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

Supreme Court brief2017

Ask Donna

What actually matters in this document.

Text

GuERS

No. 16-299 enone 2

_7 ae

Ma) 4

In THE

Supreme Court of the Gnited States

NATIONAL ASSOCIATION OF MANUPACTURERS.

Petitioner,

DEPARTMENT OF DEFENSE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN SUPPORT OF

PETITIONER ON BEHALF OF WATERKEEPER

ALLIANCE, INC,, CENTER FOR BIOLOGICAL

DIVERSITY, CENTER FOR FOOD SAFETY,

HUMBOLDT BAYKEEPER, RUSSIAN

RIVERKEEPER, MONTEREY COASTKEEPER,

SNAKE RIVER WATERKEEPER, INC.,

UPPER MISSOURI WATERKEEPEHR, INC..,

TURTLE ISLAND RESTORATION

NETWORK, INC., SIERRA CLUB AND

PUGET SOUNDKEEPER ALLIANCE

JENNIFER C. CHAVEZ ALLISON M. LAPLANTE

EARTHJUSTICE Counsel of Record

1625 Magsachusetts Av. NW JAMES N. SAUL

Suite 702 EARTHRISE LAW CENTER

Washington, DC 20036 LEWIS & CLARK LAW SCHOOL

(202) 667-4500 10015 S.W. Terwilliger Blvd.

jchavez@earthjustice.org Portland, OR 97219

(503) 768-6894 (LaPlante)

(503) 768-6929 (Saul)

laplante@lclark.edu

saul@lclark.edu

Counsel for Respondents

April 27, 2017

_— A STL st: aera

14h one Care Brarmar OA he ~ LONT TRONS . Wastiencrm OM C 2000?

QUESTION PRESENTED

Whether 33 U.S.C. 1369(b)(1)(F), which provides

for direct review in the courts of appeals of any

action of the EPA Administrator “in issuing or

denying any permit under section 1342” of the

Clean Water Act, grants the circuit courts of

appeals exclusive jurisdiction to review a federal

rule defining the phrase “waters of the United

States.”

PARTIES TO THE PROCEEDING

An original twelve petitions for review of the

Clean Water Rule were filed in eight different

circuits courts of appeals; these petitions were

consolidated and transferred to the Sixth Circuit by

the United States Judicial Panel on Multidistrict

Litigation. (Consolidation Order, Dkt. No. 3, MCP

No. 135 (JPML July 28, 2015)). An additional ten

petitions for review were filed after that date and

also consolidated.

Respondents Waterkeeper Alliance, Inc., Center

for Biological Diversity, Center for Food Safety,

Humboldt Baykeeper, Russian Riverkeeper,

Monterey Coastkeeper, Snake River Waterkeeper,

Inc., Upper Missouri Waterkeeper, Inc., and Turtle

[sland Restoration Network, Inc. were petitioners

below in No. 15-3837.

Respondents Puget Soundkeeper Alliance and

Sierra Club were petitioners below in No. 15-3839.

Petitioner here, National Association of

Manufacturers, was an intervenor-respondent in

many of the petitions for review filed below.

Federal respondents here, and respondents

below, are the U.S. Environmental Protection

Agency; Scott Pruitt, in his official capacity as

Administrator of the Environmental Protection

Agency!; U.S. Army Corps of Engineers; Robert M.

Speer, in his official capacity as Acting Secretary of

the Army”; and Jo-Ellen Darcy, in her official

capacity as Assistant Secretary of the Army for

Civil Works.

The States of New York, Connecticut, Hawaii,

Massachusetts, Oregon, Vermont, Washington, and

the District of Columbia are respondents here, and

were intervenor-respondents below.

The other petitioners below, and respondents

here, include:

No. 15-3751: Murray Energy Corporation.

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

Tennessee.

No. 15-3817: National Wildlife Federation.

No. 15-3820: Natural Resources Defense

Council, Inc.

No. 15-3822: State of Oklahoma.

No. 15-3823: Chamber of Commerce of the

United States; National Federation of Independent

'‘ Administrator Pruitt was sworn in as EPA Administrator on

February 17, 2017, and replaces Gina McCarthy as

respondent pursuant to Supreme Court Rule 35.3.

¢ Secretary Speer was appointed Acting Secretary of the Army

effective January 20, 2017, and replaces John McHugh as

respondent pursuant to Supreme Court Rule 35.3.

Business; State Chamber of Oklahoma; Tulsa

Regional Chamber; and Portland Cement

Association.

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

Arizona, Arkansas, Colorado, Idaho, Missouri,

Montana, Nebraska, Nevada, South Dakota,

Wyoming, New Mexico Environment Department,

New Mexico State Engineer.

No. 15-3850: American Farm Bureau

Federation; American Forest & Paper Association;

American Petroleum Institute; American Road and

Transportation Builders Association; Greater

Houston Builders Association; Leading Builders of

America; Matagorda County Farm _ Bureau;

National Alliance of Forest Owners; National

Association of Home Builders; National Association

of Realtors; National Cattlemen’s Beef Association;

National Corn Growers Association; National

Mining Association; National Pork Producers

Council; National Stone, Sand, and Gravel

Association; Public Lands Council; Texas Farm

Bureau; and U.S. Poultry & Egg Association.

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

Mississippi; Texas Department of Agriculture;

Texas Commission on Environmental Quality;

Texas Department of Transportation; Texas

General Land Office: Railroad Commission of

Texas; Texas Water Development Board.

No. 15-3858: Utility Water Act Group.

No. 15-3885: Southeastern Legal Foundation,

[Inc.; Georgia Agribusiness Council, Inc.; Greater

Atlanta Homebuilders Association, Inc.

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

Alabama, Florida, Indiana, Kansas;

Commonwealth of Kentucky; North Carolina

Department of Environment and _é Natural

Resources; States of South Carolina, Utah, and

Wisconsin.

No. 15-3948: One Hundred Miles; South

Jarolina Coastal Conservation League.

No. 15-4159: Southeast Stormwater Association,

Inc.; Florida Stormwater Association, Inc.; Florida

Rural Water Association, Inc., and Florida League

of Cities, Inc.

No. 15-4162: Michigan Farm Bureau.

No. 15-4188: Washington Cattlermen’s

Association; California Cattlemen’s Association;

Oregon Cattlemen's Association; New Mexico

Cattle Growers Association; New Mexico Wool

Growers, Inc.; New Mexico Federal Lands Council:

Joalition of Arizona/New Mexico Counties for

Stable Economic Growth; Duarte Nursery, Inc.:;

Pierce Investment Company; LPF Properties, LLC:

Hawkes Company, Inc.

No. 15-4211: Association of American Railroads:

Port Terminal Railroad Association.

No. 15-4234: Texas Alliance for Responsible

Growth, Environment and Transportation.

No. 15-4305: American Exploration & Mining

Association.

No. 15-4404: Arizona Mining Association;

Arizona Farm Bureau; Association of Commerce

and Industry; New Mexico Mining Association;

Arizona Chamber of Commerce & Industry;

Arizona Rock Products Association; and New

Mexico Farm & Livestock Bureau.

CORPORATE DISCLOSURE STATEMENT

Respondents Waterkeeper Alliance, I[nc.,

Senter for Biological Diversity, Center for Food

Safety, Humboldt Baykeeper, Russian Riverkeeper,

Monterey Coastkeeper, Snake River Waterkeeper,

Inc., Upper Missouri Waterkeeper, Inc., Turtle

Island Restoration Network, Inc., Sterra Club, and

Puget Soundkeeper Alliance are _ not-for-profit

public advocacy organizations that have no parent.

corporations and do not issue stock.

——

vil

TABLE OF CONTENTS

QUESTION PRESENTED 0.000.0..0...0.ccccccccccecceeeeeeee :

PARTIES TO THE PROCEEDING ..0.0..0...0.00000006. ii

CORPORATE DISCLOSURE STATEMENT.......... v

TABLE OF AUTHORITIES .0.0.000.0000.00000c0ccc000c00ee. viii

OPINIONS BELOW...................... ee ee a ard

nn smeavoneusscsoaca: 1

STATUTORY PROVISIONS INVOLVED...............

A 2

SUMMARY OF THE ARGUMENT .....0.0.0.0.00.000000.-. 8

| ee ic ace rAd 11

I. Section 1369(b)(1)’s Grant of Direct

Judicial Review in the Courts of Appeals

oe a auccooewnedws seeds 11

{l. The Issuance of a Rule Clarifying the Waters

to Which the Clean Water Act Applies does

not Constitute the Issuance or Denial of a

Permit Under Section 1342 of the Statute .... 19

A. Under the Plain Language of Section

1369(b)(1)(F), a Rule Defining Which

Waters Constitute “Waters of the United

vill

States” for Purposes of Establishing

Clean Water Act Jurisdiction is not the

Issuance or Denial of a Permit Under

es Cr ieaaienniadameseniion 19

B. Neither EJ. du Pont Nor Crown Simpson

Establishes that Section 1369(b)(1)(F)

Extends to EPA Rules Bearing Generally

on the NPDES Program .........................++ 27

(. The Courts that Have Broadly Applied

Section 1369(b)(1)(F) to General NPDES

Regulations Have Improperly Departed

I I I osha ted dcteisieneeicsingnainepalnmnield 32

II]. An Expansive Reading of Section 1369(b)(1)

Disrupts the Traditional Jurisdiction

Federal Courts Maintain to Review

LD | =

IE GD wicictirrvctetsttens tap pietenipintatebesivincdiatl 35

CONCLUSION ............. a a ai del deal eel 44

TABLE OF AUTHORITIES

Cases Page

Abbott Labs. v. Gardner,

gt 2 |, Seer ae 35

Adamo Wrecking Co. v. United States,

es a tinceccisccuctvcivnbissesastaeeincnsd AO, 41

Am. lron and Steel Inst. v. EPA,

ee re Ge BPI neccice sc cccecvcnseseesstcoceessons 17

Cases (cont.) Page

Am. Mining Cong. v. EPA,

965 F.2d 759 (9th Cir. 1992)..................... 31, 32, 33

Am. Paper Inst. v. EPA,

882 F.2d 287 (7th Cir. 1989)..................... 29, 30, 39

Am. Portland Cement Alliance v. EPA,

Ne a Oe Ie, Se I ccccnnccesnchussencccccocecces 16

ANR Pipeline Co. v. FERC,

$66 F.26 1239 @).C. Cir. 1903)..........................-. 39

Appalachian Energy Group v. EPA,

ge 17

Ark. Poultry Fed’n v. EPA,

862 F.2d 324 (Oth Cir. 1968)...................0...00..c0e00. 17

Arkansas v. Oklahoma,

503 U.S. 91 (1992)............... Pi Peked =e Les one 19, 20

Auer v. Robbins,

EIEN ACERT AO A nD RE A 38

Barnhart v. Peabody Coal Co.,

RSE SRE RR IRs ae aero 13

Bethlehem Steel Corp. v. EPA,

ee eS I vecnsicedsscnccescneis cxssensccces 17

Bowen v. Mich. Acad. of Family Physicians,

a pins 35

Cases (cont.) Page

Cent. Hudson Gas & Elec. Corp. v. EPA,

587 F.2d 549 (2d Cir. 1978) ........-.---------seeee eee 18, 19

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

AGT U.S. 837 (1984) ..........---:e0eeeeee eee oe eee eee, eee 23

Chrysler Corp. v. EPA,

600 F.2d 904 (D.C. Cir. 1979).............- aaa Al

City of Baton Rouge v. EPA,

620 F.2d 478 (5th Cir. 1976).........---::-:e eer 17

Coeur Alaska, Inc. v. Se. Alaska Cons. Council,

557 U.S. 261 (2009)............-.:cceeeeeeeeeeeeeeeees 14, 25, 34

Crown Simpson Pulp Co. v. Costle,

AA5 U.S. 193 (1980) ..............-cceeeeeeeeeeeenenesseees passim

Decker v. Nw. Envt'l Dey. Ctr.,

133 S. Ct. 1326 I i ccenicesssantngnantinnrinestasancecon ih 36

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

A3O U.S. 112 (1977)........-..c2ccceeeeecceeeseeneneneeeees passim

Eagle-Picher Industries, Inc. v. EPA,

759 F.2d 905 (D.C. Cir. ae ae

Envtl. Prot. Info. Ctr. v. Pac. Lumber Co.,

266 F. Supp. 2d 1101 (N.D. Cal. EE 21

Friends of the Earth v. EPA,

393 F.3d 184 (D.C. Cir. 2003) .........--..:.:2:seeeeeeeeee 17

Cases (cont.) Page

Gutierrez de Martinez v. Lamagno,

I DS ccaatngntsedenneian 35

Harrison v. PPG Industvies, Inc.,

ee a esindincaeiana 31, 40, 41

Idaho Rural Council v. Bosma,

143 F.Supp.2d 1169 (D. Idaho 2001).................... 20

In re U.S. Dep’t of Def., EPA Final Rule: Clean

Water Rule: Definition of Waters of U.S.,

jhe & 38. oo % | ee passim

Interstate Commerce Comm'n v. Brotherhood

Of Local Eng’rs, 482 U.S. 270 (1987) ....... 36, 38, 39

Legal Envtl. Assistance Found., Inc. v. Pegues,

ee ee EN IE Bi virincncsesccnscnciciscssorenss 17

Lujan v. Nat'l Wildlife Fed'n,

Oe ee, Be ie I go occrcsceiedscadscccesensdevencetsucens 7

McNary v. Haitian Refugee Ctr., Inc.,

I yaaa cael enmenisinneeind 34

Narragansett Elec. Co. v. EPA,

407 F.3d 3 (iat Car. 3006) .................. PEERATE CORE 17

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

563 F.3d 927, (Gth Cir. 20098)..............-scs0+0. 6, 26, 32

xll

Cases (cont.) Page

Nat'l Mining Ass'n v. Jackson,

880 F. Supp. 2d 119 (D.D.C. 2012).............00.0... 30

Natural Res. Def. Council, Inc. v. Costle,

Ee Fe Be Cs Gris BOE OP ccc canes cocescccccvecesses: 21

Natural Res. Def. Council, Inc. v. EPA,

BS FH. BOE GU Cie. BGI) q....cccccccccnceccessccccvceeses: 32

Natural Res. Def. Council, Inc. v. EPA,

SOG F.Ba USSE ta Cie. TGGE).......ccccccccccsecssccsseeses 32

Natural Res. Def. Council, Inc. v. EPA,

ye Be EF Ji: emo ap Renee 24, 33

Natural Res. Def. Council, Inc. v. EPA,

fe | | ed Ee neneee 33

Nw. Envtl. Advocates v. EPA,

537 F.3d 1006 (9th Cir. 2008)......................... 20, 21

Ohio Forestry Ass'n, Inc. v. Sierra Club,

EE RARER ES SE laces op alee 38

Rapanos v. United States,

ge GE Re a ee pe 2, 24, 25, 34

Recreational Vehicle Indus. Ass'n v. EPA,

PA gf.) 1 os | | ee. 37

Reno v. Catholic Soc. Servs., Inc.,

BER in PR aa aa SS ae Nh NOR ad aire 35

Cases (cont.) Page

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers,

Pe Ses RO GD cacicccccccecccccctccaccivene 23, 24, 25, 34

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978)........... an 12

Tex. Mun. Power Agency v. EPA,

796 F.2a 173 (Gthh Cir. 1906).....................ccc0...000:. 24

United States v. Hoechst Celanese Corp.,

BE Fe Oe COG Cie, BOE ics ccc csecevccocccnccccccnscess 37

United States v. Magnesium Corp. of America,

a I ia cacicescccecevacesscuocancedancoccssancocas 37

United States v. Riverside Bayview Homes, Inc.,

Ns RE IR aa cass drcdaccnerecnanenresuadadeccaseds 24, 34

Waterkeeper Alliance, Inc. v. EPA,

I Ste Ce Gee BI cnn cn ceccnccesccccccccvesccccecss: 28

Yakus v. United States,

Ce nn asdubandens RI SS 40

Federal Statutes Page

Ss TF ei i 35

RE SS IT ea ce a eR SOE ene? 4

Nn i ee 7

Neen os sca iimedlthdeuacsucnt 6

I ct seater srab ed taba, ]

XIV

Federal Statutes (cont.) Page

33 U.S.C.

ia re ro ns NOTES a thie: 2

art i sie nda lneddcomeea heel 16

Tn ee sanbegsccdeiumesenenmmnns passim

EGE aa CEN ae Peeeae tei tee OR ea nto 2, 14, 21

ns ca sicunedenesendes Peel ee 14

BOR RING) .........0654:.. Pekan tee asters? 20

Tee su sbeskeeldeuvubdpeuueunsaauael 22

en eau gekliekaecseeeeenenee 15, 28

I iniciendsksiniaseiedbabwecsivaiersben sareivedeeens 14

I ic cicearinsntescewensacs saasionmeaatdaas 28

I os costuinscsebienincbbatsiecacsedeeace 28

ac aeasaneaecebts 15, 22

| RRS ICNeeperoeetes peers Bemiereer ey 127! 22

I fo es eancapheduenvediobede passim

IS. us Cssutdvandinenovinempesenninicnesnaiill 20

I ch ctridivninsewenswbadeioonens iahbapdecnae 20

a scasisiuveriuducsswenrpoueseseasemininieiee 21

cis dmienbivinesenepioeteiel 21

dil ok saccsbeesasndepasereehanel 30

Rc aos coed cmignamaaeneengaine passim

EERE eae mrp r ene | 16

TE ae disks all 9, 15

ERIE See ee Saino Ape enTEy mE 11, 14

BREE) ..:...:..... Sad enSae WA Dune nes WEE Ney: 2.4143

INS... ci siccciesedardacoewsessendavsigtadaebeatedl 28

I co cad couts ceaadenibanlsereinie 14, 21

coo | oo ckacuiees evened passim

il cctiekibetenticesssacttinsbennind passim

IID i onic ce ses encescesesccessvsans 12, 13

I nc. rnuanestnendalnseunneinen incall 17

EEE RRS ae ea mH passim

RR RG ase a eae passim

Federal Statutes (cont.) Page

re es a no, 9,15, 40, 41

Federal Regulations Page

33 C.F.R. 328.3(a) (2012)........ SSD NA PAIS CIs 9 0 26

onions sisecscanscndocsvesretasseccsan 26

I i ic cssenseviares'svasndias TAN 20

i EOD vncicscccceccsncsdcocvccanscsess SS 37

' ios 2 St 5 a nRaans SSP. NORDEA oe nan ip A 25

Other Authorities Page

123 Cong. Rec. S26, 754 (daily ed. Aug. 4, 1977) ..15

H.R. Rep. No. 95-830 (1977) (Conf. Rep.) .............. 15

Final Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material”,

67 Fed. Reg. 31,129 (May 9, 2002)....................... 25

Clean Water Rule: Definition of “Waters of the

United States”, 80 Fed. Reg. 37,054

Ne copaeeke 15, 20, 22

OPINIONS BELOW

The decision of the court of appeals is

reported at 817 F.3d 261. The court of appeals

order denying rehearing en banc was entered on

April 21, 2016. No. 15-3751, Dkt. #92-1. The

regulation under review in these consolidated

cases is Clean Water Rule: Definition of “Waters of

the United States”, 80 Fed. Reg. 37,054 (June 29,

2015).

JURISDICTION

The order and judgment of the court of

appeals denying all motions to dismiss the

petitions for review for lack of jurisdiction was

entered on February 22, 2016. The court of

appeals’ order denying rehearing en banc was

entered on April 21, 2016. On July 1, 2016,

Justice Kagan extended the time to file petitions

for a writ of certiorari to September 2, 2016, and

Petitioner National Association of Manufacturers

filed its petition on that date. This Court granted

the petition for writ of certiorari on January 13,

2017. The Court’s jurisdiction rests on 28 U.S.C.

1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant portions of Section 509(b) of the

Clean Water Act, 33 U.S.C. 1369(b), are set forth

in the appendix to petitioner's petition for writ of

certiorari at 53a-54a.

STATEMENT

In order to “restore and maintain the

chemical, physical, and biological integrity of the

Nation's waters,” 33 U.S.C. 125l1(a), the Clean

Water Act (““CWA” or “Act”) broadly regulates the

discharge of pollutants to “navigable waters’,

which are defined by the Act to mean “the waters

of the United States.” /d. at 1362(7). The meaning

of this phrase has broad ramifications for the

implementation of nearly every’ regulatory

program under the Act, and so it is perhaps

unsurprising that the interpretation of the phrase

has engendered considerable controversy since

the CWA was enacted in its current form in 1972.

See, e.g., Rapanos v. United States, 547 U.S. 715,

723-729 (2006) (discussing the interpretation of

the phrase “waters of the United States” over the

years by the Agencies and the courts).

In June of 2015 respondents’ U.S.

Environmental Protection Agency (“EPA”) and

the U.S. Army Corps of Engineers (“Corps”)

(collectively, the “Agencies”) promulgated a

regulation in an effort to bring clarity and

certainty to the scope of the CWA. Clean Water

Rule: Definition of “Waters of the United States”,

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

Water Rule” or “Rule”). The Rule constitutes the

Agencies’ latest effort to define the statutory

phrase “waters of the United States,” and thereby

identify the waters subject to the Act’s general

prohibition on pollutant discharges, see 33 U.S.C.

1311(a), as well as the regulatory permit

programs under the Act’s National Pollutant

Discharge Elimination System (“NPDES”) and

Section 404 of the Act. See generally td. at 1342,

1344.

Although the Clean Water Rule codified the

Agencies’ long-standing application of the Act to

several types of non-navigable waters, including

certain defined tributaries and their adjacent

wetlands, the Rule also created numerous

permanent exemptions from CWA jurisdiction for

ecologically important waters such as ephemeral

streams, waters beyond 4,000 feet from certain

other jurisdictional waters, and groundwater. As

a result, these waters—potentially consisting of

millions of acres of wetlands and thousands of

miles of streams, according to the Corps—are left

vulnerable to pollution and degradation. For

these reasons respondents Waterkeeper Alliance,

Inc., Center for Biological Diversity, Center for

Food Safety, Humboldt Baykeeper, Russian

Riverkeeper, Monterey Coastkeeper, Snake River

Waterkeeper, Inc., Upper Missouri Waterkeeper,

Inc., and Turtle Island Restoration Network, Inc.

(collectively, “Waterkeeper”) sought review of the

Clean Water Rule, as did respondents Puget

Soundkeeper Alliance and = Sierra Club

(collectively, “Puget Soundkeeper’).

As relevant here, the CWA provides for direct

review in the courts of appeals of any action by

the Administrator of the EPA “in issuing or

denying any permit under section 1342 of” the

Act. 33 U.S.C. 1369(b)(1)(F). This jurisdiction is

both original and exclusive. Decker v. Nw. Envt'l

Def. Ctr., 1383 S. Ct. 1326, 1334 (2013). Petitions

for review must be filed within 120 days after the

date of the Administrator's action of which review

is sought. 33 U.S.C. 1369(b)(1).

Like all petitioners, Waterkeeper and Puget

Soundkeeper faced a quandary: Should they seek

review of the Clean Water Rule in the court of

appeals under Section 1369(b)(1), or should they

instead file suit in the district court under the

Administrative Procedure Act, 5 U.S.C. 702 et

seq.? Under the plain language of the statute the

answer seems simple enough; on its face the Rule

merely defines a_ statutory phrase, albeit a

critically important one. It imposes no effluent

limitation or other limitation directly upon any

discharger, nor does it issue or deny any permit

under Section 1342, which establishes the

NPDES permitting program. Yet in light of the

muddled case law in some circuits that has

expanded the universe of Administrator actions

subject to review under 33 U.S.C. 1369(b)(1), as

well as the attendant risk that the opportunity for

review would be forever extinguished 120 days

after promulgation of the Rule, no _ prudent

litigant would make that “either/or” choice.

Waterkeeper timely filed its petition for review

under Section 1369(b)(1) in the Ninth Circuit on

July 22, 2015, as did Puget Soundkeeper. Ten

other petitions for review were filed in the

Second, Fifth, Sixth, Eighth, Tenth, Eleventh,

and D.C. Circuits; these petitions were ultimately

consolidated and transferred to the Sixth Circuit

by the United States Judicial Panel on

Multidistrict Litigation. (Consolidation Order,

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

Ten other later-filed petitions for review were

consolidated and transferred to the Sixth Circuit

as well.

A month later Waterkeeper filed a complaint

against respondents in the United States District

Court for the Northern District of California,

seeking review of the Clean Water Rule and

alleging violations of the Administrative

Procedure Act (“APA”), CWA, Endangered Species

Act (“ESA”), and National Environmental Policy

Act (“NEPA”). Waterkeeper Alliance et al. v. EPA

et al., No. 15-cv-08927 (N.D. Cal. filed Aug. 27,

2015). Waterkeeper voluntarily dismissed that

case in June 2016, only after the Sixth Circuit

had determined to proceed under Section

1369(b)(1)(F). Puget Soundkeeper filed a separate

complaint in district court, which has been stayed

since October 30, 2015. Puget Soundkeeper

Alliance, et al. v. EPA, et al., No. 15-cv-1342 (W.D.

Wash. filed Aug. 20, 2015).

Over a hundred other parties followed the

same two-pronged approach, and thus in addition

to the consolidated petitions for review before the

Sixth Circuit there were at least twelve suits filed

in district courts around the country, all seeking

review of the Clean Water Rule. The Judicial

Panel on Maultidistrict Litigation declined to

consolidate these district court actions, see /n re:

Clean Water Rule, MDL No. 2663, Dkt. 163

(JPML Oct. 13, 2015), and litigation before the

Sixth Circuit proceeded concurrently with these

district court cases. The result, predictably, was

chaos. See generally Nat'l Assn. of Mfrs. (“NAM”)

Cert. Pet. at 9-14.

Numerous petitioners, including Waterkeeper,

moved the Sixth Circuit to dismiss their own

petitions. The court denied those motions in a

fractured decision, each judge writing only for

himself. Judge McKeague wrote the lead opinion,

reading Section 1369(b)(1) expansively and

holding that direct appellate review of the Clean

Water Rule was proper under either Section

1369(b)(1)(E) or (F). In re U.S. Dep't of Def., U.S.

E.P.A. Final Rule: Clean Water Rule: Definition of

Waters of U.S., 817 F.3d 261 (6th Cir. 2016).

Judge Griffin joined only in the judgment,

beheving he was bound to do so by the court’s

prior decision in Nat'l Cotton Council of America

vu. EPA, 553 F.3d 927, 933 (6th Cir. 2009), yet

wrote separately to explain why he believed

neither 1369(b)(1)(E) or (F) applies to the Clean

Water Rule. Jn re U.S. Dep't of Def., 817 F.3d at

275-283. Finally, in a dissenting opinion, Judge

Keith agreed with the reasoning of Judge Griffin's

opinion, but found that National Cotton Council

does not control the outcome of the jurisdictional

question posed in this case. Id. at 283-284.

This jurisdictional confusion uniquely affects

Waterkeeper, who—alone among the challengers

to the Clean Water Rule—contends that the

Agencies violated both the ESA and NEPA when

they promulgated the Clean Water Rule. Were it

not for the confounding implication of Section

1369(b)(1), Waterkeeper’s ESA and NEPA claims

would have been properly brought in the district

court. See 16 U.S.C. 1540(g)(1)(a) (ESA’s citizen

suit provision, vesting the district courts with

jurisdiction to enjoin “the United States and any

other governmental instrumentality or agency”

from violating the ESA); Lujan v. Nat'l Wildlife

Fed'n, 497 U.S. 871, 882 (1990) (explaining how

an agency’s alleged violations of NEPA are

reviewed under Section 10(a) of the APA, 5 U.S.C.

702(a)).

Waterkeeper and Puget Soundkeeper

challenge the Clean Water Rule from the opposite

end of the spectrum from NAM; Waterkeeper and

Puget Soundkeeper allege that the Rule

impermissibly abandons CWA jurisdiction over

many ecologically valuable waters that have been

historically regulated by the Agencies, whereas

NAM and its allied challengers argue that the

Rule unlawfully expands CWA jurisdiction. See,

e.g., Compl. 4 3, Am. Farm Bureau Fed’n et al. v.

EPA et al., No. 15-cv-00165 (S.D. Tex. filed July 2,

2015). But on the limited issue of whether the

courts of appeals have jurisdiction over the Rule

under Section 1369(b)(1), Waterkeeper and Puget

Soundkeeper argue in support of NAM because

NAM is correct that these cases belong in the

district courts. Those’ affected by rules

promulgated under the CWA—be _ they

environmental advocates seeking to protect our

nations natural resources, or businesses

regulated under the Act’s permitting programs—

stand to benefit from a plain-text construction of

Section 1369(b)(1)(F) that adds certainty to the

litigation process and affords the presumptively

expansive opportunities for judicial review

Congress intended in the APA.

SUMMARY OF THE ARGUMENT

1. The question presented by petitioner is

whether the Sixth Circuit erred when it held that

it has jurisdiction under 33 U.S.C. 1369(b)(1)(F)

to decide petitions to review the waters of the

United States rule, even though the rule does not

"issule| or den|y] any permit" but instead seeks to

define the waters that fall within Clean Water

Act (“CWA”) jurisdiction. The answer to that

question is yes. The judgment of the court of

appeals should be reversed because Section

1369(b)(1) provides for direct review in the courts

of appeals only for explicitly listed actions, none of

which encompasses jurisdictional rules. More

specifically, the promulgation of a rule seeking to

define the waters to which the statute applies

simply cannot be deemed the “issufance] or

den{ial]” of a permit under Section 1342 of the

Act. The plain language of the CWA compels this

result.

a. Section 1369(b)(1) of the CWA provides for

direct review in the courts of appeals for seven

specific categories of actions taken by EPA under

the statute. On its face, this provision offers no

indication that the courts of appeals should have

direct review over unspecified actions. The

conclusion that they do not is underscored by the

fact that Section 1369(b)(1) specifically mentions

the promulgation of rules under several statutory

sections, none of which is at issue _ here.

Significantly, it makes no mention of EPA's

general rulemaking authority under the Act, 33

U.S.C. 1361(a), which provides the firmest

foundation for the Clean Water Rule.

Two other dynamics provide further support

for this conclusion. First, Congress could easily

have inserted—but did not—a “catch-all”

provision for any “final action taken” by the

Administrator, as it did in a similar judicial

review provision in the Clean Air Act (“CAA”), 42

U.S.C. 7607(b)(1). And second, all of the identified

situations in Section 1369(b)(1) reference actions

taken solely by EPA; none references either

actions taken by the Corps of Engineers or, as

here, actions undertaken jointly by both agencies.

b. The Agencies’ promulgation of a_ rule

defining the waters to which the CWA applies

was not the issuance or denial of an NPDES

permit within the meaning of Section

1369(b)(1)(F). Put simply, by its terms Section

1369(b)(1)(F) applies to decisions KPA makes in

response to particular permit applications. The

Clean Water Rule, by contrast, addresses broad

questions regarding the waters to which the

statute applies; it does not relate with sufficient

particularity to any particular NPDES permit

application or decision. Moreover, its effects far

transcend particularized permit decisions, in

some instances categorically eliminating any need

for a permit application.

Further, by its terms this rule applies well

beyond the realm of NPDES permit decisions,

however broadly interpreted. Indeed, it defines

the waters with respect to which the states must

develop water quality standards. And even more

pointedly, it does the same for waters subject to

the Corps’ permit authority under Section 1344,

colloquially known as the “Section 404 permit

program.” It is telling that nothing in Section

1369(b)(1) gives any indication that its judicial-

review-channeling dynamics should apply in

these contexts. It is also telling that applying

Section 1369(b)(1) in the context of Section 1344

would be in tension with the traditional review

authority this Court has exercised in wetlands

cases.

c. Nothing in either E.J. du Pont de Nemours

& Co. v. Train, 430 U.S. 112 (1977), or Crown

Simpson Pulp Co. v. Costle, 445 U.S. 193 (19860),

should alter this analysis. Taken together, this

Court’s decisions in those cases indicate only that

the courts of appeals can hear direct challenges

either to EPA actions listed in Section 1369(b)(1)

or to other actions having the “precise effect” of

listed actions. Neither decision supports the

conclusion that Section 1369(b)(1)(F) should be

stretched to include actions having nothing to do

with specific permit applications.

2. An _ expansive reading of Section

1369(b)(1)(F) would be in tension with traditional

ripeness analysis, would promote excessive and

unnecessary litigation, and would pose serious

fairness and due process concerns in situations in

which entities are foreclosed from challenging the

validity of regulations in enforcement cases.

For these reasons, the Court should reverse

the judgment of the court of appeals. The Sixth

Circuit does not have direct jurisdiction to hear

this case.

ARGUMENT

Section 1369(b)(1)(F)’s text plainly does not

authorize—let alone compel—direct review in the

courts of appeals regarding challenges to rules

interpreting the Clean Water <Act’s (“CWA”)

jurisdictional reach. This Court's holdings on

Section 1369(b)(1) are limited, and do nothing to

alter the clear thrust of the statute in this

context. For these reasons, and in light of the

troubling implications of an expansive reading of

Section 1369(b)(1)(F), the Court should determine

that the Sixth Circuit did not have original

jurisdiction over challenges to the Clean Water

Rule.

I. SECTION 1369(b))YS GRANT OF

DIRECT JUDICIAL REVIEW IN THE

COURTS OF APPEALS IS LIMITED

Section 309(b)(1) of the CWA, 33 U.S.C.

1369(b)(1), is inapplicable to challenges to EPA

and Corps rules clarifying the basic jurisdictional

terms established in Sections 1311 and 1362 of

the Act. 33 U.S.C. 1311, 1362. Congress expressly

enumerated seven EPA Administrator actions!

subject to Section 1369(b)(1). Section 1369(b)(1)

provides for revicw in the courts of appeals of

EPA actions:

(A) in promulgating any standard of

performance under section 1316 of this

title,

(B) in making any determination pursuant

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

prohibition, or pretreatment standard

under section 1317 of this title,

(D) in making any determination as to a

State permit program submitted under

section 1342(b) of this title,

(E) in approving or promulgating any

effluent limitation or other limitation

under section 1311, 1312, 1316, or 1345 of

this title,

(F) in issuing or denying any permit under

section 1342 of this title, and

(G) in promulgating any individual control

strategy under section 1304(]) of this title

' Hereafter, we refer to both the EPA Administrator and to

the agency itself as “EPA.”

2 In the court below, the Government argued that the Clean

Water Rule could constitute the promulgation of an “an

effluent limitation or other limitation” under Section

33 U.S.C. 1369(b)(1)(A)HG).

On its face, Section 1369(b)(1) offers no

indication that Congress intended the scope of

this provision to extend beyond the explicitly

listed actions. See, e.g., Tenn. Valley Auth. v. Hill,

437 U.S. 153, 188 (1978) (applying the maxim

expressio unius est exclusio alterius to conclude

that Congress did not intend to exempt any

“hardship cases” from the Endangered Species

Act beyond those expressly listed in the statute).

Instead, its precision demonstrates that Congress

intended Section 1369(b)(1) to apply only to the

EPA actions listed therein. Indeed, the only

logical inference is that Congress intended to

exclude EPA actions not specifically listed in

Section 1369(b)(1). See Barnhart v. Peabody Coal

Co., 537 U.S. 149, 168 (2003) (“[T]he canon

expressio unius est exclusio alterius ... has force .

. when the items expressed are members of an

associated group or series, justifying the inference

that items not mentioned were excluded by

deliberate choice, not inadvertence”) (internal

quotation omitted).

The conclusion that Section 1369(b)(1) does

not encompass unspecified categories of

regulations is buttressed by the fact that Section

1369(b)(1) makes specific reference to the

“promulgatfion]” of regulations under several

specified statutory sections, 33S sé...

1369(b)(1)(A), (C), (E), and (G), none of which is at

issue here.2 Significantly, Section 1369(b)(1)

makes no reference to rules addressing Section

1311(a), which is the provision of the statute that

requires those who “discharge . . . any pollutant”

to obtain a permit under either Section 1342 or

Section 1344. Nor does it mention either Section

2 In the court below, the Government argued that the Clean

Water Rule could constitute the promulgation of an “an

effluent limitation or other limitation” under Section

1369(b)(1)(E). Two of the three judges on the relevant panel

rejected that position. See /n re US. Dept of Def., US.

ELPA. Final Rule: Clean Water Rule: Definition of Waters of

U.S.. 817 F.3d 261, 276-280 (6th Cir. 2016) (Griffin, J...

concurring in the judgment), 283 (Keith, J., dissenting).

This makes eminent sense given the fact that, under the

Act, effluent limitations by definition relate to dischargers.

33 U.S.C. 1362(11), and that therefore, under the canon of

noscitur a soctiis, so too should the “other limitation”

phrase. Cf. id. at 276 (Griffin, J., concurring in judgment

and applying noscttur a soctiis) (“The Act defines ‘effluent

limitation’ as expressly relating to discharges| |) (emphasis

in original). Perhaps for this reason, the Government did

not seek certiorari regarding this determination.

%’ See 33 U.S.C. 1311(a), referencing 33 U.S.C. 1342

(creating the NPDES permit program) and 134-4 (creating a

permit program for the discharge of dredged or fill

material). See also Coeur Alaska, Inc. v. Se. Alaska

Conservation Counci!, 557 U.S. 261, 273-275 (2009)

(discussing the relationship between the two permitting

programs). Section 1369(b)(1)(E) does reference Section

1311, but only with respect to “effluent limitations or other

limitations” established thereunder. As_ this Court

recognized in E./. du Pont de Nemours & Co. v. Train, 430

U.S. 112 (1977), the statute contemplates that EPA is to

establish effluent limitations pursuant to 33 U.S.C. Section

1311(b), after having first developed effluent limitation

guidelines under 33 U.S.C. Section 1314(b). /d. at 130-131.

1362(12), which defines that key jurisdictional

phrase, or Section 1362(7), which further defines

the term “navigable waters” as “the waters of the

United States.” These are _ key © statutory

definitions that delineate the reach of the Act

itself.

Even more pointedly, Section 1369(b)(1)

makes no mention of Section 1361(a), which

provides EPA with its general rulemaking

authority under the Act. 33 U.S.C. 1361(a). In the

preamble to the final rule, EPA and the Corps

cited several statutory provisions as providing the

authority for the Clean Water Rule,! of which

Section 1361(a) is the only one that explicitly

authorizes rulemaking with regard to anything

other than the development of effluent

limitations. If Congress had intended for EPA’s

promulgation of regulations under Section

1361(a) to be included in Section 1369(b)(1)(F), it

would have expressly said so.

Moreover, Congress could readily have

included in Section 1369(b)(1) a “catch-all”

provision for any “final action taken” by the

Administrator, as it did in a similar judicial

Section 1311](a), by contrast, establishes the basic

jurisdictional parameters of the NPDES and Secttan 404

permit programs, when taken together with the relevant

definitional provisions in Section 1362.

' 80 Fed. Reg. 37,054, 37,055 (June 29, 2015) (citing 33

U.S.C. 1311, 1314, 1321, 1342, 1344, and 1361 as providing

the authority for the Clean Water Rule).

review provision in the Clean Air Act (“CAA”), 42

U.S.C. 7607(b)(1). But it did not.5 Congress’s

decision not to do so further demonstrates that it

intended for the courts of appeals to have direct

review over only the actions listed in Section

1369(b)(1).®

Finally, the conclusion that Section

1369(b)(1) should be limited to the expressly—

identified circumstances is underscored by the

fact that all of the identified situations address

actions taken solely by EPA.’ Not one pertains to

a context where, as here, EPA and the Corps have

taken joint action under the statute. Indeed,

neither the Corps, nor the corresponding term of

5 When Congress was amending the Clean Water Act in

1977, Senators Kennedy and Javits proposed § an

amendment to the bill on the floor of the Senate that would

have, among other things, expanded Section 1369(b)(1) to

cover any EPA action tn “promulgating any regulation

issued under section [1311] or [1342].” 123 Cong. Rec.

$26.754 (daily ed. Aug. 4, 1977). In the end, however, these

amendments were not adopted. H.R. Rep. No. 95-830, at

112 (1977) (Conf. Rep.).

6 A similar judicial review provision in the Resource

Conservation and Recovery Act (“RCRA”) also does not

include a “catch-all” provision. Courts have interpreted the

RCRA provision to include only the actions expressly listed

in the statute. See, e.g., Am. Portland Cement Alliance v.

EPA, 101 F.3d 772, 775 (D.C. Cir. 1996).

?7 The statutory term of art used throughout Section 1369 is

the “Administrator.” which 1s defined in Section 1251(d) to

mean the Administrator of EPA.

art, the “Secretary,”* nor Section 1344 itself—the

foundation of the Section 404 permit program—is

mentioned once in Section 1369(b). Section

1369(b)’s failure to make any reference to the

Corps takes on particular resonance given the

Corps’ lead role in implementing Section 1344,

one of the two key permit programs under the

Act. The inference is inescapable: Congress

intended that direct review in the courts of

appeals be limited to a specific list of actions, al]

of which are taken solely by EPA.

Recognizing Congress’s intent to limit Section

L369(b)(1) to the actions expressly enumerated in

that section, many courts of appeals have

correctly interpreted the provision by staying true

to its text. See, e.g., Bethlehem Steel Corp. v. EPA,

538 F.2d 513, 517 (2d Cir. 1976) (“[T]he

complexity and specificity of [Section 1369](b) in

identifying what actions of KPA under the [CWA]

would be reviewable in the courts of appeals

suggests that not all such actions are so

reviewable.”); Friends of the Earth v. EPA, 333

F.3d 184, 189 (D.C. Cir. 2003) (‘We agree with

our sister circuits [the 2nd, 5th, 8th, and 11th

Circuits]: original jurisdiction over EPA actions

not expressly listed in [S]ection 1369(b)(1) hes not

with us, but with the district court.”).? So too

*See 33 U.S.C. 1344(d).

® See also Am. Iron and Steel Inst. v. EPA, 543 F.2d 521,

528 (3d Cir. 1976) (referring to Section 1469(b)(1)(E) and (PF)

as “explicit and hmuited provisions’); Appalachian Energy

should the analysis here start from the premise

that only those EPA actions precisely listed in

Section 1369(b)(1) are subject to that provision’s

limitations on judicial review.

Group v. EPA, 33 F.3d 319, 322 (Ath Cir. 1994) (rejecting

original jurisdiction over an internal EPA memorandum in

part because Section 1369(b)(1) limits its jurisdiction to

“specified actions of the EPA administrator’); City of Baton

Rouge v. EPA, 620 F.2d 478, 480 (5th Cir. 1980) (“|T]he rule

is clear: the Courts of Appeals have jurisdiction for direct

review only of those EPA actions specifically enumerated”

in Section 1369); Ark. Poultry Fed’n v. EPA, 852 F.2d 324,

325 (8th Cir. 1988) (noting that courts of appeals’ original

jurisdiction under Section 1369(b)(1)(C) is limited); Legal

Envtl. Assistance Found., Inc. v. Pegues, 904 F.2d 640, 642

(1l’. Cir. 1990) (stating that Section 1369 provides for

“direct review in a circuit court of appeals of specific

administrative actions under the statute”); Narragansett

Elec. Co. v. EPA, 407 F.3d 1, 5 (1st Cir. 2005) (“[S]ince some

but not all of the actions that the EPA can take under the

CWA are listed with considerable specificity in [{S]lection

1369(b), not all EPA actions taken under the CWA are

directly reviewable in the courts of appeals.”).

1s)

Il. THE ISSUANCE OF A RULE

CLARIFYING THE WATERS TO WHICH

THE CLEAN WATER ACT APPLIES

DOES NOT CONSTITUTE THE

ISSUANCE OR DENIAL OF A PERMIT

UNDER SECTION 1342 OF THE

STATUTE

A. Under the Plain Language of Section

1369(b)Q)(F), a Rule Defining Which

Waters Constitute “Waters of the

United States” for Purposes of

Establishing Clean Water Act

Jurisdiction is not the Issuance or

Denial of a Permit Under Section

1342

Section 1369(b)(1)(F) grants the courts of

appeals direct review over EPA’s action “in

issuing or denying any permit under Section

1342” of the CWA. 33 U.S.C. 1369(b)(1)(F). This

provision is plainly about the issuance or demial of

a particular NPDES permit. See, e.g., Cent.

Hudson Gas & Elec. Corp. v. EPA, 587 F.2d 549,

557 (2d Cir. 1978) (finding that Section

1369(b)1)(F) ts limited “to a direct challenge to

the merits of a decision to ‘issue or deny’ a

NPDES permit.”); Arkansas vy. Oklahoma, 503

U.S. 91, 97 (1992) (assuming without discussion

that the court of appeals had original jurisdiction

to review EPA’s issuance of an NPDES permit).

As Judge Griffin noted below, “[u]nder a plain

text reading, the Clean Water Rule neither issues

nor denies a permit under the NPDES.” In re U.S.

Dep't of Def., U.S. E.P.A. Final Rule: Clean Water

Rule: Definition of Waters of U.S., 817 F.3d 261,

280 (6th Cir. 2016) (Griffin, J., concurring in the

judgment). Instead, the Rule clarifies the waters

to which the CWA does and does not apply.

Simply put, a rule addressing the jurisdictional

reach of the statutory waters of the United States

does not relate with sufficient particularity to any

specific permit application. We turn again to

Judge Griffin:

At best, the Clean Water Rule is one step

removed from the permitting process. It

informs whether the Act requires a

permit in the first place, not whether the

Agencies can (or will) issue or deny a

permit.

Id. at 281 (Griffin, J., concurring in_ the

judgment).

In the court below, the Government argued

that the Clean Water Rule should be deemed to

constitute the “issu[ance] or denfial]” of a permit

merely because it affects permit decisions. Jn re

U.S. Dept. of Def., 817 F.3d at 270-271

(McKeague, J., lead opinion). But this argument

glosses over the dissimilarity of the two types of

actions. To the extent that the Rule provides

regulatory exemptions—as it does, for example,

with respect to all seasonal streams not meeting

the new definition of “tributary”’'’-the effect is

that dischargers may continue discharging

without restriction and without fear of lability

under the CWA. This is in no way akin to the

issuance of a permit. Under both the statute and

EPA's regulations, EPA can only issue permits if

they meet specified requirements, including, for

example, ensuring comphance with water quality

standards. 33 U.S.C. 131 1b) 1)(C), 1842(a)(1) and

(2): 40 C.F.R 122.4(d): see also Arkansas, 503 US.

at 105-107 (upholding 40 C.F.R. 122.4(d) even to

the extent that it requires compliance with the

water quality standards of downstream states).

By contrast, a regulatory exemption negates these

requirements, including the permit requirement

itself. A regulatory action that negaics the very

need for a permit cannot be deemed to be the

equivalent of a permit issuance. Nw. Envtl.

Advocates v. EPA, 537 F.3d 1006, 1018 (9th Cir.

2008) (“NWEA”) (finding that permanent

exemptions from the NPDES program are not

even “functionally similar” to the issuance of an

NPDES permit); Envtl. Prot. Info. Ctr. v. Pac.

Lumber Co., 266 F. Supp. 2d 1101, 1114 (N.D.

Cal. 2003) (noting that the effect of an exemption

“is to exclude sources from the NPDES program,

” See, eg, 830 Fed. Reg. at 37,058. The Clean Water Rule

also categorically excludes groundwater, regardless of

whether tt has a significant hydrologeal relationship with

any nearby surtace waters. /d. at 47059. Cf, Idaho Rurai

Counetl vo Bosma, 143 FF. Supp. 2d 1169, LESO (DD. Idaho

2001) (concluding that groundwater may be a “water of the

L'nmited States” where tt has such a relationship).

whereas the issuance or denial of a permit, as a

matter of statutory mandate, only occurs when

there are point sources regulated by the NPDES

program.”).!!

At the other end of the spectrum, in contexts

in which the Clean Water Rule constitutes an

assertion of regulatory jurisdiction, it similarly

cannot be understood to operate in any sense like

either a permit issuance or denial. Instead, it

merely indicates the situations in which an

NPDES permit is required should a person or

facility wish to discharge pollutants.'? As Judge

Griffin indicated, it merely sets the stage for an

eventual permit decision if the relevant water

comes within its terms. In re U.S. Dept. of

Defense, 817 F.3d at 281 (Griffin, J., concurring in

the judgment).

Judge Griffin also identified another textual

problem with equating the Clean Water Rule with

the issuance or denial of an NPDES permit: it

applies across the entire statute, not just under

\! See also Natural Res. Def. Council, Inc. v. Costle, 568 F.2d

1369, 1382 (D.C. Cir. 1977) (noting that even “general

permits”—meaning those which are applicable to multiple

sources—are different from exemptions because they must

be revisited every five years, whereas exemptions “tend[] to

be become indefinite|.]) (citing 33 U.S.C. 1342(a)(3),

(b)(1)(B).

2 See 33 U.S.C. 1311(a), 1362(12) (collectively requiring

permits for “any addition of any pollutant to navigable

waters from any point source’).

the NPDES program. /n re U.S. Dept. of Defense,

817 F.3d at 281 (Griffin, J., concurring in the

judgment). The Agencies themselves

acknowledged this dynamic in the preamble to

the Rule:

The jurisdictional scope of the CWA is

“navigable waters,” defined in_ section

[1362(7)] of the statute as “waters of the

United States, including the territorial

seas.” The term “navigable waters” is used

in a number of provisions of the CWA,

including the . . . [NPDES] program, the

section [1344] permit program, the section

{1321} oil spill prevention and response

program, the water quality standards and

total maximum daily load programs

(TMDL) under section [1313], and the

section [1341] state water quality

certification process.

80 Fed. Reg. at 37,055 (footnote omitted).

Deeming the Clean Water Rule to constitute the

issuance or denial of an NPDES permit would

have implications for programs that Congress

never intended to be touched by Section

1369(b)(1).

These implications would be particularly

stark in the context of the Section 1344

permitting program. As mentioned, the Corps has

the lead role under Section 1344. In that capacity,

it of course has the implied authority, under

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984), to promulgate rules

resolving ambiguities in any of the relevant

statutory provisions. Indeed, it has a long history

of defining the phrase here at issue—‘“the waters

of the United States”—culminating in its joint

involvement in the Clean Water Rule. See

generally Solid Waste Agency of N. Cook County

v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 183-

184 (2001) “SWANCC”) (Stevens, J., dissenting)

(discussing the pre-Clean Water Rule evolution of

the Corps’ jurisdictional rules).

As also mentioned, Section 1369(b)(1) gives

no indication that it has any bearing on either the

Corps or the permit program it administers under

Section 1344. Given that silence, it is

unsurprising that courts, including this Court,

have repeatedly considered the legality of various

aspects of the Corps’ regulatory definitions of the

phrase “waters of the United States” in as-applied

challenges, without regard to whether those

challenges were untimely under the stringent

requirements of Section 1369(b)(1),'°> or were

otherwise improperly filed because they were not

brought directly in the courts of appeals. See, e.g.,

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) (arising from an enforcement

case); SWANCC, 531 U.S. 159 (2001) (Gin which a

permit denial was appealed in the district court);

Se oe ————————— eee

13 Section 1369(b)(1) requires that challenges to the

“issuance or denial” of a permit be brought within 120 days

of such issuance or denial, unless a particular challenge “is

based solely on grounds arising after such 120th day.”

Rapanos v. United States. 547 U.S. 715 (2006)

(arising from two separate enforcement cases).

Indeed, in none of these cases did the

Government even raise Section 1369(b)(1) as a

potential barrier to review. This makes sense,

given that Section 1369(b) contains no reference

to either the Corps or the Section 404 permit

program.

If Section 1369(b)(1)(F) is deemed to apply to

the Clean Water Rule, however, the Corps will

have flipped these jurisdictional dynamics on

their head merely by undertaking a_ joint

rulemaking process with EPA. Under the literal

terms of Section 1369(b)(1), this case would be the

only opportunity that challengers would have to

contest the Rule, at least in the absence of new

grounds.'' [t seems unlikely, to say the least, that

Congress would have intended for the judicial-

review dynamics of Corps regulations under the

CWA to pivot so radically on the fortuity of

whether the Corps happens to regulate in tandem

ee —- _------ ————

'' See fn. 13. supra; see also Tex. Mun. Power Agency v.

EPA, 799 2a 175, L75 (th Cir, 1986) (quoting Netiural

Res. Def. Council, inc. v. EPA, 673 F.2d 400, 406 (D.C. Cir.

1982), cert. dented sub nom Chem. Mfrs. Ass'n v. RPA, 459

US. 879 (1982), for the proposition that those who fail to

timely challenge qualifying actions under Section 1369¢b)(1)

“lose forever the right to do so, even though that action

might eventually result in the imposition of severe civil or

criminal penalties.”).

with EPA.'5 The better interpretation is that

Section 1369(b)(1)(F) applies only where EPA is

taking action in response to specific permit

applications. '®

15 Indeed, this Court has assumed the opposite to be the

case in Coeur Alaska, Inc. v. Se. Alaska Conservation

Council, 557 U.S. 261 (2009). In that case, EPA and the

Corps had issued a joint regulation defining the phrase “fill

material,” a jurisdictional phrase used in Section 1344. 67

Fed. Reg. 31,129 (2002); 557 U.S. at 275 (citing 40 C.F.R.

232.2). In its brief, the respondent noted that under a

literal reading of that rule, the term fill material might

encompass materials particularly unsuitable for regulation

under Section 1344, such as “feces and uneaten feed.” 557

U.S. at 275. In response, this Court noted that such

“extreme instances” were not before it. Jd. Tellingly, it

indicated that if such a situation were to arise, the

respondents could bring a challenge arguing that “the fill

regulation as interpreted is an unreasonable interpretation

of [Section 1344].” Jd. at 276.

'® Even more bizarrely, if Section 1369(b)(1)(F) applies to

EPA rules defining “waters of the United States,” the

Government could theoretically argue that cases such as

SWANCC and Rapanos have no bearing on its pre-Clean

Water Rule regulations defining that phrase, because the

statutory time for reviewing EPA’s rules—which were (and

are) substantively identical to those of the Corps-—would

have long since passed. Compare, e.g., 40 C.F.R. 122.2

(2012) (EPA), and 33 C.F.R. 328.3(a) (2012) (Corps).

B. Neither E.l. du Pont Nor Crown

Simpson Establishes that Section

1369(b)(1)(F) Extends to EPA Rules

Bearing Generally on the NPDES

Program

Courts that have broadly construed Section

1369(b)(1) have relied on this Court's decisions in

EI. du Pont de Nemours & Co. v. Train, 430 U.S.

112 (1977) (CEL. du Pont’), and/or Crown

Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980)

(“Crown Simpson”). See, e.g.. Natural Res. Def.

Council v. EPA, 656 F.2d 768, 775 (D.C. Cir.

1981) (relying on both in determining that it had

original jurisdiction to review certain regulations

under Section 1369(b)(1)(E); Nat? Cotton Council

of America v. EPA, 553 F.3d 927, 933 (6th Cir.

2009) (relying in part on E.J. du Pont in deeming

that Section 1369(b)(1)(F) provided it with

original jurisdiction to consider a_ regulatory

exemption); see also Jn re U.S. Dept. of Defense,

$17 F.3d at 270-273 (McKeague, J., lead opinion)

(relying on both). But EJ. du Pont and Crown

Simpson reflect narrow holdings appropriately

tailored to a narrow statutory provision.

In EJ. du Pont, this Court considered

whether Section 1369(b)(1) provides the courts of

appeals with jurtsdiction over challenges to

“industry-wide regulations imposing ... precise

feffluent] limitations” en existing dischargers.

430 U.S. at 115. This Court’s determination that

EPA has the authority to promulgate effluent

limitation regulations under Section 301

“necessarily resolve[d]” the jurisdictional

question, because the courts of appeals plainly

have jurisdiction over such regulations under

Section 1369(b)(1)(E). Jd. at 136. Once this Court

found EPA had authority under the Act to

promulgate effluent limitations as _ nationally

applicable regulations and not just individual

permit conditions, it looked to the plain meaning

of Section 1369(b) and easily answered the

jurisdictional question. Jd.

In rejecting the argument that the courts of

appeals lack original jurisdiction, this Court did

express concern that such an_ interpretation

would result in a “truly perverse situation in

which the court of appeals would review the

numerous individual actions issuing or denying

permits pursuant to [Section] 402 but would have

no power of direct review of the basic regulations

governing those individual actions.” E./. du Pont,

430 U.S. at 136. The “basic regulations” to which

this Court was referring were, of course, the

effluent limitations at issue in the case, which are

explicitly reviewable in the courts of appeals

pursuant to Section 1369(b)(1)(E). Regulations

clarifying the waters to which the Clean Water

Act applies are plainly not effluent limitations.

And this Court’s decision in E.J. du Pont should

not be expanded beyond its narrow context to

support the notion that the language of Section

1369(b)(1)(F) should be contorted to make

unspecified actions reviewable in the courts of

appeals.

Indeed, in E.J. du Pont this Court even

recognized the probability that certain EPA

actions very much resembling the promulgation of

effluent limitations would not themselves be

subject to review in the courts of appeals under

Section 1369(b)(1): “If industry is correct that the

regulations can only be considered [Section 1314]

guidelines, suit to review the regulations could

probably be brought only in the District Court, if

anywhere.” 430 U.S. at 125. This is because

Section 1314 is not listed in Section 1369(b)1).

The promulgation of binding effluent Jimitations

under Section 1311 and the adoption of Section

1314 effluent limitation guidelines are closely

related actions.'7 The link between effluent

ee i

7 The CWA defines “effluent limitation” as “any restriction

_on quantities, rates, and concentrations of” pollutants.

33 1'S.C. 1362(11). In contrast, EPA's establishment of

“effluent limitation guidelines” constitutes a preliminary

step that assists EPA in determining effluent linitations

by, for example, “identify[ing}| ... the degree of effluent

reduction attainable through the application of the best

practicable contro! technology currently available” and

“specify[ing| factors to be taken into account in determining

the control measures and practices to be applicable to point

sources . ...” 33 U.S.C. 1314(b)(1MA)-@). Thus, EPA's

action in “approving or promulgating any efflucnt

limitation” is informed by, but not the same as, EPA's

action promulgating regulations providing guidance to the

KPA on the setting of effluent Limitations. See, ¢£..

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491 (2d

Cir 2005) (noting that "[t]he specific effluent limitations at

issue in the case “are dictated by the terms of more general

‘effluent limitation guidelines (ELGs), which are

separately promulgated by the EPA.”).

limitations and effluent guidelines is far closer

than any connection between the Clean Water

Rule and the issuance or denial of a permit under

Section 1369(b)(1)(F). But, the point is that this

Court resisted the notion that even very closely

related actions should be swept into Section

1369(b)(1)'s coverage.

This Court’s decision in Crown Simpson is

similarly inapplicable here. In Crown Simpson,

this Court found that the courts of appeals had

original jurisdiction under Section 1369(b)(1)(F)

over EPA’s objection to a state-issued NPDES

permit because EPA’s objection was “functionally

similar” to EPA’s denial of an NPDES permit.

445 U.S. at 196. As the Ninth Circuit has

recognized, Crown Simpson adopted a narrow

understanding of “functional similarity,” only

finding that EPA’s objection to a state-issued

NPDES permit—which at the time’ had the

'§ Prior to the Clean Water Act Amendments of 1977, EPA

was authorized to object to the issuance of state-issued

NPDES permits, “but had no authority to issue a federal

permit if the state refused to meet the EPA's objections.”

Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 871 (7th Cir.

1989). Under this regime, “an EPA objection effectively

denied a permit because the objection created an impasse if

the state refused to modify its proposed permit.” /d. at 874

(citing Crown Simpson, 445 U.S. at 196). But the CWA now

allows EPA to issue the permit itself, 33 U.S.C. 1342(d), a

change of circumstance this Court expressly declined to

consider in Crown Simpson given the timing of the

Amendments relative to the permit veto at issue in that

ease. 445 U.S. at 194, n.2. The fact that Congress addressed

“precise effect” of denying the permit-—was

“functionally similar” to HPA’s denial of a permit.

NWEA. 537 F.3d at 1016 (citing Crown Sunpson,

445 US. at 196). Given this high degree of

similarity, the Crown Sunpson Court was willing

to interpret Section 1369(b)()CP) in light of what

it perceived to be “the congressional goal of

ensuring prompt resolution of challenges to EPA's

actions.” 445 U.S. at 196.

As the denial of a permit is specifically listed

within Section 1369(b)(1), it is wholly

unremarkable that the Court would authorize the

courts of appeals to review an action that had

that “precise effect.” As discussed above, in the

Clean Water Rule context the Agencies’ action of

simply clarifying the waters to which the CWA

applies does not have the “precise effect.” or even

close to the same effect, as the issuance or denial

of an NPDES permit. Thus, Crown Simpson is

Nene as a | ——-- - _—

the very quandary this Court was faced with makes Crown

Simpson's relevance to this case even more strained. See

Am. Paper, 890 F.2d at 874 (holding that the 1977

Amendments “fundamentally altered the underpinnings of

the Crown Simpson decision.”).

{9 See also Nat? Mining Ass'n v. Jackson, 880 F Supp.2d

119, 134 (D.D.C. 2012), revd on other grounds sub nom

Natl Mining Ass'n v. McCarthy, 758 F.3d 243 (D.C. Cir.

2014) (finding that an EPA guidance document regarding

the issuance of NPDES and Section 404 permits to surface

mines was not “functionally similar’ to the issuance or

denial of an NPDES permit, because even though it “relates

to’ the issuance of 402 permits . . . it [did] not amount to an

EPA issuance or denial of a 402 permit” (citations omitted)).

not determinative of the instant case.

This Court in both E.J. du Pont and Crown

Simpson found that the courts of appeals could

hear direct challenges only to EPA actions listed

in Section 1369(b)(Q1) or actions that had the

“precise effect” of listed actions. Neither case

supports the conclusion that this Court should

read Section 1369(b)(1) to include EPA actions

that Congress clearly excluded from the scope of

the provision. “°

C. The Courts that Have Broadly

Applied Section 1369(b)(1)(F)_ to

General NPDES Regulations Have

Improperly Departed from the

Statute

Despite the unambiguous language of Section

1369(b)(1)(F), a handful of courts of appeals

decisions have construed Section 1369(b)(1)(F) as

providing them with direct review over not only

EPA’s issuance or denial of NPDES permits, but

over broader categories of NPDES program

regulations. See, e.g., Am. Mining Cong. v. EPA,

20 Other opinions from this Court counsel against an

expansive reading of similar judicial review provistons. See,

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

(Powell, J., coneurring) (expressing concern that a broad

reading of the CAA’s judicial review provision would raise

“constitutional difficulties” because “a failure to seek

immediate review will bar affected parties from challenging

the [EPA] action in a subsequent criminal prosecution ”).

965 F.2d 759, 763 (9th Cir. 1992) (court of appeals

had original jurisdiction under Section

13690))(1)(") to review “regulations governing the

issuance of permits under [Sjection 402."):

Natural Res. Def. Council, Inc. v. EPA, 966 F.2d

1292. 1296-97 (9th Cir. 1992) (court of appeals

had original = jurisdiction under ‘Section

1369(b)(1)(F) to review “rules that regulate the

underlying permit procedures. ’): Natural Res.

Def. Council, Inc. v. EPA, 526 F.3d 591, GOL (9th

Cir. 2008) (court of appeals had original

jurisdiction under Section 1369(b)(1)(F) to review

KPA rule exempting certain discharges from the

NPDES permit requirements.); Nat’ Cotton

Council, 553 F.3d at 932-933 (court of appeals

had original jurisdiction under 1369(b)(1)(F) to

review EPA rule exempting certain pesticides

from the NPDES permit requirements).

Not one of these decisions, however, includes

more than a few sentences of analysis of the

courts’ original jurisdiction under Section

1369(b)(1). Moreover, these courts have stretched

this Court's decision in E.I. du Pont well beyond

the narrow issue before the Court in that case.

For example, the court in) American Mining

Congress cited as its main authority an earher

D.C. Circuit opinion involving Section

1369(b)(1)(E), which in turn relied on this Court's

admonition in EJ. du Pont against creating a

“perverse situation” of bifurcated review. 965 F.2d

at 763 (citing Natural Res. Def. Council, Ine. v.

KPA. 656 F.2d 768, 775 (D.C. Cir. 1981), in turn

citing E.1. du Pont, 430 U.S. at. 136). In so doing,

the Ninth Circuit took this admonition out of its

original context of Section 1369(b)(1)(E), involving

effluent limitations, instead applying it to a

different statutory subsection—Section

1369(b)(1)(F)—and to regulations governing

NPDES permitting decisions. 965 F.2d at 763.2!

As discussed above, this Court’s reference to the

“basic regulations” meant the national effluent

limitations at issue in that case, not NPDES

regulations generally. EJ. du Pont, 430 U.S. at

136. The American Mining Congress court’s

misapplication of EJ. du Pont forged the above-

mentioned chain of case law that has become

untethered to the statutory basis of this Court's

ruling.22. American Mining Congress’ and

*! The Ninth Circuit mistakenly read the D.C. Circuit's

opinion as having made this same leap. 956 F.2d at 763. In

fact, the court in Natural Res. Def. Council, Inc. v. EPA

found that it had original jurisdiction under Section

1369(b)(1)(E), not Section 1369(b)(1)(F). 656 F.2d at 776.

#2 Other courts began suggesting a broader interpretation of

Section 1369(b)(1) even before this line of cases, though the

reach of their analyses was not always clear. For example,

in Natural Res. Def. Council, inc. v. EPA, the D.C. Circuit

held that Section 1369(b)(1)(E) appled to NPDES

regulations that included some provisions “guidling] the

setting of numerical limitations in permits.” 673 F.2d 400,

404-405 (D.C. Cir. 1982). To the extent the court believed it

had jurisdiction over every regulation included in the 1980

Consolidated Permit Regulations (““CPRs”), it was mistaken.

That the courts of appeals might have jurisdiction over

challenges to “some of the CPRs”, id. at 404, does not

support the conclusion that the courts of appeals have

jurisdiction over challenges to all of the CPRs. The D.C.

subsequent courts erred in assuming that EJ. du

Pont provides them with original jurisdiction over

regulations governing NPDES permitting

procedures.

lil. AN EXPANSIVE READING OF

SECTION 1369(b)(1) DISRUPTS THE

TRADITIONAL JURISIDCTION

FEDERAL COURTS MAINTAIN TO

REVIEW AGENCY ACTIONS

In cases like Riverside Bayview, SWANCC,

and Rapanos, this Court long has assumed it has

the authority to consider on an as-applied basis

the legality of rules establishing the limits of

statutory jurisdiction under the Clean Water

Act.2"5 Taken together, these decisions—and the

readiness with which all concerned assumed that

review was appropriate—highlight an important

point: Requiring those who may be affected by

specified EPA rules to seek immediate, facial

review regarding the validity of those actions is

an exception to the otherwise applicable

assumption that agency rules may be evaluated

on an as-applied basis.2* The Administrative

ee — — —— — ——— —— _

Circuit also offered no support for its distinction between

policy-based rules and substantive rules. /d. at 405 & n.15.

23 See also the discussion in fn. 15, supra, regarding Coeur

Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S.

261 (2009).

24 As mentioned in fn. 13, supra, Section 1369(b)(1) requires

that all challenges to qualifying actions be brought within

120 days, unless the relevant application “is based sole!y on

Procedure Act (“APA”) acknowledges this broad

scope of review in Section 701(a), where judicial

review is granted “except to the extent that—(1)

statutes preclude judicial review; or (2) agency

action is committed to agency discretion by law.”

5 U.S.C. § 701(a).

In evaluating statutory preclusion principles,

this Court has routinely applied a “well-settled

presumption favoring interpretations of statutes

that allow judicial review of administrative

action[s]." McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479, 496 (1991) (permitting review of an

agency action under the Immigration and

Nationality Act). In order to rebut this

presumption, there must be “clear and convincing

evidence” to the contrary. Reno v. Catholic Soc.

Servs., Inc., 509 U.S. 43, 64 (1993) (citing Abbott

Labs. v. Gardner, 387 U.S. 136, 141 (1967)). A

narrow interpretation of Section 1369(b)(1) is

consonant with the general presumption of

reviewability under the APA and this Court's

grounds which arose after such 120th day.” 33 U.S.C.

1369(b)(1)(P).

25 See also Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667, 675-78 (1986) (interpreting the Medicare

statute to allow an individual to challenge a regulation’s

validity despite a preclusion on review for individual claims

under the statute); Gutierrez de Martinez v. Lamagno, 515

US. 417, 434 (1995) (explaining that when a statute is

“reasonably susceptible to divergent interpretation,” this

Court adopts the reading “that executive determinations

generally are subject to judicial review”)

previous review of CWA regulations outside the

context of Section 1369(b)(1).

The Government is likely to cite Crown

Simpson in- arguing that its expansive

interpretation of Section 1L369(b)(11P) would

ensure prompt resolution of the relevant

statutory issues. 4445 U.S. at 197. As noted.

however, this reading of Section 1369(b)(1)(F)

stretches both the statute and Crown Simpson

bevond their breaking points. Moreover, the very

virtue that the Government sees in_ its

countertextual reading of Section 1369(b)(1)(F)—

as its limitation on challenges to those brought

within 120 days—poses countervailing policy

dynamics that pull at least as hard in the

opposite direction.

If Section 1369(b)(1)(F) is extended beyond

the realm of permit decisions to rules addressing

statutory jurisdiction, the net result will be

unnecessary and excessive litigation. This is

because, like much of environmental law.

jurisdictional issues under the CWA are

inevitably laden with what this Court—in a

shghtly different context—has termed

“everpresent ambiguities.” Interstate Commerce

Comm n v. Brotherhood of Local Eng’rs, 482 U.S.

270, 286 (1987). In such situations. even those

who track regulatory developments closely may

face significant uncertainty about whether the

regulations apply to specified scenarios: the

regulations may mean what thev believe they

should mean, or they may not. See, e.g... Decker v.

Northwest Env. Def. Ctr., 133 S.Ct. 1326, 1336-

1338 (2013) (involving the issue whether runoff

from timber roads constituted “storm water

discharges from .. . immediate access roads .. .

used or traveled by carriers of raw materials,”

within the meaning of 40 C.F.R. 122.26(b)(14));

Recreational Vehicle Indus. Ass’n vy. EPA, 653

F.2d 562 (D.C. Cir. 1981) (involving the issue of

whether motor homes qualified as “medium and

heavy trucks” within the meaning of the relevant

regulation); United States v. Hoechst Celanese

Corp., 128 F.3d 216, 220-223 (4th Cir. 1997)

(addressing whether the term “use” in an

exemption to EPA's fugitive emission regulations

meant overall consumption or, alternatively,

whether the relevant chemical was counted each

time it cycled through the system); United States

v. Magnesium Corp. of America, 616 F.3d 1129

(2010) (finding that EPA was not precluded from

relying on a new interpretation of an ambiguous

regulatory exemption merely because it

previously had announced a different, tentative,

interpretation).

In the Clean Water Act context, this

uncertainty can plague ~both potential

environmental petitioners and both regulated and

potentially regulated entities. For would-be

environmental challengers, the regulations may

not clearly indicate whether they address

scenarios the environmental challengers believe

must be regulated under the statute. In other

contexts, regulated entities may be unsure about

whether or how the new regulations apply to

them.

In all of these situations, the relevant entities

may face what would traditionally appear to be

unripe claims. See Ohio Forestry Ass’n, Inc. v.

Sierra Club, 523 U.S. 726, 728 (1998) (deeming a

speculative application of a general forestry plan

not to be ripe for review). But at the same time,

they may risk waiving valid statutory arguments

if they do not bring their challenges within 120

days, the prescribed period under Section

1369(b)(1). See Brotherhood of Local Eng’rs, 482

U.S. at 286 (“[wle are not prepared to

acknowledge an exception ... where an order is

ambiguous, so that a party might think that its

interests are not infringed”) (emphasis in

origina}). Instead, their ability to challenge any

later applications of those regulations may be

limited to arguments about whether the agency’s

resolutions of any ambiguities are clearly

erroneous, see Auer v. Robbins, 519 U.S. 452, 461

(1997), rather than whether the regulations—as

so interpreted—are consistent with the CWA.

The courts have suggested two potential

solutions to this problem, neither of which is

entirely satisfying. In Brotherhood of Locai

Eng'rs, this Court suggested that such entities

should file petitions with the agencies to resolve

any ambiguities within the relevant statutory

time periods, which would “enableje| judicial

review if the agencys “resolution of the

ambiguity is adverse.” 482 U.S. at 286. This, of

course, presumes that the agency would respond

within the relevant statutory period—120 days

under Section 1369(b)(1)—which may be an

uncertain prospect.

Second, despite Brotherhood of Local Eng’rs,

the D.C. Circuit has continued to apply an

implied ripeness exception to these _ strict

statutory time limits in situations in which the

ambiguity is such that a later petitioner “could

reasonably have understood [the regulation] to

mean only what [it] thought it meant.” ANR

Pipeline Co. v. FERC, 988 F.2d 1229, 1233-1234

(D.C. Cir. 1993) (emphasis in original). This

exception is narrow, and the D.C. Circuit has long

admonished would-be petitioners that “if there is

any doubt about the ripeness of a claim,

petitioners must bring their challenge in a timely

fashion or risk being barred.” Eagle-Picher Indus.,

Inc. v. EPA, 759 F.2d 905, 914 (D.C. Cir. 1985)

(emphasis in original).

Requiring parties to file petitions and/or seek

immediate judicial review in the face of any and

all regulatory ambiguities would, to say the least,

be highly inefficient. But given the “speak now or

forever hold your peace” dynamics embodied in

these judicial review provisions, interpreting

them broadly poses this very risk. As Judge

Easterbrook noted:

[T]he more we pull within [Section

1369(b)(1)], the more arguments will be

knocked out by inadvertence later on—

and the more reason firms will have to

petition for review of everything in sight.

Am. Paper Inst. v. EPA, 882 F.2d 287, 289 (7th

Cir. 1989).

Additionally, as Justice Powell observed more

than 35 years ago, there are potential due process

issues—and at the very least serious fairness

concerns—inherent in the preclusion dynamics

posed under provisions like Section 1369(b)(1). In

his concurring opinions in both Adamo Wrecking

Co. v. United States, 434 U.S. 275, 289-291

(1978), and Harrison v. PPG Industries, Inc., 446

U.S. 578, 594-595 (1980), Justice Powell stressed

these concerns in cases involving 42 U.S.C.

7607(b)(1), the Clean Air Act's structurally-

similar judicial review provision.

In Adamo, Justice Powell expressed doubt

about the constitutionality of Section 7607(b)(1),

which at the time required that challenges be

brought within 30 days after EPA promulgated

the relevant regulations. 434 U.S. at 289. In so

doing, he noted his view that:

It... 1s totally unrealistic to assume that

more than a fraction of the persons and

entities affected by the _ regulation—

especially small contractors scattered

across the county—would have knowledge of

its promulgation or familiarity with or

access to the Federal Register.

Id. at 290. Noting that this Court previously had

upheld a similar scheme against a due process

challenge in Yakus v. United States, 321 U.S. 414

(1944), Justice Powell opined that this earlier

opinion was “at least arguably distinguishable”

because it involved the Emergency Price Control

Act, which this Court had noted was an

emergency, war-time measure. 434 U.S. at 290.

By the time Harrison came before the Court

two years later, Congress had amended Section

7607(b)(1) to extend the period within which

regulations could be challenged to 60 days. 446

U.S. at 594. While concurring with the majority's

view that Section 7607(b)(1) applied to EPA’s

action in that case, Justice Powell reiterated his

concern that publication of a rule in the Federal

adequate notice that a failure to seek immediate

review immediate will bar affected parties from

challenging the noticed action in a subsequent

criminal prosecution.” Jd. He further indicated his

agreement with the D.C. Circuit that, at the very

least, “these constitutional dynamics may counsel

a narrow construction of [42 U.S.C. 7607(b)(1)].”

Id. (citing Chrysler Corp. v. EPA, 600 F.2d 904,

912-914 (D.C. Cir. 1979)).%6

At a minimum, an expansive interpretation of

Section 1319(b)(1) would pose a host of ripeness,

judicial inefficiency, and fairness concerns.

Additionally, the due process concerns Justice

—> s— + ee sd

26 While would-be environmental petitioners may not have a

due process right to challenge suspect regulations, the

concerns that Justice Powell has identified are still salient

from notice and fairness perspectives.

Powell identified in Adamo and Harrison are

elevated where the rules sweep as broadly as do

the jurisdiction-defining rules here. In sum, these

policy concerns far outweigh the Government's

interest in expedition and clarity. The Court

should avoid these negative policy implications by

interpreting Section 1369(b)(1)(F) as written.

CONCLUSION

For the foregoing reasons the judgment of the

court of appeals should be reversed and the case

remanded with instructions to dismiss these

consolidated petitions for lack of jurisdiction.

Dated: April, 2017.

Respectfully submitted,

Allison M. LaPlante

Counsel of Record

James N. Saul

EARTHRISE LAW CENTER

LEWIS & CLARK LAW SCHOOL

10015 S.W. Terwilliger Blvd.

Portland, OR 97219

(503) 768-6894 (LaPlante)

(503) 768-6929 (Saul)

laplante@lclark.edu

saul@lclark.edu

Counsel for Respondents

Waterkeeper Alliance, et al.

Jennifer C. Chavez

EKARTHJUSTICE

1625 Massachusetts Av. NW,

Suite 702

Washington, DC 20036

(202) 667-4500

jchavez@earthjustice.org

Counsel for Respondents

Sierra Club and Puget

Soundkeeper Alliance

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.