Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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AND at

BRIEFS Nos. 11-338 & 11-347

IN THE

Supreme Court of the Anited States

DouG DECKER, et a/.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

GEORGIA-PACIFIC WEST, INC., et al,

Petitioners,

We

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICI CURIAE

LAW PROFESSORS IN SUPPORT

OF PETITIONERS

KEVIN P. HOLEWINSKI BRIAN J. MURRAY

YAAKOV M. ROTH Counsel of Record

JONES DAY THOMAS V. SKINNER

51 Louisiana Ave. NW CHARLES T. WEHLAND

Washington, DC 20001 JONES DAY

77 W. Wacker Dr.

Chicago, IL 60601

(312) 782-3939

bjmurray@jonesday.com

Counsel for Amici Curiae

(Scam ARH SAS at EN AR a PE EC ERED LTA OIRO ts EN OCTETS SEDI TE A CAEL tN. te BN

Library of Congrece

Law Library

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .....................c0..csseceeeee 1

SUMMARY OF ARGUMENT. ...................cseccesceeeeeees 5

el 7

I. The Ninth Circuit Doubly Denied

Deference to the EPA’s Reasonable

Classification of Forest-Road Runoff............... 7

A. The EPA reasonably categorized

natural runoff from forest roads

as a “nonpoint source” of water

SIA sibsiliscshcthciitesestuhaiadtadioneniaemianinaiipéinieniie 9

B. The EPA also reasonably declined

to characterize natural forest-

road runoff as “associated with

i certiensmnnnen 15

II. There Is Every Reason to Accord

Deference Here, and No Reason to

Discard the EPA’s Considered, Expert,

and Long-Held Judgment. .....................00-00000 19

A. Only deference to the EPA’s

longstanding approach toward

forest-road runoff would respect

fair notice and the rule of law............. 20

B. Determining the best approach

toward water pollution is within

the EPA’s unique expertise, as

Congress understood. ...............2...ee00e 24

il

TABLE OF CONTENTS

(continued)

Page

C. Deferring to the EPA would

encourage it to write specific

regulations, whereas judicial

usurpation would encourage

agencies to promulgate only

vague generalities. ............:s.ccsscsseeeerees 28

CERT A FIEIGS ecceccnsccsssscssnccssisniensnnnniidimiininentniigunnienn 32

iil

TABLE OF AUTHORITIES

CASES

Auer v. Robbins,

dst sr enneencnasotsitg passim

Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, Inc.,

i nme 24

Dlue Mountains Biodiversity Project v.

Forsgren,

309 F.3d 1181 (9th Cir. 2002).............0.0....0. 10, 11

Bowen v. Georgetown Univ. Hosp.,

a li anrrnscunnnnennnnnenes 21

Chevron USA Inc. v. Natural Res. Def.

Council, Inc.,

I a ctenimemonnne passim

Christopher v. Smithkline Beecham Corp.,

eee 21, 22, 23, 29

Coeur Alaska, Inc. v. Se. Alaska Conservation

Council,

EE ee 21

Conservation Law Found. v. Hannaford Bros.

Co.,

327 F. Supp. 2d 325 (D. Vt. 2004),

affd, 139 F. App’x 3381 (2d Cir. 2005)................ 27

Envt! Def. Ctr., Inc. v. EPA,

344 F.3d 832 (9th Cir. 2003).......................... 16, 27

INS v. Cardoza-Fonseca,

TE ee Se 25

Morton v. Ruiz,

I a tial 24

lv

TABLE OF AUTHORITIES

(continued)

Page(s)

N. Plains Res. Council v. Fid. Exploration &

Dev. Co.,

BBS FBG DUBS GER Cae. BODB).n.ccccseccccscccoccessesccesees g

Nati Wildlife Fed’n v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982).................. 22, 26, 31

Natural Res. Def. Council, Inc. v. Costle,

S66 F.2d 19GS C).C. Cav. 1077) ....ccocscccsccsccccesccsees 26

Negusie v. Holder,

PI al 25, 26

Paralyzed Veterans of Am. v. DC Arena, L.P.,

TAT FB BID GING. Gap. BED vncccccnccceccccsscccccescess 28

Talk Am., Inc. v. Mich. Bell Tel. Co.,

Se Rs | SST a eee 20, 29, 30

Thomas Jefferson Univ. v. Shalala,

isi 29, 30

United States v. Earth Sciences, Inc.,

599 F.2d 368 (10th Cir. 1979).............c. ce ceeeceee eee 11

United States v. Shimer,

tel 24, 26

CONSTITUTIONAL AND STATUTORY AUTHORITIES

OR tat 20

| Eee en ear ee mn Re EE 20

ee ae I. ccc cicclinnisinanmtiinnbansicimpoaiin 7

I eel 10

Dr i aati ead 9,10

A I ai ail alal allae 10

ae aaa: Sb I i snniecednnsicessaimsiinnanienacnindenuniatiinn 9,10

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Se nis cncinccasiemcinenionnbetibanininnsiondaiiin 15, 16, 17

NN Haina iceidcicininindininaansiemmnigeaevauiidians 12

OTHER AUTHORITIES

| sneer sees oeres passim

I I irivctcccecensinnsinsestarninctinniacetornsentit 14, 30

41 Fed. Reg. 24,709 (June 18, 1976)................. 13, 14

41 Fed. Reg. 6281 (Feb. 12, 1976) .........0000. 13, 22 ,30

55 Fed. Reg. 20,521 (May 17, 1990)..............cccceeeees 22

65 Fed. Reg. 43,586 (July 13, 2000) ...................00... 22

77 Fed. Reg. 30473 (May 23, 2012)...................20000 14

Ba Te: By SED sitettccrecctneniveconscensanenss 27

Or. Admin. R. 629-G625-O0330(1) .........00...cccseccssocsseees 12

John Manning, Constitutional] Structure and

Judicial Deference to Agency Interpretations

of Agency Rules, 96 Colum. L. Rev. 612

EIEN isdcheneadindndetiniieiulediainieinditaippnansdiatininnndtintds 28, 29, 31

STATEMENT OF INTEREST!

Amici curiae are professors of law who specialize

in the areas of administrative law and environmental

law. They have a strong interest in the proper

understanding and application of this Court’s various

doctrines according judicial deference to the decisions

and determinations of expert agencies such as the

Environmental Protection Agency. In the view of

amici curlae, those doctrines should and do require

reversal of the Ninth Circuit’s decision below.

David S. Day is a Professor of Law at The

University of South Dakota Law School. Prior to

joining the faculty at South Dakota, he was in private

practice at Latham & Watkins in Los Angeles. He

has also been a visiting professor at McGeorge Law

School and the University of Iowa College of Law.

Professor Day teaches courses on constitutional law,

economic rights, civil procedure, and civil rights

litigation. His academic scholarship includes

publications on these topics, and he is co-author of a

constitutional law casebook, Cases and Matertals on

Constitutional Law (5th ed. 2009).

James L. Huffman is Dean, Emeritus of Lewis &

Clark Law School and formerly the Erskine Wood Sr.

Professor of Law at Lewis & Clark, where he served

on the faculty from 1973 to 2011. He is a member of

the Hoover Institution Task Force on Property

Rights, Freedom and Prosperity; serves on the

Federalist Society Property and Environment

1 Counsel for all parties consented to the filing of this brief. No

counsel for a party in this case authored the brief in whole or in

part, and nobody, other than amci or their counsel, has made a

monetary contribution to its preparation or submission.

2

Practice Group; is a Trustee of the Rocky Mountain

Mineral Law Foundation; and sits on the Oregon

Citizens Initiative Review Commission. Dean

Huffman has written extensively on environmental

and natural resources law, including on issues

relating to federal public lands and national forests.

Jason Scott Johnston is the Henry L. & Grace

Doherty Charitable Foundation Professor of Law and

Nicholas E. Chimicles Research Professor in Business

Law and Regulation at the University of Virginia

Law School. He was formerly on the faculty of the

University of Pennsylvania Law School; has been a

visiting professor or held fellowship appointments at

Yale Law School, the University of Southern

California Gould School of Law, the American

Academy in Berlin, and the Property § and

Environment Research Center; and has served on the

Board of Directors of the American Law and

Economics Association, the National Science

Foundation’s Law and Social Science grant review

panel, and the Board of the Searle Civil Justice

Institute. His scholarship has examined a wide

range of subjects in natural resources and

environmental law. He is the editor of and a

contributor to the book Jnstitutions and Incentives in

Regulatory Science (2012).

Donald J. Kochan is a Professor of Law at

Chapman University School of Law. Prior to joining

Chapman, he was a visiting Assistant Professor of

Law at George Mason University School of Law and

an Olin Fellow at the University of Virginia School of

Law. He teaches courses in environmental and

natural resources law, property, law and economics,

federal courts, and administrative law. His academic

3

scholarship has included _ publications on

environmental, natural resources, and administrative

law issues, such as defining point and nonpoint

source pollution, evaluating stormwater runoff

regulation, and analyzing standards for the

sufficiency of agency reasoning in administrative

rulemaking.

Alfred R. (Fred) Light is Director of the Graduate

Program in Environmental Sustainability and

Professor of Law at the St. Thomas University School

of Law in Miami Gardens, Florida. He is a LEED

Green Associate and has been designated a Certified

Sustainability Manager. He has taught courses in

environmental and administrative law since 1989,

including courses on comparative water law and

ecology and ecosystem management for lawyers.

Roger E. Meiners is Chairman of the Department

of Economics and Goolsby Distinguished Professor of

Law and Economics at the University of Texas at

Arlington and a Senior Fellow at the Property and

Environment Research Center in Bozeman, Montana.

He has also been a faculty member at Texas A&M

University, Emory University Law School, the

University of Miami, and Clemson University, and

was a Regional Director for the Federal Trade

Commission and a member of the South Carolina

Insurance Commission. His research focuses on

common law and market solutions to environmental

issues and on the economics of higher education.

Andrew Morriss is the D. Paul Jones, Jr. &

Charlene Angelich Jones Chairholder of Law at the

University of Alabama School of Law. He is affiliated

with the Property and Environment Research Center

in Bozeman, Montana, the Regulatory Studies Center

4

at George Washington University, the Institute for

Energy Research, and the Mercatus Center at George

Mason University. In addition, he is a Research

Fellow at the New York University Center for Labor

and Employment Law and chair of the editorial board

of the Cayman Financial Review. His scholarship

focuses on regulatory issues involving environmental,

energy. and offshore financial centers. Professor

Morriss is the author or coauthor of more than sixty

book chapters, scholarly articles, and _ books,

primarily on regulatory and administrative law

issues.

Ronald J. Rychlak is the Mississippi Defense

Lawyers Association Professor of Law at the

University of Mississippi School of Law, where he has

been on the faculty since 1987. Prior to joining the

faculty. Professor Rychlak practiced law with Jenner

& Block in Chicago, and he served as a clerk to Hon.

Harry W. Wellford of the U.S. Court of Appeals for

the Sixth Circuit. He is a member of the Mississippi

Advisory Committee to the U.S. Civil Rights

Commission and the committee appointed by the

Mississippi Supreme Court to revise that state’s

criminal code. He the author or coauthor of seven

books, including #nvironmental Law: Thompson

Reuters Law for the Layperson Series (2011).

5

SUMMARY OF ARGUMENT

I. Congress delegated administration of the Clean

Water Act (“CWA”) to the Environmental Protection

Agency (“EPA”)—not the Ninth Circuit. The EPA, for

its part, made clear in regulations that timber

companies need not, for two independent reasons,

obtain discharge permits for natural runoff from

forest roads. Over the course of nearly forty years,

the agency has never departed from that view. But

the court below, ignoring the EPA’s expertise, held to

the contrary. In light of the deference properly

accorded to agency constructions of ambiguous

statutes and regulations, that holding was error.

A. Soon after the CWA was enacted, the EPA

reasonably determined that rainfall-induced runoff

from forest roads does not require a CWA permit, as

it is properly classified as a “nonpoint source” of

pollution—whether it reaches navigable waters on its

own, or is channeled there by ditches. After all, while

the CWA’s definition of “point source” is intentionally

vague, it is clear that natural runoff, in the ordinary

course, is a quintessential nonpoint source. And the

characteristics that make it so—like the inability to

trace its pollutants to a discrete, identifiable act or

place—are equally present when the runoff reaches

navigable waters through a drainage system. Yet the

Ninth Circuit concluded that such indisputably

“nonpoint source” runoff unambiguously transforms

into a “point source” when channeled to navigable

waters through a system of ditches and culverts, of

the sort mandated by the State of Oregon to

minimize the runoff's environmental impact.

B. After Congress exempted from the CWA’s

permit scheme all but five categories of stormwater

6

discharge, the EPA issued regulations explicating

those categories. Under these rules, forest-road

runoff is not “associated with industrial activity’—

sensibly, given that forestry is hardly industrial;

forest roads are used for many purposes; and the

linkage between forest roads and logging is limited to

the timber companies’ use of the roads to drive to and

from logging sites. Yet, again, the court below

thought it knew better, ruling that the runoff is so

associated.

UU. Deference to agencies charged with

administering statutory schemes has many benefits.

Of course, at least in some cases, it also has costs,

and so it behooves this Court to examine carefully the

propriety of deference in each particular case. Here,

though, such an examination reveals that there is

every reason to defer to the EPA—and no reason to

withhold that deference.

The values of fair notice and predictability may

counsel against deference when an agency reverses

its position without due warning or good cause. But

the EPA’s approach to forest-road runoff has been a

model of consistency for nearly four decades,

practically since the CWA was enacted. Similarly,

the relative competences of agencies versus courts

may suggest that judges take the lead on pure

questions of statutory interpretation. But the legal

standards here are not disputed; forest-road runoff

presents a question of application, implicating the

EPA’s core domain of environmental policy. Finally,

it may create perverse incentives for courts to blindly

adopt an agency’s post hoc construction of its own

vague regulations. But here the EPA spoke precisely

7

and definitively to the proper application of the

determinative statutory terms.

If the EPA is ever entitled to deference, it is here:

in applying vague statutory definitions to a concrete

scenario and thereby selecting a suitable method of

regulation for a particular source of water pollution,

clearly and consistently for over thirty-five years.

ARGUMENT

I. The Ninth Circuit Doubly Denied Deference to

the EPA’s Reasonable Classification of Forest-

Road Runoff.

The Clean Water Act, 33 U.S.C. § 1251 et segq.,

designed to address the highly complex and

multifaceted problem of water pollution in the United

States, necessarily relies on various categorizations

and classifications to break that larger problem into

more manageable segments. Those segments, in

turn, are addressed in different ways with due

sensitivity to the nature of the problem, including its

relative priority, and the feasibility of potential

solutions. The EPA, of course, plays a leading role in

administering the regime created by the CWA,

including the rules and procedures that give it life.

This case turns on two questions of categorization

under the CWA. First, when rain washes sediment

from forest roads and surrounding lands into ditches

and ultimately into rivers or lakes, is the resulting

pollution the result of a “point source” discharge?

Second, is this runoff “associated with industrial

activity’? If the answer to e/ther question is “no,”

then the timber companies who maintain these roads

need not obtain permits under the CWA’s National

Pollutant Discharge Elimination System (“NPDES”).

8

Such discharges would instead be regulated by the

States, under other parts of the CWA and state law.

The EPA has answered “no” to both questions. In

its view, natural runoff from forest roads is neithera

“point source” of water pollution nor “associated with

industrial activity.” Therefore, it is doubly exempt

from the NPDES scheme. Accordingly, rather than

the EPA, States like Oregon have long regulated the

roads at issue—including by mandating construction

of the very drainage systems that gave rise to this

litigation.

In the decision below, the Ninth Circuit ruled that

the EPA was wrong on both questions. That is, for

each agency answer of “no” to the determinative

questions in this case, the court substituted a judicial

“yes,” holding that the EPA’s determinations were at

odds with both the CWA itself and the EPA’s own

implementing regulations. As to both questions, the

Ninth Circuit failed to accord the deference that is

due to an expert agency’s reasonable interpretation of

an ambiguous statute, see Chevron USA Inc. v.

Natural Res. Def Council, Inc., 467 U.S. 837, 842

(1984), or regulation, see Auer v. Robbins, 519 U.S.

452, 461 (1997). Congress self-evidently could not

enumerate, in the CWA, every source of water

pollution and impose a specific rule for each. Rather,

Congress relied on the EPA to take the lead in

classifying the innumerable contexts in which

pollutants contaminate navigable waters, ensuring

that each is assigned to the proper category of the

complex scheme that Congress designed. That is

precisely what the EPA did here. It was error for the

Ninth Circuit to second-guess the EPA’s reasonable

classifications.

9

A. The EPA reasonably categorized natural

runoff from forest roads as a “nonpoint

source” of water pollution.

1. One of the basic distinctions created by the

CWA is that between “point” and “nonpoint” sources

of pollution. While the Act flatly prohibits the

“discharge of any pollutant” absent an NPDES

permit (or other statutory exception), 33 U.S.C.

§ 1311(a), it defines “discharge of a pollutant” as the

“addition of any pollutant to navigable waters from

any point source,” id. § 1362(12)(a) (emphasis added).

The net result is that “[t]he CWA prohibits the

discharge of any pollutant from a point source into

navigable waters of the United States without an

NPDES permit.” N. Plains Res. Council v. Fid.

Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir.

2003). By contrast, nonpoint sources are regulated

by other provisions of the CWA; in particular, States

are charged with identifying especially problematic

nonpoint sources of pollution and developing “best

management practices and measures” to reduce

pollution from such sources. 33 U.S.C. § 1329; see

also id. § 1288(b)(2)(F).

The difference between a “point source” and a

“nonpoint source” of water pollution is thus a crucial

threshold analytical step. The Act defines the former

as “any discernible, confined and discrete conveyance

... from which pollutants are or may be discharged.”

Id. § 1362(14). Any other source is, by exclusion,

nonpoint. As courts have explained, certain types of

pollution can readily be attributed to a _ specific,

identifiable source or activity—like a factory

discharging wastewater into a river. These are point

sources. By contrast, nonpoint-source pollution

10

“arises from many dispersed activities over large

areas, and is not traceable to any single discrete

source.” League of Wilderness Defenders / Blue

Mountains Biodiversity Project v. Forsgren, 309 F.3d

1181, 1184 (9th Cir. 2002). The “most common

example” is “residue left on roadways’ by

automobiles.... When it rains, the rubber particles

and copper dust and gas and oil wash off the streets”

and soon “win[d] up in creeks, rivers, bays, and the

ocean.” Jd.

2. The difference between point and nonpoint

sources explains their differing treatment under the

Act. Because point sources can be isolated, they are

amenable to regulation by permits. See 33 U.S.C.

§§ 1311(a), 1323(a). With point sources, it is easy to

identify the cause of the pollution and the entity

responsible for it; to force that responsible entity to

obtain a permit; and to measure the pollution and

enforce adherence to any effluent limitations imposed

as a condition of the permit. By contrast, nonpoint

sources cannot be discretely identified, and pollution

attributable to them cannot be readily traced to

particular acts or entities. Nor would it be feasible to

enforce effluent limitations on such sources, due to

the difficulty of measuring the degree of the

pollution. “Because it arises in such a diffuse way,”

nonpoint-source pollution “is very difficult to regulate

through individual permits.” Forsgren, 309 F.3d at

1184. Instead, Congress recognized that it is better

regulated by “best management practices” that

address underlying causes. 33 U.S.C. §§ 1288, 1329.

Indeed, the CWA’s legislative history suggests

that it was precisely the varying suitability of these

regulatory approaches that led to the creation of the

11

point/nonpoint distinction in the first place. See

United States v. Earth Sciences, Inc., 599 F.2d 368,

374 (10th Cir. 1979). Congress wanted to require

permits for all sources of pollution susceptible to such

a scheme, and developed the notion of “point source”

to embrace that category. The residual sources of

pollution—i.e., those that could not easily be

subjected to a permitting scheme—are the “nonpoint”

sources. See id. at 373 (“It is clear from the

legislative history Congress would have regulated so-

called nonpoint sources if a workable method could

have been derived; it instructed the EPA to study the

problem and come up with a solution.”).

3. There is no dispute that, if rain washes dirt or

other sediment from roads (including forest roads),

and those pollutants—without being channeled—

ultimately wind up in rivers or streams, the resulting

pollution derived from a “nonpoint source.” Indeed,

that is the quintessential example of nonpoint-source

pollution: It is caused by a natural process (rain)

over a dispersed area (roads) where pollutants are

deposited gradually by multiple different actors (cars

and the like) and then diffusely washed away. See

Earth Sciences, 599 F.2d at 373 (“Congress was

classifying nonpoint source pollution as disparate

runoff caused primarily by rainfall around activities

that employ or cause pollutants.”); Forsgren, 309

F.3d at 1186 (describing nonpoint-source pollution as

“runoff that picks up scattered pollutants and washes

them into water bodies”). The original source of such

runoff pollution could not be Jess “discernible,”

“confined,” or “discrete’—and the actor responsible

for the runoff, who could in theory be subjected to a

permitting scheme, is not discernible either. Even

the Ninth Circuit acknowledged that, in the ordinary

12

natural-runoff scenario, the pollution is from a

nonpoint source. See Georgia-Pacific Pet.App.10a

(“Stormwater that ... runs off and dissipates in a

natural and unimpeded manner, is not a discharge

from a point source as defined by [the CWA].”).

Because forest-road runoff is not generally a

point-source form of pollution, States such as Oregon

have long regulated forest roads, pursuant to their

duties under the CWA, to require “best management

practices” and thereby minimize the environmental

impact of the sedimentary runoff from such roads.

Among other things, Oregon mandates that timber

companies “provide a drainage system on new and

reconstructed roads that minimizes alteration of

stream channels and the risk of sediment delivery to

waters of the state.” Or. Admin. R. 629-625-0330(1).

4. At issue in this case is whether construction of

drainage systems required by States like Oregon,

which channel stormwater runoff through a series of

ditches before reaching navigable waters, transforms

the (now-minimized) pollution from nonpoint-source

to point-source. In other words, does nonpoint-source

pollution from forest roads become point-source

pollution if the runoff is channeled by a drainage

system on its way to navigable waters?

Even though the CWA provides a_ general

definition of “point source,” that definition does not

resolve this question one way or the other. The Act

defines a point source as a “discernible, confined and

discrete conveyance.” 33 U.S.C. § 1362(14). But

here, the pollutants are initially discharged from

forest roads and surrounding lands—which plainly do

not constitute a “discernable, confined and discrete

conveyance’—and only later are channeled through

13

ditches and culverts. Thus, the answer to the

point/nonpoint inquiry depends on a temporal focus:

When the pollutants are washed from their original

source (the roads and lands), they cannot plausibly be

described as coming from any point source. But

drainage ditches that u/timately release the runoff

into navigable waters, at least if viewed in isolation,

could arguably be so characterized. The issue is thus

inherently murky—like many line-drawing exercises

that the Act requires.

5. So, pursuant to its delegated authority, the

EPA promulgated more than thirty-five years ago a

rule to address this question. Confronting the

specific issue of pollution from silvicultural activities,

the EPA “determined that most water pollution

related to [these] activities is nonpoint in nature.” 41

Fed. Reg. 6281, 6282 (Feb. 12, 1976). The agency

explained that this pollution “is basically runoff

induced by precipitation events,” and would be “more

effectively controlled by the use of planning and

management techniques” rather than a “permit

program” and “effluent limitations.” Jd. The latter

point strongly suggested that the runoff be classified

as nonpoint, because Congress created the “point

source” category to capture sources of pollution that

could effectively be regulated through permits.

Accordingly, the EPA concluded that “ditches, pipes

and drains that serve only to channel, direct, and

convey nonpoint runoff from precipitation are not

meant to be” treated as point sources. Jd. (emphasis

added).

When it promulgated the final rule, the EPA

further clarified the characteristics of forest-road

runoff that render it a nonpoint source of pollution,

14

while recognizing that “no definition of point or

nonpoint source can be exact or absolute.” 41 Fed.

Reg. 24,709, 24,711 (June 18, 1976). First, such

pollution is “induced by natural processes” and

therefore tends to derive from a dispersed area rather

than a discrete source. Jd. at 24710. Second, the

pollutants are “not traceable to any discrete or

identifiable facility,” even if ultimately gathered and

channeled by a drainage system. Jd. Indeed, forest

roads routinely “pass through multiple owners and

multiple properties,” and “ownership of the road does

not necessarily correspond to the ownership of the

forest land,” creating “a highly complex mosaic of

overlapping responsibilities.” 77 Fed. Reg. 30473,

30,475 (May 23, 2012). This makes it particularly

difficult to attribute responsibility for the runoff or to

require a permit from any particular entity. Third,

and partly for these two reasons, this type of water

pollution is “better controlled” by “best management

practices.” 41 Fed. Reg. at 24,710. By contrast,

“point sources of water pollution are generally

characterized by discrete and confined conveyances

from which discharges of pollutants into navigable

waters can be controlled by effluent limitations.” Jd.

Consistent with these principles from the text and

history of the CWA, the EPA promulgated a

regulation—the “Silvicultural Rule’—which provides

that “road construction and maintenance from which

there is natural runoff’ constitutes a “non-point

source” of pollution. 40 C.F.R. § 122.27(b).

6. In the decision below, the Ninth Circuit held

that the Silvicultural Rule was incompatible with the

CWA. The court believed it to be “clear” that natural

runoff from forest roads, when channeled through

ditches and culverts, meets the statutory definition of

15

“point source,” such that the EPA acted outside its

authority by declaring otherwise. Pet.App.30a.

This refusal to defer to the EPA’s determination

was error. The EPA’s treatment of forest-road runoff

was, under basic Chevron principles, entitled to

deference so long as it was a reasonable construction

of an ambiguous CWA provision. See Chevron, 467

U.S. at 845. As shown above, it was. While the

statute does define “point source,” that definition is

not self-applying; as even the Ninth Circuit admitted,

“the EPA has some power to define point source and

nonpoint source pollution where there is room for

reasonable interpretation of the statutory definition.”

Pet.App.30a (quoting Forsgren, 309 F.3d at 1190).

There is ample such room in this context, given that

these pollutants—even though they are u/timately

discharged via a discrete drainage system—originally

derive from a quintessentially nonpoint source:

naturally induced runoff from forest roads over a

dispersed area and resulting from the acts of untold

different entities. In that factual context, where the

true, original source of the pollution cannot be traced

or effectively regulated, and a permit scheme would

therefore be impractical, it is fair to categorize the

runoff as not deriving from a “discernible, confined

and discrete conveyance.” By refusing to uphold the

EPA’s classification to that effect, the Ninth Circuit

contravened Chevron.

B. The EPA also reasonably declined to

characterize natural forest-road runoff as

“associated with industrial activity.”

1. In 1987, Congress amended the CWA, adding a

new provision, 33 U.S.C. § 1342(p), to govern the

particular problem of stormwater discharges. All

16

stormwater discharges qualifying as “pvuint sources”

under the Act had previously required permits, but

§ 1342(p) created a new, more lenient, two-track

regime under which only some stormwater point

sources need permits. In particular, § 1342(p)(2) set

forth five subcategories of stormwater discharges

that (under so-called “Phase I” rules) would remain

under the NPDES program. All other stormwater

discharges were exempted from the permit scheme.

See id. § 1342(p)(1)-(2). The EPA was tasked with

conducting a study and then issuing regulations

(called the “Phase II” rules) to govern these other

discharges. See id. § 1342(p)(5)-(6).

2. There is no dispute that the EPA has not

issued Phase II rules that would require NPDES

permits for forest-road runoff. See Envt7 Def. Ctr.,

Inc. v. EPA, 344 F.3d 832, 860-62 (9th Cir. 2003)

(adjudicating challenge to EPA’s failure to include

forest-road runoff in its Phase II regulations).

Rather, at issue here is whether such runoff triggers

the requirement of an NPDES permit because it falls

within one of the Phase I categories—in particular,

the class of stormwater discharges “associated with

industrial activity.” 33 U.S.C. § 1342(p)(2)(B).

Under the EPA’s Phase I rules implementing

§ 1342(p), natural runoff from forest roads is clearly

not “associated with industrial activity.” The EPA, in

defining that category, expressly stated that it “does

not include discharges from facilities or activities

excluded from the NPDES program under this part

122.” 40 C.F.R. § 122.26(b)(14). As explained, the

Silvicultural Rule already categorically excluded

forest-road runoff from NPDES. See id. § 122.27(b).

17

Thus, under the plain meaning of the regulations,

forest-road runoff is not encompassed by Phase I.

Excluding forest-road runoff from the category of

stormwater discharges “associated with industrial

activity” is perfectly reasonable. As the EPA told the

District Court below, forest roads are not directly

associated with industrial activity, “within the

traditional sense” of that term. Pet.App.124a. While

forest roads allow access to logging sites, they also

serve other purposes (such as recreation) and are

geographically and functionally remote from logging.

And logging is not a traditional “industrial” activity

in any event; it is more closely akin to agricultural

harvesting. The EPA’s exclusion of forest-road runoff

from Phase I (through the cross-reference to the

Silvicultural Rule) is thus entirely consistent with

§ 1342(p)(2)(B).

3. The Ninth Circuit, however, ruled that forest-

road runoff is “associated with industrial activity.”

See Pet.App.42a. The court did not say that the CWA

amendments compelled that result; rather, the court

reached its conclusion only by parsing the regulatory

definition of the phrase that the EPA provided in 40

C.F.R. § 122.26(b)(14), including the regulation’s use

and explications of the words “immediate,” “facility,”

and “industrial.” See Pet.App.39a-42a.

This was error. Again, it cannot be disputed that,

under Chevron, the EPA could permissibly deem

forest-road runoff outside the statutory category of

stormwater discharges “associated with industrial

activity”; literally every word of that phrase is

ambiguous, admits of degree, and requires concrete

application. The only question, therefore, as

evidenced by the Ninth Circuit’s reliance on the

18

EPA’s regulatory elaboration, is whether the

regulation includes forest-road runoff. On that

question, the agency is entitled under Auer to great

deference—indeed, the agency’s construction is

“controlling unless ‘plainly erroneous or inconsistent

with the regulation.” Auer, 519 U.S. at 461 (quoting

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,

414 (1945)). And the EPA made perfectly clear, in

briefs submitted in this very litigation, that it “never

contemplated that forestry roads would be included

within the industrial activities subject to the Phase I

regulations.” Pet.App.123a.

Far from being “plainly erroneous or inconsistent

with the regulation,” Auer, 519 U.S. at 461, the

EPA’s interpretation of § 122.26(b)(14) is compelled

by it. After all, the regulation expressly excludes

from the definition of “associated with industrial

activity” all of the stormwater discharges that the

Silvicultural Rule deems to be nonpoint sources of

pollution (and thus already exempt from the NPDES

scheme), including natural runoff from forest roads.

The Ninth Circuit appears to have simply set that

portion of § 122.26(b)(14) aside, saying only that the

cross-reference to the Silvicultural Rule “does not,

indeed cannot” exempt forest-road runoff from the

class of Phase I stormwater discharges. Pet.App.42a.

Why not is unclear. There is no reason why the EPA

could not (for good cause) exempt the runoff from its

otherwise applicable definition of “associated with

industrial activity.” Even if the Silvicultural Rule

was, as the court held, u/tra vires, the EPA’s

authority for purposes of defining “point sources,”

§ 122.26(b)(14) cross-references the Rule for another

purpose—viz., setting the parameters of the class of

19

discharges “associated with industrial activity”—and

the statute clearly does not forbid that classification.

In short, the CWA requires permits only (as

relevant here) for the vague category of stormwater

discharges “associated with industrial activity.” The

EPA reasonably determined that natural runoff from

forest roads does not fall into that category, and said

so—in its regulation, and to the court. By resting on

a contrary understanding of the EPA regulations to

nonetheless conclude otherwise, the Ninth Circuit

violated the Auer deference principle.

I. There Is Every Reason to Accord Deference

Here, and No Reason to Discard the EPA’s

Considered, Expert, and Long-Held Judgment.

Deference to expert agencies, whether as to the

meaning of statutes or the proper application of

regulations, offers many benefits, as this Court has

repeatedly recognized. Agencies are more competent

than courts to resolve questions that implicate

technical or scientific policy concerns; agencies are

more politically accountable for the impacts of their

determinations; and agencies alone can offer advance

guidance, applicable on a national level, about the

meaning of a statute or regulation, fostering the

values of clarity, predictability, and fairness.

At the same time, deference is not always

warranted and should not always be available. This

Court, its individual Justices, and academic

commentators have on occasion remarked on the

potential dangers of deference and outlined some of

the situations in which it should not be accorded.

In this case, however, all of the grounds for

deference are present and none of the grounds to

20

withhold deference is implicated. Deference to the

EPA on the question of the proper treatment under

the CWA of natural runoff from forest roads would

advance the important values of fair notice and

predictable enforcement of the law; it would allow an

expert agency to decide a question that falls squarely

within its core competence (and well outside the

judicial bailiwick); and it would comport with the

structure of agency incentives that administrative

law should help to promote. Under any view of the

appropriate conditions for deferring to an expert

agency, such deference is warranted here.

A. Only deference to the EPA’s longstanding

approach toward forest-road runoff would

respect fair notice and the rule of law.

In general, allowing agencies to construe

ambiguous legal texts promotes’ consistency,

uniformity, and predictability in the law. Unlike

courts, agencies are able to consider the meaning of

statutes and regulations before concrete disputes

arise over their application. Compare 5 U.S.C. § 553

(authorizing agencies to promulgate rules), with U.S.

Const. Art. III (granting judiciary power to resolve

only “cases” and “controversies”). Thus, only agency

interpretations can effectively give regulated entities

advance notice about what conduct would violate the

law. Moreover, apart from this Court, only agencies

are able to give nationa/ guidance about the law.

Deference to agency interpretations thus “imparts

(once the agency has spoken to clarify the flaw]))

certainty and predictability to the administrative

process.” Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S.

Ct. 2254, 2266 (2011) (Scalia, J., concurring). Indeed,

“without the assurance that reviewing courts will

21

accept reasonable and authoritative agency

interpretation of ambiguous provisions,” it would be

“impossible to achieve predictable ... administration

of the vast body of complex laws committed to the

charge of executive agencies.” Coeur Alaska, Inc. v.

Se. Alaska Conservation Council, 557 U.S. 261, 296

(2009) (Scalia, J., concurring in part and in

judgment). Ordinarily, then, these values counsel in

favor of deference to administrative agencies.

That general principle, however, holds only to the

extent that an agency adopts an interpretation in

advance and then adheres to it. When, instead, an

agency reverses its longstanding position on the

meaning of a statute or regulation, the values of fair

warning and adequate notice may require rejection of

the aew position. See, eg., Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 212-13 (1988) (refusing to

defer to Secretary’s interpretation of statute where

his “current interpretation ... is contrary to the

narrow view ... advocated in past cases”). Similarly,

an agency’s acquiescence in a certain practice—even

if not accompanied by an express position on its

legality—may make it inappropriate to defer to a

subsequent determination that the practice violates

the law. For example, in Christopher v. Smithkline

Beecham Corp., 132 S. Ct. 2156 (2012), this Court

found, as one “strong reaso[n} for withholding the

deference that Auer generally requires,” that a

regulatory interpretation adopted by the Department

of Labor would “impose potentially massive liability

for conduct that occurred well before that

interpretation was announced.” /d. at 2167. Despite

“decades-long practice” by industry, the Department

had “never initiated any enforcement actions ... or

otherwise suggested that it thought the industry was

22

acting unlawfully.” Jd. at 2168. Deference under

those circumstances, this Court held, would create an

“acute” risk of “unfair surprise.” Jd.

It is one thing to expect regulated parties to

conform their conduct to an agency’s

interpretations once the agency announces

them; it is quite another to require regulated

parties to divine the agency’s interpretations

in advance or else be held lable when the

agency announces its interpretations for the

first time in an enforcement proceeding and

demands deference.

Id.

Here, the “EPA’s construction was made [nearly]

contemporaneously with the passage of the Act, and

has been consistently adhered to since.” Nat?

Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 167 (D.C.

Cir. 1982). The Silvicultural Rule, which expressly

categorizes forest-road runoff as a nonpoint source of

pollution, was proposed and promulgated in 1976,

only a few years after the CWA was enacted. See 41

Fed. Reg. at 6282; id. at 24,709. Over the ensuing

thirty-five years, the EPA has never deviated from its

position that operators of forest roads need not obtain

NPDES permits for such naturally induced runoff.

To the contrary, the EPA has repeatedly reaffirmed

its view on the question. See, eg, 55 Fed. Reg.

20,521, 20,522 (May 17, 1990) (reaffirming

“longstanding view” that “runoff from ... forest

lands,” “although sometimes channeled,” is “non-

point source in nature” because it is “caused solely by

natural processes,” is “not otherwise traceable to any

single identifiable source,” and is “best treated by

non-point source controls”); see also 65 Fed. Reg.

23

43,586, 43,652 (July 13, 2000) (setting aside, after

notice-and-comment, proposal to amend Silvicultural

Rule).

Likewise, there is no dispute that the EPA, since

the enactment of the new stormwater regulatory

regime in 1987 and the EPA’s subsequent effort to

flesh out the “Phase I” categories of discharge that

require permits, has adhered to the position that

forest-road runoff does not require an NPDES permit.

See 40 C.F.R. § 122.26(b)(14). It has advanced that

same view in litigation, including this case. See, e.g.,

Pet.App.9la (affirming in 2003 that “storm water

discharges from forest roads are not currently subject

to NPDES permit requirements”); Pet.App.127a

(reaffirming to district court “interpretation of EPA’s

[Phase I] storm water regulations to exclude forestry

road construction and maintenance activities”).

Given that the EPA has, for nearly four decades,

held firm to an interpretation of the CWA under

which forest-road operators need not obtain permits

for naturally induced runoff however it ultimately

reaches navigable waters, the values of predictability

and fair-notice would here be served by deference.

This case thus presents the opposite scenario as

Christopher. Here, it would be the judicial act of

refusing to defer that would present the “acute” risk

of “unfair surprise.” Christopher, 132 S. Ct. at 2168.

Adapting this Court’s teaching in that case:

It is one thing to expect regulated parties to

conform their conduct to an _ {[court’s]

interpretations once the [court] announces

them; it is quite another to require regulated

parties to divine the [court’s] interpretations

in advance or else be held liable when the

24

[court] announces its interpretations for the

first time in [a citizen lawsuit] and [denies]

deference [to the agency’s contrary view].

B. Determining the best approach toward

water pollution is within the EPA’s unique

expertise, as Congress understood.

Another obvious benefit of deference to expert

agencies is that it puts determinations bearing major

policy implications into the hands of those best suited

to understand those implications. The regulatory

schemes overseen by agencies are usually complex

and specialized. “[T]o administer a congressionally

created ... program necessarily requires’ the

formulation of policy,” because no statute will foresee

and resolve its every potential application. Morton v.

Ruiz, 415 U.S. 199, 231 (1974). Construing and

applying a statute thus often “involve[s] reconciling

conflicting policies, and a full understanding of the

force of the statutory policy in the given situation ...

depend[s} upon more than ordinary knowledge

respecting the matters”—often technical or scientific

in nature—“subjected to agency regulations.” United

States v. Shimer, 367 U.S. 374, 382 (1961).

Courts, of course, lack that type of expertise. See

Chevron, 467 U.S. at 865 (“Judges are not experts in

the field ....”). But agencies are created precisely to

develop and house it; they possess “special expertise”

at the “frontiers” of their fields. Balt. Gas & Elec. Co.

v. Natural Res. Def Council, Inc., 462 U.S. 87, 103

(1983). Thus, when it comes to applying a statute

like the Clean Water Act or its regulations, it is

agencies like the EPA—not the federal courts—that

are best positioned to appreciate and weigh the policy

consequences of differing constructions of the law.

25

See Chevron, 467 U.S. at 865-66 (holding that

challenge to agency construction must fail if it “really

centers on the wisdom of the agency’s policy”).

Indeed, the relative competence of agencies and

courts explains why it is generally fair to construe—

as Chevron famously does—statutory gaps as implicit

congressional delegations to the agency charged with

administering the law. See id. at 844 (observing that

statutory ambiguity can reflect “implicit” “legislative

delegation to an agency”). Congress is aware that it

cannot make every decision on its own, in advance,

and by leaving ambiguity in statutory text for

agencies to resolve, it recognizes “that those with

great expertise and charged with responsibility for

administering the provision would be in a better

position to do so.” Jd. at 865.

' To be sure, this Court and some of its Members

have observed that not every question of statutory

construction presents the type of policy-laden

question that agencies are best suited to answer. In

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), for

example, the Court was presented with a “pure

question of statutory construction,” rather than a

dispute over application of a legal standard “to a

particular set of facts.” Jd. at 446, 448. With respect

to that type of question—which “is well within the

province of the Judiciary,” id. at 448, and which does

not implicate the agency’s unique competence to the

same degree—the assumption of implicit legislative

delegation to the agency is more dubious. In such

instances, judicial deference to the agency’s

interpretation may be unwarranted. See id. at 446

(holding that this “pure question of statutory

construction” was “for the courts to decide”); accord

26

Negusie v. Holder, 555 U.S. 511, 530 (2009) (Stevens,

J., concurring in part and dissenting in part) (“Courts

are expert at statutory construction, while agencies

are expert at statutory implementation.”).

In this case, in contrast, the disputed questions

plainly involve “applying law to fact,” not “pure

questions of statutory construction.” Jd. at 531.

Applying the nebulous point/nonpoint distinction to

the particular case of naturally induced runoff from

forest roads that is channeled through a series of

ditches to navigable waters, and deciding whether

that runoff falls within the category of stormwater

discharges that is “associated with industrial

activity,” both require applying statutory legal tests

to highly fact-specific contexts. Both trigger the

inherent exercise of policymaking discretion, because

classifying forest-road runoff as “point” or “nonpoint,”

or as “associated with industrial activity” or not so

associated, determines to which regulatory regime it

will be subjected. Importantly, what is ultimately

disputed here is not whether to regulate forest-road

runoff, but Aow to best regulate it—and that question

can be effectively answered only by those with “more

than ordinary knowledge respecting the matters.”

Shimer, 367 U.S. at 382. Application of the CWA, in

other words, “require[s] scientific and technical

expertise.” Nat? Wildlife, 693 F.2d at 167. Congress

knew that—which is why it left the EPA substantial

discretion to fill the law’s ambiguities.

In particular, “Congress expressly meant EPA to

have not only substantial discretion in administering

the Act generally, but also at least some power to

define the specific ter[m] ‘point source.” Jd; accord

Natural Res. Def. Council, Inc. v. Costle, 568 F.2d

27

1369, 1382 (D.C. Cir. 1977) (“We agree with the

District Court ‘that the power to define point and

nonpoint sources is vested in EPA.”). As one of the

lead sponsors of the CWA explained, “[g]uidance with

respect to the identification of ‘point sources’ and

‘nonpoint sources’ ... will be provided in regulations

and guidelines of the Administrator.” 117 Cong. Rec.

38,816 (1971) (Sen. Muskie). Indeed, the dispute

over what constitutes a “point source” for the CWA is

strikingly reminiscent of the dispute over the

definition of a “stationary source” for the Clean Air

Act—which gave rise to Chevron, and was treated as

the quintessential example of an ambiguity for the

EPA to resolve. See 467 U.S. at 860-62.

Likewise, in enacting the stormwater-discharge

amendments, Congress express/y delegated to the

EPA much of the responsibility for addressing this

issue. “Congress use[d] clear language in [33 U.S.C.]

§ 402(p)(5)-(6) to grant EPA discretion to determine

that certain stormwater discharges require

regulation while others do not.” Conservation Law

Found. v. Hannaford Bros. Co., 327 F. Supp. 2d 325,

330 (D. Vt. 2004), affd, 139 F. App’x 3381 (2d Cir.

2005); see also Envt7] Def Ctr., 344 F.3d at 869

(reviewing Phase II regulations with “great deference

because we are reviewing the agency’s technical

analysis and judgments ... within [its] technical

expertise”). Of course, Congress enumerated, albeit

in vague terms, the five categories of stormwater

discharges that were to remain subject to NPDES

permit requirements. But, through its recognition of

the EPA’s policy authority in this area, the express

delegation as to Phase II nonetheless bolsters the

presumption of an imp/icit delegation as to Phase I.

28

In sum, the nature of the questions at issue in this

case directly implicates one of the basic rationales for

agency deference—the comparative advantage of

scientifically expert agencies over inexpert courts.

C. Deferring to the EPA would encourage it to

write specific regulations, whereas judicial

usurpation would encourage agencies to

promulgate only vague generalities.

Notwithstanding the many benefits of deferring to

agency interpretations, “it has been argued that the

Supreme Court should abandon deference to agency

interpretations of ambiguous regulations, because it

arguably creates perverse incentives for an agency to

draft vague regulations that give inadequate

guidance.” Paralyzed Veterans of Am. v. DC Arena,

L.P., 117 F.3d 579, 584 (D.C. Cir. 1997).

On this view, advanced most prominently by

Professor John Manning in his article, Constitutional

Structure and Judicial Deference to Agency

Interpretations of Agency Rules, 96 Colum. L. Rev.

612 (1996), while Chevron deference appropriately

divides the power to make law (exercised by

Congress) from the power to interpret it (exercised by

the agency), Auer deference combines these two

functions, giving agencies the power to interpret

regulations that they themselves promulgated. Jd. at

654. The problem with such a system—and why the

Framers of the Constitution adopted the separation

of powers—is that combining lawmaking with law-

exposition poses a threat of arbitrary government. It

destroys any “incentive to enact rules that impose

clear and definite limits upon governmental

authority,” instead encouraging “adop|tion of] vague

and discretionary grants of power” that maximize

29

future power. /d. at 647. Deferring to an agency’s

interpretations of its own rules could thus “push an

agency toward regulatory imprecision,” id. at 655, a

result that administrative law ought to prevent.

Although this Court has generally adhered to

Auer despite this critique, several Justices have

taken note of the doctrine’s potential for abuse. In

Thomas Jefferson University v. Shalala, 512 U.S. 504

(1994), Justice Thomas (joined by Justices Stevens,

O’Connor, and Ginsburg) observed in dissent that the

agency had “merely replaced statutory ambiguity

with regulatory ambiguity.” Jd. at 525. As such, he

wrote, deference to the agency’s interpretation of its

“hopelessly vague regulation” would “disserv[e} the

very purpose behind the delegation of lawmaking

power to administrative agencies,” ze., resolving

ambiguity, and would fail to provide “clear and

definite” guidance to regulated parties. Jd. More

recently, Justice Scalia echoed Professor Manning’s

warning that “deferring to an agency’s interpretation

of its own rule encourages the agency to enact vague

rules which give it the power, in future adjudications,

to do what it pleases,” thus “frustrat[ing] the notice

and predictability purposes of rulemaking.” Talk

Am., 131 S. Ct. at 2266 (Scalia, J., concurring). And

it is notable that in last Term’s Christopher case, in

which this Court declined to defer to the Department

of Labor’s interpretation of its own regulation, that

regulation did not add any meaningful elaboration to

the critical statutory phrase “outside salesman,” and

simply “adopt[ed] the broad statutory definition of

‘sale” as its own. 132 S. Ct. at 2167.

In light of these concerns, there may be reason to

withhold Auer deference when the agency—instead of

30

using its regulatory authority to clarify the statute’s

meaning—has simply parroted it, promulgating

unduly vague regulations that it hopes to later

“interpret” as it sees fit. Under those circumstances,

deference would only encourage arbitrariness.

This, however, is decidedly not such a case. As to

both of the questions at issue, the EPA issued clear

regulations that set forth its interpretations of the

law. With respect to the definition of “point source,”

the EPA’s Silvicultural Rule definitively determined

that “road construction and maintenance from which

there is natural runoff’ constitutes a “non-point

source.” 40 C.F.R. § 122.27(b). The agency made

abundantly clear, in its explanation for the rule, that

this was the case even if “ditches, pipes and drains”

would “channel, direct, and convey” the runoff. 41

Fed. Reg. at 6282. Even the Ninth Circuit conceded

that the agency’s intent on this point was clear. See

Pet.App.32a. With respect to whether forest-road

runoff qualifies as “associated with industrial

activity,” the agency was equally unambiguous,

expressly defining that category to exclude anything

that the Silvicultural Rule declared to be nonpoint in

nature. See 40 C.F.R. § 122.26(b)(14).

By issuing “clear and definite” guidance on the

meaning of the statutory terms, Thomas Jefferson

Univ., 512 U.S. at 525, the EPA bound itself to its

stated approach, eliminating the risk of arbitrary

government that may otherwise result from joinder of

the lawmaking and law-exposition powers (and

inviting Congress to step in if it disagreed with the

EPA’s approach, which it tellingly did not). Because

the EPA made its intent clear up-front, manifesting

that intent in plain regulations, this is not a case

31

where deference would “encourage the agency to

enact vague rules.” Talk Am., 1315S. Ct. at 2266.

To the contrary, it is the Ninth Circuit’s approach,

if anything, that would encourage such perversity.

After all, the Ninth Circuit concluded that forest-road

runoff was “associated with industrial activity” only

by extensively parsing the agency’s own, precise

definitions of some of those terms—while ignoring

the part of the rule that clearly excluded the forest-

road runoff from their scope. See Pet.App.39a-42a.

The lesson to any agency seeking to protect its own

authority would be: “No good deed goes unpunished.”

Had the EPA offered no advance, binding guidance

about the meaning of “associated with industrial

activity,” the Ninth Circuit never would have been

able to conclude that the forest-road runoff fit

unambiguously within that category. In effect, the

Ninth Circuit used the EPA’s precision against it,

and therefore against the objectives of fairness and

certainty to regulated parties. Affirmance would

therefore “push [agencies] toward regulatory

imprecision,” Manning, supra, at 655, a result at odds

with the basic values of administrative law.

Courts should not be blind to the incentives

created by agency deference in particular cases, and

sometimes that may require withholding the great

deference that Auer ordinarily accords. In this case,

however, deferring to the EPA’s longstanding and

definitive approach toward forest-road runoff would

recognize its responsible exercise of administrative

authority, and encourage similar such behavior.

* * *

Deference to agencies is not an unqualified good,

but on any view of deference, its rationales, and its

32

scope, it is warranted here. “The usual factors, then

(regulatory agency, contemporaneous construction,

expertise, congressional acquiescence, thoroughness)

generally support giving great deference to EPA’s

interpretation.” Nat7 Wildlife, 693 F.2d at 170.

CONCLUSION

For the foregoing reasons, amici respectfully urge

this Court to reverse the decision below and to defer

to the EPA’s reasonable classifications of the forest-

road runoff at issue here.

Respectfully submitted,

BRIAN J. MURRAY

KEVIN P. HOLEWINSKI Counsel of Record

YAAKOV M. ROTH THOMAS V. SKINNER

JONES DAY CHARLES T. WEHLAND

51 Louisiana Ave. NW JONES Day

Washington, DC 20001 77 W. Wacker Dr.

Chicago, IL 60601

(312) 782-3939

bjmurray@jonesday.com

Counsel for Amici Curiae

Dated: September 4, 2012