Opposition Brief — Our Children's Earth Foundation Foundation v. Environmental Protection Agency (No. 08-225)

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| OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OUR CHILDREN’S EARTH FOUNDATION AND

ECOLOGICAL RIGHTS FOUNDATION,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UnitepD StaTES Court oF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

EFFLUENT GUIDELINES INDUSTRY COALITION

Davip T. BALLARD

Counsel of Record

FrREpRIC P ANDES

BARNES & THORNBURG LLP

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606-2809

(312) 357-1313

Counsel for Respondent

Effluent Guidelines

Industry Coalition

218989 ce

COUNSEL PRESS

{800) 274-3321 + (800) 359-6859

QUESTION PRESENTED

Whether EPA has a non-discretionary duty to

conduct a technology-based approach in reviewing

effluent limitation guidelines and effluent limits under

sections 301(d), 304(b), and 304(m) of the Clean Water

Act. 33 U.S.C. §§ 1311(d), 1314(b) & (m).

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, the Effluent Guidelines

Industry Coalition (“EGIC”) makes the following

disclosure:

EGIC does not have a parent corporation, and there

is no publicly held corporation that owns 10% or more of

EGIC’s stock. EGIC states that its members are made up

of numerous industrial entities and trade associations that

own and operate (or have members that own and operate)

regulated industrial facilities located in the United States.

EGIC’s members include, but are not limited to, such

entities as the American Petroleum Institute and the

American Forest and Paper Association.

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

REASONS FOR DENYING THE PETITION

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TABLE OF CITED AUTHORITIES

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FEDERAL CASES

Barnhart v. Sigmon Coal Co. Inc.,

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Connecticut Nat. Bank v. Germain,

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Our Children’s Earth Foundation v. EPA,

506 F.3d 781 (9th Cir. 2007) .............. passim

Our Children’s Earth Foundation v. EPA,

527 F.3d 842 (9th Cir. 2008) .............. passim

FEDERAL STATUTES

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OPINIONS BELOW

The Ninth Circuit decision at issue is reported at

527 F'3d 842 (9 Cir. 2008). That decision resulted from

a grant of a petition for panel rehearing, and the Ninth

Circuit provided that its earlier decision reported at 506

F.3d 781 (9 Cir. 2007) was withdrawn and replaced.

App. at 3a.’

STATEMENT OF THE CASE

On October 29, 2007, the Ninth Circuit ruled that

EPA has a mandatory duty to use a technology-based

approach in reviewing effluent limitation guidelines and

effluent limitations (““ELGs”) under sections 301(d),

304(b), and 304(m) of the Clean Water Act (the “CWA”).

App. at 5la-52a. Because of that mandatory duty, the

Ninth Circuit found that Petitioners could bring a

citizen suit under CWA § 505(a)(2) to enforce EPA’s

nondiscretionary duties. See 33 U.S.C. § 1365(a)(2). In

response to the Ninth Circuit’s decision, EPA timely filed

a petition for rehearing en banc on January 24, 2008.

On May 23, 2008, the Ninth Circuit panel granted

rehearing. App. at 3a.2 The Ninth Circuit panel stated:

The opinion filed October 29, 2007, slip op.

14215, and appearing at 506 F.3d 781, is

withdrawn. It may not be cited as precedent

by or to this court or any district court of the

1. Citations to “App. at _a,” are to the Appendix attached

to the Petition for Writ of Certiorari.

2. The Ninth Circuit panel denied the petition for rehearing

en banc as moot. App. at 3a.

Ninth Circuit. It is replaced by the

concurrently filed opinion.

Id. The Ninth Circuit held that CWA §§ 301(d), 304(b),

and 304(m) do not expressly mandate EPA to use a

technology-based approach to review ELGs. App. at 19a

(“Nothing in the CWA specifically obligates the EPA to

review the effluent guidelines and limitations using a

technology-based approach.”) (emphasis in original). As

a result, the Ninth Circuit found that the CWA

provisions at issue fall “short of imposing a mandatory

duty and thus the review criteria are not properly before

the court under § 505(a)(2)” of the CWA. App. at 20a.*

On August 21, 2008, Petitioners filed a petition for writ

of certiorari.

REASONS FOR DENYING THE PETITION

The Ninth Circuit decision is correct and does not

conflict with any decision of this Court or any other court

of appeals. Further review is not warranted.

1. Petitioners argue that review is appropriate

because of an intra-circuit conflict of authority. That

argument lacks merit. Petitioners argue the flawed

premise that “OCE JI improperly reversed OCE I’s

holding . . .” thereby creating a split in the Ninth Circuit

because OCE II is “contrary to [the Ninth Circuit’s]

ruling in OCE /...” Pet. at 2. OCE I], however, did not

3. For purposes of clarity, EGIC will refer to the Ninth

Circuit’s initial withdrawn opinion as OCE J, and its subsequent

opinion on rehearing as OCE JJ. However, EGIC makes no

admission that OCE I] is a viable opinion, as it has been

withdrawn and no longer exists. App. at 3a.

reverse OCE J, but rather it withdrew and replaced OCE

I, rendering the first decision a nullity. As stated in OCE

II, “[OCE I\ is withdrawn. It may not be cited as

precedent by or to this court of any district court of the

Ninth Circuit. It is replaced by the concurrently filed

opinion [7.e., OCE I/).” App. at 3a. Instead of reversing

OCE I, OCE II withdrew its previous decision, rendering

OCE I a nonexistent opinion that can no longer be cited

as precedent. Petitioner’s argument of an intra-circuit

split is fundamentally faulty as OCE IJ cannot conflict

with a nonexistent decision. Thus, Petitioners’ assertion

of an intra-circuit split fails because OCE / is a non-

opinion. There is no intra-circuit split in the Ninth

Circuit on the issue of whether EPA has a non-

discretionary duty to conduct a technology-based

approach in reviewing ELGs under CWA §§ 301(d),

304(b), and 304(m). The Ninth Circuit has established

OCE II as the only controlling authority on that issue.

Moreover, even assuming arguendo that there is an

intra-circuit conflict as asserted by Petitioners, such a

conflict is insufficient to warrant review. Rule 10 of the

Court’s rules provides the “character of the reasons the

Court considers” in determining whether to grant a

petition for writ of certiorari as conflicts between 1) two

different circuit courts of appeals; 2) a court of appeals

and a state court of last resort on an important federal

question; 3) two different state courts of last resort on

an important federal question; or 4) a state court or court

of appeals and this Court on an important federal

question. S. Ct. R. 10(a) - (c). An intra-circuit conflict is

not listed. Instead, Federal Rule of Appellate Procedure

35(a) provides the mechanism for resolving intra-circuit

disputes through en banc or panel rehearing, which is

“ordinarily ... not ordered unless: (1) en banc

consideration is necessary to secure or maintain

uniformity of the court’s decisions .. .” Fed. R. App.

P. 35(a). The Ninth Circuit was capable of resolving any

conflict and maintaining uniformity in its intra-circuit

authority that may have occurred from issuing

two opinions in this case. Indeed, OCE I/ clarified the

Ninth Circuit’s exact position on EPA’s duties under

CWA §§ 301(d), 304(b), and 304(m). App. at 3a. As

provided above, the Ninth Circuit resolved any issues

that could have resulted in a conflict by withdrawing

OCE I and replacing it with OCE JJ. Petitioners’

assertions about an intra-circuit split fail to support

review of this case.

2. Petitioners also claim that review is appropriate

to resolve an inter-circuit conflict. That claim is not

persuasive. Petitioners do not cite to any case from

another circuit court of appeals that involves an

interpretation of CWA §§ 301(d), 304(b), and 304(m)

related to the issue at bar, so there is no conflict between

the Ninth Circuit decision and a decision of another

circuit. Petitioners argue that in OCE //, the Ninth

Circuit failed to employ “traditional principles of

statutory construction and/or a Chevron second step

analysis” in interpreting CWA §§ 301(d), 304(b), and

304(m). Pet. at 20. Petitioners then list numerous cases

from other circuits that interpreted different statutory

provisions under the CWA and the Clean Air Act to find

that EPA had mandatory duties under those provisions.

Id. at 20-21. Those decisions do not create a conflict with

the Ninth Circuit decision that examined the scope of

CWA §8§ 301(d), 304(b), and 304(m). Instead, Petitioners

merely show that there are other circuit courts that

interpreted entirely different statutory language in

other environmental provisions than those involved in

this case, and found that those provisions imposed

mandatory duties on EPA. In OCE IJ, the Ninth Circuit

correctly interpreted CWA §§ 301(d), 304(b), and 304(m)

based on the plain language of the statutory provisions.

Petitioners have shown nothing more than the fact they

dislike OCE J/’s ruling and would have preferred that

the Ninth Circuit impose a non-discretionary duty.

The Ninth Circuit ruled on an issue of first

impression (thus, it could not create an inter-circuit

split): whether EPA is mandated to conduct a

technology-based approach in reviewing ELGs under

CWA §§ 301(d), 304(b), and 304(m). App. at 19a-20a. The

Ninth Circuit found that based on the plain language of

the CWA provisions, “[n]othing in the CWA specifically

obligates the EPA to review the effluent guidelines

and limitations using a technology-based approach.”

Id. at 19a (emphasis in original). The Ninth Circuit then

found that because of the absence of any express

provision compelling EPA to conduct a technology-

based approach, Petitioners could not bring a citizen

suit to compel mandatory action under CWA § 505(a)(2).

Td. at 19a-20a. The Ninth Circuit further stated that it

was nut conducting a full Chevron analysis because it

was not determining whether to defer to EPA’s

interpretation of a statute, but only determining

whether CWA §§ 301(d), 304(b), and 304(m) create a

mandatory duty, such that a citizen suit could be filed

under CWA § 505(a)(2). /d. at 20a. This analysis was not

error, let alone a decision that conflicts with other courts

of appeal, as the Ninth Circuit found that the plain

language of CWA §§ 301(d), 304(b), and 304(m) lacked

the express and unequivocal language that is necessary

to trigger a mandatory duty that could be subject to a

CWA § 505(a)(2) suit. This interpretation followed the

bedrock construction principle that the courts must

follow the plain language of a statute. See Barnhart v.

Sigmon Coal Co. Inc., 534 U.S. 488, 461-62 (2002)

(quoting Connecticut Nat. Bank v. Germain, 503 U.S.

249, 253-54 (1992)) (“We have stated time and again that

courts must presume that a legislature says in a statute

what it means and means in a statute what it says

there.”). Thus, the Ninth Circuit correctly interpreted

CWA §8§ 301(d), 304(b), and 304(m). Petitioners fail to

establish an inter-circuit split that would justify review.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,