interpretation of the Clean Water Act and

the affirmation of that interpretation by the Tenth Circuit

are grounded in fulfilling the purposes expressed above

as well as in giving meaning to the language of Sections

301, 303, and 401 of the Clean Water Act. Section 301 of

the Clean Water Act calls for compliance with water

quality standards established by any State. Section 303

provides for the review and approval of State water qual-

ity standards by U.S. EPA and, once approved, the State

water quality standard becomes the “water quality stan-

dard for the applicable waters of that State”. As an

“applicable water quality standard”, the State standard

must be complied within order for a permit to be issued

pursuant to Section 401. Section 401 requires issuance of a

certification by the source State that all requirements of

the Clean Water Act will be met before a federal license

or permit could be issued. These requirements are fleshed

out further by regulations promulgated by U.S. EPA. 40

C.F.R. 122.4 prohibits issuance of a permit unless compli-

ance with the applicable water quality requirements of

“all affected States” is demonstrated. 40 C.F.R.

122.44(d)(4) makes a similar prohibition. Section 510 pre-

cludes any interpretation of the Clean Water Act which

would impair a State’s authority over waters within its

11

boundaries. Finally, Section 505(h) of the Clean Water Act

allows a State to sue to enforce effluent limitations on an out-

of-state discharger necessary to prevent violations of the

State’s water quality standards. If a permit may be issued in

an upstream State which does not protect the downstream

State’s water quality, this provision is meaningless.

When viewed as a whole, all of these provisions

drive home the point that the Clean Water Act was

intended to require an upstream discharger to comply

with a downstream State’s stricter water quality stan-

dards. Such an interpretation is clearly in keeping with

the purposes of the Clean Water Act. Section 101 states

that the objective of the Clean Water Act is “to restore

and maintain the chemical, physical, and biological integ-

rity of the Nation’s Waters” and that the policy of Con-

gress is “to recognize, preserve, and protect the primary

responsibilities and rights of States” to combat water

pollution.

To counter this compelling interpretation of the Clean

Water Act, the Arkansas petitioners single out a solitary

procedural provision of the statute - Subsection 402(b)(5).

That provision requires a State issuing an NPDES permit to

provide an opportunity to submit recommendations on the

permit to those States “whose waters may be affected by the

issuance of the permit”. According to the Arkansas peti-

tioners, this provision places downstream States solely in an

“advisory capacity”, Arkansas petitioner's brief, at 18, citing

International Paper Company v. Ouelette, 479 US. 481, 490-91

(1987), and leaves upstream States free to ignore impacts on

a downstream States’s water quality.

This provision is more readily reconciled with the

language and expressed purposes of the entire Clean

12

Water Act and the substantive requirements of Sections

505(h), 402(b)(1)(A) and 301 (which require compliance

with all “applicable water quality standards”) if Section

402(b)(5) is viewed as a procedural requirement. Thus,

Section 402(b)(5) would provide the affected state with

the means for participating in the determination of how

the mandate of compliance with its water quality stan-

dards will be fulfilled (rather than just being allowed to

comment on whether its water quality should be pro-

tected). This interpretation retains the authority of the

source State to determine the details of how the dis-

charger would be regulated so as to assure downstream

water quality standards would be met while preserving

the downstream State’s right to establish water quality

conditions and uses within its boundaries.

Such an interpretation also avoids undermining the

Clean Water Act’s efforts to establish minimum water

quality standards nationwide. Section 303 authorizes U.S.

EPA to establish water quality standards where those

established by a State are not consistent with the applica-

ble requirements of the Clean Water Act. Once promul-

gated, those standards become the applicable water

quality standards for the affected waters of that State.

Under the Arkansas petitioners’ interpretation of

402(b)(S), a permitting State would be totally free to

disregard such standards in making its permit decision.

Such a result would not be in keeping with the spirit and

purpose of the Clean Water Act but would be unavoid-

able if the Arkansas petitioners’ interpretation of

402(b)(5) is accepted.

In essence, the Arkansas petitioners advocate that

downstream State standards approved pursuant to the

13

Clean Water Act have no bearing on a permit-issuing

State’s establishment of permit terms and conditions, on

U.S. EPA’s review of a State-issued permit, or upon US.

EPA’s issuance of a permit. Thus, the permitting authority

may ignore the downstream State’s standards and may

do so for any reason or no reason at all. If, as the

Arkansas petitioners advocate, the Clean Water Act

allows the upstream State to ignore a downstream State’s

standards, a permit which did so would not be “outside

the guidelines and requirements” of the Clean Water Act,

regardless of the degree of deterioration of water quality

it may cause downstream. Without the applicability of

such standards, the Clean Water Act's goal of uniformity

would be quickly undermined.

The potential for creating such a lack of uniformity

was a primary factor in this Court’s decision to reject the

application of a downstream State’s public nuisance laws

to an upstream State discharger in Ouellette, supra, 479

U.S. at 496. The congressional goal of “ ‘clear and identi-

fiable’ discharge standards”, id. at 496 would not be met

under the Arkansas petitioners’ interpretation. Under

that interpretation, two adjacent facilities with similar

discharges could be subjected to different effluent limits

if the source State elected to protect the downstream

State’s water quality in one permit while opting to forego

such protection in the second permit. Downstream State

discharge standards would no longer be clear and identi-

fiable since they would be subject to change when a new

upstream discharger’s effluent resulted in a deterioration

of the downstream State’s water quality.

The same result would occur in those instances

where a downstream State had adopted water quality

14

standards meeting the minimum standards established by

U.S. EPA rather than stricter standards. Under the

Arkansas petitioners’ interpretation, a source State would

be free to ignore those standards as well. In instances

where the water in the downstream State was at the

minimum standard, the upstream State could authorize a

new discharge which would result in an exceedance of

that standard in the downstream State.

Because there are no limits circumscribing a State's

discretion to ignore downstream State standards under

the interpretation advocated by the Arkansas petitioners,

that interpretation creates the potential for an upstream

State to use discharge limits as a tool to drive business

and industry out of a downstream State and into an

upstream State. Discharge limits may be set at levels

which would force tightening of downstream State dis-

charge limits in order to maintain compliance with the

downstream State’s water quality standards. The less

stringent upstream effluent limits would soon become

very attractive to a downstream State discharger.

If, however, the downstream State’s role is found to

be one of assisting in the determination of how to attain

compliance with its water quality standards, these pitfalls

would be avoided. Under such a construction the permit-

ting State would retain the authority to regulate dis-

chargers within its boundaries while still maintaining the

integrity of the downstream State’s water quality. The

permitting State would determine what effluent limits,

permit conditions or other measures, were necessary to

protect the downstream State’s water quality. This discre-

tion would be circumscribed by the requirement that the

15

discharge must still comply with the downstream State’s

standards.

Since the only water quality standards which would

receive such treatment are those which U.S. EPA had

approved, the Clean Water Act’s goal of providing effi-

ciency and predictability is met. Ouellette, supra, 479 U.S.

at 496. Identifying such U.S. EPA-approved standards

would be easily done. Unlike common-law standards

which were preempted in Ouellette, upstream States could

have input into the setting of the downstream State’s

water quality standards by participation in that State’s

rulemaking process and when they are submitted to US.

EPA for review and approval.

This interpretation would also place U.S. EPA in the

role of arbitrating technical disputes rather than disputes

over conflicting State policy/legislative choices, a role

usually reserved for this Court. As the Arkansas peti-

tioners concede, under Section 402(d)(2) of the Clean

Water Act U.S. EPA could veto a permit if it is “outside

the guidelines and requirements” of the Clean Water Act.

Thus, instead of being forced to determine whether the

upstream State’s reasons for ignoring a downstream

State’s water quality standards were sufficiently consis-

tent with the Clean Water Act’s “guidelines and require-

ments” to pass muster (without any standards to guide

such a determination) U.S. EPA would only be required

to determine whether the downstream State’s standards

are being met. If they are not met, the permit would be

“outside the guidelines and requirements” of the Clean

Water Act.

16

If U.S. EPA, as the permitting or reviewing agency,

could authorize a permit which disregarded a down-

stream State’s water quality standards, U.S. EPA would

be doing indirectly what it has said it cannot do directly -

reject a State standard as too stringent. As the Arkansas

petitioners have noted, brief p. 25, U.S. EPA has inter-

preted the “savings clause” of Section 510 of the Clean

Water Act to preclude it from disapproving a State’s

—adoption of more stringent water quality standards and

adopting a less stringent standard. See, e.g., 54 Fed. Reg.

39,099 (1989) and Homestake Mining Co. v. EPA, 477

F.Supp. 1279, 1284 (D.S.D. 1979). Nonetheless, if U.S. EPA

decides not to require compliance by an upstream dis-

charger with a downstream State’s stricter water quality

standard, it will, in essence, be overruling the down-

stream State’s stricter standard. Such a decision will

either lead to the revocation of the stricter standard or the

creation of an area where the stricter standard is not met.

Such a result is clearly contrary to the Clean Water Act.

Judicial review at the State and federal levels would

be enhanced if a court’s inquiry focused on whether

permit conditions adequately protected water quality

than if the inquiry dealt with whether the appropriate

choice was made between competing State policy /legisla-

tive choices. Evidence is much easier to adduce and

review on technical issues than on policy issues.

In this light, it is clear that the Tenth Circuit’s and

U.S. EPA’s interpretation of the Clean Water Act was

reasonable and consistent with the purposes and intent of

that statute. This determination is reinforced even further

when considerations of State sovereignty and the Com-

merce Clause are factored in. As the water quality

17

received from the upstream State deteriorates, dis-

chargers in the downstream State would be subjected to

increasingly stringent standards in order to achieve the

water quality desired by the downstream State. As efflu-

ent limitations became more stringent, the cost of compli-

ance increases as well. There may be instances where the

only way to maintain the desired downstream water

quality will be to entirely eliminate discharges in the

downstream State. When faced with such an impact,

States may well relax their water quality standards in

order to avoid that impact. That result is contrary to the

goals and purposes of the Clean Water Act.

Il. REQUIRING AN UPSTREAM STATE DIS-

CHARGER TO COMPLY WITH A DOWNSTREAM

STATE’S WATER QUALITY STANDARDS DOES

NOT CONTRAVENE THE COMMERCE CLAUSE.

Because Congress explicitly called upon the States to

develop their own stricter water quality standards and to

submit them for U.S. EPA review and approval, requiring

upstream States to assure that their dischargers will not

violate those standards does not offend the Commerce

Clause. Accordingly, any Commerce Clause “implica-

tions” cannot serve as a basis for overruling the Tenth

Circuit.

“When Congress so chooses, State actions which it

plainly authorizes are invulnerable to constitutional

attack under the Commerce Clause.” Northeast Bancorp,

Inc. v. Board of Governors of the Federal Reserve System, 472

U.S. 159, 174 (1985). See also Western & Southern Life

Insurance Co. v. State Board of Equalization, 451 U.S. 648,

653-654 (1981). In this case, Section 303 of the Clean Water

18

Act plainly preserved the authority of each State to pro-

mulgate its own water quality standards for the waters

within its boundaries. Section 303 and other provisions of

the Clean Water Act, including Sections 101(b) and 510,

encourage States to enact water quality standards stricter

than of the minimum requirements of the Clean Water

Act in order to fulfill the statutes stated objective of

restoring and maintaining the integrity of the nation’s

waters. The stricter State standards at issue in this case

are not merely the result of a reservation of States’ rights.

Instead, there is an express authorization of stricter State

water quality standards which precludes any assertion

that the Commerce Clause preempts those standards and

forecloses their application against out-of-state sources.

Furthermore, it is a matter of hornbook law that

“Congress can enact legislation prescribing that the fed-

eral pollution standard in each state shall be the same as

the State standard.” J. Nowak, R. Rotunda, and J. Young,

Constitutional Law, at 249 (1978). The Clean Water Act’s

designation of a U.S. EPA-approved State water quality

standard as the “applicable water quality standard” rep-

resents a congressional incorporation by reference of a

State standard as the standard that must be complied

with for the waters within that State. See also United

States v. Sharpnack, 355 U.S. 286, 294 (1958). In that case

the Court affirmed Congress’ adoption of State criminal

Statutes as the standard for federal enclaves.

Finally,

“The commerce clause is not a guaranty or the

right to import into a state whatever one may

19

please, absent a prohibition of Congress, regard-

less of the effects of the importation upon the

local community.”

Robertson v. California, 328 U.S. 440, 458 (1946). See also,

Maine v. Taylor, 477 U.S. 131, 148 fn. 19 (1986). A down-

stream State’s water quality standards reflect its deter-

mination of the amount of wastes that can be dumped

into its waters without curtailing its selected uses. Fur-

thermore, the Oklahoma regulations at issue herein were

promulgated in response to the congressional call for

stricter State standards and approved by U.S. EPA.

Requiring an out-of-state discharger to comply with those

standards does not offend the Commerce Clause.

Ill. THE TENTH CIRCUIT’S DECISION PRESERVES

THE SOVEREIGNTY OF UPSTREAM AND

DOWNSTREAM STATES RATHER THAN SACRI-

FICING ONE FOR THE OTHER.

The Clean Water Act’s requirement that an upstream

State discharger comply with a downstream State’s water

quality standards represents a mechanism for resolving

concerns of neighboring States rather than a mechanism

by which one State’s policy choices can undercut those of

another. Adopting the interpretation of the Clean Water

Act put forward by the Arkansas petitioners would allow

one State to undermine another State’s policy and, in

essence, to determine how entities in another State would

be regulated.

As the Tenth Circuit noted (908 F.2d at 602), if an

upstream State discharger is not obligated to comply with

a downstream State’s water quality standards, the

upstream State will dictate what the water quality and

20

water uses will actually be in the downstream State.

Thus, there is only one interpretation of the Clean Water

Act offered in this case that would result in one State’s

policy (as expressed in terms of water quality) being

imposed upon another State and that is the interpretation

proffered by the Arkansas petitioners. If the permitting

authority in an upstream State need not assure that a

discharger must comply with a downstream State’s water

quality standard then the downstream State must impose

more stringent effluent limitations on the dischargers

within its boundaries in order to preserve its desired

water quality and water uses. Thus, the downstream State

will have water quality and water uses determined by the

upstream State.

If, however, the discharger in the upstream State

must comply with the downstream State’s stricter water

quality standards, the upstream State’s water quality will

be at least as good as that State’s standards and the

downstream State’s water quality and water uses will be

preserved. This result would also be in keeping with the

purpose and objective of the Clean Water Act to enhance

water quality throughout the nation.

This interpretation of the Clean Water Act would not

offend constitutional principles by allowing one State to

“directly” control activities in another State. Edgar v. Mite

Corp., 457 U.S. 624, 642-43 (1982). The permitting agency

(either U.S. EPA or the source State) would be the one

who would regulate the discharger by identifying and

imposing those permit conditions necessary to protect

downstream State water quality. The downstream State’s

role would be similar to that of the permit applicant

21

during the permit process - a party to the permit pro-

ceeding with a vested interest at stake and to whom a

right of appeal is accorded. Unlike the permit applicant,

however, the downstream State’s interest would be an

entitlement which had to be protected before the permit

could issue. In the case of a downstream State, the appeal

is made to the U.S. EPA pursuant to Section 402(d) of the

Clean Water Act rather than to the permitting State’s

appellate tribunal. Such an interpretation maintains the

“subordinate positions” of downstream States as

described by this Court in dicta in Ouellette, supra, 479

U.S. at 491, while still according the protection to the

downstream State’s water quality standards established

by Congress. This interpretation is further reinforced by

Section 505(h) of the Clean Water Act. Pursuant to Section

505(h) a downstream State could bring suit against the

administrator to enforce NPDES permit effluent limits

when its water standards were violated. This authority

would be meaningless if a permit could be issued with

effluent limits that would result in water quality viola-

tions.

If the upstream discharger can disregard the down-

stream State’s water quality standards then the down-

stream State is placed between Scylla and Charybdis -

between lowering its water quality standards or driving

its dischargers out of State with drastic effluent limita-

tions. When faced with such a choice, States will abdicate

to the federal government their primary responsibilities

and rights to reduce and eliminate pollution and to deter-

mine water quality and water uses Within their bound-

aries. Because any State’s voluntary efforts to enhance

water quality would be undercut by an upstream State

22

with lower water quality, each State would wait for U.S.

EPA to establish new, universal water quality standards.

Such a result is clearly contrary to the purposes and

objectives of the Clean Water Act and principles of State

sovereignty.

In this light, it is clear that only reversal of the Tenth

Circuit’s decision will have adverse implications on State

sovereignty. These implications strongly counsel against

accepting the Arkansas petitioners’ interpretation of the

Clean Water Act and in favor of affirming the Tenth

Circuit.

==@

CONCLUSION

For the foregoing reasons, the Amici States

respectfully urge the Court to affirm the decision of the

Tenth Circuit Court of Appeals respecting downstream

States’ standards and preserving the proper balance

between upstream and downstream States.

Respectfully submitted,

CHaries W. Burson RoLanp W. Burris

Attorney General and Attorney General

Reporter ROSALYN KAPLAN

JOHN KNox Wa.kup Solicitor General

Solicitor General James L. Morcan

Micuaet D. PEearicen Assistant Attorney General

Deputy Attorney General Counsel of Record

450 James Robertson 500 South Second Street

Parkway Springfield, Illinois 62706

Nashville, Tennessee (217) 782-9030

37243-0485

July 22, 1991

Jimmy Evans

Attorney General of

Alabama

Office of the Attorney

General

State House

11 South Union Street

Montgomery, AL 36130

Grant Woops

Attorney General of

Arizona

Office of the Attorney

General

1275 West Washington

Phoenix, AZ 85007

Danie. E. LUNGREN

Attorney General of

California

Office of the Attorney

General

Suite 511

1515 K Street

Sacramento, CA 95814

RICHARD BLUMENTHAL

Attorney General of

Connecticut

Office of the Attorney

General

55 Elm Street

Hartford, CT 06106

Cuaries M. Oser-y III

Attorney General of

Delaware

Office of the Attorney

General

8th Floor

820 North French Street

Wilmington, DE 19801

23

Rosert A. BUTTERWORTH

Attorney General of Florida

Office of the Attorney

General

Department of Legal

Affairs

The Capitol

Tallahassee, FL 32399-1050

MicuHaet E. CARPENTER

Attorney General

Jon H. Epwarps

Assistant Attorney

General

State House Station 6

Augusta, ME 04333

(207) 289-3661

FRANK J. KELLEY

Attorney General of

Michigan

Office of the Attorney

General

Law Building

525 West Ottawa

P.O. Box 30212

Lansing, MI 48909

Mike Moore

Attorney General of

Mississippi

Office of the Attorney

General

Department of Justice

Carroll Gartin Justice

Building

P.O. Box 220

Jackson, MS 39205

Rosert J. Det Turo

Attorney Genera! of

New Jersey

Office of the Attorney

General

Richard J. Hughes

Justice Complex

25 Market Street

Trenton, Nj 08625

T. Travis MEDLOcK

Attorney General of

South Carolina

Office of the Attorney

General

Rembert Dennis Office

Building

1000 Assembly Street

Columbia, SC 29211

24