Amicus Curiae Brief — City of Arlington v. Federal Communications Commission

Nos. 11-1545 & 11-1547

RECORD

AND 3n The

BRIEFS Supreme Court of the United States

€

CITY OF ARLINGTON, TEXAS, ET AL.,

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Respondents.

+

CABLE, TELECOMMUNICATIONS, AND

TECHNOLOGY COMMITTEE OF THE

NEW ORLEANS CITY COUNCIL,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

®

AMICI CURIAE BRIEF OF NATIONAL WATER

RESOURCES ASSOCIATION, ASSOCIATION

OF CALIFORNIA WATER AGENCIES,

AND WESTLANDS WATER DISTRICT

IN SUPPORT OF PETTTIONERS

S

RODERICK E. WALSTON

Counsel of Record

BEST BEesT & KRIEGER LLP

2001 North Main Street, Suite 390

Walnut Creek, CA 94596

Tel.: (925) 977-3300

Fax: (925) 977-1870

roderick.walston@bbklaw.com

Attorney for Amici Curiae

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6064

OR CALL COLLECT (402) 342-2831 ~~ r=

- _-

bu. St

rn

[Additional Counsel]

STEVEN L. HERNANDEZ

2100 North Main Street, Suite 1

Las Cruces, NM 88001

Tel.: (575) 526-2101

slh@lclaw-nm.com

Attorney for Amicus National

Water Resources Association

Scott L. SHAPIRO

DOWNEY BRAND LLP

621 Capitol Mall, 18th Floor

Sacramento, CA 95814

Tel.: (916) 444-1000

sshapiro@downeybrand.com

Attorney for Amicus Association

of California Water Agencies

HAROLD CRAIG MANSON

GENERAL COUNSEL,

WESTLANDS WATER DISTRICT

400 Capitol Mall, 27th Floor

Sacramento, CA 95814

Tel.: (916) 321-4225

cmanson@westlandswater.org

Attorney for Amicus

Westlands Water District

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ....................0005 H

SUMMARY OF ARGUMENT ...........................2.. 4

eateries 7

I. THE CHEVRON DOCTRINE DOES NOT

APPLY TO AN AGENCY’S INTERPRE-

TATION OF ITS JURISDICTION, IF

THE AGENCYS INTERPRETATION

AUTHORIZES IT TO REGULATE SUB-

JECTS TRADITIONALLY AND PRI-

MARILY REGULATED BY STATE AND

LOCAL GOVERNMENTS ...................00000

A. The Applicability of the Chevron Doc-

trine Must Take into Consideration

Whether the Agency Interpretation

Allows Federal Intrusion into Areas

Traditionally Regulated by State and

BEE GEO WOR IIIS oc vc cccccccccsccccccccsess.

B. This Court Has Fashioned and Ap-

plied Principles of Federalism in

EN

C. This Court Has Not Applied Chevron

Deference Where Its Application

Would Contravene Principles of Fed-

SE a a a ea

1. Decisions Declining to Apply

Chevron Deference......................0++5

2. Decisions Applying Chevron Def-

i Gictdidisetbegbbhisaadenentdennianeduatneace

12

il

TABLE OF CONTENTS -— Continued

Page

Il. THE FIFTH CIRCUIT WRONGLY AP-

PLIED THE CHEVRON DOCTRINE ....... 31

CORE Pics cctnsccsssecsssepeonvenemesetinmensnsntesenntnts 33

TABLE OF AUTHORITIES

Page

CASES

American Elec. Power Co. v. Connecticut, 131

Be ee SET TEI iccoicesicnsssiiiesnscivnlbaaiciaceaaieadiiniasadcldiciladanbalsitautie 15

Arkansas v. Oklahoma, 503 U.S. 91 (1992)................. 7

Atascadero State Hospital v. Scanlon, 473 U.S.

TT sitsinsscehiialenhiieachlieadkcei iain 13

Babbitt v. Sweet Home Chapter, 515 U.S. 687

ISSUED cstisieiiancdeeneipeinca bi eliinatacanait aia 7, 24

BFP v. Resolution Trust Corp., 511 U.S. 531

SO icaihincadihtcinaiiiaaia ci alah idl ia 10, 14

Burford v. Sun Oil Co., 319 U.S. 315 (1943) .............15

California v. United States, 438 U.S. 645 (1978).....25, 26

Catskill Mountains Chapter v. New York City,

re ee Oe Ce Ee ee ccicciictiipsinticinnesnsncttiiniinnccaienn 30

Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984).................. passim

Christensen v. Harris County, 529 U.S. 576

SEITE Sisciiessieisibeaitiniieiilindeeeahakinipiniaeiiianiiaiibiiiaiaiiuinied 8

Cipollone v. Liggett Group, Inc., 505 U.S. 504

SSaIaIrTe i ceisitechdeaiiehiuivichiniachbneibbcehahnsahiicbctalgailcadaaabioaninoti 10, 14

City of Arlington, et al. v. Federal Communica-

tions Comm’n, 668 F.3d 229 (5th Cir. 2012).....33, 35

Clearfield Trust Co. v. United States, 318 U.S.

Sn TEU Niiisscesninsinessntniuicinienididiabsidnditiinahiglicuieldaaniaileiiiishainituabiiinied 16

Davies Warehouse Co. v. Bowles, 321 U.S. 144

iv

TABLE OF AUTHORITIES — Continued

Page

Decker, et al., v. Northwest Environmental

Defense Center, et al., Nos. 11-338 and 11-347....... 30

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bidg. & Const. Trades Council, 485 U.S. 568

Te isiciciicrisieesminciiomninneniaicdundiiainiamnbaiiiinibiianinnnensiniadil 9,11

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).......... 16

FERC v. Mississippi, 456 U.S. 742 (1982)....... 6, 15, 36

Friends of the Everglades, et al. v. S. Fla. Water

Mgmt. Dist., et al., 570 F.3d 1210 (11th Cir.

2009), cert. denied, 131 S. Ct. 643 (2010)......... 29, 30

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) ......cccccccsccessesseeeeeeees 17

Gonzales v. Oregon, 546 U.S. 243 (2006).....8, 23, 24, 31

Gregory v. Ashcroft, 501 U.S. 451 (1991)........... passim

Hess v. Port Authority Trans-Hudson Corp.,

ee Se a ircrrccnnnncinmnsenencnnnnninnqnseiminel 6, 14, 36

Hughes v. Oklahoma, 441 U.S. 322 (1979)................ 29

Mayo Foundation v. United States, 131 S. Ct.

Sere TEE easinuiisiniienicasitaplininoninindanpaaansinitinidabiicidbastebimnaieneiianiinns 7

Morton v. Mancari, 417 U.S. 535 (1974)... 9

Nat'l Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007).......... 27, 28, 29, 30, 31

Nat'l Cable & Telecommunications Ass’n v.

Brand X Internet Services, 545 U.S. 967

Ins eseihiedeb eect een cael aaa 7,30

Vv

TABLE OF AUTHORITIES — Continued

Page

Nat'l Federation of Business v. Sibelius, 132

| RRS NEE reuse trrineen ere enr NNT INTE 13, 17

New York v. United States, 505 U.S. 144 (1992)........ 13

NRDC v. Callaway, 382 F.Supp. 685 (D. D.C.

Tar ccentionnpenidaiilabinnnpsneniemeiinmadpunnindadainnindiaanpiedniesiins 21

Oregon v. Corvallis Sand & Gravel Co., 429

Se MITT TIT Ts ciisiinietiarieieanhiainesncipinciaioniiaicsibicidhataanemibdiimiduinies 15

Pennhurst State School and Hospital ov.

Halderman, 465 U.S. 89 (1984)............ccccccceeeeeee eens 14

Posadas v. National City Bank, 296 U.S. 497

Sera iicrriniciesinsesideticisibiaiialanpiatoneincdiadiaieatinignediintmtimnnininedenetn: 9

Printz v. United States, 521 U.S. 898 (1997)............. 13

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74

Si ancninsiiniuniieiindeisnpnbembesiumininnuaiinnmieniedieinesene 15

Railroad Comm’n v. Pullman Co., 312 U.S. 496

Fee hinecenrnninensienienintinnmppniiniisnnsiianiiininiainiinies 15

Rapanos v. United States, 547 U.S. 715 (2006)..... passim

Reno v. Koray, 515 U.S. 50 (1998)..............cccscccsecsecevees 9

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

Sareea aciccicieencneiscssssdaniaaduscsandidsibunatanbiaiminsatanianiinianbiaiamebanvennii 10, 14

Shively v. Bowlby, 152 U.S. 1 (1894) ......... ee 15

Skidmore v. Swift & Co., 323 U.S. 134 (1944)............. 8

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 191 F.3d 845

(7th Cir. 1999), rev’d, 531 U.S. 159 (2001)............. 21

vi

TABLE OF AUTHORITIES — Continued

Page

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers (““SWANCC”),

Be We Be Picsicretsnssentoccccsnseutnsunmninonntuni passim

Textile Workers Union v. Lincoln Mills, 353

2 ___, SESE enn neat ee Een nen Ee 16

United States v. Bass, 404 U.S. 336 (1971)................ 14

United States v. California, 694 F.2d 1171 (9th

SIU Te isincensssneriennsitiinetinetecimitmmainaniimnduinieigniananndd 26

United States v. Lopez, 514 U.S. 549 (1995)........ 13, 17

United States v. Mead Corp., 533 U.S. 218

Tarn cnnesisichebaaieineantnheninsiaeminnmndimedadel 8,9, 18, 35

United States v. Morrison, 529 U.S. 598 (2000)........ 13

Watt v. Alaska, 451 U.S. 259 (1981)...................cceeeeeee 9

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

Sereaeiee a cectusicsiitenichictiniaasindaaiiunpinnniicaianibideitiiuabaanentaeiiaiiiaeliaiaaiiis 18

Will v. Michigan Dep't of State Police, 491 U.S.

Sap IT TUTET ED iciisirhcsiiseeicsinieisiseinianiamenaibiiniiiiiaainiiniiaionibindadnacaaiaiiee 14, 27

Younger v. Harris, 401 U.S. 37 (1971)................ceeeeee 15

CODES AND STATUTES

ee nas i UII hcsiciriiiicicusencsesiiiiiitancuiibbciniadinetiaaiiadasbinaiaiinds 21

I UT iscrsiccicsinneisninsintesiantdiiudintasuiinpinsiaminesimmanaid 30

in isinitrisscincisinsitsinniiiceiasibieniuhaataiilbdasaiasaal 30

| TE OL mene EN EE 28

BD WG Ge BEA, SOE) crccnsscscsescssesesescecesonscoses 28

vii

TABLE OF AUTHORITIES — Continued

Page

Be re ee te Oe I verccincscnvounicnistnnceenedceneesesnenesniines 23

I cnihiininihianiidianinaniahidinniidnnieindaiadaaiies 11, 29

lca llatlilatigeeastiin 11, 27

BD BPs Ge BOGE, BIT GP vccccccceccsccsesccsscccesssccescosse 19

I I ea litlimieiiemneiainnial 25

— » | |, EEE neem bien 6, 19, 34

47 U.S.C. § 332(cX 7) A)-(B)..............000 6, 32, 33, 35, 37

MISCELLANEOUS

L. Tribe, AMERICAN CONSTITUTIONAL LAW

Oy By SG Oe, Fe cece cccccscccncnscosescsssossoscseces 18

1

INTEREST OF AMICI CURIAE'

Amicus Natural Water Resources Association

(“NWRA”) is a nonprofit, voluntary organization of

state water associations whose members include

cities, towns, water conservation and conservancy

districts, irrigation and reservoir companies, ditch

companies, farmers, ranchers, and others with an

interest in water issues in the western states. NWRA

has member associations in California, Colorado,

Idaho, Montana, North Dakota, Nebraska, New

Mexico, Nevada, Oregon, South Dakota, Texas, Utah,

Washington, and Arizona.

Amicus Association of California Water Agencies

(“ACWA”) represents approximately 90% of the public

water agencies in California. These public water

agencies provide water supplies to their agricultural,

urban and industrial customers, who are located in

all parts of California. Many ACWA member agencies

obtain water supplies by diverting water through

their own facilities from various rivers, lakes and

tributaries in California. Other ACWA member agen-

cies obtain their water supplies pursuant to contracts

with the U.S. Bureau of Reclamation (“USBR”) or the

California Department of Water Resources (“CDWR”),

which operate the federal Central Valley Project

' The parties have consented to the filing of this amici brief

(Rule 37.3). This brief was not authored wholly or in part by

counsel for any party, and no party, or parties’ counsel, made a

monetary contribution to fund preparation or submission of the

brief (Rule 37.6).

2

and the State Water Project, respectively. These fed-

eral and state water projects divert water from the

Sacramento-San Joaquin Delta, or from rivers feed-

ing into the Delta, in order to provide water supplies

for ACWA members and others.

Amicus Westlands Water District (“Westlands”),

which is located in Fresno and King Counties in

California, is the nation’s largest agricultural water

district in terms of irrigated acreage. Westlands

supplies irrigation water to many of the farmlands of

California’s Central Valley — which produce a sub-

stantial portion of the fruits and vegetables grown in

the nation — and also supplies water for domestic use

in parts of the Central Valley. Westlands obtains its

water supplies from the Central Valley Project pursu-

ant to its contract with the USBR.

The amici have a significant interest in the ques-

tion presented in this case. The question is whether

the Chevron doctrine, as developed by this Court in

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984), applies to an agency’s in-

terpretation of a statute defining its jurisdiction. The

Chevron doctrine holds that the courts should defer to

an agency’s permissible interpretation of an ambigu-

ous statute.

The amici or their members obtain all or a sub-

stantial portion of their water supplies from major

water projects operated by federal or state agencies in

the western states. Federal regulatory agencies have

in many instances interpreted federal statutes as

3

authorizing such agencies to exercise substantial

jurisdiction and control over the water projects, and

as precluding the operating agencies from providing

water deliveries pursuant to their contracts with

their customers, including the amici. For example,

the U.S. Fish and Wildlife Service has interpreted the

federal Endangered Species Act as requiring the

operators of the federal and state water projects in

California to reduce water deliveries to their custom-

ers in order to provide more water supplies for the

benefit of federally-listed endangered species, not-

withstanding that the project operators have entered

into contracts with their customers that do not au-

thorize such reduction of water deliveries. Similarly,

the U.S. Environmental Protection Agency has inter-

preted the federal Clean Water Act as authorizing it

to control the regulation, diversion and use of water

from the Sacramento-San Joaquin Delta in Califor-

nia, notwithstanding that the regulation, diversion

and use of the water has been traditionally and

historically controlled by the State of California

through its water rights agency. The amici believe

that these federal statutes do not authorize these

federal agencies to exercise the full extent of jurisdic-

tion and authority that they claim, and that the

agencies’ interpretation of their jurisdiction and au-

thority is not entitled to deference under the Chevron

doctrine. Therefore, the amici have a significant in-

terest in the question whether the Chevron doctrine

4

applies to an agency’s interpretation of its jurisdic-

tion.

SUMMARY OF ARGUMENT

The petitions present the question whether the

Chevron doctrine applies to an agency’s interpreta-

tion of a statute defining its jurisdiction. The Chevron

doctrine requires deference to an agency’s interpreta-

tion of a statute, if the statute is “ambiguous” and the

agencys interpretation is “permissible.” Chevron

U.S.A, Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-843 (1984). The Fifth Circuit applied

the Chevron doctrine in upholding the Federal Com-

munications Commission’s (“FCC”) interpretation of

its authority under the Telecommunications Act of

1996. Under the FCC’s interpretation, the FCC is

authorized to adopt regulations governing the author-

ity of local governments to regulate the authorization,

construction and placement of personal wireless com-

munication facilities, by, for example, requiring local

governments to process applications for such facilities

within specified timeframes. To that extent, the

FCC’s interpretation authorizes the FCC to preempt

local land use and zoning regulations applicable to

personal wireless service facilities.

The amici argue in this brief that the Chevron

deference doctrine does not apply to an agency’s

interpretation of a statute defining its jurisdiction, if

the agency’s interpretation authorizes it to regulate a

5

subject traditionally and primarily regulated by state

and local governments and thus limits the authority

of state and local governments to regulate the subject.

This Court has declined to apply Chevron deference

where an agency interprets a statute as authorizing it

to regulate subjects traditionally regulated by state

and local governments, such as water use and land

use. Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers (“SWANCC”), 531 U.S.

159, 172-174 (2001); Rapanos v. United States, 547

U.S. 715, 737 (2006) (plurality opinion). The Court

declined to apply Chevron in these cases because the

agency interpretation would result in a “significant

impingement of the States’ traditional and primary

power over land and water use.” SWANCC, 531 U.S.

at 174; Rapanos, 547 U.S. at 738. If an agency inter-

prets an admittedly ambiguous statute as authorizing

it to regulate subjects of traditional state and local

regulation, the agency interpretation potentially

conflicts with principles of federalism that this Court

has fashioned in interpreting the Constitution, fed-

eral statutes and federal common law. These princi-

ples of federalism — which are themselves a canon of

statutory construction — trump the Chevron doctrine,

because the former rests on a constitutional founda-

tion and the latter on the lesser principle of judicial

prudence.

In this case, the FCC’s interpretation of its

authority under the Telecommunications Act poten-

tially impinges on the traditional authority of local

governments to regulate zoning and land use, by

6

requiring that local governments comply with FCC-

established procedural and substantive requirements

relating to the authorization, construction and

placement of personal wireless communication facili-

ties. As this Court has said, “regulation of land use

[is] a function traditionally performed by local gov-

ernments.” Hess v. Port Authority Trans-Hudson

Corp., 513 U.S. 30, 44 (1994). Indeed, regulation of

land use is a “quintessential” local function. Rapanos,

547 U.S. at 738; FERC v. Mississippi, 456 U.S. 742,

767 (1982). The Telecommunications Act specifically

provides for the “[p]reservation of local zoning author-

ity,” and provides that state and local governments

have “general authority” to regulate the “construc-

tion” and “placement” of wireless communications

facilities. 47 U.S.C. § 332(c)(7A). Although the Act

authorizes the FCC to adopt general regulations to

carry out the Act, id. at § 201(b), the Act does not

establish specific procedural or substantive require-

ments that preempt local requirements, or directly

authorize the FCC to adopt procedural or substantive

requirements that preempt local requirements.

Therefore, the FCC’s interpretation of the Tele-

communications Act authorizes it to regulate a sub-

ject — land use — that is traditionally and primarily

regulated by local governments, and the FCC’s inter-

pretation preempts local land use regulation to that

extent. For this reason, the Chevron doctrine does not

properly apply in this case. Regardless of whether the

Fifth Circuit reached the right result in construing

the Telecommunications Act, the court employed the

7

wrong methodology by invoking the Chevron doctrine

in reaching its result.

°

ARGUMENT

I. THE CHEVRON DOCTRINE DOES NOT AP-

PLY TO AN AGENCY’S INTERPRETATION

OF ITS JURISDICTION, IF THE AGENCY’S

INTERPRETATION AUTHORIZES IT TO

REGULATE SUBJECTS TRADITIONALLY

AND PRIMARILY REGULATED BY STATE

AND LOCAL GOVERNMENTS.

A. The Applicability of the Chevron Doc-

trine Must Take into Consideration

Whether the Agency Interpretation Al-

lows Federal Intrusion into Areas Tra-

ditionally Regulated by State and

Local Governments.

Under the Chevron doctrine, an agency’s inter-

pretation of a statute that it administers is entitled to

deference, if the statute is “silent or ambiguous” and

the agency’s interpretation is “permissible.” Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-844 (1984); see Mayo Foundation v.

United States, 131 S. Ct. 704, 711 (2011); Natl Cable

& Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967, 980 (2005); Babbitt v. Sweet

Home Chapter, 515 U.S. 687, 703 (1995); Arkansas v.

Oklahoma, 503 U.S. 91, 105 (1992). The Chevron

doctrine does not apply, however, unless “it appears

that Congress delegated authority to the agency

8

generally to make rules carrying the force of law, and

... the agency interpretation claiming deference was

promulgated in the exercise of that authority.” United

States v. Mead Corp., 533 U.S. 218, 226-227 (2001);

see Gonzales v. Oregon, 546 U.S. 243, 258 (2006)

(“[T]he [agency] rule must be promulgated pursuant

to authority Congress has delegated to the official.”).

Under the Chevron doctrine, the reviewing court

must undertake a two-step analysis in determining

whether Chevron applies: first, the court must deter-

mine whether Congress has directly addressed the

subject matter or instead whether the statute is

ambiguous; and, second, if the statute is ambiguous,

the court must defer to the agency interpretation if it

is permissible. Chevron, 467 U.S. at 842-843. Even if

Chevt~on does not apply, a court may still defer to an

agency's statutory interpretation if the interpretation

is “persuasive.” Skidmore v. Swift & Co., 323 U.S.

134, 140 (1944); Christensen v. Harris County, 529

U.S. 576, 587 (2000).

Although the Chevron doctrine on its face ap-

pears to categorically require deference if certain

objective factors are present — if the statute is am-

biguous and the agency’s interpretation permissible

— this Court has held that Chevron’s applicability is

not strictly based on these objective factors. Rather,

Chevron’s applicability may “vary with circumstances,”

such as “the degree of the agency’s care, its consis-

tency, formality, and relative expertness, and ...

the persuasiveness of the agency’s position.” Mead

Corp., 533 U.S. at 228. Thus, for example, Chevron

9

deference is more likely to apply to an agency’s adop-

tion of a regulation through the formal rulemaking

process, in which notice-and-comment procedures ap-

ply, than to an agency’s adoption of a less formal

guidance, in which these procedures do not apply.

Mead Corp., 533 U.S. at 229-230; Reno v. Koray, 515

U.S. 50, 61 (1995).

This Court has, on occasion, declined to apply

Chevron deference where it conflicts with other

canons of statutory construction. For example, this

Court has construed federal statutes in order to avoid

constitutional conflicts, rather than deferring to

agency interpretations that created such conflicts.

Solid Waste Agency of Northern Cook County v. U.S.

Army Corps of Engineers, 531 U.S. 159, 172-173

(2001) (interpreting Clean Water Act); Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.

Trades Council, 485 U.S. 568, 575 (1988) (interpret-

ing National Labor Relations Act). In addition, this

Court has adopted other canons of censtruction —

such as the canon that Congress presumptively does

not repeal statutes by implication, Watt v. Alaska, 451

U.S. 259, 267 (1981); Posadas v. National City Bank,

296 U.S. 497, 503 (1936), and the canon that statutes

must be construed harmoniously to avoid conflicts,

Morton v. Mancari, 417 U.S. 535, 549 (1974) — and

these canons presumably also limit deference to

agency interpretations under Chevron.

This Court has considered an additional, and

indeed virtually dispositive, factor in determining

whether the Chevron deference doctrine applies. This

10

factor is whether an agency’s statutory interpretation

expands the agency’s authority to regulate a subject

traditionally and primarily regulated by state and

local governments under their police power or other

authority, and thereby limits state and local authority

to regulate the subject. This factor commonly arises

where, as in this case, an agency interprets a statute

defining its jurisdiction, because an agency’s expan-

sive interpretation of its jurisdiction may have the

effect of limiting, and thus preempting, state and

local authority to regulate the subject. In cases where

this factor is present, countervailing principles of

federalism come into play that necessarily limit

judicial] deference to the agency’s interpretation.

Under these principles of federalism, Congress pre-

sumptively does not authorize federal intrusion into

areas traditionally regulated by state and local gov-

ernments unless it clearly says so. E.g., Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947); Cipollone

v. Liggett Group, Inc., 505 U.S. 504, 516 (1992); BFP

v. Resolution Trust Corp., 511 U.S. 531, 544-545

(1994). And, if Congress speaks with a clear voice, the

statute is not ambiguous and the Chevron doctrine

does not apply by its terms.

These principles of federalism comprise a sepa-

rate canon for construing statutes, one that stands on

a higher footing than the Chevron doctrine, because

the former rests on a constitutional foundation and

the latter on the lesser principle of judicial prudence.

This federalism canon of construction is similar in

many ways to the constitutional avoidance doctrine,

11

because both preclude deference to agency statutory

interpretations that limit the states’ sovereign au-

thority under the Constitution, such as under the

Tenth Amendment and the Commerce Clause. Com-

pare Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Const. Trades Council, 485 U.S. 568, 575

(1988) (applying constitutional avoidance doctrine in

construing statute), with Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of Engi-

neers, 531 U.S. 159 (2001) (applying principles of

federalism in construing statute). The federalism

canon of construction also applies, however, even

where the agency interpretation does not invite a

constitutional conflict; Congress may, and often does,

defer to state and local authority in carrying out a

federal statutory scheme, even though not constitu-

tionally bound to do so, simply because it believes

that the states in their collective capacity are better

able to effectuate the federal statutory scheme than a

federal agency. E.g., Clean Water Act, 33 U.S.C.

§§ 1251(b) (recognizing “primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution”), 1342(b) (authorizing states to administer

National Pollutant Discharge Elimination System

permit programs).

In the amici’s view, the Court in this case should

expressly establish two fundamental principles relat-

ing to the applicability of the Chevron doctrine that

this Court has not previously specifically articulated:

first, the Chevron doctrine, assuming that its objective

criteria are otherwise met, categorically does not apply

12

to an agency interpretation that expands federal

authority to regulate subjects traditionally and pri-

marily regulated by state and local governments; and,

second, the reviewing court must necessarily consider

whether the agency interpretation has this effect in

determining whether the Chevron doctrine applies. If

the reviewing court fails to undertake this inquiry in

applying Chevron, the court may blindly defer to an

agency interpretation because of the presence of

certain objective criteria, without taking into account

the principles of federalism that are at the heart of

the constitutional order.

B. This Court Has Fashioned and Applied

Principles of Federalism in Many Con-

texts.

The principles of federalism fashioned by this

Court are, of course, based on the Constitution itself,

which provides for a diffusion of national sovereign

power between the federal government and the states

rather than the concentration of national power in a

single national government. Gregory v. Ashcroft, 501

U.S. 452, 457 (1991) (“[OJur Constitution establishes

a system of dual sovereignty between the States and

the Federal Government.”). This Court has fashioned

and applied these principles of federalism in many

contexts — not only in interpreting the Constitution,

but also in interpreting federal statutes and federal

common law.

13

In interpreting the Constitution, this Court has

held that the Commerce Clause grants broad author-

ity to Congress to regulate interstate commerce, but

that the Commerce Clause nonetheless limits Con-

gress’ power to regulate subjects traditionally regu-

lated by the states. Nat’l Federation of Business v.

Sibelius, 132 S. Ct. 2566, 2578 (2012); United States

v. Lopez, 514 U.S. 549, 557 (1995); United States v.

Morrison, 529 U.S. 598, 619 (2000). “(T]he scope of

the interstate commerce power must be considered in

light of our dual system of government and may not

be extended so as to ... effectually obliterate the

distinction between what is national and what is

local. .. .” Lopez, 514 U.S. at 557 (citations and inter-

nal quotation marks omitted). Under the Tenth

Amendment, Congress may not “commandeer” state

resources in order to implement congressional goals

and objectives. New York v. United States, 505 U.S.

144, 188 (1992) (“The Federal Government may not

compel the States to enact or administer a federal

regulatory program.”); Printz v. United States, 521

U.S. 898, 935 (1997) (“Congress cannot circumvent

that prohibition by conscripting the State’s officers

directly.”). Under the Eleventh Amendment, a state

has sovereign immunity from a suit by its citizens in

federal court, unless the state waives its immunity

and consents to the suit. Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242 (1985) (“Congress may

abrogate the States’ constitutionally secured immu-

nity from suit in federal court only by making its

intention unmistakably clear in the language of the

14

statute.”); Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 98 (1984).

In interpreting federal statutes, this Court has

held that Congress presumptively does not preempt

the “historic police powers of the States” unless

Congress’ purpose is “clear and manifest.” Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947);

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516

(1992). “If Congress intends to alter the usual balance

between the States and the Federal Government, it

must make its intention to do so unmistakably clear

in the language of the statute.” Gregory v. Ashcroft,

501 U.S. 452, 460 (1991) (citations and internal

quotation marks omitted). See also BFP v. Resolution

Trust Corp., 511 U.S. 531, 544 (1994) (“To displace

traditional state regulation in such a manner, the

federal statutory purpose must be clear and mani-

fest.” (citations and internal quotation marks omit-

ted)); Will v. Michigan Dep't of State Police, 491 U.S.

58, 65 (1989) (“[T)he ordinary rule of statutory con-

struction [is] that if Congress intends to alter the

usual constitutional balance between the States and

the Federal Government, it must make its intention

to do so unmistakably clear in the language of the

statute.” (citation and internal quotations marks

omitted)); United States v. Bass, 404 U.S. 336, 349

(1971) (“[UJnless Congress conveys its purpose clearly,

it will not be deemed to have significantly changed

the federal-state balance.”). Based on these limiting

principles, this Court has narrowly construed federal

statutes limiting state sovereign authority. E.g., Hess

15

v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 44

(1994); FERC v. Mississippi, 456 U.S. 742, 767-768

(1982).

This Court has also applied principles of federal-

ism in fashioning its own rules of jurisprudence,

which in some cases may be a form of federal common

law and in other cases a limitation on federal com-

mon law. Under the abstention doctrine, certain

federal actions involving fundamental state law

principles and issues must be maintained in the state

courts, not the federal courts. Younger v. Harris, 401

U.S. 37 (1971); Railroad Comm’n v. Pullman Co., 312

U.S. 496 (1941); Burford v. Sun Oil Co., 319 U.S. 315

(1943). Under the equal footing doctrine, the states

are deemed to acquire sovereign ownership and

control of their navigable waters upon their admis-

sion to statehood, subject only to the federal govern-

ment’s paramount power to regulate navigable waters

under the Commerce Clause. Oregon v. Corvallis

Sand & Gravel Co., 429 U.S. 363, 372-374 (1977);

Shively v. Bowlby, 152 U.S. 1, 49-50 (1894). This

Court has held that state law, not federal common

law, applies in defining property in our federal sys-

tem. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74,

84 (1980); Oregon v. Corvallis Sand & Gravel Co., 429

U.S. 363, 378 (1977); Davies Warehouse Co. v. Bowles,

321 U.S. 144, 155 (1944). This Court has sometimes

“borrowed” state laws in interpreting federal law.

American Elec. Power Co. v. Connecticut, 131 S. Ct.

2527, 2536 (2011) (“Absent a demonstrated need for a

federal rule of decision, the Court has taken the

16

prudent course of adopting the ready made body of

state law as the federal rule of decision until Con-

gress strikes a different accommodation.” (citations

and internal quotation marks omitted)); Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 457

(1957) (“Federal interpretation of the federal law will

govern, not state law,” but “state law ... may be

resorted to in order to find the rule that will best

effectuate the federal policy.”); Clearfield Trust Co. v.

United States, 318 U.S. 363, 367 (1943) (“[IJn our

choice of the applicable federal rule we have occa-

sionally selected state law.”). This Court has limited

the scope of the federal common law in instances

where its application would impair the sovereignty of

the states in our federal system. Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters

governed by the Federal Constitution or by Acts of

Congress, the law to be applied in any case is the law

of the State.... There is no federal general common

law.”).

Although these principles of federalism establish

a canon for construing ambiguous statutes, they are

more than that: They are the bedrock principles of

the constitutional foundation itself. “[U]nder our

federal system, the States possess sovereignty con-

current with that of the Federal Government, sub-

ject only to limitations imposed by the Supremacy

Clause.” Gregory v. Ashcroft, 501 U.S. 452, 457

(1991) (citation and internal quotation marks omit-

ted). These principles of federalism enhance the

liberties of individual citizens that are inherent in the

17

constitutional design. “State sovereignty is not an end

in itself: Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign

power.” Nat'l Federation of Business v. Sibelius, 132

S. Ct. 2566, 2578 (2012). As Justice Kennedy has

observed, “[I]t was the insight of the Framers that

freedom was enhanced by the creation of two gov-

ernments, not one.” United States v. Lopez, 514 U.S.

549, 576 (1995) (Kennedy, J. concurring). This Court

has stated:

This federalist structure of joint sovereigns

preserves to the people numerous ad-

vantages. It assures a decentralized govern-

ment that will be more sensitive to the

diverse needs of a heterogeneous society; it

increases opportunity for citizen involvement

in democratic processes; it allows for more

innovation and experimentation in govern-

ment; and it makes government more re-

sponsive by putting the States in competition

for a mobile citizenry.

Gregory, 501 U.S. at 458. This Court has plainly

indicated that these principles of federalism must be

applied in construing ambiguous congressional stat-

utes, stating:

[IJnasmuch as this Court in Garcia [v. San

Antonio Metropolitan Transit Authority, 469

U.S. 528 (1985)] has left primarily to the po-

litical process the protection of the States

against intrusive exercise of Congress’

Commerce Clause powers, we must be abso-

lutely certain that Congress intended such

18

an exercise. “To give the state-displacing

weight of federal law to mere congressional

ambiguity would evade the very procedure

for lawmaking on which Garcia relied to pro-

tect states’ interests.”

Gregory, 501 U.S. at 464, quoting L. Tribe, AMER-

ICAN CONSTITUTIONAL LAW § 6-25, p. 480 (2d ed.

1988) (original emphasis).

C. This Court Has Not Applied Chevron

Deference Where Its Application Would

Contravene Principles of Federalism.

1. Decisions Declining to Apply Chevron

Deference

These constitutionally-imbedded principles of

federalism inform the applicability of the Chevron

doctrine in the context of an agency’s interpretation

of its jurisdiction.” If an agency interprets its

* To be sure, it may be difficult to distinguish a statute

defining an agency’s “jurisdiction” from one that does not define

its “jurisdiction.” In a broad sense, all statutes granting author-

ity to agencies define the agencies’ jurisdiction, because all such

statutes authorize agencies to perform certain functions and

activities and, to that extent, define the agencies’ “jurisdiction”

to perform these functions and activities. See United States v.

Mead Corp., 533 U.S. 218, 227-228 (2001) (an agency has only

authority delegated to it by Congress); Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472-473 (2000) (same). Although some stat-

utes are reasonably clear in defining an agency’s “jurisdiction,”

other statutes are less clear, and are not specifically couched in

terms of agency “jurisdiction.” In this case, for example, the FCC

claims authority to regulate certain activities relating to personal

(Continued on following page)

19

jurisdiction expansively, as extending to subjects

traditionally regulated by state and local govern-

ments, the agency interpretation is likely to conflict

with principles of federalism and Chevron deference

would be inappropriate. If, instead, an agency inter-

prets its jurisdiction narrowly as not extending to

such subjects, the agency interpretation is likely to

converge with principles of federalism and Chevron

deference would be appropriate.

This Court has declined to grant Chevron defer-

ence to agency interpretations that — by authorizing

federal intrusion into areas traditionally regulated at

the state and local level — contravened these princi-

ples of federalism. In Solid Waste Agency of Northern

Cook County v. U.S. Army Corps of Engineers

(“SWANCC”), 531 U.S. 159 (2001), this Court declined

to grant Chevron deference to a regulation adopted by

the U.S. Army Corps of Engineers under the Clean

Water Act (“CWA”), which authorized the Corps to

regulate “isolated” waters, i.e., waters not physically

connected to navigable waters. The CWA authorizes

the Corps to regulate “navigable waters,” which are

defined as “the waters of the United States,” 33

U.S.C. §§ 1344(a), 1362(7); the Corps’ regulation

wireless service facilities pursuant to its general authority

under the Telecommunications Act to “prescribe such rules and

regulations as may be necessary in the public interest to carry

out the provisions of this Act.” 47 U.S.C. § 201(b). Pet. App. 87a.

The Act does not specifically mention the FCC’s “jurisdiction” to

impose these regulations. Thus, the Act effectively defines the

FCC’s jurisdiction without explicitly saying so.

20

interpreted the latter phrase as including “isolated”

waters. Although the Court stated that the phrase

“the waters of the United States” is not ambiguous

and does not include “isolated” waters, the Court also

stated that — even if the phrase were ambiguous —

there would be no basis for deferring to the Corps’

regulation under Chevron. SWANCC, 531 U.S. at 172-

173. The Court stated:

Where an administrative interpretation of a

statute invokes the outer limits of Congress’

power, we would expect a clear indication

that Congress intended that result. This re-

quirement stems from our prudential desire

not to needlessly reach constitutional issues

and our assumption that Congress does not

casually authorize administrative agencies to

interpret a statute to push the limit of con-

gressional authority. This concern is height-

ened where the administrative interpretation

alters the federal-state framework by permit-

ting federal encroachment upon a traditional

state power. Thus, where an otherwise ac-

ceptable construction of a statute would raise

serious constitutional problems, the Court

will construe the statute to avoid such prob-

lems unless such construction is plainly con-

trary to the intent of Congress.

Id. at 172-173 (emphases added; citations and inter-

nal quotation marks omitted). The Court stated that

the states have traditionally regulated water use and

land use, and that to allow the Corps of Engineers to

regulate “isolated” waters having no connection to

21

navigable waters would result in a “significant im-

pingement of the States’ traditional and primary

power over land and water use.” Jd. at 174. The Court

overturned the Seventh Circuit decision below, which

had relied on Chevron in upholding the Corps’ regula-

tion. Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Engineers, 191 F.3d 845, 853 (7th

Cir. 1999), rev’d, 531 U.S. 159, 174 (2001). Thus, the

Court declined to grant Chevron deference to a feder-

al regulation that expanded federal authority to

regulate subjects traditionally regulated at the state

and local level, and instead applied long-standing

principles of federalism in construing the CWA.°

* The history of the SWANCC case demonstrates how the

Chevron doctrine can be misapplied to reach results contrary to

an administrative agency’s actual intent in adopting a regula-

tion. Shortly after the CWA’s enactment in 1972, the Army Corps

of Engineers adopted a regulation that limited the Corps’

authority to regulate waters under the CWA; the Corps’ regula-

tion interpreted the phrase “the waters of the United States” —

which defines the Corps’ jurisdiction under the CWA - as limited

to traditionally navigable waters that this Court has recognized

as within Congress’ jurisdiction under the Commerce Clause.

SWANCC, 531 U.S. at 168-169. The federal district court

reviewing the Corps’ regulation declined to grant Chevron

deference; instead, the court, applying de novo review, over-

turned the regulation on the ground that the phrase “the waters

of the United States” includes waters beyond those that this

Court has recognized as within Congress’ traditional jurisdic-

tion. NRDC v. Callaway, 382 F.Supp. 685, 686 (D. D.C. 1975).

The Corps, in response, adopted a regulation interpreting the

phrase more broadly; the new regulation authorized the Corps to

regulate non-traditionally navigable waters, such as sandflats,

mudflats, prairie potholes, as well as wetlands. 33 C.F.R.

(Continued on following page)

22

Similarly, in Rapanos v. United States, 547 U.S.

715 (2006), this Court again declined to grant Chevron

deference to a regulation adopted by the U.S. Army

Corps of Engineers under the CWA, which inter-

preted the statutory phrase “the waters of the United

States” as including virtwal’y all wetlands in the

nation. The Court’s plurality opinion stated that the

Corps’ “expansive” interpretation of the phrase was

foreclosed by its “natural definition,” Rapanos, 547

U.S. at 731, but that “[e]ven if the phrase ‘the waters

of the United States’ were ambiguous ... , our own

canons of construction would establish that the Corps’

interpretation of the statute is impermissible.” Jd. at

737. Quoting the SWANCC decision, the plurality

opinion stated that “the Government’s expansive

interpretation would ‘result in a significant impair-

ment of the States’ traditional and primary authority

aver land and water use.’” Jd. at 738. The plurality

opinion stated that “[rjegulation of land use ... is a

§ 328.3. In the amici’s view, the Chevron deference doctrine does

not apply where, as in SWANCC, an agency adopts a regulation

expansively interpreting its jurisdiction in response to a lower

court decision overturning the agency’s earlier regulation nar-

rowly interpreting its jurisdiction. Otherwise, Chevron would be

applied as a basis for deference to the lower court’s statutory

interpretation rather than the agency’s own original statutory

interpretation.

Notably, in Rapanos v. United States, 547 U.S. 715, 737

(2006), this Court’s plurality opinion declined to apply Chevron

deference in reviewing the Corps’ new regulation as applied to

wetlands, and this Court’s dissenting opinion argued that

Chevron deference should be applied in upholding the Corps’

regulation. Rapanos, 547 U.S. at 788 (Stevens, J., dissenting).

23

quintessential state and local power,” and that “[wle

ordinarily expect a clear and manifest statement from

Congress to authorize an unprecedented intrusion

into traditional state authority.” Jd. (citations and

internal quotation marks omitted). As in SWANCC,

the plurality opinion applied principles of federalism

rather than the Chevron doctrine in construing the

CWA.*

In Gonzales v. Oregon, 546 U.S. 243 (2006), this

Court declined to grant Chevron deference to the U.S.

Attorney General’s interpretation of his authority

under the Controlled Substances Act (“CSA”), 21

U.S.C. §§ 801 et seqg., under which the Attorney

General claimed authority to override state laws

allowing doctors to prescribe regulated drugs for use

in physician-assisted suicide. The Court held that

the statute did not delegate authority to the Attor-

ney General to decide whether doctors should be

allowed to administer such drugs. Gonzales, 546 U.S.

at 258-269. “Chevron deference ... is not accorded

merely because the statute is ambiguous and an

* The plurality opinion interpreted the phrase “the waters

of the United States” as including only “relatively permanent,

standing or flowing bodies of water,” Rapanos, 547 U.S. at 732,

and as including only wetlands that have a “continuous surface

connection” to such waters, id. at 742. Justice Kennedy wrote a

concurring opinion arguing that the phrase “the waters of the

United States” also includes wetlands that have a “significant

nexus” to navigable waters, id. at 782 (Kennedy, J., concurring),

but Justice Kennedy’s concurring opinion, like the plurality

opinion, did not apply the Chevron doctrine in reaching its

conclusion.

24

administrative official is involved. To begin with, the

rule must be promulgated pursuant to authority

Congress has delegated to the official.” Jd. at 258

(citation omitted.) The Court relied on principles of

federalism in reaching this conclusion, stating:

[T]he background principles of our federal

system ... belie the notion that Congress

would use such an obscure grant of authority

to regulate areas traditionally supervised by

the States’ police power. It is unnecessary

even to consider the application of clear

statement requirements (citations! or pre-

sumptions against pre-emption [citations] to

reach this commonsense conclusion.

Id. at 274.°

Even before Chevron was decided in 1984, this

Court has applied long-standing principles of federal-

ism in construing federal statutes that defined the

authority of the states to regulate certain subjects,

* In Babbitt v. Sweet Home Chapter, 515 U.S. 687 (1995),

this Court applied the Chevron doctrine as part of its analysis in

upholding the Secretary of the Interior’s regulation defining

“take” under the Endangered Species Act (“ESA”), 515 U.S. at

703, but the Court applied Chevron only after it had already

determined that its interpretation was supported by the “text of

the Act,” id. at 697, by the “broad purpose” of the Act, id. at 698,

and by the fact that Congress “understood” that the Act prohib-

ited “indirect as well as deliberate takings,” id. at 700. Although

the Court’s decision may have expanded federal authority at the

expense of state and local authority, the decision was based

largely on the Court’s own analysis of the statute and not on the

Court’s deference to the Secretary’s regulation under Chevron.

25

such as water use and land use, rather than deferring

to federal agency interpretations that expanded fed-

eral authority and limited state authority to regulate

such subjects. In California v. United States, 438 U.S.

645 (1978), this Court rejected the United States’

argument that deference should be accorded to the

Secretary of the Interior’s interpretation of the Rec-

lamation Act of 1902, which authorizes him to regu-

late federal reclamation projects in the western states;

the Secretary interpreted the Act as authorizing him

to regulate water uses served by the projects, and as

precluding the states from regulating such water

uses. Specifically, the Secretary interpreted section 8

of the Act — which requires him to comply with state

laws relating to the “control, appropriation, use, or

distribution” of water, 43 U.S.C. §§ 372, 383 — as ap-

plicable only to state laws defining proprietary rights

in water, and as not applicable to state laws regulat-

ing water uses. Rejecting the United States’ argu-

ment, this Court held that section 8 authorizes the

states to regulate water uses served by the federal

projects, and that the secretary is required to comply

both with state laws regulating water uses and with

state laws defining proprietary rights. The Court

reasoned that Congress had adopted a long-standing

policy of deference to state water laws, and that this

congressional policy informed the meaning of the Rec-

lamation Act. Jd. at 653. As the Court stated, “[tjhe

history of the relationship between the Federal Gov-

ernment and the States in the reclamation of the arid

lands of the Western States is both long and involved,

but through it runs the consistent thread of purposeful

26

and continued deference to state water law by Con-

gress.” Id*. Thus, the Court deferred to Congress’

long-standing policy of recognizing the states’ pri-

mary authority to regulate water uses, rather than

deferring to the Secretary’s interpretation that lim-

ited such state authority. The Court’s landmark

decision likely would have been entirely different if

this Court had granted Chevron-like deference to the

Secretary’s expansive interpretation of his authority

under the federal statute.

2. Decisions Applying Chevron Defer-

ence

Conversely, Chevron deference is more appropri-

ate where a federal agency interprets an ambiguous

statute as limiting the agency’s authority to regulate

subjects of traditional state and local regulation,

because such an agency interpretation is congruent

rather than incongruent with the principles of feder-

alism that form the constitutional foundation. Indeed,

an agency interpretation that applies these federal-

ism principles is entitled to heightened deference,

because the agency interpretation furthers the consti-

tutional design rather than impedes it. An agency

interpretation that limits the agency’s authority to

* On remand, the Ninth Circuit, in a decision written by

then-Judge Kennedy, reaffirmed that the Reclamation Act must

be read in light of Congress’ long-standing policy of deference to

state water laws. United States v. California, 694 F.2d 1171,

1176, 1178 (9th Cir. 1982).

27

regulate subjects of traditional state and local regula-

tion gains the benefit of two canons of construction —

the federalism canon, which presumes that Congress

does not intrude into traditional areas of state regula-

tion unless its intention is “unmistakably clear,”

Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989),

and the Chevron canon, which provides for deference

to an agency’s interpretation of a statute. An agency

interpretation supported by both the Chevron canon

and the federalism canon is entitled to much greater

deference than an agency interpretation supported by

the former canon but that conflicts with the latter.

Indeed, the Chevron canon does not properly apply in

the latter situation.

For example, in Nat'l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 644 (2007), this Court

applied Chevron deference in upholding and applying

a federal regulation that limited the consultation

obligation of federal agencies under the Endangered

Species Act (“ESA”), and thereby limited federal

intrusion into areas traditionally regulated by the

states. There, the State of Arizona applied to the

Environmental Protection Agency (“EPA”) for author-

ity to administer its permit program under the CWA;

the CWA provides that the EPA “shall” approve a

state permit program if it meets the CWA’s statutory

criteria. 33 U.S.C. § 1342(b). The EPA determined

that the Arizona program met the statutory criteria,

and approved the Arizona program. The Ninth Cir-

cuit held that the EPA violated the ESA by failing to

28

“consult” with a designated service agency before

approving the Arizona program; under the ESA, a

federal agency must “consult” before taking any

action “authorized, funded or carried out” by the

agency that may affect an endangered species. 16

U.S.C. §§ 1536(aX2), -(c1).

This Court, overturning the Ninth Circuit deci-

sion, granted Chevron deference in upholding and

applying a regulation adopted by the Secretaries of

Interior and Commerce that limited the consultation

obligation of federal agencies under the ESA. Home

Builders, 551 U.S. at 665-668, 673. The Secretaries’

reguiation required federal agencies to consult in “all

actions in which there is discretionary Federal in-

volvement or control.” 50 C.F.R. § 402.03 (emphasis

added). This Court held that since the CWA provides

that the EPA “shall” approve state permit programs

that meet the statutory criteria, the EPA had no

“discretionary” authority to disapprove the Arizona

program, and therefore the EPA was not required to

consult before approving the Arizona program. Home

Builders, 551 U.S. at 665-668, 673.

Thus, Home Builders invoked Chevron in uphold-

ing and applying the Secretaries’ regulation limiting

the consultation obligation of federal agencies under

the ESA. By limiting the consultation obligation, the

regulation limited federal] intrusion into the states’

29

traditional authority to regulate fish and wildlife.’ As

applied in Home Builders, the regulation effectively

broadened the states’ ability to obtain federal ap-

proval of state permit programs under the CWA,

consistently with Congress’ declared intent in the

CWA to “recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, re-

duce, and eliminate pollution.” 33 U.S.C. § 1251(b). ©

In the same vein, the Eleventh Circuit recently

applied Chevron deference in upholding a federal

regulation that limited federal jurisdiction under the

CWA and thereby limited federal] intrusion into areas

of traditional state regulation. Friends of the Ever-

glades, et al. v. S. Fla. Water Mgmt. Dist., et al., 570

F.3d 1210 (11th Cir. 2009), cert. denied, 131 S. Ct. 643

(2010). There, an EPA regulation provided that a

transfer of water containing a pollutant from one

water body to another water body does not result in

the “addition” of the pollutant to “the waters of the

United States” if both water bodies fall within the

latter classification — since the pollutant was al-

ready in “the waters of the United States” to begin

with — and therefore the transferor is not required to

obtain a permit under the CWA in order to make the

‘ In Hughes v. Oklahoma, 441 U.S. 322 (1979), this Court

held that the states’ authority to regulate wild animals is subject

to the limitations of the Commerce Clause, but that “[wJe con-

sider the States’ interests in conservation and protection of wild

animals as legitimate local purposes similar to the States’ in-

terests in protecting the health and welfare of their citizens.”

Hughes, 441 U.S. at 337.

30

transfer. 40 C.F.R. § 122.3(i). The Eleventh Circuit

held that the CWA is ambiguous concerning whether

a water transfer results in the “addition” of a pollu-

tant; that the EPA’s regulation provides a permissible

construction of the statutory language; and therefore

that Chevron deference was appropriate. Friends of

the Everglades, 570 F.3d at 1127. Notably, the Elev-

enth Circuit declined to follow the Second Circuit’s

earlier decision in Catskill Mountains Chapter v. New

York City, 451 F.3d 77 (2d Cir. 2006), which had

reached the opposite conclusion prior to the EPA’s

adoption of its regulation. In effect, the Eleventh

Circuit deferred to the EPA’s limiting interpretation

of its authority under Chevron, as this Court did in

Home Builders, rather than following the precedent

of a sister circuit court. Accord, Nat'l Cable & Tele-

communications Ass’n v. Brand X Internet Services,

545 U.S. 967, 980 (2005) (holding that Chevron defer-

ence applies even though agency interpretation

conflicts with federal circuit court precedents).”

* Another case pending before this Court on the merits,

Decker, et al., v. Northwest Environmental Defense Center, et al.,

Nos. 11-338 and 11-347, raises the question whether the Chevron

deference doctrine applies to the EPA’s Silvicultural Rule, which

defines the phrase “point source discharge,” as used in the CWA,

as not applicable to stormwater discharges from logging road

operations. 40 C.F.R. § 122.27(b). Under the Silvicultural Rule,

such stormwater discharges are subject to state and local laws

regulating “nonpoint source discharges.” Id.

31

In sum, Chevron deference does not properly

apply where an agency construes an ambiguous

federal statute as authorizing it to regulate subjects

of traditional state and local authority, as this Court

held in SWANCC and Rapanos, but Chevron defer-

ence may be appropriate where an agency construes a

statute as precluding it from regulating such sub-

jects, consistently with this Court’s decision in Home

Builders. As this Court has stated, “the background

principles of our federal system ... belie the nation

that Congress would use ... an obscure grant of

authority to regulate areas traditionally supervised

by the States’ police power.” Gonzales v. Oregon, 546

U.S 243, 274 (2006). By the same token, the “back-

ground principles” of our federal system belie the

notion that an agency interpretation of an “obscure”

grant of authority is entitled to deference under

Chevron, where the agency interpretation allows

federal intrusion into areas “traditionally supervised”

by the states.

Ui. THE FIFTH CIRCUIT WRONGLY APPLIED

THE CHEVRON DOCTRINE.

The Fifth Circuit applied the Chevron doctrine in

upholding the FCC’s interpretation of its authority

under the Telecommunications Act. The Fifth Circuit

did not, however, consider whether the FCC’s inter-

pretation expanded the agency’s authority and lim-

ited state and local authority to adopt zoning and

land use requirements for wireless communication

32

facilities. By failing to undertake this inquiry, the

Fifth Circuit wrongly applied the Chevron doctrine.

The statutory dispute concerns the meaning of

two provisions of the Telecommunications Act of 1996

~ subsections (A) and (B) of section 332(¢c7) — which

grant authority to state and local governments to

regulate personal wireless service facilities and also

impose limitations on the grant of such authority. 47

U.S.C. §§ 332(cX7)A), -(B). Subsection (A) — entitled

“(plreservation of local zoning authority” — grants

“(gjeneral authority” to state and local governments

to regulate the placement, construction and modifica-

tion of personal wireless service facilities, and pro-

vides that “[e]xcept as provided in this paragraph,

nothing in this chapter shall limit the authority” of

state and local governments to adopt such regula-

tions. Id. at § 332(cX7 A).

Subsection (B) imposes “[ljimitations” on the

grant of authority to state and local governments

contained in subsection (A). Id. at § 332(c\7XB).

Subsection (B) provides that state and local govern-

ments shall not “unreasonably discriminate” among

providers of functionally equivalent services, and

shall not “prohibit” the provision of personal wireless

services. Id. at § 332(c)(7)(BXi). The subsection also

provides that state and local governments shall act on

applications to place, construct or modify personal

wireless service facilities “within a reasonable period

of time,” and that any person injured by a state or

local government’s “failure to act” has the right to

seek judicial relief within a specified time period. Jd.

33

at § 332(cX7)ii), -(v). Subsection (B) does not, how-

ever, establish specific timeframes for determining a

“reasonable period of time” or “failure to act,” or

specifically prohibit state or local governments from

denying applications based on the presence of other

competitors in the market.

The FCC, in its Declaratory Ruling, concluded

that the Telecommunications Act authorizes the FCC

to establish specific timeframes that state and local

governments must comply with in processing applica-

tions for personal wireless communication facilities,”

and also that the Act authorizes the FCC to prohibit

these governments from denying applications based

solely on the presence of one or more competitors in

the market. Pet. App. 116a-120a, 127a-128a; City of

Arlington, et al. v. Federal Communications Comm’n,

668 F.3d 229, 235-236 (5th Cir. 2012). Thus, the FCC

claimed authority under the Act to adopt both pro-

cedural requirements, pertaining to timeframes for

* Specifically, the FCC concluded that the phrase “within a

reasonable period of time,” as used in subsection (B ii), pre-

sumptively means 90 days for applications requesting modifica-

tions, i.e., “collocations,” of existing personal wireless service

facilities, and 150 days for all other applications. City of Arling-

ton, et al. v. Federal Communications Comm'n, 668 F.3d 229, 235

(5th Cir. 2012). According to the FCC, there has been no “failure

to act” within the meaning of subdivision (BXv) if the state or

local government acts on these applications within the 90-day or

150-day time frames. Jd. If, on the other hand, the state or local

government fails to act within these time frames, the state or

local government has not acted “within a reasonable period of

time” and thus has caused a “failure to act.” Id.

34

processing applications, and substantive require-

ments, pertaining to the grounds for denying applica-

tions, that apply to state and local regulation of the

wireless communication facilities. The FCC claimed

authority to adopt these requirements under its

statutory authority to “prescribe such rules and

regulations as may be necessary in the public interest

to carry out the provisions of this Act.” 47 U.S.C.

§ 201(b); Pet. App. 87a. The FCC also contended that

subdivision (A) does not limit its authority to adopt

the timeframes, because subdivision (A) simply

prohibits the FCC from creating additional “limita-

tions” beyond those enumerated in subdivision (B).

Id.

It is notable that the FCC thus narrowly con-

strued the provision that grants broad regulatory

authority to state and local governments, i.e., subsec-

tion (A), and broadly construed the provision that

limits the grant of such state and local authority, i.e.,

subsection (B). The FCC claimed authority to adopt

these constructions pursuant to its general statutory

authority to adopt regulations “to carry out the

provisions of this Act” — a virtually boilerplate provi-

sion that commonly appears in statutes administered

by a federal agency. Under the FCC's interpreta-

tion, a state or local government must comply

with FCC-mandated timeframes, rather than its own

timeframes, in determining what constitutes a “rea-

sonable period of time” and “failure to act” — even

though the statute does not define these terms or

specifically authorize the FCC to define them. The

35

FCC has construed an admittedly ambiguous statute

as authorizing it to establish procedural and sub-

stantive requirements that preempt state and local

requirements, notwithstanding that the statute ex-

pressly provides for the “[pjreservation of local zoning

authority.” 47 U.S.C. § 332(c7)(A).

The Fifth Circuit mechanically applied the

Chevron doctrine in upholding the FCC’s regulations

because, the court stated, the two objective factors

requiring Chevron deference were present — the

Telecommunications Act is “ambiguous” and the

FCC’s interpretation is “permissible.” Arlington, 668

F.3d at 248-254. The court did not consider other

factors that this Court has applied in determining the

applicability of Chevron, such as the agency’s “rela-

tive expertness.” United States v. Mead Corp., 533

U.S. 218, 228 (2001). This factor appears to weigh

against Chevron deference, because state and local

governments — not the federal government — have

traditional expertise in adopting zoning and land use

regulations pertaining to communication facilities, a

category that includes the wireless communication

facilities involved here.

Most significantly, the Fifth Circuit failed to

consider an additional factor — indeed, in the amici’s

view, the determinative factor — in determining

whether Chevron applies. This factor is whether the

FCC’s statutory interpretation authorizes it to regu-

late a subject traditionally regulated by state and

local governments, and thus limits traditional state

and local authority to regulate the subject. This Court

36

has consistently held that the regulation of land use,

including the adoption of zoning regulations, is a

traditional — indeed “quintessential” — function of

state and local governments. Solid Waste Agency of

Northern Cook County v. U.S. Army Corps of Engi-

neers, 531 U.S. 159, 174 (2001) (“SWANCC”) (states

have “traditional and primary power over land and

water use.”); Rapanos v. United States, 547 U.S. 715,

738 (2006) (plurality opinion) (“Regulation of land use

... 18 @ quintessential state and local power.”); FERC

v. Mississippi, 456 U.S. 742, 767 (1982) (“[Rlegulation

of land use is perhaps the quintessential state activ-

ity.”); Hess v. Port Authority Trans-Hudson Corp.,

513 U.S. 30, 44 (1994) (“[RJegulation of land use [is]

a function traditionally performed by local gov-

ernments.”). In SWANCC and Rapanos, this Court

struck down federal regulations that resulted in a

“significant impingement” of the states’ “traditional

and primary power over land and water use.”

SWANCC, 531 U.S. at 174; Rapanos, 547 U.S. at 738.

The FCC regulations, at least on their surface,

appear to regulate land use by establishing time-

frames for local governments to process applications

for personal wireless communication facilities. Under

the FCC regulations, a local agency that wishes to

adopt or apply zoning restrictions for the placement

of wireless communication facilities must comply

with FCC-mandated timeframes, rather than the

agency’s own timeframes, in processing applications

to construct and place such facilities. There may be

legitimate reasons for the local agency to take more

37

time to process such applications than the FCC

regulation allows; for example, the local agency may

need to take additional time in establishing general

land use and zoning plans applicable to wireless

service facilities, and to determine how to integrate

the construction and placement of individual facilities

into the general plans. Under the FCC regulations,

however, the local agency’s reasons for taking addi-

tional time are entitled to no weight or consideration.

Thus, the FCC has established national procedural

and substantive standards applicable to the construc-

tion and placement of personal wireless communica-

tion facilities, rather than allowing state and local

governments to establish their own standards. The

Telecommunications Act, on the other hand, expressly

grants “general authority” to state and local govern-

ments to establish these standards and provides for

the “[p]reservation of local zoning authority,” subject

only to “limitations” that do not mention the stan-

dards adopted by the FCC. 47 U.S.C. § 332(c)(7)A),

-(B).

The amici do not, however, contend that the

FCC’s interpretation of its authority under the Tele-

communications Act is necessarily incorrect. Nor do

the amici contend that the objective factors cited by

the Fifth Circuit as the basis for applying Chevron —

that the statute is “ambiguous” and the agency inter-

pretation “permissible” — are not present in this case.

Rather, the amici contend that the FCC’s interpreta-

tion authorizes it to regulate a subject — land use —

that is traditionally regulated by state and local

38

governments, and thus that the Fifth Circuit wrongly

applied the Chevron doctrine for that reason. Although

the Fifth Circuit mechanically applied Chevron be-

cause of the presence of the two objective factors —

relating to statutory ambiguity and permissibility of

agency construction — the court failed to consider the

additional, dispositive factor of whether the FCC in-

terpretation allowed federal intrusion into an area

traditionally regulated at the state and local level.

Under the Fifth Circuit decision, the Chevron

canon of construction, which requires deference to

agency interpretations of ambiguous statutes, trumps

the federalism canon of construction, which precludes

statutory interpretations that authorize federal in-

trusion into traditional areas of state and local reg-

ulation. This Court has held, however, that the

federalism canon trumps the Chevron canon where

the two are in conflict. SWANCC, 531 U.S. at 172-

173; Rapanos, 547 U.S. at 737-738. Therefore, regard-

less of whether the Fifth Circuit reached the right

result in construing the statute, the court employed

the wrong methodology by invoking the Chevron

doctrine in reaching this result.

¢

CONCLUSION

This Court should reverse the Fifth Circuit

decision, and hold that the Chevron doctrine does not

apply to an agency’s interpretation of its jurisdiction,

if the agency’s interpretation expands its authority

39

and reduces state and local authority to regulate

subjects that are traditionally regulated by state and

local governments under their police power or other

authority.

Respectfully submitted,

RODERICK E. WALSTON

Attorney for Amici Curiae