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

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## Record

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

## Text

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
Washington, DC 20004
(202) 314-2048
Counsel for the National

Federation of Independent

Business

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0700%3A19. Public record. Not legal advice.