# Amicus Curiae Brief — Arkansas v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 946 ## Text ee. odes wna wh Bupreme Court, US. In THe Supreme Court of the Anited Mtatesor we ccm OcTornerR Term, 1990 STATE OF AKKANSAS, et al., Petitioners, Vv. STATE OF OKLAHOMA, ef al, Respondenta. ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v, Tue Strate of OKLAHOMA, et al, On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit sss isda BRIEF AMICI CURIAE OF CHAMPION INTERNATIONAL CORPORATION, AMERICAN PAPER INSTITUTE, NATIONAL MicHAeL K. GLENN J Jarvezy MCNEALEY Micha. G. Down (Conanael of Record) Porter, Wuorr, Momus & Janet J. Hewny AnTHUR PouTen, Wucrr, Mowus & = 2th wr NW AKTHUn n, DC. 206 41 South h Street aon tenes Columbus, Otio 43215 Counsel for (614) 227-2000 Internatvmal Corporation, American Paper In stitute, National Forest Products Association, American Iron and Steel Inatitute, American Mining Congress and National Association of Manufacturers May 41, 1991 {Additional Counsel Listed on Inside Front Cover] PRESS OF BYRON & ADAMS, WASHINGTON, 0.0. Gen) 47-4008 a TABLE OF CONTENTS INTERESTS OF AMICI CURIAE ........:cccccecseeseeeeeeeees SUMMARY OF ARGUMENT ..........ccccccccceeeeeeeereeeeeees I. Il. The Act Requires That A Source Comply With — Federal Standards and Source State Standards ................ccccccececeeeees The Act Does Not Require That “Affected State” Standards Be Met By An Out-of-State A. Sections 301(b1\C), 303(c), and 510 Do Not Mandate Compliance With “Affected B. Federal Approval of a § 303(c) “Affected State” Standard Does Not Make It A “Federal Standard” ...............c.cccceceeeeeeees The Tenth Circuit’s Decision Gives Preemi- nent Status To “Affected State’’ Standards, Contrary To This Court’s Construction Of The Act In Owellette ........cccccccccceceseceeeeeeeeeees A. Compliance With “Affected State’’ Stand- ards Cannot Rationally Be Mandatory When EPA Is The Permit-Issuer, But Discretio When The Source State Is The Permit- SE B. As This Court Found In Ovellette, The Act’s “Savi Clause” Does Not Pre- serve Rights Under The Law Of An “‘Af- re The Tenth Circuit’s Ruling Lacks The Nec- essary Support Of A Clear And Unmistak- able Statutory Authorization For An “Affected State’ To Regulate Commerce Oc- curring Outside Its Borders .................:::00++ 18 19 21 22 V. a Tenth Circuit’ : .<— a Of ew Discharges o Waters Not Meeting Water Quality Standards Lacks A Proper TABLE OF AUTHORITIES Page CASES ee died “iled Je v. EPA, No. 91-2302 (4th Cir. an. 3, 1991) sdbenemnsmmsnssinnemieenmens 3 H.P. rey & Sons, Inc. v. DuMond, 336 U.S. 525 EY didisininieiseisitieinniiatinintedtnibaneiitidiemanatinennnemsnsens 24 Hughes v. Oklahoma, 441 U.S. 322 (1979) ............. 24 IUinois v. City of Milwaukee, 731 F.2d 403 (7th Cir. 1984) cert. denied sub nom., Scott v. City of Hammond, 469 U.S. 1196 (1985) .................... 22 International Paper Co. v. Ouellette, 479 U.S. 481 ITTY diunticietentsesscsnndiinetgnteemnammenipennsmenmnesee passim City of Milwaukee v. Illinois, 451 U.S. 304 TTI slides ieeliciatennntencciadlidnintegiaininimatesmeresses 21 Northeast Bancorp, Inc. v. Board of Governors, 472 U.S. 159 (1985) ..............c000000 d siieisleaetinieaeiedanes 23 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) .. 24 South-Central Timber Development, Inc. v. Wun- niche, 467 U.S. 82 (1984) ........cccccccccccsssscsceceees 23 Sporhase v. Nebraska, 458 U.S. 941 (1982) ........... 23 State v. Champion Int’l Corp., 709 S.W.2d 569 REESE enero are eee eee 21 State of Oklahoma v. EPA, 908 F.2d 595 (10th ee 3,16,19,26 Tennessee v. Champion Int'l Corp., cert. nted iT ee vacated and renanid 479 U.S. 1061 - STATUTES AND REGULATIONS Clean Water Act, as amended, 33 U.S.C. §§ 1251- SD GD cnccnsnsccunsncneeasenetnciaenccsnecscesasensenesnesse 2 § 101(a), 33 U.S.C. § 1251 (a) ................eeeeeeees 9 § 101(b), 33 U.S.C. § 1251(b) «0.2.0... eeeeseeeees 10 een 10 § 301(b), 33 U.S.C. § 13110D) 200... eee eeeeeeeeees 14 iv Table of Authorities Continued Page § 301(bX1XC), 33 U.S.C. § 1311(bX1XC) ....... 12-16,24 I i iecsecsnretennstnsinncenet 10,16 I Oe I, RO i ccctneererentepnnnins 15,17 § 303(c), 33 U.S.C. § 1313(C) ........ccccccesesereees 10,14-16 § 303(cK1), U.S.C. § 131B(CM1) ........ccccceeeereeeeees 10 § 303(c2), U.S.C. § 1313(CK2) ........ecececeeeceeeeees 10 § 303(cX3), U.S.C. § 1313(CNB) ..........cececeeeeees 8,11,18 § 303(c4), U.S.C. § 1313(CM4) .....ecececeseceeeeeeees 11,16 ee 10 OE, GP , CII cececcececcstcccccscesssnsssosecs 10 aa ae 10 ER 15 § 401(aX(1), 33 U.S.C. § 1341(aX{1) ............0e000 12 § 401(aX2), 33 U.S.C. § 1341(aX(2) ...........0-0-0-. passim § 401(d), 33 U.S.C. § 1841(d) .........cccececeseceeeeees 12 vO : * | eaaeeeee 3 § 402(a), 33 U.S.C. § 1342(a) .........ccccceceseseees 11,12,20 § 402(aX3), 33 U.S.C. § 1342(aX3) 0.0... 12,20 § 402(b), 33 U.S.C. § 1342(b) .........cececececeseceeees 10-12 § 402(bX5), 33 U.S.C. § 1342(b)(5) ........-.ececeeee. 13 § 402(d\2), 33 U.S.C. § 1342(d\2) ............. 8,13,18-20 § 505(e), 33 U.S.C. § 1365(€) ........ecececeseseseeeeees 21 GS ae 13-16,21 RE eee ag SEC ae eae 7 EEE aceon a one 7 Table of Authorities Continued Page MISCELLANEOUS Commerce Clause, Constitution of the United States, | ATONE 11,22-24, 26, 27 Revision of Water ity Standards and Imple- mentation Plans Under Sec. 303 of the Federal Water Pollution Control Act, Op. EPA General Counsel, No. 58 (March 29, 1977) .................. 16,17 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 TTT initietshibiteisdnsirindisiercadianimuneamieetetesensenitenemasien 10 wee Se oe of 1965, Pub. L. No. 89-234, 79 Stat. RES _ Eee eee 10,16 Zener, ““The Federal Law of Water Pollution Con- trol,”’ Federal Enviornmental Law (E.L. Dol- gin and T.G.P. Guilbert eds. 1974) 715 ......... 10 IN THE Supreme Court of the Anited States OCTOBER TERM, 1990 Nos. 90-1262 and 90-1266 STATE OF ARKANSAS, et al., Petitioners, Vv. STATE OF OKLAHOMA, et al., Respondents. ENVIRONMENTAL PROTECTION AGENCY, Petitioner, Vv. THE STATE OF OKLAHOMA, et al., Respondents. BRIEF AMICI CURIAE OF CHAMPION INTERNATIONAL CORPORATION, AMERICAN PAPER INSTITUTE, NATIONAL FOREST PRODUCTS ASSOCIATION, AMERICAN IRON AND STEEL INSTITUTE, AMERICAN MINING CONGRESS, THE FERTILIZER INSTITUTE, CHEMICAL MANUFACTURERS ASSOCIATION, NATIONAL ASSOCIATION OF MANUFACTURERS, ASSOCIATED INDUSTRIES OF ARKANSAS, ARKANSAS FEDERATION OF AIR AND WATER USERS, INC., AND ARKANSAS POULTRY FEDERATION IN SUPPORT OF PETITIONERS Champion International Corporation, the American Pa- per Institute, the National Forest Products Association, Institute, the Chemical Man- Association, the National Association of Manufacturers, the Associated Industries of Arkansas, the Arkansas Federation of Air and Water Users, Inc., and Industry amici represent manufacturing, pro- A , and other whose interests are by the lower court’s rulings interpreting the Water Act. The American Paper Institute is a non-profit trade as- sociation whose members include companies which account formance with the Clean Water Act, 33 U.S.C. §§ 1251- 1387 (1988).* Champion International Corporation (“Champion”) is a member of the American Paper Institute and one of the r f FE. : if i | z : ieee ray! f20¢ lk i t Hi +3] ; : E : i i Wve Hi if inde He Zz é a a it iia i at aE ie amt fase Ri He He Fae ih pide 4 Tennessee and Alabama have contended that their differ. ing or more state water quality standards mus: 's out-of-state discharges. These two rulings are wae tae enpeesmsates Cote Water fat ; oh Te Hay TE i : dee . HOH AH tte i Hi HEE i ell ; | fini iid i tel B i Hae ie Pill | i ! iF : His THe rie ; HEE Ht it , HE ie int uit i Hi i TE + Li i is tH , Hn tl teil a tet iiss bay ial bee ¥ ii- TH 3 yagi! bit | bi 3 - a < tl Hae - = Ht : i ine il f ie it Hie i Ht. 9 Tenth Circuit ignored this Court’s teaching in Interna- tional Paper Co. v. Ouellette, 479 U.S. 481 (1987) (“Oue- lette”’), spelling out the ‘subordinate’ status of a downstream state’s water quality standards and finding that any exceptional EPA decision to base an upstream state discharge limitation on a downstream state standard is authorized only when EPA determines that the failure to do so would have an “undue impact on interstate waters” in the downstream state. The Tenth Circuit’s second unprecedented ruling, that no new or increased discharge may be permitted into (or upstream from) a waterway not currently meeting appli- cable water quality standards, is based on an equally flawed reading of the Act. Although stringent conditions are re- quired in permitting new or increased discharges, the stat- ute has never been read to forbid categorically any new or increased discharges to such waters. Even assuming, for example, that a downstream state’s “non-degradation”’ standard were to apply automatically to an out-of-state source (which it does not), the Act nowhere prohibits ab- solutely any new or increased discharge to a waterway not currently meeting that water quality standard. ARGUMENT I. The Act Requires That A Source Comply With Ap- plicable Federal Standards and Source State Stand- ards A brief statement of the statutory context of the two issues discussed here may be helpful. The succinctly-stated objective of the Clean Water Act is “to restore and main- tain the chemical, physical, and biological integrity of the Nation’s waters.”” CWA § 101(a). The means by which the Act’s stated objective is to be achieved are set forth in a series of interrelated provisions for federally-established, technology-based effluent limitations and other national standards, for state-established ambient (in-stream) water 10 quality standards, and for case-by-case permitting of in- dividual proposed discharges. The establishment of federal technology-based effluent limitations and other national standards—none of which is at issue in this case—is solely within the province of the EPA Administrator. CWA §§ 301, 302, 304, 306, and 307. With respect to state-by-state establishment of in-stream water quality standards, however—such as the Oklahoma “non-degradation” standard at issue here—the Act pro- vides a more complex and flexible scheme.* The Act directs the Governor of each state to adopt in- stream water quality standards for all waters of the United States within each individual state (both intrastate and interstate waters) and to submit such state standards to the EPA Administrator. CWA §§ 303(cX1) and (2). State standards are to be based, at least in part, on EPA- recommended ambient water quality “criteria” and other grams and mediating the application and enforcement of state standards with respect to interstate waters. See Zener, “The Federal Law of Water Pollution Control,” Federal Environmental Law (E.L. Dolgin and T.G.P. Guilbert eds. 1974) 715. 11 requirements of the Act for the state-designated uses, the state standard thereupon becomes “the water quality standard for the applicable waters of that State.”* CWA § 303(cX3). The term “applicable waters of that State” necessarily refers to waters within the state. Traditional notions of state sovereignty and federalism, as well as the Commerce Clause of the Constitution of the United States, Art. I, §8, do not ordinarily allow the extra-territorial application of a state’s individual water quality standards to sources located outside that state’s jurisdictional bound- aries. See pp. 22-25, infra. Federal effluent limitations and other federally-promul- gated standards, together with source state water quality standards, provide the foundation for case-by-case permit- ting of discharges of industrial, municipal, and other ef- fluents to waters of the United States. National discharge permits may be issued by EPA under § 402(a) of the Act, or by the source state in the case in some 39 states which have §402(b) EPA-approved state NPDES permit pro- grams. Section 402(a) of the Act authorizes the EPA Admin- istrator to issue NPDES permits under condition that the Act’s “applicable requirements” will be met, including any more stringent permitting standards under state law in i , i 12 accordance with § 30)(bX1XC).% See pp. 14-15, infra. Whenever EPA is the permit-issuer, as here, the source state also must certify to EPA that the proposed discharge complies with all relevant federally-promulgated effluent limitations and standards, as well as the source state’s water quality standards and any other more stringent source state requirements." CWA §§ 401(aX(1) and (d). If a particular proposed discharge ‘“‘may affect” the waters of another state, EPA must notify the potentially affected downstream state of the permit application and provide that state an opportunity to “object” and request an EPA hearing.” Based upon any “recommendations” of an affected state, EPA’s own evaluation, and any addi- tional evidence submitted, EPA is then required to con- dition the permit “as may be necessary” to insure compliance with “applicable water quality requirements.”’ CWA § 401(aX2). The situation thus can arise for a permit issued by EPA under § 402(a), as presented here, wherein EPA deter- mines and a source state certifies that a proposed dis- charge will comply with all applicable federal and source state requirements, but a downstream state believes its water quality “will be affected’’ and that its additional or more stringent requirements should be made “applicable’’ by EPA. In this situation, § 401(aX2) of the Act imposes upon EPA a duty to consider the downstream state’s ‘‘ob- Section 402(aX3) provides that an EPA-issued permit ‘‘shall be sub- as SS Se ee, OS ee © aay © [§ 402(b)}] State permit program and permits issued thereunder . " “The CWA therefore establishes a regulatory ‘partnership’ a the Federal Government and the source State.” Ouellette, 479 U.S. at 490. ‘While source States have a strong voice in regulating their own pollution, the CWA contemplates a much lesser role for States that share an interstate waterway with the source (the affected States).’’ Ouellette, 479 U.S. at 490. 13 jection” or “recommendation” and grants EPA the dis- cretion to determine what permit conditions are “necessary.’" Section 401(aX2) does not define, however, what requirements are ‘“‘necessary” to protect downstream state water quality, thus leaving for EPA to determine the “applicable water quality requirements” on a case-by- case basis. II. The Act Does Not Require That “Affected State’’ Standards Be Met By An Out-of-State Source In arguments presented to the court below, EPA and the State of Oklahoma relied heavily on § 301(bX1\C) of the Act to discern the meaning of “applicable water quality requirements” pertinent to this case. This provision states that, in order to carry out the Act’s objective, there shall be achieved, by July 1977, “any more stringent limitation (than EPA-promulgated effluent limitations] ... estab- lished pursuant to any State law or regulations (under authority preserved by section 1370 [§ 510 of the Act]) ... or required to implement any applicable water quality standard established pursuant to this [Act].”” According to “The Act also clearly grants EPA the discretion to protect down- state, instead of EPA, is the permit-issuer and the source state must notify other states of potential downstream state impacts. In such a case, pursuant to §§ 402(b\5) and 402(d\2), when a downstream state complains that its water quality will be affected, EPA has a duty to evaluate any “recommendation” of the downstream state and the rea- sons why the source state declined to accept (if such is the case) the downstream state recommendations. The EPA Administrator then may or may not, in his discretion, object to the proposed permit and preclude its issuance by the source state. In Ouellette, this Court characterized EPA’s discretion in terms of an EPA determination of whether the proposed upstream state discharge would have an “undue impact’’ on interstate waters. 479 U.S. at 491. Thus, when the source state, instead of EPA, is the permit-issuer—which is how the vast majority of Clean Water Act permits are issued in the 39 states with approved NPDES permit programs—EPA obviously is not required to insure compliance with the water quality standards of affected downstream states. 14 the Tenth Circuit, if any state (including, but not neces- sarily limited to, the source state and any downstream state) has adopted, pursuant to § 510, an effluent limitation more stringent than the appropriate EPA-promulgated ef- fluent limitation, or if any state has determined that a more stringent limitation is required to implement a water quality standard which that state has adopted pursuant to § 303(c), then EPA must treat any such state’s more strin- gent limitation as an “applicable water quality require- ment” under § 401(aX2). This interpretation of the Act will not withstand scrutiny. A. Sections 301(b)(1)(C), 303(c), and 510 Do Not Man- date Compliance With “‘Affected State’’ Standards An important statutory construction issue is whether, in the context of a particular proposed permit, the Tenth Circuit correctly interpreted the phrases “any State law or regulations” and ‘“‘any applicable water quality stand- ard” in § 301(bX1XC) to refer, literally, to the laws, reg- ulations, and standards of any and all states (source states, downstream states, and all other states), or whether they are intended to require compliance only with the more stringent laws or regulations of the kind preserved under §510 for the source state to administer and the source state’s more stringent water quality standards.’ Industry amici submit that, when read in the context of a particular permit application, §§ 301(bX1\(C), 303(c), and 510 have nothing to do with the issue of whether a downstream state’s requirements (much less any other state’s requirements) must be met. The title of § 301(b)— “ If the lower court’s literal “any State’’ interpretation is correct, it could produce the absurd result that a discharge located in New York might be subjected to a more stringent limitation established by the State of California since § 301(bX1\C), by its own terms, would not require for such a more stringent state limitation to be “applicable’’ that it exist in a state which is even “affected’’ by the proposed dis- ~*~ 15 “Timetable for achievement of objectives’’—indicates that this section has to do with the schedule for achieving the Act’s various standards and requirements, rather than de- fining or creating any “applicable water quality require- ments’ of the Act. Only by reference to §§ 303 and 510 does § 301(bX1XC) incorporate the right of a state to es- tablish—for application within its own boundaries—certain standards or other requirements which are more stringent than those mandated by the Clean Water Act. Signifi- cantly, § 301(bX1\C) does not incorporate by reference any “requirements” of an affected downstream state under § 401(aX2) of the Act. Therefore, § 301(bX1\C) can only reasonably be interpreted to refer to more stringent re- quirements of the kind preserved under § 510 for source state administration and more stringent § 303(c) source state water quality standards (which, it is significant to note, are the only state law requirements subject to a § 401 compliance certification). In sum, there is nothing in §§ 301(bX1\C), 303(c), or 510 to suggest that Congress intended these provisions to sub- ject an out-of-state source to the differing or more strin- gent requirements which a downstream state (or any other state) might choose to adopt and apply to its own resident sources. Such an expansive interpretation of §§ 301(bX1C), 303(c), and 510 would nullify the express provisions of the Act which grant EPA discretionary authority, under the exceptional circumstance of an interstate water quality dis- pute, to consider the standards of a downstream state and tailor more stringent permit conditions as “‘necessary’’ to protect against an “undue impact” on downstream state water qualilty.'® “ Although the issue is not necessary to a decision in the present case, industry amici believe that, in order for EPA to give “federal effect” to a downstream state’s water quality standards in the context of resolving an interstate water quality dispute, EPA must comply with procedural requirements akin to those associated with ‘‘federal stand- 16 ap MERTEN Hees at a Pe ty iF in: 1. i rit ial ifs! Huth f A PHG ue af bee PY iil 1 < 33 RHHIMEEHTLARE ALE Ge in 17 ij HE nk aif H | Hi HAH AH ae Hf id ah at il i if aH ee : sit Hat iF aH I: ea tl a F i ; i | at Hit inte in Forme tee beyond its borders.” 479 U.S. at (emphasis In the case of a permit disapprove the permit if EPA determines that the proposed “will have an undue impact on interstate waters. US. at go <38 = 2 field ie - HITE ee, fiettis at RAE 1: Heat T : # af i iF ih itll ne it knits carly at i Hl it if Hit int es! ue finial = ary all uf 333 111 Le set hoa Hy ge : ' 138 He : pate si ri iH Hh i Fe a8 had i ii Hi nit Hn i ait) i A Lae felis ell My ij Uh el HUH ay iH ei he foe divateccbas 2 aS Heelys Aut is ” rly hae ne TAB. ii hg HF till HE ee siaeee yt batiitiegt ae Fatt Tih iu Lit tal i Hh Hl tll ii linlini F ee ee 23 matter of Commerce Clause law, if not proper statutory construction—would be if, as an element the Act’s com- prehensive scheme of federal regulation, Congress had ez- pressly and unmistakably granted downstream states the power to control out-of-state discharges, and thus interfere with out-of-state commercial activities in the manner which the Tenth Circuit’s ruling clearly allows. In short, absent the finding of such an express delegation by Congress, the lower court’s decision violates well-established Commerce Clause principles. State-of-the-art industrial water usage and treatment practices are such that virtually every industrial plant of every size and kind must discharge at least some waste- water effluent after it is created to meet the requirements of the Clean Water Act. The power to regulate or prohibit industrial discharges, therefore, is the power to regulate or prohibit industrial activity itself. Oklahoma’s adoption of a “‘non-degradation”’ standard in the Illinois River at the Arkansas-Oklahoma state line, as applied by the Tenth Circuit, represents an assertion of downstream state power to prohibit upstream state dis- Oklahoma in this case, the power unilaterally to interfere with or prohibit commerce in another state.” Such an express downstream state power to burden in- terstate commerce cannot reasonably be said to exist on ™ Congress is free to authorize state-law intrusions upon interstate commerce, but any such delegation of Congress’ exclusive authority over interstate commerce must be “expressly stated.’’ Sporhase v. Ne- braska, 458 U.S. 941, 960 (1982). Courts have been hesitant to find quiring that such an intent be “unmistakably clear.” South-Central Tim- ber Development, Inc. v. Wunnicke, 467 U.S. 82, 92 (1984); accord Northeast Bancorp, Inc. v. Board of Governors, 472 U.S. 159, 174 (1985) (requiring “‘plain authorization’ by Congress). 24 the face of the statute, for all the reasons previously dis- cussed. It is evident from the lower court’s own extensive and somewhat strained analysis of the Act that the Tenth Circuit also could not find in the statute any plain or unmistakable delegation of such power to downstream states.™ Nor is it sufficient for a court to infer such power for example, a yp a if : : : it ‘ a it Hi ! 3 { if te r i Te | itt BRA, Ue all if ! | | é : i : E eS ‘ Tou the broad federal preemption basis of this Court’s decision in Ouellette. - ot ee Oe ee ee Oe Ve ee - 25 When Congress has spoken clearly and unmistakably to the contrary by providing an exclusive, case-by-case, EPA forum for resolving interstate water quality disputes, no court should be allowed to grant a downstream state the power to interfere unilaterally with permitting decisions in the source state. EPA’s role in issuing permits for discharges to inter- state waterways, and EPA’s role in resolving water quality disputes concerning discharges to interstate waterways, was not intended by Congress to be reduced to a me- chanical process of simply applying, whenever they are different or more stringent, the EPA-approved standards of affected downstream states. There is thus no basis for the lower court’s conclusion that downstream state stand- ards occupy a position of preeminence (or even occupy an equivalent status with source state standards) in the fed- eral regulatory framework. V. The Tenth Circuit’s Absolute Prohibition Of New Discharges To Waters Not Meeting Water Quality Standards Lacks A Proper Statutory Basis Compounding the error of giving preeminent, mandatory compliance status to affected downstream state standards, the Tenth Circuit also misread the Act as absolutely pro- hibiting any new or increased discharges to a waterway which is not currently meeting the downstream state’s (or the source state’s) water quality standards. While it is true that a stated “goal” of the Act is the elimination of discharges of pollutants, it is equally un- deniable that the specific substantive provisions of the Act do not require such elimination and that the Act allows each state to decide for itself how far and how fast it will move towards achieving that goal. The Act has never been interpreted by EPA, or by any court heretofore, to require an absolute ban on new or increased discharges in order to achieve the Act’s goals, whether at the behest of a downstream state or not. 26 In support of its conclusion that such a prohibition exists in the Act, the Tenth Circuit relied almost exclusively upon its “common sense” understanding of the Act’s goals and purposes and the “absurdity” of a policy that would allow a new discharge—including one whose individual impact is undetectable—to be made into a waterway which is not currently meeting applicable water quality standards. 908 F.2d at 631.82. 1 The absence of “an explicit imprimatur’ in the statute (908 F.2d at 632, emphasis in original) for the court’s absolutist ruling, however, obviously cannot be overlooked. The “national goal” of eliminating the discharge of pol- lutants into navigable waters by 1985, upon which the lower court placed so much emphasis (908 F.2d at 630- 32), has not been achieved by 1991 and by many accounts may not ever be achieved. Nor should undue weight be given to the equally slippery notion, adopted by the Tenth Circuit, that EPA’s “watchful role” and other responsi- bilities as custodian of the navigable waters is sufficient to “subsume the power [or duty] to prohibit any new dis- charge of pollution, regardless of the magnitude of its impact, where the existing quality of the receiving waters does not meet required standards.’’* It is illogical to conclude that EPA’s powers or duties under the Act are unlimited when it comes to regulating or prohibiting new discharges, but are severely restricted when it comes to determining the applicable standards for discharges to interstate waterways. Industry amici submit that, based on the discretionary federal balancing process set out in the interstate dispute resolution provisions of the Act (as well as the Commerce Clause balancing test, = 908 F.2d at 634. More than a matter of proper statutory construc- tion, as discussed previously the Commerce Clause also does not allow the out-of-state application of a broadly prohibitive ‘“‘non-degradation’’ or similar downstream stete water quality standard without express tite aa 27 if express federal preemption is found not to exist), the Tenth Circuit got it exactly backwards. The statute ex- plicitly grants EPA discretion to determine the “applicable water quality requirements” for discharges to interstate waterways when a dispute arises among neighboring states, whether EPA itself or the source state is the permit-issuer. The statute imposes no strict duty and confers no broad authority upon EPA (and certainly not upon a downstream state) to ban all new or increased discharges to waterways not currently meeting water quality standards. Indeed, the breadth of EPA’s duties and the scope of EPA’s authority in both of these respects cannot be more aptly described than by asking, in the words of this Court in Ouellette: Does the proposed discharge, in EPA’s judg- ment, have an “undue impact” or unacceptable effect on the waters in question? Requiring EPA to apply auto- matically the additional or more stringent standards adopted by an affected downstream state (or stay com- pletely out of the interstate dispute, and thus defer to the source state), and requiring EPA to ban absolutely any new discharge to a waterway not currently meeting the applicable standards, robs EPA of the federal balancing role which Congress expressly granted EPA under the Act, as recognized by this Court in Ouellette.” CONCLUSION The Tenth Circuit’s grant of automatic, mandatory com- pliance status to the federally-approved state water quality standards of affected downstream states—giving them preeminent status over federally-approved source state standards—is contrary to the Clean Water Act, this Court’s broad federal preemption construction of the Act in Oue- lette, and Commerce Clause principles as well. " Judicial review of EPA's exercise of that discretion, based upon a proper record of EPA's decision, is available to protect aggrieved par- 28 The lower court’s absolute ban or new discharges to waterways not currently meeting applicable water quality standards is without any proper statutory basis. For the foregoing reasons, amici curiae Champion In- ternational Corporation, American Paper Institute, Na- tional Forest Products Association, American Iron and Steel Institute, American Mining Congress, The Fertilizer Institute, Chemical Manufacturers Association, National Association of Manufacturers, Associated Industries of Ar- kansas, Arkansas Federation of Air and Water Users, Inc., and Arkansas Poultry Federation respectfully urge the Court to reverse the decision of the Court of Appeals. RICHARD A. FLYE McKENNA & CUNEO 1575 Eye Street, N.W. Washington, D.C. 20005 (501) 731-5800 Counsel for Associated Industries of Arkansas and Arkansas Federation of Air and Water Users, Inc. May 31, 1991 29 R fully submitted J. JEFFREY MCNEALEY (Counsel of Record) JANET J. HENRY PORTER, WRIGHT, Morris & ARTHUR 41 South High Street Columbus, Ohio 43215 (614) 227-2000 MICHAEL K. GLENN MICHAEL G. Dowpb _ PorTeR, WRIGHT, Morris & Little Rock, Arkansas 72201 (501) 375-9131 Counsel for Arkansas Poultry Federation --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A18. Public record. Not legal advice.