# Petition for Writ of Certiorari — Nat'l Ass'n of Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017) (No. 16-299) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0700%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2017 ## 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, v. 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. ll 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; lV 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. Vv 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. vi 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 vl 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 ix 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 x 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 xi 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 xi 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: 2 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 3 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 4 (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 5 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- 6 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 7 (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 8 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. 9 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). 10 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. 11 “(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). 12 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 13 “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. 14 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. 15 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). 16 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. 17 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 18 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 19 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- 20 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). 21 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 22 “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 23 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 24 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 25 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. 26 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 27 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 28 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 29 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 30 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, 31 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 32 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. 33 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 la 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, Za v. 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. 3a 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 4a 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). 5a 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). 6a 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, (C) in promulgating any effluent standard, 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. 7a 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 8a 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- 9a 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 8a 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- 9a 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. I. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0700%3A02. Public record. Not legal advice.