Petition for Writ of Certiorari — Our Children's Earth Foundation Foundation v. Environmental Protection Agency (No. 08-225)

Supreme Court, U.S.

() 08-225 AUG 21 2008

No. 08- ____ OFFICE OF THE CLERK

In the Supreme Court of the United States

Our Children’s Earth Foundation

and Ecological Rights Foundation,

Petitioners,

v.

United States Environmental Protection Agency,

etal,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael A. Costa

Our Children’s Earth Foundation

3701 Sacramento St. #194

San Francisco, CA 94118

(415) 342-0042

Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. May the federal courts employ traditional

tools of statutory construction to construct a

administrative agency mandatory statutory duty when

a statute “strongly suggests” but “does not expressly

and unequivocally state” that the agency has a

mandatory duty?

2. Has EPA violated its mandatory Clean Water

Act (CWA) duty in adopting an effluent guidelines

limitations (ELGs) review methodology that amounts

to “ignoring Congress’ mandate as to what the [EPA’s

effluent guidelines] regulations and limitations ‘shall’

accomplish” and reflects an interpretation of the CWA

that “strains credulity to the breaking point,” “makes

no sense?’

PARTIES TO THE PROCEEDING

In accord with Rule 29.6, Petitioner Our

Children’s Earth Foundation (“OCE”) states that it is

a non-profit public benefit corporation with offices in

San Francisco, California and members throughout the

United States. As such, OCE has no parent

corporation nor does any publicly held company own

10% or more of the corporation’s stock.

Petitioner Ecological Rights Foundation (““ERF”)

is a non-profit public interest organization public

benefit corporation with offices in Garberville,

California and members throughout California. As

such, ERF has no parent corporation nor does any

publicly held company own 10% or more of the

corporation’s stock.

The Respondents are the United States

Environmental! Protection Agency (EPA) and Steven L.

Johnson, as EPA Administrator; Association of

Metropolitan Sewerage Agencies; Effluent Guidelines

Industry Coalition; the Utility Water Act Group

(UWAG); and the National Association of Clean Water

Agencies (NACWA).

il

TABLE OF CONTENTS

QUESTIONS PRESENTED .................. i

PARTIES TO THE PROCEEDING ............ ii

TABLE OF AUTHORITIES .................. vi

i he say oy wree Wid’ aoe Gas ON 1

ae lL eile sb ae was 1

STATUTORY PROVISIONS INVOLVED ....... 1

STATEMENT OF THE CASE ................ 2

s. STATUTORY BACKGROUND ..... 3

If. FACTUAL BACKGROUND ....... 5

A. Prior Relevant Litigation ....... 5

B. EPA's Return to Risk-Based

Analysis and EPA’s 2003 Review of

EE os a bee eae ee 6

1. EPA's 2003 Review of

Existing ELGs .......... 6

2. EPA’s 2003 Identification

of Potential New ELGs

CE Sin de oh ow 4a )

Ill. EPA’S 2004 REVIEW OF ELGS ....10

il

A. EPA’s 2004 Review of Existing

RR Seis he es Bas i 10

B. EPA’s 2004 Identification of

Potential New ELGs

ka eee 12

IV. EPA’S 2005 REVIEW OF ELGS .... 12

V. THE NINTH CIRCUIT'S

CONFLICTING DECISIONS ...... 14

Ch oh ee ees ry a ae a 14

EEE RR ne rane 16

REASONS FOR GRANTING THE WRIT....... 18

1. WHEREAS OCE I PROPERLY

EMPLOYED TRADITIONAL

II.

IIl.

STATUTORY CONSTRUCTION

RULES, OCE II FAILED

SIE GES eee 18

OCE I CORRECTLY APPLIED

STATUTORY CONSTRUCTION

RULES, AND THE COURT SHOULD

REINSTATE OCET’S RULING .... 24

EPA’S NONDISCRETIONARY DUTY

INCLUDES CONSIDERING

TECHNOLOGY-BASED FACTORS IN

REVIEWING ELGs .............. 25

iv

IV. EPA’S ELG REVIEW ISA

JUDICIALLY REVIEWABLE

SEE ve bees UN Wane ss Capes

Ne Tet ee Te eee eT Te

APPENDIX CONTENTS

Ninth Circuit Decision on Rehearing

SE EE chs ewes ekwe ree e ves descent

Initial Ninth Circuit Decision (Oct. 29, 2007)

District Court Decision (May 20, 2005) ......

Statutory and Regulatory Provisions

ce cicecucenvecvs

Clean Water Act

Section 301 [33 U.S.C. § 1311] ............

Section 304 [33 U.S.C. § 1314] ............

Section 505 [33 U.S.C. § 1365] ...........

\dmini — ow

Selected excerpts from U.S. Environmental

Protection Agency memorandum, Factor 2 Analysis:

Technology Advances and Process Changes, Status of

Screening Level Review Phase (Dec. 30, 2003),

submitted as Exhibit 14 to Plaintiffs’ Motion for

Summary Judgment filed on February 28, 2005,

published on EPA’s internet home page at:

http://www.epa.gov/waterscience/guide/304m/2004/fa

SE 0 6 05s 4b onsen oe oees ee eens bees se ear 82a

v

TABLE OF AUTHORITIES

CASES

Bennett v. Spear,

I Fae ee eee eeu 25

Chemical Manufacturers Ass'n v. EPA,

ee Le I 5

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

EE passim

Citizens to Preserve Overton Park, Inc. v. Volpe,

en wee wed 26

Dubois v. Thomas,

820 F.2d 943 (8th Cir. 1987) ............... 20

Earth Island Inst. v. Hogarth,

484 F.3d 1123 (9th Cir. 2007) ........ 18, 19, 25

Environmental Defense Fund, Inc. v. Browner,

1995 WL 91324 (N.D. Cal. 1995) .......... 21

Environmental Defense Fund v. Thomas,

870 F.2d 892 (2nd Cir. 1989) ............ 20, 27

EPA v. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976) ......... 3, 4

Farmers Union Cent. Exch., Inc. v. Thomas,

SSi F.2a 767 tm Cir. 1968) ... 0. cc eee. 23

Florida PIRG v. EPA,

386 F.3d 1070 (11th Cir. 2004) .............. 25

Laub v. U.S. Dep't of Interior,

342 F.3d 1080 (9th Cir. 2003) .............. 26

Monongahela Power Co. v. Reilly,

960 F.9d S72 (4th Cir. 19008) .. 1... cc ccce: 20

National Resources Defense Council v. EPA,

437 F. Supp.2d 1137 (C.D. Cal. 2006) ......... 21

Norton v. Southern Utah Wilderness Alliance,

et ee ee 26, 27

NRDC v. Costle, 8 Env't Rep. Cas. (BNA) 2120

(D.D.C. 1976), modified sub. nom, NRDC v. Costle,

12 Env't Rep. Cas. (BNA) 1833 (D.D.C.1976),

modified sub. nom, NRDC v. Gorsuch, 17 Env't.

Rep. Cas. (BNA) 2013, 12 Envtl. L. Rep. 20570

(D.D.C.1982), modified sub. nom, NRDC v.

Ruckelshaus, No. 73-2153

os kn oe 6 bodes ¥ ee bs 5

NRDC v. Reilly,

1991 U.S. District LEXIS 5334 (D.D.C. Apr. 23,

EE re ee ee ee eee 6

NRDC v. Train,

510 F.2d 692 (D.C. Cir. 1975) .......... 3, 5, 21

Our Children’s Earth Foundation, et. al., v. United

States Environmental Protection Agency, et al,

(OCE I’), 506 F.3d 781 (2007) ......... passim

vii

Our Children’s Earth Foundation, et. al, v. United

States Environmental Protection Agency, et al.

(“OCE IT”), 527 F.3d 842 (9th Cir. 2008) .. passim

Save the Valley, Inc. v. EPA,

99 F. Supp.2d 981 (S.D. Ind. 2000) ........... 21

Sierra Club v. Browner,

130 F. Supp.2d 78, 90 (D.D.C. 2001).......... 21

Sierra Club v. Thomas,

828 F.2d 783, 791 (D.C. Cir. 1987) ...... 22, 23

Sierra Club v. Train,

SBT F.2e Gee (Gee Cap. 1977) . 4... cc cccccce 21

S.F. BayKeeper v. Whitman,

297 F.3d 877 (9 Cir. 2002) ................. 20

Whitman v. Am. Trucking Ass'‘ns,

Tee a OU aaah 19

STATUTES

eae ce eae 1

Clean Water Act

Section 301 [33 U.S.C. § 1311] ........... passim

Section 304 [33 U.S.C. § 1314] ........... passim

Section 505 (33 U.S.C. § 1365] ............. 2, 25

vill

ADMINISTRATIVE MATERIALS

3. tug wena bes 4 e's 040 68 an

atu seendeaeuceseveees 8

ES eee ee fo 6

68 Fed. Reg. 75515 (Dec. 31, 2003) ........ passim

69 Fed. Reg. 53705 (Sept. 2, 2004) ........ passim

70 Fed. Reg. 51042 (Aug. 29, 2005) ............ 13

ix

OPINIONS BELOW

The district court decision was unreported and

is reproduced in the Appendix (App.) at page 59a.

The court of appeals decisions are reported at 506

F.3d 781 (9 Cir. 2007) and 527 F.3d 842 (9" Cir.

2008) and are reproduced at App. 24a and 1a,

respectively.

JURISDICTION

The ruling of the U.S. Court of Appeals for the

Ninth Circuit sought to be reviewed was issued on

May 23, 2008. This Court's jurisdiction is invoked

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are Clean

Water Act §§ 304(b), (m), 301(b)(2)(A)(i), (C), (D), and

(F); 33 U.S.C. §§ 1314(b), (m) and 33 U.S.C. § 1311

(b)(2)(A)(i), (C), (D), and (F). They are set forth in

full in the Appendix.

STATEMENT OF THE CASE

Petitioners OCE and ERF submit this Petition

for Certiorari seeking reversal of the U.S. Court of

Appeals for the Ninth Circuit’s decision in Our

Children’s Earth Foundation, et. al, v. United States

Environmental Protection Agency, et al., 527 F.3d

842 (9th Cir. 2008) (“OCE J/)}—which reversed on

rehearing the Ninth Circuit’s earlier published

decision in OCE v. U.S. EPA ((OCE J”), 506 F.3d 781

(2007).

OCE ITimproperly reversed OCE /s holding

that EPA has a “non-discretionary” duty reviewable

under Clean Water Act (“CWA”) § 505(a)(2)' to

consider the technology-based factors set forth in

CWA § 304(b) and § 301(b)’ in EPA’s reviews of CWA

effluent guidelines and limitations (“ELGs”). OCE /T

created an intra- and inter-circuit split in authority

in erroneously holding, contrary to its ruling in OCE

J, that traditional principles of statutory construction

and/or the framework for judicial review set forth in

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984),

cannot be used to determine whether a statute

imposes a mandatory duty on an administrative

agency. Accordingly, to re-establish long-standing

rules of statutory construction as they apply to an

’ 33 U.S.C. § 1365(a )(2). Sections of the Clean Water Act, 33

U.S.C. §§ 1251 et seg., are conventionally cited using the sections

of the original Act, rather than the section numbers assigned after

codification in the U.S. Code. This brief follows this convention.

The first time Petitioners cite to a provision of the Act, a parallel

citation to the U.S. Code has been included. All citations are to the

CWA unless indicated otherwise.

2 33 U.S.C. §§ 1314(b), 131100).

2

important question of administrative law, this Court

should grant certiorari.

I, STATUTORY BACKGROUND

Prior to 1972, federal law only regulated water

pollution discharges specifically shown to be

environmentally harmful. In 1972, recognizing that

this approach had failed, Congress enacted sweeping

new law requiring industries to meet discharge

limitations based on application of the best available

water pollution control technology economically

achievable. See EPA v. California ex rel. State

Water Resources Control Board, 426 U.S. 200, 202-

05 (1976).*

Congress further intended its new technology-

based approach to institute uniform national

standards of pollutant control, thus eliminating

competitive advantages to industrial sources

regulated more leniently by local authorities than

comparative sources elsewhere in the country. See

NRDC v. Train, 510 F.2d 692, 709-10 (D.C. Cir.

1975).

Congress’ technology-based regulatory scheme

is reflected in CWA §§ 304(b), (m), and 301. CWA§

304(b) requires EPA to promulgate effluent

guidelines establishing the water pollutant discharge

reduction that industries can attain via the

application of “best practicable technology” (BPT),

“best available technology” (BAT) for toxic and non-

conventional pollutants and “best conventional

pollutant control] technology” (BCT) for conventional

pollutants. EPA must promulgate

° All references “App. Xa” are to the pagination of the

Petitioners’ Appendix.

effluent guidelines for all categories of industries

which discharge pollutants to the nation’s waters.

CWA § 304(b). The CWA specifies that EPA and

state agencies must use effluent guidelines in setting

effluent limitations required by CWA section 301(b).

Such effluent limitations restrict the amount of

pollution that any point source may discharge to

waters. See generally, California ex rel., 426 U.S. at

204.

Congress envisioned that EPA would make

ELGs more stringent over time. The CWA requires

EPA to have mandated BPT-based limits by 1977

and more stringent BAT and BCT-based limits by

1989. CWA § 301(b). Moreover, Congress envisioned

that EPA would periodically revise its definitions of

BPT, BAT and BCT to press industry to adopt more

advanced pollutant reducing technologies, eventually

leading to the elimination of water pollutant

discharges. See CWA § 301(b)(2) (mandating

effluent limitations that “require the elimination of

discharges of all pollutants” if EPA finds “such

elimination is technically and economically

achievable”); see also CWA § 304(b)(3).

To ensure that effluent guidelines are updated

to reflect current pollution control technology,

Congress required EPA to review all effluent

guidelines annually, and if appropriate, revise them.

CWA §&§ 304(b), (m)(1)(A). To ensure that revisions

to effluent guidelines lead to revisions in enforceable

effluent limitations, Congress further required EPA

to review all BAT-based effluent limitations at least

every five years and, if appropriate, revise them

“pursuant to the procedure established under CWA §

301(b)(2)” for setting BAT limitations.* CWA §

301(d).

Congress amended the CWA in 1987 to require

EPA to publish biennial effluent guidelines plans

which, inter alia, schedule the annual review of all

existing ELGs. CWA § 304(m)(1).

II. FACTUAL BACKGROUND

A. Prior Relevant Litigation

EPA has been persistently dilatory in

adopting and revising ELGs as required by the CWA,

leading to multiple citizen suits and court orders

forcing EPA to act. EPA did not issue its first EGP

until 1990, nearly two years past CWA § 304(m)’s

1988 deadline for this plan. In this 1990 Plan, EPA

contended it did not have to identify and schedule

promulgations of new effluent guidelines for all

categories of industries not currently regulated by

effluent guidelines that discharge toxic or

nonconventional pollutants. EPA contended it could

limit its efforts to industries posing the greatest

relative risk of environmental harm, effectively

deferring effluent guideline development for

* EPA has implemented CWA §§ 301(b) and 304(b) through

a single set of regulations that constitute both effluent guidelines

and effluent limitations. 527 F.3d at 849.

* See Chemical Manufacturers Ass’n v. EPA, 870 F.2d 177,

195, n.9 (5th Cir. 1989); NRDC v. Train, supra, 510 F.2d at 710-

712; NRDC v. Costle, 8 Env't Rep. Cas. (BNA) 2120(D.D.C. 1976),

modified sub. nom, NRDC v. Costle, 12 Env't Rep. Cas. (BNA)

1833 (D.D.C.1976), modified sub. nom, NRDC v. Gorsuch, 17

Env't. Rep. Cas. (BNA) 2013, 12 Envtl. L. Rep. 20570

(D.D.C.1982), modified sub. nom, NRDC v. Ruckelshaus, No.

73-2153 (D.D.C. Aug. 2, 1983); 68 Fed. Reg. 75515, 75519 (Dec. 31,

2003).

ou

unregulated categories of industry deemed by EPA to

be relatively less risky. 55 Fed. Reg. 80, 81-82 (Jan.

2, 1990).

EPA’s 1990 Plan was found unlawful in VRDC

v. Reilly, 1991 U.S. District LEXIS 5334 (D.D.C. Apr.

23, 1991). The court found that “in light of the

compelling need for federal effluent guidelines, the

well documented history of agency inertia, and the

general structure of the Act,” EPA’s intent to

“prioritize” its promulgation of new effluent

guidelines by relative ranking of risk was

“inadequate and not in conformity with the

mandate” of the CWA. Jd. at *25-26. EPA

subsequently entered into a consent decree, which

lasted until 2004, that required EPA to schedule

promulgation of a specified number of new or revised

effluent guidelines.

B. EPA’s Return to Risk-Based Analysis and

EPA’s 2003 Review of ELGs

1. EPA’s 2003 Review of Existing ELGs

On Dec: mber 31, 2003, EPA published its

proposed effluent guidelines plan to govern EPA’s

first post-FRerz//y effluent guidelines review, to be

conducted in 2004 and 2005. 68 Fed. Reg. 75515

(Dec. 31, 2003) (“Proposed 2004 EGP”). The

Proposed 2004 EGP also described EPA’s 2003 ELGs

review. ‘he Proposed 2004 EGP proposed a two-

year EPA review involving a screening level analysis

in the first year and a more-detailed analysis of two

of EPA’s 56 effluent guidelines in the second year.

Td. at 75522.

The Proposed 2004 EGP indicated EPA had

returned to the risk-based prioritization approach

rejected by the court in NRDC v. Reilly. Specifically,

>

re

EPA indicated it planned to identify industries

posing the greatest relative risk of water pollution

impacts and target these industries for revision of

existing effluent guidelines where such industries

were already covered by effluent guidelines or

adoption of new effluent guidelines where such

industries were not yet regulated. Employing this

methodology, EPA limited its 2003 review of ELGs to

attempted identification of a small subset of

categories of industry posing the greatest relative

hazard to water quality. /d. at 75521. EPA did not

evaluate whether economically achievable technology

was available that would warrant more stringent

ELGs for any categories of industries and thus

reached no conclusions in this respect:

For a number of the industries that appeared

to offer the greatest potential for reducing

hazard or risk to human health or the

environment, EPA attempted to gather and

analyze additional data prior to commencing

detailed and costly economic and technology

studies. EPA examined: (1) The pollutants

driving the hazard or risk estimates; (2) the

geographic distribution of facilities in the

industry; (3) any discharge trends within the

industry; and (4) possible links between

industrial point source discharges and

impaired waterbodies identified by EPA,

States, and Tribal governments under CWA

section 303(d).

Td. at 75523 (emphasis added).®

° EPA explained that it had found it too difficult to compile

and/or analyze technological or economic feasibility factors to

screen existing ELGs. /d. at 0112-13; App. 82a - 84a.

7

In 2003, EPA further eliminated from review

categories of ELGs when EPA found that: (1) there

was a lack of available risk assessment data for an

industry, (2) the water pollution problems caused by

an industry were being dealt with more “efficiently”

by other regulatory and non-regulatory means, (3)

regulation of an industry was more appropriately

conducted on a facility-by- facility basis because an

industry had only a few facilities or (4) EPA had

promulgated an effluent guideline for the industry

within the last seven years. /d. at 75521, 75523; 69

Fed. Reg. 53705, 53711, 53716-17 (Sept. 2, 2004).

Employing its “screening” methodology, EPA

identified only two existing ELGs for detailed

evaluation in 2004.’ 68 Fed. Reg. at 75523-24. EPA

thus effectively ignored considerable information it

had received, though not analyzed, on advances in

water pollution abatement technology in a wide

variety of industries. Jd. at 75522-2; App. 82a - 9la.

For example, EPA acknowledged that it: (1) had

“Sector Notebooks” compiling pollution control

technology information on 23 industry sectors, (2),

had recently co-sponsored a conference devoted to

identifying new water pollution abatement

technologies, (3), was aware of extensive information

on such technologies documented in industry trade

association publications, and (4) had gathered

” These were the ELGs for the Organic Chemicals, Plastics

and Synthetic Fibers (OCPSF) industrial category set forth at 40

C.F.R. part 414 and the ELGs for the Petroleum Refining category

set forth at 40 C.F_R. part 419.

detailed information on the pollution abatement

technologies available in five industry sectors and

was gathering such additional information on 15

more industry sectors. Jd. EPA did not analyze this

information, however, to reach any conclusions

whether technological advances documented in such

information sources might constitute basis for new

definition of BPT, BAT or BCT. Jd. at 0187; 68 Fed.

Reg. at 75521.

2. EPA’s 2003 Identification of

Potential New ELGs Candidates

EPA further concluded in its 2003 review that

because it could not identify any industries

discharging toxic or non-conventional! pollutants not

already covered by existing ELGs, it would not

schedule any new ELGs promulgations in its 2004

EGP. 68 Fed. Reg. at 75529. EPA acknowledged

that commentors on EPA's Draft Strategy had

suggested thirteen potential new categories of

industries not currently regulated as targets for new

ELGs. /d. at 75530. EPA further acknowledged that

EPA itself had identified two industries not

currently regulated by ELGs.® /d. at 75528-30. EPA

decided not to identify these industries and schedule

new ELGs promulgation for them under CWA §

304(m)({1)(B) and (C), however. /d. at 75529. EPA

decided it need schedule new ELGs only if: (1)

discharges from unregulated industries pose a

significant environmental risk, (2) the industries

have more than a few facilities, and (3) the

®* These were chemical formulating, packaging, and

repackaging operations and petroleum bulk stations and

termials.

industries are not “subcategories” of industries

regulated by existing ELGs. /d.

Ill. EPA’S 2004 REVIEW OF ELGS

On September 2, 2004 EPA issued its EGP for

2004 and 2005 (“2004 EGP”). 69 Fed. Reg. 53705.

A. EPA’s 2004 Review of Existing ELGs

The 2004 EGP indicated that EPA repeated

the same water quality risk-based screening level

approach from 2003 to identify a small subset of

industries whose ELGs EPA would consider revising

in 2005. 69 Fed. Reg. at 53710. EPA’s 2004 review

did not examine whether economically achievable

improved technologies existed for any industries

besides the small subset EPA targeted in 2003 for

more focused review. Jd. The 2004 EGP stated

EPA’s intent to continue its risk assessment

approach to “screen” which effluent guideline and

effluent limitation categories should be reviewed in

2005 and 2006. See id. at 53717.

In 2004, EPA further copied its 2003 approach

to eliminate ELGs from review when EPA

determined that: (1), there was a lack of available

risk assessment data for an industry, (2) the water

pollution problems caused by an industry were being

dealt with more “efficiently” by other regulatory and

non-regulatory means, (3) regulation of an industry

was more appropriately conducted on a facility-by-

facility basis because there were only a few facilities

in the industry or (4) EPA had promulgated an

effluent guideline for the industry within the past

seven years. Jd. at 53716-17.

Employing its screening methodology, EPA

only considered in 2004 whether revisions were

appropriate for the two ELGs EPA had determined

10

warranted more study in 2003, plus two additional

subcategories of ELGs.? EPA determined that two

subcategories of these industries warranted further

study in years ahead “for possible effluent guidelines

revision.” /d. at 53712." EPA ruled out revision of

the ELGs for most of these industries targeted for

focused review not because EPA determined that

there were no new economically achievable

technologies for these industries, but because (1) the

industries’ discharges did not, in EPA’s estimation,

pose the environmental risk EPA saw as potentially

possible based on its screening analysis or (2) the

industries consisted of only a few facilities. Jd. at

53712-16. EPA concluded whether more effective

economically achievable pollutant reduction

technology is available for only one subcategory of

the 450 subcategories of industry covered by EPA

ELGs (which EPA concluded there was not). /d. at

53712. Thus, EPA ended its 2004 review certain

only that of the 450 subcategories of existing ELGs,

only one still appropriately defines BPT, BAT, and

BCT.

As in 2003, EPA thus effectively ignored

considerable information it had on advances in

® The two categories of industry were the OCPSF industry

and petroleum refining. The two subcategories were chlor-alkali

manufacturing, a subcategory of the inorganic chemicals industry,

and the subcategory of the oil and gas extraction industry

consisting of oil and gas production and exploration facilities in

Cook Inlet, Alaska.

10 The two subcategories were: the vinyl chloride

manufacturing subcategory of the OCPSF category and chlor-

alkali manufacturing.

11

pollution abatement technology for various

industries. Jd. at 53714-15; App. 82a - 91a; 68 Fed.

Reg. at 75522-23. For example, EPA had a state

agency study on advances in pollution abatement

technology in the petroleum industry. EPA declined

to analyze or reach conclusions, however, whether

the technologies documented in that study

warranted new definitions of BPT, BAT or BCT

because EPA found it had insufficient evidence that

the petroleum industry’s current discharges pose

risk of environmental harm. App. 82a - 91a; 69 Fed.

Reg. at 53714-15; 68 Fed. Reg. at 7522-23.

B. EPA's 2004 Identification of

Potential New ELGs Candidates

EPA identified in its 2004 EGP two industries

not yet regulated by existing ELGs, hence candidates

for new ELGs.'' 69 Fed. Reg. at 53719-20. Even for

these new categories, however, EPA did not set a

schedule for enacting new ELGs within three years

as specified by CWA § 304(m)(1)(C). EPA indicated

it would commence rulemaking proceedings for new

ELGs for these industries, but EPA expressly

reserved the possibility of not completing the

rulemaking. /d. at 53719. EPA further reiterated its

view that it had discretion not to schedule

promulgation of new ELGs for industries currently

lacking ELGs that discharge toxic and

nonconventional pollutants under CWA §

304(m)(1)(B) and (C). Jd. at 53718-19.

IV. EPA’S 2005 REVIEW OF ELGS

EPA’s 2005 review of existing ELGs copied the

‘1 The industries were airport deicing operations and

drinking water supply and treatment.

12

same risk-based screening methodology EPA

employed in 2003 and 2004. EPA again ruled out

revision of ELGs based on EPA’s finding that an

industry posed relatively less risk of receiving water

harm than the couple industries EPA deemed posed

the most risk. 70 Fed. Reg. 51042, 51047-500 (Aug.

29, 2005). EPA ran into the same risk assessment

problems it had in 2003 and 2004, often conceding

that data available to it was inconclusive on whether

an industry is actually posing receiving water risks.

Id. at 51052. EPA again conceded it mostly had

failed to examine whether technologies currently

serving as the basis for BAT and BCT in existing

ELGs had been superseded by more modern

pollutant reduction technologies. EPA did start such

a technology-based analysis for two categories of

industry, but EPA was unable to even complete

those two analyses. /d. at 51049. Thus, EPA

reached no conclusions after its 2005 review whether

any of its ELGs still appropriately define BPT, BAT

and BCT and did not commence any new ELGs

promulgation based on its 2005 review.

EPA’s 2005 review of industry candidates for

new ELGs similarly copied EPA’s approach in 2003

and 2004. EPA again deemed it could decline to

schedule new effluent guideline promulgation for

currently unregulated industries if: (1) EPA has not

found these industries’ discharges not to pose

substantial risk of receiving water harm, (2) the

industry consists of only a few facilities, or (3) the

industries are within “subcategories” of existing

ELGs. On these bases, EPA did not schedule any

new ELGs promulgation. /d. at 51056-57.

13

V. THE NINTH CIRCUIT'S CONFLICTING

DECISIONS

A. OCEI

In OCE J, the Ninth Circuit held that EPA

has a non-discretionary CWA duty to consider

technology-based factors set forth in CWA § 304(b)

and § 301(b) when determining whether to revise

ELGs. The Ninth Circuit noted that “the overall

structure of the Act strongly counsels that any

review to determine whether revision is appropriate

must contemplate the mandatory technology-based

factors,” set forth in CWA § 304(b) and § 301(b) ,

though the Ninth Circuit further found that “the

statute does not expressly and unequivocally state as

much.” 506 F.3d at 792. The Ninth Circuit

proceeded alternately to employ traditional

principles of statutory construction and/or the second

step of the Chevron framework to find EPA has a

nondiscretionary duty to consider these CWA §

304(b) and § 301(d) factors when reviewing ELGs.

506 F.3d at 792-93.

The Ninth Circuit’s majority opinion in OCE /

noted the dissentor’s criticism of its use of the

Chevron framework, but deflected this criticism by

noting, one, that it would reach the same result

under traditional principles of statutory

construction or the Chevron framework—and that the

latter only “gives the EPA the benefit of any

ambiguity or doubt in analyzing these interlocking

statutory provisions.” Jd. at 792.

In construing the CWA statutory provisions in

issue, in keepirig with traditional principles of

statutory construction and step one of the Chevron

framework, the Ninth Circuit first considered the

14

facial meaning of these provisions. The Ninth

Circuit found that it was a close question whether

these provisions had a facially plain unambiguous

meaning:

The statute a// but explicitly states that the

review is governed by the revision standards

[set forth in CWA section 304(b)].

Id. at 792 (emphasis added).

The Ninth Circuit proceeded to point out that when

the provisions in issue where looked at in context,

“The only reasonable interpretation of the...

provisions is that they tie the review and revision to

§ 304(b) and § 301(b), respectively, both of which

mandate a technology-based approach.” /d.

Second, the Ninth Circuit looked at “the

common sense reading of the Statute” and found that

“fijt makes no sense that Congress would require

promulgation and revision tethered to

technology-based requirements, but would somehow

silently render discretionary the choice as to whether

to review in light of the statutorily-required

technological criteria.” /d. at 792-93.

Third, the Ninth Circuit examined EPA’s past

interpretation of the CWA and noted that EPA had

previously believed it was required to consider CWA

§ 304(b) and § 301(b)’s technology-based factors

when completing its ELGs reviews. /d. at 793.

Fourth, the Ninth Circuit noted that CWA

legislative history reveals that Congress intended

the CWA to force the advancement of pollution

control technology with the goal of climinating the

discharge of pollutants altogether, rather than

simply attempting to reduce the relatively greatest

pollution risks:

15

(legislative history] demonstrate[s) that a

fundamental purpose of the Act was to shift

pollution control from a focus on receiving

water quality to a focus on the technological

control of effluent.

Id. at 794.

Employing these traditional statutory

construction tools, the Ninth Circuit concluded that

“lajlthough the EPA may determine in its exercise of

discretion that no revision is appropriate, in

conducting its review to reach that decision, the

Agency must attend to the technology-based factors

specifically prescribed by the CWA.” Jd. at 795.

B. OCE IT

In OCE II, the Ninth Circuit reaffirmed its

observations that the CWA plainly intended that

EPA review and consider the capabilities of pollution

reducing technologies in promulgating ELGs:

The plain language of these (relevant CWA]

provisions reflects that the CWA repeatedly

mandates a technology-based approach as a

non-discretionary matter in the promulgation

of the [EPA ELG] regulations, at least as one

methodology among others.

527 F.3d at 850.

The Ninth Circuit also reaffirmed that the

CWA plainly mandates that EPA revise ELGs to

keep pace with technological innovation allowing for

greater pollution reduction:

Further, the statute makes clear that the

regulations must comport with technological

criteria that change over time. The statutory

language is unambiguous that revision

decisions, although discretionary as indicated

16

by the “if appropriate” language, are

constrained by the statute’s mandate as to

what “such regulations” “shall” accomplish.

The statute states that the regulations “shall”

account for the technological factors without

distinguishing between promulgation and

revision.

Id. at 850-51

Finally, the Ninth Circuit again observed that

“the overall structure of the [Clean Water) Act

strongly suggests that any review to determine

whether revision [of ELGs] is appropriate should

contemplate the mandatory technology-based

factors” set forth in CWA section 304(b) that EPA

must consider when promulgating new or revised

ELGs. Jd. at 851. The Ninth Circuit reversed its

OCE Idecision, however, based on a conclusion that

the CWA “does not expressly and unequivocally

state” that EPA must consider CWA section 304(b)’s

technology-based factors or otherwise consider the

capabilities of currently available technologies in

deciding whether to update ELGs. Jd. The court

further held that it could only find that EPA had a

mandatory duty to consider CWA section 304(b)’s

technology-based factors or otherwise consider the

capabilities of currently available cechnologies in

deciding whether to update ELGs if the CWA’s

language contained such a facially unequivocal

command. /d.

17

REASONS FOR GRANTING THE WRIT

I. WHEREAS OCE I PROPERLY EMPLOYED

TRADITIONAL STATUTORY

CONSTRUCTION RULES, OCE II FAILED

TO DO SO.

In OCE Jf the Ninth Circuit correctly

employed traditional tools of statutory construction

and/or the Chevron second step framework in

holding that EPA has a “non-discretionary” duty to

consider the technology-based factors set forth in

CWA § 304(b) and § 301(b) in its required reviews of

ELGs. As this Court has instructed:

The judiciary is the final authority on issues of

statutory construction and must reject

administrative constructions which are

contrary to clear congressional intent... . Ifa

court, employing traditional tools of statutory

construction, ascertains that Congress had an

intention on the precise question at issue, that

intention is the law and must be given effect.

Chevron, 467 U.S. at 843 n.9 (citations omitted)

(emphasis added). See also Earth Island Inst. v.

Hogarth, 484 F.3d 1123, 1131 (9th Cir. 2007)

(Agency statutory “[c]onstructions that are contrary

to clear Congressional intent or frustrate the policy

that Congress sought to implement must be

rejected.”).

In OCE /, the Ninth Circuit simply followed

this Chevron instruction in employing the following

traditional tools of statutory construction: (1), a

review of the whole context of the CWA statutory

language, (2), a common sense reading of the whole

statute, i.e., an analysis of what Congress meant the

18

CWA to accomplish and how, (3), consideration of

EPA's prior inconsistent interpretation of the CWA

provisions in issue, and (4), applicable legislative

history. 506 F.3d at 792-93. Employing these tools,

the Ninth Circuit ascertained a “clear congressional

intent” within the meaning of Chevron that EPA

must consider the technology-based criteria in CWA

§ 304(b) and § 301(b) in reviewing its ELGs. /d. at

792-95.

In Chevron, this Court further instructed that

if after considering traditional principles of statutory

construction, the proper conclusion is that “Congress

did not actually have an intent regarding the”

statutory provision in issue, then the Ninth Circuits

must defer to an agency’s interpretation of a statute

it administers if this interpretation “is a reasonable |

one.” 467 U.S. at 845; see also Whitman v. Am.

Trucking Ass'ns, 531 U.S. 457, 481(2001); Hogarth,

484 F.3d at 1131 (“Deference is due only toa

‘reasonable interpretation” of a statute by a federal

agency). This is commonly referred to as the second

step of the Chevron framework. See, e.g., 506 F.3d

at 792. In OCE J the Ninth Circuit noted that even

if EPA were to be given the benefit of the doubt

called for by the Chevron second step framework,

“the result is the same” because EPA’s interpretation

of the relevant CWA provisions is unreasonable. /d.

OCE J followed a frequent and familiar

approach. Indeed, prior to OCE /7/, no court of

appeals decision held that the courts may not employ

craditional statutory construction tools and/or a

Chevron second step analysis to determine whether

an agency's statutory obligations are mandatory.

Instead, numerous decisions routinely employed the

19

same traditional principles of statutory construction

and/or a Chevron second step analysis to determine

whether a statute evinces a “clear congressional

intent” to impose mandatory duties on federal

agencies. For example, the Ninth Circuit recently

followed just this approach in S.F. BayKeeper v.

Whitman, 297 F.3d 877, 885 (9"" Cir. 2002). In

BayKeeper, the Ninth Circuit found CWA § 303(d)

facially unclear as to whether EPA had a mandatory

duty to establish certain “total maximum daily

loads” on allowable pollutant discharge. The Ninth

Circuit employed a Chevron second step analysis to

determine whether EPA’s interpretation that it

lacked such a mandatory duty was reasonable. Jd.

Courts of Appeals in other circuits have followed the

same approach. In £nvironmental Defense Fund v.

Thomas, the Second Circuit employed traditional

tools of statutory construction, including review of

applicable legislative history, to determine that the

district court had jurisdiction to compel the

Administrator to fulfill his Clean Air Act (“CAA”)

mandatory duty to make some formal decision as to

whether or not to revise certain air pollution

regulations. 870 F.2d 892, 900 (2nd Cir. 1989). In

Dubois v. Thomas, the Eighth Circuit, finding CWA §

309 not facially determinative as to whether EPA

has a mandatory enforcement duty, reviewed the

legislative history and then resorted to a Chevron

second step analysis to determine this mandatory

duty question. 820 F.2d 943, 948-49 (8th Cir. 1987);

see also Monongahela Power Co. v. Reilly, 980 F.2d

272, 278, n. 6 (4th Cir. 1992) ("the existence of a

nondiscretionary duty could be recognized through

application of Chevron's rule of construction."); see

20

also National Resources Defense Council v. EPA

,437 F. Supp.2d 1137, 1157-62 (C.D. Cal. 2006)

(employing traditional rules of statutory

construction, including consideration of overall

statutory purpose and applicable legislative history,

and Chevron second step consideration of

reasonableness of EPA interpretation to determine if

EPA had failed to comply with a nondiscretionary

duty to promulgate certain ELGs); S’erra Club v.

Browner, 130 F. Supp.2d 78, 90 (D.D.C. 2001)

(Chevron review is appropriate when citizen brings

suit claiming agency has failed to perform

nondiscretionary duty); Save the Valley, Inc. v. EPA,

99 F. Supp.2d 981, 984-86 (S.D. Ind. 2000)

(examining legislative history to construe ambiguous

CWA § 309 to impose mandatory duty on EPA to

enforce the CWA); Environmental Defense Fund,

Inc. v. Browner, 1995 WL 91324, *2 (N.D. Cal. 1995)

(engaging in Chevron second step review to

determine if the Agency had failed to comply with a

CAA nondiscretionary duty to promulgate certain

rules by required deadline).

In Sierra Club v. Train, the Fifth Circuit

found that it could not resolve whether EPA has a

nondiscretionary duty to enforce the CWA based

solely on the statutory language. 557 F.2d 485 (5th

Cir. 1977). Noting that “[t}]he substantive issue in

this case is one of statutory construction,” the Fifth

Circuit then turned to the same “extrinsic aids”

utilized by the Ninth Circuit in OCE Jbut rejected

by the Ninth Circuit in OCE JF. the “administrative

agency's interpretation, along with the legislative

histery and the statute as a whole.” /d. at 489. For

additional example, in NRDC v. Train, the D.C.

21

Circuit found CWA § 304(b)(1)(A) ambiguous as to

whether EPA had a nondiscretionary duty to

promulgate certain ELGs by 1973. 510 F.2d at 706-

710. The D.C. Circuit turned to legislative history to

discern what part of EPA’s duty was mandatory: “It

is our view that the Act and its Jegislative history

rein in the Administrator's discretion.” Jd. at 706

(emphasis added).

UCE IT relies upon the Ninth Circuit’s

contrary reading of a single case, Sierra Club v.

Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987). The

Ninth Circuit’s OCE J/ decision, however,

misconstrues that case. In Thomas, the D.C. Circuit

expressly acknowledged that a mandatory duty need

not be expressly stated by a statute, but instead can

be, in some circumstances, implied by a statute. Jd.

at 791. The D.C. Circuit did hold that it could not

infer a mandatory duty from the “from the overall

scheme” of the specific Clean Air Act provisions in

issue in that case, not because the court found it

always improper per se when faced with an

ambiguous statute to construct a mandatory duty

using traditional statutory construction tools, but

because the CAA provisions in issue did not lend

themselves to such a construction. In Thomas, the

D.C. Circuit faced a narrow type of mandatory duty

issue not at issue in this case. whether agency delay

in premulgating regulations can constitute breach of

a mandatory duty or at most unreasonable delay in

performing a discretionary duty when a statute

contains no explicit deadline for promulgating the

regulations. As the D.C. Circuit pointed out, finding

that an agency has a mandatory duty to promulgate

regulations when Congress has created no “readily

22

ascertainable” deadline for action is essentially akin

to holding that an agency has a mandatory duty not

to unreasonably delay its action. To hold that

agencies have a mandatory duty not to unreasonably

delay would be no different, at the end of the day,

from holding that agencies have a mandatory duty

not to abuse their discretion. This would, of course,

make every administrative action necessarily a

mandatory duty—thus negating the long-recognized

distinction between claims for mandatory breach and

abuse of discretion. /d. at 792. In contrast to

Thomas, upholding Petitioners’ claim in this case

does not require transforming all administrative

actions into mandatory duties. Petitioners here

argue only that EPA must consider certain criteria,

set out by Congress in CWA section 304(b), in

performing ELG reviews that the CWA mandates be

performed by a date certain: once every year. Using

traditional tools of statutory construction to

transform the CWA’s “strong suggestion” that EPA

consider these criteria in performing EPA’s ELG

reviews into an EPA mandatory duty would not, as

in Thomas, lead to all administrative actions being

viewed as mandatory duties.”

2 The dissent in OCE J (though not the Ninth Circuit

decision in OCE Jd) also sought to rely on Farmers Union Cent.

Exch., Inc. v. Thomas, 881 F.2d 757, 760 (9th Cir. 1989), but this

reliance, too, was misplaced. Farmers noted, without expressly

agreeing, that some Courts have found that only “a clear-cut”

nondiscretionary duty gives rise to CAA citizen suit jurisdiction.

The decision says nothing, however, about Aow Courts are to

determine whether nondiscretionary duties are clear-cut and

certainly does not support that Courts may not employ traditional

statutory construction tools or Chevron Second Step analysis to

find such duties.

23

II. OCE I CORRECTLY APPLIED STATUTORY

CONSTRUCTION RULES, AND THE

COURT SHOULD REINSTATE OCE IS

RULING.

As noted, in OCE J, the Ninth Circuit did not

defer to EPA’s interpretation of the CWA provisions

in issue because this interpretation ignored the

statute’s whole context, common sense reading and

applicable legislative history and furthermore was

inconsistent with prior EPA interpretations. 506

F.3d at 792-93. OCE# // did not reverse or criticize

how the Ninth Circuit used traditional statutory

construction tools and/or Chevron second step

analysis in OCE I OCE IJ merely found it

unnecessary to use traditional statutory construction

tools and/or conduct Chevron second step analysis.

See 527 F.3d at 851.

Thus, OCE // essentially left intact that EPA’s

statutory interpretation of the CWA, once examined

using traditional statutory construction tools or the

Chevron second step framework, “strains credulity to

the breaking point,” “makes no sense,” and amounts

to “ignoring Congress' mandate as to what the

[EPA’s effluent guidelines] regulations and

limitations ‘shall’ accomplish’—requiring industries

to limit their pollution discharges to the level

achievable with up-to-date technologies. 506 F.3d

at 795, 792-93. Thus, OCE JT now leaves judicial

power so truncated as to allow EPA the latitude to

administer the CWA in a fashion grossly at odds

with clear congressional intent—as revealed by well-

familiar tools of statutory construction—simply

24

because halting this EPA approach would require

looking beyond the immediate clauses of the statute

in issue to construct a mandatory duty using those

tools. ‘This radical truncation of judicial review must

be rejected. As discussed above, OCE /7 departed

from ample precedent in rejecting that traditional

statutory construction tools and/or the Chevron

second step framework could and should be used to

construct a mandatory EPA duty reflective of

Congress’s clear intent.

II. EPA’S NONDISCRETIONARY DUTY

INCLUDES CONSIDERING

TECHNOLOGY-BASED FACTORS IN

REVIEWING ELGs.

Before the Ninth Circuit, EPA erroneously

argued that, under CWA § 505, a district court’s

jurisdiction extends only to ordering it to do an ELG

review, but not to directing it as to whether to

consider CWA § 304(b) and § 301(b)’s_technology-

based criteria in performing this review. EPA

ignored Bennett v. Spears directive “that discretion

as to the substance of the ultimate decision does not

confer discretion to ignore the required procedures of

decisionmaking.” 520 U.S. 154, 172 (1997); see 506

F.3d at 793; see also Hogarth, 484 F.3d at 1131

(agency "may not ignore factors Congress required be

taken into account"). In sum, the Ninth Circuit in

OCE Iheeded well-established rules in finding that

EPA mandatory duties, and thus CWA § 505

jurisdiction, extend to considering factors that

Congress mandated EPA to consider when reaching

an ultimately discretionary decision. See also

Florida PIRG v. EPA, 386 F.3d 1070, 1087-88 (11th

Cir. 2004) (EPA has mandatory duty to consider

25

statutory criteria for decisions as “the only way in

which the EPA can satisfy a mandatory duty is by

actually discharging that obligation in the manner

specifically required by the statute.”); Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

415-17 (1971) (in reviewing agency action “the Ninth

Circuit must consider whether the decision was

based on a consideration of the relevant factors.”)

ITV. EPA’S ELG REVIEW IS A JUDICIALLY

REVIEWABLE ACTION.

Before the Ninth Circuit, EPA erroneously

argued that under Norton v. Southern Utah

Wilderness Alliance, 542 U.S. 55, 65-72 (2004) EPA’s

ELG review is not a reviewable “discrete action.”

Norton is not on point for several reasons, as the

Ninth Circuit correctly held in OCE L"* One,

Norton involved a challenge to a substantive agency

program and held only that before such a

substantive action can be challenged, it must be

sufficiently narrow and “discrete.” In this case, OCE

is seeking review only of EPA failure to follow

mandated procedures in an environmental review. If

environmental reviews foreclose options on future

specific action, such reviews themselves are

reviewable final agency action even if they are

broadly scoped. Laub v. U.S. Dep't of Interior, 342

F.3d 1080, 1089 (9th Cir. 2003). By determining

whether ELGs will be updated, EPA’s ELG reviews

meet this test.

Even if, however, EPA’s reviews of ELG: must

be “discrete” actions to be subject to review, they

would qualify. BLM’s perpetual efforts at issue in

'* The Ninth Circuit did not revisit this holding in OCE JI.

26

Norton to implement broad mandates to manage

vast tracts of federal land consistent with vaguely

framed overall goals of balancing wilderness

preservation against competing concerns is not

analogous to EPA’s CWA duty to review ELGs, as

the Ninth Circuit correctly held. 506 F.3d at 795.

Whereas BLM’s amorphous actions at issue in

Norton had no set end, the CWA gives EPA specific

recurring deadlines to perform a single focused task:

annually review its ELGs. Whereas the statutory

provisions in Norton were too vague for judicial

oversight, Congress has provided a clear basis for

oversight in mandating that EPA consider specific

criteria in reviewing EPA’s discrete set of ELGs. See

also Environmental Defense Fund, 870 F.2d at 898-

900.

CONCLUSION

The Ninth Circuit’s ruling in OCE J/has

created an intra- and inter-circuit split in authority

in erroneously holding, contrary to its ruling in OCE

J, that traditional principles of statutory construction

and/or the framework for judicial review cannot be

used to determine whether a statute imposes a

mandatory duty on an administrative agency.

Accordingly, to re-establish long-standing rules of

statutory construction as they apply to an important

question of administrative law, this Court should

grant certiorari.

Respectfully submitted,

Michael A. Costa, Our Children’s Earth

3701 Sacramento St. #194

San Francisco, CA 94118

(415) 342-0042

Counsel for Petitioners

27