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

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FILED

SEP 11 2017

No. 16-299 TRICE

In the Supreme Court of the Anited States

ee —_

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

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 FOR PETITIONER

MICHAEL B. KIMBERLY TIMOTHY S. BISHOP

Mayer Brown LLP Counsel of Record

1999 K Street, NW CHAD M. CLAMAGE

Washington, DC 20006 JED GLICKSTEIN

(202) 263-3127 SAMUEL D. BLOCK

Mayer Brown LLP

LINDA E. KELLY 71 South Wacker Drive

QUENTIN RIEGEL Chicago, Illinois 60606

LELAND P. FROST (312) 782-0600

a tbishop@mayerbrown.com

733 10th Street, NW, Ste 700

Washington, DC 20001

(202) 637-3000

Counsel for Petitioner

TABLE OF CONTENTS

I. The Sixth Circuit Lacks Jurisdiction Under

The Plain Language Of Secticn 1369(b)(1). .......... 1

A. Subsection (E) Does Not Confer Juris-

SE SR EA SERA Rt Se 1

B. Subsection (F) Does Not Confer Juris-

ACRES SSPE Ee aco ne 10

C. Statutory Purpose And Structure

Reinforce The Plain Language....................... 13

D. Legislative History Reinforces The

EE a 14

II. Policy Considerations Favor Interpreting

Section 1369(b) Textuallly. .................cccecsesecseseeees 18

A. Interpreting Section 1369(b) Textually

Promotes Jurisdictional Clarity..................... 18

B. A Narrow Reading Is Necessitated By

Section 1369(b)’s Preclusion Provision. ......... 19

C. A Textual Reading Offers The Benefits

Of Multilateral Review Of Agency

A ER SSS 21

D. The Agencies’ Efficiency Arguments Are

AE AES Se A eS 22

RRS eet Se ene top MOR A DADE 23

TABLE OF AUTHORITIES

Page(s)

Cases

Advocate Health Care Network v. Stapleton,

Se ca iis cchentobiaindcpeniinninnnningio 17

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

890 F.2d 869 (7th Cir. 1989)...................00.-csecceceees 5

Bethlehem Steel Corp. v. EPA,

Os cnesemnnsintioninniaet 6

Burrage v. United Siates,

ET ee ae a 23

Clark v. Martinez,

I a seid neieatnasaiaalil 20

Crown Simpson Pulp Co. v. Costle,

Re i CI ariececeescnccssncncswcccoses 1, 10, 11, 14

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

ln cntineinsiniatd passim

Florida Power & Light Co. v. Lorion,

is cneinsipomiennnlinia 22

Friends of the Everglades v. EPA,

699 F.3d 1280 (11th Cir. 2012)................02-..0.00... 10

Gutierrez v. Ada,

aus se oeee............................................ 4,5

Harrison v. PPG Indus., Inc.,

| EE 18, 20

Henson v. Santander Consumer USA Inc.,

in cinenee draseisineanien 13, 14

Hertz Corp. v. Friend,

i deeiinlieniaemsinendiai 18

Leocal v. Ashcroft,

ERIE TS Eee eRe ea 20

Longview Fibre Co. v. Rasmussen,

980 F.2d 1307 (Sth Cir. 1992)...................c0ceeeeees 14

McDonnell v. United States,

ET 7

Nader v. EPA,

BD Fe FEE GEG Cie. TBD. cccccccccceccccececccveceeses 23

Nixon v. Mo. Mun. League,

Ee en ee: 4

NLBEB v. SW Gen., Inc.,

ng 5, RES a Ren nae 5, 7, 11

Nowak v. United States,

a necsigdensinins 4

Nw. Envtl. Advocates v. EPA,

537 F.3d 1006 (9th Cir. 2008)......................22...0- 10

Rapanos v. United States,

I ois wiinnnesinadenincinnintinnneiaeoeeel 3, 12

Raygor v. Regents of Univ. of Minn..,

I NE IE Re

Ruhrgas AG v. Marathon Oil Co.,

a cneepnendnsionieelians

Sackett v. EPA,

Tc ccrnnciniadectiensomempnntetoniiiencattt 8,

Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs,

i cancer imenisntiociioesionn

Town of Chester v. Laroe Estates, Inc.,

a cosuhannenees

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

coun dianionnepeund

United States v. Alvarez-Sanchez,

ne ceuhuasanoune

Wash. State Dep't of Social & Health Servs.

v. Guardianship Estate of Keffeler,

ERR SR A

Statutes and Regulations

SEES LETS A MERE EN

I senibenensinieemaniaeninian

33 U.S.C

laine daasnati intents shninbinnintisnntiia passim

EE A ae eee wee eee ee. 2,6, 15

SREP A a heen eee RBM aR E ASH eT 6

TIS EIR Se Oe RRS PEPE OE 2, 5,6, 15

STP TEESE PEPE Ree aeRO SALE ET 7

A FR ie Ae PA SAD 2

EN ee EE ae eC a eS 18

FE A ae RO UREN LOE Se 2,6

I iced sad ie de caching cicacitnsiiaieanimnbdadbemiaainll 4

ETS ATS IOS Oe A PEO 10, 15, 17, 18

IT 11

| RT EN Ie ee Se ee ee ree Ta 12, 13

ASTER ESE eee eee 2, 5,6, 18

ESA Ae a eee see OER SEAN er 18

i ATE EET LESS Re SRE, 18

ETE IL NT a ne ee 5, 6

SEES RE Re aCe TENS IT Nem pe ae eR tae 6

es asiiianials 5, 6

SRE IIR ee ny eee emus NL Ae 3

FETE ER De aT mR ICE passim

aS cel enschede aaa 4

ie EE ee ee ap 18

Miscellaneous

128 Cong. Rec. S. 26,764 (1977).........0-2---ssesccerrseseceee 17

Admin. Conf. of the United States, Misc.

Amendments, 41 Fed. Reg. 56,767

ERE 16, 17

Antonin Scalia & Bryan A. Garner,

READING LAW: THE INTERPRETATION OF

STE EET SR NE See 5

Clean Air Act Amendments, Pub. L. 95-95,

oe Sf A, RR Te ER: 18, 20

Clean Water Act of 1977, Pub. L. 95-217, 91

SD, HE GG: SEs MP Oiccctsccnsdccscctebanienuimiobasians 16

Clean Water Rule: Definition of “Waters of

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

SG Ty i iticnsckccntienaicntmumiiedanibialgaseaiia passim

Federal Water Pollution Control Act

Amendments of 1971, S. 2770, 92d Cong.

Fe El inicciscnsntartininiiniigpiindadeamamanatarasnebadl 15

H.R. Rep. 92-911 (1972), reprinted in 1 Leg.

Hist. of the Water Pollution Control Act

OE TOTS CER. FRR FI Fac scccccccccccccsceccscccssoceess 15

H.R. Rep. No. 92-1465 (1972) (Conf. Rep.)......... 15, 16

Joseph W. Mead & Nicholas A. Fromherz,

Choosing a Court to Review the

Executive, 67 ADMIN. L. REV. 1 (2015)................. 13

ih, Ns Te ee iciticncanscssncisitadishatduniéichiantiie 14, 15

Water Quality Act of 1987, Pub. L. 100-4,

101 Stat. 7 (eb. 4, 1987) ........<-ccccccocecesecesscerereees 18

The agencies abandon any pretense that statutory

language justifies the judgment below that WOTUS

Rule challenges belong in the court of appeals under

Section 1369(b)(1)(F). They rely solely on an incorrect

reading of this Court’s decision in Crown Simpson Pulp

Co. v. Costle, 445 U.S. 193 (1980), in which EPA denied

a permit. The agencies’ principal argument, that the

plain language of Subsection (E) covers the WOTUS

Rule, was properly rejected by the court below. So wae

their strained reading of E.I. du Pont de Nemours &

Co. v. Train, 430 U.S. 112 (1977), which involved a

regulation establishing effluent limitations. The

WOTUS Rule promulgates no effluent or other

limitation, nor is it EPA action issuing or denying a

permit. The agencies’ policy reasons for asking this

Court to twist plain statutory language are more than

matched by countervailing considerations that favor

district court jurisdiction. This Court should reverse

with directions to dismiss the petitions for review.!

l. The Sixth Circuit Lacks Jurisdiction Under

The Plain Language Of Section 1369(b)(1).

A. Subsection (FE) Does Not Confer Juris-

diction.

The agencies contend that Subsection (EK)

authorizes court of appeals jurisdiction because the

WOTUS Rule “promulgaties] any effluent limitation or

other limitation under section 1311.” That position

contradicts the plain language of the statute.

1. The WOTUS Rule is not a “limitation,” which

means a restriction or restraint imposed by EPA. NAM

Br. 28-29. The agencies admitted in promulgating the

1 All of the NAM’s fellow coalition members join this reply. See

NAM Br. | n.1.

Rule that it “does not establish any regulatory

requirements” and “imposes no enforceable duty.” 80

Fed. Reg. 37,054, 37,102. As respondent States explain

(at 25-26), it is impossible for landowners to violate the

Rule’s definition of “waters of the United States.”

The agencies say the Rule is a limitation because it

defines those geographic areas to which Section

1311(a) applies. But the Rule does not determine how

the property may be used or whether a permit is

required. See U.S. Br. 2-3 (before permit requirements

apply a “pollutant” must be “added” to jurisdictional

waters from a “point source”); NAM Br. 6 (a host of

exclusions from permitting must be analyzed). The

agencies’ reading turns any definition of any element

relevant to whether a permit may be needed into a

“limitation” within Subsection (E).

The agencies argue (at 23) that limitations need

not be self-executing, citing regulations that establish

effluent limits for categories of point sources which are

then imposed on dischargers through NPDES permits.

But when EPA issues those effluent regulations, EPA

specifies who is regulated, and it provides specific

notice of the limits, restrictions, or standards that

apply. Such regulations—provided they are issued

under Sections 1311, 1312, 1316, or 1345—

“promulgat[e] *** effluent limitation|s]’ squarely

within Subsection (E).2 The WOTUS Rule, by contrast,

2 The proviso that effluent rules fall under the sections listed in

(E) is important. The agencies misstate (at 23) that NAM concedes

that effluent guidelines issued under Section 1314(b)(1)(A) fall

within (E). We do not, and EPA’s position is at odds with du Pont.

The Fourth Circuit held in du Pont that Section 1314() rules fall

under (E). This Court disagreed, concluding that challenges to

Section 1314(b) regulations “could probably be brought only in the

District Court.” 430 U.S. at 125.

“applies to the entire statute” (Rapanos v. United

States, 547 U.S. 715, 742 (2006) (plurality)), exempts

some waters from coverage, and requires “case-specific

analysis” to determine whether many waters “are

jurisdictional.” U.S. Br. 6; see, e.g., Dkt. 129-1 at 79-81

(explaining vagueness of the Rule’s definition of

“tributary”). A definition of the CWA’s geographical

scope—which does not tell a landowner whether a

permit is required—does not “promulgate” a

“limitation” in any sense of the words.

2. The agencies incorrectly assert (at 27) that “a

rule setting the geographic scope of effluent

limitations” is an “effluent limitation.” An “effluent

limitation” is a “restriction” on “quantities, rates, and

concentrations” of pollutants authorized to be

discharged to jurisdictional waters. 33 U.S.C.

§ 1362(11). “Other limitations” likewise refers to EPA

actions governing authorized discharges—a point the

agencies obliquely acknowledge. See U.S. Br. 3

(NPDES permits “establisfh] permissible rates,

concentrations, quantities of specified constituents, or

other limitations”), 11 (“[e]ffluent and other limitations

under Section 1311 apply only to discharges of

pollutants to ‘navigable waters”).

Nor is the WOTUS Rule “directly related” to

effluent limitations. U.S. Br. 27. It sets in motion a

complex inquiry using vague criteria to determine

whether a feature is jurisdictional. The CWA requires

separate inquiry into whether a planned activity

involves an addition of pollutants from a point source,

and whether exclusions apply, before a permit

including effluent limitations is required.

3. The agencies rest most of the weight of their

argument on “other limitation.” But the term “effluent

limitation,” in combination with Subsection (E)’s

reference to four statutory provisions that each relate

to specific types of discharge limitation, cabins the

scope of “other limitation.” NAM Br. 29-31. The

agencies (at 18) emphasize the word “any.” But by

contrast to the cases they cite, “any” modifies only the

preceding term (“effluent limitation”), not the term at

issue (“other limitation”). Moreover, “any’ can and does

mean different things depending upon the setting.”

Nixon v. Mo. Mun. League, 541 U.S. 125, 132 (2004).

This Court reads “any” narrowly when, as here, context

requires. E.g., Raygor v. Regents of Univ. of Minn., 534

U.S. 533, 542-544 (2002) (constitutional avoidance

canon); Gutierrez v. Ada, 528 U.S. 250, 254-255 (2000)

(noscitur canon); United States v. Alvarez-Sanchez, 511

U.S. 350, 357 (1994) (statutory structure). Even if

applied to “other limitations,” in context “any” cannot

expand “other limitations” beyond those that, like

effluent limits, establish restrictions on authorized

discharges—precisely the subject of each statutory

provision cited in Subsection (E).

The agencies say (at 24-25) ejusdem generis does

not apply because the statute is “disjunctive,” with one

specific term preceding the general term. But the

canon can apply in that context. E.g., Nowak v. United

States, 356 U.S. 660, 664 (1958). And it applies even

under the agencies’ restrictive reading. The CWA

repeatedly pairs “other limitation” with “effluent

limitation” and additional terms that relate to specific

restrictions on what pollutant, and how much, may be

discharged—-making it clear that Subsection (E)’s use

of “other limitation” does not mean “all limitations of

whatever kind.” U.S. Br. 18; e.g., 33 U.S.C. §§ 1318(a)

(‘any effluent limitation, or other limitation,

prohibition, or effluent standard, pretreatment

standard, or standard of performance”), 1370 (same).

Noscitur a soctis likewise applies. Common sense

suggests that Congress would not have said “any

effluent limitation or other limitation” if it meant “any

limitation at all.” The agencies argue (at 25-26) that

“other limitation” is “broad,” but this Court has applied

noscitur to similar terms. E.g., Wash. State Dep't of

Social & Health Servs. v. Guardianship Estate of

Keffeler, 537 U.S. 371, 384 (2003) (“other legal

process”). Noscitur requires no “string of statutory

terms.” U.S. Br. 26. See, e.g., Gutierrez, 528 U.S. at

254-255. It applies precisely when one specific term

precedes the general term. Scalia & Garner, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS 205-206

(2012). Anyway, Subsection (E) supplies a string of

terms: its listing of Sections 1311, 1312, 1316, and

1345 informs the meaning of “other limitations.” See

Pet. App. 30a. Each listed section regulates permitted

discharges into jurisdictional waters (NAM Br. 30-31);

they do not regulate which waters are jurisdictional.

The agencies speculate (at 27) that Congress paired

“effluent” with “other” limitations “for emphasis or

clarity.” But “the same could be said of most

superfluous language.” NLRB v. SW Gen., Inc., 137 S.

Ct. 929, 941 (2017). The agencies give “effluent

limitation” no emphasizing or clarifying role—the term

becomes subsumed under “other limitation,” and

therefore unnecessary. See Am. Paper Inst., Inc. v.

EPA, 890 F.2d 869, 877 (7th Cir. 1989).

4. The WOTUS Rule also is not a limitation “under

section 1311.” As respondent States (at 23-24) and

Waterkeeper (at 15-16) explain, the Rule emanates

from Section 1361(a), which grants EPA general

rulemaking authority, and Section 1362(7), which

defines “navigable waters.” The Rule impacts “nearly

every regulatory program under the Act.” Waterkeeper

Br. 2.

Section 1311 “unambiguously” requires EPA to

promulgate technology-based effluent limitations. Du

Pont, 430 U.S. at 127. It even references “[e]ffluent

limitations established pursuant to this section.” 33

U.S.C. § 1311({e). And the other statutes listed in

Subsection (E)—Sections 1312, 1316, and 1345—each

directs EPA to issue specific discharge regulations.

None requires EPA to undertake rule-making to

interpret a definitional phrase that appears in Section

1362.

The agencies’ assertion (at 28) that the WOTUS

Rule has the “legal and practical effect” of making an

effluent limitation applicable to “waters that [it]

covers” not only elides a slew of intervening steps

governed by other definitions, but also sacrifices

Subsection (E)’s “readily understandable” “reference”

to “limitation[s] under” Section 1311 to mean numeric

and similarly specific limits on authorized pollutant

discharges. Bethlehem Steel Corp. v. EPA, 538 F.2d

513, 516 (2d Cir. 1976). Section 1369(b)(1) cross-

references ten CWA provisions, none of which is

Section 1361(a)s general rulemaking power or

1362(7)’s definition of the Act’s geographic scope. That

omission “counsels heavily against a finding of

jurisdiction.” Pet. App. 31a.

The agencies’ reading renders superfluous

Subsection (E)’s references to Sections 1312 (water-

quality-based effluent limitations) and 1316 (new

source performance standards). Section 1311(a)

authorizes discharges that “compl[y] with” Sections

“1312” and “1316.” Any EPA action under Section 1312

or 1316 therefore has a “legal and practical effect” on

limitations included in permits and on the scope of

Section 1311(a)’s prohibition. If that were enough to

trigger Subsection (E), Congress would not have listed

Sections 1312 and 1316 in Subsection (E).

Nor would Congress in Subsection (G) have made

Section 1314()(1)(D) individual control strategies for

navigable waters impaired by toxic pollutants

reviewable in the court of appeals. Those strategies,

which are incorporated into NPDES permits, have a

“legal and practical effect” on “effluent and other

limitations under Section 1311.” U.S. Br. 28; see NAM

Br. 27.

Furthermore, Congress’s decision not to list certain

EPA actions in Section 1369(b)(1) would be

meaningless, for Subsection (E) would encompass

unlisted EPA actions. For example, EPA approval or

promulgation of state water quality standards under

Section 1313 has the “legal and practical effect” of

requiring that effluent limitations in permits be

tailored to meet those standards. 33 U.S.C. § 1313.

The agencies confidently assert (at 29) that EPA

action under Sections 1314(J) and 1313 is not covered

by Subsection (E), but on the agencies’ view that any

action with legal or practical effects on effluent

limitations falls within (E), that assertion is false. The

agencies’ all-encompassing approach “makes a mess” of

Subsection (E). SW Gen., 136 S. Ct. at 941. It expands

the categories listed in Section 1369(b)(1). And it

requires parties and courts to engage in endless pre-

merits inquiry into whether particular EPA action has

the “legal and practical effect” of making “limitations

under Section 1311 applicable.” U.S. Br. 28.

This Court presumes “that statutory language is

not superfluous.” McDonnell v. United States, 136 S.

Ct. 2355, 2369 (2016). The agencies’ reading makes

Congress's inclusions and exclusions from Section

1369(b)(1) largely meaningless and invites continued

costly debate over where jurisdiction lies.

5. The agencies’ explanation of why EPA

administrative enforcement orders lie outside

Subsection (E) is unintelligible. They write (at 29-30)

that Subsection (EF) “does not reach EPA

administrative enforcement orders” determining that

“a landowner was violating Section 1311” (like “the

order at issue in Sackett v. EPA, 566 U.S. 120 (2012)”),

because “an enforcement order does not itself approve

or promu’gate effluent or other limitations under

Section 1311.” That reasoning is backwards.

The WOTUS Rule defines jurisdictional waters, but

does not itself approve or promulgate any limitation.

Enforcement orders, by contrast, include jurisdictional

determinations—petitioners in Sackett challenged

EPA’s jurisdictional determination (566 U.S. at 122)—

but go further to find a violation, order compliance, and

prohibit further discharges. The agencies cannot

explain why an EPA order finding a violation of

Section 1311 is challenged in district court, as Sackett

held, yet a challenge to the definitional WOTUS Rule

falls within Subsection (E).

6. The agencies suggest (at 20) that the NAM and

other challengers would not be complaining about the

Rule were it not an effluent or other limitation. NRDC

(at 18-24) goes a step further by claiming that

challengers would lack standing in district court if the

Rule were not a limitation on their conduct. But there

is no “justiciability trap.” NRDC Br. 23. Courts are free

to consider subject matter jurisdiction before

addressing standing. See Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 585 (1999). Yet NRDC demands that

this Court consider standing before the subject-matter

jurisdiction question on which it granted certiorari,

and do so for a different case in which the district court

has not yet addressed standing.

Anyway, establishing standing in the district court

does not involve showing that the WOTUS Rule is an

“effluent limitation or other limitation” under

Subsection (E), but that the Rule injures plaintiffs in a

concrete way that is redressable by striking it down.

Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,

1650 (2017).

The immediate legal consequence of the WOTUS

Rule is that the entire CWA applies to features that

fall within its definition. The NAM and its fellow

plaintiffs alleged in their district court complaint that

the “vague” WOTUS Rule “requires unpredictable case-

by-case determinations” that leave their members

unable to “know which features on [their] lands” are

“jurisdictional.” This deprives plaintiffs “of notice of

what the law requires of them”—-at risk of substantial

criminal and civil penalties—and “makes it impossible

for them to make informed decisions concerning the

operations, logistics, and finances of their businesses.”

Dkt. 1 9931-32, No. 3:15-cv-165 (S.D. Tex.). Plaintiffs’

members hired consultants to analyze the applicability

of the Rule to their property, and must consider

seeking jurisdictional determinations or applying for

permits. Id. 4434-35. Analysis of whether the

definition of WCTUS may capture features of land is

one element in deciding whether a permit is required

for particular activities, along with “pollutant,”

“addition,” “point source,” and exclusions. But it does

not follow from the fact that the WOTUS definition has

practical and legal consequences for landowners that it

qualifies as an “effluent limitation or other limitation”

under the provisions of the CWA listed in Subsection

(E).

In summary, the majority below correctly ruled

that Section 1369(b)(1)(E) does not confer jurisdiction.

B. Subsection (F) Does Not Confer Juris-

diction.

1. The agencies do not pretend that the WOTUS

Rule “issufes] or denfies] any permit under section

1342.” 33 U.S.C. § 1369(b)(1)(F). That “should end the

analysis.” Pet. App. 39a.

The agencies (at 10, 31) say jurisdiction

nevertheless exists under Subsection (F) “as construed

in” Crown Simpson, using a “functional interpretive

approach.” Crown Simpson did not endorse that free-

wheeling interpretation. It held that Subsection (F)

conferred jurisdiction over EPA’s veto of a state-issued

permit because the veto had “the precise effect” of a

permit denial. 445 U.S. at 196. Subsection (F)’s text

applied: EPA denied the permit—but for EPA’s veto,

the permit would have issued. See States Br. 16

(“ordinary meaning” of “deny” is “to refuse the use of or

access to”). Unlike a permit veto, the WOTUS Rule

does not stop any permit from issuing. Nor does it

require any permit to issue. The Rule makes no

decision whatever on “particular permit applications.”

Waterkeeper Br. 9.

This Court should reject the agencies’ request to

extend Crown Simpson far beyond its holding and in

conflict with statutory text. The agencies’ invocation of

reliance (at 33) is misplaced. Some courts have

accepted the agencies’ limitless reading of Crown

Simpson, but others have not. E.g., Friends of the

Everglades v. EPA, 699 F.3d 1280, 1287-1288 (11th

Cir. 2012); Nw. Envtl. Advocates v. EPA, 537 F.3d

1006, 1016-1018 (Sth Cir. 2008); NAM Br. 39-40. The

majority below understood that Crown Simpson does

not compel a finding for the agencies. Pet. App. 39a-

42a, 45a.

2. The agencies argued below that, under Crown

Simpson, Subsection (F) reaches EPA actions “affecting

the granting or denying of permits.” Pet. App. 18a.

They now abandon that argument, presumably

recognizing that it has no stopping point and renders

superfluous Sections 1369(b)(1)(A), (C), (D), (E), and

(G). See NAM Br. 25-27; U.S. Br. 34. They now contend

that Subsection (F), under Crown Simpson, reaches

EPA actions “establish[ing} the boundaries of EPA’s

permitting authority.” U.S. Br. 11, 16; id. at 33

(‘whether EPA has jurisdiction to issue or deny a

permit”). But the agencies cannot explain how a rule

defining one condition of their jurisdiction to issue or

deny a permit is “functionally similar” to the act of

issuing or denying a permit. Rejecting that proposition

obviously does not require “overturn[ing]” Crown

Simpson. U.S. Br. 33.

Nor does the agencies’ new approach address the

superfluity that drove them to this retreat. For

example, Section 1369(b)(1)(D) covers EPA determin-

ations under Section 1342(b) to authorize states to

administer NPDES permit programs, which have a

profound effect on the role of EPA vis-a-vis states in

issuing or denying permits. Subsection (D) would be

superfluous on the agencies’ new rewriting of (F). The

agencies say (at 34) that superfluous language

“serve[s] a useful purpose.” But that “could be said of

most superfluous language.” SW Gen., 137 S. Ct. at

941.

The proper reading of Crown Simpson—to the

extent it has not been superseded by statute (see NAM

Br. 23 & n.10)—is that Subsection (F) confers

jurisdiction over EPA actions that issue or deny a

permit or (the equivalent) decide whether a permit will

or will not issue. That is the only reading that respects

Subsection (F)’s text and gives other subsections

independent force.

3. The justification the agencies offer for asking

this Court to rewrite “issuing or denying” an NPDES

permit to mean promulgating rules addressing

whether “EPA has jurisdiction to issue or deny a

permit” is that Section 1369(b)(1) would otherwise

“irrational[ly] bifurcat[e]” review oof EPA’s

jurisdictional determination “in an individual NPDES

permitting decision” from “EPA’s resolution of the

same question on a more categorical basis.” U.S. Br.

12-13, 33.

That rationale invites this Court to rewrite

countless jurisdictional statutes. See NAM Br. 46-47.

And the bifurcation the agencies point to is no more

irrational than Congress’s choice to assign NPDES

permit challenges to the court of appeals but Section

1344 permit challenges to district court.

But at bottom, the agencies offer a solution in

search of a problem, for bifurcation is uncommon in

practice. To determine whether property contains

WOTUS, landowners usually seek a jurisdictional

determination (reviewable in district court) rather

than undertake the considerable expense of applying

for a permit (reviewable in the court of appeals). See

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

1807 (2016). The agencies have issued 400,000 such

determinations since Rapanos. U.S. Br. 6. And when

jurisdictional determinations are made in adminis-

trative enforcement orders, those are reviewed in

district court. Sackett, supra. Our interpretation puts

the vast majority of challenges relating to jurisdiction

in district court (where SWANCC, Rapanos, Riverside

Bayview, Sackett, and Hawkes all began).

C. Statutory Purpose And Structure Reinforce

The Plain Language.

1. The agencies contend (at 35) that the purpose of

Section 1369(b)(1) is to “facilitat[e] quick and orderly

resolution of disputes concerning the legality of

important rules governing the scope of a regulatory

scheme.” But “[ljegislation” is “the art of compromise,

the limitations expressed in statutory terms often the

price of passage, and no statute yet known ‘pursues its

[stated] purpose [ | at all costs.” Henson v. Santander

Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017).

Section 1369(b)(1) is one of “thousands of

compromises dividing initial review of agency decisions

between district and circuit courts” that “var[y]

dramatically” even “within particular legislation.”

Mead & Fromherz, Choosing a Court to Review the

Executive, 67 ADMIN. L. REV. 1, 2, 15-16 (2015). No one

denies that the Corps and states play important roles

in CWA’s regulatory scheme, yet Section 1369(b)(1)

does not cover review of their actions. No one disputes

that Section 1344 permitting is important, yet Section

1369(b)(1) does not apply. And the agencies say (at 29-

30) that EPA’s nationwide regulations governing

hazardous substances, vessel wastes, and construction

grants fall outside Section 1369(b)(1). The agencies

make no attempt to reconcile these exclusions with

their view of Section 1369(b)(1)’s purpose. If quick and

orderly resolution of “important rules” were Congress's

purpose, it would have authorized review of all

“nationally applicable regulations” under the CWA,

words Congress used in the Clean Air Act. 42 U.S.C.

§ 7607(b)(1).

The agencies ignore Section 1369(b)(1)’s most

salient feature: it enumerates seven categories of

agency action using a list so precise that “Congress

refer|s] to specific subsections of the Act.” Du Pont, 430

U.S. at 136. Many courts have confined those

categories to their text because “[nJjo sensible person

accustomed to the use of words in laws would speak so

narrowly and precisely of particular statutory

provisions, while meaning to imply a more general and

broad coverage than the statutes designated.”

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313

(9th Cir. 1992); see Waterkeeper Br. 17 & n.9.

2. The agencies say (at 40) that the NAM seeks to

“render nugatory” case law interpreting Section

1369(b)(1). As explained above, our reading is in

harmony with du Pont, Crown Simpson, and many

courts of appeals’ decisions. And we offer “a consistent

and principled” rule (ibid.) that is easily applied in

practice: read Section 1369(b)(1) textually. See Henson,

137 S. Ct. at 1725 (the “legislature says * * * what it

means and means * * * what it says”). This will not

“hinder” but aid “judicial efforts to resolve future

jurisdictional disputes.” U.S. Br. 40. The agencies’ plea

for court of appeals jurisdiction over actions sufficiently

connected to effluent limitations or permits, by

contrast, will just result in more litigation about where

to litigate.

D. Legislative History Reinforces The Plain

Language.

1. The agencies mischaracterize the legislative

history of the 1972 Act establishing Section 1369(b).

They observe (at 41) that the Senate Report

characterized the Senate bill as routing to the D.C.

Circuit suits against EPA “requirements, standards

and regulations.” S. Rep. 92-414 at 84-85 (1971). But

the Senate bill did not treat all components of Section

1369(b) that way. It sent challenges equivalent to those

described in Subsections (A)-(D) of the adopted version

of Section 1369(b)(1) to the D.C. Circuit, because those

actions were “national in scope.” Jd. at 85. But it sent

to the regional circuits challenges to “any effluent

limitation under section [1311] or [1312]” or to the

issuance or denial of a Section 1342 permit—

essentially Subsections (E) and (F) as adopted, but

without the term “other limitation”—because it viewed

those EPA actions as local in nature. Ibid.; see Federal

Water Pollution Control Act Amendments of 1971, S.

2770, 92nd Cong. § 509(b) (1971).

The Senate’s approach thus contradicts the

agencies contention that Subsection (E) broadly covers

national rules that can be traced, however remotely, to

Section 1311(a). Ultimately, it indicates little about

how a rule like WOTUS should be reviewed under the

different Act that emerged after compromise with the

House, which favored broad district court review. See

H.R. Conf. Rep. No. 92-1465 at 147 (1972) (the House

amendment to “Section [1369] is basically the same as

the Senate bill except that review [of EPA action lies] in

the district court’).

The agencies (at 41) quote the House Report

statement that Section 1369(b)(1) established “a clear

and orderly process for judicial review.” H.R. Rep. 92-

911 at 136 (1972). That statement says nothing about

which agency actions the House intended to fall within

Section 1369(b)(1). And the agencies’ vague test

encourages protective filings and litigation over

jurisdiction, so it is anything but clear and orderly. The

agencies also ignore the House Report's statement that

“(Section 1369] is not intended to exclude judicial

review under other provisions of the legislation that

are otherwise permitted by law.” Ibid. The House

intended actions, like the WOTUS Rule, that fall

outside Section 1369(b)(1) to be reviewable in district

courts under the APA.

The agencies (at 15) misread the Conference

Report as “indicat[ing] that Section 1369(b)(1) would

govern ‘any suit against a federal standard.” The

Conference Report was there describing the Senate bill

discussion of what became Subsections (A)-(D), not its

treatment of what became Subsections (E)-(F), nor the

subsequent House amendment that called for district

court review, nor the compromise that emerged from

conference. See H.R. Conf. Rep. No. 92-1465 at 147

(1972). Moreover, the Conference Report explained

that the “conferees do not intend to, in any way, affect

the right of a party for which judicial review was not

available” under Section 1369(b)(1). Id. at 148. This

language confirms Congress's intent not to have

Section 1369(b)(1) apply beyond its terms.

Finally, the agencies acknowledge (at 42) that

Congress's “language was imprecise” “insofar as”

legislative reports suggested that “every nationwide

regulation” would fall within Section 1369(b)(1). In

other words, even on the agencies’ own wishful reading

of the legislative history, it does not support the line

the agencies would now draw.

2. The agencies misread 1977 amendments to the

CWA, which did not modify Section 1369(b)(1). Pub. L.

95-217, 91 Stat. 1566 (Dec. 27, 1977). Congress rejected

the Administrative Conference of the United States’

recommendation to expand original court of appeals

review under Section 1369(b)(1). The agencies (at 45)

quote snippets of the Conference’s report but ignore its

acknowledgement that “[n]ot every action of the EPA”

was “reviewable in the courts of appeals” under Section

1369(b)(1). 41 Fed. Reg. 56,767-56,768 (Dec. 30, 1976).

And they disregard the report’s opinion that both

Section 1369(b)(1) and the Clean Air Act’s judicial

review provisions were “inconsistent, incomplete,

ambiguous, and unsound”; courts were “stretch[ing]”

their texts; “corrective amendments’ were “desirable”;

and “fa]ll national standards” should be reviewed by

the D.C. Circuit. Ibid.

Senator Kennedy proposed adopting the

Administrative Conference’s recommendation, but

other Senators opposed and tabled his amendment. 123

Cong. Rec. 26,754-26,761 (1977). The floor debate does

not “confirm Congress’s understanding” that Section

1369(b)(1) covers “nationwide regulations.” U.S. Br. 44.

Senator Kennedy described his amendment as

“centraliz[ing] judicial review of national regulations”

before the D.C. Circuit, and “defined” those national

regulations to include “any regulation issued under

sections [1311] or [1342].” 123 Cong. Rec. at 26,754,

26,758.

But other Senators had expressed “considerable

opposition” to that expansion of Section 1369(b) in

committee, where it would have been “defeated.” Jd. at

26,758, 26,760. Senator Domenici commented that “we

can come to this floor with every bill that has some

national significance of a regulatory manner and we

can find some precedent somewhere that they have

jurisdiction, and we can nickel and dime the district

courts of the United States out of business.” Jd. at

26,759. The agencies deny it (at 46-47), but Senator

Domenici of course was talking about the amendment.

Anyway, “[s|cattered floor statements by individual

lawmakers” are “among the least illuminating forms of

legislative history.” Advocate Health Care Network v.

Stapleton, 137 S. Ct. 1652, 1661 (2017). The

undeniable fact is that the 95th Congress chose not to

enact the Administrative Conference’s proposal to

expand Section 1369(b)(1).

That same Congress did enact the Administrative

Conference’s proposal to alter judicial review under the

Clean Air Act. See Pub. L. 95-95, § 305(c)(1)-(2), 91

Stat. 685, 776 (Aug. 7, 1977) (broadening 42 U.S.C.

§ 7607(b)(1) to reach “any other nationally applicable

regulations” and “any other final [EPA] action” that is

“locally or regionally applicable”); Harrison v. PPG

Indus., Inc., 446 U.S. 578, 587 n.4 (1980). Congress’s

disparate actions confirm that Section 1369(b)(1)

should be read narrowly. See NAM Br. 40, 43.

3. 1987 CWA amendments further undermine the

agencies’ arguments. Those amendments expanded

Subsection (E) to include limitations under Section

1345 and added Subsection (G), which covers EPA's

promulgation of individual control strategies for toxic

pollutants under Section 1314(J. Pub. L. 100-4,

§§ 308(b), 406(d)(3), 101 Stat. 7, 39, 73. Section 1345

requires rulemaking to restrict the discharge of sewage

sludge using Section 1342 permits. 33 U.S.C. § 1345(b),

(f). Section 1314() requires “establishment of effluent

limitations under section 1342” to achieve water

quality standards. Jd. § 1314()(1)(D). If the agencies

were correct (at 44) that Congress understood Section

1369(b)(1) to cover “rules that govern the CWA

permitting process,” there would have been no need for

Congress to expand Section 1369(b)(1) to include these

additional rules.

Il. Policy Considerations Favor Interpreting

Section 1369(b) Textually.

A. Interpreting Section 1369(b) Textually

Promotes Jurisdictional Clarity.

The agencies never acknowledge “the need for

judicial administration of a jurisdictional statute to

remain as simple as possible.” Hertz Corp. v. Friend,

559 U.S. 77, 80 (2010); see NAM Br. 44-48. Their

reading subverts that important goal.

The agencies ask this Court (at 17, 28) to hold that

Subsection (E) “encompasses all EPA actions that

impose limitations of any sort under Section 1311” or

have a “legal and practical effect” on Section 1311

limitations. They offer several examples of actions that

seemingly satisfy their standards but, they claim, fall

outside Subsection (E)’s coverage. E.g., U.S. Br. 29-30.

They further ask this Court (at 31, 33) to adopt a

“functional interpretive approach” under Subsection

(F) that turns on what they think Subsection (F)

“naturally reaches” and what is “functionally similar.”

Forty-five years of experience tell us what will

happen if this Court adopts those amorphous

standards: “chaos.” Waterkeeper Br. 6. Unsure still of

which court has jurisdiction, parties will continue to

file challenges in both district and circuit courts. Years

will be spent litigating jurisdiction over EPA actions

that fall outside Section 1369(b)(1)’s text but perhaps

fali within its “manifest purposes.” Pet. App. 4a.

Jurisdictional doubt also will infect merits

determinations, and a contrary jurisdictional decision

by this Court could send the parties back to the

starting gate after years of litigation.

As industry, respondent States, and most

environmental parties agree, it is imperative that this

Court break that cycle by reading Section 1369(b)(1) to

create administrable standards. The best way to do so

is by limiting Section 1369(b)(1) to its text and holding

that it does not capture the WOTUS Rule.

B. A Narrow Reading Is Necessitated By

Section 1369(b)’s Preclusion Provision.

A narrow reading is necessary because Section

1369(b)’s preclusion provision creates due-process and

rule-of-lenity concerns and encourages “buckshot

petitions.” NAM Br. 48-50.

The agencies do not deny that the NAM’s reading

would reduce the number of protective petitions. Nor

do they dispute that due-process and rule-of-lenity

concerns exist. They argue (at 49) that the Court

should ignore those concerns in this case because they

will “arise” only “in a future enforcement proceeding.”

But “a court must consider the necessary consequences

of its choice.” Clark v. Martinez, 543 U.S. 371, 380

(2005). “If one of [two readings] 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.” Id.

at 380-381. Indeed, the rule of lenity applies in civil

cases because of potential prejudice to future criminal

defendants. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8

(2004). These principles require a narrow reading of

Section 1369(b)(1) today to avoid prejudicing criminal

and civil defendants tomorrow.

The agencies’ reliance (at 49) on Harrison is

misplaced. There, this Court held that Congress’s 1977

amendments to the Clean Air Act unambiguously

conferred jurisdiction over an EPA action without

considering whether that holding created

constitutional concerns. 446 U.S. at 586-594 & n.9.

Justice Powell explained in his concurrence that the

constitutional avoidance canon did not apply because

“a marrow construction” was not “possible” given

Congress’s unambiguous amendments. Id. at 594-595.

Here, Congress did not expand the CWA’s judicial

review provisions when faced with the same call to do

so. And the NAM’s interpretation of Section 1369(b)(1)

is certainly “plausible,” which triggers the canon.

Clark, 543 U.S. at 380-381. Further, this Court

emphasized in interpreting “waters of the United

States” that it is essential to read the CWA “as

written” to avoid “significant constitutional” concerns.

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

Corps of Eng’rs, 531 U.S. 159, 173-174 (2001). A

textual interpretation of Section 1369(b)(1), reinforced

by the avoidance canon, compels reversal.

C. A Textual Reading Offers The Benefits Of

Multilateral Review Of Agency Rulemaking.

The agencies do not deny that the NAM’s reading

of Section 1369(b)(1) will improve the quality of judicial

decisions, increase the probability of correct

dispositions, and aid this Court in its merits and case

selection decisions. See NAM Br. 50-52; du Pont, 430

U.S. at 135 n.26 (extolling “the wisdom of allowing

difficult issues to mature through full consideration by

the courts of appeals”).

The agencies argue (at 39) that a “Congress that

placed great weight on doctrinal dialogue might have

routed to district courts ail htigation concerning EPA’s

administration of the CWA.” The same can be said of

the agencies’ reading: a Congress that placed great

weight on prompt review might have routed to courts

of appeals all litigation concerning EPA's

administration of the CWA. Yet Congress did not do so.

The agencies argue (at 39 n.6) that the NAM’s

reading would “requir[e] duplication of the identical

task in the district court and in the court of appeals.”

But that is Congress’s default rule for judicial review of

agency action. 5 U.S.C. § 703; 28 U.S.C. § 1331. Indeed,

it is the rule in all litigation when district courts decide

questions of law or make any other determination that

appellate courts review de novo. As a practical matter,

challengers have incentives to limit the number of

suits that proceed. See NAM Br. 52-54.

There are “reason[s] why Congress would have

distinguished” between “the numerical aspect of

effluent limitations and the geographical aspect of

those limits.” U.S. Br. 39. Effluent limitations give

specific notice of the restrictions that apply to a source

or category of sources. The WOTUS Rule, by contrast,

sets the geographic boundaries of the entire CWA.

When a regulation has such profound impact on a

statutory term that applies to all of the CWA’s

regulatory programs, Congress could rationally intend

that the regulation be reviewed by district courts and

sent through the regular appeals process because it is

more important that judicial review be correct than

prompt. The agencies would have a single panel set the

law for the nation for all time, vastly increasing the

probability of error.

D. The Agencies’ Efficiency Arguments Are

Unpersuasive.

The agencies claim (at 4) to champion the reliance

interests of “the regulated community, regulators, and

the public.” But the regulated community, 30 States

that administer much of the CWA, and many

environmental organizations oppose the agencies’

position. EPA may think it benefits by narrowing as

much as possible the litigation it must defend; hardly

anyone else sees benefits sufficient to twist Congress's

scheme of review.

The agencies (at 48) say Florida Power & Light Co.

v. Lorion, 470 U.S. 729 (1985), rejected a

“presu[mption]” of district court jurisdiction whenever

Congress also grants courts of appeals jurisdiction to

review agency action. That is incorrect. Florida Power

interpreted “ambiguous” judicial review provisions

governing the Nuclear Regulatory Commission and

stressed that jurisdiction is “governed by the intent of

Congress and not by any views we may have about

sound policy.” Id. at 737, 746. “[Nlowhere” in its

“lengthy exegesis of those specific statutes” did this

Court “intimate that it was ruling as a matter of

general administrative procedure.” Nader v. EPA, 859

F.2d 747, 754 (9th Cir. 1988). Regardless, “[t}he role of

this Court is to apply the statute as it is written—even

if [it] think[s] some other approach might accor[d] with

good policy.” Burrage v. United States, 134 S. Ct. 881,

892 (2014).

CONCLUSION

The judgment should be reversed and the case

remanded with instructions to dismiss for lack of

jurisdiction.

Respectfully submitted.