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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 1030

## Text

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1092%3A1. Public record. Not legal advice.