Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

Nos. 11-338 and 11-347

AND IN THE Y

BRIEFS Supreme Court of the Hnited BOF Fc em

DouG DECKER, in his official capacity as Oregon State

Forester, et al.,

Petitioners,

v.

NOETHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

GEORGIA-PACIFIC WEST, INC., et al.,

Petitioners,

Vv.

NORTHWEST ENVIRONMENTAL DEFENSE CENTER,

Respondent.

On Writs of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF FOR AMICI CURIAE LAW PROFESSORS ON

SECTION 1369(b) JURISDICTION

IN SUPPORT OF RESPONDENT

Allison M. LaPlante

Counsel of Record

LEWIS & CLARK LAW SCHOOL

EARTHRISE LAW CENTER

10015 S.W. Terwilliger Boulevard

Portland, OR 97219

(503) 768-6894

laplante@lclark.edu

Counsel for Amici Curiae

eclecticism ientsenbanilemnie eerie

WILSON-EPES PRINTING CO., INC. — (202) 788-0086 — WASHINGTON 90 200M8 ..- vr.cu

Law Library

TABLE OF CONTENTS

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INTERESTS OF AMICT CURTAE ..............ccccecseeeeeees 1

SUMMARY OF THE ARGUMENT ....................00000005 2

TE trtetipritcrtnentininnninnenmnmnnnmnnannmenis 5

‘. SECTION 1369(b)(1) DOES NOT APPLY TO

THE RULES UNDERLYING THIS CASE ....6

A. The CWA’s Grant of Direct Judicial

Review to the Courts of Appeals is

B. A Rule Exempting Discharges from the

NPDES Program is Not an “Effluent

Limitation or Other Limitation” or the

“Issuance or Denial of a Permit”.......... 10

C. Neither £.J. du Pont Nor Crown

Simpson Establishes that Section

1369(b)(1) Extends to EPA Rules

Exempting Discharges from the NPDES

CETTE SP Ea re eC nO 18

D. Courts and EPA Have Improperly

Departed from the Statute................... 22

II. AN EXPANSIVE READING OF SECTION

1369 DISRUPTS THE TRADITIONAL

JURISIDCTION FEDERAL COURTS

MAINTAIN TO REVIEW AGENCY RULES

FD sreienicevniiintaciinnnttentuiearveniindeninnnesen 25

lil. PETITIONERS’ ARGUMENTS MAKE NO

SENSE AS A PRACTICAL MATTER........... 30

SAREE cxcevecncvsnscoonsonsneensennvessenionnenieninnininnenets 37

IEEE © ettsncaniocnsncininnscinnienniancincitie APPENDIX-1

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1967).... 29, 33

Am. [ron and Steel Inst. v. EPA, 543 F.2d 521

I 10, 15, 25

Am. Mining Cong. v. EPA, 965 F.2d 759 (9th

RS aoe ee Satara ne ae 22, 23

Am. Paper Inst. v. EPA, 882 F.2d 287 (7th Cir.

EE A TIRES Bae Rte aRARCOEL Mr 35

Am. Paper Inst. v. EPA, 890 F.2d 869 (7th Cir.

ca Sia ae ei 13, 14, 20

Am. Portland Cement Alliance v. EPA, 101 F.3d

I a 9

Appalachian Energy Group v. EPA, 33 F.3d 319

RENEE RRC IRE REE SARA oe OO 10

Arkansas v. Oklahoma, 503 U.S. 91 (1992).............. 16

Arkansas Poultry Fed’n v. EPA, 852 F.2d 324

RR RE te eee et eA ee CR 10

Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d

PR SEP A IN or MRE ee ONS 7,9

Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th

a 10

Bowen v. Michigan Acad. of Family Physicians,

EEE Penne ae eas Parr cine 29

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

RT Ce este anne HAA es BPR ANCL ARS NS 14

City of Baton Rouge v. EPA, 620 F.2d 478 (5th

GU Fei nnccsonniseressitenednneieasticaineiiiiepaniadeaeann 10

Cntl. Hudson Gas & Elec. Corp. v. EPA, 587

Fe Be a, He cists acibisiiianastlacariitiatiitetdias 16

Coeur Alaska, Inc. v. Se. Alaska Conservation

Council, 557 U.S. 261 (2009) ..............:c.seeeeeee- 27, 28

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193

rel vnintnnidcininitenaisienenmiibtaanaane 4, 18, 20, 21

E. I. du Pont de Nemours & Co. v. Train, 430

Ce, BI ie cieisincitinniibicivigiticiieietneres passim

Envtl. Prot. Info. Ctr. v. Pacific Lumber Co., 266

F. Supp. 2d 1101 (N.D. Cal. 20093)................... 16, 17

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561

TIITTIID cscnsstemsniieinainsitiaehetadeasesiiadiietteliatsinamacaaieads cs Reena 5,9

Friends of the Earth v. EPA, 333 F.3d 184 (D.C.

ERI HN cniniessicsinhanssssesnistelicet cd eile tae 9

Gutierrez de Martinez v. Lamagno, 515 U.S. 417

IID cinsnssntpeicsieitsinnbisteadesdibcatania eae anna ‘seseee 29

Harrison v. PPG Industries, Inc., 446 U.S. 578

Tit iscicincctecsniethiiiiaietadiabiiaieaieassiiaseaeimael an 22

Lake Cumberland Trust, Inc. v. EPA, 954 F.2d

I I, TI a aiicccicicccsstsintiinetsntinineeetcae 10

Legal Envtl. Assistance Found., Inc. v. Pegues,

904 F.2d 640 (11th Cir. 1990) ..0........0...ecececeeeeeeeees 10

Longview Fibre Co. v. Rasmussen, 980 F.2d

I I i sncusisniceinsciiddiiiestieaiieaiaiiaa he eee 12, 34, 35

McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

ED icicstncintihinieasertiataiiineeiicamame 29

Narragansett Elec. Co. v. EPA, 407 F.3d 1 (1st

BIE: MII intinicstnisctoniitniniciadinietieeiiaiiatee teased ta ee 9

iV

Nat Cotton Council of Am. v. EPA, 553 F.3d

SEER AS 23, 34

Nat Mining Ass'n v. Jackson, Nos. 10—1220

(RBW), 1100295(RWB), 11-0446(RBW), 11-

0447(RBW), 2012 WL 3090245 (D.D.C. July

IEEE TEE Ss eel OS 21

Natural Res. Def Council v. EPA, 526 F.3d 591

EIS le 22

Natural Res. Def. Council, Inc. v. Costle, 568

Pe BE GE. Cle, BOTT ..0.cccccccccecccsccecese 17, 25, 31

Natural Res. Def. Council, Inc. v. EPA, 656 F.2d

I sciabonens 14

Natural Res. Def Council, Inc. v. EPA, 673 F.2d

I a seianenenoienss 24, 34

Natural Res. Def. Council, Inc. v. EPA, 966 F.2d

SE NE Re ae 22

Natural Res. Def. Council, Inc. v. Train, 396

I, MPD, BIPOTID coccccccccccncsensccccccssencsseess 25

Nw. Envtl. Advocates v. EPA, 537 F.3d 1006

SES LE Ee passim

Ohio Forestry Ass'n, Inc. v. Sierra Club, 523

a cotensbinie 33

ONRC Action v. U.S. Bureau of Reclamation,

Civ. No. 97—3090—-CL, 2012 WL 3526833 (D.

i cccuomiene 17, 34, 35

Our Children’s Earth Found. v. EPA, 527 F.3d

I cuimeeet 12

Rapanos v. United States, 547 U.S. 715 (2006)........ 26

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43

Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159 (2001)........... 26

Tennessee Valley Auth. v. Hill, 437 U.S. 153

RRS Renee vet eRe nee re eRe eNO 8

United States v. Riverside Bayview Homes, Inc.,

Oe I iain ciincinahiniemdaniticaianiattiieaasiations 26

Virginia Elec. & Power Co. v. Costle, 566 F.2d

I arin 14

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486

EI arate ooo e EM se trw Cwrner 20

Wind River Mining Corp. v. United States, 946

Fe Pe CO incictcccriinentdnicnceiscanciiionianin 36

Statutes

ee I ccasseninitetscinsviedinieaintineniammenpaeieiia 29

I TIT os isnsicinseicicipnienaiiaiicdaioniinnibihiiauineiiiduaiienil 2, 12,19

Be ee i cnsiteaciniendcnmcadiideneincttnssitaiiasinnpediinns 12, 19, 20

I TT icisinsccsintiniepninediniiinnenatacddiibanaaiteds 12, 27, 28

NN TIT icesicsiiincesisibiientiseaiincnietatslihenniastionialidat 27, 28

ne eee 20

ET 16

Es TTT nsdn csinenaitninteninnneepinniicinnbonadetial 27, 28

I ii 12, 13, 19

Is CTT ns caniccissinendthaauisnideeinsmasamapibeiivmdenaindianl 2

ERSTE AES ost tannrnarane ry passim

le I i inincicisenitesbienttinlesennnnntieiainiia passim

ee I iichiinnieicpsesscssircusininniidecaisinits 10

BS U.B.C. © LBBB IID .2.00cccccccccsccsecssocesccssceees passim

le Oe ccicinincscniccnncininsiedanenonne passim

i ssihidemtanansansianneiiie 3

i eeinedell 8

Regulations

ESS eee 26, 27

SIE eae a eee 27

I i aaa ceeelaiaielial 13

BLT 13

ES ME RR SP eT 13

ee itrtictcncccstiecinceiitnssstnnineninniids 27

Other Authorities

41 Fed. Reg. 6,281 (Feb. 12, 1976) ............0::.c0ce0ee000- 11

43 Fed. Reg. 37,078 (Aug. 21, 1978)...............ccceeeeeee 31

44 Fed. Reg. 32,854 (June 7, 1979) ................. 4, 24, 31

45 Fed. Reg. 33,290 (May 19, 1980) .................0:0000 31

47 Fed. Reg. 54,598 (Dec. 3, 1982) .............. piesa’ 28

67 Fed. Reg. 31,129 (May 9, 2002)............... iiccientauie 28

INTEREST OF AMICI CURIAE }

Amici are professors of environmental and

administrative law. Amici have a long-standing

interest in the proper interpretation of environmental

statutes, such as the Clean Water Act (“CWA”). In

particular, Amici have an interest in ensuring the

correct interpretation of the CWA’s judicial review

and preclusion provision, 33 U.S.C. § 1369(b).

Collectively, Amici have spent decades

interpreting and teaching the CWA, as well as the

other administrative law and statutory interpretation

principles at issue in this case. Amuci believe that

many courts have improperly expanded Section

1369(b) beyond its text, and in doing so have created

considerable divergence in the case law and confusion

for practitioners, conservation organizations, and

regulated entities. Amici believe the Petitioners’

arguments here threaten to further expand the reach

of Section 1369(b) well beyond what the statute’s text

supports, and in contravention of this Court’s CWA

precedent, as well as jurisprudence regarding as-

applied challenges to agency rules and traditional

notions of ripeness. At best, Amuci believe

1 In accordance with S. Ct. Rule 37.3(a), all parties have

consented to the filing of this brief. All Petitioners and

Respondent have done so by filing consent letters directly with

the Clerk. Pursuant to S. Ct. Rule 37.6, Counsel for Amici

states that no counsel for a party authored this brief in whole or

in part and no person or entity other than Amici or their counsel

made a monetary contribution to the preparation or submission

of this brief.

Petitioners’ and the United States’ arguments here

risk creating even more confusion and tortured

procedure for judicial review under one of the

nation’s most important environmental statutes. The

purpose of this submission is to offer support for an

interpretation of Section 1369(b) that stays true to

the statute’s text and avoids the aforementioned

problems. A further description of Amzci is set forth

in the Appendix to this brief.

SUMMARY OF THE ARGUMENT

Respondent in this case brought a citizen suit

under the CWA based on a simple theory of liability:

Petitioners were discharging polluted sediment from

point sources into waters of the United States

without a National Pollutant Discharge Elimination

System (“NPDES”) permit, in violation of the

statutory prohibition in 33 U.S.C. § 131](a). This

bedrock theory of CWA liability has formed the basis

of innumerable citizen enforcement actions for

decades. Such an enforcement action is properly

brought, as the Respondent did here, in the district

court pursuant to 33 U.S.C. § 1365.

Now, having lost in the court of appeals,

Petitioners ask this Court to rule that the district

court never had jurisdiction in the first place. They

argue that Respondent effectively challenged, or the

court of appeals effectively invalidated, the U.S.

Environmental Protection Agency’s (“EPA”) rules

pertaining to stormwater runoff from certain logging:

related activities. More specifically, they take issue

with the Ninth Circuit’s conclusion that an NPDES

permit is required for pollution from logging roads

that is channeled through man-made conveyances

because such pollution is not “natural runoff’ within

the meaning of EPA’s “Silvicultural Rule.” The Ninth

Circuit arrived at this conclusion by both relying on

statutory provisions and disagreeing with EPA’s

interpretation of the regulations at issue. In doing

so, Petitioners assert that the Ninth Circuit

“implicitly invalidated” the rules. Such a step,

according to Petitioners, runs afoul of the limitations

set forth in 33 U.S.C. § 1369(b)(2).

But this leap to the preclusion provision of

Section 1369(b) is too great for Petitioners’

arguments to land intact. The Ninth Circuit’s ruling

did not run afoul of CWA Section 1369(b) because

that provision is simply inapplicable here. For

Section 1369(b)(2) to pose any limit on a court’s

power to interpret or review the validity of a rule, the

rule must have been one of the EPA actions directly

reviewable exclusively in the courts of appeals under

Section 1369(b)(1). As discussed in detail herein, the

EPA actions at issue in this case—whether one refers

to EPA’s Silvicultural Rule, EPA’s interpretation of

the term “natural runoff’ in the Silvicultural Rule,

EPA’s Phase I stormwater rules, or any other EPA

action exempting logging roads from the NPDES

program—do not fall within Section 1369(b)(1)’s

limited and precise list of actions.

Petitioners make remarkably broad statements

regarding the reach of Section 1369(b), suggesting

that it requires challenges to all EPA CWA rules be

filed in the courts of appeals. This assertion finds no

support in the statute, nor in this Court’s rulings in

E. I. du Pont de Nemours & Co. v. Train ““E.I. du

Pont’), 430 U.S. 112 (1977), and Crown Simpson Pulp

Co. v. Costle (“Crown Simpson’), 445 U.S. 193 (1980).

While many courts have correctly recognized just how

narrow £.J, du Pont and Crown Simpson are, some

courts have gotten side-tracked by one quote from

EI. du Pont, in particular, taken out of context.

Some case law has then developed around this mis-

step, with cases relying on each other, often offering

little additional analysis, and straying farther from

the text of Section 1369. EPA too strayed off course

at some point and departed from its early position

that “review is not provided for actions in issuing

general regulations governing the issuance of NPDES

permits,” 44 Fed. Reg. 32,854, 32,855 (June 7, 1979),

to arrive at its current position that Section 1369

applies to all “NPDES regulations,” U.S. Br. 16.

Somewhere in all of this, the plain language of the

statute has gotten lost.

Petitioners’ arguments here threaten to send this

runaway evolution of a limited statutory provision off

a cliff. Petitioners’ arguments pose problems for

traditional principles of administrative law and a

court’s ability to interpret rules, just as this Court

has done numerous times under the CWA. What is

more, their arguments have untenable practical

implications, including opening the courts of appeals

to hypothetical challenges to EPA actions unhinged

from any facts, or inviting unreviewable post hoc

agency interpretations of rules. This cannot be what

Congress intended.

To be sure, this Court can readily conclude that

the regulations at issue are unambiguous or that the

Ninth Circuit permissibly interpreted the regula-

tions to bring them in line with the CWA, without

reaching any of Petitioners’ arguments regarding

CWA Section 1369. See Envtl. Def v. Duke Energy

Corp. (‘Duke Energy”), 549 U.S. 561, 573 (2007);

NEDC Br. 19. But if this Court engages in a

“jurisdictional” analysis, it should reject Petitioners’

invitation to extend Section 1369(b) beyond its

textual reach.

ARGUMENT

Section 1369(b)’s text leaves no room for

Petitioners’ arguments that the district court lacked

jurisdiction. The statute plainly does not require

that challenges to EPA rules exempting discharges

from the NPDES program be brought directly in the

courts of appeals.2 This Court’s holdings on Section

1369 are likewise limited. For these reasons, and in

light of the troubling implications of an expansive

reading of Section 1369(b), Petitioners’ arguments

should be rejected.

2 Amici do not endorse the view that EPA promulgated a

regulation, or that Respondent challenged such regulation,

exempting the relevant discharges from the NPDES program.

This brief simply accepts these premises for purposes of arguing

that Section 1369(b) does not apply in any event.

I. SECTION 136%b)(1) DOES NOT APPLY TO

THE RULES UNDERLYING THIS CASE

CWA Section 1369(b)(1) is inapplicable to an EPA

rule exempting discharges from the NPDES program.

Congress

Administrator actions? subject to Section 1369(b)(1).

Section 1369(b)(1) provides for review in the courts of

expressly enumerated seven

appeals of EPA actions:

(A)

(B)

(C)

(D)

(E)

in promulgating any standard of

per.ormance under section 1316

of this title,

in making any determination

pursuant to section 1316(b)(1)(C)

of this title,

in promulgating any effluent

standard, prohibition, or

pretreatment standard under

section 1317 of this title,

in making any determination as

to a State permit program

submitted under section 1342(b)

of this title,

in approving or promulgating any

effluent limitation or other

limitation under section 1311,

3 Hereafter, we refer to both the EPA Administrator and to

the agency itself as “EPA.”

1312, 1316, or 1345 of this title,

(F) in issuing or denying any permit

under section 1342 of this title,

and

(G) in promulgating any individual

control strategy under section

1304(D of this title . . . .

33 U.S.C. §§ 1369(b)(1)(A)—(G) (2006).

Section 1369(b)(1)’s precision demonstrates that

Congress intended Section 1369 to apply only to the

EPA actions listed therein. As the Second Circuit

noted, “the complexity and specificity of [Section

1369](b) in identifying what actions of EPA under the

[CWA] would be reviewable in the courts of appeals

suggests that not all such actions are so reviewable.”

Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517 (2d

Cir. 1976).

Yet in clear contravention of Congressional intent

to limit the applicability of Section 1369(b)(1),

Petitioners ask this Court to broadly interpret the

provision to cover every NPDES regulation

promulgated by EPA, including regulations

exempting discharges from the NPDES program.

State Br. 13; Industry Br. 51. Petitioners even go so

far as to assert that the courts of appeals must

directly hear challenges to the validity of al/ EPA-

promulgated CWA _ regulations. State Br. 32;

Industry Br. 52.4 The text, context, and this Court’s

4 See also Br. for Amicus Curiae Chamber of Commerce of

the United States of America in Support of Pet’rs (“Chamber

precedent demonstrate that Section 1369(b)’s

coverage extends nowhere near that far and, in any

event, does not apply here.

A. The CWA’s Grant of Direct Judicial Review to

the Courts of Appeals is Limited

Congress listed seven specific EPA actions

subject to Section 1369. The statutory text offers no

indication that Congress intended the scope of

Section 1369 to extend beyond the explicitly listed

actions. See, e.g., Tennessee Valley Auth. v. Hill, 437

U.S. 153, 188 (1978) (applying the maxim expressio

unius est exclusio alterius to conclude that Congress

did not intend to exempt any “hardship cases” from

the Endangered Species Act beyond those expressly

listed in the statute). Thus, Congress intended to

exclude EPA actions not specifically listed in Section

1369. Congress could have included in the CWA a

“catch-all” provision for “any other final action of the

Administrator,” as it did in a similar judicial review

provision in the Clean Air Act (“CAA”), 42 U.S.C. §

7607(b)(1), but it did not.5 Congress’s decision not to

Br.”) 3 (“Section 1369(b) provides for review of the lawfulness of

EPA’s rules”); Br. for Amici Curiae of the States of Arkansas, et

al., in Support of the Pet’rs 4 (“Congress allowed judicial review

of EPA rules under the CWA when it provided that ‘[alny

interested person’ may seek review of an EPA action in

approving or promulgating any effluent limitation or other

limitation.”).

5 The differences between the CAA and the CWA in this

regard are particularly important, given all parties’ discussions

include such a “catch-all” provision further demon-

strates that it intended for the courts of appeals to

have direct review over only the actions listed in

Section 1369(b)(1).6

Recognizing Congress’s intent to limit Section

1369(b)(1) to the actions expressly enumerated in the

statute, many courts of appeals have correctly

interpreted the provision by staying true to its text.

See Friends of the Earth v. EPA, 333 F.3d 184, 189

(D.C. Cir. 2003) (“We agree with our sister circuits

[the 2nd, 5th, 8th, 9th, and 11th Circuits]: original

jurisdiction over EPA actions not expressly listed in

{Slection 1369(b)(1) lies not with us, but with the

district court.”); Narragansett Elec. Co. v. EPA, 407

F.3d 1, 5 (1st Cir. 2005) (“[S]ince some but not all of

the actions that the EPA can take under the CWA

are listed with considerable specificity in [S]ection

1369(b), not all EPA actions taken under the CWA

are directly reviewable in the courts of appeals.”).7 So

of this Court’s decision in Duke Energy. This Court’s concern

about carefully walking the line between interpretation and

invalidation of an EPA regulation was particularly acute in

Duke Energy, in light of the CAA’s sweeping counterpart to

CWA Section 1369.

6 A similar judicial review provision in the Resource

Conservation and Recovery Act (“RCRA”) also does not include a

“catch-all” provision. Courts have interpreted the RCRA

provision to include only the actions expressly listed in the

statute. See, eg., Am. Portland Cement Alliance v. EPA, 101

F.3d 772, 775 (D.C. Cir. 1996).

7 See also Bethlehem Steel Corp., 528 F.2d at 517 (“[T)he

complexity and specificity of [Slection 1369(b) in identifying

10

too should the analysis here start from the premise

that only those EPA actions precisely listed in the

136HbHD are subject to that provision’s limitations

on judicial review.

B. A Rule Exempting Discharges from the

NPDES Program is Not an “Effluent

Limitation or Other Limitation” or the

what actions of EPA under the [CWA] would be reviewable in

the courts of appeals suggests that not all such actions are so

reviewable. If Congress had so intended, it could have simply

provided that all EPA actions under the statute would be

subject to review in the courts of appeals, rather than specifying

particular actions and leaving out others.”); Am. Jron and Stee!

Inst. v. EPA, 543 F.2d 521, 528 (3d Cir. 1976) (referring to

Section 1369(b)(1(E) and (F) as “explicit and _ limited

provisions”); Appalachian Energy Group v. EPA, 33 F.3d 319,

322 (4th Cir. 1994) (rejecting original jurisdiction over EPA

internal memo in part because Section 1369(b)(1) limits its

jurisdiction to “specified actions of the EPA administrator”);

City of Baton Rouge v. EPA, 620 F.2d 478, 480 (5th Cir. 1976)

(“[T]he rule is clear: the Courts of Appeals have jurisdiction for

direct review only of those EPA actions specifically enumerated”

in Section 1369); Lake Cumberland Trust, Inc. v. EPA, 954 F.2d

1219, 1222 (6th Cir. 1992) (“Congress did not intend court of

appeals jurisdiction over all EPA actions taken pursuant to the

{CWAI.” (quoting Boise Cascade Corp. v. EPA, 942 F.2d 1427,

1432 (9th Cir. 1991)); Arkansas Poultry Fed'n v. EPA, 852 F.2d

324, 325 (8th Cir. 1988) (noting that courts of appeals’ original

jurisdiction under Section 1369(b)(1)(C) is limited); Lega/ Envti.

Assistance Found., Inc. v. Pegues, 904 F.2d 640, 642 (11th Cir.

1990) (stating that Section 1369 provides for “direct review in a

circuit court of appeals of specific administrative actions under

the statute”).

11

“Issuance or Denial of a Permit”

Under the plain language of the statute

Petitioners’ arguments must fail. A rule exempting

discharges from the NPDES program is not an

“effluent limitation or other limitation” within the

meaning of Section 1369(b)(1)(E); nor is it “the

issuance or denial of a permit” under Section

1369(b)(1)(F).8

1. Section 136Hb1IXE) A rule exempting

discharges from the NPDES program is plainly not

an action “approving or promulgating any effluent

limitation or other limitation under Section 1311,

1312, 1316, or 1345” of the CWA. 33 U.S.C. §

1369(b)(1)(E). As underscored by the maxim

expressio unius est exclusio alterius, this Court

should interpret Section 1369(b)(1)(E) to apply only

to EPA actions taken pursuant to the CWA sections

specifically listed therein. The Silvicultural Rule, for

example, was not promulgated under any of the CWA

sections listed in Section 1369(b)(1)(E); the Federal

Register notice of proposed rules for the 1976 version

of the Silvicultural Rule notes that the authority for

this rule comes from Sections 1314, 1342, and 1361.

41 Fed. Reg. 6,281, 6,283 (Feb. 12, 1976). These

statutory provisions are not included within Section

1369(b)(1)(E). Thus, the Silvicultural Rule is not an

“effluent limitation or other limitation” for the

8 Petitioners contend that only Sections 1369(b)(1)(E) or (F)

apply here. Thus Amici will not discuss Sections 1369(b)(1)(A)—

(D) or (G).

12

purposes of Section 1369. See Longview Fibre Co. v.

Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992)

(applying expressio unius est exclusio alterius to

Section 1369(b)(1)(E) and noting that “[nlo sensible

person accustomed to the use of words in laws would

speak so narrowly and precisely of particular

statutory provisions, while meaning to imply a more

general and broad coverage than the statutes

designated”); see also Our Children’s Earth Found. v.

EPA, 527 F.3d 842, 847 (9th Cir. 2008) (finding

Section 1369(b)(1)(E) inapplicable to a challenge to

EPAs failure to review effluent guidelines in part

because Section 1314(b) is not listed in Section 1369).

Moreover, Congress provided a precise meaning

of “effluent limitation” in the CWA, which does not

encompass a rule exempting discharges from the

NPDES program. Congress defined “effluent

limitation” to mean “any restriction established by a

State or the Administrator on quantities, rates, and

concentrations of chemical, physical, biological, and

other constituents which are discharged from point

sources into navigable waters ....” 33 U.S.C. §

1362(11) (2006). Congress then authorized EPA to

approve or promulgate effluent limitations under

several different CWA sections, including Sections

1311(b)(1) and (b)(2)(A)_ ss (requiring ~— effluent

limitations for existing sources that apply the best

practicable control technology (““BPT”) by 1977 and

best available technology (“BAT”) economically

achievable by 1989), and Section 1316 (requiring EPA

to promulgate new source performance standards

applicable to point sources constructed after October

1972). EPA has promulgated scores of such effluent

13

limitations for myriad industry categories and types

of pollutants.® Even a quick glance at some EPA

actions under these sections confirms that, as one

court explained, “lals a rule of thumb, effluent

limitations dictate in specific and technical terms the

amount of each pollutant that a point source may

emit.” Am. Paper Inst. v. EPA, 890 F.2d 869, 876—77

(7th Cir. 1989) (citations omitted). Rules exempting

discharges from the NPDES program do not restrict

the “quantities, rates, and concentrations” of

pollutants, 33 U.S.C. § 1362(11), and they in no way

speak in “technical terms” regarding the “amount of

each pollutant” a source may discharge. Am. Paper

Inst., 890 F.2d at 876-77. Instead, such regulations

exempt potential dischargers from any limitations

that EPA might otherwise impose through the

NPDES program.

A rule exempting discharges from the NPDES

requirements is also not an “other limitation” within

the meaning of Section 1369(b)(1)(E). As this Court

has guided, “where general words follow specific

® See, e.g. 40 C.F.R. § 410.22(a) (2012) (describing BPT

effluent limitations for a “pollutant or pollutant property” for

wool finishing point sources in terms of pounds per 1,000

pounds of fiber); 40 C.F.R. § 440.43(a) (2012) (describing BAT

effluent limitation for “pollutants discharged in mine drainage

from mines ... that produce mercury ores’ in terms of

milligrams per liter); 40 C.F.R. § 420.14(a)(2) (2012) (describing

the new source performance standards for “regulated

parameters” such as cyanide and naphthalene resulting from

by-product cokemaking in terms of pounds per thousand pounds

of product).

14

words in a statutory enumeration, the general words

are construed to embrace only objects similar in

nature to those objects enumerated by the preceding

specific words.” Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 114~15 (2001) (applying the maxim

ejusdem generis to find that the phrase “any other

class of workers engaged in . . . commerce” should “be

controlled and defined by reference to the [specific

classes of workers] recited just before” the phrase)

(citations omitted). As the general term “other

limitation” follows the more specific term “effluent

limitation,” other limitation should be understood to

mean a limitation akin to an effluent limitation. The

Seventh Circuit in American Paper Institute v. EPA

correctly rejected a broad interpretation of “other

limitation” because it “would in effect allow the term

‘other limitation’ to swallow up distinctions that

Congress made between effluent limitations and

other types of EPA regulations.” 890 F.2d at 876—77.

Moreover, a regulation covered under section

1369(b)(1)(E) must be a Jimitation, regardless of

whether it is an “effluent limitation” or an “other

limitation.” See Natural Res. Def Counsel, Inc. v.

EPA, 656 F.2d 768, 775—76 (D.C. Cir. 1981) (finding a

regulation to be an “effluent limitation or other

limitation” in part because “in practice [the

regulations] limit the discharge of sewage”); see also

Virginia Elec. & Power Co. v. Costle, 566 F.2d 446,

450 (4th Cir. 1977) (construing “limitation” to mean

“a restriction on the untrammeled discretion of the

industry which was the condition prior to the passage

of the statute”).

Regulations exempting discharges from the

15

NPDES program “provide no limitation[] whatsoever”

on regulated industries. Nw. Envtl. Advocates v.

EPA (“NWEA”), 537 F.3d 1006, 1016 (9th Cir. 2008).

Nor do they guide or place any restrictions on permit

issuers setting the limitations applied to point

sources. Thus, these regulations are more akin to

those regulations at issue in American Iron and Steel

Institute v. EPA, where the Third Circuit found that

regulations which “do no more than prescribe the

policy and procedures to be followed in connection

with applications for permits” and “neither prescribe

specific number limitations for any pollutant, nor .. .

list the factors which must be considered in

determining the control measures which individual

point sources must employ” were not “effluent

limitation[s] or other limitation[s]” under Section

1369. 543 F.2d at 526-27; see also NWEA, 537 F.3d

at 1016 (noting that EPA’s regulation exempting a

discharge from the NPDES program could be

considered an EPA action “approving or

promulgating any effluent limitation or other

limitation’ only if those words are understood in a

Pickwickian sense”). Here too, EPA’s underlying

regulations are not effluent limitations or other

limitations within the plain meaning of the statute.

2. Section 1369(b)()(F). Likewise, the text of

Section 1369(b)(1)(F) does not include EPA’s action

exempting discharges from the NPDES program.

Section 1369(b)(1)(F) grants the courts of appeals

direct review over EPA’s action “in issuing or denying

any permit under Section 1342” of the CWA. 33

U.S.C. § 1369(b)(1(F). This provision is plainly

about the issuance or denial of a particular NPDES

16

permit. See, e.g., Cntl. Hudson Gas & Elec. Corp. v.

EPA, 587 F.2d 549, 557 (2d Cir. 1978) (finding that

Section 1369(b)(1)(F) is limited “to a direct challenge

to the merits of a decision to ‘issue or deny’ a NPDES

permit”); Arkansas v. Oklahoma, 503 U.S. 91, 97

(1992) (assuming without discussion that the court of

appeals had original jurisdiction to review EPA’s

issuance of an NPDES permit). Other provisions

within Section 1342 (governing the NPDES permit

program) make clear that Congress understood that

the regulations fleshing out the stormwater

permitting requirements were distinct from the act of

issuing or denying any particular permit application.

See 33 U.S.C. § 1342(p)(4)(A) (2006); see also NEDC

Br. 25.

EPA’s promulgation of a rule exempting a

category of discharges from the NPDES program can

hardly be considered the issuance or denial of a

particular NPDES permit. This is so even if those

words are given a more effects-based gloss. The

effect of an exemption from the NPDES program is

that dischargers may continue discharging without

restriction and without fear of liability under the

CWA. EPA’s denial of an NPDES permit, on the

other hand, means that the denied applicant must

stop discharging, or continue discharging without a

permit and face CWA civil, and even criminal,

liability. See NWEA, 537 F.3d at 1018 (finding that

permanent exemptions from the NPDES program are

not even “functionally similar” to the issuance or

denial of an NPDES permit); Envtl. Prot. Info. Ctr. v.

Pacific Lumber Co. (“EPIC”), 266 F. Supp. 2d 1101,

1113 (N.D. Cal. 2003) (noting that the effect of an

17

exemption from the NPDES program “is to exclude

sources from the NPDES program, whereas the

issuance or denial of a permit, as a matter of

statutory mandate, only occurs when there are point

sources regulated by the NPDES program”).

Moreover, Congress expressly included EPA actions

approving or promulgating specific regulations in

other provisions of Section 1369(b)(1). See 33 U.S.C.

§§ 1369(b)(1)(A), (C), (E), and (G). If Congress had

intended for EPA’s promulgation of NPDES

regulations to be included in Section 1369(b)(1)(F), it

would have expressly said so.!°

Thus, the EPA actions underlying this case do not

fall within the plain language of Section 1369(b)(1)(E)

or (F).

10 Several district courts have properly reviewed challenges

to rules exempting discharges from the NPDES program. See

Natural Res. Def. Counsel, Inc. v. Costle, 568 F.2d 1369, 1372-

73, 1383 (D.C. Cir. 1977) (affirming district court decision

holding EPA’s categorical exemption for stormwater discharges

ultra vires); EPIC, 266 F.Supp.2d at 1113—20 (concluding that

the district court had jurisdiction to review EPA rule exempting

silvicultural discharges from the NPDES program); NWEA, 537

F.3d at 1010 (affirming district court decision exercising

jurisdiction over challenge to EPA rule exempting vessel

discharges from the NPDES program); ONRC Action v. U.S.

Bureau of Heclamation, Civ. No. 97—3090—-CL, 2012 WL

3526833, at *24-28 (D. Or. Jan. 17, 2012), report and

recommendation adopted, No. 1:97—CV—03090-CL, 2012 WL

3526828 (D. Or. Aug. 14, 2012) (holding that district court had

jurisdiction over challenge to rule exempting “water transfers”

from the NPDES program).

18

C. Neither £.J. du Pont Nor Crown Simpson

Establishes that Section 1369(b)(1) Extends to

EPA Rules Exempting Discharges from the

NPDES Program

Petitioners and their amici rely on this Court’s

decisions in £./. du Pont and Crown Simpson. See,

e.g., Industry Br. 51; U.S. Br. 22. But those decisions

reflect narrow holdings appropriately tailored to a

narrow statutory provision.

In E.J. du Pont, this Court considered whether

Section 1369 provides the courts of appeals with

jurisdiction over challenges to “industry-wide

regulations imposing ... precise [effluent]

limitations” on existing dischargers. 430 U.S. at 115.

This Court’s determination that EPA had authority

to promulgate effluent limitation regulations under

Section 301 “necessarily resolveld]” the jurisdictional

question, because the courts of appeals plainly have

jurisdiction over such regulations under Section

1369(b)(1(E). /d. at 136. Once this Court found EPA

could promulgate effluent limitations, it looked to the

plain meaning of Section 1369 and easily answered

the jurisdictional question.

In rejecting the argument that the courts of

appeals lacked original jurisdiction, this Court

expressed concern that such an interpretation would

result in a “truly perverse situation in which the

court of appeals would review the numerous

individual actions issuing or denying permits

pursuant to [Section] 402 but would have no power of

direct review of the basic regulations governing those

individual actions.” Jd at 136. The “basic

19

regulations” this Court was referring to were, of

course, the effluent limitations at issue in the case.

Regulations exempting discharges from the NPDES

program are plainly not effluent limitations, as

discussed above. And this Court’s decision in £./. du

Pont should not be expanded beyond its narrow

context to support the notion that al/ EPA CWA

regulations, or even all NPDES regulations, must

therefore be challenged in the courts of appeals.

In EJ. du Pont this Court even recognized the

probability that certain EPA actions very much

resembling the promulgation of effluent limitations

would not themselves be subject to review in the

courts of appeals under Section 1369. “If industry is

correct that the regulations can only be considered

[Section 1314] guidelines, suit to review the

regulations could probably be brought only in the

District Court, if anywhere.” /d. at 125. This is

because Section 1314 is not listed in Section

1369(b)(1). Promulgation of Section 1311 binding

effluent limitations and adoption of Section 1314

effluent limitation guidelines are closely related

actions.!! Indeed, the link between effluent

'! As noted above, the CWA defines “effluent limitation” as

“any restriction ... on quantities, rates, and concentrations of”

pollutants. 33 U.S.C. § 1362(11). In contrast, “effluent

limitation guidelines” assist the EPA in determining effluent

limitations by, for example, “identifyling] ... the degree of

effluent reduction attainable through the application of the best

practicable control technology available” and “specifyling]

factors to be taken into account in determining the control

measures and practices to be applicable to point sources .

20

limitations and effluent guidelines is far closer than

the connection Petitioners have drawn here between

the rules at issue in this case and any action listed

under Section 1369(b)(1). But, the point is that this

Court resisted the notion that even very closely

related actions should be swept into Section 1369's

coverage.

This Court's decision in Crown Simpson is

similarly inapplicable here. In Crown Simpson, this

Court found that the courts of appeals had original

jurisdiction under Section 1369(b)(1)(F) over EPA’s

objection to a state-issued NPDES permit because

EPA’s objection was “functionally similar’ to EPA’s

denial of an NPDES permit. 445 U.S. at 196. As the

Ninth Circuit has recognized, Crown Simpson

adopted a narrow understanding of “functional

similarity,” only finding that EPA’s objection to a

state-issued NPDES permit—which at the time!? had

within such categories or classes.” 33 U.S.C. §§ 1314(b)(1)(A)-

(B) (2006). Thus, EPA’s action in “approving or promulgating

any effluent limitation” is informed by, but not the same as,

EPA’s action promulgating regulations providing guidance to

the EPA on the setting of effluent limitations. See, e¢.g.,

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491 (2d Cir.

2005) (noting that “[t]he specific effluent limitations” at issue in

the case “are dictated by the terms of more general ‘effluent

limitation guidelines”, and that the effluent limitations were

“established in accordance with” the effluent limitation

guidelines).

12 Congress later amended the CWA, authorizing EPA to

issue a permit itself if a state does not meet the terms of EPA's

objections. See 33 U.S.C. § 1342(d)(4); Am. Paper Inst., 890

F.2d at 874 (“[Wle believe that the [CWA] amendments to the

21

the “precise effect” of denying the permit—was

“functionally similar’ to EPA’s denial of a permit.

NWEA, 537 F.3d at 1016 (citing Crown Simpson, 445

U.S. at 196).15 As the denial of a permit is

specifically listed within Section 1369(b)(1), it is

wholly unremarkable that the courts of appeals

would review such an action. And as discussed

above, EPA’s action exempting discharges from the

NPDES program does not have the “precise effect,” or

even close to the same effect, as the issuance or

denial of an NPDES permit. Thus, Crown Simpson is

not determinative of the instant case.

This Court in both E.J. du Pont and Crown

Simpson found that the courts of appeals could hear

direct challenges only to EPA actions listed in Section

1369 or actions that had the “precise effect” of listed

actions. Neither case supports Petitioners’ argument

that this Court should read Section 1369 to include

EPA actions that Congress clearly excluded from the

FWPCA fundamentally altered the underpinnings of the Crown

Simpson decision.”). The fact that Congress addressed the very

quandary this Court was faced with makes Crown Simpson's

relevance to this case even more strained.

\3 See also Nat'l] Mining Ass'n v. Jackson, Nos. 10-1220

(RBW), 11-0295(RWB), 11-0446(RBW), 11-0447(RBW), 2012

WL 3090245, at *10 (D.D.C. July 31, 2012) (finding that EPA’s

Fina! guidance was not “functionally similar” to the issuance or

denial of an NPDES permit, because even though it “relates to’

the issuance of 402 permits ... it [did] not amount to an EPA

issuance or denial of a 402 permit” (citations omitted)).

22

scope of the provision. '4

D. Courts and EPA Have Improperly Departed

from the Statute

Despite the unambiguous language of Section

1369(b)(1), Petitioners ask this Court to expand the

Section’s plain meaning to include EPA’s regulations

exempting discharges from the NPDES program.

Petitioners and their supporting amici rely on a

handful of courts of appeals decisions construing

Section 1369 as providing them with direct review

over not only EPA’s issuance or denial of an NPDES

permit, but over all NPDES program regulations.

See, e.g., Am. Mining Cong. v. EPA, 965 F.2d 759,

764 (9th Cir. 1992) (court of appeals had original

jurisdiction under Section 1369(b)(1)(F) to review

“regulations governing the issuance of permits under

[Slection 402”); Natural Res. Def. Council, Inc. v.

EPA, 966 F.2d 1292, 1296-97 (9th Cir. 1992) (court of

appeals had original jurisdiction under 1369(b)(1)(F)

to review “rules that regulate the underlying permit

procedures”); Natural Res. Def Council v. EPA, 526

F.3d 591, 601 (9th Cir. 2008) (court of appeals had

14 Other decisions from this Court counsel against an

expansive reading of similar judicial review provisions. See,

e.g., Harrison v. PPG Indus., Inc., 446 U.S. 578, 594 (1980)

(Powell, J., concurring) (expressing concern that a broad reading

of the CAA’s judicial review provision would raise

“constitutional difficulties” because “a failure to seek immediate

review will bar affected parties from challenging the [EPA]

action in a subsequent criminal prosecution”).

23

original jurisdiction under Section 1369(b)(1)(F) to

review EPA rule exempting certain discharges from

the NPDES permit requirements); Nat? Cotton

Council of Am. v. EPA, 553 F.3d 927, 932-33 (6th Cir.

2009) (court of appeals had original jurisdiction

under 1369(b)(1)(F) to review EPA rule exempting

certain pesticides from the NPDES permit

requirements).

Not one of these decisions, however, includes

more than a few sentences of analysis of the courts’

original jurisdiction under Section 1369. Moreover,

these courts have stretched this Court’s decision in

EI. du Pont well beyond the narrow issue before the

Court in that case. For example, the court in

American Mining Congress misapplied E.J. du Pont

by taking this Court’s admonition against creating a

“perverse situation” out of its original context of

effluent limitation regulations and applying it to

regulations governing NPDES permitting decisions.

965 F.2d at 763. As discussed above, this Court’s

reference to the “basic regulations” meant the

effluent limitations at issue in that case, which were

promulgated via regulation, not NPDES regulations

generally. EJ. du Pont, 430 U.S. at 136. The

American Mining Congress court's misapplication of

EI. du Pont forged the above-mentioned chain of case

law that has become untethered to the statutory

basis of this Court’s ruling.'5 American Mining

‘8 Other courts began suggesting a broader interpretation

of Section 1369 even before this line of cases, though the reach

of their analyses was not always clear. For example, in Natura/

24

Congress and subsequent courts erred in assuming

that E.J. du Pont provides them with original

jurisdiction over regulations governing NPDES

permitting procedures. !6

EPA too stepped off-track somewhere along the

way. In promulgating early NPDES regulations,

EPA stated that “review is not provided for actions in

issuing general regulations governing the issuance of

NPDES permits,” but rather that the CWA’s review

provision applies only to “individual permit issuance

actions.” 44 Fed. Reg. at 32,855. EPA also explicitly

or implicitly took the same position in litigation.

Notably, the D.C. Circuit’s landmark decision in

Natural Resource Defense Counsel v. Costle, holding

Resources Defense Council, Inc. v. EPA, the D.C. Circuit held

that Section 1369(b)(1ME) applied to NPDES regulations that

included some provisions “guidling] the setting of numerical

limitations in 1369.” 673 F.2d 400, 402, 404 (D.C. Cir. 1982). To

the extent the court believed it had jurisdiction over every

regulation included in the 1980 Consolidated Permit

Regulations (“CPRs”), it was mistaken. That the courts of

appeals might have jurisdiction over challenges to “some of the

CPRs”, id. at 404, does not support the conclusion that the

courts of appeals have jurisdiction over challenges to all of the

CPRs. The D.C. Circuit also offered no support for its

distinction between policy-based rules and substantive rules.

Id. at 405 & n.15.

16 Even if this Court were to expand the “perverse

situation” concern here, the same dynamic would not exist. An

exemption from the NPDES program ensures that the courts of

appeals will never be asked to review the grant or denial of a

permit.

25

EPA’s categorical exemption for stormwater

discharges u/tra vires, arose from an appeal of a

district court decision. See Natural Res. Det.

Counsel, Inc. v. Train, 396 F.Supp. 1393 (D.D.C.

1975), affd sub nom., Natural Res. Def Counsel, Inc.

v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). In that

challenge to EPA’s first attempt to exempt

silvicultural operations from the NPDES program,

EPA did not contest the district court’s jurisdiction to

hear the case. See also Am. Iron & Steel Inst., 543

F.2d at 524-25 (agreeing with EPA that court of

appeals lacked original jurisdiction over Net-Gross

Regulations “in the absence of [EPA action] issuing or

denying a permit”). It is unclear why EPA changed

course, but for all of the reasons above, its earlier

interpretation was the correct one.

Il. AN EXPANSIVE READING OF SECTION

1369 DISRUPTS THE TRADITIONAL

JURISIDCTION FEDERAL COURTS

MAINTAIN TO REVIEW AGENCY RULES

AS-APPLIED

Petitioners’ arguments, if accepted, would

improperly limit a court’s power to review agency

rules and interpretations. Petitioners contend that

jurisdiction under the CWA is bifurcated into a world

of only two possibilities: one where “parties seeking

to challenge the substance of EPA’s rules may do so

through a rule-review process,” and another for

“parties seeking enforcement of those regulations

[through] citizen-suit provisions.” Industry Br. 31—

32; see also Chamber Br. 2 (“courts sitting to hear

26

citizen suits enjoy jurisdiction only to enforce EPA’s

rules, not to invalidate them”); Amicus Curiae Br. of

Mountain States Legal Found. in Support of Pet’rs

15-16 (“It is axiomatic that the purpose of citizen

suits is to enforce EPA regulations, not to invalidate

them.”). Not only does this oversimplified picture of

the CWA find no support in the statute itself—

Section 1369(b) by its plain terms does not apply to

all rules (see supra)—it also runs counter to this

Court’s precedent under the CWA and other statutes.

Petitioners’ contention that the legality of CWA

regulations may only be evaluated in a Section 1369

facial challenge to a rule would mean that this Court

has overstepped in several seminal CWA cases. This

Court has considered on three occasions, without

hesitation, a threshold legal question underlying the

issuance of any NPDES permit: the scope of CWA

regulations defining waters of the United States.

United States v. Riverside Bayview Homes, Inc., 421

U.S. 121, 123 (1985) (considering “adjacent wetlands”

under 33 C.F.R. §328.3(a)(7)); Solid Waste Agency of

N. Cook County v. U.S. Army Corps of Eng’rs, 531

U.S. 159, 171-72 (2001) (invalidating the Army Corps

of Engineers’ (“Corps”) and EPA’s extension of 33

C.F.R. § 328.3(a)(3) “other waters” to include waters

based solely on the presence of migratory birds);

Rapanos v. United States, 547 U.S. 715, 730-31

(2006) (evaluating jurisdiction over wetlands

adjacent to tributaries, 33 C.F.R. § 328.3(a)(5) and

(a)(7)). These were EPA-issued CWA regulations

that did not come to the Court via direct review

27

under Section 1369.!17 Yet this Court squarely

considered the regulations’ legality. Under

Petitioners’ view, presumably this Court lacked the

jurisdiction to do so.

Even more recently, this Court evaluated the

scope of the CWA regulations governing “fill

material” under Section 1344 and the new source

performance standards (“NSPS”) issued under

Section 1316. Coeur Alaska, Inc. v. Se. Alaska

Conservation Council (“Coeur Alaska”), 557 U.S. 261

(2009). The respondents in Coeur Alaska brought

suit against the Corps arguing that a CWA permit

issued under Section 1344 was not “in accordance

with law” because the discharge of mining slurry into

a pond was subject to Section 1342. Jd. at 261. The

heart of the respondents’ claim was that EPA failed

to apply the NSPS regulations, promulgated

pursuant to CWA Section 1316(b), to the mining

slurry discharge. /d. (citing 40 C.F.R. § 440.104(b)(1)

(2012)).

Respondent here is pursuing a parallel] claim—the

application of a Section 1342 regulation, which EPA

believes is inapplicable to the discharge at issue.

Petitioners’ sweeping interpretation of Section 1369

would have barred the Court’s decision in Coeur

Alaska. This is because the respondents there did

17 These decisions cite to the Corps regulations, which

are identical to the jointly-issued EPA regulations on these

issues. See 40 C.F.R. § 122.2 (2012) (EPA); 33 C.F.R. § 328.3(a)

(2012) (Corps).

28

not bring a facial challenge to the NSPS regulations,

governing “process wastewater” and not exempting

“fill material,” when the regulations were

promulgated in 1982. See 47 Fed. Reg. 54,598,

54,602 (Dec. 3, 1982).1* This Court in Coeur Alaska

explained that it only became clear that Section 1344

could trump the application of Section 1342 years

after the NSPS regulations were promulgated.'9 So

too here, EPA did not make clear until 2010 that it

believed channelized runoff from logging roads fell

within the exemption in the Silvicultural Rule. Joint

Appendix Vol. I, at 60. Petitioners’ view of Section

1369 is therefore inconsistent with the necessity for

judicial review that this Court exercised in Coeur

Alaska.

These decisions highlight an important point. The

18 If any lawsuit asserting the applicability of an NPDES

regulation was to fall within Section 136%b)(1), Coeur Alaska

would have been closer than the case at bar. That is because

regulations promulgated under Section 1316 are at least on the

list of regulations subject to review under Section 1369{b)(1).

See 33 U.S.C. § 1369%(b)(1(E) (requiring review of an

“Administrator's action ... in approving or promulgating any

effluent limitation or other limitation under Section 1311, 1312,

1316, or 1345 of this title”).

18 Two important events occurred after the 1982 regulations

were promulgated. First, EPA and the Corps defined “fill

material” using an “effects-based test” in 2002. 67 Fed. Reg.

31,129, 31,132 (May 9, 2002). Second, the agencies analyzed

whether mine tailings slurry could be subject to a Section 1344

permit, and clarified the relationship between Sections 1342

and 1344, in the 2004 Regas Memorandum. Coeur Alaska, 557

US. at 283-87.

29

right of action to seek immediate, facial review of the

validity of certain EPA CWA actions is the exception

to the otherwise applicable assumption that agency

rules may be evaluated on an as-applied basis. The

Administrative Procedure Act (“APA”), 5 U.S.C. §

551, et seg., acknowledges this broad scope of review

in Section 701(a), where judicial review is granted

“except to the extent that—(1) statutes preclude

judicial review; or (2) agency action is committed to

agency discretion by law.” In evaluating statutory

preclusion principles, this Court has routinely upheld

a “well-settled presumption favoring interpretations

of statutes that allow judicial review of

administrative actions.” McNary v. Haitian Refugee

Ctr., Inc., 498 U.S. 479, 496 (1991) (permitting review

of an agency action under the Immigration and

Nationality Act).2° In order to rebut this

presumption, there must be “clear and convincing

evidence” to the contrary. Reno v. Catholic Soc.

Servs., Inc., 509 U.S. 43, 64 (1993) (citing Abbott

Labs. v. Gardner, 387 U.S. 136, 141 (1967)). A

narrow interpretation is consonant with the general

presumption of reviewability under the APA and this

20 See also Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667, 675-78 (1986) (interpreting the Medicare statute

to allow an individual to challenge a regulation’s validity despite

a preclusion on review for individual claims under the statute);

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)

(explaining that when a statute is “reasonably susceptible to

divergent interpretation,” this Court adopts the reading “that

executive determinations generally are subject to judicial

review”).

30

Court’s previous review of CWA regulations outside

the context of Section 1369.

Il. PETITIONERS’ ARGUMENTS MAKE NO

SENSE AS A PRACTICAL MATTER

The practical implications of Petitioners’

arguments are troubling, as applied to this case and

beyond. Petitioners set up a burden that would have

been nearly impossible for Respondent in this case to

meet. Moreover, an expansive reading of Section

1369 invites challenges to every EPA CWA action

even if not ripe, lest interested parties risk being

forever precluded from seeking review. And on the

flipside, Petitioners’ arguments would permit

agencies to develop post-hoc interpretations of

regulations beyond the 120-day review period,

enjoying immunity from suit even if such

interpretations are u/tra vires. This cannot be the

result Congress intended.

For starters, if Petitioners are _ correct,

Respondent was required to challenge, inter alia, the

Silvicultural Rule when the rule was promulgated.?!

21 See Industry Pet. for Cert. 29 (arguing “it has been clear

since those regulations were promulgated in 1990 that

channeled forest road runoff is not a stormwater discharge

associated with industrial activity”); Reply Br. Industry Pet. for

Cert. 6 (“EPA has repeatedly stated for more than 35 years that

forest road precipitation runoff does not become a point source

when it is channeled”); Industry Br. 54 (“For 35 years, the

meaning of the Silvicultural Rule has been clear: precipitation

31

Yet, it is inconceivable how Respondent could have

been on notice of EPA’s interpretation of the rule.

Indeed, EPA has acknowledged that it announced its

interpretation of the regulation “for the first time” in

this very litigation. Joint Appendix Vol. 1, at 60.2

Thus Respondent would have been required to invent

the facts surrounding the current controversy.

The implausibility of this scenario is evidenced in

the regulatory history. The phrase “natural runoff’

crept into the text of the Silvicultural Rule without

comment or explanation.23 The regulatory creep of

runoff from forest roads, whether or not collected in ditches, is

nonpoint source and not subject to permitting. And since its

adoption in 1990, EPA’s Phase I rule has made clear that

collected runoff is not a point source discharge ‘associated with

industrial activity. EPA has reiterated these interpretations

time and again, and has enforced each consistently from the

outset.”).

22 The United States in its 2010 Amicus Brief to the Ninth

Circuit argued that Section 1369(b)(1) expressly permitted

Respondents challenge because “the pertinent EPA

interpretation [was] offered well after the regulation [was]

promulgated.” Joint Appendix Vol. 1, at 60.

23 The term “runoff” first appeared in a comment to the

EPA’s 1978 proposed revision to the 1976 Silvicultural

Regulations. 43 Fed. Reg. 37,078, 37,104 (Aug. 21, 1978). The

finalized 1980 Silvicultural Rule also included “runoff” it its

comment section. 44 Fed. Reg. at 32,914. Without public

comment, or EPA elaboration, the term “natural runoff’ was

adopted into the text of the 1980 regulation. 45 Fed. Reg.

33,290, 33,447 (May 19, 1980). And this rule amendment

followed closely on the heels of the D.C. Circuit’s seminal

decision in Natural Resources Defense Council, Inc. v. Costle,

668 F.2d 1369 (D.C. Cir. 1977), which, as explained above, held

32

the phrase “natural runoff’ begs an important

question—precisely what could Respondent have

challenged at the time of the rule’s promulgation if

there was no comment or explanation from EPA

regarding what “natural runoff’ means??4

And this argument poses problems well beyond

this case. At bottom Petitioners’ argument runs afoul

of the ripeness doctrine. It is well settled that a

party bringing a prospective claim regarding the

hypothetical application of a rule to a scenario

unimagined by an agency is not ripe for adjudication.

that EPA did not have the authority to exempt classes of

discharges from the CWA. This context makes it even more

implausible that Respondent or any other interested party

should have read the Silvicultural Rule amendment as an

exemption.

24 Perhaps equally unworkable is the United States’

suggestion that Respondent should have directly challenged

EPA’s interpretation of the Silvicultural Rule announced for the

first time in an amicus brief in the proceedings below. U.S. Br.

22-23 n.8 (noting that EPA's clarification in a filing might

“provide a new opportunity for review of the rule itself” under

Section 1369(b)(1)’s exception for grounds arising after the 120-

day limitations period). The questions regarding how such a

procedure should unfold are innumerable (see NEDC Br. 21-

22), and this approach would only exacerbate the procedural

confusion at play in the lower courts today, as discussed below.

Moreover, the United States’ suggestion is troubling, given that

Respondent would not have been the only entity interested in

the United States’ new interpretation of its rule. Yet the

Government would apparently hold the general public

responsible for knowing what EPA states in every amicus brief

it files or else be barred under Section 1369(b) from bringing a

later challenge.

33

The basic premise behind the ripeness doctrine is to

“prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also

to protect the agencies from judicial interference

until an administrative decision has been formalized

and its effects felt in a concrete way by the

challenging parties.” Abbott Labs., 387 U.S. at 148—

49.

This Court has categorically held that a party

cannot challenge an anticipated agency

interpretation. In Ohio Forestry Ass’n, Inc. v. Sierra

Club (‘Ohio Forestry”), the Court found that

respondents claim, challenging a _ speculative

application of a general forestry plan, was not ripe for

review. 523 U.S. 726, 728 (1998). Conjuring up

future applications of regulations does “not create

adverse effects, ... command anyone to do anything

or to refrain from doing anything, ... grant,

withhold, or modify any formal legal license... .” /d.

In short, an imagined application of agency

regulations does not create any “legal rights or

obligations.” Jd. The logic behind Odio Forestry is

simple. Courts are loathe to consider claims that are

not ripe because it would require a court to “predict”

and anticipate consequences of a regulation that are

not present and “may change over time.” /d. at 736.

Moreover, requiring a party to challenge every

potential application of an agency regulation, even

before a particular application is understood, opens

the floodgates to filings at a court of appeals. As the

United States recognized in its brief before the Ninth

Circuit, parties would be required to “challenge [any]

34

potential regulatory interpretations that are

textually plausible.” Joint Appendix Vol. J, at 60.

Though other amici in support of Petitioners raise

the specter of legal uncertainty,”° it is their position

that is sure to lead to a litany of litigation and

confusion. The world of judicial review of EPA's

actions under the CWA is already messy. As one

court explained, litigants must “hire a horde of

lawyers” to maneuver through the CWA and expend

“tremendous resources in time and money and

considerable legal skill . . . into finding out the proper

address for an appeal.” Longview Fibre Co., 980 F.2d

at 1314. The confusion in the courts has already led

to many litigants filing in both the district court and

the court of appeals to protect their claims, then often

seeking to stay one litigation and proceed with the

other. See, e.g, Natural Res. Def Council, Inc., 673

F.2d at 402; NWEA, 537 F.3d at 1014; Nat7 Cotton

Council, 553 F.3d at 932; ONRC Action, 2012 WL

3526833, at *7-8.26 A broad interpretation of Section

25 See, e.g., Chamber Br. 4 (arguing that the court of

appeals’ reading of Section 1369 will “subject countless ...

regulated parties to new degrees of legal uncertainty across the

entire swath of Code of Federal Regulations provisions”).

26 This recent case highlights tensions in the lower courts

today, as a result of expansive and inconsistent interpretations

of Section 1369. In ONRC Action, the plaintiffs brought an

enforcement action against a government agency for discharging

without an NPDES permit. 2012 WL 3526833, at *1. Though

EPA was not a party to the suit, the district court analyzed

EPA’s Water Transfers Rule, which would have exempted the

government agency's discharge from the NPDES program, to

determine whether the rule was consonant with the CWA. Id.

35

1369(b)(1), like the Petitioners advance here, will

only exacerbate this problem. Longview Fibre Co.,

980 F.2d at 1313. (“[T]he more [courts] pull within

[Section 1369(b)(1)], the more arguments will be

knocked out by inadvertence later on—and the more

reason [law] firms will have to petition for review of

everything in sight.” (quoting Am. Paper Inst. v.

EPA, v. EPA, 882 F.2d 287, 289 (7th Cir. 1989)

(Easterbrook, J.)). If Section 1369(b) is read to apply

to all EPA CWA rules, query what well-counseled

regulated entity or conservation organization would

allow any EPA rule to remain unchallenged in the

courts of appeals.

Aside from creating more litigation and needlessly

burdening the federal courts, this position is also

perplexing in its implications for the regulated

community. For example, amicus Chamber of

Commerce pleads for an “even field defined by settled

rules,” but its interpretation obliterates the rights of

its own members to protect their interests. Chamber

Br. 5. This is because any lawsuit questioning the

application of NPDES regulations would be barred

120 days after the regulation’s promulgation. The

natural consequence of perceiving Section 1369(b)(1)

through this looking glass is that Chamber's

members would also be barred from challenging post-

at *24-28. The district court found that it had jurisdiction to

hear as-applied challenges to the Water Transfers Rule, even

though the Eleventh Circuit had exercised jurisdiction over

consolidated facial challenges to the Water Transfers Rule,

which had been filed directly in the courts of appeals. /d. at 8.

36

hoc agency interpretations of ambiguous regulations,

no matter how such an interpretation might affect a

particular business. This result was _ explicitly

recognized by amici National Association of Home

Builders and National Association of Manufacturers,

et al. Br. Amici Curiae National Association of Home

Builders and National Association of Manufacturers

8-9. Their rather unhelpful solution to this

conundrum, however, is only that this Court’s ruling

can be limited to “the facts of the case at hand.” Jd.

at 9. There is no comfort blanket that categorically

shields EPA from challenges to newly adopted

regulatory meanings, let alone rules that fall outside

the enumerated provisions of 1369(b)(1).

Forbidding review of an agency action that has yet

to occur would have the pernicious result of allowing

“(tlhe government ... to avoid al) challenges to its

actions, even if u/tra vires, simply because the agency

took the action long before anyone discovered the

true state of affairs." Wind River Mining Corp. v.

United States (“Wind River”), 946 F.2d 710, 715 (9th

Cir. 1991). Judge O’Scannlain’s reasoning in Wind

River, which addresses an analogous problem posed

by statutes of limitation, is enlightening.2”7 An

expansive view of Section 1369 would permit the

agency to adopt interpretations of its regulations,

after promulgation, that are immune to challenge

27 While “statutes of limitations ... often serve to bar

litigation of the merits of otherwise valid legal challenges,”

these bars are not absolute. Compare Chamber Br. 10, with

Wind River, 946 F.2d at 715~16.

37

even if they are ultra vires.

If this Court reaches the Section 1369(b) issues in

this case, the Court should decline Petitioners’

invitation to expand the provision beyond the clear,

discernible limits set forth in the text itself.

CONCLUSION

For the foregoing reasons, the district court had

jurisdiction to hear Respondent’s case.

Respectfully submitted,

Allison M. LaPlante

Counsel of Record

LEWIS & CLARK LAW SCHOOL

EARTHRISE LAW CENTER

10015 S.W. Terwilliger Boulevard

Portland, OR 97219

(503) 768-6894

laplante@lclark.edu

October 23, 2012