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

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No. 16-299

In the Supreme Court of the Anited States

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

Vv.

U.S. DEPARTMENT OF DEFENSE,

DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, AND

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

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

BRIEF OF RESPONDENTS

AMERICAN FARM BUREAU FEDERATION ET

AL. IN SUPPORT OF THE PETITION

ELLEN STEEN

Counsel of Record

DANIELLE HALLCOM QUIST

American Farm Bureau

Federation

600 Maryland Ave. SW,

Suite 1000W

Washington, DC 20024

(202) 406-3616

ellens@fb.org

(Additional Counsel Listed on Signature Page)

QUESTION PRESENTED

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 rev.ew the waters of the United

States rule, even though the rule does not “issu[e] or

den[y] any permit” but instead defines the waters that

fall within Clean Water Act jurisdiction.

‘i

RULE 29.6 STATEMENT

The respondents filing this brief are:

American Farm Bureau Federation; American Pet-

roleum Institute; American Road and Transportation

Builders Association; Greater Houston Builders

Association; Leading Builders of America; Matagorda

County Farm Bureau; National Alliance of Forest

Owners; National Association of Home Builders;

National Association of Realtors; National Cattlemen’s

Beef Association; National Corn Growers Association;

National Mining Association; National Pork Producers

Council; National Stone, Sand and Gravel Association;

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

Poultry & Egg Association (petitioners below in No. 15-

3850).

Utility Water Act Group (petitioner below in No.

15-3858).

Florida Stormwater Association; and Southeast

Stormwater Association (petitioners below in No. 15-

4159).

CORPORATE DISCLOSURE STATEMENT

Respondents are not-for-profit advocacy groups.

They have no parent corporations and do not issue

publicly traded stock.

TABLE OF CONTENTS

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Corporate Disclosure Statement ......................... bea

a ncaissanlliniclil 2

Reasons for Granting the Petition.............................. 6

I. The Petition Presents A Recurring

Question That Causes Undue Delay And

Wastes Judicial And Party Resources. ................. 6

II. Section 1369(b)(1)(F) Does Not Authorize

Court Of Appeals Jurisdiction Over The

Challenges To The WOTUS Rule........................ 12

aN ES Re ea Ne LAER Re wae 14

1V

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. San Carlos Apache Tribe of Ariz.,

ces shhdentioniienetonnd 9

Burrage v. United States,

ee 13

Catskill Mountains Chapter of Trout

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

SL ES eR 11

Colo. River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) ....................... 9

Fla. Power & Light Co. v. Lorion,

RR SE Re 14

Friends of the Everglades v. EPA,

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

Georgia v. McCarthy, 2016 WL 4363130

SEE EG EE, GEE, SII cnciccrcenstacavescoucsescenessceserses 9

Loan Syndications & Trading Ass'n v. SEC,

ee Fe IE Gs BD ccccciseccccccccccccescecceess 13

National Cotton Council v. EPA,

663 F.3d 927 (6th Cir. 2009).............ccccccceccees 4,6,7

Regents of Univ. of Cal. v. Bakke,

| 12

Roll Coater, Inc. v. Reilly,

982 F.2d G68 (7th Cir. 1991).................ccccceseseceeseee 7

Statutes and Regulations

5 U.S.C.

| SOBEEESSEES AINA MRD Ses cee eee eRe aT 3,14

28 U.S.C

STITT sid sa taisihindladale nbemheilciiadininaneteanronlankieinbada 4

33 U.S.C.

EAR ORES RRs esta Beane Oey Pe a ee tor 3

SE STE eens cake LO eA eae 3

CRESS Esc SSE Aya ns Riaee Poe howe reeeeonaieee en wo 3

EES Rane Rane arenetr a: Aa Ree OPT 3, 12

| RCRSER a i ome e Plercenho 3

eis passim

Clean Water Rule: Definition of “Waters of

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

REE NEE AL SS SEE 4,13

Miscellaneous

EPA, Clean Water Rule Response to

Comments, available at

https://www.epa.gov/cleanwaterrule/

response-comments-clean-water-rule-

definition-waters-united-states ...............--.-.. 12, 13

vi

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,

ETS

BRIEF OF RESPONDENTS IN SUPPORT OF

THE PETITION

Respondents represent a broad swathe of the

national economy. Their members employ tens of

millions of people, own or operate tens of millions of

acres of land affected by the Waters of the United

States (““WOTUS’”) Rule, and, using that land, provide

food, fuel, housing, infrastructure, minerals, energy,

and forest products for the entire U.S. population, and

manage stormwater in the Southeastern States.!

These groups are respondents rather than

petitioners here solely because uncertainty over which

court has jurisdiction over their challenges to the

WOTUS Rule forced them to file protective petitions

for review in the court of appeals, in addition to the

(still pending) complaints that many of them filed in

district courts. Respondents fully agree with petitioner

National Association of Manufacturers (“NAM”) that

this Court should grant certiorari to reverse the Sixth

Circuit’s jurisdictional decision and end once and for

all the uncertainty that forced these multiple filings

and produced the unhelpful and fractured three-

opinion decision below.

— —

1 Respondents here are the American Farm Bureau Federation;

American Petroleum Institute; American Road and Transpor-

tation Builders Association; Greater Houston Builders

Association; Leading Builders of America; Matagorda County

Farm Bureau; National Alliance of Forest Owners; National

Association of Home Builders; National Association of Realtors;

National Cattlemen’s Beef Association; National Corn Growers

Association; National Mining Association; National Pork

Producers Council; National Stone, Sand and Gravel Association;

Public Lands Council; Texas Farm Bureau; U.S. Poultry & Egg

Association; Utility Water Act Group; Florida Stormwater

Association; and Southeast Stormwater Association.

2

Respondents adopt in full petitioner NAM’s

arguments and do not repeat them here. Instead,

respondents show why, from their perspective, this

Court’s immediate review is necessary.

STATEMENT

The petition presents a recurring question of sig-

nificant importance concerning the proper forum for

judicial review of Clean Water Act (““CWA” or “Act”)

regulations. As the petition explains, the Sixth Circuit

erred in exercising jurisdiction under 33 U.S.C.

§ 1369(b) over challenges to the regulation that

redefines the statutory phrase “waters of the United

States.” That error deepens a conflict among the

circuits that perpetuates uncertainty and will continue

to waste court and party resources. Petitioner also is

correct that additional litigation in the lower courts

will not refine the question presented by the petition.

Respondents are frequent litigants in CWA cases.

Because the Act can impose substantial civil and

criminal liability on industry, it is essential to

respondents and their members that CWA regulations

in fact comply with the CWA, the Administrative

Procedure Act (“APA”), and other governing laws.

Respondents have defended CWA regulations that

have satisfied these standards and have challenged

CWA regulations that have failed them.

The underlying regulation at issue here—the

WOTUS Rule—is one of the most consequential CWA

regulations ever promulgated. In the words of the U.S.

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

Army Corps of Engineers (together, “the agencies”), it

is “a national rule of unique importance, promulgated

after a massive rulemaking process.” Govt Br. 63,

Chamber of Commerce v. EPA, No. 16-5038 (10th Cir.

Aug. 19, 2016). If affirmed by the courts and enforced

3

by the agencies, the WOTUS Rule would vastly expand

the reach of the CWA in a manner that Congress never

intended and that this Court’s decisions prohibit.

Respondents therefore were intent on challenging the

Rule as soon as it was published in June of 2015.

Before respondents could file suit, however, they

faced a threshold jurisdictional quandary that they

have encountered before and will face again if this

Court does not take this opportunity, now, to resolve

the issue. Challenges to agency actions generally must

be brought in the district courts under the APA. 5

U.S.C. § 703. The CWA, however, vests exclusive

jurisdiction in the courts of appeals to review seven

enumerated actions of the EPA Administrator,

including actions “(E) in approving or promulgating

any effluent limitation or other limitation under

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

(F) in issuing or denying any permit under section

1342 of this title.” 33 U.S.C. § 1869(b)(1)(E)-(F). For

reasons explained in the petition and below,

respondents do not believe that the WOTUS Rule falls

within Section 1369(b); they believe that jurisdiction

over challenges to the WOTUS Rule instead lies in the

district courts under the APA.

Many respondents here filed APA actions in the

Southern District of Texas and Northern District of

Florida challenging the WOTUS Rule, which remain

pending. Am. Farm Bureau Fed’n v. EPA, No. 3:15-cv-

165 (S.D. Tex.); Southeast Stormwater Ass’n v. EPA,

No. 4:15-cv-579 (N.D. Fla.). Scores of other litigants—

including state, municipal, industry, and environ-

mental plaintiffs—shared respondents’ jurisdictional

beliefs and filed more than a dozen other district court

actions under the APA. See Pet. 8 n.1 (listing cases).

4

In light of the circuit conflict on the issue, and

ambiguous language in the preamble to the WOTUS

Rule, respondents and other plaintiffs feared that some

courts might find that exclusive jurisdiction lay in the

courts of appeals under Section 1369(b). As the

agencies admitted when issuing the WOTUS Rule,

“courts have reached different conclusions on the types

of actions that fall within section [1369].” 80 Fed. Reg.

37054, 37104 (June 29, 2015). Importantly, if courts

were to rule that exclusive jurisdiction lay in the courts

of appeals under Section 1369(b), then petitions for

review had to be filed in the courts of appeals within

120 days of the issuance of the final rule. See 33 U.S.C.

§ 1369(b)(1).

By late July 2015, at least twelve petitions for

review had been filed in multiple courts of appeals. The

Judicial Panel of Multidistrict Litigation (“JPML”)

randomly consolidated those petitions before the Sixth

Circuit. See 28 U.S.C. § 2112(a)(3); Consolidation

Order, MCP No. 135 (@J.P.M.L. July 28, 2015).

Thereafter, additional petitions for review were filed in

the Sixth Circuit. Respondents here all filed protective

petitions for review. Pets. for Review, No. 15-60509

(5th Cir. July 24, 2015) (UWAG); No. 15-3850 (6th Cir.

Aug. 6, 2015) (AFBF et al.); No. 15-4159 (6th Cir. Oct.

26, 2015) (Southeast Stormwater Ass'n et al.).

The JPML’s consolidation order aggravated

respondents’ jurisdictional concerns because the Sixth

Circuit had previously given expansive scope to Section

1369(b) in National Cotton Council v. EPA, 553 F.3d

927 (6th Cir. 2009), the decision that the Eleventh

Circuit criticized and rejected in Friends of the

Everglades v. EPA, 699 F.3d 1280 (11th Cir. 2012). See

Pet. 20-22.

5

The petitions to the appellate courts explained that

respondents “believe that jurisdiction to review the

[WOTUS] Rule lies properly and exclusively in the

district courts” and that respondents filed the petitions

“solely to preserve their rights.” AFBF et al. Pet. for

Review at 1-2; see also UWAG Pet. for Review at 3-4.

Petitioner NAM intervened as a respondent in the

Sixth Circuit. Motion to Intervene, No. 15-3850 (6th

Cir. Aug. 11, 2015). The American Farm Bureau

Federation respondents, joined by petitioner, then

jointly moved to dismiss the petitions for review for

lack of jurisdiction. See Joint Motion to Dismiss, No.

15-3751 (6th Cir. Oct. 2, 2015). Many other petitioners

in the Sixth Circuit likewise moved to dismiss their

own and other petitions for lack of jurisdiction. See,

e.g., Intervenor UWAG Motion to Dismiss, No. 15-3751

(6th Cir. Oct. 2, 2015).

Respondents have spent the last year embroiled in

litigation over this jurisdictional issue. Respondents

have filed motions to dismiss, reply briefs, and a

petition for rehearing in the Sixth Circuit. Some have

filed amicus briefs in other courts of appeals seeking to

overturn dismissals of district court complaints—

including dismissals that relied on the Sixth Circuit’s

erroneous decision here. See Br. Amicus Curiae of Am.

Farm Bureau Fed’n et al., Georgia v. McCarthy, No. 15-

14035 (11th Cir. Sept. 22, 2015); Br. Amicus Curiae of

Am. Farm Bureau Fed'n et al., Chamber of Commerce

v. EPA, No. 16-5038 (10th Cir. July 8, 2016). Some

respondents also have opposed agency motions to

dismiss, for lack of jurisdiction, their APA lawsuits in

the district courts. See Opp. to Motion to Dismiss, Am.

Farm Bureau Fed’n v. EPA, No. 3:15-cv-165 (S.D. Tex.

May 13, 2016); Order, id. (S.D. Tex. May 18, 2016)

(taking motion under advisement).

6

Well more than a year has passed since

respondents here filed district court actions and/or

petitions for review. Yet neither we nor any other party

has yet filed any brief in any court presenting the

merits of the challenges to the WOTUS Rule.?

REASONS FOR GRANTING THE PETITION

l. The Petition Presents A Recurring Question

That Causes Undue Delay And Wastes Judicial

And Party Resources.

1. The courts of appeals are in disarray in their

interpretations of Section 1369(b). There is an

acknowledged conflict between the Sixth and Eleventh

Circuits. See Friends of the Everglades, 699 F.3d at

1287-1288 (rejecting the Sixth Circuit’s analysis in

National Cotton and holding that the Eleventh Circuit

lacked original jurisdiction to review EPA’s water

transfers rule); see also 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, 43 Envtl. L. 767, 767 (2013) (“Circuits are split on

the scope of the CWA’s direct judicial review pro-

vision”).

The law is also muddled within circuits. For

example, “the Ninth Circuit is split both with other

circuits, and within itself, on the issue of whether the

courts of appeals have jurisdiction to review underlying

2 The Sixth Circuit suspended the schedule for merits briefing

described in the petition until the court resolved pending motions

to complete the administrative record. The Sixth Circuit has now

issued a new briefing schedule under which opening briefe will be

filed on November 1, 2016, and briefing will be complete on March

8, 2017. Case Mgt. Order No. 4 (6th Cir. Oct. 6, 2016).

7

NPDES regulations pursuant to section 509(b)(1)(F).”

LaPlante et al., supra, 43 Envtl. L. at 816.

The Sixtu Circuit panel’s 1-1-1 decision evidences

the confusion. While recognizing that the WOTUS Rule

does not fall within the text of Section 1369(b)(1)(F),

Judge McKeague claimed that the Sixth Circuit

nevertheless could exercise jurisdiction under case law

including National Cotton, which he viewed as

correctly decided. Pet. App. 17a-24a. Judge Griffin

would have held that the court lacks jurisdiction under

Section 1369(b)(1\(F), but he ruled that he was

compelled to exercise jurisdiction under National

Cotton, which he explained was incorrectly decided. Id.

at 38a-45a. Judge Keith agreed with Judge Griffin that

the Sixth Circuit lacked jurisdiction, but he would have

found National Cotton distinguishable. Id. at 45a-47a.

Each judge’s reading of the same statute and case

law thus differed from the next. That result provides

no guidance for future cases. And it provides no

comfort in this case, because it raises the distinct

possibility that, if the case now proceeds to a merits

decision in the Sixth Circuit, millions of dollars and

months of time could be expended by the parties and

the court to no effect if the jurisdictional ruling is

subsequently reversed en banc or by this Court.

Given the lack of clarity across and within circuits

on the threshold issue of jwrisdiction, the Seventh

Circuit has identified the only sound strategy for

litigants seeking to challenge a CWA regulation:

“careful counsel must respond * * * by filing buckshot

petitions” in both the district courts and courts of

appeals. Roll Coater, Inc. v. Reilly, 932 F.2d 668, 671

(7th Cir. 1991). The federal agencies have agreed,

recently telling the Tenth Circuit that “[gliven un-

certain jurisdiction fover challenges to the WOTUS

8

Rule], it made sense for Plaintiffs to file in two courts

to preserve a forum for their claims.” Gov't Br. 24,

Chamber of Commerce v. EPA, No. 16-5038 (10th Cir.

Aug. 19, 2016). That perverse state of affairs is now the

norm in CWA litigation. Challengers routinely file two

actions—one in the district court under the APA, one

in the court of appeals under Section 1369(b)—to

obtain judicial review of a single CWA regulation. See

Pet. 25 n.7 (citing cases). And before either court can

address the merits, both must decide which has

jurisdiction to proceed.

The end result often turns on which circuit wins

the JPML consolidation lottery. In the case challenging

EPA’s water transfers rule, the JPML consolidated the

petitions before the Eleventh Circuit, which dismissed

the challenges for lack of jurisdiction. See Friends of

the Everglades, 699 F.3d at 1285. Here, the JPML con-

solidated the petitions before the Sixth Circuit, which

held that it had jurisdiction under Section 1369(b).

Consolidation Order, MCP No. 135 (J.P.M.L. July 28,

2015). The same petitions could very well have been

consolidated before the Eleventh Circuit, where two

petitions were pending when the JPML ordered con-

solidation. See id. at 2. Had the JPML ordered consoli-

dation before the Eleventh Circuit, that court

undoubtedly would have dismissed the petitions for

lack of jurisdiction, based on circuit precedent, and the

agencies would now be seeking this Court’s review, just

as they did in Friends of the Everglades (No. 13-10).

Jurisdiction here was decided by a turn of the JPML

wheel.

2. This jurisdictional morass is costly for everyone.

The 100 petitioners before the Sixth Circuit have

litigated the issue of jurisdiction over challenges to the

WOTUS Rule not only before that court, but also before

9

the Tenth Circuit, the Eleventh Circuit, and over a

dozen district courts throughout the Nation.

The courts, too, have suffered from a lack of juris-

dictional clarity. Apart from the Sixth Circuit’s sharply

divided 1-1-1 decision, four district courts have reached

incongruous determinations on their jurisdiction under

the APA. See Pet. 9, 13. The Eleventh Circuit has

published an opinion explaining why it is currently

abstaining under Colorado River from deciding the

issues—an erroneous decision that only kicks the can

down the road. See Georgia v. McCarthy, 2016 WL

4363130 (11th Cir. Aug. 16, 2016) (per curiam).’ And

the Tenth Circuit is scheduled to hear oral argument

on the same question in November 2016. See Order,

Chamber of Commerce v. EPA, No. 16-5038 (10th Cir.

Sept. 19, 2016).

Meanwhile, no court has yet received a single brief

on the merits of the challenges to the June 2015

WOTUS Rule.

3. Any delay of this Court's resolution of the

question presented by the petition will inflict

additional harm with no corresponding benefits. The

agencies have argued that the Sixth Circuit’s

jurisdictional decision is “as clear and final as

8 Federal courts may abstain under Colorado River only when

state courts are exercising “concurrent jurisdiction.” Colo. River

Water Conservation Dist. v. United States, 424 U.S. 800, 818

(1976). But there are no relevant state court proceedings here. Nor

are the Sixth Circuit and district courts exercising “concurrent”

jurisdiction. Either the Sixth Circuit has jurisdiction under

Section 1369(b), or the district courts have jurisdiction under the

APA; “both” is not a possible answer. The Eleventh Circuit should

have decided where jurisdiction properly lies. See Arizona v. San

Carlos Apache Tribe of Ariz., 463 U.S. 545, 559-560 (1983)

(abstention under Colorado River is “improper” if jurisdiction is

not “concurrent’).

10

possible,” and conclusive “barring intervention by the

Supreme Court.” Govt Br. 21-22, 36, Chamber of

Commerce v. EPA, No. 16-5038 (10th Cir. Aug. 19,

2016). If that is so, then future proceedings on the

merits in the Sixth Circuit will not shed additional

light on the court’s jurisdiction.

Nor will further proceedings in the APA actions

add clarity. After hearing oral argument in November,

the Tenth Circuit must either pick a side in the

already-mature debate or, like the Eleventh Circuit,

decide not to decide just yet. Neither of those outcomes

will establish whether the Sixth Circuit has juris-

diction under Section 1369(b). The same is true for all

district courts that have not yet resolved their

jurisdiction, including the Texas and Florida district

courts in which respondents’ challenges are pending.

The arguments for and against jurisdiction under

Section 1369(b) have been fully developed and aired in

the lower courts. The disagreement among the lower

courts has been acknowledged by the Eleventh Circuit,

the Sixth Circuit, and the Solicitor General; the issue

is ripe for this Court’s review.

Until this Court intervenes, a cloud of juris-

dictional doubt will hover over all court decisions on

the WOTUS Rule challenges. If the Sixth Circuit were

to reach the merits, some party will lose on some issue.

That party could then petition for rehearing or

certiorari and contest the Sixth Circuit’s jurisdiction. If

future jurisdictional challenges are successful, they

will wipe away all Sixth Circuit orders, rendering all

proceedings from this point forward for naught. There

is no need to inflict these additional, avoidable costs on

the Sixth Circuit and the parties when this Court can

answer the question now.

11

4. Given the WOTUS Rule’s “unique importance”

(Gov't Br. 63, Chamber of Commerce v. EPA, No. 16-

5038 (10th Cir. Aug. 19, 2016)), the costs and

uncertainties in this case alone are sufficiently weighty

to grant certiorari. But the concerns raised here extend

beyond the challenges to the WOTUS Rule.

The same jurisdictional issue continues to plague

the litigation over the challenges to EPA’s water

transfers rule, which was issued in 2008. The Eleventh

Circuit in Friends of the Everglades rejected EPA’s

argument that Section 1369(b)(1)(F) “appl[ies] to any

‘regulations relating to permitting” and thus dismissed

the challenges to the water transfers rule for lack of

jurisdiction. 699 F.3d at 1288. The same challenges are

now before the Second Circuit on appeal from the APA

decision in Catskill Mountains Chapter of Trout

Unlimited, Inc. v. EPA, 8 F. Supp. 3d 500 (S.D.N-Y.

2014). If Judge McKeague is right that the courts of

appeals have exclusive jurisdiction under Section

1369(b)(1)(F) to review any regulation that “impact/[s}

permitting requirements” (Pet. App. 18a), then the

Eleventh Circuit erred in Friends and the Second

Circuit lacks subject matter jurisdiction in Catskill

Mountains.

EPA has argued to the Second Circuit that it is

collaterally estopped from contesting that court’s

jurisdiction because of its participation in Friends of

the Everglades. See EPA Br. 3-4 & n.2, Catskill

Mountains Chapter of Trout Unlimited, Inc. v. EPA,

No. 14-1823 (2d Cir. Sept. 11, 2014). We doubt that

absolves a court of its duty to determine whether it has

subject matter jurisdiction. But, in any event, there are

many appellants (e.g., the Arizona Department of

Water Resources) and appellees (e.g., Catskill

Mountains Chapter of Trout Unlimited, Inc.) in

Catskill Mountains that are not bound by Friends of

12

the Everglades. Any party aggrieved by the Second

Circuit’s merits ruling—or, indeed, any amicus curiae

in the case—could seek a jurisdictional ruling on

rehearing or certiorari. See Regents of Univ. of Cal. v.

Bakke, 438 U.S. 265, 280 n.14 (1978) (“amici[’s]”

challenges to “jurisdiction * * * must be considered”).

Until this Court resolves the issue, the uncer-

tainties over the scope of Section 1369(b) will continue

to beleaguer challenges to the WOTUS Rule, the water

transfers rule, and future CWA rulemakings. The

substantial public and private costs of the current

uncertainty will continue to accrue. This Court can,

and should, put an end to this waste by granting the

petition for certiorari now.

II. Section 1369(b)(1)(F) Does Not Authorize Court

Of Appeals Jurisdiction Over The Challenges

To The WOTUS Rule.

The petition convincingly demonstrates that the

agencies have badly misinterpreted Section 1369-

(b)(1)(F), as two members of the Sixth Circuit panel

agreed. Pet. 14-20. Respondents fully concur with

petitioner's arguments and will not burden the Court

by repeating them here. We offer two additional

observations.

1. While the WOTUS Rule might affect when

Section 1342 permits are or are not required, the Rule

is not an “Administrator’s action * * * in issuing or

denying any permit under section 1342,” which is the

only action to which Section 1369(b)(1)(F) applies. The

agencies admitted as much throughout the rulemaking

process, when they repeatedly described the WOTUS

Rule as merely “definitional.” See, e.g., Clean Water

Rule Response to Comments—Topic 8: Tributaries at

252 (“The agencies further note that the final rule is

solely a definitional rule, and specific implementation

13

of permitting programs, including the CWA NPDES

program, are beyond the scope of the rule.”); id. at 510

(“The final rule does not establish any regulatory

requirements. Instead, it is a definitional rule * * *.”);

80 Fed. Reg. at 37054 (same).4 The agencies were

correct when they made these admissions during the

rulemaking and should not be permitted to contradict

them now in litigation.

2. The agencies contended, in their recent Tenth

Circuit brief, that Section 1369(b) should be

interpreted “pragmatically.” Gov't Br. 39, Chamber of

Commerce v. EPA, No. 16-5038 (10th Cir. Aug. 19,

2016). In support of this argument that the text of the

statute should be ignored in favor of reaching a result

that the agencies prefer, the agencies reasoned that

Section 1369(b) is “a ‘poorly drafted and astonishingly

imprecise statute” and that “Congress did not

anticipate the myriad kinds of regulatory actions that

would be necessary to administer the Act’s limitations

and permitting programs.” IJbid. The agencies’

reasoning, however, provides no support for the

exercise of original and exclusive jurisdiction under

Section 1369(b).

“The role of [courts] is to apply the statute as it is

written—even if [they] think some other approach

might accor[d] with good policy.” Burrage v. United

States, 134 S. Ct. 881, 892 (2014). That is especially

true for questions of subject-matter jurisdiction. A

court of appeals only has “jurisdiction to hear petitions

for direct review of agency action when Congress says

so.” Loan Syndications & Trading Ass'n v. SEC, 818

F.3d 716, 718 (D.C. Cir. 2016). “Whether initial

4 The agencies’ Response to Comments is available at

https://www.epa.gov/cleanwaterrule/response-comments-clean-

water-rule-definition-waters-united-states.

14

subject-matter jurisdiction lies initially in the courts of

appeals must of course be governed by the intent of

Congress and not by any views we may have about

sound policy.” Fla. Power & Light Co. v. Lorion, 470

U.S. 729, 746 (1985).

Congress specified in Section 1369(b) that only

seven narrow categories of EPA actions are to be

reviewed directly by the courts of appeals. By no

stretch of the imagination can these facial challenges

to the WOTUS Rule be said to fall under any of those

seven categories, including paragraphs (E) or (F), as

the petitioner and two panel members below cogently

explained. And no amount of argument that court of

appeals review is supposedly more “pragmatic” can

overcome the fact that the plain text of Section 1369(b)

does not fit these challenges to the Rule. As the

petitioner has explained (Pet. 28-31), there are plenty

of reasons to believe that district court APA review is

in fact the more “pragmatic” approach. But when the

statute is this clear on its face, there is no need for the

Court to engage in that inquiry: the statute controls

until Congress amends it.

Applying the plain text of the CWA, the Sixth

Circuit lacked jurisdiction to review the Rule.

Jurisdiction lies exclusively in the district courts under

the APA. See 5 U.S.C. § 703. The Court should grant

certiorari to restore Congress’s intent when it enacted

Section 1369(b).

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.

STACY LINDEN

American Petroleum

Institute

1220 L Street NW

Washington, DC 20005

(202) 289-4434

THOMAS J. WARD

National Association of

Home Builders of the

United States

1201 15th Street NW

Washington, DC 20005

(202) 266-8230

SCOTT YAGER

National Cattlemen's Beef

Association

1275 Pennsylvania Ave.

NW, Suite 801

Washington, DC 20004

(202) 879-9102

15

ELLEN STEEN

Counsel of Record

DANIELLE HALLCOM QUIST

American Farm Bureau

Federation

600 Maryland Ave. SW,

Suite 1000OW

Washington, DC 20024

(202) 406-3616

ellens@fb.org

NICK GOLDSTEIN

American Road &

Transportation

Builders Association

1219 28th Street NW

Washington, DC 20007

(202) 289-4434

WILLIAM R. MURRAY

National Alliance of

Forest Owners

122 C Street NW,

Suite 630

Washington, DC 20001

(202) 747-0742

AMANDA E. ASPATORE

National Mining

Association

101 Constitution Ave. NW,

Suite 500 East

Washington, DC 20001

(202) 463-2646

MICHAEL C. FORMICA

National Pork Producers

Council

122 C. Street NW,

Suite 875

Washington, DC 20001

(202) 347-3600

KRISTY A.N. BULLEIT

ANDREW J. TURNER

KARMA B. BROWN

16

JAMES T. RILEY

National Stone, Sand &

Gravel Association

1605 King Street

Alexandria, VA 22314

(703) 526-1084

MOHAMMAD 0. JAZIL

DAVID W. CHILDS

BROOKE E. LEWIS

Hunton & Williams LLP Hopping Green & Sams,

2200 Pennsylvania Avenue PA.

NW 119 South Monroe Street,

Washington, DC 20037 Suite 300

(202) 955-1500 Tallahasee, FL 32301

Counsel for the Utility (850) 425-7500

Water Act Group Counsel for the Southeast

Stormwater Association

and Florida Stormwater

Association

Counsel for Respondents

OCTOBER 2016