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

IN THE

Suprene Court of the United States

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

Vv.

DEPARTMENT OF DEFENSE, et al.

Reapondents.

On Writ of Certiorari

to the United States Court of Appeals

For the Sixth Circuit

BRIEF OF RESPONDENTS

NATURAL RESOURCES DEFENSE COUNCIL

AND NATIONAL WILDLIFE FEDERATION

SUPPORTING AFFIRMANCE

Catherine Mariantes Rahm Eric F. Citron

Jennifer A. Sorenson Counsel of Record

Jon P. Devine, Jr. GOLDSTEIN &

NATURAL. RESOURCES RUSSELL, P.C.

DEFENSE COUNCIL 7475 Wisconsin Ave.

40 W. 20th St. Suite 850

New York, NY 10011 Bethesda, MD 20814

(212) 727-2700 (202) 362-0636

ec@goldsteinrussell.com

eee

Wison-Eres Printinc Co..twc. - (202)768-0096 — Wasrunaron, 0. C. 20002

QUESTION PRESENTED

Whether the Court of Appeals has original

jurisdiction under 33 U.S.C. §1369(bX1) over a

petition for review challenging a regulation that

defines the scope of the term “waters of the United

States” in the Clean Water Act.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...............:.ccccsscerececssscereeeences i

Ber I oncccncccccscccccceecssescesnscvecenses ili

BRIEF OF RESPONDENTS .........0..........ccccccccceeeeeeeees 1

STAT CO Be CRT. 0.0...ccccncceese .c00e0s..-escccceces 3

ee = —(“<Cti‘(‘éCS OC SESSSSEEESERERCOMESECOPESD MOMS OOO CONS 3

ns ie ceili carieatianieniiiiaiin 6

Ill. Challenges to the Rule .....................ccccecccceeeeeeeees 8

SUMMARY OF THE ARGUMENT .........0................ 11

(SESE Seen Oem ee 14

I. Petitioner's Premises, If Accepted, Would

Suggest That It Lacks Any Justiciable

Challenge To The Clean Water Rule................ 18

Il. Petitioner’s Allegations In District Court

Reveal That Its Challenge Is Covered By

IIIT ints oie nodsedinaieensabennnmanniniioahpehoameditel 24

Ill. Petitioner's Rule Does Not Provide The

Clarity It Promises, And Leads To

Rs Se eee 27

ink itn cceliininsiniasmencageabeipidanneimanebsegeines 31

iil

TABLE OF AUTHORITIES

Cases

Ariz. Christian Sch. Tuition Org. v. Winn,

te sanemenenenniionsess 19

Bennett v. Spear,

EEE Ronan ae 18, 20, 22

Camreta v. Green,

I eeeemni 19, 22

Crown Simpson Pulp Co. v. Costle,

I I soccnccscccccnsscessovesccnceees 1, 11, 15-16

Decker v. Nw. Envtl. Def. Ctr.,

I 14

EI. du Pont de Nemours & Co. v. Train,

EE 1,15

Gardner v. Toilet Goods Assn., Inc.,

Te ee 23

Lujan v. Defenders of Wildlife,

Te 18, 22

Lujan v. Nat'l Wildlife Fed’n,

I lemeseeieine 22

Nat'l Park Hospitality Ass’n v. Dep't of Interior,

EEE ER 18

NRDC v. EPA,

es CP. BIIID ccccccoscnscscnncccsstscnseceserss 1

Parr v. United States,

EE ee ee 19

Rapanos v. United States,

mses 5-6

Solid Waste Agency of Northern Cook County

(SWANCC) v. U.S. Army Corps of Engineers,

SEES SR SEE 5-6

iv

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

I i cia ccentsmnntasieneceincnnsens 20, 22

United States v. Riverside Bayview Homes,

I cirncnibubamanniile 5

Statutes

| 8 SEES SEI NCI SSS Sea CaO O AR RO ane He 22

ESTES HPSS Oe Om See eRe a 18, 22

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

TTR ETL TC ERT 3

STE IIE RRND SO eI ao nA Be passim

Ie a EE 4,8,9,11,14

I os nccsccusesaneedioneanncenanes 3, 8, 17, 24

i asi aiccsctctemeenanianiediddteaniie 4,8

Be ey IE vv cnvcccccncaseresunsen ciniumeocente passim

8 14, 30

Regulations

I ceasnsnpeiunntnnnnetio’ 5

ee ss csccccntccrersesscnsecentavenesecssoen 4

a senlisedneananneings 5

i edeiaranseaie 4

EE RSENS A Ce 21

Other Authorities

38 Fed. Reg. 13,528 (May 22, 1973)................22c0cceeeeeees 4

45 Fed. Reg. 33,290 (May 19, 1980)..................:::00.cseeee 5

47 Fed. Reg. 31,794 (July 22, 1982) ......0.0......ceeceeeeeeeeeee 5

79 Fed. Reg. 22,188 (April 21, 2014)............000..0ee 7

80 Fed. Reg. 37,054 (June 29, 2015)................... passim

S. Conf. Rep. No. 92-1236 (1972).................sssessssseseeoeere 3

BRIEF OF RESPONDENTS

Respondents Natural Resources Defense Council

(NRDC) and National Wildlife Federation (NWF)

agree with the judgment below and the result urged

by the federal respondents. The simplest resolution of

this matter is to recognize that if a Clean Water Act

rule enacted by the Administrator has the effect of

approving effluent or other limitations on regulated

parties under 33 U.S.C. §1311, then challenges to

such a rule must be brought in the courts of appeals

under 33 U.S.C. §1369(b\(1)(E). The Clean Water

Rule at issue here qualifies: In enacting the Rule, the

Administrator approved effluent limitations and

other limitations on dischargers by specifying where

the limitation in section 1311(a)—prohibiting any

discharges except as in compliance with the Act—

shall apply. See Clean Water Rule: Definition of

“Waters of the United States,” 80 Fed. Reg. 37,054

(June 29, 2015). Accordingly, challenges to the Clean

Water Rule must be brought in the courts of appeals,

and this Court should affirm.

This result follows directly from section 1369 and

this Court’s precedents, which have analyzed the

practical “effect[s] of [the agency’s] action” rather

than attaching a formalistic label to the relevant

rule. See Crown Simpson Pulp Co. v. Costle, 445 U.S.

193, 196-97 (1980) (per curiam); E.J. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 136 (1977); see

also NRDC v. EPA, 673 F.2d 400, 405 (D.C. Cir.

1982) (Ginsburg, J.) (explaining that section 1369

should be given a “practical rather than a cramped

construction”). Because these points are elucidated in

the decision below and similar positions are likely to

be addressed at length in the government’s briefing,

2

however, we try not to repeat such arguments in

detail here.

Instead, this brief addresses a key flaw in

petitioner's attempt to obscure the applicability of

section 1369(b\(1) by describing the Clean Water

Rule as devoid of “limitations.” That framing of the

Rule raises justiciability concerns, as it calls into

question petitioner’s standing to challenge the Rule

in its separate district court action under the

Administrative Procedure Act. If, as petitioner says,

the Rule “does not establish any regulatory

requirements,” “imposes no enforceable duty” on its

members, and is “not a ‘limitation’ in any ordinary

sense of the word,” Pet. Br. 28-29 (quoting, in part, 80

Fed. Reg. 37,054, 37,102), then petitioner has no (1)

standing to bring (2) a ripe challenge to (3) final

agency action under the APA. As we will explain, if

petitioner’s district court challenge to the Rule were

not justiciable, then petitioner would also lack

standing to maintain its petition for certiorari. That

means, in turn, that this Court cannot accept

petitioner’s premise about the effects of the Clean

Water Rule and still have its own jurisdiction to

grant petitioner the judgment it seeks.

Ultimately, justi:iability issues pose no obstacle

to the Court’s review, however. The Rule has

immediate effects on petitioner and other parties, as

petitioner itself alleged in its district court action.

Petitioner told the district court that it has standing

to challenge the Rule on behalf of its members

because “the Rule requires members of the Plaintiffs

either to alter their activities to avoid discharges ...

or to obtain permits when previously they would not

have had to.” See S.D. Tex. No. 15-cv-165, Dkt. 1

3

(Complaint filed July 2, 2015) (“Tex. Compl.”) at 14,

938 (emphasis added). Likewise, the only injury

petitioner seeks to redress through vacatur of the

Rule is the Rule’s imposition of these limitations on

what petitioner's members can do with respect to

water bodies the Rule identifies as “waters of the

United States.” See id.

An honest examination of the Clean Water Rule’s

impacts shows that it is an agency action approving

limitations on regulated parties—indeed, that is the

whole reason petitioner wants to challenge it.

Petitioner obscures that reality only by failing to

concretize—at least in this proceeding—the injuries

it believes the Rule causes. Discussing these issues

helps clear away the confusion created by petitioner’s

brief. And once that is done, the application of section

1369(b)(1) to this case is straightforward.

STATEMENT OF THE CASE

L. The Clean Water Act

Congress enacted the Clean Water Act in 1972 to

restore and protect the “chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§1251(a). The Act applies a suite of pollution-control

and cleanup measures to “navigable waters,” which

Congress defined as “the waters of the United

States.” Id. §1362(7). Congress recognized that these

protections would not achieve the Act’s goals if

applied only to navigable-in-fact and interstate

waters. Congress thus defined “navigable waters”

broadly; the Senate Conference Report stated that

the conferees intended “navigable waters” to be given

“the broadest possible constitutional interpretation.”

S. Conf. Rep. No. 92-1236, at 144 (1972).

4

The Act’s core protection against water pollution

limits “the discharge of any pollutant by any person”

by prohibiting such discharges “lelxcept as in

compliance with this section and section 1312, 1316,

1317, 1328, 1342, and 1344 of this title.” 33 U.S.C.

§1311(a). Congress applied this protection to “waters

of the United States” by defining “discharge of a

pollutant” to include “any addition of any pollutant to

navigable waters.” Jd. §1362(12). This is the engine

that drives the Act. For example, section 1311(a)

prohibits many discharges into waters of the United

States absent a National pollutant discharge

elimination system (NPDES) permit under section

1342. And an NPDES permit in turn must

incorporate limitations that appear throughout the

Clean Water Act and EPA regulations regarding

effluents, toxic pollutants, water quality standards,

industry-specific control technologies, and the like.

See, e.g., 40 C.F.R. pt. 122, subpart C; 40 C.F.R.

§122.44 (requiring in particular taat NPDES permits

contain applicable effluent limitations). Thus, many

limitations, including effluent limitations, are applied

to parties only through the limitation in section

1311(a) and the NPDES permitting process.

EPA issued rules in 1973 covering a wide range

of waters as “waters of the United States,” including

many that were not navigable-in-fact. 38 Fed. Reg.

13,528, 13,529 (May 22, 1973). By 1982, both EPA

and the Army Corps of Engineers had issued

regulations defining “waters of the United States,”

and these remained largely unchanged until the

agencies adopted the Clean Water Rule in 2015.

Those previous regulations covered navigable-in-fact

waters, interstate waters, the territorial seas,

5

impoundments of waters of the United States,

tributaries, wetlands adjacent to waters of the United

States, and all other waters “the use, degradation, or

destruction of which would affect or could affect

interstate or foreign commerce.” 40 C.F.R. $122.3

(1981), 45 Fed. Reg. 33,290, 33,424 (May 19, 1980);

see also 33 C.F.R. §323.2 (1983), 47 Fed. Reg. 31,794,

31,810 (July 22, 1982).

In 1985, this Court endorsed a broad reading of

the phrase “waters of the United States,”

unanimously upholding the Corps’ application of the

Act to adjacent wetlands. See United States v.

Riverside Bayview Homes, 474 U.S. 121, 139 (1985).

The Court observed that excluding wetlands from the

definition of “waters of the United States” would not

do justice to “the realities of the problem of water

pollution that the Clean Water Act was intended to

combat.” Id. at 132.

In the early 2000s, this Court rendered two

additional decisions considering the extent of the

Clean Water Act. In Solid Waste Agency of Northern

Cook County (SWANCC) v. U.S. Army Corps of

Engineers, the Court ruled that the agencies’

“Migratory Bird Rule,” which interpreted the

agencies’ regulations to protect waters used by

migratory birds, was not authorized under the Act

when applied to “an abandoned sand and gravel pit.”

531 U.S. 159, 162, 164, 174 (2001). In Rapanos v.

United States, the Court remanded for further review

the Corps’ application of the Act to four wetlands

lying “near ditches or man-made drains that

eventually empty into traditional navigable waters.”

547 U.S. 715, 729, 757 (2006). Rapanos produced no

majority opinion: A four-Justice plurality proposed

6

one test for determining whether a water body is a

“water of the United States,” id. at 742; Justice

Kennedy, concurring in the judgment, proposed

another, id. at 779; and four dissenting Justices

would have left the agencies’ definition in place, but

would at a minimum have upheld protection for

waters satisfying either the pluralitys or Justice

Kennedy’s test, id. at 810 (Stevens, J., dissenting).

Although SWANCC and Rapanos did not

invalidate any agency regulation, they raised

questions about the proper scope of the Act and those

regulations. Subsequently, the agencies retreated

from enforcing the regulations as written. They

implemented informal policies—not compelled by this

Court’s decisions—that made it difficult to apply the

Act’s protections to certain waters that should have

been covered. Numerous parties urged the agencies

to revise their regulations and provide clarity. See 80

Fed. Reg. at 37,056-57; see also Rapanos, 547 U.S. at

758 (Roberts, C.J., concurring) (noting that the

agencies could have avoided the unfortunate effects

of the Court’s splintered opinion had they developed

regulations defining “an outer bound” to their

authority).

Il. The Clean Water Rule

Accordingly, in 2011, the agencies initiated a

rulemaking process to amend their regulations. The

agencies identified Justice Kennedy's opinion in

Rapanos, which concluded that the Act protects

wetlands that have a “significant nexus” to waters

traditionally considered navigable, id. at 759, 779,

787 (Kennedy, J., concurring in the judgment), as the

“key” to their interpretation of the Act. See 80 Fed.

7

Reg. at 37,060. The Rule provides that “[wljaters are

‘waters of the United States’ if they, either alone or in

combination with similarly situated waters in the

region, significantly affect the chemical, physical, or

biological integrity of traditional navigable waters,

interstate waters, or the territorial seas.” Id.

In support of the rulemaking, EPA’s Office of

Research and Development prepared a report (the

Science Report) that synthesized the published, peer-

reviewed scientific literature discussing the physical,

chemical, and biological connectivity between various

kinds of streams, wetlands, and other waters, and

downstream water bodies. EPA-HQ-OW-2011-0880-

20859.' The Science Report provides the scientific

foundation for much of the final rule. See 80 Fed.

Reg. at 37,057, 37,065.

The agencies proposed a rule on April 21, 2014,

see 79 Fed. Reg. 22,188, and received over a million

public comments. EPA-HQ-OW-2011-0880-20872

(Response to Comments). They ultimately issued the

final Clean Water Rule on June 29, 2015. It divides

waters into three groups: (1) waters that are

categorically “waters of the United States”; (2) waters

' The filing of the joint appendix was deferred in the case

below (6th Cir. No. 15-3751, Dkt. 99-1), and briefing was stayed

before the appendix was compiled. The record documents for the

Rule are housed on the government’s “regulations.gov” website,

and a document can be found there by searching for EPA-HQ-

OW-2011-0880 and adding a numeric suffix (e.g., “EPA-HQ-OW-

2011-0880-20859"). The record documents cited here use that

numbering system.

8

that are considered “waters of the United States”

upon a case-by-case showing of their significant

nexus to traditionally covered waters, and (3) waters

that are categorically excluded from _ federal

protection. 80 Fed. Reg. at 37,057. Because the Act

limits what can be done with respect to “waters of the

United States,” including by requiring those who

make discharges into such waters to obtain a permit,

see 33 U.S.C. §§1311(a), 1342, 1362(7), 1362(12), the

definition of “waters of the United States” functions

as a limitation on dischargers. It also governs the

issuance of NPDES permits from regulators by

identifying the water bodies as to which permits

must be sought.

Iif. Challenges to the Rule

Section 509(b)\(1) of the Clean Water Act, 33

U.S.C. §1369(b)(1), provides that challenges to

certain actions of the EPA Administrator must be

made in circuit court within 120 days of the relevant

action. The specified actions include those taken “(E)

in approving or promulgating any effluent limitation

or other limitation” under enumerated sections of the

Act, and “(F) in issuing or denying any permit under

section 1342.” 33 U.S.C. §1369(b)(1).

Over 100 parties sued to challenge various

aspects of the Rule. Although the petitioner here is

an exception, most parties filed challenges in both

district court and circuit court. Challengers sued in

the District of Arizona, the Northern District of

California, the District of the District of Columbia,

the Northern District of Florida, the Northern and

Southern Districts of Georgia, the District of

Minnesota, the District of North Dakota, the

9

Southern District of Ohio, the Northern District of

Oklahoma, the Southern District of Texas, the

Western District of Washington, and the Northern

District of West Virginia.* The government moved to

consolidate these district court cases, but the Judicial

Panel on Multidistrict Litigation denied the request.

See In re Clean Water Rule, 140 F. Supp. 3d 1340,

1341, MDL No. 2663 (Oct. 13, 2015). The circuit court

petitions, meanwhile, were promptly consolidated in

the U.S. Court of Appeals for the Sixth Circuit. MCP

No. 135, Dkt. 3 (July 28, 2015).

Petitioner National Association of Manufacturers

(NAM) filed a district court action with other parties

in Galveston, Texas. See Tex. Compl. at 1. But while

its co-parties also brought actions in the court of

appeals, petitioner did not. Instead, it intervened

defensively in the Sixth Circuit to support dismissal

of the circuit court actions in favor of district court

review. See 6th Cir. No. 15-3820, Dkt. 6. While

petitioner’s district court action challenging the Rule

made substantial standing-related allegations

describing the effect of the Rule on iis members,

i

2D. Ariz. No. 15-cv-1752; N.D. Cal. No. 15-cv-3927; D.D.C.

No. 15-cv-1324; N.D. Fla. No. 15-cv-579; N.D. Ga. No. 16-cv-

2488; S.D. Ga. No. 15-cv-79; D. Minn. No. 15-cv-3058; D.N.D.

No. 15-cv-59; S.D. Ohio No. 15-cv-2467; N.D. Okla. Nos. 15-cv-

386 & 15-cv-381; S.D. Texas Nos. 15-cv-162, 15-cv-165, 15-cv-

266, 15-cv-322; W.D. Wash. No. 15-cv-1342; N.D. W.Va. No. 15-

cv-110.

10

petitioner made no similar effort in the court of

appeals.®

Respondents NRDC and NWF filed narrow

challenges to the Rule in both district court (D.D.C.)

and circuit court (the Second and D.C. Circuits

respectively). NRDC and NWF challenged certain

aspects of the Rule as failing to protect waters that

the groups’ members use and enjoy. NRDC and NWF

also intervened in various challenges, including the

Sixth Circuit proceedings, to defend against claims

that the Rule protects too many waters. See 6th Cir.

No. 15-3751, Dkt. 23-2. Such claims would

undermine federal safeguards for waters on which

NRDC and NWF members rely for drinking water

supply; for swimming, fishing, and other recreation;

and for business purposes.

On February 22, 2016, the Sixth Circuit denied

motions to dismiss for lack of subject matter

jurisdiction that had been filed by various parties in

the consolidated proceedings. Although there was no

’ Petitioner did file a declaration in the Sixth Circuit

regarding its standing, but that appears to have been an

accident. The declaration was appended to the brief of various

petitioners in that court, but NAM was not a petitioner in the

Sixth Circuit and did not join that brief. See 6th Cir. No. 15-

3751, Dkt. 129-1, 129-2; see also id. Dkt. 129-2 at ECF page 45-

46 (Declaration of Ross Evan Eisenberg) at {7 (declaring that

NAM’s members “have altered their behavior in response to the

Final Rule”). To the extent this apparently mistaken filing

appended to the brief of other parties is relevant, it confirms

NAM’s continued endorsement of the standing allegations it

made in the district court.

11

majority opinion, two judges held that jurisdiction for

challenges to the Rule lay in the circuit court under

33 U.S.C. §1369(b)(1)(F). En banc review was denied.

This Court then granted certiorari.

SUMMARY OF THE ARGUMENT

Challenges to the Clean Water Rule belong in the

courts of appeals. Section 509 of the Act provides that

“any interested person” may petition the courts of

appeals for “[rjeview of the Administrator’s action ...

(E) in approving or promulgating any effluent

limitation or other limitation under section 1311” or

“(F) in issuing or denying any permit under section

1342.” 33 U.S.C. §1369(b)\(1). This Court’s previous

interpretations of section 1369(b)(1) look to the

practical effects of agency action to determine

whether the section’s provisions apply. See, e.g.,

Crown Simpson, 445 U.S. at 196 (holding that section

1369(b) covers EPA decisions with “the precise effect”

of causing an NPDES permit to be denied, even if the

action is not itself a permit denial). The Clean Water

Rule is subject to review in the court of appeals under

either subsection (E) or (F), but the simplest path to

affirmance is the former. The Rule approves effluent

and other limitations on dischargers like petitioner's

members because it specifies that the fundamental

prohibition of section 1311(a) applies to their

discharges into certain waters.

Rather than acknowledge that the Clean Water

Rule imposes such limitations, petitioner argues that

the Rule has oe direct effects on regulated entities at

all. As we explain below, the Court could not accept

that premise and grant petitioner relief, because the

premise suggests that petitioners case is not

12

justiciable. And in any event, the premise is not true,

as petitioner itself has admitted in the district court

action it seeks to protect here.

This case arises in a peculiar posture. Petitioner

ultimately hopes to invalidate the Clean Water Rule,

but here asks that petitions seeking to invalidate the

Rule be dismissed—apparently frustrating its own

primary objective. To the extent petitioner has any

interest in the judgment it seeks, it is because it

believes it can challenge the Rule in district court,

and that a determination that the court of appeals

erred in taking jurisdiction will allow it to shop this

case to its favored forum in the Southern District of

Texas at Galveston. See Tex. Compl. at 1.

But the arguments petitioner has chosen to press

in its opening brief undermine the Court’s ability to

decide the question presented. In a rare turn for a

party challenging administrative action, petitioner,

echoing language from the Rule’s preamble, argues

that the Rule “does not establish any regulatory

requirements’ and ‘imposes no enforceable duty’ on

‘the private sector.” Pet. Br. 29 (quoting 80 Fed. Reg.

at 37,054, 37,102). But if the Court were to accept

that characterization of the Rule, petitioner would

likely be unable to seek review of the Rule at all.

Instead, it would have to contend simultaneously

with an apparent absence of (1) standing, (2)

ripeness, and (3) final agency action. Without a

justiciable challenge to the Rule, petitioner’s interest

in this proceeding would evaporate, along with the

Court’s jurisdiction over the petition for certiorari.

Because, in this Court, petitioner seeks to have

the circuit-level petitions dismissed, it has little

incentive to develop allegations in support of its

13

standing to challenge the Rule itself, along with other

requirements for a justiciable case. But the standing

allegations in petitioner's district court action in

Texas make clear that petitioner understands the

Clean Water Rule to have the effect of approving

limitations on its members’ discharges into water

bodies covered by the Rule’s jurisdictional definition.

Indeed, petitioner's core standing allegation in

district court is that its members are already

“abstaining from certain activities in certain areas of

land” and “have initiated or will soon initiate the

process of” obtaining “NPDES permits ... in order to

comply or mitigate the risk of noncompliance with the

Rule.” Tex. Compl. at 13, {934-35 (emphasis added);

see also id. at 14, 438 (“[Tlhe Rule requires members

of the Plaintiffs either to alter their activities to avoid

discharges to these features or to obtain permits

when previously they would not have had to.”

(emphasis added)).

Forcing petitioner to concretize its injuries in

this Court thus helps to demonstrate the illogic of

exempting petitioner's challenge from section 1369.

As petitioner's district court complaint makes clear,

the Clean Water Rule right now imposes section

1311(a)’s core limitation on “activities in certain

areas of land” and requires NPDES permits for

certain discharges into waters found on those lands.

See Tex. Compl. at 13-14, 4934-38. And that is

sufficient to bring petitioner’s challenge to the Rule

within section 1369(b)(1E) and resolve this case

against it.

Accordingly, despite petitioners failure to

demonstrate its case’s justiciability in this Court, the

Court should not dismiss the present petition, but

14

instead should resolve the question presented in

consideration of the Rule’s actual effects. Because

petitioner’s complaints about the Rule are justiciable

and belonged in the court of appeals, this Court

should affirm.

ARGUMENT

Both the text of section 1369 and this Court’s

previous interpretations of it compel the courts to

look to the practical effects of agency action to

determine whether it falls within the section’s

provisions. Applying that basic principle here

demonstrates that the court of appeals is the

appropriate court to decide challenges to the Clean

Water Rule.

The statutory text provides that “any interested

person” may petition the court of appeals for

“[rleview of the Administrator’s action ... (E) in

approving or promulgating any effluent limitation or

other limitation under section 1311, 1312, 1316, or

1345 of this title, [or] (F) in issuing or denying any

permit under section 1342 of this title.” 33 U.S.C.

§1369(b)(1). The “interested person” has 120 days to

petition the court of appeals for review, unless its

petition “is based solely on grounds which arose after

such 120th day.” Jd. And if the party fails to go to the

court of appeals for review when it was available—if

“review could have been obtained under

[§1369(b)](1)”—then the unreviewed action “shall not

be subject to judicial review in any civil or criminal

proceeding for enforcement.” Jd. $1369(b)(2); see also

Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1334

(2013) (where section 1369(b)(1) applies, it is

exclusive).

15

Notably, this formulation is functionalist by its

terms. Interested parties can seek review of

“action[s]” taken “in approving or promulgating any

effluent limitation or other limitation,” or “in issuing

or denying any permit,” rather than review of

“limitations” or “permits” as such. The difference may

seem small but it is important. For example, the

statutory text supports judicial review of actions that

have the effect of approving limitations on regulated

parties; the alternative formulation would support

review of only “limitations” themselves.

Consistent with this textual distinction, this

Court has twice endorsed a functionalist reading of

this provision over a formalist one that would require

courts to characterize the action itself as a

“limitation” or “permit decision.” First, in E.J. du

Pont, this Court explained that the power to review

individual permit decisions should necessarily

encompass the power to review the basic rules that

control them. It derided as “truly perverse” a

“situation in which the court of appeals would review

numerous individual actions issuing or denying

permits pursuant to §402 but would have no power of

direct review of the basic regulations governing those

individual actions.” E.J. du Pont, 430 U.S. at 136. In

Crown Simpson, this Court confronted an EPA

decision with “the precise effect” of causing an

NPDES permit to be denied, but that could not itself

be characterized as a permit denial, because a State

entity was the ultimate permitting authority. 445

US. at 194, 196. It held that this situation, too, was

subject to judicial review under section 1369, because

the Court was, again, “unwilling to read the Act as

16

creating such a seemingly irrational bifurcated

system” of review. Id. at 197.

Importantly, petitioner’s reading of section 1369

is not only inconsistent with the functionalist

principle of these decisions, but also with the holding

of Crown Simpson. Petitioner suggests that,

whenever EPA does not “issue or deny” a permit, its

action is not subject to review under section

136% b)\(1F). See Pet. Br. 22 (“The fact that the

WOTUS Rule does not issue or deny permits shc uid

end the analysis.”). But EPA did not issue or deny a

permit in Crown Simpson. It is no answer to say that,

by vetoing a State variance in the permit that was

requested, the “precise effect” was to deny the permit.

That is simply an acknowledgment that actions of the

Administrator that do not themselves deny permits

may fall within the textual grant of review for actions

taken “in ... denying permits.” And that is the point:

To know what actions fall within the textual grants,

the courts must consider the practical effects of those

actions, instead of trying to characterize the actions

themselves as “limitations,” “permit denials,” or the

like. Accordingly, in the context of the Clean Water

Rule, the question is whether the Rule’s enactment

has the effect of approving limitations on certain

dischargers (for instance, petitioner or its members),

or the effect of issuing or denying permits in certain

circumstances.

That question has a particularly straightforward

answer under section 1369(b)(1)(E). In enacting the

Clean Water Rule, the Administrator approved a

limitation on dischargers under section 1311(a) itself.

That is, in fact, the principal effect of the Rule. The

most fundamental limitation in the Clean Water Act

17

is section 1311’s edict that, “le]xcept as in

compliance” with other enumerated sections of the

Act, “the discharge of any pollutant by any person

shall be unlawful.” 33 U.S.C. §1311(a). And the

statute defines “discharge of a pollutant” to mean a

discharge into “navigable waters,” or “waters of the

United States.” Jd. §§1362(7), (12). Accordingly, the

“precise effect” of the Clean Water Rule is to impose a

“limitation under section 1311” on those who

discharge into waters deemed jurisdictional by the

Rule.* Additionally, the Clean Water Rule (in the

statute’s words) “approves” other limitations under

section 1311, including effluent limitations, on

discharging entities. That is because, by specifying

where section 1311(a)’s limitation applies, the Rule

also imposes on _ dischargers many further

limitations, including “effluent limitations,” that

apply to them only through this central prohibition

and its animating role in the Act. See supra p.4

(explaining that, in general, the Act’s limitations are

made applicable to dischargers through the

permitting process and section 1311(a)).

This becomes all the more clear when a central

premise of petitioner's argument is rejected, as it

must be. To make it seem that the Clean Water Rule

neither imposes limitations (“effluent” or “other”-

wise) nor directly affects permitting decisions,

_—

* The Rule itself can also be considered the promulgation of

a limitation under section 1311, because it limits where

dischargers can dispose of pollutants without complying with

the Act under section 1311(a).

18

petitioner argues that the Rule has no direct effects

on regulated entities at all. As explained below, the

Court could not accept that premise and grant

petitioner relief, because the premise suggests that

petitioner's case in this Court is not justiciable. And

in any event, the premise is not true, as petitioner

itself has admitted in the district court action it seeks

to protect here.

I, Petitioner’s Premises, if Accepted, Would

Suggest That It Lacks Any Justiciable

Challenge To The Clean Water Rule.

In a_ typical administrative law action, a

challenger will take pains to demonstrate that the

agency action at issue directly causes the party to

suffer concrete injuries that a court can redress by

adjudicating the party’s case. That is because the

challenging party must overcome three closely

related statutory and constitutional limitations on

the courts’ power to review an administrative

decision. In particular, the party must assure the

court that it has Article III standing, see, e.g., Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992),

that its challenge has ripened into a sufficiently

concrete controversy, see, e.g., Nat'l Park Hospitality

Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08 (2003),

and that it challenges “final agency action” rather

than an interim step in the agency’s activities that

does not yet settle the party’s legal rights. See 5

U.S.C. §704; Bennett v. Spear, 520 U.S. 154, 177-78

(1997).

Because of petitioner’s unusual posture in this

case, these issues require some excavation. Petitioner

and its supporting respondents want to challenge the

19

Clean Water Rule, but are asking this Court to

dismiss all challenges to the Clean Water Rule that

have been brought in the courts of appeals. Typically,

only defendants want an action dismissed, but

justiciability concerns like standing and ripeness

impose requirements that plaintiffs must meet before

a court can take jurisdiction over their suits. See, e.g.,

Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S.

125, 133 (2011) (“To state a case or controversy under

Article III, a plaintiff must establish standing.”

(emphasis added)). It thus may seem unnatural to

ask petitioner, which seeks dismissal here, to satisfy

the Court about its concrete stake in the underlying

controversy.

Petitioner must still comply with these

requirements, however, because it is appealing the

judgment below, and so must establish a “personal

stake” in seeing that judgment overturned. See, e.z.,

Camreta v. Green, 563 U.S. 692, 702 (2011).° Here,

that personal stake depends on there being a valid

district court action petitioner could use to bring its

challenge in lieu of the court of appeals procedure.

Otherwise, this Court’s decision to dismiss challenges

to the Rule could hardly provide petitioner with any

redress.

° This would have been a much simpler matter if petitioner

had proceeded in the normal course—i.e., appealing an adverse

judgment or order in its own district court case. Ordinarily, a

party is not allowed to appeal a judgment as “adverse” simply

because of its precedential effect in another case. See, e.g., Parr

v. United States, 361 U.S. 513, 516 (1956) (“Only one injured by

the judgment sought to be reviewed can appeal.”).

20

Nonetheless, petitioners temporary focus on

winning dismissal of the Clean Water Rule

challenges that were brought in the court of appeals

has led it to make allegations incompatible with

these justiciability requirements. It is easier for

petitioner to cast section 1369 as inapplicable to the

Clean Water Rule if it minimizes the Rule’s concrete

effects on, and “direct and appreciable legal

consequences” for, petitioner's members. See U.S.

Army Corps of Eng’rs v. Hawkes Co., Inc., 136 S. Ct.

1807, 1814 (2016) (quoting Bennett, 520 U.S. at 178).

Thus, in a particularly arresting passage for any

seasoned administrative lawyer, petitioner trumpets

certain passages from the Rule’s preamble and the

opinion below stating that “the Rule ... ‘does not

establish any regulatory requirements,” “imposes no

enforceable duty’ on ‘the private sector,” “is

definitional only,” and “does not directly impose any

restriction or limitation.” Pet. 29 (quoting 80 Fed.

Reg. at 37,054, 37,102 and Pet. App. 15a (McKeague,

J.)). These allegations form the entire support for

petitioner’s primary submission that the Clean Water

Rule “is not a ‘limitation’ in any ordinary sense of the

word,” Pet. Br. 28, and so falls outside the scope of

section 1369. See also Pet. Br. 17 (claiming the Rule

“limits no action”). But these statements would be

just as much at home in a brief arguing that

petitioner lacks a justiciable challenge to the Rule at

all.®

* Petitioner also suggests that the Rule is not a limitation

because “by itself” it requires no action, and instead imposes

21

In truth, such allegations are not credible;

petitioner contradicts them in its district court

action, as it must. Nor are they true: The Rule had

obvious impacts immediately upon taking effect—

that is one reason the Rule is now stayed. Moreover,

even if petitioner’s allegations were true, this Court

could not accept them as a premise for providing

petitioner with the judgment it seeks. That is

because, if the Court were to accept them here, that

would poison petitioner's claim in district court,

leaving petitioner with no interest in obtaining the

reversal it seeks here, and dissolving this Court’s

certiorari jurisdiction.

This is so with respect to all three justiciability

requirements described above. First, with regard to

standing, this Court’s familiar test requires that

“three conditions [be] satisfied: The petitioner must

obligations only “in conjunction with other, separate statutory

concepts”—such as whether the activity also involves a “point

source.” See Pet. Br. 6-7, 9. But that argument proves too much:

The same could be said even of limitations that are, strictly

speaking, “effluent limitations.” For example, an effluent

limitation also applies only to “point sources.” See, eg., 40

C.F.R. §401.10 (explaining that “[ploint sources” are required to

comply with applicable regulations prescribing effluent

limitation guidelines). Put otherwise, creating obligations on

parties “only when multiple additional statutory terms ...

apply,” Pet. Br. 17, is something the Clean Water Rule has in

common with effluent limitations. Indeed, as explained above,

many “effluent limitations” and “other limitations” also limit

parties only through the mechanism of section 1311(a) and the

permitting process—just as the Clean Water Rule does. See

supra p.4.

22

show that he has ‘suffered an injury in fact’ that is

caused by ‘the conduct complained of and that ‘will

be redressed by a favorable decision.” Camreta, 563

U.S. at 701 (quoting Lujan, 504 U.S. at 560-61).

Here, petitioner and its members seek to challenge

the Clean Water Rule as regulated parties. But if the

Rule does not require them to do or refrain from

doing anything—if “it limits no action” and is not for

them “a ‘limitation’ in any ordinary sense of the

word,” Pet. Br. 17, 28—then they have apparently

suffered no harm traceable to the Rule, and can

obtain no redress from its vacatur.

Likewise, taking petitioner’s claims at face value

would cast doubt on whether it is “aggrieved” by

“final agency action.” 5 U.S.C. §§702, 704. As this

Court recently explained in the context of

jurisdictional determinations under the Clean Water

Act, this means the action complained of “must be

one by which rights or obligations have been

determined, or from which legal consequences will

flow.” Hawkes, 136 S. Ct. at 1813 (quoting Bennett,

520 U.S. at 177-78). It seems unlikely that “rights or

obligations have been determined” if, as petitioner

claims, the Rule “imposes no enforceable duty’ on

‘the private sector.” Pet. Br. 29 (quoting 80 Fed. Reg.

at 37,054, 37,102).

Third, petitioner's litigating position in this

Court would, if accepted, raise ripeness problems,

even though ripeness is typically no obstacle in a case

like this. Substantive rules that “require[] the

plaintiff to adjust his conduct immediately” are ripe

for review “at once.” Lujan v. Nat'l Wildlife Fed’n, 497

U.S. 871, 891 (1990). But in this Court, petitioner

appears to deny that the Clean Water Rule imposes

23

immediate limitations. In fact, petitioner seems to

suggest that its own challenge to the Rule is unripe

in language that remarkably parallels the governing

standards. Compare, e.g., Gardner v. Toilet Goods

Ass'n, Inc., 387 US. 167, 171 (1967) (finding

challenge to color-additive regulations ripe because

the regulations were “self-executing” and had “an

immediate and substantial impact upon the

{challengers]”) with Pet. Br. 29 (“The Rule ... ‘is not

self-executing.”) and Pet. Br. 11 (quoting the

agencies’ economic analysis as finding that the Rule

“is not designed to ‘subject’ any entities of any size to

any specific regulatory burden”).

The justiciability trap that petitioner has set for

itself would disappear if petitioner would

acknowledge that the Clean Water Rule imposes

immediate limitations on its members’ conduct.

NRDC and NWF have certainly acknowledged the

Rule’s effects in their challenges. In particular,

NRDC and NWF object to some of the Rule’s

provisions limiting the Clean Water Act’s reach, see

6th Cir. No. 15-3751, Dkt. 130 at 5 (Opening Br. of

NRDC et al.), and thus imposing the limitations of

the Act too narrowly—effectively allowing discharges

that will harm water bodies NRDC’s and NWF’s

members use and enjoy. Petitioner, meanwhile, in its

district court action, seeks to challenge the Rule on

the inverse ground that the Rule injures its members

by applying the Act’s limitations and permit

requirements too broadly, and by including certain

features petitioner argues should not be covered by

the law. Tex. Compl. 773, 38. Neither challenge

should present justiciability problems or escape

section 1369.

24

As further explained below, petitioner's own

pleadings in the district court action it favors reveal

that, in enacting the Clean Water Rule, EPA did

approve “limitation[s}] under section 1311” on

petitioner and its members. Most obviously, the

agency applied, to the features the Rule covers as

“waters of the United States,” the Act’s core

limitation under section 1311(a), which prohibits “the

discharge of any pollutant by any person” into those

waters “[e)xcept as in compliance with” the Act. 33

U.S.C. §1311(a); id. §§1362(7), (12). Petitioner should

either acknowledge these concrete effects or

articulate an alternative explanation of its standing.

Aay reasonable explanation of the Rule’s effects

demonstrates the justiciability of this case and the

propriety of jurisdiction in the court of appeals under

section 1369(b\(1)(E).

IL. Petitioner’s Allegations In District Court

Reveal That Its Challenge Is Covered By

Section 1369.

Petitioner’s allegations in the district court

litigation it prefers acknowledge far more candidly

the consequences of the Clean Water Rule. In plain

English, petitioner’s complaint is that the Rule limits

what its members can do on their land, and it asks

the courts to redress its injuries by lifting those

limitations. At a minimum, that clearly brings the

effects of the Rule within section 1369(b\(1)(E).

Here is how petitioner puts it in its district court

complaint. Devoting three full pages to standing

allegations, see Tex. Compl. at 12-14, {[930-42,

petitioner begins with the fundamental limitation

that 33 U.S.C. §1311(a) imposes on its members—

25

namely, that they cannot engage in “unauthorized

‘discharges” on “land areas” that they “own” or where

they “work” if these “constitute ‘waters of the United

States’ under the Rule” and thus “are jurisdictional.”

Tex. Compl. at 12, 930; see also id. at 2, {2 (“The

Clean Water Act (CWA) with limited exceptions

prohibits ‘discharging ... any pollutant’ (33 U.S.C.

§1311(a)) without a " Section 402 permit for

discharges covered by the National Pollution

Discharge Elimination System|[.]”). This limitation,

the complaint then explains, is backed up by civil and

criminal sanctions, Tex. Compl. at 12, 432, and can

be enforced through c'tizen suits without the

intervention of EPA or any other governmental

authority, id. at 12-13, (33. Accordingly, petitioner

says, its “(llaw-abiding members ... have incurred or

will imminently incur continuing economic costs as

they alter their activities (in particular, by abstaining

from certain activities in certain areas of land) to

accommodate the possibility that their activities will

be deemed discharges.” Id. at 13, [34 (emphasis

added). In fact, some members “have initiated or will

soon initiate the process of obtaining ... NPDES

permits ... to comply ... with the Rule.” Id. at 13, (35.

The sum of these allegations is that the Rule itself

has limited how petitioner's members can use water

bodies on their land and has required them to obtain

permits they would not otherwise have sought.

One paragraph of petitioner’s complaint exposes

particularly clearly why this case appropriately

belongs in circuit court under the Act:

38. The Rule purports to establish the Agencies’

jurisdiction over a wide range of features (such

as ephemerally flowing ditches and streams) that

26

would not have been deemed jurisdictional before

promulgation of the Rule under the Supreme

Court’s prior interpretations of the Agencies’

jurisdiction. Accordingly, the Rule requires

members of the Plaintiffs either to alter their

activities to avoid discharges to these features or

to obtain permits when previously they would not

have had to. Vacatur of the Rule would therefore

remedy each Plaintiffs members’ ongoing

injuries, including by relieving them of

continuing expenses, preventing arbitrary

enforcement of the CWA, and allowing them

more fully to use and enjoy various land and

water features on their land and at their places

of work.

Id. at 14, {38 (emphasis added).

Petitioner is here because it thinks the Rule

“requires” its members to limit discharges on their

lands and obtain NPDES permits they did not need

before. And it thinks vacatur of the Rule will redress

its members’ injuries by lifting the Rule’s limitations,

which (they allege), have “unlawfully hinderfed/’ and

“unlawfully inhibitfed] their productive use and

enjoyment of land and water features on their lands

and at their places of work.” Jd. {36 (emphasis

added). A party that swore these allegations in court

cannot seriously claim that the same Rule “limits no

action.” Pet. Br. 17.

In this way, the justiciability requirements

petitioner at least attempted to meet in its district

court litigation lead the jurisdictional inquiry under

section 1369 much more easily to the right result.

There, petitioner acknowledged that it seeks relief

from the Rule’s imposition of limitations on its

27

members, and from the permits they will need issued

“to comply ... with the Rule.” Tex. Compl. at 13, (35.

At a minimum, section 1369(b)(1)(E) thus directs

petitioners to make an application airing their

complaints to the court of appeals, where “{rjeview of

the Administrator's action ... in approving or

promulgating any effluent limitation or other

limitation under section 1311 ... may be had by any

interested person.” 33 U.S.C. §1369(b)(1).

Ill. Petitioner’s Rule Does Not Provide The

Clarity It Promises, And Leads To

Untenable Results.

In contrast to the clarity that comes from

focusing on the Rule’s concrete effects, petitioner’s

ostensibly literalist approach to section 1369 does not

actually provide the certainty it says is so important

for jurisdictional rules. See Pet. Br. 44-48; id. at 47-

48 (urging the Court to help end duplicative filing in

different courts).

First, any step that tends to restrict court of

appeals jurisdiction under section 1369(b)}—which is

the outcome petitioner advocates—will still result in

cautious attorneys filing a protective, duplicative case

there, because the far greater risk comes from

missing the 120-day window for exclusive review in

the court of appeals. A reasonably capacious

understanding of jurisdiction under section 1369(b)

would tend to reduce duplicative filings, because then

attorneys with some confidence that their challenge

belongs in the court of appeals would forgo the

simultaneous district court challenge (understanding

they can always fall back on a still-timely district

court action if a court later disagrees). Conversely,

28

because jurisdiction can always be decided sua

sponte, even attorneys who strongly suspect they

belong in district court under petitioner's narrow

reading will remain bound by professional obligation

to file in both venues and maintain both cases all the

way to a judgment final on direct appeal through this

Court, especially if they are at all confused by

petitioner’s preferred reading of the statute.

And confusion is easy to come by under

petitioners approach. Petitioner describes its

interpretation as a “plain text” reading of the statute

(Pet. Br. 44), but its State allies concede this reading

is not “hyperliteral” (Respondent Ohio et al. Br. 32).

For one thing, petitioners preferred meaning

depends on restricting section 1369(b)’s “other

limitations” language to “effluent-like” limitations,

see Pet. Br. 45, a neologism that does not even make

grammatical sense. (The limitation itself is

presumably not supposed to be “effluent-like,” unless

petitioner is advocating slippery limitations. But if it

means “limitations on things that are like effluent”

that is also unclear—because what things, exactly,

are like effluent without being effluent?).

For another, petitioner's preferred meaning is

transparently not a “plain text” interpretation of

section 1369(b\(1XE), because the Clean Water Rule

fits comfortably within any literal reading of that

section. The Rule approves a limitation under section

1311(a) on discharges into the waters specified in the

Rule; its enactment was thus, quite literally, an

“action ... approving ... any ... other limitation under

section 1311.” To escape that plain text reading,

petitioner relies entirely on the dubious “no

limitation” allegations discussed above, see Pet. Br.

29

28-29, before quickly fleeing from the text to various

canons of construction and arguments for why

Congress must have meant less than what it said

when it used the expansive term “other limitation.”

Pet. Br. 29-31; see also id. at 33 (suggesting that the

government’s interpretation of section 1369 in

another context would “shock” the statute’s drafters).

Requiring attorneys to guess at how narrowly

Congress meant to circumscribe the broad words it

picked for section 1369(b)(1)(E) will not enhance

jurisdictional clarity or discourage protective

filings—particularly compared to simply reading the

whole clause for what it says.

Petitioner's brief also wobbles between using

different verbs connecting the agency action to the

relevant effluent or effluent-esque limitation: At one

point, petitioner says the agency action must

“imposle]” such limitations, Pet. Br. 39; at another

that it must “issue[]” them. Pet. Br. 45. Neither of

those words are in the statute, see 33 U.S.C.

§1369(b)(1)(E) (Gurisdiction applies to agency actions

taken “in approving or promulgating” limitations),

but they might make a difference in some future case

(although not necessarily this one). For example,

enactment of the Clean Water Rule both “imposed”

the limitation found in section 1311(a) on petitioner’s

members as to the specified water bodies, and also

“issued” a limitation by describing where parties

cannot discharge without a permit. Other rules,

however, might be formalistically labeled as doing

only one or the other. At the very least, smart

attorneys will not forgo court of appeals filings when

the relevant rule “imposes” limitations on a party,

even if it arguably does not “issue” them. If the Court

30

is interested in eliminating duplication, it should

simply reinforce the practical approach courts have

long taken to section 1369, and direct parties to go to

the court of appeals when the effect of the Rule that

injures them appears in the statutory list.

In fact, petitioner’s rule leads to a result that is

not only confusing, but fundamentally incompatible

with the congressional policy enacted in section

1369%(bX2). The statute sends parties who are

immediately injured by the listed agency actions to

the courts of appeals, and gives them 120 days to

raise objections. Parties cannot sit on their hands

with respect to such agency action and then raise a

challenge later in an enforcement proceeding. 33

U.S.C. §1369(b)(2). Here, petitioner’s district court

pleading reveals that, even according to petitioner

itself, EPA has already approved limitations—even

“effluent” or “effluent-like limitations’—on what

petitioner's members can do on their lands and work

sites by enacting the Rule. As a result, in keeping

with the text and policy of section 1369(b)2),

petitioner must bring its challenge to the Rule in the

court of appeals.

Put otherwise, if an agency action has already

imposed limitations on the discharges a party can

make, as petitioner apparently believes is true with

respect to the Clean Water Rule, it must take that

dispute to the applicable court of appeals within 120

days. Any interpretation of section 1369 that

suggests otherwise cannot claim to be “clear.”

Petitioner’s challenge thus belonged in the court of

appeals under at least section 1369(b)(1)(E), and this

Court should affirm.

31

CONCLUSION

For the foregoing reasons, and others provided in

the brief of the United States, this Court should

affirm.

Respectfully submitted,

Eric F. Citron

Counsel of Record

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Washington, DC 20814

(202) 362-0636

ec@goldsteinrussell.com

Catherine Marlantes Rahm

Jennifer A. Sorenson

Jon P. Devine, Jr.

NATURAL RESOURCES

DEFENSE COUNCIL

40 W. 20th St.

New York, NY 10011

(212) 727-2700