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

no OCT -l

OFFICE OF THE CLERK

No. 16-299

3n the Supreme Court of the Gnited States

NATIONAL, ASSOCLATION 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 WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

BRIEF OF RESPONDENTS OHIO, ALABAMA,

ALASKA, ARIZONA. ARKANSAS, COLORADO,

FLORIDA, GEORGIA, IDAHO, INDIANA, KANSAS,

KENTUCKY, LOUISIANA, MICHIGAN, MISSISSIP-

PI, MISSOURI, MONTANA, NEBRASKA, NEVADA,

THE NEW MEXICO STATE ENGINEER, THE NEW

MEXICO ENVIRONMENT DEPARTMENT, THE

NORTH CAROLINA DEPARTMENT OF ENVIROD-

MENTAL QUALITY, NORTH DAKOTA, OKLAHO-

MA, SOUTH CAROLINA, SOUTH DAKOTA. TEN-

NESSEE, TEXAS, UTAH, WEST VIRGINIA, WiIS-

CONSIN, AND WYOMING

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY*

State Solicitor

*Counsel of Record

30 East Broad St., 17th Floor

Columbus. Ohio 43215

614-466-8980

eric. murphy

ohionttorneygeneral.gov

Counsel for Respondent

State of Ohio

QUESTION PRESENTED

Does the federal rule redefining the “waters of the

United States” subject to the Clean Water Act fali

within the exclusive, original jurisdiction of the cir-

cuit courts of appeals under 33 U.S.C. § 1369(b)(1)?

i

TABLE OF CONTENTS

Page

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0g NS ETE il

TABLE OF AUTHORITIES ......0...............::cccceeeceeee es ili

el ian ates cesiiniabllioscemidienniiie 1

STATEMENT OF THE CASE. ................22-.ccesceseeeeeees 5

SE REC, SR eee aa TR ROTEL Pa 12

I. THE Courts OF APPEALS Do Not HAVE

SUBJECT-MATTER JURISDICTION OVER THE

RULE UNDER SECTION 1369(b)(1)................c0000000+ 12

A. The Rule Falls Outside The Plain Text Of

Subsections (E) And (FP) ................ccssccceeeeeeeees 13

B. Textual Canons Of Construction Reinforce

That The Circuit Courts Lack Jurisdiction

EEE RR LE RTI aCe ee 18

C. This Court’s Preference For Bright-Line

Jurisdictional Rules Supports A Plain-Text

ct iicincistccnnitntibidinnresesisaes 22

D. The Presumption In Favor Of Judicial

Review Confirms That § 1369’s Plain Text

iain ideitecealiic eh tielebdileninhasitictcenen 26

ll. THE SIXTH CrIRCUIT’S CONTRARY ANALYSIS

MISREADS THIS COURTS CASES AND

MISTAKENLY INVOKES POLICY ARGUMENTS ......... 29

Se ihincrititininccinitiedetinabakccssdinebenenniniewctieittt 32

ill

TABLE OF AUTHORITIES

Cases Page(s)

Am. Paper Inst., Inc. v. EPA,

890 F.2d 869 (7th Cir. 1989) ................... 14, 15, 21

Am. Paper Inst. v. EPA,

882 F.2d 287 (7th Cir. 1989) ..................... 4, 28, 32

Arbaugh v. Y&H Corp.,

i secpicnmeatindle 23, 24

Bethlehem Steel Corp. v. EPA,

Pe EE BIR iccccccccccccncesccescnncocccsess 15

Bowels v. Russell,

I rt nail nhtnneibe 24

Budinich v. Becton Dickinson and Co.,

sn sc cccrtienontenmninnsooniade 22

Cal. Div. of Labor Standards Enforcement v.

Dillingham Constr., N.A.,

a a 26

Capron v. Van Noorden,

TN

City of Pittsfield v. EPA,

GG Fe I siccccccnccccccsssssccecovccsetsnse 17

Crown Simpson Pulp Co. v. Costle,

TE passim

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

159 G. Ce, TRBBGIOIED .........-...0.0.0.0.002...cc0cece0e- 2, 28

Direct Mkig. Ass‘n v. Brohl,

a eascsicmenmmniibenenill 22

Duncan v. Walker,

AT EE = RATER E TT Te 20

iv

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

iii ccenetinnsaresensensoncocoes passim

Florida Power & Light Co. v. Lorion,

a ccntsemnenndoda 31, 32

Friends of the Earth v. EPA,

333 F.3d 184 (D.C. Cir. 2003) ................. 15, 19, 21

Gross v. FBL Fin. Servs., Inc.,

SS eee eae 20

Gustafson v. Alloyd Co.,

I eaeanlinenete 14

Harrison v. PPG Indus.,

446 U.S. 578 (1980) ........ccccccesceseceseseeeees ... 5, 20, 28

Herr v. U.S. Forest Serv.,

803 F.3d 809 (6th Cir. 2015) ............ cece eeee ee ee 23

Hertz Corp. v. Friend,

EE OO IID vccucsserinticiccsnsckeosdoneees 4, 22, 23, 26

In re EPA,

803 F.3d 804 (6th Cir. 2015) ........... ccc eeeeeeeee ee 1, 11

Inv. Co. Inst. v. Bd. of Governors of Fed.

Reserve Sys.,

561 F.2d 1270 (D.C. Cir. 1977).................. 4, 10, 26

Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527 (1995) ............ 26

Lake Cumberland Trust, Inc. v. EPA,

954 F.2d 1218 (6th Cir. 1994) ................. 13, 17, 20

Longview Fibre Co. v. Rasmussen,

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

Louisville & Nashville R.R. Co. v. Mottley,

ERE AR I SES, A 22

Vv

Mach Mining, LLC v. EEOC,

a ccunmnnaeueseeess 27

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Manning, 136 S. Ct. 1562 (2016) ........ 22, 24, 26

Mianus River Pres. Comm. v. Adm’r, EPA,

G41 F.2D SOO (Be Car. 1976) ....cccccccccccccecsscccscccccees 17

Nader v. EPA,

860 F.2d 747 (Oth Cir. 1988) .................c0.cccccccceee 31

Narragansett Elec. Co. v. EPA,

Be I I oo ccccnnecececnesenenescetscncess 32

Nat'l Cotton Council of Am. v. EPA,

553 F.3d 927 (6th Cir. 2009) ..............0...0.0000 12, 30

Natural Res. Def. Council v. EPA,

Re ete Ce Ie Gy BID vcccceccccncesccccccecsccoscccees 17

Natural Res. Defense Council, Inc. v.

Callaway,

392 F. Supp. 685 (D.D.C. 1975)............-...20.208 8,18

North Dakota v. U.S. EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015) ............... 1,19

PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t

of Ecology, 511 U.S. 700 (1994)............:cc:ceeeceeereeee 7

Puerto Rico v. Franklin Cal. Tax-Free Trust,

I es I i vscenceucscneuevoniesesseseneonees 3, 17

Rapanos v. United States,

547 U.S. 715 (2006) .............. shecisiliaekiiadeiiiitedaied passim

Rhode Island v. EPA,

ee eS HD i ccie ccsccccccosccsrsscpncteccses 16

Roberts v. Sea-Land Seruvs., Inc.,

Me Se ini dahercdeccnssstsdiendeteenastoeisenes 19

vl

Roll Coater, Inc. v. Reilly,

fw Fle Le | | | 13

RTP LLC v. ORIX Real Estate Capital, Inc.,

yf a | ly Vo SR | a -

Sackett v. EPA,

Ny NT CD pe ccncsdniinscomecosoosorenn 2, 9, 27, 28

Save the Bay, Inc. v. Adm’r of EPA,

Be ae BI CGE GE BOT ED cc ccccccccccccccccceccosceses 17

Sisson v. Ruby,

a ca nscalutiomnomaneniion 4, 23

Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs,

gS ence 1, 8, 9, 28

Sturgeon v. Frost,

I I I I on. copcascnsscunsasennansssusssson. AMD

TRW Inc. v. Andrews,

ieee 20

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

I cn cca cccensnnenepetoonacnnies passim

United States v. Sisson,

GEES ee oe a RO 24

Va. Elec. & Power Co. v. Costle,

566 F.2d 446 (4th Cir. 1977) ..................2c0000 14, 15

Vaden v. Discover Bank,

ETE EEN re 23

Statutes, Rules, and Constitutional Provisions

Ih seas tuaaenetndoamanecianciidie 9g

ee Be irctntesavesseemecsenees DAT OA He li

RLS 9

Ss I EE ae ene aN Sm re passim

I settle anil 5

Ee ic cceteeeneseeues 19

ellen ineiadiamnitiiiiniil 29

SIRE AAS SSR ee passim

I eicieil 7, 15, 16, 19

EE EEE RAN ecto acon BanED 10, 20

ee ts Oe ce ceccccccncccececsencsssoss wisiecumebidaln 7

RES REI eee ae Oe On eo? 7

oe situate’ passim

A is nse dedetnmnlelilicloaladiiaiias 21

SEE ae ena a 7,9, 21

I aarinasamoeniicill passim

ESE PS ayn Se 6, 19

1 i § 0 ene,

ER ES TS SEINE Ae PC 6, 9

RE A cA Ie EE AO ae 6, 16

TLE TEES TR Ae Oe CLD EAE 6

4 EER

ESTEE PES SEEN a ae ee abe oN 6

EEE ee RROD Bato ie ee aro 5

8 ASC TL

I i ll atl lle 14, 15

see rdiiailinen 6

so) oa 6

PLEA AR A ees Lea Oe passim

I a celled passim

ts te Ae occ cnnscsscccsessecossecccsonosen passim

33 U.S.C. § 1860(b)(1)P* ............-0-0202..000.eceeeere2-PQSSEM

es eo racvcnsssnncedurensnsiosstosvoned passim

es, nian cncreaeitonenrnsideanennens 20, 24

Other Authorities

Clean Water Rule: Definition of “Waters of

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

RS ee are ee ET passim

The Random House Dictionary of the

English Language (2d ed. 1987) ...................0:00+- 16

Webster’s New World Dictionary

LS i cen 13, 17, 18

Zecheriah Chafee, The Thomas M. Cooley

Lectures, Some Problems of Equity

TTT Lich caleisauelitieaasiabecdeenibani mated dicted eaininiceagiabieetnistiinndashs 23

INTRODUCTION

In June 2015, the Environmental Protection

Agency (“EPA”) and the Army Corps of Engineers

(“Corps”) (collectively, “the Agencies”) issued a final

rule purporting to establish an expansive new defini-

tion of “waters of the United States” for the entire

Clean Water Act. See Clean Water Rule: Definition

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

(June 29, 2015) (“the Rule”). With this Rule, the

Agencies have attempted to broadly expand their

power, but narrowly restrict the judicial review

available for those who would challenge it. In both

respects, the Agencies’ actions are par for the course.

As for the Agencies’ power, this Court has twice

rejected their efforts to enlarge their authority be-

yond what the Clean Water Act allows. Rapanos v.

United States, 547 U.S. 715 (2006); Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159 (2001) “SWANCC”). The Rule

seeks to do so yet again. In fact, the State Respond-

ents—Ohio, Alabama, Alaska, Arizona, Arkansas,

Colorado, Florida, Georgia, Idaho, Indiana, Kansas,

Kentucky, Louisiana, Michigan, Mississippi, Mis-

souri, Montana, Nebraska, Nevada, the New Mexico

State Engineer, the New Mexico Environment De-

partment, the North Carolina Department of Envi-

ronmental Quality, North Dakota, Oklahoma, South

Carolina, South Dakota, Tennessee, Texas, Utah,

West Virginia, Wisconsin, and Wyoming—have al-

ready obtained a stay of (or a preliminary injunction

against) the Rule’s expansive reading of the Agen-

cies’ authority. See In re EPA, 803 F.3d 804, 809 (6th

Cir. 2015); North Dakota v. U.S. EPA, 127 F. Supp.

3d 1047, 1060 (D.N.D. 2015). But the merits of the

Rule are not at issue in the petition for certiorari.

2

The petition instead concerns judicial review.

This Court has also twice rejected the Agencies’ ef-

forts to prevent courts from considering claims that

they wrongly classified lands as subject to their au-

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

136 S. Ct. 1807 (2016); Sackett v. EPA, 132 S. Ct.

1367 (2012). The Agencies’ views on the proper court

to challenge the Rule could do so yet again. They ar-

gue that the broad Rule falls within a narrow class of

specific EPA actions listed in 33 U.S.C. § 1369(b)(1)

that are reviewable exclusively by circuit courts. But

a finding of “[rjeviewability under section 1369 car-

ries a peculiar sting” for the regulated community: it

bars later challenges in subsequent litigation.

Longview Fibre Co. v. Rasmussen, 980 F.2d 13507,

1313 (9th Cir. 1992); see Decker v. Nw. Envtl. Def.

Ctr., 133 S. Ct. 1826, 1334 (2013). Thus, the Agen-

cies’ reading of § 1369 could insulate the Rule from

future as-applied challenges like those that this

Court considered in Hawkes or Sackett.

Given the Agencies’ efforts to shoehorn the Rule

into § 1369(b)(1), the State Respondents find them-

selves in the same jurisdictional quagmire as Peti-

tioner, the National Association of Manufacturers.

They have been forced to litigate duplicative com-

plaints in the district courts and petitions for review

in the circuit courts due to the Agencies’ so-called

“pragmatic” reading of § 1369. The State Respond-

ents file this brief to detail why the Sixth Circuit’s

fractured 1-1-1 jurisdictional holding is wrong.

First, § 1369’s language shows that the circuit

courts lack jurisdiction over the Rule. An analysis of

§ 1369 must begin “with the language of the statute

itself,” and it should “end” there when “the stat-

3

ute’s language is plain.” Puerto Rico v. Franklin

Cal. Tax-Free Trust, 186 S. Ct. 1938, 1946 (2016) (ci-

tation omitted). The Agencies have argued that the

Rule can fit within the text of § 1369(b)(1)(E) and

(F)}—arguments that the lead opinion below found

“not compelling,” Pet. App. 9a (McKeague, J., op.),

and that the controlling concurrence found “illogical

and. unreasonable,” id. at 29a (Griffin, J., concurring

in judgment). Starting with Subsection (E), the Rule

does not promulgate an “effluent limitation or other

limitation under section 1311, 1312, 1316, or 1345”—

four specific provisions directing the EPA to issue

distinct types of pollution restrictions. It is instead a

definitional rule interpreting text found elsewhere (in

33 U.S.C. § 1362(7)) for the entire Act. Turning to

Subsection (F), the Rule does not “issu[e] or deny[]” a

permit “under” 33 U.S.C § 1342. The Agencies’ in-

terpretation that Subsection (F) covers anything af-

fecting permitting reads those verbs out of the stat-

ute. That is why the Sixth Circuit could find juris-

diction only by relying on factors—such as policy

concerns or circuit precedent—other than the text.

Second, textual canons of construction confirm

the plain-text reading of Subsections (E) and (F). For

one thing, statutory language should be read against

the backdrop of the statute as a whole. The Clean

Water Act specifically identifies seven EPA actions

subject to immediate appellate review, in stark con-

trast to the Clean Air Act’s broad grant of appellate

jurisdiction over all agency actions. It is unlikely

that Congress would have intended for this precise

language to be interpreted loosely. For another, a

statute should be read in a manner that avoids ren-

dering words or phrases superfluous. But a broad

4

reading of Subsections (E) and (F) would make other

jurisdictional grants in § 1369 redundant.

Third, the decision below complicates a relatively

straightforward jurisdictional statute, in violation of

the principle that courts should read jurisdictional

statutes to yield “simple” rules. Hertz Corp. v.

Friend, 559 U.S. 77, 94 (2010). Vague rules require

“an enormous amount of expensive legal ability [to]

be used up on jurisdictional issues when it could be

much better spent upon elucidating the merits of

cases.” Sisson v. Ruby, 497 U.S. 358, 375 (1990)

(Scalia, J., concurring in judgment) (citation omit-

ted). This litigation spotlights those hazards.

“(C]areful counsel” have had to sue simultaneously at

two levels of the judiciary “to protect their rights,”

Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys.,

551 F.2d 1270, 1280 (D.C. Cir. 1977), and courts have

now spent significant resources to “assure them-

selves of their power to hear” these issues, Hertz, 559

U.S. at 94. Far better for this and all future cases

that courts stick to the comparatively simpler rules

flowing out of § 1369’s text.

Fourth, the Sixth Circuit expands § 1369 in a way

that restricts review under the Administrative Pro-

cedure Act (APA). The APA establishes a “presump-

tion of reviewability for all final agency action.”

Hawkes, 136 S. Ct. at 1816 (citation omitted). But

§ 1369(b)(2) bars later “judicial review” of actions

that fall within § 1369’s purview in a subsequent

“civil or criminal proceeding for enforcement.”

Courts have refused to “read[] § [1369](b)(1) broadly”

given these restrictions. Am. Paper Inst. v. EPA

(“Am. Paper IT’), 882 F.2d 287, 289 (7th Cir. 1989)

(Easterbrook, J.); Longview, 980 F.2d at 1313. This

5

Court, too, should affirm the presumption of review-

ability by reading § 1369 narrowly—a reading that

Justice Powell proposed in a similar setting. See

Harrison v. PPG Indus., 446 U.S. 578, 594 (1980)

(Powell, J., concurring).

Fifth, and finally, the lead opinion’s analysis rests

on a mistaken premise that was rejected by a majori-

ty of the judges on the Sixth Circuit panel. It mis-

construed language from this Court’s decisions in

E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112

(1977), and Crown Simpson Pulp Co. v. Costle, 445

U.S. 193 (1980), as creating a “license to construe

Congress’s purposes in § 1369(b)(1) more generously

than its language would indicate.” Pet. App. 13a

(McKeague, J., op.); id. at 17a. In doing so, the lead

opinion “expand/ed]” this Court’s dicta in those cases

well beyond its intended reach. Jd. at 35a (Griffin,

J., concurring in judgment). While E.J. du Pont and

Crown Simpson invoked practical concerns, they did

so only to reinforce the text, not to disavow it.

At day’s end, the Sixth Circuit’s jurisdictional

holding conflicts with § 1369’s text and will have

negative effects on the scope of judicial review under

the Clean Water Act. This holding was mistaken.

STATEMENT OF THE CASE

A. Relevant Provisions of the Act. The Clean Wa-

ter Act generally prohibits any unauthorized “dis-

charge of any pollutant by any person” into waters

within the Agencies’ reach. 33 U.S.C. § 1311(a). The

Act defines “pollutant” broadly to include many ordi-

nary substances, including dirt and other fill materi-

als. Id. § 1362(6). It defines “discharge of a pollu-

tant” broadly to cover “any addition of any pollutant

6

to navigable waters from any point source,” such as a

pipe or ditch. Jd. § 1362(12), (14). And it defines

“person” broadly to include individuals, corporations,

and the States. Id. § 1362(5).

The Act establishes two different permitting pro-

grams that are relevant to the jurisdictional question

at issue here. Under 33 U.S.C. § 1342(a), the EPA

issues permits pursuant to the “National Pollutant

Discharge Elimination System” (“NPDES”), which

allows persons to discharge pollutants that can wash

downstream. Under § 1344, the Corps issues permits

allowing persons to discharge “dredged or fill materi-

al,” “which, unlike traditional water pollutants, are

solids that do not readily wash downstream,” Ra-

panos, 547 U.S. at 723 (plurality op.). Both § 1342

and § 1344 authorize the States to create and operate

their own permitting programs for waters within

their borders. 33 U.S.C. §§ 1342(b), 1344(g). Most

States have done so under the NPDES program in

§ 1342; two States have done so under the program

for dredged and fill material in § 1344.

A permit holder seeking to discharge pollutants

generally must abide by several limitations set under

other statutory sections of the Act. 33 U.S.C.

§ 1342(a). Many of these specific sections also impli-

cate the jurisdictional question at issue here. 33

U.S.C. § 1311 directs the EPA to set general “effluent

limitations” for pollutant discharges that are tied to

the “best available technology” that is “economically

acnievable” by point sources. In addition, 33 U.S.C.

§ 1312 directs EPA to set unique limitations that are

tied to the chosen water quality standards for specif-

ic water bodies. 33 U.S.C. § 1316 directs the EPA to

set unique limitations for new sources of pollution.

7

33 U.S.C. § 1317 directs the EPA to set unique limi-

tations for certain “toxic pollutants.” And 33 U.S.C.

§ 1345 directs the EPA to set unique limitations for

“sewage sludge.” These limitations are incorporated

into specific permits, which “serve ‘to transform gen-

erally applicable effluent limitations . . . into the ob-

ligations . . . of the individual discharger(s).” FJ. du

Pont, 430 U.S. at 119-20 (citation omitted).

Also relevant to the jurisdictional question, on top

of source-by-source permitting, 33 U.S.C. § 1313 re-

quires States to set and update “water quality stand-

ards” for waters within their borders. “These state

water quality standards provide ‘a supplementary

basis .. . so that numerous point sources, despite in-

dividual compliance with effluent limitations, may be

further regulated to prevent water quality from fall-

ing below acceptable levels.” PUD No. 1 of Jefferson

Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704

(1994) (citation omitted). As part of these standards,

States must adopt “individual control strateg[ies]” for

certain “toxic pollutants.” 33 U.S.C. § 1314()(1)(D).

If the EPA rejects a State’s individual control strate-

gy, the EPA may promulgate its own for the relevant

waters. Id. § 1314(1)(8).

The phrase “navigable waters” identifies the wa-

ters that are covered by “the entire statute,” and so it

is critical for defining the reach of all of its sections.

Rapanos, 547 U.S. at 742 (plurality op.). The Act de-

fines “navigable waters” to “mean[] the waters of the

United States, including the territorial seas.” 33

U.S.C. § 1362(7). The Corps originally interpreted

this phrase to incorporate the “traditional judicial

definition,” covering only “interstate waters that are

‘navigable in fact’ or readily susceptible of being ren-

8

dered so.” Rapanos, 547 U.S. at 723 (plurality op.).

Environmental groups challenged that definition,

and a district court invalidated it. Natural Res. De-

fense Council, Inc. v. Callaway, 392 F. Supp. 685, 686

(D.D.C. 1975). Since then, the Agencies have “adopt-

ed a far broader definition.” Rapanos, 547 U.S. at

725 (plurality op.). This Court has rejected the

Agencies’ overly broad definition as applied to certain

wetlands, see id. at 786 (Kennedy, J., concurring in

judgment), and to an “abandoned sand and gravel pit

... which provide[d] habitat for migratory birds,”

SWANCC, 531 U.S. at 162.

B. The Rule. The Rule, published in the Federal

Register on June 29, 2015, is yet another attempt by

the Agencies to define “waters of the United States”

far too broadly; if implemented, it would “invariably

result[] in expansion of regulatory authority” by the

Agencies. Pet. App. 15a (McKeague, J., op.). The

Rule is both substantively flawed (because it extends

the Agencies’ jurisdiction to many lands that should

not be covered under this Court’s teachings) and pro-

cedurally flawed (because it adopted specific dis-

tance-based rules in its definition of covered waters

that were not in the proposed rule).

More important for present purposes, it is undis-

puted that the Rule purports only to define those wa-

ters that are subject to federal regulation under the

Clean Water Act. See 80 Fed. Reg. at 37,104 (“In this

joint rulemaking, the agencies establish a definition-

al rule that clarifies the scope of the Clean Water

Act.”). The Rule does not change any of the Act’s

mechanisms, set any standards or limitations, ex-

empt or include any sources or pollutants, or issue or

deny any permits. Indeed, the Rule expressly notes

9

that it “does not establish any regulatory require-

ments,” id. at 37,054, and “imposes no enforceable

duty on any state, local, or tribal governments, or the

private sector, and does not contain regulatory re-

quirements that might significantly or uniquely af-

fect small governments,” id. at 37,102.

C. Judicial Review. The Clean Water Act divides

jurisdiction between the circuit courts and the dis-

trict courts based on the type of EPA action that is at

issue. For most final EPA actions, chaliengers may

sue in the district court under the Administrative

Procedure Act (APA). See 5 U.S.C. § 704. In most of

this Court’s recent cases, for example, the plaintiffs

who asserted that their lands did not qualify as “wa-

ters of the United States” had originally brought suit

in district courts under the APA. E.g., Hawkes, 136

S. Ct. at 1813; Sackett, 132 S. Ct. at 1371; Rapanos,

547 U.S. at 765; SWANCC, 531 U.S. at 1665.

The Act also identifies seven specific actions by

the EPA’s Administrator that are subject to immedi-

ate circuit review. 33 U.S.C. § 1369(b)(1). In partic-

ular, it requires circuit review for EPA 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,

10

(E) in approving or promulgating ary 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[.]

Id. These petitions for review must be filed “within

120 days from the date of such determination, ap-

proval, promulgation, issuance or denial, or after

such date only if such application is based solely on

grounds which arose after such 120th day.” Jd. And

if a party could have sought review under § 1369,

that party cannot later assert the challenge in en-

forcement proceedings. Id. § 1369(b)(2).

D. State Challenges. The State Respondents be-

lieve thac the circuit courts lack jurisdiction over the

Rule under § 1369(b)(1) because the Rule is not one

of the seven listed actions. So they filed district-court

suits challenging the Rule in a total of five actions.

North Dakota v. EPA, No. 3:15-cv-59 (D.N.D.); Ohio

v. U.S. Army Corps of Eng’rs, 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.); Ok-

lahoma ex rel. Pruitt v. EPA, No. 4:15-cv-381 (N.D.

Okla.).

Yet, given the Agencies’ position on jurisdiction,

see 80 Fed. Reg. at 37,104, and given that § 1369's

grant of jurisdiction to circuit courts is exclusive, the

State Respondents filed protective petitions for re-

view in the circuit courts under § 1369(b)(1)—a prac-

tice that the circuit courts have recommended. E.z.,

Inv. Co. Inst., 551 F.2d at 1280 (“If any doubt as to

the proper forum exists, careful counsel should file

11

suit in both the court of appeals and the district

court.”); see Ohio v. U.S. Army Corps of Eng’rs, No.

15-3799 (6th Cir.); Oklahoma ex rel. Pruitt v. EPA,

No. 15-9551 (10th Cir.); North Dakota v. EPA, No.

15-2552 (8th Cir.); Texas v. EPA, No. 15-60492 (5th

Cir.); Georgia v. McCarthy, No. 15-13252 (11th Cir.).

The State Respondents’ petitions were consolidated

in the Sixth Circuit with the petitions from many

other groups. See 28 U.S.C. § 2112(a).

After consolidation, many of the State Respond-

ents filed a motion to stay the Rule, and all of them

moved to dismiss their petitions for lack of jurisdic-

tion. The Sixth Circuit granted the stay. Jn re EPA,

803 F.3d at 809. It concluded that the State Re-

spondents had “demonstrated a substantial possibil-

ity of success on the merits of their claims.” Jd. at

807. “In light of the disparate rulings... issued by

district courts around the country,” the court rea-

soned, “a stay [would], consistent with Congress’s

stated purpose of establishing a national poli-

cy,...restore uniformity of regulation... pending

judicial review.” Id. at 808.

Subsequently, the Sixth Circuit denied the mo-

tions to dismiss for lack of jurisdiction in a fractured

1-i-1 decision. The lead opinion, written by Judge

McKeague, concluded that the circuit courts had ju-

risdiction under Subsection (E) and Subsection (F) of

§ 1369(b)(1). Pet. App. 3a-26a. Citing this Court’s

cases interpreting § 1369, Judge McKeague believed

that the section should be “construed not in a strict

literal sense, but in a manner designed to further

Congress’s evident purposes.” /d. at 26a. Judge

Griffin concurred in the judgment. Jd. at 27a-45a.

He disagreed that the Sixth Circuit had jurisdiction

12

under the plain text of Subsections (E) and (F), find-

ing the Agencies’ reading to be “illogical and unrea-

sonable.” Jd. at 29a. Nevertheless, he believed that

the panel was compelled to follow “incorrect” yet

binding circuit precedent concerning Subsection (F)’s

scope. Id. at 44a (discussins; Nat? Cotton Council of

Am. v. EPA, 553 F.8d 927 (6th Cir. 2009)). Judge

Keith dissented, agreeing with Judge Griffin’s textu-

al analysis but disagreeing that circuit precedent re-

quired a finding of jurisdiction under Subsection (F).

Id. at 45a-47a.

The Sixth Circuit denied immediate en banc re-

view of this holding. Jd. at 52a. Briefing on the mer-

its remains ongoing in the Sixth Circuit.

ARGUMENT

Il. THE CourRTS OF APPEALS Do Not HAVE SUB

JECT-MATTER JURISDICTION OVER THE RULE

UNDER SECTION 1369(b)(1)

A majority of the Sixth Circuit panel correctly

recognized that it would be “illogical and unreasona-

ble” to read § 1369 as granting circuit jurisdiction

over the Rule. See Pet. App. 29a (Griffin, J., concur-

ring in judgment); id. at 45a (Keith, J., dissenting).

Of the seven actions triggering jurisdiction under

§ 1369, the Agencies have claimed that the Rule falls

within two: Subsection (E) (“approving or promul-

gating any effluent limitation or other limitation un-

der section 1311, 1312, 1316, or 1345”) and Subsec-

tion (F) (“issuing or denying any permit under sec-

tion 1342”).

The Agencies are wrong for four basic reasons:

(1) the Rule falls outside the plain language of Sub-

sections (E) and (F); (2) several textual canons of

13

construction confirm that those two subsections can-

not be read with the breadth necessary to cover the

Rule; (3) this Court’s strong preference for bright-line

jurisdictional rules supports a plain-text approach to

§ 1369; and (4) the presumption of agency-action re-

view favors that plain-text reading as well.

A. The Rule Falls Outside The Plain Text Of

Subsections (E) And (F)

Subsections (E) and (F) have a parallel structure:

specific verbs describing a specific EPA action, a di-

rect object of that EPA action, and a prepositional

phrase identifying the statutory section under which

the EPA must take the action. Each requirement

must be satisfied for jurisdiction to exist under those

provisions. The Rule does not satisfy these require-

ments for either subsection.

1. Subsection (FE). Subsection (E) grants the cir-

cuit courts jurisdiction over EPA action (1) “approv-

ing or promulgating” (2) “any effluent limitation or

other limitation” (3) “under section 1311, 1312, 1316,

or 1345.” The two verbs cover both actions that con-

sent to limitations developed by others (“approving”),

and actions that publish limitations directly created

by the EPA itself (“promulgating”). Cf. Webster’s New

World Dictionary 68, 1137 (2nd coll. ed. 1972). The

use of both verbs, moreover, illustrates that this sub-

section intended for the verb “promulgate” to have a

narrow domain, covering only those regulations that

directly impose EPA limitations, not “everything [the

EPA] issues” in the Federal Register. Roll Coater,

Inc. v. Reilly, 932 F.2d 668, 670 (7th Cir. 1991); Lake

Cumberland Trust, Inc. v. EPA, 954 F.2d 1218, 1222

(6th Cir. 1994). Any broader interpretation would

read “approves” out of the subsection.

14

Next, the action that the EPA approves or prom-

ulgates must be an “effluent limitation” or “other

limitation.” The Clean Water Act defines “effluent

limitation” as “any restriction established by a State

or the Administrator on quantities, rates, and con-

centrations of chemical, physical, biological, and oth-

er constituents which are discharged from point

sources into navigable waters....” 33 U.S.C.

§ 1362(11). This Court has found that these “effluent

limitations” include regulations establishing general

limitations on the discharge of pollutants by certain

categories of point sources, such as chemical plants.

See E.I. du Pont, 430 U.S. at 136.

While the Act does not define “other limitation,”

Congress’s use of the phrase “effluent limitation or

other limitation” suggests that an “other limitation”

must be similar to an effluent limitation. Under “the

doctrine of noscitur a sociis,” courts “avoid ascribing

to one word a meaning so broad that it is incon-

sistent with its accompanying words.” Gustafson v.

Alloyd Co., 513 U.S. 561, 575 (1995). Here, a broad

view of “other limitation” would swallow up “effluent

limitation”; Congress would have said “any limita-

tion” if it intended for a broad reading. Instead,

“other limitation” should be read in context as cover-

ing restrictions that are “directly related to effluent

limitations” in that they “direct[] . .. point sources to

engage in specific types of activity,” Am. Paper Inst.,

Inc. v. EPA (“Am. Paper I’), 890 F.2d 869, 877 (7th

Cir. 1989), such as limits on a point source’s cooling

water intake structures, Va. Elec. & Power Co. v.

Costle, 566 F.2d 446, 450 (4th Cir. 1977).

Finally, the limitation must arise from §§ 1311,

1312, 1316, or 1345. Each section directs the EPA to

15

create distinct limitations through regulation:

§ 1311 tells the EPA to promulgate technology-based

limits for existing sources; § 1312 directs it to prom-

ulgate water-quality-based limits for certain water

bodies; § 1316 directs it to promulgate standards of

performance that will lead to new-source limits; and

§ 1345 directs it to promulgate sewage-sludge limits.

If, by contrast, a limitation primarily arises from an-

other section—such as a water quality standard from

§ 1313—jurisdiction does not exist. E.g., Friends of

the Eart/: v. EPA, 333 F.3d 184, 190 (D.C. Cir. 2003);

Longview, 980 F.2d at 1312-13; Bethlehem Steel

Corp. v. EPA, 538 F.2d 513, 516-18 (2d Cir. 1976).

The Rule does not meet Subsection (E)’s require-

ments both because it is not a “limitation” and be-

cause it does not arise under §§ 1311, 1312, 1316, or

1345. To begin with, the Rule does not promulgate

an “effluent limitation or other limitation.” It cannot

be considered an “effluent limitation” because it no-

where sets limitations on the pollutants that can be

discharged into navigable waters. 33 U.S.C.

§ 1362(11); Pet. App. 9a (McKeague, J., op.). Nor can

it be considered an “other limitation” because it does

not propose limits on point sources that are at all like

effluent limitations. Va. Elec., 566 F.2d at 450; Am.

Paper I, 890 F.2d at 877. Indeed, the Rule affirma-

tively disclaims doing so: It “does not establish any

regulatory requirements,” 80 Fed. Reg. at 37,054,

and “imposes no enforceable duty” on “governments”

or “the private sector,” id. at 37,102. “[Rjather, it

sets the jurisdictional reach for whether the dis-

charge limitations even apply in the first place.” Pet.

App. 32a (Griffin, J., concurring in judgment).

16

In addition, no limitations arise “under” §§ 1311,

1312, 1316, or 1345. The Rule itself “does not ema-

nate from these sections.” Jd. at 3la. It does not set

technology-based limits under § 1311, water-quality-

based limits under § 1312, new-source limits under

§ 1316, or sewage-sludge limits under § 1345. In-

stead, the Rule interprets text—“waters of the Unit-

ed States,” 33 U.S.C. § 1362(7)—found in the Act’s

definitional section. Pet. App. 3la (Griffin, J., con-

curring in judgment). Far from being tailored to

those sections, moreover, the Rule’s “definition will

apply to all provisions of the Act.” 80 Fed. Reg. at

37,104. It applies to many sections—such as § 1313

(which addresses water quality standards) or § 1344

(which addresses the Corps’ permitting program for

dredged or fill material)—over which jurisdiction

does not exist under § 1369. That is why both Agen-

cies, not just the EPA, issued the Rule; it covers pro-

visions within the Corps’ domain. Z/d. at 37,115-119.

That § 1369 grants jurisdiction over EPA actions, not

actions of both Agencies, confirms that the Rule is not

an EPA-specific effluent or other limitation.

2. Subsection (F). Subsection (F) grants jurisdic-

tion over EPA action (1) “issuing or denying” (2) “any

permit” (3) “under section 1342.” 33 U.S.C.

§ 1369(b)(1)(F). “By its plain terms, this provision

conditions the availability of judicial review on the

issuance or denial of a permit” under the NPDES

permitting program in § 1342 (not the Corps’ permit-

ting program in § 1344). Rhode Island v. EPA, 378

F.3d 19, 23 (1st Cir. 2004). The verb choices are key.

To “deny” a permit, the EPA must “withhold the

possession, use, or enjoyment of” it. The Random

House Dictionary of the English Language 533 (2d

17

ed. 1987) (defining “deny’”); Webster’s, supra, at 378

(defining “deny” as “to refuse the use of or access to”).

This Court has thus read the phrase “deny” to en-

compass an EPA action vetoing a state-issued permit

under § 1342 because that veto had the “precise ef-

fect” of a denial. Crown Simpson, 445 U.S. at 196.

To “issue” a permit, the EPA must “give [it] out

publicly or officially.” Webster’s, supra, at 749. The

EPA regularly does so. E.g., Natural Res. Def. Coun-

cil v. EPA, 808 F.3d 556, 562 (2d Cir. 2015) (chal-

lenge to “Vessel General Permit”); City of Pittsfield v.

EPA, 614 F.3d 7, 8 (ist Cir. 2010) (challenge to per-

mit for wastewater treatment plant). Yet, as circuits

have agreed, under no fair meaning of “issue” can the

verb be read to reach the EPA’s failure to object to,

and thus silent approval of, a state-issued permit.

Lake Cumberland, 954 F.2d at 1221 & nn.7, 12; Save

the Bay, Inc. v, Adm’r of EPA, 556 F.2d 1282, 1290-

92 (5th Cir. 1977); Mianus River Pres. Comm. v.

Adm 'r, EPA, 541 F.2d 899, 906-10 (2d Cir. 1976).

The Rule does not satisfy Subsection (F). The

Agencies do not claim that it actually “issues” or “de-

nies” a permit under § 1342. E.g., Pet. App. 18a-19a

(McKeague, J., op.). That should settle the matter.

An analysis of § 1369 must begin “with the language

of the statute itself,” and it must “end” there when

“the statute’s language is plain.” Franklin Cal. Tax-

Free Trust, 136 S. Ct. at 1946 (citation omitted). The

language is plain—it requires the EPA to have is-

sued or denied a permit. The Rule does not do so.

The Agencies instead argue that Subsection (F)

should be interpreted to encompass all EPA regula-

tions that will “impact permitting requirements” and

“affect{] the granting and denying of permits.” Pet.

18

App. 18a (McKeague, J., op.). Neither text nor prec-

edent supports this reading. As for text, the Agen-

cies would change the statutory language from “issu-

ing or denying” a permit to “affecting or relating to”

one. As for precedent, Crown Simpson—the only

case from this Court on which the agencies rely for

this argument—does not justify the Agencies’ atex-

tual view. Under a plain-text reading, the EPA veto

of a state-issued permit that was at issue in Crown

Simpson “refuse[d] the use of or access to” the permit

and so could be read as denying it. See Webster’s, su-

pra, at 378; Crown Simpson, 445 U.S. at 196. Here,

the Agencies can offer no interpretation of “issue” or

“deny” that could encompass the Rule.

In sum, this case is straightforward under a

plain-text reading of Subsections (E) and (F). The

Rule neither promulgates limitations under §§ 1311,

1312, 1316, or 1345, nor issues or denies permits un-

der § 1342. That is why a district court, not a circuit

court, considered the Corps’ initial regulations nar-

rowly defining the scope of “waters of the United

States.” See Callaway, 392 F. Supp. at 686.

B. Textual Canons Of Construction Rein-

force That The Circuit Courts Lack Ju-

risdiction Over The Rule

That Subsections (E) and (F) cannot be interpret-

ed to extend to the Rule is confirmed by a high-level

canon of construction and by an in-the-weeds canon

of construction: the rule that statutes should be read

as a whole and the rule against superfluity.

1. Reading Statutes As A Whole. “It is a funda-

mental canon of statutory construction that the

words of a statute must be read in their context and

19

with a view to their place in the overall statutory

scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070

(2016) (quoting Roberts v. Sea-Land Serus., Inc., 132

S. Ct. 1350, 1357 (2012)). Reading § 1369 as a whole

and against the entire Clean Water Act confirms that

Subsections (E) and (F) do not reach the Rule. Sec-

tion 1369(b)(1) precisely identifies seven specific ac-

tions down to the subsections under which those ac-

tions are authorized. As one example, Subsections

(A), (B), and (E) each cite a different action under

§ 1316. (Subsection (B) refers to a specific EPA vari-

ance provision within § 1316 that did not make it in-

to the final law.) It is noteworthy that Congress act-

ed with such specificity in the context of a compre-

hensive environmental statute. “No sensible person

accustomed to the use of words in laws would speak

so narrowly and precisely of particular statutory pro-

visions, while meaning to imply a more general and

broad coverage than the statutes designated.”

Longview, 980 F.2d at 1313.

If, however, “the exceptionally expansive view ad-

vocated by the government is adopted, [§ 1369(b)(1)]

would encompass virtually all EPA actions under

the” Act. North Dakota, 127 F. Supp. 3d at 1053.

Take the Agencies’ reading of Subsection (F). Nearly

every regulation will have some impact on the per-

mitting process because permits must abide by the

general limits adopted elsewhere by the EPA. See 33

U.S.C. § 1342(a). Similarly, as for the Agencies’ vie" /

of Subsection (E), most regulations will have some

connection to § 1311. The parties who unsuccessfully

sought to obtain circuit review of water quality

standards issued under § 1313, for example, argued

that they were referenced once in § 1311(b)(1)(C).

See Friends of the Earth, 333 F.3d at 190. Yet it is

20

unlhkely that Congress would have intended these

precise provisions to have such general reach.

Comparing § 1369(b)(1) to the jurisdictional grant

in the Clean Air Act, the Clean Water Act’s sister

statute, confirms that § 1369 should not be read in

the Agencies’ expansive way. Both Acts have judi-

cial-review provisions cataloging actions that circuits

may review, but the Clean Air Act goes further by

providing circuit jurisdiction over “any other final ac-

tion of the Administrator.” 42 U.S.C. § 7607(b)(1);

Harrison, 446 U.S. at 589. The Clean Water Act con-

tains no similar catch-all. The conclusion to be

drawn could not be clearer: Congress knows how to

provide for circuit review of all agency action as a

class. It did so under the Clean Air Act, but opted

not to do so under the Clean Water Act. Cf. Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167, 174-75 (2009).

2. Rule Against Superfluity. “It is ‘a{nother] car-

dinal principle of statutory construction’ that ‘a stat-

ute ought, upon the whole, to be so construed that, if

it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant.” TRW

Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Dun-

can v. Walker, 533 U.S. 167, 174 (2001)). The circuit

courts have applied this rule to § 1869(b)({1). Several,

for example, have considered whether circuit courts

have jurisdiction under Subsection (G)—which covers

EPA actions in “promulgating” individual control

strategies under § 1314(1)—over an EPA action that

approves a _ state-promulgated individual control

strategy. Lake Cumberland, 954 F.2d at 1221. The

courts have universally found jurisdiction lacking

based on the rule against superfluity. Jd. at 1222-24

(discussing cases). They point to Subsection (E),

21

which unlike Subsection (G), does use both “approv-

ing” and “promulgating.” These courts have refused

to write the verb “approving” out of Subsection (E) by

reading the verb “promulgating” in Subsections (EF)

and (G) broadly to cover both actions. See id.

This canon equally dooms the Agencies’ view. To

cover the Rule, Subsections (E) and (F) would have to

be read in such a broad manner as would make other

subsections superfluous. Subsection (A), for exam-

ple, grants jurisdiction over an action “promulgating

any standard of performance under section 1316” for

new sources. If Subsection (E)’s “other limitation”

covers anything that could limit the private sector, it

would make Subsection (A)’s grant over standards of

performance superfluous. Those standards are de-

signed “for the control of the discharge of pollutants.”

33 U.S.C. § 1316(a)(1). A broad reading of Subsec-

tion (E) thus “allow[{s] the term ‘other limitation’ to

swallow up distinctions that Congress made between

effluent limitations and other types of EPA regula-

tions” in § 1369(b)(1). Am. Paper I, 890 F.2d at 876-

77; Friends of the Earth, 333 F.3d at 190-91 & n.14.

Similarly, Subsection (C) grants jurisdiction over

an action “promulgating any effluent standard, pro-

hibition, or pretreatment standard under section

1317” for toxic pollutants. If Subsection (F)’s “issu-

ing or denying any permit” reaches any regulation

affecting permits, it would make Subsection (C)’s ju-

risdictional grant over § 1317's toxic-pollutant limits

superfluous. After all, § 1342 expressly identifies

those toxic-pollutant limitations as a “condition” for a

permit’s issuance. Id. § 1342(a)(1).

22

C. This Court’s Preference For Bright-Line

Jurisdictional Rules Supports A Plain-

Text Approach To § 1369

That § 1369(b)(1) concerns subject-matter juris-

diction reinforces that it should be interpreted as

written. The plain text—not the Agencies’ supposed-

ly pragmatic gloss on that text—establishes the

clearer boundary between the jurisdiction of the cir-

cuit courts under § 1369 and the jurisdiction of the

district courts under the APA.

1. This Court has a well-established “practice of

reading jurisdictional laws, so long as consistent with

their language, ... to establish clear and admin-

istrable rules.” Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 136 S. Ct. 1562, 1567-68

(2016); Direct Mktg. Ass’n v. Brohil, 135 S. Ct. 1124,

1133 (2015) (invoking the Court’s “rule that

‘{j)urisdictional rules should be clear” (citation omit-

ted)). The Court has, for example, adopted a clear

rule to identify a corporation’s “principal place of

business” for purposes of the diversity-jurisdiction

statute because “administrative simplicity is a major

virtue in a jurisdictional statute.” Hertz, 559 U.S. at

94. It has done the same when interpreting “final

decision” for purposes of the appellate-jurisdiction

statute, recognizing that “[cjourts and litigants

[were] best served by the bright-line rule” that it

adopted. Budinich v. Becton Dickinson and Co., 486

U.S. 196, 202 (1988). Perhaps most famously, the

Court has for over a century followed the “well-

pleaded complaint rule” for purposes of federal-

question jurisdiction, Louisville & Nashville R.R. Co.

v. Mottley, 211 U.S. 149, 152 (1908), praising the

23

“clarity and simplicity of that rule,” Vaden v. Discov-

er Bank, 556 U.S. 49, 60 (2009).

Many reasons undergird this general canon of

construction for jurisdictional statutes. To begin

with, clear rules reduce the time and expense di-

rected away from a case’s merits and toward second-

ary issues. “[C]jourts benefit from straightforward

rules under which they can readily assure them-

selves of their power to hear a case.” Hertz, 559 U.S.

at 94. With vague rules, by contrast, “an enormous

amount of expensive legal ability will be used up on

jurisdictional issues when it could be much better

spent upon elucidating the merits of cases.” Sisson,

497 U.S. at 375 (Scalia, J., concurring in judgment)

(quoting Zecheriah Chafee, The Thomas M. Cooley

Lectures, Some Problems of Equity 312 (19650)).

These costs “diminish the likelihood that results and

settlements will reflect a claim’s legal and factual

merits.” Hertz, 559 U.S. at 94.

In addition, “[t]he stakes of the inquiry are

high[er]” in the jurisdictional context than they are

in other contexts. Herr v. U.S. Forest Serv., 803 F.3d

809, 813 (6th Cir. 2015) (Sutton, J.). For over two

centuries, this Court has held that “subject-matter

jurisdiction, because it involves a court’s power to

hear a case, can never be forfeited or waived.” Ar-

baugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (cita-

tion omitted); Capron v. Van Noorden, 6 U.S. 126,

127 (1804). Accordingly, “a defect in subject-matter

jurisdiction requires a suit’s dismissal, no matter

how much the parties have spent and no matter how

late in the proceedings the defect comes to light.”

RTP LLC v. ORIX Real Estate Capital, Inc., 827 F.3d

689, 693 (7th Cir. 2016). Not only that, courts “have

24

an independent obligation to determine whether sub-

ject-matter jurisdiction exists, even in the absence of

a challenge from any party.” Arbaugh, 546 U.S. at

514. Likewise, courts have “no authority to create

equitable exceptions to jurisdictional requirements.”

Bowels v. Russell, 551 U.S. 205, 214 (2007). For

these reasons, “in matters of jurisdiction,” “clarity”

“is especially important.” United States v. Sisson,

399 U.S. 267, 307 (1970). Parties need to know

(clearly) where to sue because these effects leave zero

margin for error in choosing the forum.

2. This canon of construction shows that the

Court should follow the plain text. Unlike the Clean

Air Act, see 42 U.S.C. § 7607(b)(1), the Clean Water

Act cannot be interpreted to grant jurisdiction to the

circuit courts for all agency regulations, and instead

divides jurisdiction between the circuit courts and

the district courts. Cf. Pet. App. 33a (Griffin, J., con-

curring in judgment). “Jurisdictional tests are built

for more than a single dispute.” Merrill Lynch, 136

S. Ct. at 1575. It will be far easier in the run of cases

to determine on which side of the jurisdictional di-

vide a particular EPA action falls if courts stick to

§ 1369’s text rather than the Agencies’ amorphous

view of it.

Start with Subsection (E). In most situations,

EPA action “in approving or promulgating any efflu-

ent limitation or other limitation under section 1311,

1312, 1316, or 1345” will have clear guideposts. 33

U.S.C. § 1369(b)(1)(E). Most notably, that action will

involve the types of specific limitations that those

four provisions direct EPA to impose: technology-

based limits under § 1311, water-quality-based limits

under § 1312, new-source limits under § 1316, or

25

sewer-sludge limits under § 1345. See, eg., E.I. du

Pont, 430 U.S. at 136-37; see also Pet. App. 30a-33a

(Griffin, J., concurring in judgment).

Under the Agencies’ reading, by contrast, it will

often be unclear whether a particular EPA action

that is not itself a limitation under one of the four

sections could have an “indirect effect” that should

qualify as one. Pet. App. 15a (McKeague, J., op.). In

many cases, that view could require litigants to

guess at a rule’s impact, and courts to engage in ju-

risdictional fact-finding about a rule’s “effects.” Reg-

ulations defining “waters of the United States” offer

a case in point. The relative breadth of a challenged

regulation—whether it broadens the definition to

cover more waters or narrows the definition to ex-

empt more waters—could determine whether or not

the regulation counts as a “limitation” under Subsec-

tion (E) subject to circuit review. Indeed, a regula-

tion could broaden some aspects of the definition but

narrow other aspects, making it even murkier where

challengers should bring suit. Cf. id. at 38a (Griffin,

J., concurring in judgment).

Turn to Subsection (F). In most situations, it will

be obvious whether a party has challenged EPA ac-

tion “in issuing or denying [a] permit under section

1342.” 33 U.S.C. § 1369(b)(1)(F). The EPA will have

issued or denied a permit under § 1342. Under the

Agencies’ reading, by contrast, it will often be un-

clear whether a rule adequately relates to the per-

mitting process so as to trigger jurisdiction under

Subsection (F). See Pet. App. 18a (McKeague, J.,

op.). Indeed, this Court has had great difficulty in-

terpreting statutes, like ERISA, that use language

similar to what the Agencies seek to incorporate into

26

§ 1369. “[A]s many a curbstone philosopher has ob-

served, everything is related to everything else.”

Cal. Div. of Labor Standards Enforcement v. Dilling-

ham Constr., N.A., 519 U.S. 316, 335 (1997) (Scalia,

J., concurring). The Agencies thus ask this Court to

adopt a vague test that has already proved “excruci-

ating for courts to police” in other contexts. Merrill

Lynch, 136 S. Ct. at 1575.

In sum, the Agencies’ view on jurisdiction “jetti-

son[s] relative predictability for the open-ended

rough-and-tumble of factors, inviting complex argu-

ment in a trial court and a virtually inevitable ap-

peal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge

& Dock Co., 513 U.S. 527, 547 (1995). Under their

approach, nobody will know where to go with chal-

lenges to EPA action. This reading would regularly

force “careful counsel” to sue in both district courts

and circuit courts when challenging regulations un-

der the Clean Water Act. Jnv. Co. Inst., 551 F.2d at

1280. All of this litigation would lead to the “eating

up [of] time and money” on issues unrelated to the

merits (as it has in this case), which would represent

a costly initial step for those who seek to challenge

EPA action. Hertz, 559 U.S. at 94.

D. The Presumption In Favor Of Judicial

Review Confirms That § 1369’s Plain Text

Controls

The presumption of judicial review over agency

action confirms that courts should stick with, not de-

part from, § 1369’s text. That is because § 1369(b)(2)

restricts the judicial review available for the specific

actions that fall within § 1369(b)(1) as compared to

the normal judicial review that would otherwise be

available under the APA.

27

“The APA... creates a ‘presumption favoring ju-

dicial review of administrative action.” Sackett, 132

S. Ct. at 1373 (citation omitted). This presumption is

a “strong” one, and an “agency bears a ‘heavy bur-

den” to overcome it. Mach Mining, LLC v. EEOC,

135 S. Ct. 1645, 1651 (2015) (citation omitted).

The presumption applies, most obviously, when a

federal agency claims that the relevant action is not

reviewable by courts at ail. See, e.g., id. at 1652-53.

Yet it extends beyond that narrow domain to apply

whenever an agency argues that a particular statute

limits judicial review to certain methods. In Hawkes,

for example, the Agencies argued that the Clean Wa-

ter Act restricted judicial review of their “jurisdic-

tional determinations”—e.g., determinations that

certain lands fell within or outside “waters of the

United States”—to the end of the permitting process.

136 S. Ct. at 1816. This Court disagreed, invoking

the APA’s presumption of judicial review to do so.

Id. It reasoned that “[t]he mere fact’ that permitting

decisions are ‘reviewable should not suffice to sup-

port an implication of exclusion as to other[]’ agency

actions, such as [the jurisdictional determinations]”

that were at issue in Hawkes. Id.

Under the same logic, circuit courts in this very

context have recognized that the APA’s presumption

disfavors a broad reading of § 1369(b)(1). Section

1369(b)(1) provides for judicial review only during a

short 120-day window, and, in addition, § 1369(b)(2)

bars judicial review of EPA actions that could have

been challenged under § 1369 in later “civil or crimi-

nal proceeding[s] for enforcement.” “Where ... re-

view is available” under § 1369(b)(1), “it is the exclu-

sive means of challenging actions covered by the

28

statute.” Decker, 133 S. Ct. at 1334. Accordingly, as

Judge Easterbrook has suggested, the “review-

preclusion proviso in § [1369](b)(2) [should] dis-

suade[]” this Court “from reading § [1369](b)(1)

broadly.” Am. Paper II, 882 F.2d at 289. Its “peculi-

ar sting” should instead lead the Court to interpret

§ 1369(b)(1) narrowly by finding most EPA actions

subject to the general APA standards. Longview, 980

F.2d at 1313. Indeed, Justice Powell suggested that

“constitutional difficulties well may counsel a narrow

construction of’ a jurisdictional provision in the

Clean Air Act whenever the statutory text would al-

low such a construction. Harrison, 446 U.S. at 594-

95 (Powell, J., concurring). The conclusion that the

Rule does not fall within Subsections (E) and (F) is,

at the least, a plausible construction of those provi-

sions. That suffices to trigger this presumption.

Indeed, this presumption is particularly appro-

priate for the expansive Rule—which will apply to

nearly every section of the Clean Water Act and to

the many different ecological environments in the

States. Most of the cases to reach this Court impli-

cating the scope of “waters of the United States” have

involved as-applied challenges that were tied to find-

ings for particular lands. See Hawkes, 136 S. Ct. at

1812-13; Sackett, 132 S. Ct. at 1370-71; Rapanos, 547

U.S. at 729 (plurality op.); SWANCC, 531 U.S. at

165. Such as-applied litigation should not be disal-

lowed simply because the Agencies have now adopted

a Rule on the scope of “waters of the United States.”

29

Il. THE SIXTH CIRCUIT’S CONTRARY ANALYSIS MIS-

READS THIS COURT’S CASES AND MISTAKENLY

INVOKES POLICY ARGUMENTS

The Sixth Circuit wrongly held that it has juris-

diction to review the Rule. First, Judge McKeague’s

lead opinion was alone in finding that jurisdiction

existed under Subsection (E). Pet. App. 8a-17a. The

lead opinion found the Agencies’ argument “not com-

pelling” under Subsection (E)’s text. Jd. at 9a. But it

reasoned that this Court’s E.J. du Pont decision

adopted a pragmatic approach to Subsection (E), and,

by doing so, unmoored that subsection’s scope from

“a literal reading of the provision.” /d. at 10a.

This overreads one sentence in E.J. du Pont at the

expense of the rest of the decision. While E.J. du

Pont invoked practical concerns, it did so only to rein-

force the text. That case concerned effluent limita-

tions that were issued under § 1311 and so fell with-

in Subsection (E)’s core. 430 U.S. at 136 (“We regard

[§ 1369](b)(1)(E) as unambiguously authorizing court

of appeals review of EPA action promulgating an ef-

fluent limitation for existing point sources under

[§ 1311].”). The industry, however, had argued for an

atextually narrow reading of Subsection (E), one

permitting review only “of the grant or denial of an

individual variance” from those limitations under

§ 1311(c). Id. This Court explained that Subsection

(E)’s text was not limited to variances under

§1311(¢). Jd. It noted that “Congress referred to

specific subsections of the Act” elsewhere in

§ 1369(b)(1), and thus Congress “presumably would

have specifically mentioned [§ 1311](c) if only action

pursuant to that subsection were intended to be re-

viewable in the court of appeals.” Jd.

30

Only “after a plain textual rejection of the indus-

try’s position,” Pet. App. 35a (Griffin, J., concurring

in judgment), did the Court add important practical

concerns. Interpreting Subsections (E) and (F) to-

gether, it noted that a contrary reading “would pro-

duce the truly perverse situation in which” circuit

courts “review numerous individual actions issuing

or denying permits” under Subsection (F), but not

“the basic regulations governing those individual ac-

tions” under Subsection (E). E.t. du Pont, 430 U.S.

at 136. E.I. du Pont thus relied on practical concerns

to reinforce the otherwise plain text of Subsection

(E); it did not grant circuits a freewheeling license to

depart from the text based on policy concerns.

Second, the Sixth Circuit erred in determining

that it had jurisdiction under Subsection (F). See

Pet. App. 17a-24a (McKeague, J., op.); id. at 44a

(Griffin, J., concurring in judgment). The concurring

opinion reached this conclusion only because the

panel was required to follow the Sixth Circuit’s Na-

tional Cotton decision, which had read Subsection (F)

to extend broadly to regulations affecting permits.

See id. at 42a-44a (Griffin, J., concurring in judg-

ment). National Cotton is, of course, no obstacle to

this Court adopting the right reading of Subsection

(F). And the concurring opinion correctly recognized

that National Cotton’s “jurisdictional reach ... has

no end” and is “incorrect.” Jd. at 42a, 44a.

The lead opinion also reasoned that this Court’s

Crown Simpson decision “opened the door to con-

structions other than a strict literal application.”

Pet. App. 17a (McKeague, J., op.). As noted, howev-

er, that case held only that an EPA veto of a state-

issued permit qualified as the “denial” of a permit

31

under Subsection (F). See Crown Simpson, 445 U.S.

at 196. In that respect, this Court again started with

the text: “When EPA, as here, objects to effluent lim-

itations contained in a state-issued permit, the pre-

cise effect of its action is to ‘den[y]’ a permit within

the meaning of [Subsection (F)].” Jd. Only then did

the Court add the pragmatic point that the review

process for permits should not depend “on the fortui-

tous circumstance of whether the State in which the

case arose was or was not authorized to issue per-

mits.” Id. at 196-97. This Court again tied its hold-

ing to the text; it did not ignore that text.

Third, the lead opinion drew support for its

“broader reading” of § 1369(b)(1) from Florida Power

& Light Co. v. Lorion, 470 U.S. 729 (1985). Pet. App.

21a-24a (McKeague, J., op.). It believed that lan-

guage in Florida Power, a case about the Atomic En-

ergy Act, evinced a general efficiency-based “prefer-

ence in favor of circuit court review” for all laws. See

id. at 23a. A majority of the panel correctly rejected

the lead opinion’s “reliance on a non-Clean Water Act

case to support its policy arguments.” Jd. at 43a

(Griffin, J., concurring in judgment). “Nowhere” did

Florida Power “intimate that it was ruling as a mat-

ter of general administrative procedure” or sound

policy. Nader v. EPA, 8659 F.2d 747, 754 (9th Cir.

1988). It instead held that jurisdiction “must of

course be governed by the intent of Congress and not

by any views [courts] may have about sound policy.”

Florida Power, 470 U.S. at 746.

In addition, Florida Power’s “lengthy exegesis of

th[e] specific statutes” at issue shows it cannot be

applied to a “separate, dissimilar statute” like this

one. Nader, 859 F.2d at 754. The relevant statutes

32

used broad terms to describe circuit jurisdiction, re-

flecting “a congressional intent to provide for initial

court of appeals review of all final orders.” Florida

Power, 407 U.S. at 739. That intent does not trans-

fer to this statute. The “considerable specificity in

section 1369(b)” shows that “not all EPA ac-

tions ... are directly reviewable in the courts of ap-

peals.” Narragansett Elec. Co. v. EPA, 470 F.3d 1, 5

(1st Cir. 2005). Additionally, the statute at issue in

Florida Power did not contain § 1369(b)(2)’s “review-

preclusion proviso,” which should lead this Court to

review § 1369(b)(1) narrowly even if it were ambigu-

ous. Am. Paper II, 882 F.2d at 289.

CONCLUSION

The Sixth Circuit lacks subject-matter jurisdic-

tion over the petitions for review.

Respectfully submitted,

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY*

State Solicitor

*Counsel of Record

30 East Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

eric.murphy@

ohioattorneygeneral.gov

Counsel for Respondent

State of Ohio

OCTOBER 2016

ADDITIONAL COUNSEL

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Attorney General

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