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

ECORD No. 16-299

AND | IN THE

WES Supreme Court of the United States. -

NATIONAL ASSOCIATION OF MANUFACTURERS,

Petitioner,

Vv.

U.S. DEPARTMENT OF DEFENSE, DEPARTMENT

OF THE ARMY CORPS OF ENGINEERS AND US.

ENVIRONMENTAL PROTECTION AGENCY, e¢ al.,

Respondents.

On Wair or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SrxtH Circulr

BRIEF FOR THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA, NATIONAL

FEDERATION OF INDEPENDENT BUSINESS, STATE

CHAMBER OF OKLAHOMA, TULSA REGIONAL

CHAMBER, AND PORTLAND CEMENT ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Kate CoMERFORD Topp Writ S. Consovoy

STEVEN P. LEHOTSKY Counsel of Record

SHELDON B. GILBERT J. MICHAEL CONNOLLY

U.S. CHAMBER LITIGATION Consovoy McCartuy Park PLLC

CENTER 3033 Wilson Boulevard, Suite 700

1615 H Street, NW Arlington, VA 22201

Washington, DC 20062 (703) 243-9423

(202) 463-5337 will@consovoymecarthy.com

Counsel for the Chamber MicHakE. H. Park

of Commerce of the United Consovoy McCartuy Park PLLC

States of America Three Columbus Circle,

15th Floor

New York, NY 10019

(212) 247-8006

Counsel for Amici Curiae

(For Continuation of Counsel See Inside Cover)

KAREN R. HARNED

LUKE A. WAKE

NF'IB SMALL BusINgEss

LEGAL CENTER

1201 F Street, NW, Suite 200

Washington, DC 20004

(202) 314-2048

Counsel for the National

Federation of Independent

Business

1

TABLE OF CONTENTS

Page

TIN Soo eke cceincecctvncecsece i

TABLE OF CITED AUTHORITIES .............. iii

INTEREST OF AMICI CURIAE .................. 1

SUMMARY OF THE ARGUMENT................ 4

CN cotta ces enawheskcad cevces bar owes 6

I. Challenges to the WOTUS Rule Do Not

Fall Within Any of the Clean Water Act’s

Limited Exceptions Providing for Original

Jurisdiction in the Courts of Appeals. ......... 6

A. Section 1369(b) Makes Plain That

the Courts of Appeals Lack Original

Jurisdiction Over Challenges to the

I cn dotGebstanSaee dtoeee ss 6

B. Longstanding Canons of Statutory

Construction Confirm That the Courts

of Appeals Do Not Have Original

Jurisdiction Over Challenges to the

cea eee s 6d dane 10

C. There Is No Basis for Invoking

Policy or Practical Considerations

to Conclude That the Sixth Circuit

gd cc wcéeese ee ay eene's 13

uw

Table of Contents

Page

II. To the Extent That Policy and Practical

Concerns Are Relevant Considerations,

They Support Finding No Original

Jurisdiction in the Sixth Circuit.............. 18

CEPUAMEE ccvccccvccncvcecvesedsscenene ene 24

wt

TABLE OF CITED AUTHORITIES

Page

CASES

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

GSR F.2d B57 (ith Cir. 1968) ...... ccc eee cece 20

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

890 F.2d 869 (7th Cir. 1989) ................. 12-13

Am. Petroleum Inst. v. SEC,

714 F.3d 1329 (D.C. Cir. 2013)................45. 24

Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy,

een enc acccevececestes es 6

Atchison, Topeka & Santa Fe R.R. Co. v. Pena,

pe fo Le | ee 23

Baker Botts L.L.P. v. ASARCO LLC,

ee co beesktbsbvcoccccoces 14

Barnhart v. Peabody Coal Co.,

Ee oes cocdceesccccececes 10, 17

Bowen v. Mich. Acad. of Family Physicians,

icc. Ges acesbeseecescecece 19

Burrage v. United States,

IES bo ccccccccccceccccececs 4, 6,14

CLR. v. Lundy,

6 oc6de cocccesccessccocceces 14

w

Cited Authorities

Page

Caminetti v. United States,

a ian os ob dacdedestseseedube’ 6

Chamber of Commerce v. EPA,

ee soos becccodéacusedeveces 4

Corley v. United States,

Ns ccc cecnudaseedeesesekenen 12

Crown Simpson Pulp Co. v. Costle,

Ee 14, 17, 18

Decker v. Nw. Envtl. Defense Ctr.,

es ci cécdavascbeassetuns 19

Defenders of Wildlife v. Browner,

191 F.8d 1159 (th Cir. 1909). ... 0... ..ccceeeneees 9

Desert Palace, Inc. v. Costa,

ek ous ca dévecéséwavecnetsen 18

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

ES Bh de SN passim

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Building & Constr. Trades Council,

Five Flags Pipe Line Co. v. Dep't of Transp.,

854 F.2d 1438 (D.C. Cir. 1988) .................. 11

Vv

Cited Authorities

Friends of the Earth v. EPA,

333 F.3d 184 (D.C. Cir. 2003) ................ 11, 13

Grayned v. Rockford,

NGS 6c bc octucecdécsedenedeeeen 21

Hertz Corp. v. Friend,

PT c.ccospaccccbontovesesccenes 21

Holland v. Nat'l Mining Ass'n,

309 F.3d 808 (D.C. Cir. 2002) .............0000e. 23

In re Clean Water Rule: Definition of “Waters of

the United States”,

140 F. Supp. 3d 1340 (J.P.M.L. 2015) ............. 23

In re U.S. Dep’t of Defense, U.S. E.P.A. Final

Rule: Clean Water Rule: Definition of Waters

of U.S. (“In re WOTUS Rule”),

817 F.3d 261 (6th Cir. 2016)................ passim

Loan Syndications & Trading Ass'n v. SEC,

818 F.3d 716 (D.C. Cir. 2016). ......... 0c cece eeeee 9

Longview Fibre Co. v. Rasmussen,

980 F.2d 1307 (9th Cir. 1992) ........... 8, 11, 20, 22

McFarland v. Scott,

es on dt epbhesndncheuuel 23

vt

Cited Authorities

Page

Nat'l Cotton Council v. EPA,

553 F.3d 927 (6th Cir. 2009) ..............0e00e- 17

Nat'l Pork Producers v. EPA,

685 F.3d 788 (Gth Cir. 2011)... ... 2.2... eee eeeees 19

North Dakota v. EPA,

No. 15-59, 2015 WL 5060744

eo ca cientcseuceesseucees 11

Obergefell v. Hodges,

EE ob co cvvdecvacbiecocssceccde 22

Sackett v. E.PA.,

i ee dv aiiieesbndnueewe 19

Sandifer v. U.S. Steel Corp.,

ee vc aGicviveccecedconsea 14

Schiller v. Tower Semiconductor Ltd.,

449 F.3d 286 (2d Cir. 2006) ..............-.2-0-- 10

State of Oklahoma ex rel. Pruitt v. EPA,

2016 WL 3189807 (N.D. Okla. Feb. 24, 2016) ....... 3

U.S. Army Corps of Engineers v. Hawkes Co.,

ns cc ececebesnduen seeeee 20

United States v. Mendoza,

Ne eb eewmed 22

vit

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES

Te OF I a vcs ccccevcevecepuscvesecsense 12

ED bw ce ccc nce cccccsccsevecccoeses 12

BB TUBS, © Te oc ccc ccc cccccccccccccccesees 12

cn nt seccccctevcsovssceusnscaceeee 9

8B U.S.C. § IBAZGNMT) ... wee cc ccc ccc cccccecees 13

i lk i ererer rrr rrr rrr rst 7, 8

es IED occ cvccccccesescctccnscscensed 8

BB Bec cv ciccccsccccccccccccscecesecces 3

SB UBC. § IBGRRRD) 2... cc ccccccccccccccess passim

88 U.S.C. § 1BGO(DMIMA). ... 2.2.2 eee cee eeeeee 10, 12

33 U.S.C. § 1369(b)(I)(B). .. 2. eee eens 10

SB UBC. § IBGBGRONO). .... oc ecccccccccccccccees 13

$8 U.S.C. $ 18GOQDMIMD) .. 0... eee veceevcevees 10

33 U.S.C. § 1369(b\IME) .......0000eeeeeeees passim

viii

Cited Authorities

Page

SP UEEEY BD co ccccccccccescessces passim

ee EE, c cinboscd0acceeveseececcee 10

ns oct ceceunteenéyeeeseguen 19

as i cietnenswewseatendeedbocuane 12

as on Lid akc urea ahuseasseees 12

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012)......... 10

Black’s Law Dictionary (7th ed. 1999) .............. 10

Clean Water Rule: Definition of “Waters of

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

noo. ds das beedeesebeseeesn ed 2

SE EE 6 bn bc wachwhs 6040 sd cbeebe coer seente 1

Sutherland, Stat. Const. § 195 (4th ed.) ............. 10

1

INTEREST OF AMICI CURIAE'

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. The Chamber represents 300,000 direct

members and indirectly represents the interests of

more than three million companies and professional

organizations of every size, in every industry, from every

region of the country. More than 96% of the Chamber’s

members are small businesses with 100 or fewer

employees. An important function of the Chamber is to

represent the interests of its members in matters before

Congress, the Executive Branch, and the courts. To that

end, the Chamber regularly files amicus curiae briefs in

cases that raise issues of concern to the Nation’s business

community.

The National Federation of Independent Business

Small Business Legal Center (“NFIB Legal Center”) is

a nonprofit, public interest law firm established to provide

legal resources and be the voice for small businesses in

the nation’s courts through representation on issues of

public interest affecting small businesses. The National

Federation of Independent Business (“NFIB”) is the

nation’s leading small business association, representing

members in Washington, D.C., and all 50 state capitals.

Founded in 1943 as a nonprofit, nonpartisan organization,

NF'IB’s mission is to promote and protect the right of its

1. Pursuant to this Court’s Rule 37.6, counsel for amici

curiae certify that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amici curiae, their members, or their counsel has made a

monetary contribution to the preparation or submission of this

brief. All parties have consented to the filing of this brief.

2

members to own, operate, and grow their businesses.

NF'IB represents member businesses nationwide, and its

membership spans the spectrum of business operations,

ranging from sole proprietor enterprises to firms with

hundreds of employees. To fulfill its role as the voice for

small business, the NFIB Legal Center frequently files

amicus briefs in cases that will impact small businesses

State Chamber of Oklahoma (“State Chamber”) is a

non-profit organization created and existing under the

laws of Oklahoma. The State Chamber represents more

than 1,000 Oklahoma businesses and 350,000 employees.

It has been the State’s leading advocate for business since

1926. The State Chamber provides a voice for Oklahoma

employers and employees in the executive, legislative, and

judicial branches of government in Oklahoma.

Tulsa Regional Chamber (“Tulsa Chamber”) is a non-

profit organization created and existing under the laws

of Oklahoma. The Tulsa Chamber serves as the primary

advocate for Tulsa’s business community, representing

more than 3,000 employers and employees across the

Tulsa region. The Tulsa Chamber promotes the interests

of its members in the executive, legislative, and judicial

branches of government in Oklahoma.

In July 2015, Amici filed a declaratory-judgment

action in the U.S. District Court for the Northern District

of Oklahoma, challenging the Waters of the United

States Rule (“WOTUS Rule” or “Rule”) on statutory and

constitutional grounds. See Clean Water Rule: Definition

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

29, 2015). Amici alleged that the WOTUS Rule improperly

extends federal regulatory authority to millions of miles

3

of rivers, streams, and other purely intrastate waters.

Amici further alleged that many of their members own

property that will be subject to costly and burdensome

federal regulations under the WOTUS Rule. Amici asked

the district court to hold the WOTUS Rule unlawful, to

vacate and set it aside, and to enjoin its enforcement.

Although Amici properly filed suit in the district

court, they recognized that the EPA and the Corps (“the

Agencies”) likely would claim that jurisdiction over their

challenge belonged in the courts of appeals. If Amici had

litigated this issue and lost, they would have forfeited their

challenge to the WOTUS Rule because the deadline for

filing a petition for review under 33 U.S.C. § 1369 is 120

days from the date of the EPA’s action. Therefore, in an

abundance of caution, Amicz? filed a protective petition for

review of the WOTUS Rule in the U.S. Court of Appeals

for the Tenth Circuit. Amic?’s petition was transferred to

the Sixth Circuit, where it was consolidated with similar

cases.

After the Sixth Circuit issued the decision below, the

district court in Oklahoma—without a motion, briefing, or

hearing—issued an order sua sponte dismissing Amici’s

ease for lack of jurisdiction. See State of Oklahoma ex

rel. Pruitt v. EPA, 2016 WL 3189807, at *2 (N.D. Okla.

Feb. 24, 2016). Pointing to 33 U.S.C. § 13869(b)(1)(E) and

(F) and the Sixth Circuit’s decision, the district court

summarily concluded that the courts of appeals have

original jurisdiction over challenges to the WOTUS

Rule. Amici appealed that dismissal, arguing that the

district court had jurisdiction over the case and that—

notwithstanding the judgment of the Sixth Circuit—the

district court had an independent obligation to determine

4

its own jurisdiction. That case is currently pending. See

Chamber of Commerce v. EPA, No. 16-5038 (10th Cir.).

Thus, after almost two years of litigation, Amici still

have not had an opportunity to be heard on the merits of

their claims. This delay was caused by multiple courts

overlooking that courts must “apply the statute as it is

written—even if [it] think[s] some other approach might

accord with good policy.” Burrage v. United States, 134

S. Ct. 881, 892 (2014).

SUMMARY OF THE ARGUMENT

The Sixth Circuit’s conclusion that Section

1369(b)(1) grants it jurisdiction over challenges to the

WOTUS Rule was erroneous. Section 1369(b)(1) specifies

seven categories of agency action for which a challenge

must be initiated in the courts of appeals. This is not

one of those cases. Subparagraph (E) grants original

jurisdiction to the courts of appeals over challenges to an

EPA action “in approving or promulgating any effluent

limitation or other limitation.” But the WOTUS Rule is

not a limitation; it instead operates in conjunction with

other sections of the CWA to define when its restrictions

apply. Similarly, subparagraph (F) provides for original

appellate jurisdiction only when the EPA has “issu{ed]”

or “den[ied]” a permit to discharge pollutants into a

navigable water. But there is no question that the WOTUS

Rule itself did not “issue” or “deny” any permits.

Finding original jurisdiction in the courts of appeals

would contravene not only the CWA’s plain text, but

also longstanding canons of statutory construction.

Specifically, the Agencies’ interpretation of Section

5

1369(b)(1) fails under the doctrine of expressio unius est

exclusio alterius (the expression of one thing implies the

exclusion of the other) and the canon against surplusage.

First, by giving the courts of appeals original jurisdiction

over seven specific categories of EPA actions, Congress

provided that those courts do not have original jurisdiction

over other, unspecified EPA actions, such as promulgation

of the WOTUS Rule. Second, a statute should be construed

to give effect to all of its provisions. But the Agencies’

sweeping construction of subparagraphs (E) and (F) would

render useless the other provisions of Section 1369(b)(1).

The Agencies advocate a “practical,” policy-based

reading of the CWA to argue that the Sixth Circuit

had jurisdiction over these disputes. Such an approach,

however, finds no support in this Court’s precedent, much

less in the plain text of the CWA. Regardless, public policy

and practical concerns favor original jurisdiction in the

district courts—not in the courts of appeals. Petitioner’s

interpretation of the CWA would ensure that litigants

are able to challenge EPA actions outside of the 120-day

deadline, provide certainty over where they must bring

their challenges, and allow for thorough judicial review

of the WOTUS Rule. For all these reasons, the decision

of the Sixth Circuit should be reversed.

6

ARGUMENT

I. Challenges to the WOTUS Rule Do Not Fall Within

Any of the Clean Water Act’s Limited Exceptions

Providing for Original Jurisdiction in the Courts

of Appeals.

The Court has admonished “time and again that

courts must presume that a legislature says in a statute

what it means and means in a statute what it says there.”

Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S.

291, 296 (2006). “When the statutory language is plain, the

sole function of the courts—at least where the disposition

required by the text is not absurd—is to enforce it

according to its terms.” Jd. “If the words are plain, they

give meaning to the act, and it is neither the duty nor the

privilege of the courts to enter speculative fields in search

of a different meaning.” Caminetti v. United States, 242

U.S. 470, 490 (1917). The role of the Court is to “apply the

statute as it is written—even if [it] think[s] some other

approach might accord with good policy.” Burrage v.

United States, 134 S. Ct. 881, 892 (2014).

A. Section 1369(b) Makes Plain That the Courts

of Appeals Lack Original Jurisdiction Over

Challenges to the WOTUS Rule.

The text of subparagraphs (E) and (F) of Section

1369(b)(1) make plain that the courts of appeals lack

original jurisdiction over challenges to the WOTUS Rule.

Section 1369(b)(1)(), Subparagraph (E) grants

original jurisdiction to the courts of appeals over an

EPA action “in approving or promulgating any effluent

7

limitation or other limitation.” 33 U.S.C. § 1369(b)(1)

(E). The CWA defines an “effluent limitation” as “any

restriction established by a State or the Administrator on

quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged

from point sources into navigable waters, the waters of

the contiguous zone, or the ocean, including schedules

of compliance.” Jd. § 1362(11). The CWA does not define

“other limitation.”

As the Agencies have conceded, the WOTUS Rule is

not an “effluent limitation.” See In re U.S. Dep’t of Defense,

U.S. E.P.A. Final Rule: Clean Water Rule: Definition

of Waters of U.S. (“In re WOTUS Rule”), 817 F.3d 261,

266 (6th Cir. 2016) (McKeague, J.). It does not “restrict”

the “quantities, rates, and concentrations” of pollutants

discharged “from point sources into navigable waters,

the waters of the contiguous zone, or the ocean, including

schedules of compliance.” 33 U.S.C. § 1362(11).

Instead, the Agencies contend that the WOTUS

Rule is an “other limitation under section 1311” because

it “has the effect of restricting the actions of property

owners who discharge pollutants from a point source

into covered waters,” and “it has the effect of imposing

limitations or restrictions on regulatory bodies charged

with responsibility for issuing permits under the [ National

Pollutant Discharge Elimination System (“NPDES”)]

to those who discharge pollutants into covered waters.”

In re WOTUS Rule, 817 F.3d at 266 (McKe~gue, J.)

(emphases added). True enough: the WOTUS rule will

have those effects. But the Rule itself is not an “other

limitation” within the meaning of subparagraph (FE) for

the simple reason that the Rule standing alone does not

8

limit anything. See Friends of the Everglades, 699 F.3d

at 1286 (defining “limitation” as a “restriction”) (quoting

Black’s Law Dictionary 1012 (9th ed. 2009)). Instead,

the WOTUS Rule “operates in conjunction with other

sections scattered throughout the Act to define when its

restrictions even apply.” In re WOTUS Rule, 817 F.3d at

276 (Griffin, J.).

Even if the phrase “other limitation” could be

read to encompass a rule that is not itself a limitation,

subparagraph (FE) still would not encompass the WOTUS

Rule because the rule is not an “other limitation under

Section 1311.” 33 U.S.C. § 13869(b)(1)(E) (emphasis added).

“('T Jhe plain text of [subparagraph] (EF) clearly delineates

what the limitations are, and what they are not: the

‘limitations’ set forth in §§ 1311, 13812, 1316, and 1345

provide the boundaries for what constitutes an effluent

or other limitation.” In re WOTUS Rule, 817 F.3d at 276

(Griffin, J.). The definitional section the WOTUS Rule

modifies—viz., “[t]he term ‘navigable waters’ means the

waters of the United States, including the territorial

seas,” 33 U.S.C. § 1862(12)—does not arise from these

sections. “It is a phrase used in the [CWA’s] definitional

section, § 1362, and no more.” In re WOTUS Rule, 817

F.3d at 276 (Griffin, J.). Accordingly, “the lack of any

reference to § 1362 in [subparagraph] (E) counsels heavily

against a finding of [original] jurisdiction” in the court of

appeals. /d.; see also Longview Fibre Co. v. Rasmussen,

980 F.2d 1307, 1313 (9th Cir. 1992) (“It would be an odd

use of language to say ‘any effluent limitation or other

limitation under section 1311, 1312, 1316, or 1345 of this

title’ in § 1369(b)(1)(E) if the references to particular

sections were not meant to exclude others.”).

9

Indeed, the WOTUS Rule “appl[ies] to all provisions

of the [CWA],” including those within the Corps’ domain.

80 Fed. Reg. at 37,104. But Section 1369(b)(1) limits

jurisdiction only to EPA actions, not to actions of both

Agencies. The “joint nature of the rulemaking” indicates

that this is not an EPA-specific effluent or other limitation.

Loan Syndications & Trading Ass'n, 818 F.3d at 722.

Section 1369(b)(1)(F). Subparagraph (F) grants

original jurisdiction to the courts of appeals over an EPA

action “in issuing or denying any permit under section

1342 of this title.” Naturally read, subparagraph (F)

applies only when the EPA has “issufed]” or “den[ied]” a

particular permit to discharge pollutants into a navigable

water under 33 U.S.C. § 1342. See, e.g., Defenders of

Wildlife v. Browner, 191 F.3d 1159, 1161-62 (9th Cir. 1999)

(finding original jurisdiction under subparagraph (F) to

review an EPA decision “to issue [NPDES] permits to

five municipalities”).

The WOTUS Rule did not “issue” or “deny” any permit

and is “definitional” only. 80 Fed. Reg. at 37,054. It made

no individualized permitting decisions of any kind. See

Friends of the Everglades, 699 F.3d at 1288 (finding no

jurisdiction under subparagraph (F*) over “a general rule,

as o»)posed to a decision about the activities of a specific

entity”). As such, subparagraph (F) does not grant the

courts of appeals original jurisdiction over challenges to

the WOTUS Rule.

10

B. Longstanding Canons of Statutory

Construction Confirm That the Courts of

Appeals Do Not Have Original Jurisdiction

Over Challenges to the WOTUS Rule.

The Agencies’ interpretation of Section 1369(b)(1) also

fails under two important canons of statutory construction.

1 ius, Under this

doctrine, “to express or include one thing implies the

exclusion of the other, or of the alternative.” Black’s Law

Dictionary (7th ed. 1999). “[TJhe canon expressio unius est

are members of an associated group or series, justifying

the inference that items not mentioned were excluded by

deliberate choice, not inadvertence.” Barnhart v. Peabody

Coal Co., 587 U.S. 149, 168 (2003). “For instance, if the

statute in question enumerates the matters over which a

court has jurisdiction, no other matters may be included.”

Sutherland, Stat. Const. § 195 (4th ed.); see, e.g., Schiller

v. Tower Semiconductor Lid., 449 F.3d 286, 293 (2d Cir.

2006). “The more specific the enumeration, the greater

the force of the [expressio unius| canon.” Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 108 (2012).

The Agencies’ interpretation of Section 1369(b)(1)

disregards the doctrine of expressio unius by expanding

the CWA’s jurisdictional reach to include EPA actions

that are not enumerated in Section 1369(b)(1). Congress

gave the courts of appeals original jurisdiction over seven

categories of EPA actions. 33 U.S.C. § 1369(b)(1)(A)-(G).

By doing so, it made clear that those courts do not have

original jurisdiction over any other EPA actions taken

11

under the CWA. See Friends of the Earth v. EPA, 333 F.3d

184, 189 (D.C. Cir. 2003). Indeed, the courts of appeals

“do not lightly hold that [they] have jurisdiction under

section 1369(b)(1)” because “the specificity and precision

of Section 1369, and the sense of it” demonstrate that the

statute is “designed to exclude EPA actions that Congress

did not specify.” Nw. Envt’l Advocates, 537 F.3d at 1015.

Here, Congress specified seven categories of EPA

actions that belong in the courts of appeals—none of which

can reasonably be construed to cover an administrative

rule defining the term “waters of the United States”

under the CWA. The courts should respect this legislative

choice. See Five Flags Pipe Line Co. v. Dep't of Transp.,

854 F.2d 1438, 1441 (D.C. Cir. 1988) (“[T his court simply

is not at liberty to displace, or to improve upon, the

jurisdictional choices of Congress—even when it legislates

by potpourri—no matter how compelling the policy

reasons for doing so.”).

The Agencies’ “flexible” interpretation of Section

1369(b)(1) would embrace EPA actions not included within

the CWA’s enumerated categories. “If the exceptionally

expansive view advocated by the government is adopted,

it would encompass virtually all EPA actions under the

[CWAj.” North Dakota v. EPA, No. 15-59, 2015 WL

5060744, at *1 (D.N.D. Aug. 27, 2015). This is not what

Congress intended. If Congress wanted to grant original

appellate review of more fundamental decisions, it easily

could have done so. See Longview Fibre Co., 980 F.2d at

1313.”

2. Congress knows precisely how to grant the courts of

appeals original jurisdiction over all final orders of a particular

12

Canon Against Surplusage. All else being equal,

“a statute should be construed so that effect is given

to all its provisions, so that no part will be inoperative

or superfluous, void or insignificant.” Corley v. United

States, 556 U.S. 303, 314 (2009). But under the Agencies’

sweeping interpretation of Section 1369(b)(1), the reach of

subparagraphs (E) and (F) would be so broad as to make

meaningless other provisions of Section 1369.

For example, subparagraph (A) specifically grants

courts of appeals original jurisdiction over an EPA

action “promulgating any standard of performance

under section 1316” for new point sources of pollutants.

33 U.S.C. § 1369(b)(1)(A). But if subparagraph (E) were

construed so that “other limitation” means any rule or

final agency action “whose practical effect will be to

indirectly produce various limitations on point-source

operators and permit issuing authorities,” Jn re WOTUS

Rule, 817 F.3d at 270 (McKeague, J.), then subparagraph

(E) would subsume subparagraph (A), which would serve

no function. Congress would have had no need to include

it because a standard of performance under Section 1316

will always limit (directly or indirectly) the discharge of

pollutants from new point sources. See 33 U.S.C. § 1316(a)

(1) (authorizing standards of performance “for the control

of the discharge of pollutants”); 40 C.F.R. § 401.11(k)

(defining standard of performance as a “restriction” on

discharges). The Court should not interpret the CWA in

a way that produces such a result. See Am. Paper Inst.,

agency. See, e.g., 28 U.S.C. § 2342(1) (all final orders of the FCC

are reviewed directly in the courts of appeals); 49 U.S.C. § 46110

(all final orders of the FAA are reviewed directly in the courts

of appeals); 15 U.S.C. § 78y(a) (all final orders of the SEC are

reviewed directly in the courts of appeals).

13

Inc. v. EPA, 890 F.2d 869, 876-77 (7th Cir. 1989); Friends

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

Similarly, subparagraph (C) grants courts of appeals

original jurisdiction over an EPA action “promulgating

any effluent standard, prohibition, or pretreatment

standard under section 1317.” 33 U.S.C. § 1369(b)(1)

(C). Section 1342, in turn, authorizes the EPA to “issue

a permit for the discharge of any pollutant ... upon

condition that such discharge will meet ... all applicable

requirements under sections 1311, 1312, 1316, 1217, 1318,

and 1343 of this title.” 33 U.S.C. § 1342(a)(1) (emphasis

added). If subparagraph (F) is construed so that “issuing

or denying any permit” means all “regulations governing

the issuance of permits,” Jn re WOTUS Rule, 817 F.3d

at 271 (McKeague, J.), then subparagraph (C) likewise

would be superfluous—Congress would have had no need

to enact it because every promulgation under Section 1317

will necessarily affect the permitting process. Congress

could not have intended this result.

C. There Is No Basis for Invoking Policy or

Practical Considerations to Conclude That the

Sixth Circuit Had Jurisdiction.

The Agencies argue that the Court should consider

“policy” implications and take a “praciica]” approach to

interpreting Section 1369(b)(1). In re WOTUS Rule, 817

F.3d at 268 (McKeague, J.). Employing this approach,

the Agencies contend, would avoid “a waste of judicial

and party resources, delays, and possibly even different

results.” Jd. at 277 (Griffin, J.).

14

But a court is “not at liberty to rewrite the statute

because [it] might deem its effects susceptible of

improvement.” C.ILR. v. Lundy, 516 U.S. 235, 252-53

(1996); see Baker Botts L.L.P. v. ASARCO LLC, 135 8.

Ct. 2158, 2169 (2015) (“Our job is to follow the text even

if doing so will supposedly ‘undercut a basic objective of

the statute.’””); Scalia & Garner, supra, at 343-46. Here,

“Congress could have declared” all EPA actions—or even

this particular definitional determination—reviewable in

the courts of appeals; but “(flor better or worse, it used

the narrower word[s]” contained in Section 1369(b)(1).

Sandifer v. U.S. Steel Corp., 134 8. Ct. 870, 878 (2014).

This Court is bound by Congress’s decision. In the end,

“these always-fascinating policy discussions are beside

the point. The role of this Court is to apply the statute

as it is written—even if [it] think[s] some other approach

might accord with good policy.” Burrage, 134 S. Ct. at 892

(citation omitted).

The Agencies rely on EJ. du Pont de Nemours & Co.

v. Train, 430 U.S. 112 (1977), and Crown Simpson Pulp

Co. v. Costle, 445 U.S. 193 (1980), to support their assertion

that the Court has employed a “practical” approach to

reviewing the CWA’s jurisdictional provisions. Jn re

WOTUS Rule, 817 F.3d at 266-73 (McKeague, J.). Neither

case, however, supports this proposition.

In EL. du Pont, the Court determined that the Fourth

Circuit had original jurisdiction under subparagraph (E)

to review “industrywide regulations limiting discharges

by existing [inorganic chemical manufacturing] plants.”

430 U.S. at 115. That was because subparagraph (E)

“unambiguously authoriz[es] court of appeals review of

EPA action promulgating an effluent limitation for existing

15

point sources under [section 1301],” and the relevant EPA

actions were indeed effluent limitations under Section

1301. Jd. at 186. The Court rejected the argument that

subparagraph (E) provided for review only of “(aj grant or

denial of an individual variance” under Section 1301 (and

not for classes and categories of effluent limitations). /d.

Beyond conflicting with the text, “petitioners’ construction

would produce the truly perverse situation in which the

court of appeals would review numerous individual actions

issuing or denying permits pursuant to [Section 1342]

but would have no power of direct review of the basic

regulations governing those individual actions.” /d.

The Agencies seize on the Court’s “perverse situation”

wording to argue that the Court requires a “practical”

interpretation of subparagraph (E). Jn re WOTUS Rule,

817 F.3d at 267 (McKeague, J.). Just as the Court in EJ.

du Pont was concerned with bifurcating judicial review,

the Agencies contend, the Court should also interpret

subparagraph (E) to encompass the WOTUS Rule because

it would be “truly perverse” if the courts of appeals had

the authority to review numerous individual actions in

which EPA issued or denied NPDES permits but not “the

basic regulations governing” those permitting decisions

(z.e., the WOTUS Rule). In re WOTUS Rule, 817 F.3d at

267 (McKeague, J.) (quoting EI. du Pont, 430 U.S. at 136).

But E.l. du Pont cannot be stretched this far. The

Court’s “policy reason came after a plain textual rejection

of the industry’s position.” In re WOTUS Rule, 817 F.3d at

278 (Griffin, J.). The Court’s bifurcation concerns did not

drive the jurisdictional analysis in the first instance. “It

is, therefore, a far stretch to take this dicta and expand it

... to find jurisdiction proper when a regulation’s ‘practical

16

effect’ only sets forth ‘indirect’ limits.” Jd. Moreover,

the regulations at issue in #.J. du Pont actually involved

effluent limitations, whereas “the Agencies here admit

they have not promulgated an effluent limitation.” /d.

Thus, the Court’s concern that it would be bizarre if a

court of appeals could review permit decisions but not

the effluent limitations underlying them is not present

here. In sum, nothing in EJ. du Pont licenses this Court

to overlook Section 1369(b)(1)’s text. Jd.; see id. at 283

(Keith, J., dissenting).

Crown Simpson likewise does not authorize the Court

to override the text. There, the Court reviewed whether

subparagraph (F) gave the courts of appeals origina!

jurisdiction to review an EPA action “denying a variance

and disapproving effluent restrictions contained in a

permit issued by an authorized state agency.” 445 U.S.

at 194. The Ninth Circuit had held that it lacked origina!

jurisdiction because the EPA “did no more than veto an

NPDES permit proposed by the state authority,” and

therefore, did not actually “issue or deny” a permit. Jd.

at 196. This Court disagreed, holding that when the EPA

“objects to effluent limitations contained in a state-issued

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

within the meaning of [subparagraph (F)].” Jd. (emphasis

added). Otherwise, the Court explained, “denials of

NPDES permits would be reviewable at different levels

of the federal-court system depending on the fortuitous

circumstance of whether the State in which the case

arose was or was not authorized to issue permits.” Jd. at

196-97. “Absent a far clearer expression of congressional

intent,” the Court was “unwilling to read the [CWA] as

creating such a seemingly irrational bifurcated system”

over “functionally similar” actions. Jd. at 197.

17

As with E.J. du Pont, the Agencies read Crown

Simpson to require a broad, “practical” interpretation

of subparagraph (F). In re WOTUS Rule, 817 F.3d at

273 (McKeague, J.). The Agencies contend that Crown

Simpson grants courts of appeals original jurisdiction not

only over EPA actions “issuing or denying a permit,” 33

U.S.C. § 1369(b)(1)(F), but also “regulations governing the

issuance of permits,” Jn re WOTUS Rule, 817 F.3d at 283

(McKeague, J.) (quoting Nat’l Cotton Council v. EPA, 553

F.3d 927, 933 (6th Cir. 2009)). Because the WOTUS Rule

is a regulation related to permits, the Agencies contend,

the courts of appeals have original jurisdiction to review

the rule.

But Crown Simpson, too, cannot be stretched this far.

“The facts of (Crown Simpson] make clear that the Court

understood functional similarity in a narrow sense.” Nw.

Envt’l Advocates, 537 F.3d at 1016. Had the EPA not given

California the authority to designate NPDES permits,

the EPA would have retained the power to grant or deny

permits directly. The Court thus concluded “that the

fortuitous circumstance that this case arose in a State with

permit-granting authority should not produce a different

jurisdictional result from a case involving a state without

such authority.” Jd. “With this factual overlay, the Court’s

‘precise effect’ exception makes sense.” /n re WOTUS

Rule, 817 F.3d at 281 (Griffin, J., concurring). It would

have been “perverse” there to read those “functionally

similar” situations differently.

But that concern has no application here. “It stretches

the plain text of [subparagraph] (F) to its breaking point

to hold that a definition setting the (CWA’s] boundaries

has, under Crown Simpson, the ‘precise effect’ of or is

18

‘functionally similar’ to, approving or denying an NPDES

permit.” Jd. At most, the WOTUS Rule “informs whether

the [CWA] requires a permit in the first place, not whether

the Agencies can (or will) issue or deny a permit.” Jd.;

id. at 283 (Keith, J., dissenting). The mere fact that the

WOTUS Rule “relates to” the issuance of Section 402

permits does not amount to an isswance or denial of a

Section 402 permit. Friends of the Everglades, 699 F.3d

at 1288. Therefore, nothing in Crown Simpson authorizes

the Court to disregard the statutory text.

II. To the Extent That Policy and Practical Concerns

Are Relevant Considerations, They Support Finding

No Original Jurisdiction in the Sixth Circuit.

The Court need go no further than the piain text of

Section 1369(b)(1) to reverse. See Desert Palace, Inc. v.

Costa, 539 U.S. 90, 98 (2003) (“The starting point for the

analysis is the statutory text. And where, as here, the

words of the statute are unambiguous, the judicial inquiry

is complete.”). To the extent that the Court finds policy and

practical concerns to be relevant, however, they support

finding jurisdiction in the district courts. The Petitioner’s

interpretation of the Section 1369(b)(1) ensures that:

(1) litigants are not unduly deprived of their ability to

challenge EPA actions outside of the 120-day deadline; (2)

litigants have certainty over where they must bring their

challenge to an EPA action; and (3) the WOTUS Rule and

other EPA actions with nationwide implications receive

thorough judicial review.

First, construing Section 1369(b)(1) in accordance with

its plain meaning ensures that litigants do not lose their

ability to challenge EPA actions outside of the 120-day

19

deadline. When Section 1369(b)(1) requires initial review

in the courts of appeals, the action must be challenged

within 120 days of its promulgation. See 33 U.S.C.

§ 1369(b)(2). After this time period has expired, Section

1369(b)(2) bars “judicial review” in any future “civil or

criminal proceeding for enforcement.” Jd.; see Decker v.

Nw. Envtl. Defense Ctr., 133 S. Ct. 1326, 1334 (2013). This

“120-day time limit is well-established, and ... strictly

enforced.” Nat’l Pork Producers v. EPA, 635 F.3d 738, 754

(5th Cir. 2011). Thus, if the Agencies are right that Section

1369(b)(1)(E) or (F) applies here, then Section 1369(b)(2)

purports to bar a defendant in an enforcement action,

even in a criminal prosecution, from raising constitutional

or statutory challenges to the WOTUS Rule as applied.

This is all the more reason to reject the Sixth Circuit’s

interpretation.

Because of the draconian nature of Section 1369(b)(2),

the Court should be exceptionally wary of extending its

reach too broadly and thereby endangering the ability of

ordinary individuals and small businesses—particularly

as defendants—to challenge the legality of agency action.

The APA “creates a ‘presumption favoring judicial review

of administrative action.” Sackett v. E.P.A., 566 U.S. 120,

128 (2012). When a law restricts APA review, therefore,

courts construe the limitation narrowly: “judicial review

of a final agency action by an aggrieved person will not

be cut off unless there is persuasive reason to believe that

such was the purpose of Congress.” Bowen v. Mich. Acad.

of Family Physicians, 476 U.S. 667, 670 (1986).

“A special hazard arises when review is available

directly to the court of appeals, because availability of

direct review forecloses review in certain enforcement

20

proceedings.” Longview Fibre Co., 980 F.2d at 1309.

“Reviewability under Section 1369 carries a peculiar

sting,” which “cuts against [any] argument that a grant of

appellate review should be construed liberally.” Jd. at 1313;

see also Am. Paper Inst., Inc. v. EPA, 882 F.2d 287, 289

(7th Cir. 1989) (“The review-preclusion proviso in [Section

1369(b)(2)] dissuades us from reading [Section 1369(b)(1)]

broadly; the more we pull within Section 1369(b)(1), the

more arguments will get knocked out by inadvertence

later on.”). For example, if original review in the court

of appeals is required for all rules with some relation to

the permitting process, then ordinary landowners—or

future landowners, who might be entirely unaware of this

rule—might be barred from later challenging any part

of it in future actions. The Court should not interpret the

statute to deny landowners an opportunity to mount a full

defense when an enforcement action is brought.

The WOTUS Rule is a perfect example of this danger.

An ordinary homeowner with an intermittent stream

in his backyard likely assumes that his local land is not

subject to a federal law regulating navigable waters. But if

the decision below stands, then a landowner may be barred

from challenging the WOTUS Rule when forced to defend

against an enforcement action. Indeed, the CWA’s “reach is

‘notoriously unclear’ and the consequences to landowners

even for inadvertent violations can be crushing.” U.S.

Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807,

1816 (2016) (Kennedy, J., concurring) (quoting Sackett, 132

S. Ct. at 1375 (Alito, J., concurring)). Given these potential

harms, Section 1369(b)(1) should not be read to bar judicial

review, and certainly not without a clear indication from

Congress that the 120-day limitations period has broad

applicability. See Edward J. DeBartolo Corp. v. Florida

21

Gulf Coast Building & Constr. Trades Council, 485

U.S. 568, 575 (1988) (“[W]here an otherwise acceptable

construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to

the intent of Congress”).

Second, Petitioner’s interpretation reflects the Court’s

instructions for simple, straightforward interpretations

of jurisdictional rules. The Court has long instructed

that “vague boundaries” are “to be avoided in the area

of subject-matter jurisdiction wherever possible.” Hertz

Corp. v. Friend, 559 U.S. 77, 94 (2010) (citation omitted).

“[A]dministrative simplicity is a major virtue in a

jurisdictional statute” because “[c]omplex jurisdictional

tests complicate a case, eating up time and money as the

parties litigate, not the merits of their claims, but which

court is the right court to decide those claims.” Jd. Indeed,

uncertainty as to when and where agency action may be

challenged could raise due-process concerns. Cf Grayned

v. Rockford, 408 U.S. 104, 108 (1972) (“It is a basic principle

of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined.”). For these reasons,

courts should employ “straightforward rules ur.der which

they can readily assure themselves of their power to hear

a case.” Hertz Corp., 559 U.S. at 94.

Amici’s litigation over the WOTUS Rule illustrates

these concerns. Amici filed their lawsuits (a declaratory-

judgment action in the Northern District of Oklahoma and

a protective petition for review in the Tenth Circuit) in July

2015. But almost two years later, these and other WOTUS

Rule challenges remain stalled due to uncertainty about

where jurisdiction properly lies. Instead of following

22

the plain words of the text, the parties in Amici’s cases

have been fighting over whether the WOTUS Rule must

be challenged in the courts of appeals for “practical,”

“flexible,” and “pragmatic” reasons. This uncertainty

has caused the parties—and the taxpayers—to “eat[] up

time and money” not over the merits, but over the forum

in which the merits should be litigated. Hydro Resources,

Inc., 608 F.3d at 1160 n.23; Longview Fibre Co., 980 F.2d

at 1314 (lamenting the “tremendous resources in time

and money” invested in determining proper forum).

Petitioner’s plain reading of Section 1369(b)(1) would

provide greater certainty in determining the proper forum

in which litigants should bring challenges to EPA action.

Finally, Petitioner’s interpretation ensures that

the WOTUS Rule and other EPA actions with national

implications may receive “full consideration by the courts

of appeals.” E./. du Pont, 430 U.S. at 135 n.26. This

Court has long emphasized “the benefit it receives from

permitting several courts of appeals to explore a difficult

question before [it] grants certiorari.” United States v.

Mendoza, 464 U.S. 154, 160 (1984). When multiple courts

examine a difficult question, it promotes the “thorough

development of legal doctrine by allowing litigation in

multiple forums.” Jd. at 163. Indeed, the Court recently

stressed the importance of such robust review. See

Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015).

Reversing the Sixth Circuit’s decision and allowing

the district courts to exercise jurisdiction over challenges

to the WOTUS Rule would ensure that they will be

examined by “thorough, scholarly opinions written by

some of our finest judges.” FJ. du Pont, 430 U.S. at 135.

Courts considering the validity of the WOTUS Rule may

23

reach differing conclusions about its validity. Whatever the

result, litigation of these cases in different courts would

provide an opportunity for rigorous federal review, and

thus an “increase[d] probability of a correct disposition,”

than if review is confined exclusively in the Sixth Circuit.

Atchison, Topeka & Santa Fe R.R. Co. v. Pena, 44 F.3d

437, 447 (7th Cir. 1994) (Easterbrook, J., concurring).

By seeking to expand Section 1369(b)(1) to centralize

review in the Sixth Circuit, the Agencies are attempting

to short-circuit the usual judicial percolation process.

Although it might be an effective litigation strategy

to “squelch the circuit disagreements that can lead

to Supreme Court review,” Holland v. Nat’l Mining

Ass'n, 309 F.3d 808, 815 (D.C. Cir. 2002), accepting the

Agencies’ interpretation would “substantially thwart the

development of important questions of law by freezing the

first final decision rendered on a particular legal issue,”

Mendoza, 464 U.S. at 160.

Under the Agencies’ reasoning, all federal challenges

to the same agency actions should be transferred and

consolidated into one court of appeals if there is a non-

frivolous interpretation for doing so. But this is not what

Congress has commanded. Unlike other statutes that

place all agency actions in the courts of appeals, see supra

11 n.2, Congress did so for only seven specific categories

of EPA actions under the CWA. That strongly suggests

that Congress intended for the traditional, multi-level

review to apply in most cases. See, e.g., McFarland v. Scott,

512 U.S. 849, 861-62 (1994); see also In re Clean Water

Rule: Definition of “Waters of the United States”, 140

F. Supp. 3d 1340, 1341 (J.P.M.L. 2015) (denying transfer

and centralization of all district court challenges to the

24

WOTUS Rule). “It is Congress’s job, not [the Court’s], to

determine the court in which judicial review of agency

decisions may occur.” Am. Petroleum Inst. v. SEC, 714

F.3d 1329, 1337 (D.C. Cir. 2013).

CONCLUSION

For these reasons, the Court should reverse the Sixth

Circuit’s judgment.

Respectfully submitted,

KATE COMERFORD Topp WILLiAM 8. Consovoy

STEVEN P. LEHOTSKY Counsel of Record

SHELDON B. GILBERT J. MicHAEL CONNOLLY

U.S. CHAMBER LITIGATION Consovoy McCartuy Park PLLC

CENTER 3033 Wilson Boulevard, Suite 700

1615 H Street, NW Arlington, VA 22201

Washington, DC 20062 (703) 243-9423

(202) 463-5337 will@consovoymecarthy.com

Counsel for the Chamber MICHAEL H. Park

of Commerce of the United Consovoy McCartuy Park PLLC

States of America Three Columbus Circle,

15th Floor

KAREN R. HARNED New York, NY 10019

Luke A. WAKE (212) 247-8006

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LEGAL CENTER Counsel for Amici Curiae

1201 F Street, NW, Suite 200

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