# Opposition Brief — Texas Cities Coalition on Stormwater v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1056%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2004 - **Citation:** 541 U.S. 1085 ## Text Supreme Court, U.S. “| FILED (3) MAY 7 - 2004 No. 03-1125 OFFICE OF THE CLERK In the Supreme Court of the Anited States TEXAS CITIES COALITION ON STORMWATER, Petitioner, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and NATURAL RESOURCES DEFENSE COUNCIL, INC. Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF IN OPPOSITION OF RESPONDENT NATURAL RESOURCES DEFENSE COUNCIL, INC. ANDREW G. FRANK Counsel of Record GAINES GWATHMEY III PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Attorneys for Respondent Natural Resources Defense Council, Inc. GUEST AVAILABLE COP Y NANCY K. STONER NATURAL RESOURCES DEFENSE COUNCIL, INC. 1200 New York Avenue, N.W. Washington, D.C. 20005 (202) 289-6868 Attorney for Respondent Natural Resources Defense Council, Inc. Road ee ; i QUESTIONS PRESENTED The Environmental Protection Agency (EPA) promul- gated the Phase II stormwater rule to regulate pollutant dis- charges from certain small municipal separate storm sewer sys- tems (MS4s). The rule gives the MS4 operator a choice between two compliance options. Under one option, the MS4 has the freedom to design its own pollution reduction program by se- lecting control activities within six broad categories, but must enact certain ordinances or other regulatory mechanisms. Un- der the alternative, the MS4 may obtain an individual permit that does not require the MS4 operator to regulate third parties. In the past, EPA has offered such alternative permits to MS4s under the authority of the same regulations that now serve as the basis for the alternative compliance option under the Phase II rule. | The questions presented are: 1. Whether the court of appeals correctly found that the Phase II rule does not violate the Tenth Amendment because the rule does in fact provide MS4s with a compliance alternative that does not require regulation of third parties. r Whether the court of appeals correctly held that the canon of construction requiring a clear statement of con- gressional intent when statutory interpretations raise signifi- cant federalism questions does not invalidate the Phase II rule, because the canon does not apply when there is no serious con- stitutional issue, and EPA’s inclusion of the alternative permit option removes any doubt as to whether the rule violates the Tenth Amendment. LIST OF PARTIES Petitioner is the Texas Cities Coalition on Stormwater (Texas Cities). The Texas Counties Storm Water Coalition (Texas Counties) also filed a petition for review of the Phase II rule and filed joint briefs with the Texas Cities in the court of appeals. For the purpose of the proceedings before this Court, the Texas Counties wish to remain a party and have adopted the position of the Texas Cities, but will not file separate pa- pers. Respondents are EPA and the respondent-intervenor in the court of appeals, the Natural Resources Defense Council, Inc. (NRDC). The Environmental Defense Center, the American For- est & Paper Association and the National Association of Home Builders filed petitions for review of the Phase II rule on issues different from those presented in this petition for writ of certio- rari. Those three entities did not intervene in the Texas Cities’ petition for review and are therefore not parties to these pro- ceedings. CORPORATE DISCLOSURE STATEMENT Pursuant to Supreme Court Rule 29.6, NRDC states that it is a New York nonprofit corporation that has no parent cor- poration. It further states that no publicly held company owns any of its stock. TABLE OF CONTENTS Page QUESTIONS PRESENTED wo ecscssccccseeseseeeeeeoce sliethteabeied i Ree Ce PTI onsennrierssssncinininioeicenaemnanadactaie Ee ii CORPORATE DISCLOSURE STATEMENT .eecccccccccessssosecc. ii TABLE OF ALITEIOME IIIB os ccsscsccecesissrioussistestuntuadsen eur Vv Se OIE cccscsrsiinicieenirnnasinhatial aaa 1 CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED.................... 2 STATEMENT OF THE CASE, ...csscscssscsssecssteisovsssbossosesseeecssesese... 2 A. Stormwater Pollution and the Stormwater Provision of the Clean Water Act - an eT tek 2 Tie FET Re iiiscsictnhiinineicaaet eae 4 C. The Fifth Circuit's Decision in City of Abilene .............. 5 DD. Tie Pai UW ssssiisivisnnsismnnincmientrencee 7 E. The Court of Appeals’ Decision in This Case ............ 9 REASONS FOR DENYING THE PETITION......................... 11 I. THERE ARE NO GROUNDS FOR FURTHER REVIEW OF THE COURT OF APPEALS’ FINDING THAT THE PHASE II RULE DOES NOT VIOLATE THE TENTH AMENDMENT BECAUSE THE RULE PROVIDESA COMPLIANCE ALTERNATIVE THAT DOES NOT REQUIRE MS4 OPERATORS TO REGULATE THIRD PARTIESG............ccccccssscsossscsesseseosecsesees 12 THERE ARE NO GROUNDS FOR FURTHER REVIEW OF THE COURT OF APPEALS’ : HOLDING THAT THE PHASE II RULE IS CONSISTENT WITH THE CLEAR STATEMENT CANON OF CONSTRUCTION THAT GOVERNS WHEN A STATUTORY INTERPRETATION RAISES SERIOUS FEDERALISM QUESTIONG............... 15 A. The Court of Appeals Applied the Same Authority - SWWANCC - that the Texas Cities Assert This Court Should Apply and Correctly Held That the Phase II Rule Is Fully Consistent with the Clear Statement Canon............cccccseessesseseseeees 16 B. Because the Texas Cities Did Not Previously Argue That EPA Had a Duty to Provide Additional Information About the Alternative Permit Option, This Argument Is Not Property Debeie TH Cte. ac csssnscnsssecasnenssonessonnnnnssontone 20 CI AI i cisisesesennicceneoiumnnneniiiiniaenaemamanaamnaaiaeae 21 APPENDICES 4D CER. § 122 DOE) (UD) ouersoviccsnissnsnsicsncnsstnsncionisaes App. 1 40 C.F.R. § 122.33(b)(2) (excerpts) ..ssssssssssssssssssssssssssssssen App. 11 TABLE OF AUTHORITIES Page CASES Chevron, U.S.A., Inc. v. NRDC, IP RI wtrsnstvsce rerhclbhabersdshsnarsonaces ced. 6, 10, 16 City of Abilene v. EPA, 325 F.3d 657 (5th Cir. i 5, 6, 7, 16, 17 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,527 US. 666 ID eecticinisaterienntianads 20 Environmental Defense Center v. EPA, 319 F.3d 398 (9th Cir. ny 2,9 Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. i, _ NT TD passim Garcia v. San Antonio Metropolitan Transit Authority, 469 US. S2B (1985) ......ssssersssesssssssrsnsssessttsecsesoeseccc. 19 NRDC v. Costle, 568 F.2d 1369 (DIC. Cit. 1977) ..sccsccccroesssncencee. 3 New York v. United States, 505 US. cl cg 6, 10, 18 Pennhurst St. Sch. & Hosp. v. Haldermann, We i BE sittin norsctsicrnewigniubssieieccscccncc ona. 20 Pennsylvania Dep’t of Corrections v. Yeskey, sashes ie ci: TE 20 Page Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ........cccsssscssesssesseesereneeeees 5, 16, 17, 18 South Dakota v. Dole, 483 U.S. 203 (1987) ......cccecsssessseseseeeeteneresnessssnsseeceeseeeneens 20 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) .....cecccceresesreeeseeneeensessseeensenens 15 STATUTES Clean Water Act, BS U.S.C. § 1342 ...ccresccccrrescsscerersrsecsecceccsseasscssnsoesensccsensenees 3 33 U.S.C. § 1342(p) .....cecccecssesseseneseeeseensnenersesssneneneeeneees a3 33 U.S.C. § 1342(p)(3).....cessccssseeseeeesseesenseseessseseseneneneneens 5 33 U.S.C. § 1342(p)(3)(B)(ii).......-.essesesesesesesseeseetesenenenens 18 33 U.S.C. § 1342(p)(3)(B) (iii) ..........-seseeseeeseeeeseseeeeeneecens 18 33 U.S.C. § 1342(p)(4).....ccscccceseseeesssseeneneneansnecsesesnsnenenenees 4 33 U.S.C. § 1342(p)(4)(A) ....secceceeesseeeeeeneneseeesnssnsnenenees 14 33 U.S.C. § 1342(p)(4)(B) ....-.cececsseeseeeeneseseensensnenenenens 14 33 U.S.C. § 1342(p)(6).......scccccesecsssecesesenenessesensnsssseseeees 4,7 33 U.S.C. §1362(14),......ccccccrscccscssscserscsssesncesesnsscnsnceesecees 3 vi Congressional Review Act of 1996, SUG, BORG nsccssesnccensnceciescececasseseeeenenssecs 19 I CI rset 19 i ae nT EEN A 19 Department of Veterans Affairs and Housing and Ur- ban Development and Independent Agencies Appropriation Act of 2000, Pub. L. 106-74 § 431, 113 Stat. 1047 (1999) ......cccccccccsssccsseccscessssssssseee 19 REGULATIONS ig Lt | See mE 2,4,14 40 C.F.R. § 122.26(d)(2)(iv)(B)(1) ......esccccccccssssssssssssssssssseseeeeccecece 4 40 C.F.R. § 122.26(d)(2)(Viii) ....sssesssssssssssssssssssssssssssssseesee 4,14,15 A ria iilarttrt ee 2 pe Bo. | ee 2, 8,15 ahi i. AD RPC OE SC RT 2 AO CFR. § 122. DA(D) (SRY) nanan nancccccsccccccenccrcorcenerseseeoeeeeecs . 40 C.F.R. § 122.34(b)(4)(ii)(A) ....ccsssssssssssssssssssssssssssssssssssssseeeeeee s 40 C.F.R. § 122.34(b)(5)(ii)(B) ....sesesecccecccsccccccccccsssssssssssssssssssccseec . ein ci ok, ME NARI LAURER ED SE 2 Vil ADMINISTRATIVE PUBLICATIONS National Pollutant Discharge Elimination System Permit Application Regulations for Stormwater Dis- charges, 55 Fed. Reg. 47990 (Nov. 16, 1990).........s:s:ss000 4 National Pollutant Discharge Elimination System - Regu- lations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges; Final Rule, 64 Fed. Reg. 68722 (Dec. 8, 1999)...2, 3, 7, 13 Viii In the Supreme Court of the United States TEXAS CITIES COALITION ON STORMWATER, Petitioner, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and NATURAL RESOURCES DEFENSE COUNCIL, INC. Respondents. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NRDC respectfully requests that the Court deny the pe- tition for a writ of certiorari to review the September 15, 2003, judgment of the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The final opinion below is Environmental Defense Center v. EPA, 344 F.3d 832 (9th Cir. 2003). App. 1-92.1 In issuing the final opinion, the Ninth Circuit vacated its initial opinion, re- 1 Citations to” App.” refer to the Appendix to the Texas Cities’ peti- tion for writ of certiorari. ported as Environmental Defense Center v. EPA, 319 F.3d 398 (9th Cir. 2003). CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED The Tenth Amendment to the United States Constitu- tion provides as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the - States, are reserved to the States respectively, or to the people.” \ The relevant provision of the Clean Water Act (CWA), section 402(p), 33 U.S.C. § 1342(p), is reproduced at App. 93-97. The Phase II rule and its preamble were published at 64 Fed. Reg. 68722-68852. App. 98-166 (excerpts). The rule itself is codified at various sections of 40 C.F.R. parts 9, 122, 123 and 124. See App. 167-81 (setting forth certain provisions of the rule, including 40 C.F.R. §§ 122.30, 122.34 and 122.36); NRDC App. 11-12 (setting forth excerpts from 40 CFR. § 122.33(b)(2)(ii))?. Certain relevant provisions of EPA’s Phase I stormwater rule are incorporated by reference in the Phase II rule. See NRDC App. 1-11 (setting forth excerpts from 40 C.F.R. § 122.26(d)). STATEMENT OF THE CASE A. Stormwater Pollution and the Stormwater Provision of the Clean Water Act - Section 402(p) Urban stormwater discharges are a leading cause of wa- ter pollution. Uncontrolled discharges of polluted stormwater 2 Citations to “NRDC App.” refer to the Appendix to this brief. 2 from MS4s convey metals, pathogens, toxins, sediment, nutri- ents, trash and other pollutants to the waters of the United States. National Pollutant Discharge Elimination System - Regula- tions for Revision of the Water Pollution Control Program Address- ing Storm Water Discharges; Final Rule, 64 Fed. Reg. 68722, 68744 (Dec. 8, 1999) (hereinafter Phase II Pream. & R.). The cornerstone of the nation’s water pollution control efforts is the National Pollutant Discharge Elimination System (NPDES) established under section 402 of the Clean Water Act, 33 U.S.C. § 1342. Under the NPDES regime, it is unlawful to discharge pollutants to the waters of the United States from a point source? without authorization to do so pursuant to a permit that sets conditions on the discharges. Since the enactment of the Clean Water Act in 1972, most NPDES permits have relied on numeric effluent limits as the conditions that must be met to render the discharges lawful. Numeric effluent limits are quantitative “end of pipe” restric- tions on the amounts or concentrations of pollutants that may be discharged. In 1977, the District of Columbia Circuit held that storm sewers were point sources that EPA could not exempt from NPDES permitting requirements. NRDC v. Costle, 568 F.2d 1369, 1377, 1379 (D.C. Cir. 1977). EPA subsequently attempted to promulgate stormwater regulations in the 1970s and 1980s. In 1987, Congress enacted section 402(p) of the Clean Water Act, 33 U.S.C. § 1342(p), App. 93-97. Among other things, that statute created a two-phase regulatory program for 3 The Clean Water Act defines a point source as “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). stormwater discharges. Section 402(p)(4) required that EPA establish regulations setting forth permit application require- ments for stormwater discharges from large and medium MS4s, that is, MS4s serving populations of 100,000 persons or greater. 33 U.S.C. § 1342(p)(4), App. 95-96. Section 402(p)(6), in turn, required EPA to designate additional sources of stormwater pollution for regulation and to establish a comprehensive pollu- tion control program for the designated sources. 33 U.S.C. § 1342(p)(6), App. 97. B. The Phase I Rule In 1990, EPA promulgated regulations under section 402(p)(4) for large and medium MS4s. Those regulations be- came known as the Phase I rule.4 Consistent with the statute, the Phase I rule sets out permit application requirements for those MS4s. 40 C.F.R. § 122.26(d). Among the information that the Phase I rule requires in those permit applications is descrip- tion of “a program. .. to implement and enforce an ordinance, orders or similar means to prevent illicit discharges to the [MS4].” 40 C.F.R. § 122.26(d)(2)(iv)(B)(1), NRDC App. 7. How- ever, the rule also provides that the permitting authority can excuse an MS4 from certain of the application requirements, including the requirement that the MS4 describe its program to implement and enforce an illicit discharge ordinance, if the re- quirement is not “practicable” or “applicable.” 40 C.F.R. § 122.26(d)(2)(viii), NRDC App. 10. 4 National Pollutant Discharge Elimination System Permit Application Regulations for Stormwater Discharges, 55 Fed. Reg. 47,990 (Nov. 16, 1990) (codi- fied at various sections of 40 C.F.R. pts. 122-124). 4 C. The Fifth Circuit’s Decision in City of Abilene Since promulgation of the Phase I rule, EPA and other permitting authorities have issued Phase I permits to large and medium MS4s. In City of Abilene v. EPA, 325 F.3d 657 (5th Cir. 2003), reh’g en banc denied, 71 Fed. Appx. 443 (5th Cir. 2003), a unanimous panel of the Fifth Circuit upheld EPA-issued Phase I MS4 permits against two as-applied challenges. The first challenge was based on the canon of construction requiring a clear statement of congressional intent when a statutory in- terpretation raises serious federalism questions, as set out in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (hereinafter SWANCC). The second challenge was based on the Tenth Amendment. In City of Abilene, EPA had offered the plaintiffs, two Texas cities, a choice between (1) permits that would have re- quired the cities to implement and enforce ordinances or other programs to prevent the discharge of pollutants into their MS4s, and (2) permits containing numeric effluent limits. Id. at 660. The cities chose permits of the first type rather than nu- meric effluent limit permits. Upon issuance of the permits, the cities sought administrative ana judicial review. The cities con- tended that the Clean Water Act did not provide sufficiently clear authority to allow EPA to require an MS4 operator to regulate third parties, and that such regulation of third parties “invoke[d] the outer limits of [federal] power,” so that the per- mits violated the SWANCC clear statement canon of construc- tion. Id. : In denying that challenge, the Fifth Circuit quoted sec- tion 402(p)(3) of the Clean Waiter Act, 33 U.S.C. § 1342(p)(3), which requires that MS4 permits include “a requirement to ef- féctively prohibit non-stormwater discharges into the storm sewers’ and “controls to reduce the discharge of pollutants to the maximum extent practicable, including management prac- 5 tices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State [permitting authority] determines appropriate for the control of such pollutants.” Id. at 660-61 (emphasis in original). Based on this statutory language, the Fifth Circuit concluded that “even if Chevron deference is not warranted, the challenged permit conditions are within EPA’s discretion.” Id. at 661 (referencing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)). The Fifth Circuit also rejected the argument that the permits violated the Tenth Amendment because they required the cities to regulate third parties. Id. at 661-63. Following New York v. United States, 505 U.S. 144 (1992), the court stated that the federal government could encourage states and municipali- ties to implement a federal regulatory program so long as the choice to do so or not remained with the state or municipal government. City of Abilene, 325 F.3d at 662. As a result, the cities could not “establish a Tenth Amendment violation with- out demonstrating that they had no other option but to regulate [third parties] according to federal standards.” Id. The Fifth Circuit concluded that EPA’s offer of a numeric effluent limit permit gave the cities that other option: Like [the statute at issue in Reno v. Condon, 528 U.S. 141 (2000)], the proposed numeric end-of-pipe permits would not have required the Cities to regulate their own residents but instead, by requiring the Cities to meet effluent limitations, would have regulated them in the same manner as other dischargers of pollutants. Be- cause the record shows that the Cities voluntarily chose the management permits over permits that did not re- quire the Cities to regulate according to federal stan- dards, the Cities have not been compelled to implement a federal regulatory scheme. Accordingly, their Tenth Amendment challenge fails. 6 2 Id. at 663. D. The Phase II Rule In 1999, EPA promulgated regulations under Clean Wa- ter Act section 402(p)(6), 33 U.S.C. § 1342(p)(6). Phase II Pream. &R., 64 Fed. Reg. 68722-852. Those regulations became known as the Phase II rule. Consistent with the statute, the Phase II rule designated certain stormwater dischargers for regulation — including certain small MS4s — and established a compre- hensive permitting program to regulate them. The preamble to the rule listed approximately 5,700 cities or counties in “urban- ized areas” that would be actually or potentially subject to the rule. Phase II Pream. & R.,-64 Fed. Reg. at 68812-37. Certain federal facilities are also regulated under the Phase II rule’s MS4 provisions. Id. at 68749. The Phase II rule provides two compliance options. One option gives MS4 operators the freedom to design their own regulatory program by selecting pollution control activi- ties from six broad wategories referred to as the minimum measures.° App. 108 (“each 7 >rrnittee will determine appropri- ate [management practices] to satisfy each of the six minimum control measures”). EPA. designed the rule in this way to pro- vide “maximum flexibility in MS4 permitting” because “MS4s need . . . flexibility to optimize reductions in storm water pol- lutants on a location-by-location basis.” App. 107. The six minimum measure categories are: (1) public education and outreach on stormwater impacts; (2) public involve- ment/ participation; (3) illicit discharge detection and elimina- > In ruling ona separate petition for review of the Phase II rule, the Ninth Circuit held that the MS4 operators’ choice of pollution control meas- ures must be reviewed by the permitting authority to ensure that the MS4 pollution control programs meet relevant Statutory standards. App. 37-38. That issue is not before this Court. tion; (4) construction site stormwater runoff control; (5) post- construction stormwater management in new development and redevelopment; and (6) pollution prevention/ good housekeep- ing for municipal operations. App. 109-42. Though the minimum measures approach provides flexibility, the MS4’s minimum measure pollution control pro- gram must include certain features. For the illicit discharge, construction site, and new development and redevelopment minimum measures, the pollution control program must in- clude certain ordinances or other regulatory mechanisms. 40C.F.R. §§ 122.34(b)(3)(ii)(B), 122.34(b)(4)(ii)(A) & 122.34(b)(5)(ii)(B), App. 171, 172 & 174. : _ The alternative to the minimum measures approach un- der the Phase II rule allows regulated small MS4s to obtain in- dividual permits under the Phase I rule’s permit application requirements for large and medium MS4s. App. 152-53. EPA stated that those individual Phase II permits would “more spe- cifically focus[ ] on the pollutants” discharged from the regu- lated MS4s, App. 157, and expressly noted that the permits could be based on numeric effluent limits. App. 158; see also App. 158-59 (explaining how appropriate effluent limits might be determined). EPA indicated that MS4 operators seeking permission to discharge under the alternative permit option did not need to submit details about future stormwater program requirements unless the MS4 operator intended that those fu- ture program components be considered when developing the permit conditions. App. 159; see also 40 C.F.R. § 122.33(b)(2)(ii), NRDC App. 11-12. EPA added the alternative compliance option in re- sponse to comments suggesting that the minimum measures approach might violate the Tenth Amendment by requiring the operators of MS4s to regulate third parties. App. 153-54. EPA explained that the minimum measures approach, standing alone, did not excessively interfere with the functioning of mu- nicipal governments, and therefore did not violate the Tenth Amendment. App. 155-57. EPA further noted that, in any event, providing the alternative permit option resolved any Tenth Amendment concerns: Even if the minimum measures approach was constitu- tionally suspect, a requirement that standing alone would violate constitutional principles of federalism does not raise concerns if the entity subject to the re- quirement may opt for an alternative action that does not raise a federalism issue. App. 157. E. The Court of Appeals’ Decision in This Case In its September 15, 2003 revised opinion, a unanimous panel of the Ninth Circuit rejected the Texas Cities’ clear state- ment and Tenth Amendment challenges to the rule. App. 14- a2. ° The court of appeals issued its original opinion, in which the entire panel rejected the clear statement challenge and a majority of the panel re- jected the Tenth Amendment challenge, on January 14, 2003. Environmental Defense Center v. EPA, 319 F.3d 398 (9th Cir. 2003). Judge Richard C. Tallman dissented on the Tenth Amendment point, and on certain other points not relevant to this petition for writ of certiorari. The Texas Cities and Texas Counties filed a petition for panel and en banc rehearing on the clear state- ment and Tenth Amendment issues. On September 15, 2003, the court of ap- peals denied the Texas Cities’ and Texas Counties’ petition for panel and en banc rehearing, but issued a revised opinion. While continuing to uphold the rule against the clear statement and Tenth Amendment challenges, the court amended its opinion on those two points in the wake of the Fifth Circuit's City of Abilene decision, which had been issued after the Ninth Circuit's origi- nal decision in this action. Judge Tallman joined in the revised opinion on the Tenth Amendment point, making the revised opinion unanimous on both the 9 ee On the clear statement issue, as set out in more detail in section II.A below, the court of appeals ruled that EPA’s statu- tory interpretations passed muster under the test for adminis- trative deference set out in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) as well as under SWANCC. As for the constitutional issue, the Ninth Circuit, like the Fifth Circuit in City of Abilene, held that there is no Tenth Amendment violation when EPA offers MS4s at least one com- pliance alternative that does not require the state or municipal- ity to regulate third parties. App. 19 (citing New York v. United States, 505 U.S. 144, 168 (1992)). Since under the Phase II rule MS4s may choose either the minimum measures approach or the alternative permit, the Ninth Circuit concluded that the rule would not violate the Tenth Amendment so long as the alterna- tive permit option standing alone did not violate the Tenth Amendment's federalism guarantees. App. 20. The court found that the alternative permit option did not offend Tenth Amendment principles because it did not compel MS4s to regulate third parties. The court recognized that the Phase I rule application requirements, which served as the application requirements under the alternative permit op- tion, did require an MS4 to provide information concerning proposed ordinances or other regulatory measures. App. 20. But the court found that those application requirements did not “specif[y] the contents of the permit that will result from the application process.” App. 20. Thus, “nothing in [the Phase I permit application requirements] will compel the operator of a small MS4 to implement a federal regulatory program or regu- late third parties.” App. 21. In further support for its conclu- clear statement and Tenth Amendment issues. Judge Tallman continued to dissent on other issues. INo judge of the court of appeals requested a vote on the petition for en banc rehearing. sion on this point, the Ninth Circuit noted that EPA had in fact already offered the Phase I cities at issue in City of Abilene “an option for obtaining permits that would not have involved... regulating third parties.” App. 21. The court of appeals con- cluded that “by presenting the option of seeking a permit under [the Phase I permit application requirements], the Phase II rule avoids any unconstitutional coercion.” App. 21-22. REASONS FOR DENYING THE PETITION The Texas Cities contend that the Phase II rule violates the Tenth Amendment because the alternative permit option requires MS4 operators to regulate third parties. The decision of the court of appeals creates no conflict of authority or impor- tant, unresolved question of law on this point, however. Both the Ninth Circuit, in this case, and the Fifth Circuit, in the City of Abilene case, have held that there is no Tenth Amendment violation when EPA provides MS4s with a compliance alterna- tive that does not require MS4s to regulate third parties. The Texas Cities do not dispute this principle. Instead, the Texas Cities simply disagree with the court's finding that the Phase II rule provides MS4s with such an alternative. However, the Texas Cities invoke no interpretive principles in support of their reading of the regulation, and the plain language of the regulation is contrary to their position. The Texas Cities also contend that the Phase II rule vio- lates the clear statement canon of construction that governs when a statutory interpretation raises serious constitutional questions concerning the balance of authority between the fed- eral and state governments. There is, however, no conflict of authority or important, unresolved question of federal law on this point either. The court of appeals applied the same deci- sion of this Court - SWANCC - that the Texas Cities argue that 11 ie this Court should apply. Because the availability of the alterna- tive permit option eliminates any purported Tenth Amendment concern, the court of appeals correctly decided that there was no serious constitutional question and thus that no clear state- ment was necessary. Moreover, the canon provides that stat- utes should be interpreted to avoid constitutional problems. The court of appeals’ decision to uphold EPA’s interpretation, which avoids any Tenth Amendment concerns by providing a compliance alternative that does not require MS4s to regulate third parties, is thus fully consistent with the canon. In addition, the Texas Cities now argue, for the first time in this petition for writ of certiorari, that decisions of this Court obliged EPA to provide additional information about the compliance alternatives available to MS4s under the Phase II rule so that MS4 operators could “voluntarily and knowingly” choose between the alternatives. Because the Texas Cities never raised this argument in the proceedings in the court of appeals, the argument is not properly before this Court. | I. THERE ARE NO GROUNDS FOR FURTHER REVIEW OF THE COURT OF APPEALS’ FINDING THAT THE PHASE II RULE DOES NOT VIOLATE THE TENTH AMENDMENT BECAUSE THE RULE PROVIDES A COMPLIANCE ALTERNATIVE THAT DOES NOT REQUIRE MS4 OPERATORS TO REGULATE THIRD PARTIES In a careful application of this Court's jurisprudence, the Ninth Circuit agreed with the Fifth Circuit in holding that there is no Tenth Amendment violation if EPA offers MS4s a compli- ance alternative that does not require them to regulate third parties. No court has held otherwise, and the Texas Cities do not challenge that holding in this petition. 12 ~ moxtiguemnnenanmnes . nen AN se EN Instead, the Texas Cities contend that the Phase II rule violates the Tenth Amendment because the alternative permit option in fact requires MS4s to regulate third parties. Pet. at 27- 30. According to the Texas Cities, because certain parts of the relevant regulations for the alternative permit option require that the MS4 provide information about proposed ordinances or other regulatory mechanisms in the permit application, the permits themselves must include ordinances or other similar regulatory mechanisms. Id. The court of appeals found to the contrary, and for several reasons this issue does not merit re- view by this Court.” First, there is no conflict in authority or important, unre- solved issue of law on this point. The Texas Cities’ position is simply an argument that certain regulations mean something other than what their plain language states and what the agency charged with their interpretation says they mean. The Texas Cities admit that what they seek is correction of a pur- ported “mistake,” Pet. at 27, and simple correction of a mistake is not a sufficient ground for certiorari. The Texas Cities invoke no interpretive principles and cite only two cases - neither of which is a decision of this Court, and one of which is discussed solely for the purpose of arguing that it does not govern here.8 Pet. at 27-30. 7 The Texas Cities state that the rule ” potentially affects more than 50,000 State and local governmental entities in the nation.” Pet. at 27; see also Pet. at 14. However, the Texas Cities do not cite any source for this 50,000 figure. The rule itself identifies a Pproximately 5,700 cities or counties actually or potentially subject to the rule. Phase II Pream. & R., 64 Fed. Reg. at 68812- 37. 8 The Texas Cities do suggest that EPA’s interpretation caused the court of appeals to “misapply” SWANCC because both the minimum meas- ures option and the alternative permit option allegedly require MS4s to regu- late third parties, so that the rule raises “significant federalism issues.” Pet. at 13 Second, the Texas Cities’ position on the merits is not correct. The plain language of the relevant statute indicates that the Phase I rule provisions were to establish “regulations setting forth the permit application requirements” for large and medium MS4s. 33 U.S.C. § 1342(p)(4)(A) & (B), App. 95-96 The Phase I rule does exactly that: establish permit application requirements. See, e.g.,40 C.F.R. 122.26(d), NRDC App. 1 (cap- tioned “Application requirements for large and medium mu- nicipal storm sewer systems”). The court of appeals found that these regulations, which now also serve as the application re- quirements for the alternative permit option under the Phase II rule, did not “specif[y] the contents of the permit that will re- sult from the application process.” App. 20. As a result, “nothing in [the permit application requirements] will compel the operator of a small MS4 to implement a federal regulatory program or regulate third parties.” App. 21. Citing City of Abi- lene, the court of appeals also noted that EPA has in fact already offered permits to MS4s that do not require the MS4s to regu- late third parties. EPA did so, of course, under the Phase | permit application requirements that now apply to Phase II MS4s under the alternate permit option. Additional support for finding of the court of appeals is found in the text of the regulations. The regulations give the permitting authority the power to excuse an MS4 from certain application requirements - including the requirement to de- scribe the illicit discharge ordinance - if those requirements are not applicable or practicable, as they would not be for an alter- native permit based on numeric effluent limits. 40 C.F.R. § 122.26(d)(2)(viii), NRDC App. 10. Moreover, the Phase II rule 30. As noted in section II.A below, however, the interpretation upheld by the court of appeals does not create a federalism issue, but in fact eliminates any alleged federalism issue, since the alternative permit option allows MS4s to avoid regulating third parties. 14 expressly provides that an MS4 applying for an alternative permit need not demonstrate its legal authority to enact such ordinances. 40 C.F.R. § 122.33(b)(2)(ii), NRDC App. 11-12. The exceptions to the application requirements found in 40 C.F.R §§ 122.26(d)(2)(viii) and 122.33(b)(2)(ii) are consistent with EPA’s statement, in the preamble to the Phase II rule, that MS4 operators seeking alternative permits do not need to pro- - vide information concerning such program requirements if they seek an alternative permit. App. 159. That agency interpreta- tion of its own regulations is entitled to deference. Thomas Jef- ferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (administrative interpretation is of “controlling weight unless it is plainly erro- neous or inconsistent with the regulation”). These exceptions are also, of course, consistent with the fact that the alternative permit option does not require MS4s to regulate third parties. Il. THERE ARE NO GROUNDS FOR FURTHER REVIEW OF THE COURT OF APPEALS’ HOLDING THAT THE PHASE II RULE IS CONSISTENT WITH THE CLEAR STATEMENT CANON OF CONSTRUCTION THAT GOVERNS WHEN A STATUTORY INTERPRETATION RAISES SERIOUS FEDERALISM QUESTIONS The Texas Cities argue that the Phase II rule is inconsis- tent with the canon of construction that requires a clear state- ment of congressional intent for statutory interpretations that raise serious constitutional issues regarding the balance of fed- eral and state authority. Pet. at 16-17. Though the Texas Cities contend that the court of appeals’ rejection of their clear state- ment challenge presents an issue of “immense importance” and constitutes a “radical departure from settled law,” Pet. at 13, the court of appeals w:s able to resolve the challenge easily through a simple and correct application of the decision of this 15 Court - SWANCC - upon which the Texas Cities themselves rely. A. The Court of Appeals Applied the Same Authority - SWANCC - that the Texas Cities Assert This Court Should Apply and Correctly Held That the Phase II Rule Is Fully Consistent with the Clear Statement Canon The Texas Cities contend that EPA lacked statutory au- thority under SWANCC. SWANCC stands for the proposition that statutes should be interpreted to avoid significant constitu- tional problems unless such an interpretation is plainly con- trary to the intent of Congress. 531 U.S. at 173, 174. The court of appeals held the rule to be a valid exercise of EPA’s statutory authority under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). App. 16n.18. However, to address the Texas Cities’ argument that SWANCC governed, the Ninth Circuit also examined whether SWANCC invalidated the rule. Id. Similarly, in City of Abilene, the Fifth Circuit determined whether SWANCC invalidated the MS4 permits at issue in that case. 325 F.3d at 660-61. Both courts concluded that SWANCC did not invalidate EPA’s actions. Given that the only two courts to examine this issue applied the same legal authority that the Texas Cities contend that this Court should apply and reached the same conclusion, the Texas Cities have no grounds to assert the existence of a conflict in authority or an unresolved question of law as a basis for certiorari. Because there is no conflict of authority or unresolved question of law, the Texas Cities’ position is simply that the court of appeals misapplied SWWANCC. But the Ninth Circuit's holding that the Phase II rule did not violate the clear statement canon was correct. The court of appeals found that the Phase II rule did not present any serious constitutional problems be- 16 cause the existence of the alternative permit option eliminated any purported Tenth Amendment concerns. App. 16,n.18. As noted above, the Fifth Circuit agrees that there is no Tenth Amendment problem when EPA provides a compliance alter- native that does not require MS4s to regulate third parties, and no court has disagreed. The clear statement canon of construction only governs, however, when there is a serious constitutional issue. Accord- ingly, in the absence of a serious constitutional issue, the court of appeals correctly determined that the canon did not apply, and there was no need for a special clear statement authorizing the Phase II rule’s choice of compliance alternatives. App. 16 n.18. In particular, the canon applies in situations where the statutory interpretation at issue alters the traditional balance of federal and state authority. SVWWANCC, 531 U.S. at 173. The court of appeals found, however, that the Phase II Rule main- tained, rather than altered, the existing balance of federal-state authority, given that (1) EPA’s authority to regulate MS4s was established over a quarter of a century ago, and (2) EPA prom- ulgated the Phase I rule over a decade ago. App. 16, n.18. The court also noted that, “even if a clear statement of congressional intent were necessary, § 402(p) of the Clean Wa- ter Act is replete with clear statements that Congress intended EPA to require MS4s either to obtain . . . permits or to stop dis- charging stormwater.”? Id. 9 Applying SWANCC, the Fifth Circuit found that the Clean Water Act provided clear statements granting EPA discretion to ixpose permit con- ditions similar to those in the minimum measures. City of Abilene, 325 F.3d at 661. The Fifth Circuit cited Clean Water Act sections 402(p)(3)(B)(ii) and (iii), which provide that MS4 permits include “a requirement to effectively pro- hibit nonstormwater discharges into the storm sewers” and “controls to re- 17 Indeed, the court of appeals’ decision to uphold the rule is fully consistent with the clear statement canon. As this Court has stated, the clear statement canon provides that statutes should be interpreted to avoid significant constitutional prob- lems unless such an interpretation is plainly contrary to the in- tent of Congress., SWANCC, 531 U.S. at 173, 174. In New York v. United States, 505 U.S. 144 (1992), this Court applied this affirmative aspect of the canon in a Tenth Amendment context. In that case, the Court confronted two interpretations of a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 (“LLRWPA”). Under one interpretation, the statutory provision was a mandate re- quiring states to enact and enforce