Petition for Writ of Certiorari — Leavitt v. Tennessee Valley Authority

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In the Supreme Court of the Gnited States

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY AND MICHAEL O. LEAVITT, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, PETITIONERS

UV.

TENNESSEE VALLEY AUTHORITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

LISA JAEGER THOMAS G. HUNGAR

Acting General Counsel

MONICA DERBES GIBSON

Office of General Counsel

CAROL S. HOLMES

EDWARD J. MESSINA

Office of Enforcement and

Compliance Assurance

Environmental Protection

Agency

Washington, D.C. 20460

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

J. STEVEN ROGERS

DAVID S. GUALTIERI

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY |

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that the

Clean Air Act’s sanctions for non-compliance with an EPA

order violate TVA’s rights under the Due Process Clause

and Article III of the Constitution, thereby rendering the

order issued by EPA to TVA in this case without legal ef-

fect—and therefore non-final and not subject to judicial re-

view.

2. Whether a dispute between TVA and EPA, two ex-

ecutive-branch agencies whose leaders serve at the pleasure

of the President, presents a justiciable case or controversy.

3. Whether, if there is a justiciable case or controversy,

TVA has independent litigating authority to bring this case

over the objection of the Attorney General.

————€e tf.

II

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the Ala-

bama Power Company; the Duke Energy Corporation; the

Tennessee Valley Public Power Association; the Memphis

Light, Gas & Water Division; the Electric Power Board of

Chattanooga; the Middle Tennessee Electric Membership

Corporation; the North Georgia Electric Membership Cor-

poration; and the Volunteer Electric Cooperative were peti-

tioners in the court of appeals and are respondents here.

TABLE OF CONTENTS

Page

Opinions below ........ssessssssesssssssesnseneeseesnesnesssessnssnecnsennesnnennesnsenneenes 1

JULISGICCION .......ssssessesseessesneesesneesscenscnrenesscensssssnncancencencenscaennennennsess 1

Statutory provisions involved .........ssssssssessesessesseenssnersensenseneeneens 1

nn ineieteieiaiinianimieninieetimenennamncnincesinante 1

Reasons for granting the petition .......scssssesssssesecersereneenenserenes 10

A. Constitutionality of the Clean Air Act enforcement

II -csciereenciessoiestssvennenseteevevosnsunneaseasscsnsneeveneioonesoeneseseoenss 12

1. The court of appeals’ decision is based on a

mistaken construction of the Act ......scssseseseseees 12

2. The court of appeals’ decision conflicts with

a decision of this Court and decisions of two

other courts of appeals and is of substantial

TMPOTtANCE .......sececserserseserseeenteneenessensensaceneseensssensenenees 16

B. No case or controversy between TVA and

sae nsneetactnosimavenansiccideaninionnarveesensens 18

1. There is no case or controversy between TVA

NE TEA, oocsnacscusncscsnsvosesnerscesensencoscoocccssoonseoscoonosssosovsoses 19

2. The court of appeals’ relaxed standard is not

supported by this Court's CaseS ......sssssesesseeeeseererees 20

3. The court of appeals’ resolution of this issue

1S IMPOLtANt .......sccrerecsereneeneeneneerenerrsereersnenenenessenenenens 22

C. TVA’s lack of independent litigating authority ........ 23

1. Absent a clear statement, the conduct of

government litigation is entrusted to the

Attorney General .......:cccssssessesseenesssssne ceseeeeesenceens 24

2. No such clear statement is present here ............. 25

D. Standing of the WOT VA DATtIOS nscnscsssnssvssseosnnssssssnce 27

IIE <7. canpninipbetnen tenesnbeseenensonenpnnbeneseneceosoncvenee 29

LT

IV

TABLE OF AUTHORITIES

Cases: Page

Alaska Dep’t of Envtl. Conservation v. EPA,

No. 02-658 (Jan. 21, 2004) ......sscesscecsesessseeessseensneees 11, 15, 16, 17

Alaska Dep’t of Envtl. Conservation v. EPA,

244 F.3d 748 (9th Cir. 2001), aff’d, No. 02-658 (Jan. 21,

IY orccsotetinrersmnnrerannvnminnnnmanimnimmmnmncmnniats 17

Algernon Slair Indus. Contractors, Inc. v. TVA,

540 F. Supp. 551 (M.D. Ala. 1982) .....sssssssssssessesseneesenseenees 26

Allsteel, Inc. v. EPA, 25 F.3d 312 (6th Cir. al

POG ao vcececsvcinsnrnsonensersectosensirpsinannninnailcisecniceinsenmnniacneinineten 17

Asbestec Constr. Servs. v. EPA, 849 F.2d 765

(2d Cir. 1988) .n.cccocesconssrnsessrnsnsacresssesscssesbocseonsuonenonsssosnsososassonee 18

Bennett v. Spear, 520 U.S. 154 (1997) ....sesecsecessereeseens 8, 12, 28

Buwshar v. Synar, 478 U.S. 714 (1986) ...eseesesesesesseeneneees 21 ~

Chicago & Southern Air Lines, Inc. v. Waterman

FS, Come, BUR US, MOB RID nes ceicnssnpcnpsrcesrincnrstnse 19

Commodity Futures Trading Comm’n v. Schor,

478 U.S. BBS (1986) ....ccerccscessneseseserocssssocssovensvossscsssosessassnssosase 16

Cooper v. TVA, 723 F.2d 1560 (Fed. Cir. 1983) .......:-+0++ ~-.26

Crowell v. Benson, 285 U.S. 22 (1932) ....csesersssreeeeeeeeees 16

Dean v. Herrington, 668 F. Supp. 646 (E.D. Tenn.

GF cn cisnecnmnesoreaniooninciintinntbiisasinbimcienesineaiinmidiceamnmmmumateinnantts 23, 26

Escondido Mut. Water Co. v. La Jolla Band

of Mission Indians, 466 U.S. 765 (1984) .....ssessessesseeseensenes 21 ,

FDIC v. Meyer, 510 U.S. 471 (1994) ..ssssssssseccssssssseceneeenseees 7

FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968 ) «1... 25

Federal Election Comm’n v. NRA Political Victory

Fund, 518 U.S. 88 (1994) ....scccscscecerersrsssessesssersssneseceesees 25

Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S.

BED CRO sacecinsicscsnininsnasscstnnsinnrensssianssnbeenansseenctemnsainaplacninnaewesinien 21

Flast v. Cohen, 392 U.S. 83 (1968) ........+04 sc lciataelabtihaaninnte 19

ICC v. Southern Ry., 543 F.2d 534 (5th Cir. 1976) .......... 25

Cases—Continued: Page

INS v. St. Cyr, 533 U.S. 289 (2001) ......scsssssssessseeressseesensseees 16

Keim v. United States, 177 U.S. 299 (1900) .......sesceseeeeee 20

Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885

CR it. BITTY iccscinsnisinrientonissainnisnierinnnniaaimesianianiaantnioioneen 18

Marshall v. Gibson’s Prods., Inc., 584 F.2d 668

CBD Clr. BBTB) xcniscasesssssinereresensonstnnananinpnntssnieonpsnnivssinnnsentaastioes 25

Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940),

cert. denied, 312 U.S. 701 (1941) ..........ccscccersssersesesessseseeee 20

NASA v. FLRA, 527 U.S. 229 (1999) ........0cscscscscsrsrsesesersees 21

Robertson v. Seattle Audubon Soc’y, 503 U.S.

BD CIDR .sivascsrisicinsisiicinpsiniasseiniceaueioninnsnennnninaiianaasiaae 26

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir.

DD anesissicsinstivisiesisvsvinnnatnienccaniieimmnninsitinmiansiamamnngaeaaiit 28

Solar Turbines, Inc. v. Seif, 879 F.2d 1073

Ck Clr, TED os cisninintsintnceiesintissenrsisnimnappiaatnivesennsatinmnsasianiinente 18

South Carolina v. Katzenbach, 383 U.S. 301

CID cecnsssnivcesisenssisinlehtivtcipriiivicinsusaieiieiaaesasineaiiaaiinalitiaibiianenigtitia 15

South Spring Hill Gold Mining Co. v. Amador

Medean Gold Mining Co., 145 U.S. 300 (1892) .........004 19

Southern Pines Assocs. v. United States,

912 F.2d 713 (4th Cir. 1990) ..........cccccscsssscscsessesesensarensasece 18

Sutherland v. International Ins. Co., 43 F.2d 969

(2d Cir.), cert. denied, 282 U.S. 890 (1930) ......sesesseseseeeees 24, 25

TVA Vv. Hill, 487 U.S. 153 (1978) ...........ccccscsscccssssereessscesors 26

TVA v. United States:

51 Fed. Cl. 284 (2001) ..ccccccossossorssscsssscssesvoccssscssessocessesenssacsooss 23

1B TL, Ct. GER GBT) eccscersseseinriisiconssnecnininsanaisinniacivinenemeananioie 23

Udall v. Federal Power Comm’n, 387 U.S. 428 a

CDG sccncecsacdtlagnnilltscacssnncsisteseniinsanehieasmasieemesinmeniuanieiaaenninieia 21

United States ex rel. TVA v. Easement and Right

of Way, 204 F. Supp. 837 (E.D. Tenn. 1962)... 23

United States v. Alky Enters., Inc., 969 F.2d 1309 :

Chart Cole. TOD) csevisceniensinnnsnsnsernetsininsienmtaseseitindiieasimiianmiaiaaaien 25

United States v. First City Nat’l Bank, 368 U.S. 361

VI

Cases—Continued: Page

United States v. ICC:

BES U.S. 158 (1966) .....cccosscecsosrsscscnsessscssereeqesnscsssovenecceoossessons 21

BOT UB. GIB CIDD) ac cncosccvererincoscosssorncscnnsosenonsvensssines 6, 19, 21, 22

United States v. Marine Bancorporation, 418 U.S. 602

IID siicnnssssusiicesasbansindnsinisesnsistinsenicipnivimonnnisicadphiprinnnidcncehianesindeate 21

United States v. Morton Salt Co., 338 U.S. 632

IN icsccsssssaivksscdcinnncscecentviseipenviitinainescseapanosinmndiiarabniesiseceteiants 25-26

United States vy. Nixon, 418 U.S. 683 (1974) .........004 6, 20, 22

United States v. San Jacinto Tin Co., 125 U.S.

SD priiiescsaitinomsarcentonercetmncissianniosminnanenil i cesniananhaselinidiodbounnti 24

United States v. Smith, 499 U.S. 160 (1991) «1... cesses 27

United States v. Walcott, 972 F.2d 323 (11th Cir.

I saiicitiss esis ennnnnninninsiioneacnnasniesaesentulenninsesisintataniomisenaeisuiesicine 24

Vermont Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 529 (1978) ..eeseseeseeeesees 15

Will v. Michigan Dep't of State Police, 491 U.S. 58

TD nencsessscsesenis ssclitinnibieipiieapiidaninipsiaiiiesailinsbaininontint 15

Constitution, statutes and regulations:

US. Const.:

I SE citechiisaniinatirecessiesoniensoneninisiies 2,6, 11, 15, 16, 19, 20, 22, 28

Amend. V (Due Process Clause) ..........scssssssereseesees 2,8, 10, 15

Act of June 22, 1870, ch. 150, § 1, 16 Stat. 162 0... esses 23

Clean Air Act, 42 U.S.C. 7401 et Seq. .....sssccscsrsresssrseseseesees 2

§ 110, 42 U.S.C. T41OCaM2MC) ......ccossresereasrensecssesreerasvesossoese 2

§ 111(a)(4), 42 U.S.C. 7411(a)(4) .........cercsoscsecsssecscecerersenseses 3,4

OF Oe UG, TAD csiecnsesecerensesassnsssneesonaninntnrnenenints 4, 12, 332a

§ 113(a)(1), 42 U.S.C. 7413(a)(1) oeeeeeeseseeeeseeeeeeees 3, 8, 13, 332a

§ 113(aN(2), 42 U.S.C. 7418(a)(2) .........cccccorcerssvosocssecererssscsses 3

§ 113(a)X(3), 42 U.S.C. T41S(a)(S) ......ccceccccscsssreersorseees 3, 18, 332a

§ 113(a)(4), 42 U.S.C. 7418(a)(4) ........csrorcrcecesscsesessesesees 3, 333a

§ 113(a)(5), 42 U.S.C. 7413(a)(5) ..eeeeeesereseeeeeeees 3, 14, 16, 334a

© RRB), SE UBC. TARR) cevcserrscncsesonessesosnienccsvessnsnnsnsanse 4, 335a

§ 113(b)(2), 42 U.S.C. 7413(0)(2) ......sessecsseesssenesserenrees 14, 335a

RI Se UALS. TRTIIR) oecsesccocssencstiinnsessssoponensiosrsvsnns 14, 336a

VII

Statutes and regulations—Continued: Page

Eee LL ee | a eee 4, 337a

§ 113(e)(1), 42 U.S.C. 7418(e)(1) ...eececerererseessererenenesees 14, 340a

§ 165(a), 42 U.S.C. 7475(a) .....sssssssesesesseseserscsssssssneensssssecenenes 4

§ 167, 42 U.S.C. TATT ......cscccsrssssecsscssresssrsecesoseneors 3, 4, 16, 341a

§ 169(2)(C), 42 U.S.C. T479(2)(C) ...scscseserersseesseeseeeneneneneneeees 2

§ 171(4), 42 U.S.C. T501(4) ....sesessssesesscsesessenensnenseneensnsecerensees 3,4

§ 172(c)(5), 42 U.S.C. 7502(c)(5) ....ssscscssseresenensnsssesssssseerneneees 4

§ 303, 42 U.S.C. 7608 ......ssssssssssesecsesssseenesssnsensssensensssenseeenensees 3

§ 307(b)(1), 42 U.S.C. T607(D)(1) «..sseccscssreenenesersesesenees 15, 342a

§ 307(b)(2), 42 U.S.C. 7607(D)(2) .....eerererersssreeeeereeenerees 15, 348a

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9606 ............. 18

Customs Courts Act of 1980, Pub. L. No. 96-417,

§ 705, 94 Stat. 1748 ......ccccsssssssssssssessscsesecsssssenssesesesensnseseesees 26

Federal Courts Improvement Act of 1982, Pub. L.

No. 97-164, § 169, 96 Stat. 51 on... cececesessessneneesssensnsnsnsesseees 26

Reorg. Plan No. 3 of 1970, 5 U.S.C. App. § 1(b) at

IU ..-sccsessesiceeseinsmpeniubacssonnmsniinesiuhdsquntnisielaniesiisnsnmunnnnoniniiosh 19

Resource Conservation and Recovery Act of 1976,

AD USS.C. CORB ...cecccrsesscvsececersessseevsvensesesessasssoenenononecsnassoosoenenes 18

Safe Drinking Water Act, 42 U.S.C. 300g-3(D) «1... 18

Supplemental Appropriation Act, 1984, Pub. L.

No. 98-181, § 1300, 97 Stat. 1292 ........scsssssesseeressseseeeeensees 26

© U B.C, GBTANG) nosscsrerecsserseccessccrssmncesnsoscnsossessorasasoonsegssessoosess 25

16 USAC. SB ala) ..cccccecesscsosssssovernsesoscscrensnrsonecasssaccocenensssosonsseese 20

16 U.S.C. SB1ad) ........c.scscssssssrssssssosesesereceseccsseessvossesssesenccsssessces 20

16 USB... BBED ..<.ccororenccssasserssossuvesssernoseneccnssnowenssnsnsasnsesasonsossanonse 27

16 USAC. BBICOD) ...r.ccececcccoscsasesoreressseseseceonccsesensneseeesssososesensosoes 27

16 U.S.C. 831N-4(h) .....cccccccsssssssscesererecescscsessssesesssssssseserseesessnoses 3

OT I ceeeiessscccticsensicssernenenninnssinanatonenstaniniven sean 13

OF I scssitincsirniniicenitcretnt-ssstccontetimnvnsinninicie 7, 23, 24, 25, 26, 27

Be UY GD sicscescnincicnsnrnvvisnssonnsonsnsnanenvesiasons 7, 23, 24, 25, 26, 27

40 C.F.R. 52.21()(2)(iii)(@) «00... cesssescssssescecscenenceserssescsessssserees 3,4

United States Sentencing Guidelines § 1B1.4 ............sssssee 14

Vill

Miscellaneous: Page

Exec. Order No. 12,088, Federal Compliance with

Pollution Control Standards, 43 Fed. Reg.

AT, TOT (1979) .sessecsesssecsessssssssssssessecsncsscensensensssnsencancnnsensansenenneess 7, 28

Exec. Order No. 12,146, Management of Federal Legal

Resources, 44 Fed. Reg. 42,657 (1979) .....sssssssseresseserenenees 7, 28

68 Fed. Reg. (2003):

P- G1,248 onessssecsssssseessssecrssecssnecesnecssnsesssnecensssaneccancnanecenscassnsesses 3

P- G1,273 crrsesecssssscssesssneccesnecsssneccsnnesssnneessnscessnecssnssensnscssnnsassnscts - §

The Attorney General’s Role as Chief Litigator

for the United States, 6 Op. Off. Legal Counsel 47

(1GBD) ..nscrsercsuceresscesseressonsssssecsesccesorensssssavsconsassesonesnnnssoronseesoaness 25

In the Supreme Court of the United States

No.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY AND MICHAEL O. LEAVITT, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, PETITIONERS

VU.

TENNESSEE VALLEY AUTHORITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI ~

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States En-

vironmental Protection Agency and Michael O. Leavitt, Ad-

ministrator, United States Environmental Protection

Agency, petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Eleventh

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals dismissing the peti-

tions for review (Pet. App. 1a-50a) is reported at 336 F.3d

1236. The opinion of the court of appeals addressing other

threshold issues (Pet. App. 5la-99a) is reported at 278 F.3d

1184. The court of appeals’ order denying rehearing (Pet.

App. 328a-329a) is not reported. The decision of the Envi-

nnn aie nel ea

Ne Le a ee

ronmental Protection Agency’s Environmental Appeals

Board (Pet. App. 100a-327a) is reported at 9 E.A.D. 357.

JURISDICTION

The judgment of the court of appeals was entered on June

24, 2003. A petition for rehearing was denied on September

16, 2003. On December 5, 2003, Justice Kennedy extended

the time for filing a petition for a writ of certiorari to and

including January 14, 2004, and on January 5, 2004, Justice

Kennedy further extended the time for filing a petition for a

writ of certiorari to and including February 13, 2004. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Clean Air Act, 42 U.S.C. 7401,

et seq., are reprinted in an appendix to this petition.

STATEMENT

This case concerns, inter alia, the constitutionality of the

Clean Air Act’s provisions authorizing the imposition of

sanctions on persons who fail to comply with EPA orders.

The court of appeals invalidated those provisions under the

Due Process Clause and Article III of the Constitution. That

decision strikes at the heart of EPA’s enforcement authority

under the Clean Air Act and merits this Court’s review.

1. Under the Clean Air Act, 42 U.S.C. 7401 et seq., each

State must establish as part of its state implementation plan

(SIP) a system of pre-construction permitting requirements

for new and modified stationary sources of pollutants. 42

U.S.C. 7410(a)(2)(C). The Act defines a “modification” as

any physical change in, or change in the method of opera-

tion of, a stationary source which increases the amount of

any air pollutant emitted by such source or which results

in the emission of any air pollutant not previously emit-

ted.

42 U.S.C. 7411(a)(4); see 42 U.S.C. 7479(2)(C), 7501(4). EPA

regulations contain an exception to that definition, providing

that “{a] physical change or change in the method of

operation shall not include * * * [rjoutine maintenance,

repair, and replacement.” 40 C.F.R. 52.21(b)(2)(iii)(a).’

Wnder the Act, EPA has authority to issue enforcement

orders in a variety of circumstances. Of relevance here,

“whenever, on the basis of any information available to the

Administrator,” he “finds that any person has violated or is ~

in violation of any requirement or prohibition of an applica-

ble [state] implementation plan or permit,” the Administra-

tor may, after notice and a 30-day waiting period, “issue an

order requiring such person to comply with the require-

ments or prohibitions of such plan or permit.” 42 U.S.C.

7413(a)(1). The Administrator may issue similar orders upon

a finding of a violation of certain sections of the Act as well.

42 U.S.C. 7413(a)(3). An administrative compliance order

(ACO) “shall state with reasonable specificity the nature of

the violation and specify a time for compliance which the

Administrator determines is reasonable.” 42 U.S.C.

7413(a)(4). Other provisions of the Act also authorize the

Administrator to issue orders. See, ¢.g., 42 U.S.C. 7413(a)(2)

and (a)(5), 7477, 7603.

2. The Tennessee Valley Authority (TVA) is a federal

agency with responsibility, inter alia, for providing electric

power within an area in the southeastern United States. 16

U.S.C. 831n-4(h). To accomplish that end, TVA owns and

operates 11 coal-fired electric power plants. Pet. App. 56a.

1 EPA recently promulgated new regulations regarding the scope of

the exclusion for “routine maintenance, repair and replacement.” 68 Fed.

Reg. 61,248 (Oct. 27, 2003). The new regulations have prospective

application only, and thus have no application to the merits of this case.

See id. at 61,273. The D.C. Circuit has stayed the new regulations pending

resolution of a petition for review challenging them. New York v. EPA,

No. 03-1380 (D.C. Cir. Dec. 24, 2003).

Le, ae eee

Between 1982 and 1996, TVA made a number of changes to

its generating units. Jd. at 12a.

EPA determined that those changes constituted “con- )

struction” for purposes of the pre-construction permitting |

requirement under 42 U.S.C. 7475(a) and violated state plans |

that require permits for construction of “modified” sources

under 42 U.S.C. 7502(c)(5). See 42 U.S.C. 7479(2)(C) (defin-

ing “construction” to include “modification” as defined in

Section 7411(a)(4)), 7501(4) (adopting definition in 7511(a)(4)

for “modified”). EPA also concluded that the changes did

not fit within the regulatory exemption for “[rJoutine main-

tenance, repair, and replacement” under 40 C.F.R.

52.21(b)(2)(iii(a). On November 3, 1999, EPA therefore

issued an administrative compliance order to TVA, pursuant

to Sections 113 and 167 of the Act, 42 U.S.C. 7413, 7477. The

order required TVA to comply with the Act by seeking

permits that would set emission limits reflecting the re-

quired level of pollution control with respect to modifications

that had been made at nine facilities. The order also

required TVA to provide information to EPA identifying

any other construction activities that constitute unpermitted

major modifications. Pet. App. 13a, 54a. EPA and TVA ne-

gotiated several amendments to the order, but TVA contin-

ued to dispute the findings of non-compliance. Jd. at 13a-14a,

54a-55a.

On May 4, 2000, EPA informed TVA that it would “recon-

sider” its order but expected compliance by TVA in the

meantime. Pet. App. 57a-58a. Ordinarily, EPA may choose

to bring an administrative penalty action or a judicial en-

forcement action if the recipient of an order refuses to com-

ply with it. See 42 U.S.C. 7413(d), 7413(b). Because the gov-

ernment views inter-agency litigation as non-justiciable,

however, no judicial enforcement action could be brought by

EPA. Neither the Act nor EPA’s regulations set forth a

particular procedure for a “reconsideration” of the adminis-

trative compliance order issued to TVA. The EPA Adminis-

trator referred the matter to the agency’s Environmental

Appeals Board (EAB) to handle the reconsideration. Pet.

App. 14a-16a, 57a-58a. The Board asked an administrative

law judge to supervise discovery and hold an evidentiary

hearing. Jd. at 16a-18a, 58a, 115a. After a period of

“voluntary, cooperative” discovery, a six-day hearing that

included presentation and cross-examination of multiple

witnesses by both sides was held, beginning on July 11, 2000.

Id. at 115a,117a-118a.

The results of the hearing were sent to the Board. The

Board rejected two motions by TVA to compel further dis-

covery, because the Board did “not see the additional discov-

ery * * * as ultimately leading to the addition of evidence

adding significant probative value to the substantial infor-

mation already in the record.” Pet. App. 123a-124a. The

Board received numerous post-hearing briefs regarding the

various issues in the case. On September 15, 2000, the Board

issued a 188-page “Final Order on Reconsideration,” which

partially upheld and partially rejected the administrative

compliance order. Jd. at 100a-327a.

3. Meanwhile, the Associate Attorney General, acting on

behalf of the Attorney General, had sent a letter to TVA on

May 4, 2000, referring to the EPA order and stating:

to the extent that TVA may have been planning litiga-

tion against EPA based on a mistaken assumption that

the Attorney General has tacitly authorized TVA to pur-

sue such litigation, this letter will serve to clarify that

there has been no such authorization and that TVA

should not bring this lawsuit. The Department of Justice

is prepared, in the event that TVA seeks judicial review

of EPA’s compliance order, to seek dismissal on the

ground that TVA lacks authority to prosecute such an

action, as well as on other appropriate grounds.

Pet. App. 331a.

4. Notwithstanding that letter, TVA filed petitions for

review in the court of appeals in May 2000, seeking review of

both the EPA order and EPA’s letter requiring compliance

during reconsideration. Pet. App. 14a. Several other enti-

ties who were not the subject of the order also filed petitions

for review of the order; they included respondents Alabama

Power Company, Duke Energy Corporation, and the Ten-

nessee Valley Public Power Association. Jd. at 53a-54a n.l.

In November 2000, after the final order of the Environ-

mental Appeals Board was issued, TVA and several other

entities filed additional petitions for review of the final

order. Jd. at 19a, 59a n.4.

5. The court of appeals consolidated all of the petitions

for review and issued an opinion addressing a series of

threshold issues on January 8, 2002. Pet. App. 51a-99a. The

court initially held that the challenges by TVA and the other

respondents to the original EPA order and the May 4 deci-

sion to reconsider that order were moot, as a result of the

Environmental Appeals Board’s issuance of its Final Order

on Reconsideration. Jd. at 60a-61a. The court went on to

hold, inter alia, that challenges to the EAB’s final decision

were justiciable. Jd. at 64a-89a.

The government had moved to dismiss TVA’s petition for

review, on the ground that the dispute between TVA and

EPA—two Executive Branch agencies whose leaders serve

at the President’s pleasure—did not present an Article III

case or controversy. The court recognized the “general prin-

ciple that no person may sue himself.” Pet. App. 65a (quot-

ing United States v. ICC, 337 U.S. 426, 430 (1949)). But the

court held that United States v. Nixon, 418 U.S. 683 (1974),

“appears to articulate a general analytical framework, di-

recting courts to inquire whether the controversy is one that

is typically justiciable, and whether the setting of the case is

one that demonstrates concrete adversity between the par-

ties.” Pet. App. 70a. Applying that analysis, the court con-

cluded that the case “is traditionally justiciable” because,

under the Clean Air Act, “{a] privately-owned power gener-

ating facility would * * * indisputably be entitled to peti-

tion for appellate review of a final order.” Jd. at 73a. The

court also concluded that “the setting of this dispute pre-

sents concrete adversity,” because “TVA possesses unique

independence as a federal agency” and “EPA and TVA ad-

vocate genuinely conflicting views.” Jd. at 73a, 74a. The

court concluded that “this particular controversy between

these executive branch agencies is justiciable” and that

Executive Order Nos. 12,146 and 12,088, which govern inter-

agency dispute resolution, “provide * * * no compelling

reason to decline to exercise our jurisdiction.” Jd. at 74a, —

89a.

The court also rejected the government’s argument “that

TVA lacks independent litigating authority to bring this ac-

tion over the opposition of the Attorney General.” Pet. App.

61a; see 28 U.S.C. 516, 519. The court noted that TVA had

repeatedly represented itself in court since its founding in

1933, and that two district courts and the Federal Circuit

had rejected previous claims by the government that TVA

lacked such authority. Pet. App. 6la-64a. The court held

that “the unique history of the TVA and its intended inde-

pendence compel the results reached in these cases.” Id. at

63a (footnote omitted).

Finally, the government had challenged the standing of

the non-TVA petitioners to challenge the order, which had

been issued only to TVA. The court held that the non-TVA

petitioners had standing to challenge the order issued to

TVA. Pet. App. 89a-98a.

6. After hearing oral argument on the merits, the court

issued an opinion sua sponte dismissing the petitions for re-

view, holding that EPA compliance orders under the Clean

Air Act are not final and therefore not subject to judicial re-

view. Pet. App. la- 50a. The court based that holding on its

conclusion that the statutory scheme under which the reci-

pient’s non-compliance with such orders is subject to civil

and criminal sanctions is unconstitutional. [n the court’s

view, that conclusion deprives the orders of their finality,

because it eliminates their status as actions “in which ‘rights

or obligations have been determined’ or from which ‘legal

consequences will flow.’” Jd. at 22a (quoting Bennett v.

Spear, 520 U.S. 154, 178 (1997)).

The court began its analysis by considering the Clean Air

Act’s scheme for issuance and enforcement of EPA orders.

The court noted that the Act provides that the Administra-

tor may “find” a violation of the Act and issue an order “on

the hasis of any information available to the Administrator.”

42 U.S.C. 7413(a)(1). In the court’s view, that means that the

“Administrator need only have a staff report, newspaper

clipping, anonymous phone tip, or anything else that would

constitute ‘any information.’” Pet. App. 7a. Once having

been issued, EPA orders “have the status of law,” because “a

violation of an [order] can itself serve as the hasis for the im-

position of extensive civil fines or imprisonment.” Id. at 3a,

8a; see id. at 37a.

The court held that the statutory scheme, as understood

above, “is repugnant to the Due Process Clause of the Fifth

Amendment.” Pet. App. 43a. In the court’s view, the

“scheme enacted by Congress deprives the regulated party

of a ‘reasonable opportunity to be heard and present evi-

dence’ on the two most crucial issues: (a) whether the con-

duct underlying the issuance of the [order] actually took

place and (b) whether the alleged conduct amounts to a

[Clean Air Act] violation.” Jd. at 43a-44a (footnote omitted);

see id. at lla (“The EPA is the ultimate arbiter of guilt or

innocence.”).

The court rejected the proposition that the constitutional

problem could be cured if EPA “voluntarily undert[ook] an

adjudication prior to the issuance of an [order],” as it had

done in this case in the proceeding before the Environmental

Appeals Board. Pet. App. 44a. In the court’s view, because

the Act plainly provides that EPA may issue an order on the

“basis of any information available to the Administrator,”

“(t]his is not an area in which the organic statute has set a

vague standard, and there is simply no room for administra-

tive discretion on this point.” Ibid. Moreover, the court

held, “a pre-ACO adjudication would only highlight another

constitutional problem with the [Clean Air Act]: the statu-

tory scheme unconstitutionally delegates judicial power to a

non-Article III tribunal.” Jbid. That is because, in the

court’s view, district courts in an EPA action enforcing a

Clean Air Act order are merely “forums for the EPA to con-

duct show-cause hearings” and courts of appeals in pre-en-

forcement review proceedings “review[] only whether the

ACO has been validly issued—i.e., whether the Administra-

tor based her decision to issue the ACO based upon ‘any in-

formation’ as opposed to no information at all.” Id. at 44a,

45a. The court concluded that, “[w]ithout meaningful judicial

review, the scheme works an unconstitutional delegation of

judicial power.” Id. at 45a.

Having determined that EPA orders have no legal conse-

quence, the court held that “ACOs lack finality because they

do not meet prong two of the Bennett test.” Pet. App. 45a.

For that reason, the court concluded, “courts of appeals lack

jurisdiction to review the validity of ACOs,” and it ordered

the petitions for review dismissed. bid.

Judge Barkett, joined by Judge Wilson, concurred spe-

cially. Although they were not critical of the Environmental

Appeals Board process, see Pet. App. 48a-49a & n.1, they

19

concluded that, because EPA can issue an order based on

“any information available” and because “penalties, either

civil or criminal, can be assessed based only upon a showing

that the terms of the order to comply were violated,” the

“scheme must be deemed violative of the due process protec-

tions of our Constitution.” Jd. at 48a. Judge Barkett also

agreed with the court’s opinion that EPA may not cure any

due process problem by providing a voluntary hearing, as it

did here. In her view, that “cannot be deemed sufficient be-

cause constitutional due process cannot be provided on an ad

hoc basis under the direction and control of the entity whose

decision is being challenged.” Jd. at 49a.

7. The government filed a petition for rehearing and re-

hearing en banc. The petition noted that no party in the case

had argued that the Clean Air Act scheme under which EPA

issues orders violates the Due Process Clause, and that due

process concerns are in any event misplaced in a proceeding

involving a federal agency, which is not a “person” for pur-

poses of the Due Process Clause. Pet. for Reh’g 11, 12. The

petition also argued that the court had erred in construing

the statutory scheme to bar courts from conducting a mean-

ingful review of EPA orders, especially in light of the settled

principle that statutes should be construed, if at all possible,

to avoid serious constitutional problems. Jd. at 12-13. The

court denied the petition. Pet. App. 328a-329a.

REASONS FOR GRANTING THE PETITION

The court of appeals rested its constitutional holding on

the erroneous premise that the Clean Air Act provides EPA

with virtually unreviewable authority to order regulated

parties to take action and to subject them to severe civil and

criminal penalties if they do not comply. That construction

of the Act, which does not accord with EPA’s own under-

standing and practice under the statutory scheme, which no

party in this case advanced, and which has never been

11

accepted by any other court, is mistaken on its own terms. It

also contravenes the cardinal principle that statutes should

be construed to avoid—not invite—constitutional problems.

The court of appeals’ statutory holding that courts are

precluded under the Act from genuine substantive review of

EPA orders conflicts with this Court’s recent decision in

Alaska Department of Environmental Conservation v. EPA

(Alaska DEC), No. 02-658 (Jan. 21, 2004), which in fact

conducted a careful review of the merits of an EPA order.

The court’s conclusion that all EPA orders under the Clean

Air Act lack finality conflicts with decisions of at least two

other courts of appeals, which have held that some orders

under the Act are final and subject to judicial review. The

court’s decision threatens EPA’s Clean Air Act enforcement

program in the States of the Eleventh Circuit. Further

review is warranted.

The court of appeals reached its constitutional holding

only after mistakenly resolving two threshold issues. First,

the court mistakenly resolved an important jurisdictional

question, when it ruled that disputes between two Executive

Branch agencies are justiciable so long as the dispute is one

that could occur between a private party and a government

agency and so long as the court can expect a vigorous adver-

sary presentation. Disputes between Executive Branch

agencies whose leaders serve at the President’s pleasure do

not present a “case or controversy” under Article III of the

Constitution. Second, the court of appeals mistakenly ruled

that TVA had independent litigating authority to file its

petition for review over the objection of the Attorney Gen-

eral, notwithstanding federal statutes that entrust the

authority to conduct government litigation to the Attorney

General or his delegates. The important purpose of that

statutory delegation of authority—to enable the United

States to speak with one voice in the courts—is defeated by

12

the court of appeals’ holding. Further review of these

threshold issues is warranted.

A. Constitutionality Of The Clean Air Act Enforce-

ment Scheme

The court of appeals’ judgment of dismissal was based en-

tirely on its conclusion that EPA orders under the Clean Air

Act “are legally inconsequential and do not constitute final

agency action.” Pet. App. 3a. The court accepted that the

text of the Act itself provides EPA orders with real and im-

portant legal consequences. See, e.g., ibid. (“(T]he [Clean Air

Act] empowers the EPA Administrator to issue ACOs that

have the status of law.”), 37a (“[SJeveral provisions of the

[Clean Air Act] undeniably authorize the imposition of se-

vere civil and criminal penalties based solely upon noncom-

pliance with an ACO.”). But the court held that “[t]he Clean

Air Act is unconstitutional to the extent that mere noncom-

pliance with the terms of an ACO can be the sole basis for

the imposition of severe civil and criminal penalties.” Jd. at

46a. Having held unconstitutional the provisions of the Act

that provide for sanctions for noncompliance, the court con-

cluded that EPA orders under the Act do not satisfy the test

for finality in Bennett v. Spear. See 520 U.S. at 178 (final

action “must be one by which rights or obligations have been

determined, or from which legal consequences will flow”)

(internal quotation marks omitted).

1. The court of appeals’ decision is based on a mistaken

construction of the Act. The court’s constitutional holding is

based on a mistaken construction of the Clean Air Act’s pro-

visions for issuance and review of EPA orders. The crucial

error was the court’s holding that EPA orders under the Act

are not subject to meaningful judicial review. In the court’s

view, because EPA may issue an order “on the basis of any

information available to the Administrator,” 42 U.S.C. 7418,

“(t]he only real inquiry” in a subsequent judicial proceeding

13

to enforce the order or to obtain pre-enforcement review (as

here) “is whether the Administrator possessed ‘any informa-

tion’—a standard that is less rigorous than the ‘probable

cause’ standard found in the criminal law setting.” Pet. App.

30a. In the judicial proceeding, “[w]hether the Administra-

tor’s facts are too thin to warrant an adjudicated finding that

[the Clean Air Act] has, in fact, been violated is irrelevant as

far as ACOs are concerned.” Jbid. In short, the court con-

cluded that “Congress established a scheme in which non-

compliance with an ACO * * * can lead to the imposition of

severe civil penalties and imprisonment—even if the EPA is

incapable of proving an act of illegal pollution in court.” Id.

at 39a.

There is no provision of the Clean Air Act that precludes

effective judicial review of EPA orders. The court of appeals

relied primarily on provisions stating that an order may is-

sue “{w]Jhenever, on the basis of any information available to

the Administrator, the Administrator finds that any person

has violated or is in violation of” a state implementation plan

or certain Clean Air Act provisions. 42 U.S.C. 7413(a)(1) and

(3). Those provisions require the Administrator to make a

“find[ing],” which is naturally read to require a determi-

nation that there has actually been a violation of the

specified provisions—not merely that the Administrator has

a hunch or suspicion that such a violation exists. The “any

information available” standard does not weaken that re-

quirement. Instead, it simply means that the Administrator

need not apply judicial rules of evidence or follow formal

hearing procedures in determining whether there has been a

violation of the Act that warrants issuance of an order.”

2 Cf. 18 U.S.C. 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted

of an offense which a court of the United States may receive and consider

14

There is no reason to read that provision, as the court of ap-

peals did, to require a court to “stop its analysis after finding

that the ‘any information’ standard has been met.” Pet. App.

45a n.41.

Nor does anything in the Clean Air Act’s penalty provi-

sions suggest that violation of an invalid order would be suf-

ficient to support civil penalties. The Act provides that EPA

may “commence a civil action * * * to assess and recover a

civil penalty * * * [wJhenever [a] person has violated, or is

in violation of, [a] requirement or prohibition” of various

Clean Air Act provisions, “including * * * a requirement or

prohibition of any * * * order * * * issued, or approved

under this chapter.” 42 U.S.C. 7413(b)(2). That authoriza-

tion of penalties for violation of an EPA “order” is most rea-

sonably read to refer only to violation of a valid order. See

Alaska DEC, slip op. 16 (“EPA’s orders effectively halted

construction of the MG-17 generator, for Cominco would risk

civil and criminal penalties if it defied a valid EPA direc-

tive.”) (emphasis added). Thus, in an action for civil penal-

ties for violation of an order, if the court determines that the

order is invalid because it is not the case that the subject of

the order “has violated, or is in violation of” designated pro-

visions of the Act, 42 U.S.C. 7413(a)(5), then no civil penal-

ties could be imposed.” The same is true of criminal penal-

ties. See 42 U.S.C. 7413(c).

In short, contrary to the court of appeals’ holding, the un-

derlying merits of an EPA order issued under the Clean Air

for the purpose of imposing an appropriate sentence.”); Sentencing

Guidelines § 1B1.4 (similar).

3 Another provision of the Act supports that conclusion by requiring

that, before assessing a civil penalty, a court must “take into consideration

* * * such * * * factors as justice may require.” 42 U.S.C. 7413(e)(1).

The invalidity of the underlying order would be a “factor” that “justice *

* * require[s]” a court to “take into consideration,” and it would preclude

imposing civil penalties.

AOE S CONTA sel 0

15

Act are always subject to judicial review—either on petition

for review or in a subsequent enforcement action—before

court-ordered sanctions may be imposed.’ That entirely

eliminates the constitutional problem that the court of ap-

peals perceived as a “patent violation of the Due Process

Clause.” Pet. App. 44a.”

That understanding of the statute also eliminates the

court of appeals’ concern that “the statutory scheme uncon-

stitutionally delegates judicial power to a non-Article III

tribunal” and “relegates Article III courts to insignificant

tribunals.” Pet. App. 44a. No person is subject to any civil

penalties without having had the opportunity to demon-

strate to a court that the order on which the penalties are-

based is invalid or that he has not in fact violated the order.

4 Cf. 42 U.S.C. 7607(b)(2) (“Action of the Administrator with respect

to which review could have been obtained under [42 U.S.C. 7607(b)(1),

prior to enforcement] shall not be subject to judicial review in civil or

criminal proceedings for enforcement.”).

5 The court of appeals’ due process holding is also wrong on two

additional grounds. First, the United States, as sovereign, is not a

“person” within the meaning of the Due Process Clause. Will v. Michigan

Dep't of State Police, 491 U.S. 58, 64 (1989) (“[I]n common usage, the term

‘person’ does not include the sovereign, and statutes employing the word

are ordinarily construed to exclude it.”) (citations and brackets omitted);

see also South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966)

(“person” does not include a State). The statutory scheme as applied to

the TVA, a federal agency, therefore could not have violated that Clause.

Second, because TVA received very extensive procedures and discovery

both before an administrative law judge and before the Environmental

Appeals Board, there would in any event have been no violation of the

Due Process Clause on the facts of this case. The court’s holding that the

EPA cannot “‘save’ the statute by voluntarily undertaking an

adjudication prior to the issuance of an ACO,” Pet. App. 44a, is mistaken.

See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.

Council, Inc., 435 U.S. 519, 543 (1978) (noting that agencies may “fashion

their own rules of procedure,” even when a statute does not specify what

process to use); see also Alaska DEC, slip op. 17.

16

That is sufficient to satisfy Article III. Commodity Futures

Trading Comm'n v. Schor, 478 U.S. 833, 853 (1986); Crowell

v. Benson, 285 U.S. 22, 55-60 (1932).

The court of appeals’ mistaken construction of the Clean

Air Act’s provisions for EPA orders was not briefed by the

parties or urged by any party to this case, and it contravenes

EPA’s own understanding of the Act. The court of appeals

should have proceeded more cautiously before proclaiming

portions of an Act of Congress unconstitutional. Indeed,

even if the court of appeals’ understanding of the Clean Air

Act were otherwise a reasonable one, the bedrock principle

that statutes should be construed to avoid substantial consti-

tutional problems would be sufficient to refute it. INS v. St.

Cyr, 533 U.S. 289, 299-300 (2001) (“[I]f an otherwise accept-

able construction of a statute would raise serious constitu-

tional problems, and where an alternative interpretation of

the statute is ‘fairly possible,’ we are obligated to construe

the statute to avoid such problems.”) (citation omitted). The

court of appeals erred in disregarding that principle.

2. The court of appeals’ decision conflicts with a decision

of this Court and decisions of two other courts of appeals

and is of substantial importance. The court of appeals’

construction of the Clean Air Act conflicts with this Court’s

decision in Alaska DEC, supra. The court of appeals’ pre-

mise in this case was that, in an EPA judicial enforcement

proceeding or a proceeding for pre-enforcement review,

“(t]he only real inquiry is whether the Administrator pos-

sessed ‘any information’—a standard that is less rigorous

than the ‘probable cause’ standard found in the criminal law

setting.” Pet. App. 30a. In Alaska DEC, however, one

question before this Court was whether an EPA Clean Air

Act order issued under 42 U.S.C. 7413(a)(5) and 7477 was

valid. Slip op. 30-36. Under the court of appeals’ construc-

tion of the Clean Air Act, answering that question would

have required only an inquiry into “whether the Admini-

17

strator possessed ‘any information’” suggesting that the Act

had been violated, Pet. App. 30a, and “any further inquiry *

* * would be unnecessary and unauthorized,” 7d. at 45a n.41.

This Court, however, clearly conducted a more searching

inquiry in Alaska DEC, “apply[ing] the familiar default

standard of the Administrative Procedure Act, 5 U.S.C. §

706(2)(A), and ask[ing] whether the Agency’s action was

‘arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’” Slip op. 31. Cf. zd. at 28 (“(I]n

either an EPA- initiated civil action or a challenge to an EPA

stop-construction order filed in state or federal court, the

production and persuasion burdens remain with EPA.”).

The court of appeals’ construction of the Clean Air Act is

inconsistent with this Court’s decision in Alaska DEC.

The decision in this case also conflicts with decisions of at

least two courts of appeals. The ultimate holding of the

court in this case was that “courts of appeals lack jurisdiction

to review the validity of ACOs.” Pet. App. 46a. As the court

itself recognized, id. at 40a, that conclusion conflicts with de-

cisions of the Ninth Circuit in Alaska Department of Envi-

ronmental Conservation v. EPA, 244 F.3d 748 (2001), aff’d,

No. 02-658 (Jan. 21, 2004), and the Sixth Circuit in Allsteel,

Inc. v. EPA, 25 F.3d 312, 314-315 (1994), holding that the

EPA Clean Air Act orders in those cases were final and sub-

ject to review. In Allsteel, for example, the court concluded

that the EPA order before it was final because “if the [EPA]

order was valid,” its “impact * * * is practical, immediate,

and significant.” 25 F.3d at 315. Accord, Alaska Dep’t of

Envtl. Conservation, 244 F.3d at 750 (concluding that “ ‘legal

consequences will flow,’ if Cominco chooses to disregard the

[EPA] Order and go forward with construction”). That

conclusion is inconsistent with the court of appeals’ holding

18

in this case that EPA orders “are legally inconsequential and

do not constitute final agency action.” Pet. App. 3a.

The court of appeals’ decision that TVA “is free to ignore

the ACO” because it is “inconsequential,” Pet. App. 3a, could

significantly hamper EPA’s enforcement program under the

Clean Air Act and other statutes as well.’ Administrative

orders are a significant component of EPA’s efforts to pro-

tect human health and the environment, especially where

quick action is required. EPA issues more than a thousand

such orders each year under the various environmental stat-'

utes. Were there no threat of any penalty for noncompi:-

ance, recipients of the orders would be free to violate them

with impunity. That wouid be a substantial impediment to

EPA’s enforcement efforts. Further review of the court of

appeals’ constitutional holding is therefore warranted.

B. No Case Or Controversy Between TVA And EPA

As a threshold matter, the court of appeals should have |

held that TVA’s petition for review was non-justiciable be-

cause the petition presented only a dispute between two Ex-

6 As the court of appeals acknowledged (Pet. App. 40a-43a), its |

reasoning also conflicts with the reasoning of several other decisions |

holding that EPA orders in certain contexts were non-final, but adopting a

different construction of the Clean Air Act than that adopted by the

Eleventh Circuit in this case. See Solar Turbines, Inc. v. Seif, 879 F.2d

1073 (3d Cir. 1989); Asbestec Constr. Servs. v. EPA, 849 F.2d 765 (2d Cir.

1988); Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885, 891 (8th Cir. 1977);

see also Southern Pines Assocs. v. United States, 912 F.2d 713 (4th Cir.

1990) (Clean Water Act).

7 The court of appeals noted the similarity between the Clean Air Act

enforcement scheme and aspects of the Clean Water Act scheme. See Pet.

App. 37a n.32. Although the various statutory schemes differ in a variety

of ways, the enforcement schemes under a number of other environmental

statutes also provide for penalties for noncompliance with EPA orders.

See, e.g., 42 U.S.C. 300g-3(b) (Safe Drinking Water Act); 42 U.S.C. 6928

(RCRA); 42 U.S.C. 9606 (CERCLA).

19

ecutive Branch agencies whose heads serve at the pleasure

of the President. There is a “long-recognized general princi-

ple that no person may sue himself” because courts “do not

engage in the academic pastime of rendering judgments in

favor of persons against themselves.” United States v. ICC,

337 U.S. 426, 430 (1949). Because an Article III court cannot

render advisory opinions, Chicago & Southern Air Lines,

Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948),

Article III courts may not adjudicate disputes arising be-

tween commonly controlled entities.

For example, in South Spring Hill Gold Mining Co. v.

Amador Medean Gold Mining Co., 145 U.S. 300 (1892), two

formerly adverse parties “had come into the hands of the

same persons” after the court of appeals reached its decision.

Id. at 301. This Court declined to issue a ruling, because “the

litigation ha[d] ceased to be between adverse parties, and

the case therefore falls within the rule applied where the

controversy is not a real one.” Jbid. It is particularly impor-

tant to “confine[] the federal courts to the role assigned them

by Article III” when, as in this case, “the federal judicial

power is invoked to pass upon the validity of actions by the

Legislative and Executive Branches of the Government.”

Flast v. Cohen, 392 U.S. 83, 96 (1968).

1. There is no case or controversy between TVA and

EPA. This case fits comfortably within the general rule that

a dispute between two government agencies whose heads

serve at the pleasure of the President does not result in a

justiciable “case or controversy.” Indeed, the court of ap-

peals accepted that “both EPA’s Administrator and TVA’s

board serve at the pleasure of the President.” Pet. App. 85a.

EPA is a government agency, whose Administrator serves

an indefinite term by appointment of the President with the

advice and consent of the Senate. See Reorg. Plan No. 3 of

1970, § 1(b), 5 U.S.C. App. at 184. TVA, a government

corporation, is headed by a three-person board whose

rs

members serve fixed, nine-year terms by appointment of the

President with the advice and consent of the Senate. 16

U.S.C. 831a(a) and (b). As this Court has explained, “{iJn the

absence of specific provision to the contrary, the power of

removal from office is incident to the power of appointment.”

Keim v. United States, 177 U.S. 290, 293 (1900). Because

there is no such “specific provision to the contrary” in TVA’s

charter, the members of TVA’s Board accordingly may be

removed by the President at will. See Morgan v. TVA, 115

F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941).

Regardless of how an Article III court rules in a contro-

versy between two agencies of the Executive Branch whose

heads serve at the pleasure of the President, the President

could require the agency that won in court to follow the

course urged by the losing agency. The possibility of such an

outcome renders the court’s opinion advisory. Because that

possibility exists in this case, there is no case or controversy

between TVA and EPA.

2. The court of appeals’ relaxed standard is not sup-

ported by this Court’s cases. The court of appeals relied

primarily on United States v. Nixon, 418 U.S. 683 (1974), to

adopt a far looser, two-part test for determining whether a

case or controversy exists in a dispute between two Execu-

tive Branch agencies. In the court’s view, such a dispute

represents a justiciable case or controversy-so long as the

case is “traditionally justiciable,” which the court construed

to mean only that a similar dispute could arise when one of

the parties is a private entity. See Pet. App. 73a (finding

that the “traditionally justiciable” standard is satisfied here

because “[a] privately-owned power generating facility

would thus indisputably be entitled to petition for appellate

review of a final order”). The court also held that a dispute

between Executive Branch agencies requires “concrete

adversity,” which the court found to be satisfied because in

its view “TVA possesses unique independence as a federal

21

agency” and “EPA and TVA advocate genuinely conflicting

views.” Id. at 73a, 74a.

The court of appeals erred in concluding that disputes be-

tween Executive Branch agencies are justiciable so long as

its two, easily-satisfied conditions are met. Aside from

Nixon, each of the cases on which the court of appeals relied

involved one of two scenarios not present here.

In one class of inter-agency cases, one party to the dispute

was an agency exercising quasi-legislative or quasi-judicial

functions whose leaders are statutorily protected against

removal by the President.® In those cases, the for-cause re-

moval provisions effect a reduction in presidential control

that is typically substantial and that can in some circum-

stances be constitutionally decisive. Cf. Bowshar v. Synar,

478 U.S. 714 (1986). Those cases do not support the court of

appeals’ conclusion that there is a case or controversy here,

because TVA’s board members do serve at the pleasure of

the President.

In the other class of cases, one agency to the dispute is in

fact aligned with a private party who is the real party in in-

terest. In those cases, the real dispute arises between the

government and the private party, as the Court explained in

United States v. ICC, 337 U.S. 426 (1949).? The “basic ques-

tion” in that case was “whether railroads have illegally ex-

acted sums of money from the United States,” id. at 430, and

8 See, e.g. NASA v. FLRA, 527 U.S. 229 (1999); Escondido Mut.

Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984);

Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 483 n.2 (1958);

United States v. ICC, 352 U.S. 158 (1956); Udall v. Federal Power

Comm’n, 387 U.S. 428 (1967). The Court did not address the case-or-con-

troversy issue in any of those cases.

9 See, e.g., United States v. Marine Bancorporation, 418 U.S. 602, 614

(1974) (intervention of Comptroller of Currency in support of private

party); United States v. First City Nat’l Bank, 386 U.S. 361, 363 (1967)

(same).

22

the suit against the ICC—in which the railroads themselves

intervened as parties—was the statutory means to collect

the overcharges. As the Court explained, “(t]his suit there-

fore is a step in proceedings to settle who is legally entitled

to sums of money, the Government or the railroads,” and it

“present[s] a justiciable controversy.” Id. at 431. In this

case, however, the real party in interest is TVA, which is the

only party required to do anything by the EPA order and

which is seeking to avoid having to obtain permits for vari-

ous changes it made to its own generating facilities. Accord-

ingly, the rationale underlying cases such as United States v.

ICC, supra, is not present here.

The only remaining authority for the justiciability of a

dispute between two Executive Branch agencies is United

States v. Nixon, supra, upon which the court of appeals

placed its principal reliance. In Nixon, however, a regu-

lation conferred substantial protection from removal on the

‘special prosecutor representing the United States, thus

making the case to some extent analogous to those in which

an agency within the Executive Branch is involved in a

controversy with an independent agency whose leaders have

protection from removal. 418 U.S. at 695-696. In addition,

the Court in Nixon emphasized the personal, as well as

institutional, interest of the President in the pending

criminal proceeding. See id. at 687, 697. The “uniqueness of

the setting in which the conflict ar[ose]” in Nixon, id. at 697,

makes that case an unlikely source for the court of appeals’

broad rule recognizing intra-Executive Branch disputes as

presenting “cases or controversies” under Article III.

3. The court of appeals’ resolution of this issue is impor-

tant. Further review of the court of appeals’ case-or-con-

troversy ruling is warranted. The court of appeals departed

from existing precedent by adopting a broad rule of justicia-

bility that potentially renders intra-Branch controversies

amenable to judicial resolution in a wide variety of circum-

VX ee

23

stances.’ That rule threatens fundamental separation-of-

powers principles embodied in the Constitution. Because the

issue goes to the jurisdiction of the courts to resolve this dis-

pute, it will in any event be before the Court if review is

granted of the court of appeals’ ruling that the Clean Air

Act’s scheme for penalizing violators of EPA orders is un-

constitutional. The Court therefore should grant review of

this issue.

C. TVA’s Lack Of Independent Litigating Authority

The court of appeals also erred in holding that TVA was

authorized to initiate this judicial review proceeding, be-

cause TVA lacks authority to litigate disputes over the ob-

jection of the Attorney General or his delegate. The Attor-

ney General’s authority over the government’s litigation,

which was first recognized in the act creating the Depart-

ment of Justice, Act of June 22, 1870, ch. 150, § 1, 16 Stat.

162, is now primarily codified in two provisions of the United

States Code. They provide that, “[e]xcept as otherwise

authorized by law,” “the conduct of litigation in which the

United States, an agency, or officer thereof is a party

* * * is reserved to officers of the Department of Justice,

under the direction of the Attorney General,” 28 U.S.C. 516,

and the “Attorney General shall supervise all litigation to

which the United States, an agency, or officer thereof is a

party,” 28 U.S.C. 519. Under those provisions, TVA had no

10 Four trial-level courts have addressed the justiciability of disputes

between TVA and other Executive Branch agencies whose leaders serve

at the pleasure of the President, with conflicting results. Compare United

States ex rel. TVA v. Easement and Right of Way, 204 F. Supp. 837 (E.D.

Tenn. 1962) (finding no justiciable case or controversy), with TVA v.

United States, 51 Fed. Cl. 284, 287 (2001) (finding justiciable case or

controversy present); TVA v. United States, 13 Cl. Ct. 692, 700-702 (1987)

(same); Dean v. Herrington, 668 F. Supp. 646, 652-653 (E. D. Tenn. 1987)

(same).

24

authority to file a petition for review in this case, and the

court of appeals should have dismissed it on that ground.

Courts have recognized the advantages that Congress

sought to realize by establishing the statutory presumption

of control by the Attorney General, most notably “the cen-

tering of responsibility for the conduct of public litigation,”

including the “initiation” as well as the “subsequent conduct”

of litigation. Sutherland v. International Ins. Co., 43 F.2d

969, 970, 971 (2d Cir.) (L. Hand, J.), cert. denied, 282 U.S. 890

(1930). Indeed, the rationale for the Attorney General’s

authority, as this Court has recognized, is that “[t]here must

* * * be an officer or officers of the government to deter-

mine when the United States shall sue, to decide for what it

shall sue, and to be responsible that such suits shall be

brought in appropriate cases.” United States v. San Jacinto

Tin Co., 125 U.S. 273, 279 (1888); see United States v. Wal-

cott, 972 F.2d 323, 326 (11th Cir. 1992). Correspondingly,

when, as in this case, the Attorney General’s delegate has

specifically informed a federal agency that it “should not

bring this lawsuit” and that the Attorney General has not

“tacitly authorized TVA to pursue such litigation,” Pet. App.

331a, the agency has no authority to bring the suit, and it

should be dismissed.

1. Absent a clear statement, the conduct of government

litigation is entrusted to the Attorney General. Sections 516

and 519 do provide that where “otherwise authorized by

law,” a federal entity may initiate litigation outside the con-

trol of the Attorney General. In light of the important pur-

poses served by centralizing federal litigation, however, a

court would “have to be well satisfied that Congress had in-

tended to make an exception to the policy so indicated” be-

fore finding that Congress has authorized federal agency

litigation independent of the Attorney General. Sutherland,

ee pT ee

25

43 F.2d at 971."" For example, in Federal Election Comm’n

v. NRA Political Victory Fund, 513 U.S. 88, 92 (1994), this

Court recognized that the Federal Elections Commission

had independent litigating authority in the lower federal

courts. Citing the FEC’s organic statute, which gave the

agency the power “to initiate * * *,defend * * * or appeal

any civil action * * *, through its general counsel,” 2 U.S.C.

437d(a)(6), the Court stated that the FEC’s initiation and

appeal of an action on its own thus “fall within th[e] ‘other-

wise authorized by law’ exception” to Sections 516 and 519.

513 U.S. at 92 n.1.

2. No such clear statement is present here. There is

nothing in the statutes governing TVA that similarly consti-

tutes a congressional authorization for independent litiga-

tion, especially under the applicable clear statement stan-

dard. The court of appeals relied on TVA’s practice of rep-

resenting itself in court to find the necessary congressional

authorization of independent litigating authority. Pet. App.

6la.. Even if TVA’s practice of representing itself in court

could establish a form of implicit delegation of authority by

the Attorney General, however, it could not establish that

TVA may, as here, initiate litigation when expressly in-

structed not to do so. Cf. Federal Election Comm’n, 513

U.S. at 97 (rejecting argument that, because FEC had “rep-

resented itself before this Court on several occasions,” it had

independent litigating authority in this Court when the

question cf the existence of that authority arose). As this

Court explained in United States v. Morton Salt Co., 338

11 See ICC v. Southern Ry., 543 F.2d 534, 536 (5th Cir. 1976) (“The

alternative would allow a proliferation of policies among and within the

various agencies.”); United States v. Alky Enter., Inc., 969 F.2d 1309, 1314

(1st Cir.1992); Marshall v. Gibson’s Prods., Inc., 584 F.2d 668, 676 n.11

(5th Cir. 1978); FTC v. Guignon, 390 F.2d 323, 324-325 (8th Cir. 1968); see

also The Attorney General’s Role as Chief Litigator for the United States,

6 Op. Off. Legal Counsel 47, 56 (1982).

cei

26

U.S. 632, 647 (1950), “[t]he fact that powers long have been

unexercised well may call for close scrutiny as to whether

they exist; but if granted, they are not lost by being allowed

to lie dormant, any more than nonexistent powers can be

prescripted by an unchallenged exercise.”

Nor do the committee reports or the appropriations

measure cited by the court of appeals, Pet. App. 62a, 64a,

support the court’s conclusion. Scattered observations in

committee reports examining other issues could not

“authorize[] by law” an agency to conduct litigation inde-

pendent of the Department of Justice. The appropriations

measure to which the court of appeals referred prohibited

the Attorney General from using appropriated funds “to

represent the [TVA] in litigation” unless requested to do so.

Pub. L. No. 98-181, § 1300, 97 Stat. 1292. That measure,

which as an appropriations rider should not be understood

implicitly to have repealed the Attorney General’s generally

applicable authority under Sections 516 and 519, see Robert- '

son v. Seattle Audubon Soc’y, 503 U.S. 429, 440 (1992); TVA

v. Hill, 437 U.S. 153, 190 (1978), has no bearing on the issue

in this case in any event, because the Attorney General has

not in this case sought to expend any federal funds “to rep-

resent the [TVA] in litigation.”

The court of appeals also relied on three cases in which a

challenge to TVA’s independent litigating authority had

been raised and rejected. Cooper v. TVA, 723 F.2d 1560

(Fed. Cir. 1983); Dean v. Herrington, 668 F. Supp. 646, 653

(E.D. Tenn. 1987); Algernon Blair Indus. Contractors, Inc.

v. TVA, 540 F. Supp. 551 (M.D. Ala. 1982). In addition to the

arguments discussed above, those courts relied variously on

language in the Federal Courts Improvement Act of 1982,

Pub. L. No. 97-164, § 169, 96 Stat. 51, and the Customs

Courts Act of 1980, Pub. L. No. 96-417, § 705, 94 Stat. 1748,

each of which involved the renaming of certain specialized

federal courts and provided that “[nJothing in this Act

27

affects” TVA’s authority to “represent itself by attorneys of

its choosing.” Although those provisions leave undisturbed

any independent litigating authority TVA may have had,

they do not grant TVA any new authority, and they

certainly do not address the specific question whether TV A’s

authority may continue unhindered over the objection of the

Attorney General. Those courts also relied on several pro-

visions in TVA’s organic statute, including one authorizing

TVA to “sue and be sued.” 16 U.S.C. 831c(b). That common

provision, however, merely designates TVA as a distinct

jural entity and waives its immunity to suit. See, e.g., FDIC

v. Meyer, 510 U.S. 471, 480-483 (1994); United States v.

Smith, 499 U.S. 160, 168-169 (1991). It does not change the

application of Sections 516 and 519 or give TVA independent

litigating authority.”

D. Standing Of The Non-TVA Parties

The court of appeals also resolved another issue of poten-

tial importance, when it held that the non-TVA petitioners

had standing to file their petitions for review of the EPA’s

order, even though that order was not directed to them and

imposed no obligation on them. See Pet. App. 89a-98a. The

government disagrees with the court of appeals’ resolution

of that issue, which is inconsistent with the decisions of other

12 TVA’s Board has authority to “appoint such managers, assistant

managers, officers, employees, attorneys, and agents as are necessary for

the transaction of its business, fix their compensation, define their duties,

and provide a system of organization to fix responsibility and promote

efficiency.” 16 U.S.C. 831b (emphasis added). That provision grants the

Board the authority to appoint attorneys, but such attorneys may serve in

a number of capacities—rendering advice, negotiating with other entities,

appearing in court when the Attorney General authorizes such

appearance—that do not involve representing TVA in litigation over the

objection of the Attorney General. The provision accordingly does not

embody a congressional intent—much less a clear statement—that TVA

has independent litigating authority.

28

courts. Compare Sierra Club v. EPA, 292 F.3d 895, 899-900

(D.C. Cir. 2002) (holding that in petition for review in court

of appeals, petitioner’s burden is “the same as that of a plain-

tiff moving for summary judgment in the district court” and

requires petitioner to “show a ‘substantial probability’ that it

has been injured, that the defendant caused its injury, and

that the court could redress that injury”), with Pet. App. 98a

(requiring only that non-TVA petitioners have “adequately

alleged injury”). The standing issue as framed below pre-

sents factual and legal complexities, however, and could

prove difficult of resolution in this case.

Moreover, resolution of that issue is unlikely to affect the

disposition of this case. If the Court determines that, as ar-

gued above, the dispute between TVA and EPA presents no

Article III case or controversy, then this entire case should

be dismissed, because EPA would have no ability to obtain

judicial enforcement of its order directed to TVA. Without

the possibility of judicial enforcement (or judicial imposition

of sanctions for noncompliance), EPA’s order to TVA would

not constitute the government’s “ultimate statement,” nor

would it be an action “by which rights or obligations have

been determined” or from which “legal consequences will

flow” under Bennett v. Spear, 520 U.S. 154, 178 (1997) (quo-

tation marks omitted). The EPA order would therefore not

be a final order subject to judicial review at the behest of the

other, non-TVA parties to this case, and dismissal of the pe-

titions for review would be required (together with vacatur

13 See Exec. Order No. 12,146, Management of Federal Legal

Resources, 44 Fed. Reg. 42,657, 42,658 (1979) (directing submission of

interagency legal disputes to the Attorney General); Exec. Order No.

12,088, Federal Compliance with Pollution Control Standards, 43 Fed.

Reg. 47,707 (1978) (requiring disputes concerning pollution control at

federal facilities to be reviewed by EPA Administrator and then, if

necessary, referred to the Director of the Office of Management and

Budget).

29

of the court of appeals’ unwarranted constitutional rulings).

On the other hand, if the Court determines that TVA’s peti-

tion is justiciable and that TVA had_the authority to file its

petition for review, then the Court could proceed to review

the court of appeals’ constitutional ruling that resulted in its

order dismissing TVA’s petition. In either event, the stand-

ing of the non-TVA petitioners would not affect the dis-

position of the case. Accordingly, the government has not

petitioned for review of the court of appeals’ decision that

the non-TVA petitioners have standing.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

THOMAS G. HUNGAR

LISA JAEGER

ty Solicitor G l

Acting General Counsel sing coercion

JAMES A. FELDMAN

MONICA DERBES GIBSON Assistant to the Solicitor

Office of General Counsel General

CAROL S. HOLMES

J. STEVEN ROGERS

EDWARD J. MESSINA

Office of Enforcement and

Compliance Assurance

Environmental Protection

Agency

DAVID 8S. GUALTIERI

Attorneys

FEBRUARY 2004

14 The standing of the non-TVA parties would be relevant to the

resolution of this case only if the Court were to determine that this case

presents a case or controversy under Article III but that TVA has no

independent litigating authority. In that event, a remand to the court of

appeals to determine whether the non-TVA parties have standing even in

the absence of TVA might be appropriate.