# Amicus Curiae Brief — Decker v. Northwest Environmental Defense Center

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A32

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 568 U.S. 1118

## Text

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

ee Fr ID stcreseresncnscecesrsnssenceensacesnsens i
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0744%3A32. Public record. Not legal advice.