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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0700%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2017

## Text

GuERS

No. 16-299 enone 2
_7 ae
Ma) 4

In THE
Supreme Court of the Gnited States

NATIONAL ASSOCIATION OF MANUPACTURERS.
Petitioner,

v.

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?

I
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.”

ll
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

il

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.

iV

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.

Vv

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.

vi

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

Lx
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

xl
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

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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

xl
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.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.
33 U.S.C.

ia re ro ns NOTES a thie: 2

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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

XV

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

1
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.

2
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

3
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

4

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

5

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:

6

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

7

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

8

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

9

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

10

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

1]

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 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.”

25

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.”).

26

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).

27

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

28

“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.

29

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.”).

30

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

31

“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)).

32

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 ”).

33

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,

34

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.

35

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

36

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”)

37

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.

38

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

39

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

40

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.

41

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

42

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
Register “is unlikely to provide constitutionally
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.

43

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.

44
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0700%3A14. Public record. Not legal advice.