# Amicus Curiae Brief — Entergy Corp. v. Riverkeeper, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0046%3A33

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009
- **Citation:** 556 U.S. 208

## Text

FILED

JUL 1.8 2008
Nos. 07-588, 07-589, and a tS OF ue ae

In The
Supreme Court of the United States

ENTERGY CORPORATION,

Petitioner,

v.

ENVIRONMENTAL PROTECTION
AGENCY, et al.,

Respondents,

PSEG FOSSIL, LLC, et al.,
Petitioner,
v.
RIVERKEEPER, INC., et al.,
Respondents,

UTILITY WATER ACT GROUP,
Petitioner,
v.
RIVERKEEPER, INC., et al.,
Respondents.

On Writs of Certiorari to the United States Court of
Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE NATIONAL ASSOCIATION
OF HOME BUILDERS SUPPORTING PETITIONERS

Duane J. Desiderio Danie] P. Albers*

Thomas J. Ward *Counsel of Record

National Association of Jeffrey S. Longsworth
Home Builders David T. Ballard

1201 15* Street, N.W. Barnes & Thornburg LLP

Washington, D.C. 20005 One North Wacker Drive

(202) 266-8200 Suite 4400

Chicago, IL 60606-2809

(312) 357-1313

LwqaOang

TABLE OF CONTENTS

Page(s)
INTEREST OF THE AMICUS CURIAE................... 1
SUMMARY OF ARGUMENT .....2...............cccceceeeeeeees 2
STII Sicilia cicadas Saaipliiiandiibiasibaabesinidibaiiineia 3

II.

THROUGHOUT THE CLEAN WATER ACT
CONGRESS VARIED TECHNOLOGY
STANDARDS TO CONTROL EFFLUENT,
AND THE DEGREE TO WHICH COST IS
CONSIDERED WHEN ESTABLISHING
THOSE TECHNOLOGIES .......0000.0.... eee 3

A. Varying Technology Standards.................... 3

B. Varying Cost-Benefit Considerations
Relative to Different Technology
ERE EE ER BUS ME eR ~ oA tes A oe 7

THE COURT OF APPEALS’ ANALYSIS OF
COST CONSIDERATIONS REGARDING

THE VARIOUS TECHNOLOGY STANDARDS
Be ee aiiceidiicnicedndacniaticinibisihihinbigtiithehsicinnieee 12

A. The Court of Appeals’ Analysis
Placed Undue Weight on Sections 301
and 306 Which are Far Broader in Scope
Than Section 316, Which Deals Only With
Cooling Water Intake Structures............... 12

i

TABLE OF CONTENTS (cont.)
Page(s)

B. Contrary to the Court of Appeals’
Interpretation, Congress Authorized
Cost- Benefit Analysis to Establish
Technology Standards Under Sections 301,
UN a La i 14

C. The Court of Appeals Misinterpreted This
Court’s Decision in EPA v. Nat’ Crushed
I i 17

D. The Court of Appeals’ Chevron Analysis
NI tchinscecdeenctescncliciea Sachiiiasiibieucctatadsiivn ue 18

a NETTIE TEE RCE Te RET ALE Re TER 20

TABLE OF AUTHORITIES (cont.)

Page(s)
Cases
BP Exploration & Oil, Inc. v. EPA, 66 F.3d 784
I i aan at 8, 16

Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837
a aus 18, 19

Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 127 S. Ct. 1423 (2007)............... 18, 19

EPA v. National Crushed Stone Ass'n,
I ssstuinnnilinsie 17

Nat'l Wildlife Fed’n v. EPA, 286 F.3d 554
I sn icant bniahnndinationeeannnsienedsesiiowene 16

Riverkeeper, Inc. v. EPA, 475 F.3d 83
I i i 2, 12, 13, 18

Riverkeeper, Inc. v. EPA, 358 F.3d 174
ET SNR ee en we 12

Tex. Oil & Gas Ass'n v. EPA, 161 F.3d 923
ead 8, 16, 17

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486
TERE AS NSM ee RR Real 8, 16

iv

TABLE OF AUTHORITIES (cont.)

Page(s)
STATUTORY AND
REGULATORY PROVISIONS

Clean Water Act
UE 4
33 U.S.C. § 1311(b) -eeceeeeeosee LT EEE 4
ee WP, BPE MIPORIOAD....... 33 U.S.C. § 1311(b)(2)(E) references § 1314(b)(4), which
pertains to conventional pollutants.

® 33 U.S.C. § 1311(b)(2)(A) references subsections (C) and (D)
which pertain to certain toxic pollutants. Subsection (b)(2)(A)
also references subsection (F), for “all” remaining pollutants not
covered elsewhere in subparagraph (2) (i.e., non-conventional
pollutants, which are neither conventional or toxic).

demonstrated control technology’—that is, “BADT.”
Sections 306(a)(1), (2); id. §§ 1316(a)(1), (2).

B. Varying Cost-Benefit Considerations
Relative to Different Technology
Standards.

The extent to which EPA must use economic and
cost considerations, when establishing these different
technology standards to control effluent, varies.
Sometimes Congress explicitly directed EPA to
consider cost; sometimes Congress provided that cost
was a factor EPA may consider; sometimes Congress
said nothing at all about cost. In other words, while
the Act does not specifically define the various
technology standards, it generally (but not always)
enumerated specific factors EPA must consider in
setting effluent limitation guidelines—and sometimes
these include cost.

For example, under the initial BPT standard that
was to be in effect by 1977, the Act directs that
“{flactors” EPA “shall” consider include, among other
things, “the total cost of application of technology in
relation to the effluent reduction benefits to be
achieved from such application.” Section 304(b)(1)(B);
id. § 1314(b)(1)(B). Similarly, for the BCT standard
to be in effect by 1989 regarding existing sources of
conventional pollutants, a “factor[J” EPA “shall
include” in sctting effluent limitation guidelines is
“consideration of the reasonableness of the
relationship between the cost of attaining a reduction
in effluents and the effluent reduction benefits
derived ...."°. Section 304(b)(4)(B); td. § 1314(b)(4)(B).
EPA has adopted regulations describing the “cost-

reasonableness” test it applies to determine BCT
limitations. See 51 Fed. Reg. 24,974 (July 9, 1986).

For BAT regarding existing sources of toxic and
non-conventional pollutants, section 304(b)(2)(B) does
not mandate that EPA compare costs to benefits
related to reductions in effluent discharges. Id. §
1314(b)(2)(B). Rather, that section leaves the
weighing of enumerated factors, including “the cost of
achieving such effluent reduction ...,” to EPA’s
discretion. Id. See Waterkeeper Alliance, Inc. v. EPA,
399 F.3d 486, 516 (2d Cir. 2005); Tex. Oil & Gas Ass’n
v. EPA, 161 F.3d 923, 928 (5th Cir. 1998); BP
Exploration & Oil, Inc. v. EPA, 66 F.3d 784, 796 (6th
Cir. 1995). EPA’s view is that it “retains considerable
discretion in assigning the weight accorded” to the
statutory factors used to evaluate BAT, which
includes the cost of achieving toxic and non-
conventional effluent reductions. 71 Fed. Reg. 76,644,
76,646-47 (Dec. 21, 2006) (“Notice of Availability of
Final 2006 Effluent Guidelines Program”).

Similarly, Congress provided that in establishing
new source performance standards (“NSPS”), EPA
“shall take into consideration the cost of achieving
such effluent reduction...” Section 306(b)(1)(B); id. §
1316(b)(1)(B). As EPA has stated, “[iJn establishing
NSPS, [it] is directed to take into consideration the
cost of achieving the effluent reduction and any non-
water quality environmental impacts and energy
requirements.” 71 Fed. Reg. at 76,647 (Dec. 21,
2006).

CWA § 316(b)—the cooling water intake provision
at issue in the case at bench—is_ significantly

different in scope and intent compared to these other
sections. Section 316(b) includes a cross-reference to
sections 301 and 306, but Congress did not equate or
otherwise compare the disparate technology
standards in these provisions. But it is evident that
the text in section 316(b) is markedly different from
the text in section 301. Section 316(b) requires “best
technology available for minimizing adverse
environmental impact”—language far different from
section 301’s “best available technology economically
achievable” for existing sources of toxic and non-
conventional pollutants. Compare id. § 1326(b) to id.
§ 1311(b)(2)(A). The focus of these respective
provisions, on their face, is plainly dissimilar; section
316(b) focuses on environmental impacts, while
section 301 focuses on economic achievability. EPA
recognized the differences in exercising its discretion
for the cooling water intake structure rule at issue,
interpreting the phrase “minimizing adverse
environmental impact” to define what constitutes
“best” and “available” under section 316(b):

Section 316(b) requires that cooling water
intake structures reflect the best technology
available for minimizing adverse
environmental impact. In contrast to the
effluent limitations provisions fof section 301],
the object of the “best technology available” is
explicitly articulated by reference to the
receiving water: To minimize adverse
environmental impact in the waters from
which cooling water is withdrawn.

69 Fed. Reg. 41,576, 41,583 (July 9, 2004).

10

The various technology standards discussed above,
the scope of their application, and pertinent statutory
language regarding cost, are tabulated below:

Acronym | Techiiology'| 5... CWA: “|" ee ‘ Appueation, onsiderations
Bes Setar ei ee Considerat CaLRET
‘BAT: * Best Available Sections By March 31, |One “{fJactor”
Technology 301(b)(2)(A), | 1989, effluent] EPA “shall take
Economically (C), (D), (F); [limitations __|into account” is
Achievable were to “the cost of
33 U.S.C. §§ |reflect BAT |achieving such
1311(b)(2)(A), |for toxic effluent
(C),(D),(F) pollutants, reduction ....” §
and for all 304(b)(2)(B), 33
other (i.e., US.C. §
non- 1314(b)(2)(B).
conventional)
pollutants.
.IBADT)..1) Best Available | Sections New source |EPA “shall take
ieee Demonstrated | 306(a)(1), performance |jinto
Control (b)(2)(B); standards _| consideration
Technology (“NSPS”) the cost of
33 U.S.C. § achieving such
1316(a)(1), effluent
(b)(2)(B) reduction ....” §
306(b)(2)(B); 33
U.S.C. §
1316(b)(2)(B).
“BTA ‘| Best Section Location, Not explicit.
Technology 316(b); design and
Available for construction
|| Minimizing 33 U.S.C. § of cooling
| Adverse 1326(b) water
Environmental intake
Impact structures

12

II. THE COURT OF APPEALS’ ANALYSIS OF
COST CONSIDERATIONS REGARDING
THE VARIOUS TECHNOLOGY
STANDARDS IS FLAWED.

A. The Court of Appeals’ Analysis Placed
Undue Weight on Sections 301 and 306
Which are Far Broader in Scope than
Section 316, Which Deals Only With
Cooling Water Intake Structures.

In interpreting section 316(b) to determine if it
authorized EPA to conduct a cost-benefit analysis for
cooling water intake structures, the court of appeals
relied on unnecessary extrapolations of sections 301
and 306. It stated, “[oJur interpretation of section
316(b) is informed by the two provisions it cross-
references, CWA sections 301 and 306.” Riverkeeper,
Inc., 475 F.3d at 90. Indeed, the Second Circuit
assessed the “Cost Analysis Pursuant to Sections 301
and 306,” because section 316(b) “does make specific
reference to CWA sections 301 and 306, which we
have taken previously as ‘an invitation’ to look to
those sections for guidance in ‘discerning what factors
Congress intended the EPA to consider in
determining’ BTA.” Id. at 97 (quoting Riverkeeper,
Inc. v. EPA, 358 F.3d 174, 186 (2d Cir. 2004). The
Second Circuit conducted this analysis, despite the
fact that it also acknowledged that “Section 316(b)
does not itself set forth or cross-reference another
statutory provision enumerating the specific factors
that the EPA must consider in determining BTA.” Id.

The court of appeals recognized that in 1989, when
the BPT standard was replaced by the BAT standard,

13

section 301(b)(2)(A) authorized EPA to consider “the
cost of achieving such effluent reduction” in
determining BAT. Riverkeeper, 475 F.3d at 97
(quoting 33 U.S.C. § 1314(b)(2)(B)). The lower court
further stated that in contrast to the older BPT
standard, “[i]Jn determining BAT ... the EPA may
consider cost as a factor to a limited degree, ... but
only as to whether the cost of a given technology could
be reasonably borne by the industry and not the
relation between that technology’s cost and the
benefits it achieves.” Jd. at 98. Thus, the Second
Circuit held that EPA could only conduct a “cost-
effectiveness” analysis for determining BAT. Id. at
98.

The lower court also briefly examined section 306.
It recognized that new source performance standards
under that section must reflect BADT. Jd. It further
found that “Congress provides that in establishing
standards of performance, the EPA ‘shall take into
consideration the cost of achieving such effluent
reduction,’ ... but did not require the EPA to conduct
cost-benefit analysis.” Jd. (quoting 33 U.S.C. §
1316(b)(1)(B)). Thus, the Second Circuit held that for
both sections 301 and 306, “after 1989, cost is a
lesser, more ancillary consideration in determining
what technology the EPA _ should require for
compliance under those sections.” Jd. The court of
appeals concluded that “[t]he shift from the BPT
standard to the more stringent BAT one clearly
signaled Congress's intent to move cost consideration
under the CWA from cost-benefit analysis to a cost-
effectiveness one.” Id. The Second Circuit thus found
that its analysis “strongly suggests” that EPA is not

14

authorized to conduct a cost-benefit analysis under
sections 301 and 306. Id.

The court of appeals drew questionable inferences
from section 301 (which pertains broadly to existing
sources across the spectrum of conventional, non-
conventional, and toxic pollutants) and from section
306 (which pertains generally to new sources of
effluent discharge). However, the only provision
before it to consider was section 316(b), which
imposes a technology standard uniquely applicable to
cooling water intake structures. As shown below, it
was erroneous for the court of appeals to use sections
301 and 306 to conclude that EPA was precluded from
conducting a cost-benefit analysis in determining
BADT.

B. Contrary to the Court of Appeals’
Interpretation, Congress Authorized
Cost-Benefit Analysis to Establish
Technology Standards Under Sections
301, 304 and 306.

Under sections 301, 304, and 306, EPA is plainly
authorized to evaluate cost considerations for BAT
and BADT. The court of appeals was wrong to state
otherwise.

As noted, in attempting to divine the meaning of
section 316(b) for BTA regarding cooling water intake
structures, the court of appeals stated that sections
301 and 306 “informed” its analysis. Riverkeeper, 475
F.3d at 90. The CWA’s very language in section
301(b)(2)(A), which sets forth the BAT standard
applicable to existing sources of toxic and non-

15

conventional pollutants, explicitly provides that EPA
take costs and economic feasibility into account for
assessing the “best available technology economically
achievable.” 33 U.S.C. § 1311(b)(2)(A) (emphasis
added). On its face, the very premise of the BAT
standard depends on whether the technology can be
achieved at all, in light of cost; the text does not
predicate BAT on cost efficiencies, and does not
describe BAT as the “best available and most
efficient” method to control toxic or non-conventional
effluent. Further, Congress expressly provided that
EPA can consider numerous factors for BAT,
including “the cost of achieving such effluent
reduction ...,” as well as “such other factors as the
Administrator deems appropriate ....” Id. §
1314(b)(2)(B). And in similar language for new source
performance standards, section 304(b)(1)(B) likewise
states that EPA can consider “the cost of achieving
such effluont reduction ...” 33 U.S.C. § 1316(b)(1)(B).

Thus, under the plain text of the provisions to
which the lower court turned for guidance, it was
inappropriate to conclude that EPA may not conduct
cost-benefit analyses for the BAT and BADT
standards. Moreover, the lower court was selective in
the statutory sections it chose to examine. While it
said it would look to section 301 and went on to
consider subsection (b)(2)(A), it totally ignored
subsection (b)(2)(E), which sets the BCT standard for
existing sources of conventional pollutants. See id. §
1311(b)(2)(E). And, Congress indisputably directed
EPA to weigh costs against when establishing BCT
effluent guidelines. The Act directs that “[flactors”
relating to EPA’s assessment of BCT “shall include
consideration of the reasonableness of the

16

relationship between the costs of a attaining a
reduction in effluents and the effluent reduction
benefits derived ....” See id. § 1314(b)(4)(B) (emphasis
supplied). Indeed, EPA has adopted regulations
describing the “cost-reasonableness” test it uses when
establishing BCT limitations for industrial point
sources discharging conventional pollutants. See 51
Fed. Reg. 24,974 (July 9, 1986).

Other courts have not taken the selective or
restrictive approach used here by the court of appeals.
They have found that EPA has the discretion to (and
does) evaluate costs in setting technology standards
under sections 301 and 306. See BP Exploration &
Oil, 66 F.3d at 796 (“NRDC is wrong to contend that
EPA is not permitted to balance factors such as cost
against effluent reduction benefits”); Waterkeeper
Alliance, 399 F.3d at 516 (“if the EPA determines,
with adequate support in the record, that a given set
of costs cannot reasonably be borne by a given
industry, courts must defer to that determination”);
Natl Wildlife Fed’n v. EPA, 286 F.3d 554, 570 (D.C.
Cir. 2002) (“appellate courts give EPA considerable
discretion to weigh and balance the various factors
required by statute to set NSPS”); Tex. Oil & Gas, 161
F.3d at 928 (5th Cir. 1998) (“The EPA .. . has
considerable discretion in evaluating the relevant
factors and determining the weight to be accorded to
each in reaching its ultimate BAT determination.”).

Thus, under sections 301, 304 and 306, EPA is
afforded wide discretion to place significant weight to
cost considerations. The agency is authorized, but not

required, to assess those costs in relation to benefits
when determining BAT and BADT. The court of

17

appeals’ decision that EPA is prohibited from
assessing costs for these technologies is
unprecedented and should be reversed.

C. The Court of Appeals Misinterpreted
This Court’s Decision in EPA v. Nat'l
Crushed Stone Ass’n.

The court of appeals relied on EPA v. Nat'l
Crushed Stone Ass'n, 449 U.S. 64 (1980), to assert
that EPA is prohibited from conducting a cost-benefit
analysis for BAT. But its interpretation of that case
was erroneous. In examining the factors that EPA
can evaluate for BPT and BAT, this Court first found
that EPA must consider the various factors for
adopting effluent limitation guidelines under section
304(b)(1)(B). Jd. at 70. The Court then decided that
the factors under section 304(b)(2)(B) to determine
BAT do not mandate that EPA conduct a cost-benefit
assessment, as is required for BPT. Jd. at 71. The
Court stated that “Section 304(b)(2)(B) lists ‘cost’ as a
factor to consider in assessing BAT, although it does
not state that costs shall be considered in relation to
effluent reduction.” Id. at 71, n.10 (emphasis added).

The court of appeals, however, misinterpreted
National Crushed Stone, by construing the lack of a
mandate to compare costs and benefits under section
304(b)(2)(B) as a blanket prohibition against such
analysis. The lower court should have followed the
Fifth Circuit’s opinion in the Texas Oil & Gas case,
which correctly explained that National Crushed
Stone stands only for the proposition that “EPA is not
obligated to evaluate . . . the relationship between
costs and benefits.” Tex. Oil & Gas, 161 F.3d at 936

18

(citing Natl Crushed Stone, 449 U.S. at 71) (emphasis
added).

D. The Court of Appeals’ Chevron Analysis
was Incorrect.

In the end, the court of appeals should have
conducted a proper Chevron analysis of section 316(b)
and deferred to EPA’s reasonable interpretation of
that provision. As it admitted, “Section 316(b) does
not itself set forth or cross-reference another
statutory provision enumerating the specific factors
that the EPA must consider in determining BTA.”
Riverkeeper, 475 F.3d at 97. Under a correct Chevron
analysis, the Second Circuit’s admission that the
language of the statute was silent should have
mobilized it to move on to “Step 2,” and assess
whether EPA’s interpretation of section 316(b), a
statute that the agency administers, was reasonable.
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837,
842-43 (1984) (If a “statute is silent or ambiguous
with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a
permissible construction of the statute”). Moreover,
section 316(b)’s cross-reference to sections 301 and
306, at best, creates an ambiguity which should have
triggered deference to EPA’s interpretation. Envtl.
Def. v. Duke Energy Corp., 549 U.S. 561, 127 S. Ct.
1423, 1433 (2007) (a “cross-reference alone is
certainly no unambiguous congressional code for
eliminating the customary agency discretion to
resolve questions about a statutory definition ....”)

The lower court opinion guts the bedrock
principle that where a statute is silent as to the
question at issue, “a court may not substitute its own

19

construction of a statutory provision for a reasonable
interpretation made by the administrator of an
agency.” Chevron, 476 U.S. at 844. Instead of
deciding whether EPA's interpretation of section
316(b) was a permissible construction of the statute,
it leaped to sections 301 and 306—provisions with
different language, purposes, and far broader
purviews than cooling water intake structures. As
thoroughly discussed by the other parties’ briefs,
EPA’s construction of section 316(b) was reasonable,
and thus, the Second Circuit should have deferred to
that fair construction.

The court of appeals’ overly-heavy reliance ‘on
sections. 301 and 306, when interpreting section
316(b), was certainly misplaced. Even though these
sections must by their very nature share some of the
same words, the Court has recognized that the same
words can have different meanings when used in
different contexts of the same statute:

[M]Jost words have different shades of meaning
and consequently may be variously construed,
not only when they occur in different statutes,
but when used more than once in the same
statute or even in the same section.

Envtl. Def., 127 S. Ct. at 1432 (2007) (citation
omitted). Indeed, although BTA and BAT share
similar words, those words appear in different
contexts. Section 304’s BAT standard refers to the
“best available technology economically achievable” in
section 301. 33 US.C. §§ 1314)(2)(B) &
1311(b)(2)(A) (emphasis added). In contrast, section
316(b) provides for standards that reflect the “best
technology available for minimizing adverse

20

environmental impact.” 33 U.S.C. § 1326(b). Based
on the plain language of the provisions, section 301’s
terms focus on technological and economic feasibility,
while section 316(b)’s terms focus on minimizing
adverse impacts—two dissimilar goals.

Because the Second Circuit rendered a decision
that is inconsistent with prior case law, failed to
conduct a proper Chevron analysis, and failed to
recognize the differences in language between
statutory provisions, this Court should reverse.

CONCLUSION

For the foregoing reasons, the judgment below
should be reversed.

Respectfully submitted,

July 18, 2008

Duane J. Desiderio Daniel P. Albers

Thomas J. Ward Counsel of Record

NATIONAL Jeffrey S. Longsworth

ASSOCIATION OF David T. Ballard
HOME BUILDERS BARNES &

1201 15th Street, N.W. THORNBURG LLP
Washington, D.C. 20005 One North Wacker Drive
(202) 266-8200 Suite 4400
Chicago, IL 60606-2809
(312) 357-1313

App. 1

APPENDIX A

Cases in which NAHB has appeared as an amicus
curtae or “of counsel” before this Court include:

Agins v. City of Tiburon, 447 U.S. 255 (1980); San
Diego Gas and Elec. Co. v. City of San Diego, 450 U.S.
621 (1981); Williamson County Regl Planning
Comm'n v. Hamilton Bank, 473 U.S. 172 (1985):
MacDonald, Sommer & Frates v. Yolo County, 477
U.S. 340 (1986); First English Evangelical Lutheran
Church v. Los Angeles County, 482 U.S. 304 (1987);
Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987):
Pennell v. City of San Jose, 485 U.S. 1 (1988); Yee v.
City of Escon lido, 503 U.S. 519 (1992); Lucas v. S.C.
Coastal Council, 505 U.S. 1003 (1992); Dolan v. City
of Tigard, 512 U.S. 374 (1994); Babbitt v. Sweet Home
Chapter of Cmtys. for a Greater Ore., 515 U.S. 687
(1995); Suitum v. Tahoe Reg'l Planning Agency, 520
U.S. 725 (1997); City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687 (1999); Solid Waste
Agency of N. Cook County v. U.S. Army Corps of
Eng’rs, 531 U.S. 159 (2001); Palazzolo v. Rhode
Island, 533 U.S. 606 (2001); Franconia Assocs. v.
United States, 536 U.S. 129 (2002); Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg Planning Agency, 535
U.S. 302 (2002); Borden Ranch P’ship v. U.S. Army
Corps of Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga
Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188
(2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe
of Indians, 541 U.S. 95 (2004); San Remo Hotel, L.P.
v. City and County of San Francisco, 545 U.S. 323
(2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528
(2005); Kelo v. City of New London, 545 U.S. 469
(2005); S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547

App. 2

U.S. 370 (2006); Rapanos v. United States, 547 U.S.
715 (2006); John R. Sand and Gravel Co. v. United
States, 128 S.Ct. 750 (2008); and Summers v. Earth
Island Inst., No. 07-463, cert. granted, 128 S.Ct. 1118
(2008).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0046%3A33. Public record. Not legal advice.