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

SECO FILED

iD { SEP -8 2017

AUEFS , a

No. 16-299 |

Iu the Supreme Court of the Cinited States

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

Vv.

U.S. DEPARTMENT OF DEFENSE,

DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, AND

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

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF OF STATE RESPONDENTS OHIO,

ALABAMA, ALASKA, ARIZONA, ARKANSAS, COLORADO,

FLORIDA, GEORGIA, IDAHO, INDIANA, KANSAS,

KENTUCKY, LOUISIANA, MICHIGAN, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA, THE NEW

MEXICO STATE ENGINEER, THE NEW MEXICO ENVI-

RONMENT DEPARTMENT, NORTH DAKOTA, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS,

UTAH, WEST VIRGINIA, WISCONSIN, AND WYOMING

IN SUPPORT OF PETITIONER

ee

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY*

State Solicitor

*Counsel of Record

PETER T. REED

Deputy Solicitor

30 East Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

eric.murphy@

ohioattorneygeneral.gov

Counsel for Respondent

State of Ohio

TABLE OF CONTENTS

Page

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A. The Agencies Cannot Show That The Rule

Fits Within Any Reasonable Reading Of

NE I dcrcnescctnscccsensessestnesnincenine

1. The Agencies read the word

“limitation” in isolation, not in the

context of the entire Subsection (E).........

2. The Agencies make no attempt to fit

the Rule within Subsection (F)’s text.......

. The Agencies’ Purpose Arguments Do Not

Permit Departure From The Text.................

. The Agencies’ Legislative-History

Arguments Also Do Not Permit Departure

EALERTS ES Seta

. The Agencies Wrongly Favor A

Presumption Of Circuit Review Over

Established Interpretive Canons ..................

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TABLE OF AUTHORITIES

Cases Page(s)

Ali v. Fed. Bureau of Prisons,

r,s cmnmuopnsionenanaies 7,8

Am. Mining Congress v. EPA,

GD Be Fe Gee Cae, BGT ........cs.ccccccccccceccocccese 12

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

860 F.2d 860 (7th Cir. 1989) .............ccccseoeescocceeeees 7

Cent. Bank, N.A. v. First Interstate Bank, N.A.,

ee es BI a vccisckantenincsssonseuesatboesncedanvestenss 19

Chrysler Corp. v. EPA,

600 F.2d 904 (D.C. Cir. 1979) ..............ccceeeeeeeeeees 21

Clark v. Martinez,

I I cane ccctensastecsecnetcnen 11, 21

Crown Simpson Pulp Co. v. Costle,

IE erirrctintenceccensctocscons 11, 12, 16, 18

Direct Mktg. Ass’n v. Brol.!,

I eines 14

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

cg, EE 9, 15, 16, 18

Exxon Mobil Corp. v. Allapattah Servs.,

EE a 17

Fla. Power & Light Co. v. Lorion,

RE SE eR 20

Freeman v. Quicken Loans, Inc.,

ET SI a eT ee 4

Friends of the Earth v. EPA,

333 F.3d 184 (D.C. Cir. 20038) ..............ccceeees 10, 11

il

Friends of the Everglades v. EPA,

680 F.3d 12860 (1 ith Cir. 2012) ............c0cccs0.0.2000- 12

Gutierrez v. Ada,

| TT en eee 7

Harrison v. PPG Indus.,

8 Ee 21, 22

Henson v. Santander Consumer USA Inc.,

4 |

Hertz Corp. v. Friend,

I mimenniiiod 5, 13, 14

Holy Trinity Church v. United States,

EE EEE SEED 22

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

Sys., 551 F.2d 1270 (D.C. Cir. 1977) ....c.cccceceeceee: 14

Kucana v. Holder,

TREAT eee ene aE 8

Longview Fibre Co. v. Rasmussen,

980 F.2d 1307 (9th Cir. 1992) .......ccccccececceeee 19, 21

Maslenjak v. United States,

eT ene 11

MBIA Ins. Corp. v. FDIC,

Fe ee te Es GIs GD ccccctces sss cccsecesescncnsess 7

Merrill Lynch, Pierce, kenner & Smith Inc.

v. Manning, 136 S. Ct. 1562 (2016) .................... 14

Milner v. Dep't of the Navy,

I casicechinioglielel 18

Mohamad v. Palestinian Auth..,

LE ee 17

lv

Montanile v. Bd. of Trs. of the Natl Elevator Indus.

Health Ben. Plan, 136 S. Ct. 651 (2016)............. 13

Nat’? Cotton Council of Am. v. EPA,

553 F.3d 927 (6th Cir. 2009) .................cccccceeceeees 12

Nichols v. United States,

I a eciiercinicediin 14

NRDC, Inc. v. EPA,

656 F.2d 768 (D.C. Cir. 1981) .....................00200ee 12

NRDC, Inc. v. EPA,

966 F.2d 1292 (9th Cir. 1992) ..............0.0.. cece 12

Nw. Envtl. Advocates v. EPA,

537 F.3d 1006 (9th Cir. 2008) ..............cc cee eceeeee es 12

Rapanos v. United States,

A i asc caascensnencnnennteiee 16

RJR Nabisco Inc. v. European Cmty.,

Ss a I i ccccdnenpnannpnsctoonssestensceisse 5

Roll Coater, Inc. v. Reilly,

932 F.2d 668 (7th Cir. 1991) ......................2.. 4, 16

Rumsfeld v. Forum for Acad. & Inst’l

Rights, Inc., 547 U.S. 47 (2006) ....................0008. 19

Sackett v. EPA,

I TN i ceceisresiinemnen 10, 14, 16, 20

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) ........ 6, 16, 19

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

I os cc enincenencenasuncneneenedeis 16

United States v. Alvarez-Sanchez,

4) 2 cena mereen 4

United States v. Cra/t,

crate anes ea cpennnaeediinennantiie 19

United States v. Williams,

I a ccrreicincnnmnnscsponareiineteteeceseatons 7

W. Va. Univ. Hosps. v. Casey,

I IE iiinicrtiterinntntancniceneienedaccsdnbadminmneniie 15

Statutes, Rules, and Constitutional Provisions

I Is siincsrinscnieusétnnuinatbiatonnntieemaiedmalbacbuiienn 9

Se I nso esc inncenddnbelatiagieyieinnimmeednatendanenidniel 9

I I iste scclaicieneilnieiniesnicamigmensineniienabisaaddl 9

CI EI divs sceniniigiineoneigibieen caches snemiabieeipinaeeeeaainl 9

I I i sinical nig cota adeesionmmaninemiadiniiaa passim

a a ine iertpnencinimpcienindiatnmabaeiiildentia 3, 10

le ee I ccniincrsecoccosesuniidusbinneotsnmmeiedie 9

Se i 02, ss sensianintineeidnibneaniadiinianiinieniii 9

ee ee Oe Fe ccvocecscssnnicsnssnatucnnscnensianbias 10

eo nncranesnicanisnsiedasesenmbinntetiiial 9

Be Oe eI os icccintincqescestinnnassccnseimtensivevesans 9

i cnc oncinstnishhnsndnntinnnuiisnanpbiiiaduentsainetin 9

I aon stan nd celnendetahnsnciunannnianionsianlin 9

ELLE LL ATE 9

I id encinisessaceqdguncmensaneneadnensiynninanntiints 1,9

I ii snitch neuigniiaaawibiansmnnints 9, 10

ae Oe 9, 15

ia i acca heedeitpeneinaeneniinnil 16

Be Ss Se Re iccrcescetccesecvvecsescotnsncanneeescioess 19

ad sciclenmilsanaieetin 1,9

se IEE D dcnciccccsonccosccsnsnetncses sss cesoseiereressnntbenetoiien 9

I ediec euler emmumanbedmenelales 15

ID I. aeealiesscnpadenabeiainpebinnionnaniéan 15

SE TSE erae Meese espana CPF 9

indi ndendaebvnasienstiseresenindicenimneenborien 9

Cee ceslilaelen 1, 9, 11

ls Oe ID cecsiccccovscecescesscascunvectocenscosconsones 6, 13

CE NL IE mine Ue Ce tT 9

I Hsia cnscccinsontrneeiseouduiionsibendinhibahdeniessii 9

ada raelamabanesipennassiipnans 1, 19

BD es Oe I secciccesscescccenseverastecotninsetenionnteneeeiion 19

ie IE dice cniscicninnscstencosesncassconiesemintenennt 19

Ne Be II i ccirccuiicstibasercscnceisneanecdibisesienbeinetinnd 2

Se ls Oe EE witevenseccssecnsscbenteniosesacessenenions 2, 3, 10

a camomsmniaiienneane 3, 10

Ry te ii cccisnacsensesesqienseensetessonsdeninnsmenngins 6

I ois cckcnndenscacadinossoordeisessiocomneceteen 6

i Oe I oiecccccecscccecenscasseccosssnsacscesst passim

ee I steiinceccvscescevecesonssnssutessnnsetite 13

5 8 te 2 = Enns 13

BS UB... S LED cco cc cccese ess cccessssssccscceceses passim

Bik To Bt, i eneemeere passim

83 U.S.C. § LSB IUNG) .......c0rrccrcserecsescceceees 15, 16, 19

83 U.S.C. § LBGBD)C) ............cccccccerserecscevserersceees 20, 21

ISR EE epee NCE RACH SAREE UTS CNET Soe om 9

cutie 15, 21

Water Quality Act of 1987, Pub. Law No.

RE CERT oe a 18, 19

Other Authorities

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ........ 7,15

Black’s Law Dictionary (5th ed. 1979) .......2--......0000008 8

Clean Water Rule: Definition of “Waters of

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

a ciesanisouds passim

I hs cescsceonwiceesennzenune 18

ee an, :nsscssrisshemvonancueananes 18

The State Respondents’ opening brief showed that

Subsections (E) and (F) of 33 U.S.C. § 1369(b)(1) do

not grant circuit jurisdiction over the rule adopting

an expansive definition of “waters of the United

States” for the Clean Water Act. Clean Water Rule:

Definition of “Waters of the United States,” 80 Fed.

Reg. 37,054 (June 29, 2015) (“the Rule”). First, this

case should begin and end with the plain text. The

Rule does not promulgate an effluent limitation or

other limitation under § 1311, 1312, 1316, or 13465, or

issue or deny a permit under § 1342. State Resp. Br.

19-33. Second, § 1369(b)(1)’s structure confirms this

reading. The provision precisely identifies seven ac-

tions subject to circuit review, so a broad reading of

Subsections (E) and (F) would render other subsec-

tions superfluous and cover actions that Congress

excluded from its reach. Jd. at 34-38. Third, two in-

terpretive presumptions support this reading. The

Court presumes that Congress means for clear juris-

dictional rules, and the plain text provides the clear-

er rule. The Court also presumes that Congress

means to authorize judicial review of agency actions,

but a broad reading of the subsections would in-

crease restrictions on that review. Id. at 38-49.

In response, the Environmental Protection Agen-

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

(“Corps”) (collectively, “the Agencies”) seek to muddy

the clear statutory language by emphasizing policy

concerns and legislative history that, in the end, do

not even support their reading. The Court should

reject their arguments, follow § 1369(b)(1)’s plain

text, and hold that district courts have jurisdiction

over suits challenging the Rule.

2

A. The Agencies Cannot Show That The

Rule Fits Within Any Reasonable Read-

ing Of Subsection (E) Or (F)

The Agencies begin by mistakenly arguing that

Subsections (E) and (F) can be interpreted to cover

the Rule. U.S. Br. 17-34.

1. The Agencies read the word “limita-

tion” in isolation, not in the context of

the entire Subsection (E)

As the State Respondents showed (at 19-29), the

Rule does not fall within Subsection (EK) because it

does not “promulgatie]” any “effluent limitation or

other limitation” “under section 1311.” The Rule

does not announce the technology-based restrictions

that § 1311 directs the EPA to promulgate. Instead,

it defines a phrase that is referenced only in

§ 1362(7) pursuant to, if anything, the EPA’s general

rulemaking authority in § 1361(a).

In response, the Agencies argue that Subsection

(E) covers EPA actions that “impose limitations of

any sort under Section 1311.” U.S. Br. 17. The Rule

satisfies that test, they continue, because “[a] rule

that specifies which sites are ‘waters of the United

States’ imposes on persons who discharge pollutants

to those waters the full panoply of effluent and other

limitations under Section 1311.” Jd. at 19. This

reading suffers from three distinct problems: (a) it

asks whether an EPA action has the practical effect

of triggering limitations found elsewhere, rather

than whether the action itself promulgates a limita-

tion; (b) it reads “any effluent limitation or other lim-

itation” to mean “any limitation”; and (c) it treats all

actions that affect § 1311 as issued under § 1311.

3

a. Promulgate Limitations v. Affect Limitations.

The Agencies argue that Subsection (E) reaches

regulations that have a “practical effect” of “im-

pos[ing]” the limitations found in other provisions,

such as the _ pollutant-discharge limitation in

§ 1311(a). U.S. Br. 19. They are mistaken.

Subsection (E)’s language does not permit this

practical-effect test. Even if the Agencies correctly

read “any effluent limitation or other limitation” to

mean “any limitation,” but see infra Part A.1.b, the

Rule still cannot be said to have promulgated the

“panoply of effluent and other limitations under Sec-

tion 1311” on which the Agencies rely. U.S. Br. 19.

Congress promulgated § 1311(a), and other rules

promulgate the limitations that § 1311 directs the

EPA to issue. As the Rule admits, it does not “estab-

lish” (i.e., promulgate) “any regulatory requirements”

(i.e., any limitations). 80 Fed. Reg. at 37,054.

The Agencies’ own statements prove that their

test does not fit the text. They studiously avoid the

word “promulgate,” saying instead that Subsection

(E) covers actions that “impose[]” limitations. U.S.

Br. 16; id. at 17-19. They do so because “impose” has

a wider range of meanings than “promulgate.” The

Agencies’ Rule uses the word in a narrower sense,

saying that the Rule “imposes no enforceable duty.”

80 Fed. Reg. at 37,102 (emphasis added). The Agen-

cies’ Brief now uses the word in a broader sense, say-

ing that the Rule “imposes .. . the full panoply of ef-

fluent and other limitations under Section 1311.”

U.S. Br. 19 (emphasis added). Only the former re-

spects Subsection (E)’s text. Because the rule does

not issue “regulatory requirements” or “enforceable

4

dutfies],” 80 Fed. Reg. at 37,054, 37,102, it does not

promulgate limitations.

The Agencies’ practical-effect test also reads out

Subsection (E)’s other verb. That subsection covers

state-issued limitations that are “approv[ed]” by the

EPA, and limitations that are “promulgat/ed]” by the

EPA. Thus, promulgate must have a precise mean-

ing reaching actions directly issuing limitations; a

broader meaning would leave approve without inde-

pendent force. Roll Coater, Inc. v. Reilly, 932 F.2d

668, 670-71 (7th Cir. 1991). The Agencies’ reading

proves this point: An approval of a state limitation

has the “practical effect” of imposing that limitation,

so it would qualify as “promulgating” a limitation

under the Agencies’ boundless reading.

Given that the practical-effect test does not fit

Subsection (E), the Agencies cannot justify that test

by noting that the adjective “any” precedes “effluent

limitation or other limitation.” U.S. Br. 18. That ad-

jective cannot change the meaning of the verb

“promulgate,” the noun “limitation,” or the preposi-

tional phrase “under section 1311.” In that respect,

the Agencies “err[] in placing dispositive weight on

the broad statutory reference to ‘any’ ... without

considering the rest of the statute.” United States v.

Alvarez-Sanchez, 511 U.S. 350, 357 (1994). While

“any” can broaden an object, it cannot “transform[]”

the “clear meaning” of the clause as a whole. Free-

man v. Quicken Loans, Inc., 566 U.S. 624, 635 (2012).

Subsection (E)’s text means something different from

the language that the Agencies need for their reading

(“affecting any limitation within section 1311”).

For the same reason, the Agencies get nowhere by

extensively quoting statements by the Rule’s chal-

5

lengers protesting its expansive scope. U.S. Br. 19-

22. That the Rule would require landowners to seek

more permits (and States to process more) might be

relevant under a test tied to a regulation’s practical

consequences. But Subsection (E) reaches rules that

issue restrictions, not rules that affect restrictions.

In fact, the Agencies’ reliance on these quoted state-

ments shows how unworkable their test would be.

Jurisdiction should not turn on whether a rule ex-

pands the covered waters (subjecting more lands to

§ 1311’s limits) or contracts the covered waters (ex-

empting more lands from § 1311’s limits). Hertz

Corp. v. Friend, 559 U.S. 77, 94-95 (2010). The

Agencies concede this point in a footnote, one that

conflicts with their repeated reliance on the Rule’s

breadth. U.S. Br. 21 n.4. As their footnote explains,

an EPA-issued “effluent limitation” falls within Sub-

section (E) even if it lessens discharge restrictions as

compared to earlier restrictions. That is because the

subsection does not adopt a practical-effect test; it

“turns on the nature of the challenged EPA action.”

Id. The action itself must promulgate restrictions.

Comparing statewide and county-wide “blue

laws,” the Agencies also mistakenly argue that the

Rule’s “effort to identify’ where § 1311’s limitations

apply qualifies as a limitation under “common us-

age.” U.S. Br. 20-21. But it is not common to say

that an action interpreting a phrase has promulgated

a limitation. This Court would not commonly say, for

example, that it “promulgated” a “limitation” “under”

the Racketeer Influenced and Corrupt Organizations

Act when it read that law to apply extraterritorially.

RJR Nabisco Inc. v. European Cmty., 136 S. Ct.

2090, 2101-06 (2016). Nor would it say that it prom-

ulgated a limitation under § 1311 when it interpret-

6

ed the Clean Water Act not to reach “an abandoned

sand and gravel pit.” Solid Waste Agency of N. Cook

Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 162

(2001) (““SWANCC”).

The Agencies next wrongly compare the Rule to a

general effluent limitation on a point-source class,

noting that neither action is “self-executing.” U.S.

Br. 22-24. Whether or not an EPA action must

promulgate a “self-executing” limitation, it still must

promulgate a limitation. And general effluent limi-

tations issue restrictions because dischargers gener-

ally must follow them to obtain permits. 33 U.S.C.

§ 1342(a). The Rule does not issue restrictions. 80

Fed. Reg. at 37,054. In this respect, the Agencies ig-

nore the State Respondents’ argument (at 25-26) that

the Act’s other uses of “effluent limitation or other

limitation” treat the promulgated action as some-

thing that itself can be violated. E.g., 33 U.S.C.

§ 1365(a), (f. Effluent limitations satisfy this crite-

rion in a way that the definitional Rule does not.

b. Effluent or Other Limitation v. Any Limitation.

The Agencies suggest that “any effluent limitation or

other limitation” means “any limitation.” U.S. Br.

24-28. This debate is an academic one in this case.

Even if Subsection (E) reached “any limitation,” it

would not cover the Rule for the reasons explained

above and below. The EPA action must be the re-

striction, and it must be of a kind that § 1311 directs

the EPA to impose. Yet the Agencies rely on re-

strictions found outside the Rule, and identify noth-

ing in § 1311 giving them the authority to adopt it.

Regardless, as the State Respondents noted (at

21-22), “other limitation” is best read to reach only

restrictions that are “directly related to effluent limi-

7

tations” in that they “direct[]” the regulated commu-

nity “to engage in specific types of activity.” Am. Pa-

per Inst., Inc. v. EPA, 890 F.2d 869, 877 (7th Cir.

1989). This phrase at least excludes the alleged

practical limitations on permitting authorities on

which the Agencies rely. U.S. Br. 21-22. The Agen-

cies’ responses lack merit.

They initially reject both ejusdem generis and

noscitur a sociis, suggesting that neither can apply to

a list that includes only two items (like “effluent lim-

itation or other limitation”). U.S. Br. 24-27. They

mistake “the fairly technical ejusdem generis canon

for the somewhat less technical associated-words

canon” (noscitur a sociis). Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 206 (2012). While “most associated-words cas-

es involve listings,” a listing is not a “prerequisite.”

Id. at 197; Gutierrez v. Ada, 528 U.S. 250, 254-55

(2000); MBIA Ins. Corp. v. FDIC, 708 F.3d 234, 242

(D.C. Cir. 2013). That is because noscitur a sociis is

not a technical canon; it is a “commonsense canon.”

United States v. Williams, 553 U.S. 285, 294 (2008).

It is “an interpretive rule as familiar outside the law

as it is within, for words and people are known by

their companion.” Gutierrez, 528 U.S. at 255. Here,

commonsense suggests that Congress would not have

said “any effluent limitation or other limitation” if it

meant “any limitation.” Cf. MBIA, 708 F.3d at 242.

The Agencies retort that Congress often places a

specific phrase before a general one “for emphasis or

clarity.” U.S. Br. 27. In the cases that they cite,

however, the Court recognized a reason for Congress

to have done so. Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008), illustrates this point. That case

8

considered an exception to the federal government's

waiver of sovereign immunity for the detention of

property by “any officer of customs or excise or any

other law enforcement officer.” Jd. at 216 (citation

omitted). The Court read “any other law enforce-

ment officer” broadly to reach law-enforcement offic-

ers “of whatever kind.” I/d. at 220. This reading did

not render the specific phrase (“any officer of customs

or excise”) superfluous, the Court added, because

“Congress may have simply intended to remove any

doubt that officers of customs or excise were included

in ‘law enforcement officers.” Id.

In this case, by contrast, the Agencies offer no ex-

planation why Congress would say “effluent limita-

tion” apart from “other limitation” if it meant “any

limitation.” Unlike in Ali, they cannot argue that

“any limitation” could be read to exclude effluent lim-

itations. Section 1311’s title is “effluent limitations.”

There is no reason for Congress to have said “effluent

limitation or other limitation” (a phrase suggesting

that Congress had specific restrictions in mind) if it

intended the breadth that the Agencies seek.

c. Under § 1311 v. Affecting § 1311. The Agencies

claim that they issued the Rule “under section 1311”

because its “effect is to make effluent and other limi-

tations under Section 1311 applicable to” covered wa-

ters. U.S. Br. 28. While the meaning of the word

“under” depends on context, Kucana v. Holder, 558

U.S. 233, 245 (2010), the Agencies do not fit their

practical-effect test within any definition of “under

section 1311.” That phrase naturally reaches limita-

tions issued “according to” the authority of § 1311.

Black’s Law Dictionary 1368 (5th ed. 1979). Section

1311, for example, lists restrictions set “by the Ad-

9

ministrator.”. See 33 U.S.C. § 1311(b)(1)(A)-(B),

(b)(2)(A), (b)(2)(E), (m), (mn), (p); #.L du Pont de

Nemours and Co. v. Train, 430 U.S. 112, 126-36

(1977). That § 1311 directs the EPA to issue many

lhimitations—but contains no authorization for the

EPA to clarify the boundaries of “waters of the Unit-

ed States”—shows that the EPA did not issue the

Rule “under section 1311.”

The Agencies also do not adequately respond to

the Rule’s universal scope. If a regulation affects

§ 1311, they argue, it issues under § 1311 even if it

affects every other section. U.S. Br. 28-29. This con-

firms that the Agencies’ test lacks a limiting princi-

ple. They recognize that nearly the entire Act relates

to § 1311, describing that section as “central to the

Act” and as its “first principle.” U.S. Br. 2 (citation

omitted). The Agencies’ test thus could sweep in

nearly all actions into Subsection (E). Looking only

at § 1311’s cross-references as a barometer of items

that might “affect” the section, the Agencies’ reading

could apply to rules about §§ 1251, 1281, 1283, 1284,

1312, 1313, 1314, 1316, 1317, 1325, 1328, 1342, 1343,

1344, and 1370. That reading does not comport with

Subsection (E)’s demarcation of four specific sections.

Indeed, the Agencies next agree that the Court

cannot read Subsection (E) broadly to encompass all

EPA actions, identifying some that, they say, do not

fall within the subsection. U.S. Br. 29-30. But the

Agencies merely list these actions; they do not ex-

plain how the actions fall outside their broad reading

of Subsection (E). Two of their examples show that

the Agencies must switch to an altogether different

reading of Subsection (E) to exclude these actions.

10

Example One: The Agencies claim that the Rule

qualifies as a limitation “under section 1311” because

it “imposes .. . the full panoply of effluent and other

limitations under Section 1311.” U.S. Br. 19. They

later claim that the compliance order in Sackett v.

EPA, 566 U.S. 120 (2012)—-which determined that

specific lands were subject to the Act and so imposed

§ 1311’s limits, id. at 124-25—does not qualify as a

limitation “under section 1311” because the order

“does not itself approve or promulgate effluent or

other limitations under Section 1311.” U.S. Br. 30

(emphasis added). Instead of distinguishing the Rule

from the order under a uniform reading of Subsec-

tion (E), the Agencies adopt different readings for the

two actions. They invoke a broad reading of Subsec-

tion (E) to reach the Rule (asking whether the Rule

affects § 1311 limits), and a narrower reading of Sub-

section (E) to exclude the order (asking whether the

order itself promulgates § 1311 limits).

Example Two: The Agencies claim—consistent

with their traditional view—that Subsection (E) does

not “reach EPA’s decisions approving state water-

quality standards” under § 1313. U.S. Br. 29. Yet

their current position contradicts the interpretive

principles on which they have relied for their tradi-

tional position. Here, the Agencies claim that they

issued the Rule “under section 1311” because § 1311

references the phrase “waters of the United States”

in a roundabout way: That phrase is the definition of

another phrase (“navigable waters”) that is in the

definition of a third phrase (“discharge of any pollu-

tant”) that is used in § 1311(a). 33 U.S.C. §§ 1362(7),

(12). There, the EPA argued that water-quality

standards are not issued “under Section 1311” even

though they are referenced in § 1311(b)(1)(C).

11

Friends of the Earth v. EPA, 333 F.3d 184, 188-89

(D.C. Cir. 2003). To reach that position, it invoked

arguments that the Agencies now disregard, such as

the requirement to read § 1369(b)(1) as a whole, id.

at 189, and the rule against superfluity, id. at 190.

In sum, the Court should reject the Agencies’

“chameleon”-like reading of § 1369(b)(1), whose

meaning depends on the action under review. (Cf.

Clark v. Martinez, 543 U.S. 371, 382 (2005).

2. The Agencies make no attempt to fit

the Rule within Subsection (F)’s text

As the State Respondents showed (at 30-33), the

Rule does not fall within Subsection (F) because it

does not issue or deny a permit under § 1342. In re-

sponse, the Agencies spend no effort on Subsection

(F)’s text, identifying no meaning of “issuing” or

“denying” a “permit” that covers the Rule. U.S. Br.

30-34. That omission violates basic principles. In-

terpretation “begin[s], as [it] must, with a careful ex-

amination of the statutory text.” Henson v. Santan-

der Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017);

Maslenjak v. United States, 137 S. Ct. 1918, 1924

(2017). The Agencies do not do so here.

Instead, they begin with Crown Simpson Puip Co.

v. Costle, 445 U.S. 193 (1980), which held that the

EPA veto of a state-issued permit was the denial of a

permit. They read that case as adopting a “function-

al interpretive approach” unmoored from the text.

U.S. Br. 31. Yet Crown Simpson tied its holding to a

reasonable reading of Subsection (F) before consider-

ing the functional concerns that the Agencies ad-

vance. It noted: “When EPA, as here, objects to ef-

fluent limitations contained in a state-issued permit,

12

the precise effect of its action is to ‘den[y]’ a permit

within the meaning of” Subsection (F). 445 U.S. at

196. The Agencies disregard this portion of the opin-

ion by highlighting only the portion that discusses

pragmatic concerns. It is thus the Agencies that de-

part from Crown Simpson’s “rationale” and “abro-

gate” its “framework.” U.S. Br. 32-33 (citation omit-

ted). A case’s rationale consists of all of its reason-

ing, not half of it.

The Agencies next portray the circuit courts as

“generally” supporting their reading of Subsection

(F). U.S. Br. 32. But NRDC, Inc. v. EPA, 656 F.2d

768, 776 (D.C. Cir. 1981), did not find jurisdiction

under Subsection (F); it relied on Subsection (EF).

Then, in opinions with little reasoning, American

Mining Congress v. EPA, 965 F.2d 759, 763 (9th Cir.

1992), and NRDC, Inc. v. EPA, 966 F.2d 1292, 1296-

97 (9th Cir. 1992), misread that opinion as holding

that Subsection (F) covers rules affecting permitting.

The Ninth Circuit has narrowed those opinions. Nw.

Envtl. Advocates v. EPA, 537 F.3d 1006, 1016-18 (9th

Cir. 2008). Yet National Cotton Council of America

uv. EPA, 553 F.3d 927, 933 (6th Cir. 2009), simply

cited the Ninth Circuit cases with “no analysis” on

Subsection (F)’s text. Friends of the Everglades v.

EPA, 699 F.3d 1280, 1288 (11th Cir. 2012). That

case was then rejected by Friends of the Everglades.

In short, the Agencies’ view of Crown Simpson has

not “shaped lower-court case law.” U.S. Br. 34.

The Agencies lastly claim that their reading of

Subsection (F) does not render other subsections in

§ 1369(b)(1) superfluous. U.S. Br. 33-34. Congress

would not have felt the need to adopt a separate sub-

section for regulations like the Rule, they argue, be-

13

cause Subsection (F) “naturally” covers a rule defin-

ing “waters of the United States.” Jd. at 33. In con-

trast, they say, Subsection (F) does not “clearly”

reach the standards of performance referenced in

Subsection (A) or the pretreatment standards refer-

enced in Subsection (C) because those actions “do not

dictate whether a permit may be issued at all.” Jd. at

34. This distinction requires the Agencies to charac-

terize as “natural[]” an interpretation that has been

described as “illogical and unreasonable.” Pet. App.

29a (Griffin, J., concurring in judgment). The dis-

tinction also does not work because § 1342(a) makes

compliance with the referenced standards a “condi-

tion” for the “issu[ance]” of a permit, so these stand-

ards do dictate whether a permit may issue. And the

distinction’s nebulous nature creates an enigmatic

jurisdictional test for Subsection (F). Cf. Hertz, 559

U.S. at 94-95. There is nothing “natural” about it.

B. The Agencies’ Purpose Arguments Do Not

Permit Departure From The Text

The Agencies argue that their view comports with

three purposes that they glean from § 1369(b)(1):

(1) facilitating expedited review; (2) promoting uni-

formity for national rules; and (3) preventing irra-

tional bifurcation of the review of related actions.

U.S. Br. 35-40. These arguments fail.

As a general matter, “[vjague notions of a stat-

ute’s ‘basic purpose’ are ... inadequate to overcome

the words of its text regarding the specific issue un-

der consideration.” Montanile v. Bd. of Trs. of the

Nat’ Elevator Indus. Health Ben. Plan, 136 S. Ct.

651, 661 (2016) (citation omitted). In this case,

“even the most formidable argument concerning the

statute’s purposes could not overcome the clarity” of

14

§ 1369(b)(1)’s text. Nichols v. United States, 136

S. Ct. 1113, 1119 (2016) (citation omitted).

As a specific matter, the Agencies’ purpose argu-

ments are not “formidable.” Their first “purpose”

undermines their reading of § 1369(b)(1), and the

other two do not qualify as “purposes.”

1. Expedited Review. The Agencies note that

§ 1369(b)(1) is designed to “facilitate[] quick and or-

derly resolution of disputes.” U.S. Br. 35. True

enough. But this purpose cuts against them. Their

reading “produces a ‘vague and obscure” jurisdic-

tional boundary. Direct Mktg. Ass’n v. Brohl, 135

S. Ct. 1124, 1133 (2015) (citation omitted). The

Agencies’ failed attempts to distinguish the Rule

from actions like the compliance order in Sackett

show this lack of clarity. If this Court accepts their

reading, “careful counsel” would indefinitely have to

bring duplicative challenges. Inv. Co. Inst. v. Bd. of

Governors of Fed. Reserve Sys., 551 F.2d 1270, 1280

(D.C. Cir. 1977). That would harm the statute’s effi-

ciency purpose.

As the State Respondents noted (at 38-43), this

purpose instead supports the plain text. It repre-

sents one application of the Court’s general presump-

tion that Congress means to set “straightforward”

jurisdictional rules. Hertz, 559 U.S. at 94. It speaks

volumes that the Agencies do not cite cases like

Hertz or discuss the Court’s “practice of reading ju-

risdictional laws, so long as consistent with their

language, ...to establish clear and administrable

rules.” Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning, 136 S. Ct. 1562, 1567-68 (2016).

15

2. National Uniformity. The Agencies suggest

that Congress designed § 1369(b)(1) to send broad

EPA actions to the circuit courts because of the need

for “national uniformity,” while relegating local EPA

actions to the district courts given the lack of such a

need. U.S. Br. 35, 38 (citation omitted). This alleged

purpose cannot guide the reading of § 1369(b)(1). To

identify a “purpose” of a statute, a party must ground

that purpose in the statute’s text. After all, “the best

evidence of that purpose is the statutory text adopted

by both Houses of Congress and submitted to the

President.” W. Va. Univ. Hosps. v. Casey, 499 U.S.

83, 98 (1991); Scalia & Garner, supra, at 56.

The Agencies do not derive this purpose from

§ 1369(b)(1). Its text both includes and excludes na-

tional and local actions. On one hand, § 1369(b)(1)

sends many local actions to circuit courts. Subsec-

tion (F) requires an applicant to seek circuit review

of an individual permit decision. And Subsection (G)

requires circuit review of individual control strate-

gies. On the other hand, § 1369(b)(1) does not cover

all national rules. It does not “provide for judicial

review of’ general guidelines that § 1314 directs the

EPA to issue. E.J. du Pont, 430 U.S. at 124-25. And

it does not provide for review over national rules

about the hazardous-substance provisions in § 1321

or vessel-waste provisions in § 1322. U.S. Br. 29. If

Congress had intended for circuit review over all na-

tional actions, it would have enacted a provision like

the Clean Air Act’s jurisdictional provision, which

directs national actions to the D.C. Circuit and local

actions to regional circuits. 42 U.S.C. § 7607(b)(1).

But § 1369(b)(1) does not resemble that provision.

16

3. Irrational Bifurcation. Citing EJ. du Pont and

Crown Simpson, the Agencies argue that § 1369(b)(1)

should be read “so that intertwined agency actions

are routed through the same channels.” U.S. Br. 35.

They argue that it would be irrational for district

courts to review the Rule because circuit courts re-

view effluent limitations and permits. Jd. at 38.

This argument misreads E.J. du Pont and Crown

Simpson as allowing practical concerns to trump

text. As noted, both held that the challenged EPA

actions fell within the text before invoking practical

concerns. Crown Simpson, 445 U.S. at 196; EI. du

Pont, 430 U.S. at 136. The Agencies elsewhere con-

cede that the text must control such concerns. They

note that the EPA’s approval of a state-promulgated

individual control strategy under § 1314(]) does not

fall within Subsection (G), even though the EPA’s

promulgation of an individual control strategy does.

U.S. Br. 29. These actions are as “intertwined” as

they come, but review takes place across separate

courts because the text requires that result. Cf. Roll

Coater, 932 F.2d at 671.

Regardless, district-court review of the Rule does

not create “irrational bifurcation.” U.S. Br. 38. The

Agencies claim that challenges to their determina-

tions that certain lands are “waters of the United

States” invariably originate in circuit court after a

permit ruling under Subsection (F). /d. To the con-

trary, this Court’s recent cases implicating those de-

cisions have all originated in district courts. U.S.

Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807,

1812-13 (2016); Sackett, 566 U.S. at 123-25; Rapanos

v. United States, 547 U.S. 715, 729 (2006) (plurality

op.); SWANCC, 531 U.S. at 165. Thus, even if a chal-

lenge to a “categorical” agency resolution should

17

begin in the same court as a challenge to a landown-

er-specific agency resolution, challenges to the Rule

belong in district court. U.S. Br. 31.

C. The Agencies’ Legislative-History Argu-

ments Also Do Not Permit Departure

From The Text

The Agencies argue that the legislative history

from three different periods supports their argument

that Subsections (E) and (F) cover the Rule. U.S. Br.

40-48. This argument fails for the same reasons that

their purpose arguments fail.

To begin with, “reliance on legislative history is

unnecessary in light of the statute’s unambiguous

language.” Mohamad v. Palestinian Auth., 566 U.S.

449, 458 (2012) (citation omitted). “As [the Court

has] repeatedly held, the authoritative statement is

the statutory text, not the legislative history or any

other extrinsic material.” Exxon Mobil Corp. v. AIl-

lapattah Servs., 545 U.S. 546, 568 (2005). Because

Subsections (E) and (F) are clear, the Court has no

need to invoke legislative history.

In all events, the Agencies’ legislative history of-

fers no significant insights into the meaning of Sub-

sections (E) and (F).

1. 1971-72 Reports. The Agencies argue that the

Clean Water Act’s committee and conference reports

“suggested that Section 1369(b)(1) encompasses every

nationwide regulation that the [EPA] issues under

the” Act. U.S. Br. 42. The quoted statements sug-

gest no such thing. The Senate Report indicated that

“fo|ne of the uncertainties in the existing [law] is the

availability or opportunity for judicial review of ad-

ministratively developed and promulgated require-

18

ments, standards and regulations.” S. Rep. 92-414,

at 84-85 (1971). This passage did not identify the

regulations that the new provision would cover, let

alone indicate that it would cover them all. In fact,

the Senate Report described § 1369(b)(1) as

“specif[ying] the courts in which certain appeals may

be prosecuted.” Jd. at 84 (emphasis added). The

House Report was even clearer. It spelled out each

action covered by § 1369(b)(1), and added that the

section does not “exclude judicial review under other

provisions of the legislation that are otherwise per-

mitted by law,” such as through the Administrative

Procedure Act. H.R. Rep. 92-911, at 136 (1972).

Even if these reports suggested that § 1369(b)(1)

covered all national rules, they would contain, as the

Agencies concede, an “imprecise” summary of the

section. U.S. Br. 42-43. It is hard to see why such an

inaccuracy should say anything about § 1369(b)(1).

Justices “who make use of legislative history believe

that clear evidence of congressional intent may ilu-

minate ambiguous text.” Milner v. Dep't of the Navy,

562 U.S. 562, 572 (2011). They do “not take the op-

posite tack of allowing ambiguous legislative history

to muddy clear statutory language.” Jd. That is

what the Agencies seek to do here with their reliance

on “imprecise” (i.e., ambiguous) history.

2. 1987 Change. The Agencies next suggest that

Congress, in 1987, acquiesced in their broad reading

of Subsections (E) and (F) by passing amendments to

§ 1369(b)(1) “without narrowing its scope.” U.S. Br.

44 (citing Water Quality Act of 1987, Pub. Law No.

100-4, 101 Stat. 7). Even if Congress acquiesced in

EI. du Pont and Crown Simpson, it did not agree to

the Agencies’ misreading of them. If anything, these

19

amendments show that the Agencies do not read

those cases correctly because the amendments would

serve no purpose under the Agencies’ view. Congress

made two changes: It added sewage-sludge limita-

tions under § 1345 to Subsection (E), and it adopted

Subsection (G) for the promulgation of individual

control strategies. 101 Stat. at 39, 73. If rules affect-

ing the “permitting process” were already covered,

however, Congress had no reason to add these provi-

sions. After all, the sewage-sludge regulations and

individual control strategies establish permit condi-

tions. 33 U.S.C. §§ 1314()(1)(D), 1345(a)-(b). So the

EPA’s reading of Subsections (E) and (F)—which

would cover these permit-affecting actions—renders

these amendments “a largely meaningless exercise.”

Rumsfeld v. Forum for Acad. & Instl Rights, Inc.,

547 U.S. 47, 58 (2006).

3. 1977 Debate. The Agencies lastly argue that a

floor debate about an unenacted amendment to

§ 1369(b)(1) during the 95th Congress supports their

broad reading of the enacted section passed by the

92nd Congress. U.S. Br. 44-48. The Court should

reject their pages of “1977 ‘history’ about a 1972

law.” Longview Fibre Co. v. Rasmussen, 980 F.2d

1307, 1312 (9th Cir. 1992). The Court has “observed

on more than one occasion that the interpretation

given by one Congress (or a committee or Member

thereof) to an earlier statute is of little assistance in

discerning the meaning of that statute.” Cent. Bank,

N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 185

(1994) (citation omitted). It has added that “[flailed

legislative proposals are ‘a particularly dangerous

ground on which to rest an interpretation of a prior

statute.” United States v. Craft, 535 U.S. 274, 287

(2002) (citation omitted)); SWANCC, 531 U.S. at 169-

20

70. The Agencies’ arguments join both problematic

methods. An after-the-fact debate about § 1369(b)(1)

generally does not help discern the specific meaning

of the text in Subsections (E) and (F).

D. The Agencies Wrongly Favor A Presump-

tion Of Circuit Review Over Established

Interpretive Canons

The Agencies claim that Florida Power & Light

Co. v. Lorion, 470 U.S. 729 (1985), created a pre-

sumption favoring circuit review for statutes that di-

vide jurisdiction between circuit and district courts.

U.S. Br. 48-49. They overread that case.

To begin with, Florida Power confirms that the

Agencies’ presumption provides no basis to depart

from § 1369(b)(1)’s text. While the Court stated that

it “will not presume that Congress intended to depart

from the sound policy of placing initial APA review in

the courts of appeals,” it added that “|w]hether initial

subject-matter jurisdiction lies initially in the courts

of appeals must of course be governed by the intent

of Congress and not by any views we may have about

sound policy.” 470 U.S. at 745-46. That is, policy ra-

tionales cannot override § 1369(b)(1)’s language.

Even if § 1369(b)(1) were ambiguous, the canons

that the State Respondents invoked (at 38-49) would

prevail over this presumption. Florida Power relied

on efficiency concerns to describe the “sound policy”

of circuit review. 470 U.S. at 745. Yet the statute

there contained no provision like § 1369(b)(2), which

forecloses later judicial review over actions falling

within § 1369(b)(1). And the “presumption of judicial

review is a repudiation of the principle that efficiency

of regulation conquers all.” Sackett, 566 U.S. at 130.

21

Indeed, the D.C. Circuit, which the Agencies cite as

having adopted their circuit-favoring presumption,

U.S. Br. 48, rejected it in a case involving the Noise

Control Act precisely because of that law’s similar

review-preclusion provision. Chrysler Corp. v. EPA,

600 F.2d 904, 911-13 (D.C. Cir. 1979).

The Agencies respond that challengers who later

confront § 1369(b)(2)’s judicial-review restriction may

assert constitutional challenges at that time, so the

presumption favoring judicial review (and the canon

of constitutional avoidance) should not affect the

Court's reading now. U.S. Br. 49. Not so. If an am-

biguous statute could be read to restrict judicial re-

view in a way that raises constitutional concerns, the

Court should choose an alternative reading that ex-

pands that review and lessens those concerns. “In

other words, when deciding which of two plausible

statutory constructions to adopt, a court must con-

sider the necessary consequences of its choice.”

Clark, 543 U.S. at 380. “If one of them would raise a

multitude of constitutional problems, the other

should prevail—whether or not those constitutional

problems pertain to the particular litigant before the

Court.” Jd. at 380-81. Thus, because § 1369(b)(2) re-

stricts judicial review and raises constitutional con-

cerns, § 1369(b)({1) should be interpreted to lessen

those concerns. Longview, 980 F.2d at 1313.

The Agencies respond with a footnote from Harri-

son v. PPG Industries, 446 U.S. 578 (1980), which

addressed the Clean Air Act’s jurisdictional provi-

sion. U.S. Br. 49. The challengers there asserted

that “a literal construction” of that section—which

grants broad review over all final action, 42 U.S.C.

§ 7607(b)(1)—“would violate due process of law” be-

22

cause of its similar judicial-review restriction. Har-

rison, 446 U.S. at 592 n.9. The footnote stated that

the judicial-review restriction was “not at issue here”

and that any constitutional challenge would have to

“await another day.” /d. This statement should not

be read to reject the canon of constitutional avoid-

ance. Instead, Harrison held only that the Clean Air

Act’s jurisdictional grant unambiguously applied to

the EPA action at issue, leaving no ambiguity to re-

solve. Jd. at 588-89. As Justice Powell noted, “con-

stitutional difficulties well may counsel a narrow

construction” of that section, but “no such construc-

tion [was] possible in this case.” Id. at 594-95 (Pow-

ell, J., concurring). Section 1369(b)(1), however, is

far narrower than the Clean Air Act’s similar provi-

sion. Whether it reaches the Rule is—at the least—

debatable. So the avoidance canon and presumption

favoring judicial review counsel a narrow reading.

The Agencies’ reliance on Harrison is ironic in a

final respect. Harrison rejected reliance on policy

arguments about the best forum for resolving dis-

putes, noting that “this is an argument to be ad-

dressed to Congress, not to this Court.” 446 U.S. at

593. The same can be said for the Agencies’ position.

As the State Respondents noted (at 1-2), the Court

should reject their efforts to bring back the policy-

based interpretive approach from Holy Trinity

Church v. United States, 143 U.S. 457 (1892).

23

CONCLUSION

This Court should reverse the Sixth Circuit’s

holding that it has subject-matter jurisdiction under

33 U.S.C. § 1369(b)(1) over the petitions for review.

Respectfully submitted,

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY*

State Solicitor

*Counsel of Record

PETER T. REED

Deputy Solicitor

30 East Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

eric.murphy@

ohioattorneygeneral.gov

Counsel for Respondent

State of Ohio

SEPTEMBER 2017

ADDITIONAL COUNSEL

STEVEN T. MARSHALL

Attorney General

State of Alabama

JAHNA LINDEMUTH

Attorney General

State of Alaska

MARK BRNOVICH

Attorney General

State of Arizona

LESLIE RUTLEDGE

Attorney General

State of Arkansas

CYNTHIA H. COFFMAN

Attorney General

State of Colorado

PAMELA JO BONDI

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

LAWRENCE G. WASDEN

Attorney General

State of Idaho

CurRTIs T. HILL, JR.

Attorney General

State of Indiana

DEREK SCHMIDT

Attorney General

State of Kansas

ANDY BESHEAR

Attorney General

State of Kentucky

JEFF LANDRY

Attorney General

State of Louisiana

BILL SCHUETTE

Attorney Genera!

State of Michigan

JIM Hoop

Attorney General

State of Mississippi

JOSHUA D. HAWLEY

Attorney General

State of Missouri

TIM Fox

Attorney General

State of Montana

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

ADAM PAUL LAXALT

Attorney General

State of Nevada

LARA KATZ

Assistant General

Counsel

New Mexico

Environment

Department

GREGORY C. RIDGLEY

General Counsel

MATTHIAS SAYER

Special Counsel

New Mexico State

Engineer

WAYNE STENEHJEM

Attorney General

State of North Dakota

MIKE HUNTER

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

HERBERT H. SLATERY III

Attorney General

and Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

PATRICK MORRISEY

Attorney General

State of West Virginia

BRAD D. SCHIMEL

Attorney General

State of Wisconsin

PETER K. MICHAEL

Attorney General

State of Wyoming