Petition for Writ of Certiorari — Nat'l Ass'n of Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017) (No. 16-299)

Supreme Court brief2017

Ask Donna

What actually matters in this document.

Text

| RECORD

’—Biipreme Court, U.S.

AND { —_

GRIEFS . 16-299 SEP 2- 20i6

OFFICE OF THE CLERK.

In the Supreme Court of the Anited States

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

U.S. DEPARTMENT OF DEFENSE,

DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, AND

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL..,

Respondents.

Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL B. KIMBERLY

TrmmoTnHy S. BISHOP

Mayer Brown LLP Counsel of Record

1999 K Street, NW CHAD CLAMAGE

Washington, DC 20006 JED GLICKSTEIN

(202) 263-3127 Mayer Brown LLP

71 South Wacker Drive

LINDA E. KELLY Chi " [inois 6

LELAND P. FROST (312) 782-0600

Manufacturers’ Center tbishop@mayerbrown.com

for Legal Action

732 10th Street, NW, Ste 700

Washington, DC 20001

(202) 637-3000

Counsel for Petitioner

QUESTION PRESENTED

In June 2015, respondent agencies promulgated a

final rule defining the term “the waters of the United

States” and hence the scope of Clean Water Act

jurisdiction. The National Association of Manufac-

turers challenged that rule in district court under the

Administrative Procedure Act. State, municipal, indus-

try, and environmental challengers likewise filed APA

suits, but in addition filed protective petitions for

review in the courts of appeals, citing uncertainty

about whether the rule challenge falls under the

CWA’s judicial review provision, 33 U.S.C. § 1369(b)(1).

The petitions for review were consolidated in the

Sixth Circuit. The NAM intervened as respondent in

the Sixth Circuit and moved to dismiss the petitions for

want of jurisdiction. After full briefing and argument,

the Sixth Circuit held that it, not the district courts,

has jurisdiction to decide challenges to the rule. But

only one judge actually believed that to be the correct

outcome. Although two panel members concluded that

§ 1369(b)(1) precludes jurisdiction, one of them reason-

ed that he was bound by “incorrect” circuit precedent to

take jurisdiction under § 1369(b)(1)(F), which requires

that agency actions “in issuing or denying any permit

under” § 1342 be reviewed by the court of appeals.

This recurring jurisdictional] issue has divided the

circuits, wasted judicial and party resources, and

delayed the resolution of important rule challenges.

The question presented is whether the Sixth

Circuit erred when it held that it has jurisdiction

under 33 U.S.C. § 1369(b)(1)(F) to decide petitions to

review the waters of the United States rule, even

though the rule does not “issufe] or den[y] any permit”

but instead defines the waters that fall within Clean

Water Act jurisdiction.

PARTIES TO THE PROCEEDINGS BELOW

After the Judicial Panel on Multidistrict Litigation

consolidated the petitions for review in the Sixth

Circuit (Consolidation Order, Dkt. No. 3, MCP No. 135

(JPML July 28, 2015)), the Sixth Circuit permitted

petitioner here, the National Association of Manufac-

turers, to intervene as a respondent. Order, No. 15-

3751 cons. (Sept. 16, 2015).

Respondents below—the federal agency respon-

dents here—are the U.S. Environmental Protection

Agency; Regina McCarthy, in her official capacity as

EPA administrator; the U.S. Army Corps of Engineers;

Lieutenant General Todd T. Semonite, in his official

capacity as the Corps’ Chief of Engineers and Com-

manding General;! Jo-Ellen Darcy, in her official

capacity as Assistant Secretary of the Army; and Eric

Fanning, in his official capacity as Secretary of the

Army.?

State intervenor-respondents below and respon-

dents here are the States of New York, Connecticut,

Hawaii, Massachusetts, Oregon, Vermont, Washing-

ton, and the District of Columbia.

Over 100 other parties filed 22 petitions for review

below, and intervened in other petitions, and many of

those petitioners moved to dismiss their own and other

petitions for review for want of jurisdiction. These

petitioners below, respondents here, are as follows:

! Lt. General Semonite succeeded Lt. General Thomas P. Bostick

in this capacity on May 19, 2016.

2 Secretary Fanning succeeded John M. McHugh in this capacity

on May 17, 2016.

No. 15-3751: Murray Energy Corporation.

No. 15-3799: States of Ohio, Michigan, and Ten-

nessee.

No. 15-3817: National Wildlife Federation.

No. 15-3820: Natural Resources Defense Council,

Inc.

No. 15-3822: State of Oklahoma.

No. 15-3823: Chamber of Commerce of the United

States; National Federation of Independent Business;

State Chamber of Oklahoma; Tulsa Regional Chamber;

and Portland Cement Association.

No. 15-3831: States of North Dakota, Alaska,

Arizona, Arkansas, Colorado, Idaho, Missouri, Mon-

tana, Nebraska, Nevada, South Dakota, Wyoming,

New Mexico Environment Department, New Mexico

State Engineer.

No. 15-3837: Waterkeeper Alliance; Center for

Biological Diversity; Center for Food Safety; Humboldt

Baykeeper; Russian Riverkeeper; Monterey Coast-

keeper; Upper Missouri Waterkeeper, Inc.; Snake

River Waterkeeper, Inc.; Turtle Island Restoration

Network, Inc.

No. 15-3839: Puget SoundKeeper; Sierra Club.

No. 15-3850: American Farm Bureau Federation;

American Forest & Paper Association; American Pet-

roleum Institute; American Road and Transportation

Builders Association; Greater Houston Builders

Association; Leading Builders of America; Matagorda

County Farm Bureau; National Alliance of Forest

Owners; National Association of Home Builders;

National Association of Realtors; National Cattlemen’s

Beef Association; National Corn Growers Association;

National Mining Association; National Pork Producers

Council; National Stone, Sand, and Gravel Association;

Public Lands Council; Texas Farm Bureau; and U.S.

Poultry & Egg Association.

No. 15-3853: States of Texas, Louisiana, and

Mississippi; Texas Department of Agriculture; Texas

Commission on Environmental Quality; Texas Depart-

ment of Transportation; Texas General Land Office;

Railroad Commission of Texas; Texas Water Develop-

ment Board.

No. 15-3858: Utility Water Act Group.

No. 15-3885: Southeastern Legal Foundation, Inc.;

Georgia Agribusiness Council, Inc.; Greater Atlanta

Homebuilders Association, Inc.

No. 15-3887: States of Georgia, West Virginia,

Alabama, Florida, Indiana, Kansas; Commonwealth of

Kentucky; North Carolina Department of Environment

and Natural Resources; States of South Carolina,

Utah, and Wisconsin.

No. 15-3948: One Hundred Miles; South Carolina

Coastal Conservation League.

No. 15-4159: Southeast Stormwater Association,

Inc.; Florida Stormwater Association, Inc.; Florida

Rural Water Association, Inc., and Florida League of

Cities, Inc.

No. 15-4162: Michigan Farm Bureau.

No. 15-4188: Washington Cattlemen’s Association;

California Cattlemen’s Association; Oregon Cattle-

men’s Association; New Mexico Cattle Growers As-

sociation; New Mexico Wool Growers, Inc.; New Mexico

Federal Lands Council; Coalition of Arizona/New

Mexico Counties for Stable Economic Growth; Duarte

Nursery, Inc.; Pierce Investment Company; LPF

Properties, LLC; Hawkes Company, Inc.

No. 15-4211: Association of American Railroads;

Port Terminal] Railroad Association.

No. 15-4234: Texas Alliance for Responsible

Growth, Environment and Transportation.

No. 15-4305: American Exploration & Mining

Association.

No. 15-4404: Arizona Mining Association; Arizona

Farm Bureau; Association of Commerce and Industry;

New Mexico Mining Association; Arizona Chamber of

Commerce & Industry; Arizona Rock Products Associa-

tion; and New Mexico Farm & Livestock Bureau.

CORPORATE DISCLOSURE STATEMENT

Petitioner National Association of Manufacturers is

a not-for-profit public advocacy group. It has no parent

corporation and does not issue stock.

TABLE OF CONTENTS

cs emmnbunenetontansedmies i

Parties to the Proceedings Below .........................2...- ii

Corporate Disclosure Statement ...................0....2cce00ee Vv

RAE 5 EE Ea NA ee Oe De OO 1

EET EE SESE ne aE CRE 1

Statutory Provisions Involved ....................cceccceeeeseees 1

ES EERE AI SE a ae Te ae 1

Fe BI icccciccnevecnsensencecsenecscesssncces 4

a ceeacenial 5

C. The Clean Water Act’s Judicial Review

EEE ES eA ae re Ue a eae 6

D. Litigation Challenging The New Rule............. 7

1. Confusion in the district courts. ................. 9

2. The Sixth Circuit refuses to dismiss

the petitions for review .........................00+- 10

E. The Aftermath Of The Sixth Circuit’s

a cueansidaepndiion 13

Reasons for Granting the Petition............................ 14

I. The Sixth Circuit Erroneously Took

Jurisdiction Under Section 1369(b), In

Conflict With Decisions Of Other Circuits.......... 14

A. The Sixth Circuit Lacks Jurisdiction

Dimer Beckie LEGBD). ...ccccccccccccccccccoccccccescses 15

B. The Panel’s Ruling Conflicts With

Decisions Of Other Courts Of Appeals. ......... 20

II. The Question Presented Is Of Immense

And Immediate Practical Importance.................24

A. Uncertainty Over The Meaning Of

Section 1369(b) Causes Delay And

Waste Of Judicial And Party Resources........ 24

B. The Panel’s Decision Would Deny

Parties, Agencies, And Courts Of The

Benefits Of Multilateral Review Of

pO SEE NEE 28

C. Interlocutory Review Is Warranted............... 31

NSFC En pence oe Fp oer nO ee eR 32

Appendix A — Opinion of the court of appeals

ERT Ey la

Appendix B— Judgment (Feb. 22, 2016).............. 48a

Appendix C — Order denying rehearing

en banc (Apr. 21, 2016).................. 5la

Appendix D— Statutes Involved........................... 53a

TABLE OF AUTHORITIES

Cases

Alaska Eskimo Whaling Comm’n v. EPA,

791 F.3d 1088 (9th Cir. 2015)....................000-00.-0 15

Alton Box Bd. Co. v. EPA,

5602 F.2d 306 (7th Cir. 1979).............ccccccccccsecceseee 15

Am. Paper Inst. v. EPA,

860 F.2d S60 (7th Cir. 1966)........2...000.cccccces-cecceee 18

Arbaugh v. Y & H Corp.,

A ee ee 25

Atchison, Topeka & Santa Fe Ry. Co. v.

Pena, 44 F.3d 437 (7th Cir. 1994)........................ 30

Barnhart v. Peabody Coal Co.,

al eeiaiibonaniied 19

Bowen v. Massachusetts,

i oleae -00e OO

California v. Carney,

I oneness 29

Catskill Mountains Chapter of Trout

Unlimited, Inc. v. EPA, 8 F. Supp. 3d

a ESS 27

Circuit City Stores, Inc. vy. Adams,

SE ET Ca 18

In re: Clean Water Rule, MDL No. 2663,

Dkt. 163 (JPML Oct. 13, 2015)......................200000 8

Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) ..................... 14

Crown Simpson Pulp Co. v. Costle,

3 | ee 3, 11, 16, 23

Decker v. Nw. Envt1l Def. Ctr.,

I i eeeiciaiinn 7,14

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

FL, I SR a 11, 12

In re EPA,

803 F.3d 804 (6th Cir. 2015)...............................- 10

Fla. Power & Lighi Co. v. Lorion,

a cciusueosinnse ia

Ford Motor Co. v. United States,

a cusmenaul 27

Friends of the Earth v. EPA,

Pg ee 29

Friends of the Everglades v. EPA,

699 F.3d 1280 (11th Cir. 2012)......000000000..... passim

Georgia v. McCarthy, 2015 WL 5092568

ee a conacbiurocecnuennst 9

Georgia v. McCarthy, 2016 WL 4363130

I ac ceaesuibonans 14, 26

Harrison v. PPG Indus., Inc.,

ns aiibemiinnale 24, 28

Hertz Corp. v. Friend,

i ctieiamelnvand 25

Lapides v. Bd. of Regents of Univ. Sys. of

EN 4, 28

Longview Fibre Co. v. Rasmussen,

980 F.2d 1307 (9th Cir. 1992).............................. 20

Mercantile National Bank v. Langdeau,

ee eG crecsiscicintnishasnetantanendoconsoonsoesceeee 32

Murray Energy Corp. v. EPA, 2015 WL

5062506 (N.D. W. Va. Aug. 26, 2015).................... 9

Nat. Res. Def. Council v. EPA,

606 F.3d G66 (2d Cir. 2016) ............cc.ccc.c.cc..cccces0. 15

National Cotton Council of America v. EPA,

553 F.3d 927 (6th Cir. 2009)...................0008. passim

North Dakota v. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015)........20.0-.-- 9, 23

Northwest Environmental Advocates v.

EPA, 537 F.3d 1006 (9th Cir. 2008) ............... 21-25

Obergefell v. Hodges,

cence 29

Oklahoma ex rel. Pruitt v. EPA, 2016 WL

3189807 (N.D. Okla. Feb. 24, 2016) .................... 13

Rapanos v. United States,

Ne is ciessiciiiaiauial 5

Roll Coater, Inc. v. Reilly,

$33 F.2d 668 (7th Cir. 19091).................02..000.-e00s. .25

Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers,

gg EEN 4,5

U.S. Army Corps of Eng’rs v. Hawkes Co.,

a, nc cs scccciicngeeconscoeniestonnincnsns 4

United States v. Mendoza,

NG HE acini cncerninccscmbéecaneninovensensens 1000 BO

United States v. Riverside Bayview Homes,

ee I HE iinicrntncencenscetncsbossnepsesens 4,5

Upper Blackstone Waiter Pollution

Abatement Dist. v. EPA, 690 F.3d 9

Tiida icemcnthinasiiieciisinnicionbeseecieséetdovesdess 15

Walden v. Fiore,

os acidtdinscecdusiicsennwanmeis 32

Zadvydas v. Davis,

TE cee 20

Statutes and regulations

5 U.S.C.

a alii ie atiialaiia tenia i a a a a 7, 30

ST radiaecidsuieaegisininhasestdllabieciapulsiocesbicodondiiibishhedicdsicses ae 30

a as 7

EERE RAGE A ore een RE ae RA I, AIOE 6

28 U.S.C.

a es al 1

EY ERIS? OS ales ea eam RENE SEE eeP 32

ES ANS ae eee Oe aT: 7, 30

EULER DADE tea MEO SE pipe a = 30

a 8

a Ot 9

33 U.S.C

RETIRE NSA eg eie OY REAe AARC R RSS OR ME 4, 17-19

a ee 17-19

a w.eeee 7-19

TE Ee no ree AME AD 16, 21, 23

RET SR arsed oe ae Ey aT SI = 17-19

SRE NO SRE Ne eee ee 1, 4, 22

RE STE SRS ee CO a EF 17

ALAS RETREAT are a Ce OR 4, 21, 22

EERE SERENA LDR IIT So ONCE SEP FTES 7

CORR Mae cttec neti)! *

00D TESA, © PII oie cnenctsiecacecoenenanies

Clean Water Rule: Definition of “Waters of

the United States,” 80 Fed. Reg. 37,054

CBee A I. cnx cceccorsocscnssintcopessannsbians

Lk 2 8) RRS a ee =)

ik | ae EaneE Ne:

CO I isis csicocaeseerstisacoial

Miscellaneous

The Fiscal Year 2016 EPA Budget: Joint

Hearing Before the Subcomm. on Energy

& Power & the Subcomm. on Environ-

ment & Economy of the House Comm. on

Energy & Commerce, 114th Cong.

GEG GE Siac cnssccevesieseiesnnteimunsnisssinmmines

Allison LaPlante, et al., On Judicial Review

Under the Clean Water Act in the Wake

of Decker v. Northwest Environmental

Defense Center: What We Know Now

and What We Have Yet to Find Out,

a ee, i) | ee

Richard L. Revesz, Specialized Courts and

the Administrative Lawmaking System,

138 U. PA. L. REV. 1111 (1990)..................

PETITION FOR A WRIT OF CERTIORARI

Petitioner National Association of Manufacturers

respectfully petitions for a writ of certiorari to review

the judgment of the U.S. Court of Appeals for the Sixth

Circuit.

OPINIONS BELOW

The decision of the court of appeals (App., infra, la-

47a) is reported at 817 F.3d 261. The court of appeals’

denial of rehearing en banc, which is unreported, is re-

produced at App., infra, 5la-52a.

JURISDICTION

The separate judgment of the court of appeals

denying all motions to dismiss the petitions for review

for lack of jurisdiction was entered on February 22,

2016. App., infra, 48a-50a. The court of appeals’ order

denying rehearing en banc was entered on April 21,

2016. On July 1, 2016, Justice Kagan extended the

time to file this petition to September 2, 2016. This

Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of Section 509(b) of the Clean

Water Act, 33 U.S.C. § 1369(b), are set forth at App.,

infra, 53a-54a.

STATEMENT

The Clean Water Act (““CWA” or “Act”) defines

“navigable waters” as “the waters of the United

States.” 33 U.S.C. § 1362(7). In June 2015, the U.S.

Environmental Protection Agency (“EPA”) and U.S.

Army Corps of Engineers (“Corps”) promulgated a final

rule that significantly revised the scope of federal

jurisdiction under the Act by redefining the term

“waters of the United States.” Clean Water Rule:

Definition of “Waters of the United States,” 80 Fed. Reg.

37,054 (June 29, 2015) (the “WOTUS Rule” or “Rule”).

The National Association of Manufacturers (“the

NAM”) is among scores of public and private

plaintiffe—States, municipalities, and industry and

environmental groups—that have challenged the

WOTUS Rule. In the fifteen months since the new Rule

became final no brief on the merits has yet been filed

in any of these cases. Briefing on the merits in the

Sixth Circuit is not due to be completed until mid-

February 2017.

This bottleneck is due to an esoteric and wasteful

debate over where the challenges to the Rule belong.

The crux of the problem is the judicial review provision

of the Clean Water Act, 33 U.S.C. § 1369(b). That

provision funnels review of certain types of agency

action directly to courts of appeals, leaving other

challenges to be brought in the district courts under

the Administrative Procedure Act. What should be a

straightforward gatekeeping provision has in this and

other cases generated widespread judicial disagree-

ment, caused needless delay, and wasted valuable

resources for no substantive purpose.

In particular, courts have disagreed over the

interpretation of two categories of agency action that

are specified in Section 1369(b) to trigger ori zinal

circuit court review: actions “approving or promul-

gating any effluent limitation or other limitation”

under certain provisions of the CWA, and actions

“issuing or denying any permit” under the Act’s

National Pollutant Discharge Elimination System. Jd.

§ 1369(b)(1)(E), (F). Virtually all district and circuit

courts agree that the WOTUS Rule does not fall into

either of those categories if the statutory words are

given their plain meaning. However, courts have

divided over whether this Court’s decisions in E./. du

Pont de Nemours Co. v. Train, 430 U.S. 112 (1977), and

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

(1980)—and lower courts’ conflicting glosses on those

decisions—require a looser interpretation.

The decision here, in which the Sixth Circuit split

1-1-1 over Section 1369(b)’s applicability, exemplifies

this disarray. The panel produced three separate and

incommensurate opinions addressing whether it has

jurisdiction to consider the rule challenges. And the

judge who cast the deciding vote in favor of court of

appeals jurisdiction did so not because he thought that

result was a correct application of the statute, but

because he felt himself bound by a circuit precedent

that he deemed wrongly decided and that conflicts with

decisions in other courts of appeals. No challenge to

agency action—let alone agency action as consequen-

tial as the WOTUS Rule, which brings vast areas of the

Nation under federal jurisdiction as “waters of the

United States”—should be left to rest on such a precar-

ious foundation.

The NAM has consistently argued that the

WOTUS Rule does not fall under any Section 1369-

(b)(1) category and that jurisdiction over these cases

therefore belongs in the district court. Its still-pending

complaint filed in the Southern District of Texas,

joined by over a dozen co-plaintiffs, argues that

Section 1369(b) does not provide any basis for circuit

court jurisdiction. See Am. Farm Bureau Fed’n, et al. v.

EPA, No. 3:15-cv-165 (S.D. Tex.), Dkt. 1 at 9 6-9. And

while the NAM’s co-plaintiffs filed “protective”

petitions for review in the Sixth Circuit to prevent

their challenges from becoming untimely if the

jurisdictional question were resolved in favor of circuit

court review, the NAM did not do so. Instead, it

intervened as a respondent in 11 of the 22 petitions

(which have all been consolidated) and moved to

dismiss for lack of jurisdiction—precisely in order to

ensure its standing to seek further review of the

jurisdictional question before this Court.

The question presented here not only dogs the

pending challenges to the WOTUS Rule, but also has

confused and delayed prior rule challenges and

certainly will disrupt future rule challenges. That is an

intolerable situation. “[J]urisdictional rules should be

clear.” Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

535 U.S. 613, 621 (2002). This Court’s review is

urgently required to determine where jurisdiction lies

for the WOTUS Rule challenges, resolve the circuit

split on Section 1369(b)’s meaning, and guide the

federal courts in their future application of that

provision.

A. The Clean Water Act

The Clean Water Act “prohibits ‘the discharge of

any pollutant’ without a permit into ‘navigable waters,’

which it defines, in turn, as ‘the waters of the United

States.” U.S. Army Corps of Eng’rs v. Hawkes Co., 136

S. Ct. 1807, 1811 (2016) (citing 33 U.S.C. §§ 1311(a),

1362(7), (12)). Obtaining a permit is costly, and the

penalties for discharging without one are substantial.

Id. at 1812. The scope of “the waters of the United

States” is therefore a matter of exceptional importance

for landowners, industry and environmental groups,

and government officials.

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

474 U.S. 121, 135 (1985), this Court concluded that the

agencies permissibly interpreted “waters of the United

States” to encompass wetlands that actually abutted

traditional navigable waters. In Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of Engin-

eers, 531 U.S. 159 (2001) “SWANCC’), it struck down

the agencies’ “Migratory Bird Rule,” which purported

to extend agency jurisdiction to any waters that are or

might be used as habitat for migratory birds, no matter

how isolated or remote from navigable waters. And in

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

Court reversed the agencies’ determination that they

had jurisdiction over wetlands that “lie near ditches or

man-made drains that eventually empty into tradi-

tional navigable waters,” which swept in “virtually any

parcel of land containing a channel or conduit * * *

through which rainwater or drainage may occasionally

or intermittently flow.” Jd. at 722, 729 (plurality

opinion).

The WOTUS Rule purports to clarify the definition

of “waters of the United States” within the meaning of

the CWA and Rapanos, SWANCC, and Riverside

Bayview. 80 Fed. Reg. at 37,054.

B. The WOTUS Rule

The WOTUS Rule separates waters into three

jurisdictional groups: waters that are categorically

jurisdictional, waters that require a case-specific sig-

nificant nexus evaluation to determine if they are juris-

dictional, and waters that are categorically excluded

from jurisdiction.

In the first group are waters that are categorically

jurisdictional: (1) traditional navigable waters,

(2) interstate waters, (3) territorial seas, (4) impound-

ments of any water deemed to be a “water of the

United States,” (5) certain tributaries, and (6) certain

waters that are “adjacent” to the foregoing five

categories of waters. 33 C.F.R. § 328.3(a).

In the second group are waters “that require a

case-specific significant nexus evaluation” to determine

if they are jurisdictional. 80 Fed. Reg. at 37,073.

Waters that are subject to jurisdiction based on a case-

specific significant nexus determination include:

(A) waters, any part of which are within the 100-year

floodplain of a traditional navigable water, interstate

water, or territorial sea; or (B) waters, any part of

which are within 4,000 feet of the ordinary high water

mark of any of those jurisdictional waters, any

impoundment of those jurisdictional waters, or any

covered tributary. 33 C.F.R. § 328.3(a)(8).

In the third group are waters always excluded from

jurisdiction. These include: swimming pools, puddles.

ornamental waters, prior converted cropland, waste

treatment systems, certain kinds of drainage ditches,

farm and stock watering ponds, settling basins, water-

filled depressions incidental to mining or construction

activity, subsurface drainage systems, and certain

wastewater recycling structures. 33 C.F.R. § 328.3(b).

The NAM and its co-plaintiffs in the Southern

District of Texas will show (once this case reaches the

merits stage) that the WOTUS Rule violates this

Court’s precedents, is deeply flawed both in substance

and procedurally, and ccnsequently violates the

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

§ 706(2)(A)-(D). But to this point, uncertainty over the

meaning of Section 1369(b) has meant that the NAM

has spent the past 15 months since promulgation of the

Rule litigating the issue of where jurisdiction over the

merits belongs, in multiple forums.

C. The Clean Water Act’s Judicial Review

Provisions

The CWA grants the courts of appeals original

jurisdiction to hear challenges to seven specified

categories of final agency actions (App., infra, 53a-

54a)—among them, insofar as relevant here, actions

(E) in approving or promulgating any effluent

limitation or other limitation under section

1311, 1312, 1316, or 13465 of this title, [and]

(F) in issuing or denying any permit under

section 1342 of this title * * *.

33 U.S.C. § 1369(b)(1). This jurisdiction is not only

original, but exclusive. Decker v. Nw. Envt'l Def. Ctr.,

133 S. Ct. 1326, 13834 (2013).

Section 1369(b) very clearly “extends only to

certain suits challenging some agency actions.” Decker,

133 S. Ct. at 1334 (emphasis added). Challenges to

agency rules not specified in Section 1369(b) proceed

under Sections 702 and 704 of the APA, which provide

that “[a] person suffering legal wrong” or “adversely

affected or aggrieved by agency action” may bring suit

in district court for judicial review of any “final agency

action for which there is no other adequate remedy in a

court.” 5 U.S.C. §§ 702, 704. Thus, litigants whose

claims do not fall within Section 1369(b)(1) may invoke

a cause of action in district court under the APA and

28 U.S.C. § 1331. That Section 1369(b)(1) is not

intended to be all-encompassing is confirmed by

Section 1365(e), which preserves statutory and

common law rights to seek relief against the

Administrator (such as those available under the APA).

In promulgating the WOTUS Rule the agencies

conceded that while Section 1369(b)(1) “provides for

judicial review in the courts of appeals of specifically

enumerated actions of the Administrator,” courts “have

reached different conclusions on the types of actions

that fall within” that provision. 80 Fed. Reg. at 37,104.

D. Litigation Challenging The New Rule

Scores of state, municipal, industry, and environ-

mental plaintiffs filed suits challenging the WOTUS

Rule in district courts around the country,' including

the NAM, which filed suit along with other industry

groups in the Southern District of Texas.?

The Judicial Panel on Multidistrict Litigation

denied the federal government’s request to consolidate

the district court actions and to transfer them to the

District Court for the District of Columbia. See Jn re:

Clean Water Rule, MDL No. 2663, Dkt. 163 (JPML Oct.

13, 2015). The Judicial Panel held that transfer was

inappropriate under 28 U.S.C. § 1407 because the

complaints turn on issues of law, and held that

“different jurisdictional rulings by the involved courts”

also augured against consolidation. Id. at 2.

Reflecting uncertainty surrounding the scope of

Section 1369(b), many plaintiffs who filed district court

actions (but not the NAM) also filed “protective”

petitions for review in various courts of appeals.’ Those

petitions for review were consolidated and transferred

! Those actions are North Dakota v. EPA, No. 3:15-cv-59 (D.N.D.);

Murray Energy Corp. v. EPA, No. 1:15-cv-110 (N.D. W. Va.); Ohio

v. EPA, 2:15-cv-2467 (S.D. Ohio); Texas v. EPA, No. 3:15-cv-162

(S.D. Tex.); Georgia v. McCarthy, No. 2:15-cv-79 (S.D. Ga.);

Oklahoma ex rel. Pruitt v. EPA, No. 4:15-cv-381 (N.D. Okla.);

Chamber of Commerce v. EPA, No. 4:15-cv-386 (N.D. Okla.);

Southeastern Legal Foundation v. EPA, No. 1:15-cv-2488-TCB

(N.D. Ga.); Washington Cattlemen’s Association v. EPA, No. 0:15-

cv-3058 (D. Minn.); Puget Soundkeeper Alliance v. McCarthy, No.

2:15-cv-1342 (W.D. Wash.); Waterkeeper Alliance v. EPA, No. 3:15-

cv-3927 (N.D. Cal.); Natural Resources Defense Council v. EPA,

No. 1:15-cv-1324 (D.D.C.); and Arizona Mining Ass'n v. EPA, No.

2:15-cv-1762 (D. Az.).

2 Am. Farm Bureau Fed’n, et al. v. EPA, No. 3:15-cv-165 (S.D.

Tex.).

8 The 22 petitions for review and more than 100 petitioners are

identified in the Parties to the Proceeding Below section, supra,

pp. il-v.

to the Sixth Circuit pursuant to 28 U.S.C. § 2112(a).

Consolidation Order, MCP No. 135 (JPML July 28,

2015).

The agencies moved to stay or dismiss cases in the

district courts in favor of the circuit court litigation. All

of the cases became ensnarled in the jurisdictional

dispute, halting any progress towards the merits.

1, Confusion in the district courts

In August 2015, the U.S. District Court for the

Northern District of West Virginia held that the Sixth

Circuit had exclusive jurisdiction over Rule challenges.

Murray Energy Corp. v. EPA, 2015 WL 5062506 (N.D.

W. Va. Aug. 26, 2015). The U.S. District Court for the

Southern District of Georgia reached the saine

conclusion. Georgia v. McCarthy, 2015 WL 5092568, at

*3 (S.D. Ga. Aug. 27, 2015).

But the very same day as McCarthy, the U.S.

District Court for the District of North Dakota affirmed

its own jurisdiction, holding that Section 1369(b) does

not apply. North Dakota v. EPA, 127 F. Supp. 3d 1047

(D.N.D. 2015). The court observed that “fijf the

exceptionally expansive view” of that provision

“advocated by the government is adopted, it would

encompass virtually all EPA actions under the Clean

Water Act.” Jd. at 1053. The North Dakota court denied

the agencies’ motion to dismiss and preliminarily

enjoined the operation of the Rule.

4 See North Dakota v. EPA, 3:15-cv-59, Dkt. 79 (D.N.D. Sept. 4,

2015) (limiting the injunction to the States that were party to the

challenge). After the Sixth Circuit ruled it had jurisdiction the

North Dakota court denied the United States’ renewed motion to

dismiss and to dissolve the injunction and stayed the case

“pending further decision by the Courts of Appeals or Supreme

Court.” Id., Order, Dkt. 156 (May 24, 2016).

2. The Sixth Circuit refuses to dismiss

the petitions for review

The NAM, which had not filed a protective petition

for review, successfully moved to intervene as a

respondent in the Sixth Circuit. Dkt. 8, No. 15-3751

cons. (6th Cir. Sept. 16, 2015). The NAM then moved to

dismiss the petitions for review for want of jurisdiction.

Dkt. 39, No. 15-3751 cons. (6th Cir. Oct. 2, 2015), as

did many of the parties that had filed protective

petitions for review.

The Sixth Circuit ordered full briefing and

argument on jurisdiction. On October 9, acknowledging

the “still open question whether * * * this litigation is

properly pursued in this court or in the district courts,”

the Sixth Circuit issued a nationwide stay of the Rule

to “temporarily silenc[e] the whirlwind of confusion

that springs frcm uncertainty about the requirements

of the new Rule and whether they will survive legal

testing.” In re EPA, 803 F.3d 804, 806, 808 (6th Cir.

2015). Judge Keith dissented, arguing that a stay was

premature so long as the court’s jurisdiction remained

“in doubt.” Jd. at 809 (Keith, J., dissenting).

On February 22, 2016, the Sixth Circuit concluded,

in an unusually fractured decision, that it and not the

district courts had jurisdiction to hear the Rule

challenges. The court of appeals’ 1-1-1 decision

produced its own “whirlwind of confusion.” 803 F.3d at

808. Indeed, the only thing the panel could agree on

was that subsections (E) and (F) were the “only two

provisions of § 1369(b)(1)” that “potentially apply.”

App., infra, 8a. On all other issues the panel splint-

ered.

a. Judge McKeague’s opinion. Judge McKeague

admitted that the government's textual arguments as

to subsection (E) were “not compelling.” App., infra, 9a.

“(Tjhe Rule’s clarified definition,” he wrote, does not

“approve or promulgate any limitation that imposes

ipso facto any restriction or requirement on point

source operators or permit issuers.” bid. (emphasis

added). “Rather,” it is “a definitional rule that, operat-

ing in conjunction with other regulations, will result in

imposition of such limitations.” Ibid.

Judge McKeague nevertheless concluded that

jurisdiction hes in the court of appeals under sub-

section (E)}—not because the statutory text requires it,

but because this Court’s decision in E.I. du Pont de

Nemours Co. v. Train does so. Judge McKeague

conceded that the du Pont case “can be read in more

ways than one.” App., infra, 10a. But he believed that

du Pont “eschewed” a “literal reading” of Section

1369(b)(1) in favor of a “more generou[s]” interpret-

ation than the statutory “language would indicate,”

and that this interpretation encompasses the WOTUS

Rule because the Rule’s “practical effect will be to

indirectly produce various limitations on point-source

operators and permit issuing authorities.” App., infra,

10a, 13a, 17a.

Turning to Subsection (F), Judge McKeague

recognized that the Rule does not “issue” or “deny” any

permits. But he concluded that Subsection (F) ought

not be given “a strict literal application” either. App.,

infra, 17a. In support, Judge McKeague cited this

Court’s opinion in Crown Simpson Pulp Co. v. Costle

and the Sixth Circuit’s decision in National Cotton

Council of America v. EPA, 553 F.3d 927 (6th Cir.

2009). He reasoned that those decisions together

authorize direct review in the circuit courts of any

regulation that merely, in some indirect way, “affects

permitting requirements.” App., infra, 19a (emphasis

added).

b. Judge Griffin's begrudging concurrence. Judge

Griffin concurred in the judgment only. Like Judge

McKeague, he concluded that the “plain text” of sub-

section (E) does not govern the petitions for review

because the WOTUS Rule is not an “effluent limitation

or other limitation.” App., infra, 30a-3la. But unlike

Judge McKeague, Judge Griffin refused to read du

Pont as “shoehorning an exercise in jurisdictional line-

drawing into subsection (E)’s ‘other limitation’ pro-

vision,” and hence found no jurisdiction under Sub-

section (E). App., infra, 35a.

Canvassing the text and Supreme Court

precedents, Judge Griffin also thought it plain that

Subsection (F) “simply does not apply here.” App.,

infra, 40a. He concurred in the judgment only because,

in his view, the Sixth Circuit’s earlier decision in

“National Cotton dictates [the] conclusion” that Sub-

section (F) encompasses the WOTUS Rule—a conclu-

sion he criticized because it means that subsection (F)’'s

“jurisdictional reach * * * has noend.” App., infra, 42a.

Judge Griffin explained that “while I agree” with Judge

McKeague “that National Cotton controls this court's

conclusion, I disagree that it was correctly decided. But

for National Cotton, I would find jurisdiction lacking.”

App., infra, 38a-39a.

c. Judge Keith’s dissent. Judge Keith dissented. He

joined Judge Griffin in holding Subsection (EF)

inapplicable. App., infra, 45a. But he concluded that

“National Cotton’s holding is not as elastic as the

concurrence suggests.” App., infra, 47a. It does not

authorize original subject-matter jurisdiction over “all

rules ‘relating to [permitting] procedures, such as the

one at issue here,” which “merely defines the scope of

the term ‘waters of the United States.” App., infra,

46a. Even read most broadly, National Cotton inter-

preted Section 1369(b) to reach only those rules that

“regulate’ or ‘govern’ [permitting] procedure,” which

the WOTUS Rule does not. Ibid. Observing that the

Eleventh Circuit had rejected National Cotton's

reasoning in Friends of the Everglades v. EPA, 699

F.3d 1280 (11th Cir. 2012), Judge Keith saw no need to

read National Cotton “in a way that expands the

jurisdictional reach of subsection (F) in an all-

encompassing, limitless fashion.” App., infra, 46a-47a.

He would have granted the motions to dismiss and sent

the parties to the district courts for initial review.

The Sixth Circuit issued a separate judgment

denying the motions to dismiss. App., infra, 48a-50a.

The NAM and others petitioned the Sixth Circuit

to rehear its jurisdictional ruling en banc. The court

denied rehearing over the dissent of Judge Keith. App.,

infra, 5la-52a. Thereafter, the court set a briefing

schedule on a motion relating to the content of the

administrative record, followed by the merits. Merits

briefing will not be completed until mid-February

2017—twenty months after the EPA and the Corps first

promulgated the Clean Water Rule. Case Management

Order No. 2, Dkt. 99 (June 14, 2016).

E. The Aftermath Of The Sixth Circuit’s De-

cision

Following the Sixth Circuit’s fractured decision,

the U.S. District Court for the Northern District of

Oklahoma declined jurisdiction. Oklahoma ex rel.

Pruitt v. EPA, 2016 WL 3189807 (N.D. Okle Teb. 24,

2016). The government moved to dismiss or stay other

cases, including in the Southern District of Texas,

where the NAM’s case is pending. The NAM opposed

the government’s motion, which remains pending. Am.

Farm Bureau Fed’n, et al. v. EPA, 3:15-cv-165 (S.D.

Tex.), Dkt. 50.

In August, the Eleventh Circuit abstained under

Colorado River from deciding the appeal of the denial

of a preliminary injunction for Jack of jurisdiction in

Georgia v. McCarthy, pending the Sixth Circuit’s

decision on the merits. Georgia v. McCarthy, 2016 WL

4363130 (llth Cir. Aug. 16, 2016).5 Pointedly, the

Eleventh Circuit did not endorse the Sixth Circuit's

jurisdictional analysis. Nor did it order the district

court to dismiss the case for lack of jurisdiction.

Rather, relying on “[c]lonsiderations of wise judicial

administration,” the court determined to “stay [its]

hand” pending “further developments.” Jd. at *2.

REASONS FOR GRANTING THE PETITION

I. The Sixth Circuit Erroneously Took Juris-

diction Under Section 1369(b), In Conflict With

Decisions Of Other Circuits.

“Section 1369(b) extends only to certain suits

challenging some agency actions.” Decker v. Nw. Envil.

Def. Cir., 1383 S. Ct. 1326, 13834 (2013). It does not

extend to suits challenging the WOTUS Rule. A

majority of the panel understood that fact. App., infra,

27a (Griffin, J.), 45a (Keith, J.). Judge Griffin

nevertheless voted with Judge McKeague to exercise

jurisdiction under Section 1369(b)(1)(F), believing that

he was bound by the Sixth Circuit’s “incorrect” decision

in National Cotton. App, infra, 44a. The panel’s

decision to exercise jurisdiction was in error and in

conflict with decisions of other circuits.

5 The NAM and its co-plaintiffs filed an amicus brief in the

Eleventh Circuit in McCarthy urging reversal of the district

court’s decision declining jurisdiction. The NAM and its co-

plaintiffs likewise filed an amicus brief in the Tenth Circuit in the

Pruitt case urging reversal of the dismissal. The Pruitt appeal has

not yet been decided.

A. The Sixth Circuit Lacks Jurisdiction Under

Section 1369(b).

1. Section 1369(b)(1)(F) does not authorize the

Sixth Circuit's review of the Rule. It grants courts of

appeals original jurisdiction to “{rleview *** the

Administrator's action * * * in issuing or denying any

permit under section 1342." There are plenty of

examples in which the EPA Administrator actually

issues or denies a Section 1342 permit; those EPA

actions are properly challenged in the courts of

appeals.®

The WOTUS Rule, by contrast, does not issue or

deny a permit. EPA Administrator Gina McCarthy

admitted as much: “the Clean Water Rule is a

jurisdictional rule. It doesn’t result in automatic

permit decisions.” The Fiscal Year 2016 EPA Budget:

Joint Hearing Before the Subcomm. on Energy & Power

& the Subcomm. on Environment & Economy of the

House Comm. on Energy & Commerce, 114th Cong. 70

(Feb. 25, 2015). Judge Griffin therefore was correct in

concluding that “[o}]n its face, subsection (F) clearly

does not apply,” because the Rule “neither issues nor

denies a permit” under Section 1342. App., infra, 39a.

“[T]bis should end the analysis.” Jbid.

Judge McKeague agreed that this reading is

“consonant with the plain language” of the statute.

® See, e.g., Nat. Res. Def. Council v. EPA, 808 F.3d 656, 562 & n.4

(2d Cir. 2015) (challenging grant of Section 1342 permit to

vessels); Alaska Eskimo Whaling Comm'n v. EPA, 791 F.3d 1088,

1090-1091 (9th Cir. 2015) (challenging grant of Section 1342

permit to oil and gas exploration facilities); Upper Blackstone

Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 11, 20 (ist

Cir. 2012) (challenging grant of Section 1342 permit to sewage

treatment plant); Alton Box Bd. Co. v. EPA, 692 F.2d 395, 396

(7th Cir. 1979) (challenging denial of Section 1342 permit to mill).

App., infra, 23a-24a. But he chose not to apply that

plain language on the ground that Crown Simpson

Pulp Co. v. Costle, 445 U.S. 193 (1980), “opened the

door to constructions other than a strict literal

application.” App., infra, 17a.

To put it plainly, Judge McKeague misread Crown

Simpson. In that case, EPA vetoed Section 1342

permits that a California agency had issued to pulp

mills after EPA had delegated permitting authority to

the State. 445 U.S. at 194-195 & n.3. This Court held

that the Ninth Circuit had jurisdiction under Section

1369(b)(1)(F) to review EPA’s vetoes because “EPA’s

veto of a state-issued permit is functionally similar to

its denial of a permit in States which do not administer

an approved permit-issuing program” and had the

“precise effect” of denying the permits. Jd. at 196.

As Judge Griffin explained, Crown Simpson's

“facts *** make clear that the Court understood

functional similarity in a narrow sense.” App., infra,

40a. EPA effectively had denied Crown Simpson's

Section 1342 permit applications in the most literal

sense. Judge McKeague lost sight of those facts when

he read Crown Simpson to allow courts of appeals to

review any CWA regulation “so long as it affects

permitting requirements.” App., infra, 19a.

Congress could have written paragraph (F) to

apply to EPA actions “affecting when permits are or

are not required under Section 1342.” But Judge

McKeague’s approach cannot be squared with the

statute that Congress actually wrote, which applies to

agency actions that themselves amount to “issuing or

denying any permit under section 1342.” As Judges

Keith and Griffin recognized, it is difficult to imagine

any case in which Judge McKeague’s expansive re-

drafting of paragraph (F) would not confer jurisdiction.

See App., infra, 42a (it means subsection (F)’s “juris-

dictional reach * * * has no end”) (Griffin, J.); App..,

infra, 47a (it “expands the jurisdictional reach of

gubsection (F) in an all-encompassing, limitless

fashion”) (Keith, J.).

Judge Keith explained in his dissent why Judge

Griffin erred in nevertheless voting to exercise

jurisdiction under Section 1369(b)(1)(F) on the ground

that National Cotton required it. But Judge Griffin’s

belief that his vote was forced by the incorrect decision

in National Cotton is of no moment here. Unbound by

National Cotton, this Court is free to read the statute

correctly.

2. A majority of the panel properly concluded that

Section 1369(b)(1)(E) does not confer jurisdiction. App..,

infra, 29a-38a (Griffin, J.), 45a (Keith, J.); see also

Gov't Opp. to Rh’g Pets. at 22 n.7, Dkt. 89 (Apr. 1,

2016) (conceding that the Sixth Circuit is not

exercising jurisdiction under paragraph (E)). The

agencies’ contention that Section 1369(b)(1)(E) confers

jurisdiction is mistaken.

Paragraph (E) grants jurisdiction to courts of

appeals to review “the Administrator's action * * * in

approving or promulgating any effluent limitation or

other limitation under section 1311, 1312, 1316,

or 1345.” It is undisputed that the Rule is not an

“effluent limitation,” which is a “restriction * * * on

quantities, rates, and concentrations of chemical” or

other constituents that are discharged into navigable

waters. 33 U.S.C. § 1362(11); see App., infra, 8a-9a.

The Rule also is not an “other limitation under section

1311, 1312, 1316, or 1345,” for three independent

reasons.

First, the Rule is not a “limitation” in any ordinary

sense of that word. It does not directly restrict the use

to which property owners put their land. It purports

only to define the phrase “waters of the United States,”

which describes the waters to which other CWA

sections may apply. As Judge Griffin put it, the Rule

“is not self-executing” but merely “operates in

conjunction with other sections scattered throughout

the Act to define when [the Act’s other] restrictions

* * * apply.” App., infra, 31a; see also id. at 9a (“[T]he

Rule’s clarified definition is not self-executing”; only

“operating in conjunction with other regulations [will

it} result in imposition of such _ limitations”)

(McKeague, J.).

Second, the Rule is not an “other” limitation. The

ejusdem generis canon requires reading a general term

following a specific term as “embrac[ing] only objects

similar in nature to those objects enumerated by the

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

Adams, 532 U.S. 105, 114-115 (2001). Application of

the canon thus requires reading “other limitation” as

embracing an object similar to an “effluent limitation.”

Effluent limitations are not just any limitation; rather,

they “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 (7th

Cir. 1989). The Rule, which is a regulatory definition of

“waters of the United States,” is not even remotely

similar in nature to an effluent limitation.

Third, the Rule is not an other limitation “under

section 1311, 1312, 1316, or 1345.” Each of those

sections provides for the issuance of effluent limita-

tions or effluent limitation-like rules. Section 1311

governs “effluent limitations.” Section 1312 governs

“water quality related effluent limitations,” which are

additional effluent limitations that may be imposed

where other limitations fail to achieve water quality

standards. Section 1316 requires establishment of

technology-based effluent controls for new dischargers.

And Section 1345 restricts the discharge of sewage

sludge. It would be a mistake to think of the agencies’

definition of “waters of the United States” as a

limitation at all; it would be downright absurd to say

that, as a limitation, it has a purpose similar in nature

to an effluent limitation describing the technical

measures of pollutants allowed under a permit—much

less that it was promulgated under any of the

specifically identified statutory provisions. See App..,

infra, 30a-31a (Griffin, J.) (the Rule “does not emanate

from these sections” and is not “related to the statutory

boundaries set forth in [them]”); Friends of the

Everglades, 699 F.3d at 1286 (“[E]ven if the water-

transfer rule could be classified as a limitation, it was

not promulgated under section 1311, 1312, 1316, or

1345”).

3. There is another reason to reject interpreting

paragraphs (E) or (F) as limitless grants of original

jurisdiction to the courts of appeals over all agency

rulemaking that touches on CWA permitting: the

expressio unius est exclusio alterius canon, which

provides that the expression of one thing implies the

exclusion of another. Section 1369(b) meticulously

catalogues seven categories of agency action subject to

original review in the courts of appeals. Congress’s

careful selection “justiffies] the inference” that a

general grant to courts of appeals of jurisdiction over

all CWA rules was “excluded by deliberate choice, not

inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S.

149, 168 (2003). “No sensible person accustomed to the

use of words in laws would speak so narrowly and

precisely of particular statutory provisions [in Section

1369(b)], while meaning to imply a more general and

broad coverage than the statutes designated.” Long-

view Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th

Cir. 1992).

That conclusion takes on special force when Section

1369(b) is considered alongside the much broader grant

of jurisdiction to courts of appeals in the Clean Air Act.

That statute provides for original jurisdiction in the

courts of appeals over challenges not only to particular

agency actions, but also to “any other nationally

applicable regulations promulgated, or final action

taken, by the Administrator” under the Act. 42 U.S.C.

§ 7607(b)(1). That language shows that Congress

knows how to “malke] express provisions” for

expansive original jurisdiction in the courts of appeals

when it wants to and that its “omission of the same

Nanguage]” from Section 1369(b)(1) “was purposeful.”

Zadvydas v. Davis, 533 U.S. 678, 708 (2001). In short,

the panel plainly erred in exercising jurisdiction under

Section 1369(b).

B. The Panel’s Ruling Conflicts With Decisions

Of Other Courts Of Appeals.

The panel’s erroneous decision deepens a conflict

among the circuits. In their preamble to the Rule the

agencies acknowledged that “courts have reached

different conclusions on the types of actions that fall

within section [1369(b)].” 80 Fed. Reg. at 37,104; see

also Alhson LaPlante et al., On Judicial Review Under

the Clean Water Act in the Wake of Decker v.

Northwest Environmental Defense Center: What We

Know Now and What We Have Yet to Find Out, 43

ENVTL. L. 767, 767 (2013) (observing that decisions

interpreting Section 1369(b) are “confusing and messy”

because the “Circuits are split”). The panel’s ruling—

itself hopelessly fractured—cannot be reconciled with

Friends of the Everglades v. EPA, 699 F.3d 1280 (11th

Cir. 2012).

1. In Friends of the Everglades, the Eleventh

Circuit held that it lacked original jurisdiction to

review EPA’s water transfer rule. 699 F.3d at 1283.

That rule excludes from the CWA’s prohibition of “any

addition of any pollutant to navigable waters” without

a Section 1342 permit an activity that “conveys or

connects waters of the United States,” provided the

activity does not “subjec[t] the transferred water to

intervening industrial, municipal, or commercial use.”

But it includes within the prohibition an activity in

which “pollutants [are] introduced by the water

transfer activity itself to the water being transferred.”

40 C.F.R. § 122.3(i); see 33 U.S.C. § 1362(12).

EPA argued in Friends that Section 1369(b)(1)(F)

provided jurisdiction because paragraph (F) “appl[ies]

to any ‘regulations relating to permitting itself” (699

F.3d at 1288)—the very argument that Judge

McKeague accepted here. See App., infra, 19a. The

Eleventh Circuit flatly rejected that contention because

it is “contrary to the statutory text.” 699 F.3d at 1288.

The Eleventh Circuit also declined to follow the

Sixth Circuit’s decision in National Cotton, explaining

that National Cotton “provided no analysis” of Section

1369(b)(1)(F) and “cited two decisions of the Ninth

Circuit that the Ninth Circuit had distinguished in

Northwest Environmental Advocates” (a decision we

discuss below). 699 F.3d at 1288. Here, Judge Griffin

found the Eleventh Circuit's criticisms of National

Cotton to “have merit,” but concluded that he was

nevertheless bound by National Cotton as prior Sixth

Circuit precedent. App., infra, 43a. “But for National

Cotton,” he—and thus the panel—would have granted

the motions to dismiss. Id. at 39a.

The WOTUS Rule purports to clarify the CWA’s

jurisdictional reach as defined by the statutory phrase

“waters of the United States” in 33 U.S.C. § 1362(7),

which, the agencies say, “establishes where the Act’s

prohibitions and requirements apply.” See App., infra,

32a. The water transfer rule at issue in Friends of the

Everglades, in defining when a transfer of water

through a point source is or is not an “addition of any

pollutant” under Section 1362(12), likewise established

circumstances in which “the Act’s prohibitions and

requirements apply.” There is no plausible argument

that Section 1369(b) gave the court of appeals

jurisdiction here but not in Friends.

The agencies mistakenly contend that the cases are

distinguishable because the water transfer rule creates

an “exemption.” E.g., U.S. Response Br., Chamber of

Commerce v. EPA, No. 16-5038, supra, at 52 n.8

(asserting that Friends is “not on point” because it

“considered exemptions from [CWA] requirements’).

That is mere wordplay. Calling a rule an “exemption”

is just another way of saying that a rule defines when

the Act’s requirements apply and when they do not.

That is especially clear in Friends, where the rule on

its face described water transfers that are included in

the Section 1342 prohibition—transfers that involve

the intervening use of the water or that themselves

introduce pollutants to the water—as well as transfers

that are excluded.

Against this backdrop, there is no doubt that if the

JPML had consolidated the petitions for review of the

WOTUS Rule in the Eleventh Circuit instead of the

Sixth Circuit, the challenges would have been dismis-

sed for want of jurisdiction under Friends.

2. The panel’s ruling also is at odds with the Ninth

Circuit's decision in Northwest Environmental

Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008). The

plaintiff in Northwest Environmental Advocates filed

an APA action in the district court challenging a

regulation that exempted certain vessel discharges

from Section 1342 permitting. EPA argued on appeal

that the district court lacked jurisdiction because the

challenge fell within Section 1369(b)’s grant of

exclusive jurisdiction to the courts of appeals. The

Ninth Circuit disagreed. Id. at 1015-1018.

The Ninth Circuit refused to “lightly hold that we

have jurisdiction under section [1369(b)].” 537 F.3d at

1015. It “counseled against * * * expansive application”

of that jurisdictional grant because “no sensible person

would speak with” the degree of “specificity and

precision” that Congress used in Section 1369(b) if an

expansive application is what it intended. Jbid. The

Ninth Circuit held that original court of appeals

jurisdiction is proper under Subsection (E) only if a

rule clearly imposes a limitation, or under Subsection

(F) only if the “EPA actions [are] ‘functionally similar’

to the denial of permits.” Jd. at 1016 (quoting Crown

Simpson, 445 U.S. at 196). And “the ‘acts of [Crown

Simpson] make clear that th[is} Court understood

functional similarity in a narrow sense.” Ibid. Because

the exemption at issue involved neither the issuance or

denial of a permit or a functionally similar action, nor

the approval or promulgation of any effluent or other

limitation, Section 1369(b) did not govern.

3. The panel’s decision is also contrary to the North

Dakota district court’s decision that it—not courts of

appeals—has jurisdiction to review the WOTUS Rule.

North Dakota v. EPA, 127 F. Supp. 3d 1047, 1052-1053

(D.N.D. 2015). The district court favorably cited the

Eleventh Circuit’s decision in Friends and correctly

held that the agencies’ argument “run[s] precisely

contrary to Congress’ intent in drafting” Section

1369(b) narrowly. Id. at 1053. The district court

reaffirmed that decision by refusing to dismiss the case

after the Sixth Circuit panel issued its decision. Order,

Dkt. 156, No. 3:15-cv-59 (D.N.D. May 24, 2016).

As the agencies argued in opposing the challengers’

petitions for en banc rehearing, achieving “uniformity

among the circuiis” is “the province of the Supreme

Court.” Gov’t Opp. to Rh’g Pets. at 22. So it is. The

Court should grant certiorari here to bring that

uniformity.

Il. The Question Presented Is Of Immense And

Immediate Practical Importance.

A. Uncertainty Over The Meaning Of Section

1369(b) Causes Delay And Waste Of Judicial

And Party Resources.

1. This Court has recognized that the manner of

challenging federal environmental regulations is an

issue of exceptional importance. See Harrison v. PPG

Indus., Inc., 446 U.S. 578, 586 (1980) (“We granted

certiorari * * * because of the importance of deter-

mining the locus of judicial review of the actions of

EPA [under the Clean Air Act]’). The panel here

acknowledged “the nationwide importance of the

matter.” Order at 2, Dkt. 78 (6th Cir. Mar. 16, 2016).

So did EPA when it petitioned for certiorari from the

Eleventh Circuit's decision in Friends of the

Everglades. There, EPA urged this Court to grant

certiorari on the Section 1369(u) issue because “the

proper time and manner of judicial challenges to the

Water Transfers Rule and similar NPDES-related

regulations” “presents a question of exceptional

importance” that “has significant consequences for the

applicable statute of limitations and mode of litigation”

and that has given rise to circuit “conflicts.” U.S. Pet’n

for Cert., No. 13-10, at 9 (U.S. 2013). Commentators

agree. See LaPlante, supra, 43 ENVTL. L. at 772

(“[T]here is no denying that questions regarding

section [1369](b)(1)’s reach are important and need to

be resolved by the High Court”).

This Court has recognized time and again that

“administrative simplicity is a major virtue in a

jurisdictional statute.” Hertz Corp. v. Friend, 559 U.S.

77, 94 (2010). “Complex jurisdictional tests complicate

a case, eating up time and money as the parties

litigate, not the merits of their claims, but which court

is the right court to decide those claims.” Ibid. “Judicial

resources too are at stake” because “[c]ourts have an

independent obligation to determine whether subject-

matter jurisdiction exists, even when no party

challenges it.” Ibid. (citing Arbaugh v. Y & H Corp.,

546 U.S. 500, 514 (2006)). “So courts benefit from

straightforward rules under which they can readily

assure themselves of their power to hear a case.” Ibid.

Nowhere are these truths more apparent than with

respect to Section 1369(b). Because of the great

uncertainty in the case law, parties cannot know which

court (or courts) will rule that it has power to decide a

CWA rule challenge. As a result, challenges are

routinely filed both in the district courts and in the

courts of appeals—a wasteful practice that the

agencies concede is appropriate “to preserve a forum

for [challengers’] claims” “[g]liven uncertain juris-

diction.” U.S. Response Br., Chamber of Commerce v.

EPA, No. 16-5038, supra, at 24.7 This uncertainty

produces duplicative litigation, conflicting decisions on

? The Seventh Circuit in Roll Coater, Inc. v. Reilly, 932 F.2d 668,

671 (7th Cir. 1991), warned that “careful counsel must respond to”

the “uncertain opportunities for review” of CWA regulations by

“filing buckshot petitions” both in the district court and court of

appeals. That is precisely what challengers do. See, e.g., Friends of

the Everglades, 699 F.3d at 1283; National Cotton, 553 F.3d at

932; Nw. Envtl. Advocates, 537 F.3d at 1014.

jurisdiction, significant delay, and tremendous waste of

judicial and party resources. It also leaves merits

decisions vulnerable to appellate reversal on grounds

other than the merits, creating additional uncertainty.

And the problem is unavoidable because every federal

court has an independent obligation to determine if it

has subject-matter jurisdiction.

2. The challenges to this Rule are a case in point.

The agencies admit that “there is no denying the

importance of the Clean Water Rule.” Gov't Opp. to

Rh’g Pets. at 12. Because of the Rule’s importance,

State, municipal, industry, and environmental! parties

filed complaints in district courts and 22 petitions for

review in the courts of appeals to guarantee that they

preserved their challenges. See supra, p. 8.

Before the Sixth Circuit issued its decision, three

district courts had ruled on jurisdiction, reaching

conflicting determinations. Supra, p. 9. After the

panel’s ruling, a district court sua sponte dismissed an

APA challenge for lack of jurisdiction, another denied

the agencies’ motion to dismiss, another has the

agencies motion under advisement, and still others

have stayed the cases. Supra, p. 13. On appeal from a

district court’s denial of a preliminary injunction

against the Rule for want of jurisdiction, the Eleventh

Circuit abstained, holding the case in abeyance and

ordering the district court to stay, not dismiss, APA

proceedings. Georgia v. McCarthy, 2016 WL 4363130,

at *3 (11th Cir. Aug. 16, 2016). And the Tenth Circuit

is currently considering an appeal from the dismissal

of an APA action for lack of jurisdiction. Supra, p. 14.

This garbled state of affairs is intolerable.

For its part, the NAM has invested substantial

time and money in the proceedings on jurisdiction—as

have State, municipal, industry, and environmental

parties, the agencies, and the courts. Only now, long

after the agencies promulgated the Rule, are the

parties even beginning to brief the merits. And they

are doing so before a court that they believe lacks

jurisdiction—which puts a merits decision by a Sixth

Circuit at risk upon further review.

3. Earlier challenges to EPA’s water transfer rule

provide another example. That rule was issued in 2008.

Friends of the Everglades, 699 F.3d at 1284.

Challenges were brought in the district courts and

courts of appeals. The latter were consolidated in the

Eleventh Circuit, which held it lacked original juris-

diction over the rule challenges. Jd. at 1286. After the

United States unsuccessfully sought certiorari to

review the jurisdiction ruling (No. 13-10), litigation

proceeded in the district court, which ruled on the

merits in 2014—=s1x years after the regulation was

issued. Catskill Mountains Chapter of Trout Unlimited,

Inc. v. EPA, 8 F. Supp. 3d 500, 516 (S.D.N.Y. 2014).

The appeal from that decision remains pending today.

EPA stipulated that, in light of the Eleventh Cir-

cuit’s decision, it is collaterally estopped from chal-

lenging the district court’s jurisdiction in the Second

Circuit. EPA Br. at 3-4 & n.2, Dkt. 210, No. 14-1823(L)

(2d Cir. Sept. 11, 2014). That seems unlikely. But even

if that proposition were correct, parties in the district

court that did not participate in Friends may challenge

an unfavorable ruling from the Second Circuit by

arguing on petition for rehearing or certiorari that the

district court lacked subject-matter jurisdiction—a

non-waivable issue—and that the Second Circuit’s

decision therefore must be vacated. Cf. Ford Motor Co.

v. United States, 134 S. Ct. 510, 510 (2013) (per

curiam) (granting certiorari, vacating, and remanding

after the United States, which “acquiesced in

jurisdiction in the lower courts,” contended “for the

first time” in its brief in opposition that the lower

courts lacked subject-matter jurisdiction). This ace up

the sleeve threatens to return the parties and courts to

square one, nearly a decade after EPA issued the water

transfer rule.

It is for just these reasons that “jurisdictional rules

should be clear.” Lapides, 535 U.S. at 621. The law

interpreting Section 1369(b) is anything but—and

confusion is only compounded by the extraordinary

1-1-1 decision below. This Court's intervention is

urgently needed to bring clarity and certainty to

jurisdiction over CWA rule challenges.

B. The Panel’s Decision Would Deny Parties,

Agencies, And Courts Of The Benefits Of

Multilateral Review Of Agency Rulemaking.

1. The agencies have urged that it is good policy to

funnel CWA rule challenges into a single court of

appeals to provide “efficient, timely, and nationally-

binding review of fundamental Clean Water Act

regulatory actions.” U.S. Response Br., Chamber of

Commerce v. EPA, No. 16-5038, supra, at 60. In other

words, the “policy” the agencies are concerned about is

their own convenience and desire to suppress the full

airing of issues that comes with multi-court review.

Those concerns carry no weight in the face of plain

statutory language. As this Court has observed,

jurisdiction “must of course be governed by the intent

of Congress and not by any views [courts] may have

about sound policy.” Fla. Power & Light Co. v. Lorion,

470 U.S. 729, 746 (1985). Put another way, “[ijt is not

[the Court’s} task to determine which would be the

ideal forum for judicial review of the Administrator’s

decision in this case.” Harrison, 446 U.S. at 593. As

EPA has been told before, it may not “avoid the

Congressional intent clearly expressed in the text

simply by asserting that its preferred approach would

be better policy.” Friends of the Earth v. EPA, 446 F.3d

140, 145 (D.C. Cir. 2006).

2. In fact, the panel's ruling, if allowed to stand,

would disserve the federal judicial process, which

depends on district courts and courts of appeals

independently analyzing legal issues. Under the

panel’s ruling, challenges to important CWA regula-

tions would be funneled to a single court of appeals,

without the benefit of initial consideration by the

district courts or the opinions of the other federal

courts of appeals on the same issues. The quality of

legal decision-making—and of this Court’s ability to

decide which cases to review—would be diminished.

Debate among lower courts “helps to explain and

formulate the underlying principles this Court * * *

must consider.” Obergefell v. Hodges, 135 S. Ct. 2584,

2597 (2015). It also “winnows out the unnecessary and

discordant elements of doctrine.” California v. Carney,

471 U.S. 386, 400-401 (1985) (Stevens, J., dissenting)

(citing Benjamin Cardozo, THE NATURE OF THE

JUDICIAL PROCESS 179 (1921)). Accordingly, this Court

typically “permit[s] several courts of appeals to explore

a difficult question before [it] grants certiorari.” United

States v. Mendoza, 464 U.S. 154, 160 (1984); see, e.g.,

Obergefell, 135 S. Ct. at 2597.

The benefits of multi-court review accrue as clearly

in the review of administrative rules as in other types

of cases. See Richard L. Revesz, Specialized Courts and

the Administrative Lawmaking System, 138 U. PA. L.

REV. 1111, 1155 (1990) (explaining “[w]hy [we] should

** * take uniform administrative decisions and subject

them to review in the various regional circuit courts

under a system that makes it possible for these courts

to disagree with one another”). These benefits include

that “the possibility of intercircuit disagreement

provides a simple device for signaling that certain hard

cases are worthy of additional judicial resources”; that

“the doctrinal dialogue that occurs when a court of

appeals addresses the legal reasoning of another and

reaches a contrary conclusion * * * improves the

quality of legal decisions”; and that exploration of an

issue by multiple courts aids this Court “both in its

consideration of the legal merits of an issue and in its

case selection decisions.” Jd. at 1156-1157.

Thus the circuit splits that the agencies fear may

arise from initial consideration in multiple district

courts “increase the probability of a correct disposition”

(Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d

437, 447 (7th Cir. 1994) (Easterbrook, J., concurring)),

and tee up issues more thoroughly for this Court’s

consideration. There is nothing about agency regula-

tions that makes this process less appropriate for rule

challenges than for other types of cases, like those

involving the meaning or constitutionality of federal

statutes. All the benefits of multi-court consideration

would be lost if Section 1369(b) were stretched beyond

the defined categories of agency action that Congress

designated for original court of appeals review.

3. Furthermore, Section 1369(b) must be read in

light of the default rule that Congress established in

the APA, which is that agency action is subject to

multilateral judicial review. “[I]n the absence or in-

adequacy” of a “special statutory review proceeding,”

any “person suffering legal wrong because of agency

action” is “entitled to judicial review” “in a court of

competent jurisdiction.” 5 U.S.C. §§ 702-703. A plaintiff

generally may file suit where it resides. See 28 U.S.C.

§§ 1331, 1391(e); see also Bowen v. Massachusetts, 487

U.S. 879, 904 (1988) (Congress “inten[ded] that [the

APA] cover a broad spectrum of administrative actions,

and this Court has echoed that theme by noting that

the [APA’s] ‘generous review provisions must be given

a ‘hospitable’ interpretation”). In the absence of a clear

statement from Congress in Section 1369(b), the Sixth

Circuit should not have upended the APA judicial

review process. This Court should grant certiorari to

restore APA review to CWA rulemaking outside the

narrow categories that Congress expressly specified in

Section 1369(b).

C. Interlocutory Review Is Warranted

The interlocutory posture of the case counsels here

in favor of an immediate grant of review. If, as we have

argued—and as two of the panel judges believed—

jurisdiction lies in the district courts under the APA, a

merits ruling in the Sixth Circuit would serve no

purpose. This Court would have no more authority to

review a merits decision by the Sixth Circuit than

would the Sixth Circuit to issue such a decision in the

first place.

It thus makes no sense to delay deciding whether

the court now addressing the merits has the statutory

authority to do so while the parties file and the Sixth

Circuit reads hundreds of pages of briefs, the court of

appeals conducts oral argument and prepares an

opinion (or opinions) on the merits, and untold party

and judicial resources are expended in the process.

Given the resources to be devoted to litigating the

merits—and the importance of and great uncertainty

over the correct resolution of the jurisdictional issue, in

this case and more generally—immediate resolution of

the question presented is imperative. Otherwise, the

shadow of uncertain jurisdiction will hang over the

merits stage before the panel, to reappear at the merits

rehearing and certiorari stages. And a reversal on

jurisdiction would hit the reset button on what by then

will have been years of litigation. Immediate review

thus would serve the interests of regulators and

regulated alike by ensuring that a merits decision

actually resolves the merits and is not upended by a

legal error over jurisdiction. It also would ensure that

while the jurisdictional dispute plays out in this case,

parties challenging new CWA rules do not face the

same uncertainty over jurisdiction.

This Court routinely grants review of jurisdictional

determinations even when (as here) the court of

appeals holds jurisdiction proper and orders further

proceedings. E.g., Walden v. Fiore, 134 S. Ct. 1115

(2014) (reviewing question concerning personal juris-

diction).

This Court’s finality jurisprudence under 28 U.S.C.

§ 1257 also is instructive. The Court in Mercantile

National Bank v. Langdeau, 371 U.S. 555, 557-558

(1963), reviewed a state court’s interlocutory venue

decision because it was “a separate and independent

matter, anterior to tae merits” and it made sense “to

determine now” in which court “appellants may be

tried rather than to subject them, and appellee, to long

and complex litigation which may all be for naught if

consideration of the preliminary question of venue is

postponed until the conclusion of the proceedings.” If

those considerations are sufficient to overcome even

the barriers to review of non-final state court rulings,

they should easily warrant interlocutory review of a

federal court decision here.

Regardless of how this Court ultimately interprets

Section 1369(b), Clean Water Act litigants deserve an

answer to the question presented to bring to an end the

current jurisdictional morass.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

MICHAEL B. KIMBERLY TIMOTHY S. BISHOP

Mayer Brown LLP Counsel of Record

1999 K Street, NW CHAD CLAMAGE

Washington, DC 2000¢ JED GLICKSTEIN

(202) 263-3127 Mayer Brown LLP

LINDA E. KELLY 71 South Wacker Drive

QUENTIN RIEGEL Chicago, Illinois 60606

LELAND P. FROST (312) 782-0600

Manufacturers’ Center ibishop@mayerbrown.com

for Legal Action

733 10th Street, NW, Sie 700

Washington, DC 20001

(202) 637-3000

Counsel for Petitioner

SEPTEMBER 2016

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: UNITED STATES DEPARTMENT OF DEFENSE AND

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY FINAL RULE: CLEAN WATER RULE:

DEFINITION OF “WATERS OF THE UNITED STATES,”

80 FED. REG. 37,054 (JUNE 29, 2015).

MURRAY ENERGY CORPORATION (15-3751); STATE OF

OHIO, ET AL. (16-3799); NATIONAL WILDLIFE FEDERA-

TION (15-3817); NATURAL RESOURCES DEFENSE COUN.

CLL, INC. (15-3820); STATE OF OKLAHOMA (15-3822);

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, ET AL. (16-3823); STATE OF NORTH DAKOTA,

ET AL. (15-3831); WATERKEEPER ALLIANCE INC., ET AL.

(15-3837); PUGET SOUNDKEEPER ALLIANCE, ET AL.

(15-3839); AMERICAN FARM BUREAU FEDERATION,

ET AL. (15-3850); STATE OF TEXAS, ET AL. (15-3853);

UTILITY WATER ACT GROUP (15-3858); SOUTHEASTERN

LEGAL FOUNDATION, INC., ET AL.

(15-3885); STATE OF GEORGIA, ET AL. (15-3887);

ONE HUNDRED MILES, ET AL. (15-3948); SOUTHEAST

STORMWATER ASSOCIATION, INC., ET AL. (15-4169);

MICHIGAN FARM BUREAU (15-4162); WASHINGTON

CATTLEMEN'S ASSOCIATION (15-4188); ASSOCIATION OF

AMERICAN RAILROADS, ET AL. (15-4211); TEXAS ALLI-

ANCE FOR RESPONSIBLE GROWTH, ENVIRONMENT, AND

TRANSPORTATION (15-4234); AMERICAN EXPLORATION

& MINING ASSOCIATION (15-4305); ARIZONA MINING

ASSOCIATION, ET AL. (15-4404),

Petitioners,

UNITED STATES DEPARTMENT OF DEFENSE, DEPART-

MENT OF THE ARMY CORPS OF ENGINEERS AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

Nos. 15-3751 /3799/ 3817/

3820/ 3822/ 3823/ 3831/

3837/ 3839/ 3850/ 3853/ 3858/

3885/ 3887/ 3948/4159/ 4162/

4188/ 4211/ 4234/ 4305/ 4404

ees

On Petitions for Review of Final Rule of the United

States Department of Defense and United States

Environmental Protection Agency.

Judicial Panel on Multi-District Litigation, No. 135.

Argued: December 8, 2015

Decided and Filed: February 22, 2016

Before: KEITH, McKEAGUE, and GRIFFIN, Circuit

Judges.

COUNSEL

ARGUED: Eric E. Murphy, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for

Petitioners. Martha C. Mann, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondents.

McKEAGUE, J., delivered the opinion in which

GRIFFIN, J., joined in the result. GRIFFIN, J., de-

livered a separate opinion concurring in the judg-

ment. KEITH, J., delivered a separate dissenting

opinion.

OPINION

McKEAGUE, Circuit Judge. This multi-circuit

case consists of numerous consolidated petitions

challenging the validity of the “Clean Water Rulc”

recently published by the U.S. Army Corps of Engi-

neers and U.S. Environmental Protection Agency

(“the Agencies”). The Clean Water Rule is intended

to clarify the scope of “the waters of the United

States” subject to protection under the Clean Water

Act. The Act provides that certain specified actions

of the EPA Administrator are reviewable directly in

the U.S. Circuit Courts of Appeals. Because of un-

certainty about whether the Agencies’ adoption of

the Clean Water Rule is among these specified ac-

tions, parties challenging the Rule have filed peti-

tions in both district courts and circuit courts across

the country. Many of the petitions have been trans-

ferred to the Sixth Circuit for consolidation in this

action. Many of the petitioners and other parties

now move to dismiss the very petitions they filed in-

voking this court’s jurisdiction, contending this court

lacks jurisdiction to review the Clean Water Rule.

The movants find support for their position in

the language of the Clean Water Act’s judicial review

provisions, which purport to define circuit court ju-

risdiction specifically and narrowly. Over the last 35

years, however, courts, including the Supreme Court

and the Sixth Circuit, have favored a “functional”

approach over a “formalistic” one in construing these

provisions. These precedents support the Agencies’

position that this court does have jurisdiction. The

district courts that have confronted the jurisdictional

question in this litigation have arrived at conflicting

answers.! For the reasons that follow I conclude that

Congress’s manifest purposes are best fulfilled by our

exercise of jurisdiction to review the instant petitions

for review of the Clean Water Rule

I. BACKGROUND

Petitioners in these various actions, transferred

to and consolidated in this court by the Judicial Pan-

el on Multi-District Litigation for handling as a mul-

ti-circuit case, challenge the validity of a Final Rule

adopted by respondents U.S. Army Corps of Engi-

neers and U.S. Environmental Protection Agency,

“the Clean Water Rule.” 80 Fed. Reg. 37,054 (June

29, 2015). The Clean Water Rule clarifies the defini-

tion of “waters of the United States,” as used in the

Clean Water Act, 33 U.S.C. § 1251 et seq., “through

increased use of bright-line boundaries” to make “the

process of identifying waters protected under the

Clean Water Act easier to understand, more predict-

able and consistent with the law and peer reviewed

' See Murray Energy Corp. v. U.S. E.P.A., 2015 WL 5062506

(N.D. W.Va. Aug. 26, 2015) (holding jurisdiction lies in circuit

court); Stale of Georgia v. McCarthy, 2015 WL 5092668 at *2-3

(S.D. Ga. Aug. 27, 2015) (same); North Dakota v. U.S. E.PA.,

2016 WL 5060744 at *2 (D. N_D. Aug. 27, 2015) (holding juris-

diction lies in district court).

science, while protecting the streams and wetlands

that form the foundation of our nation’s water re-

sources.” 80 Fed. Reg. at 37,055. Petitioners contend

that the definitional changes effect an expansion of

respondent Agencies’ regulatory jurisdiction and

dramatically alter the existing balance of federal-

state collaboration in restoring and maintaining the

integrity of the nation’s waters. Petitioners also con-

tend the new bright-line boundaries used to deter-

mine which tributaries and waters adjacent to navi-

gable waters have a “significant nexus” to waters

protected under the Act are not consistent with the

law as defined by the Supreme Court, and were

adopted by a process not in conformity with the

rulemaking requirements of the Administrative Pro-

cedures Act (“APA”). The Agencies maintain that the

requirements of the APA were met and that the Rule

is a proper exercise of their authority under the

Clean Water Act.

The Rule became effective on August 28, 2015.

On October 9, 2015, however, we issued a nationwide

stay of the Rule pending further proceedings in this

action. In re EPA and Dep’t of Def. Final Rule, 803

F.3d 804 (6th Cir. 2015). We found that petitioners

had demonstrated a substantial possibility of success

on the merits of their claims and that the balance of

harms militated in favor of preserving the status quo

pending judicial review.

Meanwhile, eight motions to dismiss have been

filed by numerous petitioners and intervenors. The

motions assert that judicial review is properly had in

the district courts, not here. They contend the in-

stant challenges to the Clean Water Rule do not

come within the judicial review provisions of the

Clean Water Act, 33 U.S.C. § 1369(b)(1).

Section 1369(b)(1) identifies seven kinds of action

by the EPA Administrator that are reviewable direct-

ly in the circuit courts. Only two of the seven kinds

of action listed in § 1369(b)(1) are implicated here,

subsections (E) and (F). In its entirety, § 1369(b)(1)

provides as follows:

(1) Review of the Administrator’s action

(A) in promulgating any standard of perfor-

mance under section 1316 of this title,

(B) in making any determination pursuant to

section 1316(b)(1)(C) of this title,

prohibition, or pretreatment standard under

section 1317 of this title,

(D) in making any determination as to a State

permit program submitted under section

1342(b) of this title,

(E) in approving or promulgating any effluent

limitation or other limitation under section

1311, 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 1314()) of this title,

may be had by any interested person in the

Circuit Court of Appeals of the United States

for the Federal judicial district in which such

person resides or transacts business which is

directly affected by such action upon applica-

tion by such person.

Any such application shall be made within 120

days from the date of such determination, ap-

proval, promulgation, issuance or denial, or af-

ter such date only if such application is based

solely on grounds which arose after such 120th

day.

33 U.S.C. § 1369(b)(1).

Movants contend the EPA’s and the Corps’ adop-

tion and promulgation of the Clean Water Rule is not

action of the Administrator “in issuing or promulgat-

ing any effluent limitation or other limitation” or “in

issuing or denying any permit” under § 1369(b)(1)(E)

or (F). They contend the Clean Water Rule is simply

a definitional rule and that neither the statutory

language nor the legislative history evidences con-

gressional intent to authorize direct review of such

action in the circuit courts.

IL. ANALYSIS

A. General Standards

The question of subject matter jurisdiction is a

question of law the court addresses de novo. Jowa

League of Cities v. U.S. E.P.A., 711 F.3d 844, 861

(8th Cir. 2013). That is, the Agencies’ interpretation

of the Clean Water Act is entitled to no deference in

this regard. Friends of the Everglades v. U.S. E.P.A.,

699 F.3d 1280, 1285 (11th Cir. 2012).

Federal courts are courts of limited jurisdiction

and have subject matter jurisdiction only as author-

ized by the Constitution and by Congress. Id. at

1289. Here, the court’s authority to conduct direct

review of the Agencies’ challenged action, must be

found, if at all, in the Clean Water Act, 33 U.S.C.

§ 1369(b)(1). Jd. at 1285 (recognizing availability of

direct circuit court review only over those actions

specifically enumerated in § 1369(b)(1)). Not all ac-

tions taken under the Clean Water Act are directly

reviewable in the circuit courts. Nat’ Cotton Council

of America v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir.

2009). Where review is available under § 1369(b)(1),

“it is the exclusive means of challenging actions cov-

ered by the statute.” Decker v. Nw. Envtl. Def. Ctr.,

133 S.Ct. 1326, 1334 (2013). Matters not reviewable

under § 1369(b)(1) may be actionable in the district

courts by other means. See id. (recognizing availabil-

ity of private enforcement action under 33 U.S.C.

§ 1365); Narragansett Elec. Co. v. U.S. E.P.A., 407

F.3d 1, 8 (1st Cir. 2005) (recognizing availability of

judicial review in district court under the APA).

Whether subject matter jurisdiction lies in the

circuit courts is governed by the intent of Congress.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 746

(1985). In determining the scope of circuit court ju-

risdiction Congress intended to prescribe under the

Clean Water Act, the analysis must begin with the

statutory language. Jd. at 735. Yet, even where

statutory language may seem unambiguous, “plain

meaning, like beauty, is sometimes in the eye of the

beholder.” Jd. at 737. The parties agree that subsec-

tions (E) and (F) are the only two provisions of

§ 1369(b)(1) that potentially apply.

B. Statutory Language

1. Subsection (E)—“Other Limitation”

Movants contend the Rule’s definition of “waters

of the United States” is not, under § 1369(b)(1)(E),

“an effluent limitation or other limitation” approved

or promulgated under 33 U.S.C. § 1311, 1312, 1316,

or 1345. “Effluent limitation” is defined as “any re-

striction 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,

the waters of the contiguous zone, or the ocean, in-

cluding schedules of compliance.” 33 U.S.C.

§ 1362(11).

The Agencies do not contend that the Clean Wa-

ter Rule is an action in approving or promulgating an

effluent limitation, but rather that it is an “other

limitation.” The Act does not define “other limita-

tion.” Inasmuch as “effluent limitation” is defined as

a “restriction” on discharges from point sources, the

Agencies contend “other limitation” must be under-

stood as a different kind of “restriction.” They con-

tend the Rule’s clarification of the scope of “waters of

the United States” protected under the Clean Water

Act constitutes an “other limitation” in two respects.

First, it has the effect of restricting the actions of

property owners who discharge pollutants from a

point source into covered waters. Second, it has the

effect of imposing limitations or restrictions on regu-

latory bodies charged with responsibility for issuing

permits under the National Pollutant Discharge

Elimination System (“NPDES”) to those who dis-

charge pollutants into covered waters.

On its face, the Agencies’ argument is not com-

pelling. After all, the Rule’s clarified definition is not

self-executing. By clarifying the definition, the

Agencies did not approve or promulgate any limita-

tion that imposes ipso facto any restriction or re-

quirement on point source operators or permit issu-

ers. Rather, they promulgated a definitional rule

that, operating in conjunction with other regulations,

will result in imposition of such limitations. Is such

direct circuit court review only over those actions

specifically enumerated in § 1369(b)(1)). Not all ac-

tions taken under the Clean Water Act are directly

reviewable in the circuit courts. Nat'l Cotton Council

of America v. U.S. E.PA., 553 F.3d 927, 933 (6th Cir.

2009). Where review is available under § 1369(b)(1),

“it is the exclusive means of challenging actions cov-

ered by the statute.” Decker v. Nw. Envtl. Def. Ctr.,

133 S.Ct. 1326, 1334 (2013). Matters not reviewable

under § 1369(b)(1) may be actionable in the district

courts by other means. See id. (recognizing availabil-

ity of private enforcement action under 33 U.S.C.

§ 1365); Narragansett Elec. Co. v. U.S. E.PA., 407

F.3d 1, 8 (1st Cir. 2005) (recognizing availability of

judicial review in district court under the APA).

Whether subject matter jurisdiction lies in the

circuit courts is governed by the intent of Congress.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 746

(1985). In determining the scope of circuit court ju-

risdiction Congress intended to prescribe under the

Clean Water Act, the analysis must begin with the

statutory language. Jd. at 735. Yet, even where

statutory language may seem unambiguous, “plain

meaning, like beauty, is sometimes in the eye of the

beholder.” Id. at 737. The parties agree that subsec-

tions (E) and (F) are the only two provisions of

§ 1369(b)(1) that potentially apply.

B. Statutory Language

1. Subsection (E)—“Other Limitation”

Movants contend the Rule’s definition of “waters

of the United States” is not, under § 1369(b)(1)(E),

“an effluent limitation or other limitation” approved

or promulgated under 33 U.S.C. § 1311, 1312, 1316,

or 1345. “Effluent limitation” is defined as “any re-

striction 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,

the waters of the contiguous zone, or the ocean, in-

cluding schedules of compliance.” 33 U.S.C.

§ 1362(11).

The Agencies do not contend that the Clean Wa-

ter Rule is an action in approving or promulgating an

effluent limitation, but rather that it is an “other

limitation.” The Act does not define “other limita-

tion.” Inasmuch as “effluent limitation” is defined as

a “restriction” on discharges from point sources, the

Agencies contend “other limitation” must be under-

stood as a different kind of “restriction.” They con-

tend the Rule’s clarification of the scope of “waters of

the United States” protected under the Clean Water

Act constitutes an “other limitation” in two respects.

First, it has the effect of restricting the actions of

property owners who discharge pollutants from a

point source into covered waters. Second, it has the

effect of imposing limitations or restrictions on regu-

latory bodies charged with responsibility for issuing

permits under the National Pollutant Discharge

Elimination System (“NPDES”) to those who dis-

charge pollutants into covered waters.

On its face, the Agencies’ argument is not com-

pelling. After all, the Rule’s clarified definition is not

self-executing. By clarifying the definition, the

Agencies did not approve or promulgate any limita-

tion that imposes ipso facto any restriction or re-

quirement on point source operators or permit issu-

ers. Rather, they promulgated a definitional rule

that, operating in conjunction with other regulations,

will result in imposition of such limitations. Is such

10a

an indirect consequence sufficient to bring the Rule

within the scope of § 1369(b)(1)(E)?

The Agencies say yes and cite several cases in

support. The seminal case supporting their con-

struction of subsection (E) is E.l. du Pont de

Nemours Co. v. Train, 480 U.S. 112, 136 (1977),

where the Supreme Court eschewed a strict, literal

reading. The Court characterized a construction that

would provide for direct circuit court review of indi-

vidual actions issuing or denying permits, but disal-

lowed such review of the “basic regulations governing

those individual actions,” as a “truly perverse situa-

tion.” Id. Hence, even though § 1369(b)(1) provided

for circuit court review only of limitations promul-

gated under certain enumerated sections, and the

challenged regulation was promulgated under a dif-

ferent section—which was, however, closely related

to one of the enumerated sections—the Court had

“no doubt that Congress intended review of the two

sets of regulations to be had in the same forum.” Jd.

at 136-37. The Court thus construed § 1369(b)(1)(E),

in light of Congress’s manifest intent, to encompass

review of more agency actions than a literal reading

of the provision would suggest.

EI. du Pont can be read in more ways than one.

As the Agencies see it, the Clean Water Rule is a

“basic regulation governing those individual actions”

taken by the EPA Administrator (e.g., promulgation

of limitations) that are subject to direct circuit court

review. Accordingly, giving § 1369(b){1) a practical

construction per E.I. du Pont, the Agencies argue

that Congress intended the lawfulness of the Clean

Water Rule to be subject to direct circuit court re-

view.

lla

Their position finds support in several decisions

of our sister circuits. In Nat. Res. Def. Council v.

U.S. E.P.A., 673 F.2d 400 (D.C. Cir. 1982) (J. Gins-

burg), a case closely analogous to ours, the D.C. Cir-

cuit addressed numerous consolidated challenges to

EPA regulations that had been filed in circuit courts

of appeals and district courts. The regulations did

not establish any numerical limitations, but pre-

scribed permitting procedures that constituted “a

limitation on point sources and permit issuers and a

restriction on the untrammeled discretion of the in-

dustry.” /d. at 405 (interna! quotation marks omit-

ted). Following EI. du Pont, the court held this “lim-

itation” was sufficient to bring the regulations within

the ambit of direct circuit court review under

§ 1369(b)(1)(E). Employing “a practical rather than a

cramped construction,” the court held that direct re-

view in the circuit court was appropriate, even

though the regulations did not impose technical re-

quirements but were “far more general and restied]

dominantly on policy choices.” Jd. In fact, the court

cited several reasons for concluding that such “broad,

policy-oriented rules” are actually more suitable for

direct circuit court review than “specific technology-

based rules.” Jd. at 405 n.15. The court noted that

E.I. du Pont “does not unequivocally dictate our re-

sult but [its] reasoning strongly supports our holding

that we have jurisdiction.” Jd. at 406.

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

446 (4th Cir. 1977) (“VEPCO”), the Fourth Circuit

addressed consolidated petitions challenging EPA

regulations prescribing requirements for the loca-

tion, design, construction and capacity of cooling wa-

ter intake structures used to withdraw from, rather

than discharge into, covered waters. The challengers

12a

argued that such requirements could not be “other

limitations” under § 1369(b)(1)(E) until they were ac-

tually adopted in an individual permit proceeding.

Because the requirements were not self-executing,

the challengers argued they were only presumptively

applicable and did not actually impose any limitation

or restriction on point-source discharges. The court

held the argument was foreclosed by E.J. du Pont.

VEPCO, 566 F.2d at 449-50. The court held the re-

quirement that certain information be considered in

determining the best available technology for intake

structures was a sufficient restriction on the discre-

tion of point source operators and permit issuers to

constitute an “other limitation” under subsection (EF).

Id. Further, citing E.J. du Pont, the court noted the

regulations were so closely related to effluent limita-

tions, that “it would be anomalous to have their re-

view bifurcated between different courts.” Jd. at 450.

The court held that circuit court review was proper

under subsection (E), stating that “this result is con-

sistent with the jurisdictional scheme of the Act,

which in general leaves review of standards of na-

tionwide applicability to the courts of appeals, thus

furthering the aim of Congress to achieve nationally

uniform standards.” VEPCO, 566 F.2d at 451.

More recently, the Eighth Circuit followed suit.

In Iowa League of Cities v. U.S. E.P.A., 711 F.3d 844

(8th Cir. 2013), the court addressed two letters from

the EPA sent to a senator and alleged to have effec-

tively established new regulatory standards govern-

ing municipal water treatment processes. The court

first noted that “the Supreme Court has recognized a

preference for direct appellate review of agency ac-

tion pursuant to the APA.” /d. at 861 (citing Fla.

Power, 470 U.S. at 745). The court rejected the

13a

EPA’s contention that the subject letters, couched in

terms of what “should not be permitted” by regulated

entities, did not “promulgate” a binding limitation.

Noting that the EPA had characterized the letters as

expressing its position or policy, the court dismissed

the notion that the instruction was not binding as

“Orwellian Newspeak.” /d. at 865. The court did not

cite EJ. du Pont, but adopted the VEPCO formula-

tion of “limitation” and went on to hold that subsec-

tion (E) applies if “entities subject to the CWA’s per-

mit requirements face new restrictions on their dis-

cretion with respect to discharges or discharge-

related processes.” Id. at 866.

These decisions from the D.C., Fourth, and

Eighth Circuits demonstrate courts’ willingness to

view EJ. du Pont as license to construe Congress's

purposes in § 1369(b)(1) more generously than its

language would indicate.2 However, movants herein

read E.J. du Pont differently. They argue E./. du

Pont’s holding is narrower and should be limited to

its facts. In support they cite decisions from the

Eleventh and Ninth Circuits refusing to find circuit

court jurisdiction under subsection (E).

In both Friends of the Everglades v. U.S. E.P.A.,

699 F.3d 1280, 1287 (11th Cir. 2012), and Northwest

Environmental Advocates v. U.S. E.P.A., 537 F.3d

2 Most recently, the “functional approach” employed in these

cases was applied by two district courts in relation to the Clean

Water Rule in this litigation to find circuit court jurisdiction

under subsection (E). Murray Energy Corp. v. U.S. E.P.A., 2015

WL 5062506 (N.D. W.Va. Aug. 26, 2015); State of Georgia v.

McCarthy, 2015 WL 5092568 at *2—3 (S.D. Ga. Aug. 27, 2015).

l4a

1006, 1015—16 (9th Cir. 2008), the courts reached re-

sults different from those reached in the D.C.,

Fourth, and Eighth Circuits. However, the decisions

in all five circuits are readily reconcilable. In both

Friends of the Everglades and Northwest Environ-

mental, the courts acknowledged the above discussed

NRDC and VEPCO rulings, but found the regula-

tions before them materially distinguishable from

those deemed to come within the scope of

§ 1369(b)(1)(E). Far from restricting “untrammeled

discretion,” the regulations at issue in Friends of the

Everglades and Northwest Environmental actually

created exemptions from limitations. Both courts

concluded that an exemption from limitation simply

cannot be fairly characterized as a limitation. Nei-

ther court criticized the approach adopted in EJ. du

Pont and applied in NRDC and VEPCO. Nor did ei-

ther court reject the notion that an “other limitation”

can be made out by an indirect restriction on discre-

tion. Rather, Friends of the Everglades and North-

west Environmental held that no construction could

render an exemption from limitation what it plainly

is not: a “limitation” under subsection (E).3 The two

lines of authority are therefore not inconsistent.

3 These authorities were cited as persuasive in this litigation

by one district court. North Dakota v. U.S. E.P.A., 2015 WL

5060744 at *2 (D. N.D. Aug. 27, 2015). However, the North Da-

kota court ignored the fact that, unlike the regulations at issue

in those cases, the Clean Water Rule does not create an exemp-

tion. And despite noting the pertinence of the NRDC-VEPCO-

Towa League line of cases, the North Dakota court conspicuously

ignored their holdings.

15a

Here we acknowledge that the Rule is definition-

al only and does not directly impose any restriction

or limitation. Yet, neither does the Rule create an

exemption from limitation. By clarifying the defini-

tion of “waters of the United States,” the Rule unde-

niably has the indirect effect of altering permit issu-

ers authority to restrict point-source operators’ dis-

charges into covered waters. The alteration invaria-

bly results in expansion of regulatory authority in

some instances and imposition of additional re-

strictions on the activities of some property owners.

These restrictions, of course, are presumably the

reason for petitioners’ challenges to the Rule. Hence,

although the Rule is definitional in nature, it is un-

deniably, in the language of E.I. du Pont, a “basic

regulation governing other individual actions issuing

or denying permits.” 430 U.S. at 136. To rule that

Congress intended to provide direct circuit court re-

view of such individual actions but intended to ex-

clude from such review the definitional Rule on

which the process is based, would produce, per £./.

du Pont, “a truly perverse situation.” Jd. To avoid

just such an outcome, the E.I. du Pont Court rea-

soned that Congress must have intended that both

types of regulation would be subject to review in the

same forum, i.e., the circuit courts.4

‘* EJ. du Ponts analysis is also dispositive of movants’ argu-

ment that review under aubsection (E), by its terms, applies on-

ly to action by the EPA Administrator approving or promulgat-

ing a limitation “under section 1311, 1812, 1416, or 1346 of this

title.” Movants contend that all of these sections pertain to ef-

fluent limitations. Inasmuch as the Agencies do not even argue

that the Clean Water Rule represents an effluent limitation,

16a

E.I. du Pont is the last word from the Supreme

Court on § 1369(b)(1)(E). It is still good law. Our

sister courts in the D.C., Fourth, and Eighth Circuits

have all applied E.J. du Pont’s approach and have de-

fined the scope of direct circuit court review under

subsection (E) more broadly than a strict interpreta-

tion of its language would indicate. The two circuit-

level decisions, from the Ninth and Eleventh Cir-

cuits, that declined to find circuit court jurisdiction

under subsection (E) did so in relation to agency ac-

tion materially distinguishable from the Rule here at

issue. The movants’ position is thus devoid of sub-

stantial case law support. While their plain-

language arguments are not without facial appeal,

we are hardly at liberty to ignore the consistent body

of case law that has sprung from that language in

encounters with the real world. In response to con-

cern about producing a “perverse situation” seeming-

ly at odds with congressional purpose, movants have

no answer beyond their argument that Congress

must be held to say what it means and mean what it

says. Were we writing on a blank slate, the argu-

ment would be more persuasive, but we’re not. As an

“inferior court,” we are obliged to take our lead from

movants contend the Rule cannot be deemed to have been

promulgated under any of these sections.

Yet, the Rule purports to be adopted under authority, inter

alia, of section 311 (33 U.S.C. § 1311). 80 Fed. Reg. at 37,055.

And subsection (E) prescribes direct circuit court review of any

“other limitation,” in addition to any effluent limitation. It fol-

lows that the Rule, representing an “other limitation” as de-

fined in E.J. du Pont and its progeny, and adopted pursuant to

§ 1311, comes within the scope of circuit court review under

§ 1369(b)(1)(E).

17a

the Supreme Court. Having discerned no persuasive

grounds to depart from the rationale that controlled

in E.I. du Pont, I conclude that we, like our sister cir-

cuits, must follow its lead.

Viewing the Clean Water Rule through the lens

created in E.I. du Pont reveals a regulation whose

practical effect will be to indirectly produce various

limitations on point-source operators and permit is-

suing authorities. Accordingly, although the Rule

does not itself impose any limitation, its effect, in the

regulatory scheme established under the Clean Wa-

ter Act, is such as to render the Rule, per the teach-

ing of E.J. du Pont and its progeny, subject to direct

circuit court review under § 1369(b)(1)(E).

2. Subsection (F)}—“Issuing or Denying

Permit”

Evaluation of the second claimed basis for direct

circuit court review proceeds in like manner. Mo-

vants argue that § 1369(b)(1)(F) does not justify ju-

risdiction in the circuit court because the Clean Wa-

ter Rule is not an action of the EPA Administrator

“in issuing or denying a permit.” Yet, in relation to

subsection (F), too, the Supreme Court has opened

the door to constructions other than a strict literal

application. In Crown Simpson Pulp Co. v. Costle,

445 U.S. 193, 196-97 (1980), the Court reversed the

Ninth Circuit and held that an action of the Admin-

istrator “functionally similar” to denial of a permit is

encompassed within subsection (F). If the “precise

effect” of the action would be to deny a permit, the

Court reasoned, it would be irrational to conclude,

based on a strictly literal application of subsection

(F), that the action would be subject to review in dis-

trict court rather than circuit court. The Court rec-

18a

ognized that direct review in the circuit court “would

best comport with the congressional goal of ensuring

prompt resolution of challenges to EPA’s actions.”

Id. at 196. Addition of another level of judicial re-

view, the Court observed, “would likely cause delays

in resolving disputes under the Act.” Id. at 197. In

conclusion, the Court remarked: “Absent a far clearer

expression of congressional intent, we are unwilling

to read the Act as creating such a seemingly irra-

tional bifurcated review system.” Jd.

Here, similarly, the Agencies contend that the ef-

fect of the Clean Water Rule, operating in the extant

regulatory scheme, is to impact permitting require-

ments, thereby affecting the granting and denying of

permits. This is enough, the Agencies argue, to bring

the Clean Water Rule within the ambit of subsection

(F), because it too impacts permitting requirements.

In support they cite a Sixth Circuit case, Nat7 Cotton

Council v. U.S. E.P.A., 553 F.3d 927, 933 (6th Cir.

2009), cert. denied sub nom. Crop Life v. Baykeeper,

130 S.Ct. 1505 (2010), and Am. Farm Bureau Fed’n

v. Baykeeper, 130 S.Ct. 1505 (2010). In National Cot-

ton, this court held that subsection (F) authorizes di-

rect circuit court review not only of actions issuing or

denying particular permits, but also of regulations

governing the issuance of permits. The court relied

on authorities from the Ninth Circuit and D.C. Cir-

cuit stemming from E.J. du Pont and Crown Simp-

son. See Nat. Res. Def. Council, Inc. v. U.S. E.P.A.,

966 F.2d 1292, 1296—97 (9th Cir. 1992); Am. Mining

Cong. v. U.S. E.PA., 965 F.2d 759, 763 (9th Cir.

1992); Nat. Res. Def. Council, Inc. v. U.S. E.P_A., 656

F.2d 768, 775 (D.C. Cir. 1981). In fact, the National

Cotton court noted that this more expansive reading

of subsection (F) encompassed even regulations that

19a

exempted certain discharges from permitting re-

quirements. Natl Cotton, 553 F.3d at 933. That is,

under subsection (F), a regulation that imposes no

restriction or limitation is reviewable in circuit court,

so long as it affects permitting requirements.

Movants maintain that a mere impact on permit-

ting requirements is not enough to bring the Rule

within subsection (F). They contend the holding of

Crown Simpson’s expansion of the plain language of

the provision is really quite narrow and that Nation-

al Cotton’s reading of subsection (F) is overly broad

and even inconsistent with Crown Simpson. They

contend the “precise effect” of the Clean Water Rule

is not to deny any permit and that it is therefore not

“functionally similar.”

Movants attack National Cotton on several

fronts. First, they contend the decision is not enti-

tled to precedential weight because its determination

of jurisdiction was summary in nature and devoid of

substantive analysis. In support they cite Emswiler

v. CSX Transportation, Inc., 691 F.3d 782, 788-90

(6th Cir. 2012), for the proposition that “drive-by ju-

risdictional rulings” based on “less than meticulous”

reasoning should be accorded no precedential effect.

Emswiler is inapposite. The Emswiler court used

these characterizations in relation to an opinion’s

careless characterization of a party's failure to meet

a threshold exhaustion requirement as depriving the

5 National Cotton was followed in this litigation in Murray En-

ergy, 2015 WL 5062506 at *5—6, the court noting there was no

dispute that the Clean Water Rule will have an impact on per-

mitting requirements.

20a

court of subject matter jurisdiction. While the fail-

ure to exhaust impacted the plaintiffs ability to win

relief on the merits, the Emswiler court called it “less

than meticulous” to say the failure to exhaust de-

prived the court of subject matter jurisdiction. Jd. at

789. The National Cotton jurisdictional ruling was

not the product of carelessness. It is succinct be-

cause it efficiently follows the holdings of several

other rulings—one by the Supreme Court—whose

reasoning it implicitly incorporated by citing them.

Granted, the Eleventh Circuit expressly declined

to follow National Cotton in Friends of the Ever-

glades, 699 F.3d at 1288, rejecting the position that

Crown Simpson legitimized direct circuit court re-

view of any “regulations relating to permitting it-

self.” The court noted that, although the Sixth Cir-

cuit adopted that interpretation in National Cotton,

it did so in reliance on two Ninth Circuit cases that

had since been distinguished by the Ninth Circuit in

Northwest Environmental, 537 F.3d at 1016-18. In

Northwest Environmental, 537 F.3d at 1018, as in

Friends of the Everglades, 699 F.3d at 1288, the

court ruled that a regulation creating a permanent

exemption from the permitting process could not

have the effect of granting or denying a permit re-

viewable under § 1369(b)(1)(F) precisely because the

regulation excluded certain discharges from the per-

mitting process altogether.

Yet, even if it be conceded that National Cotton

said too much when it noted in dicta that the Ninth

Circuit had construed subsection (F) broadly enough

to include an exemption from regulation, the fact

remains that the action here under review is not an

exemption. Rather, both petitioners and the Agen-

cies operate on the understanding that the effect of

Z2la

the Clean Water Rule is uot solely to exclude waters

from protection, but to extend protection to some ad-

ditional waters. This extension indisputably ex-

pands regulatory authority and impacts the granting

and denying of permits in fundamental ways. The

later clarification of Ninth Circuit law noted in

Friends of the Everglades does not, therefore, in any

way undermine the authority of National Cotton as

applied to the Clean Water Rule.

Finally, movants contend National Cotton is

wrongly decided. They contend that Crown Simp-

son's expanded construction of subsection (F) was

narrow and circumscribed; whereas National Cot-

ton’s holding that subsection (F) authorizes circuit

court review of “regulations governing the issuance

of permits” is unduly broad. Perhaps. Yet, if we be-

lieved National Cotton was not distinguishable and

was wrongly decided, we would still not be free to re-

ject its holding. Generally, in a multi-circuit case

where a question of federal law is at issue, the trans-

feree court is obliged to follow its own interpretation

of the relevant law. See Murphy v. FDIC, 208 F.3d

959, 964-65 (11th Cir. 2000) (citing Jn re Korean Air-

lines Disaster, 829 F.2d 1171, 1175-76 (D.C. Cir.

1987), and observing that other circuits have uni-

formly agreed with the D.C. Circuit). Moreover, no

other court has held that National Cotton was

wrongly decided. National Cotton, as well as the

Ninth Circuit and D.C. Circuit authorities on which

it relied, are still good law. Movants have not identi-

fied any materially contrary authority.

Furthermore, National Cotton’s construction is

consistent with congressional purpose, which ap-

pears to have been the guiding light in both EI. du

Pont and Crown Simpson. In Florida Power, 470

22a

U.S. at 744—45, in relation to the Atomic Energy Act,

the Court recognized that “one crucial purpose” of

statutes providing for direct circuit court review of

agency action is judicial economy. Jd. at 744. The

Court noted that the district court’s superior fact-

finding capacity is typically unnecessary to judicial

review of agency action. On the other hand, provid-

ing for initial review in the district court has the

negative effect of “requiring duplication of the identi-

cal task in the district court and in the court of ap-

peals; both courts are to decide, on the basis of the

record the agency provides, whether the action pass-

es muster under the appropriate APA standard of

review.” Jd. The Court acknowledged that the intent

of Congress, not the Court’s concept of sound policy,

is ultimately determinative, but concluded:

Absent a firm indication that Congress

intended to locate initial APA review of

agency action in the district courts, we

will not presume that Congress intended

to depart from the sound policy of placing

initial APA review in the courts of ap-

peals.

Id. at 746. See also Tennessee v. Herrington, 806

F.2d 642, 650 (6th Cir. 1986) (following Florida Pow-

er and noting that where Congress has provided for

direct circuit court review but its intent is ambiguous

in a specific case, policy considerations are relevant);

Natural Resources Def. Council v. Abraham, 355

F.3d 179, 193 (2d Cir. 2004) (citing cases from Sec-

ond, Seventh, Tenth and D.C. Circuits for the propo-

sition that “when there is a specific statutory grant

of jurisdiction to the court of appeals, it should be

construed in favor of review by the court of ap-

peals.”).

23a

National Cotton’s broader reading of subsection

(F) is thus consistent with the preference in favor of

circuit court review recognized in Florida Power and

implicitly at work in both E.I. du Pont, see 430 US.

at 128 (characterizing it as “almost inconceivable

that Congress would have required duplicate review

in the first instance by different courts”), and Crown

Simpson, see 445 U.S. at 196-97 (noting unwilling-

ness to conclude Congress intended to cause delays

that would result from duplicative review process).

In Florida Power, the Court overruled Justice

Stevens’ objection that proper deference to Congress

required enforcement of “the plain and simple con-

struction of the statutory language.” Jd. at 750. Jus-

tice Stevens’ plain-language position, like that of

movants in this case, is not devoid of logic. Yet, as

Justice Stevens protested, the Court rejected it as a

matter of mere “semantic quibbles.” Id. We do not

view movants’ plain-language arguments as seman-

tic quibbles, but, in my view, they have clearly failed

to identify any substantial reason to conclude the

preference favoring direct circuit court review—-

created by Congress in § 1369(b)(1) and honored by

the Supreme Court—does not, in this case, ultimate-

ly serve all parties’ interests in efficiency, judicial

economy, clarity, uniformity and finality.

Florida Power, \ike E.l. du Pont and Crown

Simpson, demonstrates a strong preference for con-

struing Congress’s provision for direct circuit court

review of agency action by a practical, functional ap-

proach rather than a technical approach. A holding

that we have jurisdiction to hear the instant peti-

tions for review of the Clean Water Rule is consistent

with this understanding. On the other hand, a con-

trary ruling, though facially consonant with the plain

24a

language of § 1369(b)(1), finds practically no solid

support in the case law. Accordingly, I conclude that

we have jurisdiction under subsection (F) as well.

C. Miscellaneous Objections

Movants present arguments based on other stat-

utory provisions, items of legislative history and can-

ons of construction. The arguments are not persua-

sive. That the Clean Water Rule was promulgated

jointly by the EPA Administrator and the Secretary

of the Army does not defeat the fact that it repre-

sents action, in substantial part, of the Administra-

tor. The items of legislative history identified by the

parties and said to be probative of congressional in-

tent are sparse and frankly shed little light on the

specific jurisdictional questions before the court. See

EI. du Pont, 430 U.S. at 133 (dismissing arguments

based on other provisions of the statute and legisla-

tive history as inconclusive and not deserving of de-

tailed discussion). Similarly, the various canons of

construction alluded to by the parties are inconclu-

sive and carry little weight in comparison with the

dispositive considerations, as defined in the foregoing

discussion of the guiding case law.

Movants also raise what they characterize as

“due process concerns.” They contend that if circuit

court jurisdiction is exercised under § 1369(b)(1),

then any other challenges to the Clean Water Rule

not made within 120 days after its promulgation are

foreclosed unless based on grounds which arose after

the 120th day, per § 1369(b)(2). If subsequent as-

applied challenges are thus deemed precluded, then

unwary point-source operators and landowners un-

certain about the scope of the Clean Water Act’s reg-

ulatory reach may be subject to enforcement actions

25a

and penalties without fair notice of the conduct pro-

hibited. In Longview Fibre Co. v. Rasmussen, 980

F.2d 1307, 1313 (9th Cir. 1992), the Ninth Circuit re-

ferred to this preclusive effect as a “peculiar sting.”

The concern is speculative and overblown in this

case. If the court exercises jurisdiction over petition-

ers’ instant challenges to the validity of the Rule in

this nationwide multi-circuit case and upholds the

Rule, then that determination should have preclu-

sive effect. See Narragansett Elec. Co. v. U.S. E.P.A.,

407 F.3d 1, 5 (1st Cir. 2005) (noting that “the short

time frame in § 1369(b) clearly reflects some effort to

protect the EPA’s interests in finality in certain mat-

ters, particularly certain rulemakings with substan-

tial significance and scope.”). On the other hand,

this court’s exercise of jurisdiction and ruling on a

challenge to the validity of the Rule would not pre-

clude challenge to subsequent application of the Rule

in a particular permitting requirement or enforce-

ment action. See Decker v. Nw. Envtl. Def. Ctr., 133

S.Ct. 1326, 1335 (2013) (noting that whereas a chal-

lenge to the validity of regulations would be subject

to the exclusive jurisdictional bar of § 1369(b)(2), an

enforcement action would not be). To the extent our

eventual ruling on the validity of the Rule might

conceivably be asserted in overbroad fashion as bar-

ring a defense against application of the Rule in an

enforcement action, the asserted bar would be sub-

ject to testing as excessive and unfairly prejudicial in

that action. See Nat. Res. Def. Council v. U.S.

E.P_A., 673 F.3d 400, 407 (D.C. Cir. 1982) (rejecting

the same “due process” argument and suggesting

that overbroad application of the § 1369(b)(2) bar

could be challenged, when ripe, as unconstitutional).

26a

We therefore reject movants’ “due process concerns”

as premature and unfounded.

III. CONCLUSION

Both sides have presented worthy arguments in

support of their respective positions on jurisdiction.

Since enactment of the Clean Water Act in 1972, the

jurisdictional provisions of § 1369(b)(1)(E) and (F)

have been subjected to judicial scrutiny in relation to

various regulatory actions and have been consistent-

ly construed not in a strict literal sense, but in a

manner designed to further Congress’s evident pur-

poses. Pursuant to the uniform trend of the instruc-

tive case law, the scope of direct circuit court review

has gradually expanded. In response, Congress has

not moved to amend the provision or otherwise taken

“corrective” action. As explained above, the instant

petitions for review of the Clean Water Rule come

within the scope of subsections (E) and (F), as they

have come to be defined in the governing case law.

Movants have failed to identify any particular cir-

cumstances or practical considerations that would

justify holding that adjudication of the instant peti-

tions for judicial review in the various district courts

would better serve Congress's purposes. Instead,

recognition of our authority and our duty to directly

review the Clean Water Rule in this multi-circuit

case is in all respects consonant with the governing

case law and in furtherance of Congress's purposes.

Conversely, to rule that we lack jurisdiction would be

to contravene prevailing case law and frustrate con-

gressional purposes without substantial justification.

We hold that jurisdiction is properly laid in this

court. All pending motions to dismiss are DENIED.

27a

CONCURRING IN THE JUDGMENT

GRIFFIN, Circuit Judge, concurring in the judg-

ment, only.

[ concur in the judgment holding that we possess

subject-matter jurisdiction in this case; thus, [ join in

denying petitioners’ motions to dismiss. However, [

do so only because I am required to follow our

precedentially-binding decision, National Cotton

Council of America v. U.S. E.P.A., 553 F.3d 927 (6th

Cir. 2009). Were it not for National Cotton, I would

grant the motions to dismiss.

Congress establishes the jurisdiction of the

courts of appeals and other inferior courts. See, e.g.,

Kontrick v. Ryan, 540 U.S. 448, 452 (2004). In de-

termining whether the Clean Water Act, 33 U.S.C.

§ 1251 et seq., creates jurisdiction in our court over a

case or controversy, we must examine and apply the

terms of the statute enacted by Congress. As with

all matters of statutory construction, we should ap-

ply a textualist, not a “functional” or “formalistic,”

approach.!

‘ With a heavy heart, | acknowledge the sudden passing of Jus-

tice Antonin Scalia. Justice Scalia was the founder and cham-

pion of the modern textualist mode of constitutional and atatu-

tory construction. His essay, A MATTER OF INTERPRETATION:

FEDERAL COURTS AND THE LAW (1997), and other writings and

opinions profoundly influenced a generation of attorneys, legal

28a

In this regard, “[i]Jt is elementary that the mean-

ing of a statute must, in the first instance, be sought

in the language in which the act is framed, and if

that is plain, and if the law is within the constitu-

tional authority of the lawmaking body which passed

it, the sole function of the courts is to enforce it ac-

cording to its terms.” Caminetti v. United States, 242

U.S. 470, 485 (1917). “If the words are plain, they

give meaning to the act, and it is neither the duty

nor the privilege of the courts to enter speculative

fields in search of a different meaning.” Jd. at 490.

Recognizing the consequences of unbridled judicial

forays into the legislative sphere, the Supreme Court

has admonished “time and again that courts must

presume that a legislature says in a statute what it

means and means in a statute what it says there.”

Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548

U.S. 291, 296 (2006) (quoting Conn. Natl Bank v.

Germain, 503 U.S. 249, 253—54 (1992)). Accordingly,

“[wjhen the statutory language is plain, the sole

function of the courts—at least where the disposition

required by the text is not absurd—is to enforce it

according to its terms.” Jd. (internal citations and

quotation marks omitted).

Whether it is desirable for us to possess jurisdic-

tion for purposes of the efficient functioning of the

judiciary, or for public policy purposes, is not the is-

sue. Rather, the question is whether Congress in

fact created jurisdiction in the courts of appeals for

this case. I conclude that it did not.

scholars, and judges. Justice Scalia’s legacy will live on for dec-

ades in countless opinions such as this one.

29a

The Environmental Protection Agency and the

U.S. Army Corps of Engineers (“the Agencies”) argue

that both 33 U.S.C. § 1369(b)(1)(E) and (F) vest this

court with jurisdiction regarding petitioners’ claims.

In my view, it is illogical and unreasonable to read

the text of either subsection (E) or (F) as creating ju-

risdiction in the courts of appeals for these issues.

Nonetheless, because National Cotton held otherwise

with respect to subsection (F), I concur in the judg-

ment, only.

IT.

Subsection (EK) creates jurisdiction to review an

action “approving or promulgating any effluent limi-

tation or other limitation under section 1311, 1312,

1316, or 1345 of this title[.]” Sections 1311 and 1312

specifically set forth effluent limitations and water

quality related-effluent limitations. Sections 1316

and 13465 provide additional limitations on discharg-

es and sewage sludge to achieve state water quality

standards when those in sections 1311 and 1312 fall

short. The Act defines “effluent limitation” as ex-

pressly relating to discharges:

The term “effluent limitation” means any

restriction established by a State or the

Administrator on quantities, rates, and

concentrations of chemical, physical, bio-

logical, and other constituents which are

discharged from point sources into navi-

gable waters, the waters of the contiguous

zone, or the ocean, including schedules of

compliance.

§ 1362(11) (emphasis added). [t does not define “oth-

er limitation.”

30a

Petitioners ask that we draw an associational

link between effluent and other limitations, directing

this court to a Fourth Circuit case that speaks in

terms of an “other limitation” being “closely related”

to “effluent limitations,” Va. Elect. & Power Co. v.

Costle, 566 F.2d 446, 450 (4th Cir. 1977) (“VEPCO’),

and to a Seventh Circuit case holding that “other

limitation” is “restricted to limitations directly relat-

ed to effluent limitations.” Am. Paper Inst., Inc. v.

U.S. E.P_A., 890 F.2d 869, 877 (7th Cir. 1989). On

the other hand, the Agencies advocate for—and the

lead opinion applies—a broad reading of “other limi-

tation”; that is, “other limitation” includes “re-

strictions that are vot effluent limitations.”

In my view, both are wrong. Whatever the rela-

tionship may be between effluent and other limita-

tions, the plain text of subsection (E) clearly delin-

eates what the limitations are, and what they are

not: the “limitations” set forth in §§ 1311, 1312, 1316,

and 1345 provide the boundaries for what constitutes

an effluent or other limitation. The statutory inter-

pretation canon, noscitur a sociis, drives this point

home. Simply, “a word is known by the company it

keeps” to “avoid ascribing to one word a meaning so

broad that it is inconsistent with its accompanying

words, thus giving unintended breadth to the Acts of

Congress.” Yates v. United States, 1365 S. Ct. 1074,

1085 (2015) (citation omitted). Application of this

canon is simple: “any effluent limitation or other lim-

itation” must be related to the statutory boundaries

set forth in §§ 1311, 1312, 1316, and 1345.

The problem with the boundaries for the Agen-

cies is that the definitional section the Clean Water

Rule modifies—“[t]he term ‘navigable waters’ means

the waters of the United States, including the terri-

3la

torial seas”"—does not emanate from these sections.

It is a phrase used in the Act’s definitional section,

§ 1362, and no more. But the definitional section is

not mentioned in § 1369, let alone the specific sec-

tions listed in subsection (E). And the definitional

section, as the lead opinion acknowledges, is not self-

executing; at best, it operates in conjunction with

other sections scattered throughout the Act to define

when its restrictions even apply. Accordingly, the

lack of any reference to § 1362 in subsection (E)

counsels heavily against a finding of jurisdiction.

See Friends of Earth v. U.S. E.P.A., 333 F.3d 184,

189 (D.C. Cir. 2003) (“[T]he courts of appeals have

consistently held that the express listing of specific

EPA actions in section 1369(b)(1) precludes direct

appellate review of those actions not so specified.”);

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,

1313 (9th Cir. 1992) (“It would be an odd use of lan-

guage to say ‘any effluent limitation or other limita-

tion under section 1311, 1312, 1316, or 1345 of this

title’ in § 1369(b)(1)(E) if the references to particular

sections were not meant to exclude others.”).

The Agencies’ response to this textual point is

underwhelming, raising suppositional and policy ar-

guments. First, the Agencies contend that they

promulgated the Clean Water Rule only under the ef-

fluent limitations provision codified at § 1311. Sec-

tion 1311 makes the unauthorized “discharge of any

pollutant by any person .. . unlawful.” § 1311{a).

The phrase “discharge of any pollutant” is defined, as

pertinent here, as “any addition of any pollutant to

navigable waters from any point’ source.”

§ 1862(12)(A). The Agencies concede that “[t]he plain

text reading of the phrase ‘other limitation under

sections 1311, 1312, 1316, or 1345’ .. . can only refer

32a

to limitations that are promulgated under the speci-

fied sections but are not effluent limitations.” (Em-

phasis added.) They then suppose in circular fashion

that “[b]y defining what waters are ‘waters of the

United States,’ the Clean Water Rule establishes

where the Act’s prohibitions and requirements ap-

ply.”

This may be true, but it fails muster on the point

of whether the Clean Water Rule is any “other limi-

tation” within the meaning of § 1311. Importantly,

neither the Agencies nor the lead opinion have iden-

tified a specified subsection within § 1311 that are

“not effluent limitations” under which the Agencies

promulgated the Clean Water Rule. This is because

they cannot. Waters of the United States applies

across the Act, not just to those discharge limitations

set forth in § 1311. The Clean Water Rule is not a

“limitation” on the discharge of pollutants into wa-

ters of the United States; rather, it sets the jurisdic-

tional reach for whether the discharge limitations

even apply in the first place. In the Agencies’ own

words:

The action imposes no enforceable duty

on any state, local, or tribal governments,

or the private sector, and does not contain

regulatory requirements that might sig-

nificantly or uniquely affect small gov-

ernments.

Clean Water Rule: Definition of “Waters of the Unit-

ed States,” 80 Fed. Reg. 37,054, 37,102 (June 29,

2015) (to be codified at 33 C.F.R. pt. 328 and 40

C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300,

302, and 401). In short, I refuse to read § 1369's nar-

row jurisdictional authorization in such a circular

33a

fashion, expansively turning the broadening of the

Act's jurisdiction into a limitation that may be im-

posed only when jurisdiction is appropriate. Cf.

North Dakota v. U.S. E.P.A., —¥. Supp. 3d—, 2015

WL 5060744, at *2 (D.N.D. Aug. 27, 2015) (“fT]he

States have exactly the same discretion to dispose of

pollutants into the waters of the United States after

the Rule as before.”).

Second, the Agencies raise policy considerations

as to why review of such a nationally important rule

should originate in the courts of appeals. They ar-

gue, for example, that the definition of waters of the

United States is a “fundamental” and “basic regula-

tion” pertinent to the Act’s backbone—its prohibition

against discharging pollutants into such waters

without a permit. The Agencies also argue initial re-

view in the district courts will inevitably lead to

waste of judicial and party resources, delays, and

possibly even different results.

However, no matter how important a policy pre-

rogative may be, the Act’s plain and unambiguous

text binds this court. That text stands in marked

contrast to the Clean Air Act’s express authorization

to challenge “any other nationally applicable regula-

tions” by the EPA in the D.C. Circuit. See 42 U.S.C.

§ 7607(b)(1); Am. Paper Inst., 890 F.2d at 877 (“Con-

gress could easily have provided jurisdiction .. . by

providing a genera) jurisdiction provision in the Act.

Instead, Congress specified those EPA activities that

were directly reviewable by the court of appeals.”)

(internal citation omitted). And that text makes

clear that this court does not have jurisdiction to

hear a challenge to a regulation that. does not impose

any limitation as set forth by the Act.

34a

The lead opinion departs from the Act’s plain

text by relying on a string of cases it contends en-

courages a function-over-form approach to subsection

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

U.S. 112 (1977), we are told, broadly interprets the

Act’s jurisdictional authorization to prevent the “tru-

ly perverse situation” where the courts of appeals re-

view actions issuing or denying permits, but not the

“basic regulations governing those individual ac-

tions.” I agree that EJ. du Pont speaks to such policy

considerations, but disagree that such policy consid-

erations drove the Court’s analysis.

In E.I. du Pont, the Supreme Court considered

effluent limitation regulations promulgated by the

EPA for discharges by the inorganic chemical indus-

try. Id. at 122-24. The primary issue was whether

the Act granted the EPA the power to set effluent

limitations by regulation (thereby falling within sub-

section (E)) or by guideline (thereby falling outside

subsection (E)). Id. at 124-25. “Thus the issue of ju-

risdiction to review the regulations [was] intertwined

with the issue of [the] EPA’s power to issue the regu-

lations.” Jd. at 125. After resolving the “critical

question [of] whether [the] EPA has the power to is-

sue effluent limitations by regulation” in the EPA’s

favor based on the statute’s text and legislative his-

tory, id. at 124, 126—36, the Court plainly noted that

its holding that the Act “authorize[d] the [EPA] to

promulgate effluent limitations [by regulation] for

classes and categories of existing point sources neces-

sarily resolve{d] the jurisdictional issue as well.” Id.

at 136 (emphasis added).

Yet, the lead opinion draws its “functional” “lens”

from E.I. du Pont’s subsequent discussion as to why

it rejected the industry's argument that subsection

35a

(E)’s reference to § 1311 (the effluent limitations pro-

vision) “was intended only to provide for review of

the grant or denial of an individual variance” from

the Act’s effluent limitations restriction. Jd. Among

other reasons, the Court found this argument unper-

suasive because the industry's “construction would

produce the truly perverse situation in which the

court of appeals would review numerous individual

actions issuing or denying permits ... but would

have no power of direct review of the basic regula-

tions governing those individual actions.” Jd. This

policy reason came after a plain textual rejection of

the industry's position. Jd. It is, therefore, a far

stretch to take this dicta and expand it as the lead

opinion does to find jurisdiction proper when a regu-

lation’s “practical effect” only sets forth “indirect”

limits. And, unlike in EJ du Pont, the Agencies here

admit they have not promulgated an effluent limita-

tion. I therefore decline to read EJ. du Poni, as the

lead opinion does, as shoehorning an exercise in ju-

risdictional line-drawing into subsection (E)’s “other

limitation” provision.

To the extent policy considerations are responsi-

ble for E.J. du Pont’s outcome, I disagree that, to bor-

row the lead opinion’s phrase, such “real world” con-

siderations mandate a watered-down version of

textualism in this case, erroneously elevating the

perceived congressional purpose over the statutory

language. As the Supreme Court emphasized just

last year, “[ojur job is to follow the text even if doing

so will supposedly ‘undercut a basic objective of the

statute.” Baker Botts L.L.P. v. ASARCO LLC, 135 S.

Ct. 2158, 2169 (2015) (citation omitted). Thus, when

presented with “the clear meaning of the text, there

is no need to .. . consult the [statute’s] purpose... .

36a

[I]t is ultimately the provisions of our laws rather

than the principal concerns of our legislators by

which we are governed.” Cooper Indus., Inc. v. Aviall

Serus., Inc., 543 U.S. 157, 167-68 (2004) (citation

omitted and second alteration in original). Put dif-

ferently, unambiguous text trumps policy considera-

tions. See Kloeckner v. Solis, 133 S. Ct. 596, 607 n.4

(2012) (“[E]ven the most formidable argument con-

cerning the statute’s purposes could not overcome

the clarity we find in the statute’s text.”); Mohamad

v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012)

(“[N]o legislation pursues its purposes at all costs,

and petitioners’ purposive argument simply cannot

overcome the force of the plain text.”) (internal cita-

tion omitted); Mertens v. Hewitt Assocs., 508 U.S.

248, 261 (1993) (“[V]ague notions of a statute’s ‘basic

purpose’ are nonetheless inadequate to overcome the

words of its text regarding the specific issue under

consideration.”). As set forth, subsection (E)’s lan-

guage could not be clearer, thus removing policy con-

siderations from this court’s analytical quiver.

Circuit case law drawing on this “functional ap-

proach” similarly misses the mark. Notably, VEPCO

appears to define “limitation” as “a restriction on the

untrammeled discretion of the industry which was

the condition prior to the [Act’s] passage.” 566 F.2d

at 450. Other cases relied upon by the lead opinion

have followed this analysis. See, e.g., Iowa League of

Cities v. U.S. E.P.A., 711 F.3d 844, 866 (8th Cir.

2013); Nat. Res. Def. Council, Inc. v. U.S. E.P.A., 673

F.2d 400, 405 (D.C. Cir. 1982) (“NRDC IT’). Howev-

er, VEPCO’s statement requires context.

The regulation at issue in VEPCO governed the

“structures used to withdraw water for cooling pur-

poses.” 566 F.2d at 446-51. It did “not impose specif-

37a

ic structural or locational requirements upon cooling

water intake structures,” and instead just “require[d]

that the location, design, construction, and capacity

of cooling water intake structures reflect the best

technology available for minimizing adverse envi-

ronmental impact.” Jd. at 450. Because the regula-

tion mandated the consideration of certain infor-

mation in constructing intake structures, the Fourth

Circuit reasoned, that “in itself [was] a limitation on

point sources and permit issuers” and therefore re-

stricted “the untrammeled discretion of the indus-

try.” VEPCO also drew from E.I. du Pont, reasoning

that the regulation issued there was “so closely re-

lated to the effluent limitations and new source

standards of performance ... that... it would be

anomalous to have their review bifurcated between

different courts.” Id. (citing EJ. du Pont, 430 U.S. at

136).

At most, VEPCO is an example of what consti-

tutes an “other limitation’—a restriction on the in-

dustry’s abilities to intrude upon the waters of the

United States without the Agencies’ permission to do

so. In this regard, the Fourth Circuit's “untram-

meled discretion” language makes absolute sense,

but I disagree with the lead opinion’s reliance upon

this language here. The Act in and of itself restricts

the industry's untrammeled discretion. I see no tex-

tual indication that Congress intended any re-

striction on the industry to be directly reviewed by

the courts of appeals, yet under the lead opinion’s

reading, any industry restriction requires review

here. The lead opinion’s application thus swallows

the rule.

Finally, that the Clean Water Rule arguably ex-

pands the Act’s jurisdiction cannot be a reason to

38a

find a functional limitation under subsection (EF).

The lead opinion hangs its “functional” premise on

the fact that the Clean Water Rule is a “basic regula-

tion” affecting the Act’s core, defining where it ap-

plies and where it does not. It presumes, perhaps

rightly so, that the Clean Water Rule “results in [an]

expansion of regulatory authority in some instances

and imposf[es] . . . additional restrictions on the activ-

ities of some property owners.” However, I cannot

agree that the latter supports the former in conclud-

ing that the Clean Water Rule “has the indirect ef-

fect of altering permit issuers’ authority to restrict

point-source operators’ discharges into covered wa-

ters.” A plausible hypothetical removes the linchpin

in this analysis. Suppose instead of taking a flow-

like approach to the Act’s jurisdiction, the Agencies—

perhaps under a_e different administration—

promulgate a rule that ebbs toward a more restricted

view, consistent with the plurality opinion in

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

der the lead opinion’s analysis, a rule narrowing the

scope of the waters of the United States would also

be an “other limitation” sufficient to trigger our ju-

risdiction because it too would indirectly affect point-

source operators and permit issuing authorities, al-

beit in a less restrictive manner. Congress could not

have intended such a nonsensical result.

For these reasons, I cannot conclude that subsec-

tion (EZ) awthorizes our jurisdiction.

ITT.

Second, the lead opinion concludes we have ju-

risdiction to hear petitioners’ challenges under sub-

section (F). I agree, but for different reasons. Specif-

ically, while I agree that National Cotton controls

39a

this court’s conclusion, | disagree that it was correct-

ly decided. But for National Cotton, I would find ju-

risdiction lacking. I therefore concur in the judg-

ment, only.

Section 1369(b)(1)(F) provides exclusive jurisdic-

tion in this court to review an action “issuing or

denying any permit under section 1342, [the Nation-

al Pollutant Discharge Elimination System

(“NPDES”)].” On its face, subsection (F) clearly does

not apply to the Clean Water Rule’s promulgation.

See Rhode Island v. U.S. E.P.A., 378 F.3d 19, 23 (ist

Cir. 2004) (“By its plain terms, [subsection (F)] condi-

tions the availability of judicial review on the issu-

ance or denial of a permit.”). Under a plain text

reading, the Clean Water Rule neither issues nor de-

nies a permit under the NPDES. In my view, this

should end the analysis. I am, however, constrained

by our court’s precedent holding that “issuing or

denying any permit” means more than just that.

As the lead opinion correctly notes, several

courts have deviated from a strict reading of the ju-

risdictional language and toward a more “functional”

approach. In Crown Simpson Pulp Company v.

Costle, for example, the Supreme Court blessed ju-

risdiction in the courts of appeals when the EPA’s ac-

tion—there, vetoing California’s proposal to grant

permits for pulp mills to discharge pollutants into

the Pacific Ocean—had the “precise effect” of denying

a permit. 445 U.S. 193, 196 (1980). In other words,

jurisdiction was proper because the EPA’s action was

“functionally similar to its denial of a permit in

States which do not administer an approved permit-

issuing program.” Jd. A contrary ruling, held the

Supreme Court, would lead to an “irrational bifur-

cated system” depending upon “the fortuitous cir-

40a

cumstance of whether the State in which the case

arose was or was not authorized to issue permits.”

Id. at 196-97. Both the D.C. Circuit, Nat. Res. Def.

Council, Inc. v. U.S. E.P.A., 656 F.2d 768, 776 (D.C.

Cir. 1981) (““NRDC I’); NRDC I, 673 F.2d at 405

(then-Judge Ginsburg’s “practical rather than a

cramped construction” counsel), and the Ninth Cir-

cuit, Am. Mining Congress v. U.S. E.P.A., 965 F.2d

759 (9th Cir. 1992), Nat. Res. Def. Council, Inc., v.

U.S. E.P.A., 966 F.2d 1292, 1297 (9th Cir. 1992)

(‘“NRDC IIT’), Nat. Res. Def. Council v. U.S. E.P.A.,

526 F.3d 591, 601 (9th Cir. 2008) (“NRDC IV’), have

similarly adopted a functional approach to jurisdic-

tion under subsection (F).

I depart ways with the lead opinion at the

breadth with which it reads Crown Simpson. As the

Ninth Circuit made clear in Northwest Environmen-

tal Advocates v. U.S. E.PA., “[t}he facts of [Crown

Simpson| make clear that the Court understood

functional similarity in a narrow sense.” 537 F.3d

1006, 1016 (9th Cir. 2008). The Supreme Court was

clearly concerned with a rigid construction of “issu-

ing or denying” given the factual circumstances of

Crown Simpson—i.e., had the EPA not delegated

California the authority to designate NPDES per-

mits, it would have had the power to grant or deny

permits directly (thus explaining the “perverse” re-

sult rationale). With this factual overlay, the Court’s

“precise effect” exception makes sense.

That exception simply does not apply here. We

have underscored that the text matters when inter-

preting the jurisdictional grant of § 1369(b)(1). See

Lake Cumberland Trust, Inc. v. U.S. E.P_A., 954 F.2d

1218, 1221—24 (6th Cir. 1992) (noting the textual dis-

tinctions between subsections (E) and (G) to find no

4la

jurisdiction). It is also not lost on me that National

Cotton itself purported to accentuate § 1369(b)(1)’s

narrowness. 553 F.3d at 933 (“Congress did not in-

tend court of appeals jurisdiction over all EPA ac-

tions taken pursuant to the Act.”). It stretches the

plain text of subsection (F) to its breaking point to

hold that a definition setting the Act’s boundaries

has, under Crown Simpson, the “precise effect” of or

is “functionally similar” to, approving or denying a

NPDES permit. At best, the Clean Water Rule is one

step removed from the permitting process. It in-

forms whether the Act requires a permit in the first

place, not whether the Agencies can (or will) issue or

deny a permit.

Two other points buttress my problem with ju-

risdiction here. First, the Clean Water Rule applies

across the entire Act, and not just with respect to the

NPDES permitting process. This is particularly true

when considering the fact that the Clean Water

Rule’s expansive definition also applies to the provi-

sion of the Act—§ 1344—requiring the Corps to issue

permits for dredged or fill material. Section 1344,

however, is not mentioned in subsection (F), only

§ 1342 is. Second, the Agencies’ own argument as to

why they contend the Clean Water Rule constitutes

“issuing or denying any permit” shows why there are

problems with extending jurisdiction to cover the

Clean Water Rule. By suggesting that the Clean

Water Rule identifies what waters will and will not

require permitting under NPDES, they have there-

fore identified situations—i.e., not waters of the

United States—where there would never be permit

decisions in the first place to be reviewed by the

courts of appeals. See Nw. Envtl. Advocates, 537

42a

F.3d at 1018; Friends of the Everglades, 699 F.3d at

1288.

Although not bound by Crown Simpson and the

other cases cited by the lead opinion, National Cotton

dictates my conclusion. There, we extended jurisdic-

tion under subsection (F) when a rule “regulates the

permitting procedures.” 553 F.3d at 933. At issue in

National Cotton was an EPA rule exempting certain

pesticides from the NPDES permitting requirements.

Id. at 929. In expanding subsection (F)’s jurisdic-

tional authorization, our court relied upon state-

ments by the Ninth Circuit in American Mining

Congress and NRDC III extending jurisdictional re-

view from the “issuance or denial of a particular

permit” to “the regulations governing the issuance of

permits” and the “rules that regulate the underlying

permit procedures.” Id. at 933 (citations omitted).

National Cotton’s jurisdictional reach, in my

view, has no end. Indeed, the lead opinion even

acknowledges that Nacional Cotton holds “a regula-

tion that imposes no restriction or limitation is re-

viewable in circuit court, so long as it affects permit-

ting requirements.” It is a broad authorization to the

courts of appeals to review anything relating to per-

mitting notwithstanding the statutory language to

the contrary.

Moreover, the Ninth Circuit has subsequently

rolled back the two cases relied upon by National

Cotton to broadly interpret subsection (F), American

Mining Congress and NRDC III. See Nw. Envil. Ad-

vocates, 537 F.3d at 1018. It also drew a line be-

tween statutory exemptions and permitting proce-

dures, noting that a regulation granting a statutory

exemption necessarily meant that the courts of ap-

43a

peals would “never have to consider on direct review

an action involving the denial of an NPDES permit

for pollutant discharges” and thus there was no dan-

ger of the “awkward[]” and bifurcated review prob-

lem described in NRDC I. Id. at 1018 (citation omit-

ted). The Eleventh Circuit, sitting en banc, has also

taken this tack. See Friends of the Everglades, 699

F.3d at 1288. It also directly criticized National Cot-

ton for expanding subsection (F) to apply to any

“regulations relating to permitting itself.” Id.

The lead opinion distinguishes Northwest Enut-

ronmental Advocates and Friends of the Everglades,

noting that those cases addressed permitting exemp-

tions. But so too did National Cotton. In my view,

the Ninth and Eleventh Circuit’s commentary re-

garding National Cotton and its undergirdings have

merit, especially considering subsection (F)’s plain

text and the factually narrow circumstances of

Crown Simpson and E.I. du Pont. These same rea-

sons lead me to conclude the lead opinion’s reliance

on a non-Clean Water Act case to support its policy

arguments, Florida Power & Light Co. v. Lorion, 470

U.S. 729 (1985), is unavailing.

Taking Nationui Cotton’s holding, as I must,

there is a better way to reconcile these authorities:

Permitting decisions under NPDES and exempting a

certain action from the NPDES permitting process

are functionally the same because both allow persons

to discharge pollutants into the waters of the United

States. Such actions, therefore, are reviewable un-

der subsection (F). That is not what we have here.

The Clean Water Rule presents neither a permitting

exemption (National Cotton) nor similar functional

equivalency (Crown Simpson) that any court has ap-

44a

proved to find jurisdiction proper under subsection

(F).

However, National Cotton goes further than just

finding jurisdiction in cases involving permitting ex-

emptions, and expands jurisdiction to review any

regulation “governing” permits. 553 F.3d at 933.

Although, in my view, the holding in National Cotton

is incorrect, this panel is without authority to over-

rule it. See Bennett v. MIS Corp., 607 F.3d 1076,

1095 (6th Cir. 2010) (“It is a well-established rule in

this Circuit that a panel of this court may not over-

rule a prior published opinion of our court absent en

banc review or an intervening and binding change in

the state of the law.”).2 Here, the Clean Water Rule

defines what waters necessarily require permits, and

therefore is undoubtedly a “regulation[] governing

the issuance of permits under section 402 [33 U.S.C.

§ 1342].” National Cotton, 553 F.3d at 933. Under

this binding authority, the lead opinion properly con-

cludes jurisdiction rests before us under subsection

(F).

For these reasons, I concur in the judgment, on-

ly.

2 That this action is before us upon consolidation by the Judi-

cial Panel on Multidistrict Litigation does not change this re-

sult, for we are to apply our law absent an indication that it is

“unique” and “arguably divergent from the predominant inter-

pretation of . . . federal law.” In re Cardizem CD Antitrust

Litig., 332 F.3d 896, 911 n.17 (6th Cir. 2003). Although I dis-

agree with National Cotton, I cannot conclude that it is unique

and diverges from the predominant view of the other circuits.

45a

IV.

In sum, I am compelled to find jurisdiction is

proper pursuant to National Cotton. Absent Nation-

al Cotton, I would dismiss the petitions for lack of ju-

risdiction.

DISSENT

KEITH, Circuit Judge, dissenting. I agree with

Judge Griffin’s reasoning and conclusion that, under

the plain meaning of the statute, neither subsection

(E) nor subsection (F) of 33 U.S.C. § 1369(b)(1) con-

fers original jurisdiction on the appellate courts.

Like Judge Griffin, I disagree with Judge McKeague.

Nevertheless, Judge Griffin concludes that original

jurisdiction lies in the appellate courts under this

court’s opinion in National Cotton Council of Am. v.

U.S. EPA, 553 F.3d 927 (6th Cir. 2009). I believe

Judge Griffin’s reading of that case is wrong.

In National Cotton, this court concluded that it

had original jurisdiction to review a rule that created

exemptions to the permitting procedures of the Clean

Water Act (the “Act”). 553 F.3d at 933. In holding

that jurisdiction was proper, the court reasoned that

“[t}he jurisdictional grant of [subsection (F)] author-

izes the court of appeals ‘to review the regulations

governing the issuance of permits .. . as well as the

issuance or denial of a particular permit.” Id. at 933

(quoting Am. Mining Cong. v. U.S. EPA, 965 F.2d

759, 763 (9th Cir. 1992)). Therefore, the court ex-

panded subsection (F) to cover rules that “regulate[]

the permitting procedures.” See id.; cf. 33 U.S.C.

§ 1369(b)(1)(F) (relating to administrative actions

46a

that “issufe] or deny[] any permit under section

1342”). I view this limited expansion of subsection

(F) as the holding of National Cotton.

By contrast, Judge Griffin contends that Nation-

al Cotton's holding expanded the scope of subsection

(F) to include anything “relating” to permitting pro-

cedures. While National Cotton expanded the scope

of subsection (F) to cover rules “regulating” or “gov-

erning’ permitting procedures, 653 F.3d at 933, it did

not expand that subsection to cover all rules “relat-

ing’ to those procedures, such as the one at issue

here—a rule that merely defines the scope of the

term “waters of the United States.” That a rule “re-

lates” to a permitting procedure does not mean that

it “regulates” or “governs” that procedure. Therein

lies the analytical fallacy in the concurrence. Simply

put, it cannot be that any rule that merely “relates”

to permitting procedures—-however tenuous, mini-

mal, or tangential that relation may be—confers

original jurisdiction upon this court under subsection

(F). This could not have been the intent of the legis-

lators who drafted seven carefully defined bases for

original jurisdiction in the appellate courts—and it

could not have been the intent of the National Cotton

court itself.

Admittedly, the National Cotton court could have

provided an explanation of what it meant by “regula-

tions governing the issuance of permits.” See 563

F.3d at 933. By not explaining this phrase, it invited

much speculation about the scope of subsection (F).

For example, the Eleventh Circuit in Friends of the

Everglades v. EPA, 699 F.3d 1280, 1288 (11th Cir.

2012), declined to extend the rationale and holding of

National Cotton because this court failed to provide a

better explanation of its reasoning. However, Na-

47a

tional Cotton's failure to define this phrase does not

mean that this phrase must encompass everything. |

am reluctant to read National Cotton in a way that

expands the jurisdictional reach of subsection (F) in

an all-encompassing, limitless fashion.

In sum, National Cotton’s holding is not as elas-

tic as the concurrence suggests. If this court con-

strues that holding to be so broad as to cover the

facts of this case, that construction brings subsection

(F) to its breaking point: a foreseeable consequence of

the concurrence’s reasoning is that this court would

exercise original subject-matter jurisdiction over all

things related to the Clean Water Act. Accordingly, I

respectfully dissent.

48a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: UNITED STATES DEPARTMENT OF DEFENSE AND

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY FINAL RULE: CLEAN WATER RULE:

DEFINITION OF “WATERS OF THE UNITED STATES,”

80 FED. REG. 37,054 (JUNE 29, 2015).

MURRAY ENERGY CORPORATION (15-3751); STATE OF

OHIO, ET AL. (15-3799); NATIONAL WILDLIFE FEDERA-

TION (15-3817); NATURAL RESOURCES DEFENSE COUN-

CIL, INC. (15-3820); STATE OF OKLAHOMA (15-3822);

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, ET AL. (15-3823); STATE OF NORTH DAKOTA,

ET AL. (15-3831); WATERKEEPER ALLIANCE INC., ET AL.

(15-3837); PUGET SOUNDKEEPER ALLIANCE, ET AL.

(15-3839); AMERICAN FARM BUREAU FEDERATION,

ET AL. (15-3850); STATE OF TEXAS, ET AL. (15-3853);

UTILITY WATER ACT GROUP (15-3858); SOUTHEASTERN

LEGAL FOUNDATION, INC., ET AL.

(15-3885); STATE OF GEORGIA, ET AL. (15-3887);

ONE HUNDRED MILES, ET AL. (15-3948); SOUTHEAST

STORMWATER ASSOCIATION, INC., ET AL. (15-4159);

MICHIGAN FARM BUREAU (15-4162); WASHINGTON

CATTLEMEN'S ASSOCIATION (15-4188); ASSOCIATION OF

AMERICAN RAILROADS, ET AL. (15-4211); TEXAS ALLI-

ANCE FOR RESPONSIBLE GROWTH, ENVIRONMENT, AND

TRANSPORTATION (15-4234); AMERICAN EXPLORATION

& MINING ASSOCIATION (15-4305); ARIZONA MINING

ASSOCIATION, ET AL. (15-4404),

Petitioners,

49a

UNITED STATES DEPARTMENT OF DEFENSE, DEPART-

MENT OF THE ARMY CORPS OF ENGINEERS AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

Nos. 15-3751 /3799/ 3817/

3820/ 3822/ 3823/ 3831/

3837/ 3839/ 3850/ 3853/ 3858/

3886/ 3887/ 3948/4159/ 4162/

4188/ 4211/ 4234/ 4305/ 4404

[Filed February 22, 2016]

Before: KEITH, McKEAGUE, and GRIFFIN, Circuit

Judges.

JUDGMENT

On Petitions for Review of Final Rule of the

United States Department of Defense and

United States Environmental Protection Agency.

Judicial Panel on Multi-District Litigation, No. 135.

THIS MATTER came before the court upon the

petitions for review by Petitioners and Intervenors

for review of the Clean Water Rule: Definition of

“Waters of the United States,” 80 Fed. Reg. 37,054

(June 29, 2015).

UPON FULL REVIEW of the record, the motions

to dismiss, and arguments of counsel,

50a

IT IS ORDERED, for the reasons more fully set

forth in the court’s opinions of even date, that all

pending motions to dismiss are DENIED.

ENTERED BY ORDER OF THE COURT

/s/

Deborah S. Hunt, Clerk

5la

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

IN RE: UNITED STATES DEPARTMENT OF DEFENSE AND

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY FINAL RULE: CLEAN WATER RULE:

DEFINITION OF “WATERS OF THE UNITED STATES,”

80 FED. REG. 37,054 (JUNE 29, 2015).

MURRAY ENERGY CORPORATION (15-3751); STATE OF

OHIO, ET AL. (15-3799); NATIONAL WILDLIFE FEDERA.

TION (15-3817); NATURAL RESOURCES DEFENSE COUN-

CIL, INC. (15-3820); STATE OF OKLAHOMA (15-3822);

CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA, ET AL. (15-3823); STATE OF NORTH DAKOTA,

ET AL. (15-3831); WATERKEEPER ALLIANCE INC., ET AL.

(15-3837); PUGET SOUNDKEEPER ALLIANCE, FT AL.

(15-3839); AMERICAN FARM BUREAU FEDERATION,

ET AL. (15-3850); STATE OF TEXAS, ET AL. (15-3853);

UTILITY WATER ACT GROUP (15-3858); SOUTHEASTERN

LEGAL FOUNDATION, INC., ET AL.

(15-3885); STATE OF GEORGIA, ET AL. (15-3887);

ONE HUNDRED MILES, ET AL. (15-3948); SOUTHEAST

STORMWATER ASSOCIATION, INC., ET AL. (15-4159);

MICHIGAN FARM BUREAU (15-4162); WASHINGTON

CATTLEMEN'S ASSOCIATION (15-4188); ASSOCIATION OF

AMERICAN RAILROADS, ET AL. (15-4211); TEXAS ALLI-

ANCF FOR RESPONSIBLE GROWTH, ENVIRONMENT, AND

TRANSPORTATION (15-4234); AMERICAN EXPLORATION

& MINING ASSOCIATION (15-4305); ARIZONA MINING

ASSOCIATION, ET AL. (15-4404),

Petitioners,

52a

UNITED STATES DEPARTMENT OF DEFENSE, DEPART-

MENT OF THE ARMY CORPS OF ENGINEERS AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

Nos. 15-3751 /3799/ 3817/

3820/ 3822/ 3823/ 3831/

3837/ 3839/ 3850/ 3853/ 3858/

3885/ 3887/ 3948/ 4159/ 4162/

4188/ 4211/ 4234/ 4305/ 4404

[Filed April 21, 2016]

Before: KEITH, McKEAGUE, and GRIFFIN, Circuit

Judges.

The court received six petitions for rehearing en

banc. The original panel has reviewed the petitions

for rehearing and concludes that the issues raised in

the petitions were fully considered upon the original

submission and decision of the cases. The

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.