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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0193%3A1. Public record. Not legal advice.