# Opposition Brief — Peat v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1594%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2002 - **Citation:** 536 U.S. 939 ## Text ne Supeeme Count, US. FILED on” — No. 01-1384 MAY 22 ne —} In the Supreme Court of the AMES tes MICHIGAN PEAT, PETITIONER tL. ENVIRONMENTAL PROTECTION AGENCY, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION THEODORE B. OLSON Solicitor General Counsel of Record THOMAS L. SANSONETTI Assistant Attorney General DAVID C. SHILTON JOSHUA M. LEVIN ANDREW J. DOYLE ELIZABETH ANN PETERSON Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 preemie: QUESTION PRESENTED Whether Section 404 of the Clean Water Act, 33 U.S.C. 1344, and regulations promulgated thereunder, direct the transfer of permitting authority to the United States Army Corps of Engineers when an authorized State fails to issue a permit that satisfies objections timely communicated to the State by the Environmental Protection Agency. (I) TABLE OF CONTENTS Page I lh ciate anes deindipn cava ieageaieicbathawieaenane 1 I it ichensdsestinidiansiiaonsiaimnsiitbeshiiasasinanndeisnen NOP T oe oN 1 ITE cee lisaciichieneniinlleinacnalaidehclaqacbonindadinndennsesioebiless 2 ITI sk AI (al lik Gaia Inaba san oseidiondbencaibmambisansnmsidiscossiiesansininiion 12 eek iicdeldedac ciel cesseainiitipedsiasscsbadbesbscsdalepsjunsieobbniiedcadalian 18 TABLE OF AUTHORITIES Cases: Friends of Crystal River v. United States EPA, ee Ie UN Es BIPOPOD seni znstninnoninssnonssbnsvecsscininicnunisdasin 4 Michigan Peat v. Regional Adm’r of Region V of the United States EPA, 7 F. Supp. 2d 896 (E.D. Mich. SETS SC OTL Ra ER 9 Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206 SUIT saihrshhciniinotehealininininnsionntecentnaninensinnessastensansernsstatersoneiahionass 14 United States v. Bay-Houston Towing Co., Inc., No. 98-73252, 2002 WL 537630 (E.D. Mich. Mar. 13, I utscsecensicasconiiiiyhaphatiassaniiaceinesnniinieundenncasinndsiTiandnnahsansananiaanits 17 United States ex rel. Accardi v. Shaughnessy, i essential odiahasannashiniineton 14 Statutes and regulations: Federal Water Pollution Control Act Amendments of " 1972, Pub. L. No. 92-500, 86 Stat. 816, as amended, Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 ST Scat lascicati lait icdernenecaiiapoetaneidbhaciiciinennsabudiiaenieaeiaivensina 2 Ie aR I cdc niplancdeeninanciumianincirseat 2 BS EERSTE SN oe aR 2 isa aealacanadiinline 2 Be Ry BO I a sisisicssssesncsncsccssncse 2,4, 5, 7, 8, 9, 15 Be ets BEE 0 GID ecesesteeresesenininsnesoncisnsneisncnensents 2 2 REET CC EO OD 3 33 U.S.C. 1344(g)(1) ....sessesseessesees TIC ERAN ACE Se et 3 Bee a: MIUIIIED sectnncstcstisssnisinsincieraseennnnenpiomnnensiats 3 (IIT) IV Statutes and regulations—Continued: Page _ BE TIE, BID) srsissseicsitcvenssnicstiioanssassisnstnasnrannainnes 3,4, 13, 15 33 U.S.C. 1362(6) (Supp. V 1999) ..............s0cscscssesssssseees 2 ee A So a acaiesacendeiiaaaaipnniads 2 I a iia eniniamaetelia 2 40 C.F.R.: a I sicicdoccaranscienihicscisisinniadicinnassheeaneiinapiateinitaaions 3 Ne Ta I gaiciccsiciesannnccstiidiansatsautinsseberueninannaaimubisinasn 4 +, ERR ene ea EE Aa NN Re CMRP 4 I a ai cicnsisicinsessasdalclatenscnas taielpinasindasitiaacians 4 I ID: sesiscinsseisitcssninnntisntiniieanaeniaetiniianessinntaiiioons 4,15,17 CR a eR NER OP RAR Ee Seno 3 SE MITE dairisiiacccbicslacectabacunsiaicibbasdiinamsbaaaeiseeaabaesianiimuapine 4,5 Ls , eae SPR en Re Sao NED TCE ne PN AND i 4 Miscellaneous: Ge Feel, aha GL FT ND sentence rissntnssrinsanieciacesaniconninaliotiniiiaii 5 Jn the Supreme Court of the Gnited States No. 01-1384 MICHIGAN PEAT, PETITIONER VU. ENVIRONMENTAL PROTECTION AGENCY, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-2a) is unreported. The opinions of the district court (Pet. App. 3a-9a, 10a-19a) are unreported. A prior opinion of the court of appeals in this case (Pet. App. 20a-32a) is reported at 175 F.3d 422. A prior opinion of the district court is reported at 7 F. Supp. 2d 896. JURISDICTION The judgment of the court of appeals was entered on September 18, 2001. A petition for rehearing was denied on November 16, 2001 (Pet. App. 33a-34a). On February 5, 2002, Justice Stevens extended the time within which to file a petition for certiorari to and including March 18, 2002 (Pet. App. 35a), and the (1) 2 petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, as amended, Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251 et seg.) (Clean Water Act or CWA), “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a). The Act prohibits the discharge of any pollutant from a point source into “navigable waters” except in accordance with the Act. 33 U.S.C. 131i - = —_ —-— Petitioner thereafter amended its complaint in the Suit against the federal defendants to add DEQ, its director, and the State of Michigan as defendants, and to assert additional claims. The district court dismissed the claims against the state defendants based on Elev- enth Amendment immunity, and it dismissed the claims against the federal defendants for lack of subject- matter jurisdiction. Michigan Peat v. Regional Adm’r of Region V of the United States EPA, 7 F. Supp. 2d 896 (E.D. Mich. 1998); see Pet. App. 28a-29a. The court of appeals affirmed the judgment of the district court with respect to the claims against the state defendants, but reversed the district court’s dismissal of peti- tioner’s claims against the federal defendants. /d. at 20a-32a. The court found that EPA’s conditional with- drawal of objections to the proposed 1995 permit con- stituted “final agency action” subject to review in fed- eral court. Jd. at 29a-30a. The court remanded the case to the district court for further proceedings. Jd. at 32a. 5. On remand, the district court ruled in favor of the federal defendants (respondents in this Court). In an opinion dated January 24, 2000, the court entered par- tial summary judgment for the respondents. Pet. App. 10a-19a. The court rejected petitioner’s contention that the Corps had acted improperly by assuming regula- tory authority over petitioner’s CWA Section 404 appli- cation after the DEQ had granted a “state-only” permit. Id. at 16a-17a. The court observed that “under § 404(j) of the CWA [33 U.S.C. 1344(j)] the authority to issue § 404 permits is transferred from a state back to the Corps as a matter of law wherever a state has failed within the time prescribed by law to amend its proposed permit to conform to objections raised by the EPA.” Jd. at 16a. The court then explained: 10 While it is true that the State here did satisfy the EPA’s objections during the 90 day period as to the March 1995 permit, and only later issued the state- only permit which failed to conform to the EPA’s objections, there is no compelling reason to bar the transfer of authority beyond this 90 day period. The state-only permit constituted a second permit decision. Ibid. The district court stated that petitioner “had the right to administratively appeal MDEQ’s decision” to impose conditions in the March 1995 proposed permit, “and MDEQ had the authority to issue a state-only permit.” Jd. at 17a. The court observed, however, that “(njone of this changes the provision under 40 C.F.R. § 233.[5]0 that if the state does not satisfy the EPA’s objections or deny the permit, authority to process the § 404 permit is transferred to the Corps.” Jbid. The court reserved for further proceedings the question whether the EPA’s withdrawal of objections to the March 1995 proposed permit conferred upon petitioner an entitlement to harvest the 749 acres that had first been disturbed before the passage of the state wetlands protection law. /d. at 12a-15a, 19a; see pp. 6-7, supra. Approximately one year later, the district court de- cided the question, reserved in its January 2000 opin- ion, concerning the status of the 749 acres. Pet. App. 3a-9a. The court rejected petitioner’s contention that the court of appeals’ decision on the earlier appeal had established that those acres were not subject to federal regulation. The court explained that the prior Sixth Circuit decision “simply said that the sign-off by the [EPA] on the draft permit was final agency action and that this Court had subject matter jurisdiction. The 1] Court.of Appeals did not comment on the merits of the complaint.” Jd. at 4a. The court further observed: EPA’s final agency action was merely to agree to the text of the draft permit. The draft permit, however, was subject to limitations and conditions. If any limitation or condition of the draft permit was changed, there was no longer agreement on the part of EPA. [Petitioner’s] refusal to sign the draft per- mit effectively meant that there was no permit. [Petitioner’s] administrative appeal under [state law] is an effort to change the limitations and condi- tions of the draft permit. If [petitioner] is successful in the administrative appeal, the end result will be a recommendation to the director of [the DEQ]. If the director accepts any changes recommended through the administrative proceeding, the permit which issued will contain different limitations and condi- tions than those to which EPA consented. Effec- tively, [petitioner] will not have a valid permit be- cause EPA did not * * * approve it. The refusal to sign the draft permit vitiated the EPA’s consent. Id. at 4a-5a. The district court concluded that “{t]here is nothing in the Clean Water Act, 33 U.S.C. § 1251, et seq., or in the delegation to the state under section 404(a), 40 C.F.R. § 233.70, to exempt from regulation the 749 acres.” Id. at 6a. 6. The court of appeals affirmed. Pet. App. la-2a. Petitioner did not challenge the district court’s ruling that authority to issue a CWA permit was legally transferred to the Corps of Engineers when the State elected to include, in the “state-only” permit, provisions that were inconsistent with EPA’s previously stated objections. Petitioner instead contended that the dis- 12 trict court’s decision on remand was inconsistent with the court of appeals’ earlier ruling, which petitioner characterized as a binding determination that the 749 acres were exempt from regulation under the Clean Water Act. See Pet. C.A. Br. 22-28; Pet. App. 2a. The court of appeals stated: “We have reviewed the rea- soning of the district court and now AFFIRM.” /bid. ARGUMENT Petitioner contends (Pet. 14) that “the Sixth Circuit’s decision conflicts with decades of this Court’s precedent holding that government agencies must strictly follow their procedural rules.” That argument is without merit. Nothing in the court of appeals’ decision sug- gests that the court viewed the Corps or EPA as hav- ing breached any pertinent federal regulation, or that the court would have condoned such a breach. Indeed, petitioner did not argue in the court of appeals that any violation of agency rules had occurred. The petition for certiorari should therefore be denied. 1. The court of appeals simply stated: “We have reviewed the reasoning of the district court and now AFFIRM.” Pet. App. 2a. In arguing that the court of appeals condoned an EPA violation of the agency’s own rules, petitioner relies primarily (see Pet. 19, 22) on the district court’s statement that “there is no compelling reason to bar the transfer of authority [from state to federal officials] beyond this 90 day period.” Pet. App. l6a. Petitioner characterizes that statement as an indication that “the courts below saw ‘no compelling reason’ for EPA to follow its controlling regulations.” Pet. 22. Careful examination of the relevant passage, however, makes clear that petitioner has misread the district court’s opinion. 13 In holding that the Corps had properly assumed regulatory authority over petitioner’s CWA Section 404 application after the DEQ granted a superseding “state-only” permit, the district court explained: While it is true that the State here did satisfy the EPA’s objections during the 90 day period as to the March 1995 permit, and only later issued the state- only permit which failed to conform to the EPA’s objections, there is no compelling reason to bar the transfer of authority beyond this 90 day period. The state-only permit constituted a second permit decision. Pet. App. 16a (emphasis added). As the italicized lan- guage makes clear, this passage does not suggest that EPA or the Corps may ignore the requirement, stated both in the governing regulations and in 33 U.S.C. 1344(j) itself, that EPA must raise any objections to a permit application filed with state authorities within 90 days after EPA receives the application from the State. Rather, the district court held that permitting author- ity had been transferred from DEQ to the Corps in June 1997, notwithstanding the expiration of “the 90 day period as to the March 1995 permit,” because “[t]he state-only permit constituted a second permit decision.” Pet. App. 16a. The thrust of the district court’s analysis was that the transfer of authority occurred by opera- tion of law when DEQ issued a permit that did not con- form to EPA’s previously stated objections. See ibid. (district court notes that “under § 404(j) of the CWA [33 U.S.C. 1344()] the authority to issue § 404 permits is transferred from a state back to the Corps as a matter of law wherever a state has failed within the time prescribed by law to amend its proposed permit to conform to objections raised by the EPA”). As we 14 explain below (see pp. 14-16, infra), that conclusion is correct. But even if the district court’s analysis were open to question, there would be no basis for inferring that the court deliberately condoned an agency breach of its own regulation. 2. The fact that petitioner failed to present its current arguments to the court of appeals provides an independent reason for this Court to deny review. In the court of appeals, petitioner did not cite United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); petitioner did not contend that the district court had countenanced an agency’s breach of its own regula- tion; indeed, petitioner did not even contend that a breach of agency rules had occurred. This Court ordi- narily does not consider issues neither raised before nor considered by the court of appeals. See, e.g., Penn- sylvania Dept. of Corrs. v. Yeskey, 524 U.S. 206, 212- 213 (1998) (collecting cases). In addition, petitioner’s failure to allege in the court of appeals that the agency had breached its own rules further undermines peti- tioner’s current contention that the Sixth Circuit im- plicitly authorized such an agency violation. 3. In contending that “EPA ignored the strictures of its governing regulations” when it informed petitioner and the DEQ that permitting authority had been trans- ferred to the Corps in June 1997, petitioner states that “Michigan issued a final Section 404 permit” in March 1995, leaving EPA with “no further role to play.” Pet. 18. As the district court correctly recognized, however, the March 1995 proposed permit never became “final” because petitioner failed to sign the permit within the specified time. Pet. App. 13a; see C.A. App. 111 (March 1995 proposed permit states that the “permit shall become valid on the date of signature by the permit- tee”); id. at 101 (DNR cover letter states that “[t]his 15 permit is not valid until it is signed by the permittee”). Moreover, EPA’s withdrawal of objections to the March 1995 propssed permit was made subject to the express “condition that the final permit not differ materially from this draft.” Jd. at 97. EPA stated at that time that “(i]f there are substantive changes to this draft decision by MDNR, we would need to review these changes to determine whether or not they are material to us.” /bid. EPA thus anticipated the possi- bility that further exchanges between petitioner and DEQ might result in additional amendments to the permit, and it made clear that any such changes would be subject to federal agency review. There is conse- quently no basis for petitioner’s contention that EPA’s conditional withdrawal of objections to the March 1995 proposed permit precluded the Corps from asserting authority over the Section 404 program after (a) peti- tioner refused to sign the proposed permit and (b) the DEQ issued a “state-only” permit containing substan- tially different terms. The CWA provides that if the State fails to resubmit a permit to which EPA has objected, revised to meet EPA’s objections within 30 days, “the Secretary [of the Army] may issue the permit.” 33 U.S.C. 1344(j). The regulations similarly provide that “[iJn the event that the Director [of the pertinent state agency] neither satisfies EPA’s objections or requirements for a permit condition nor denies the permit, the Secretary [of the Army] shall process the permit application.” 40 C.F.R. 233.50(j). Because the “state-only” permit issued by the DEQ in this case did not conform to the objections previously expressed by EPA, the effect of the regula- tions was that permitting authority was transferred to the Corps by operation of law. Indeed, the DEQ permit itself made clear that it did not authorize work under 16 the CWA, see C.A. App. 123; Pet. App. 27a; pp. 7-8, supra, and the accompanying cover letter indicated that petitioner could “seek federal authorization for the pro- ject directly from the U.S. Army Corps of Engineers,” C.A. App. 173. And in any event, the application to these unusual circumstances of a regulatory scheme that currently affects only two States (Michigan and New Jersey, see p. 4, supra) presents no issue of wide- spread or recurring importance. 4. The petition repeatedly suggests that EPA en- gaged in manipulative conduct in an effort to prevent petitioner from asserting its rights under state law. See, e.g., Pet. 18 (“The agency’s machinations scuttled [petitioner’s] administrative appeal and takings action and forced the company to start the Section 404 process all over again.”). The record does not support that as- sertion. Indeed, EPA had no apparent motive (legiti- mate or otherwise) for bringing the state administra- tive appeal to a halt. As the district court explained, [petitioner’s] administrative appeal under [state law] is an effort to change the limitations and condi- tions of the draft permit. If [petitioner] is successful in the administrative appeal, the end result will be a recommendation to the director of [the DEQ]. Ifthe director accepts any changes recommended through the administrative proceeding, the permit which issued will contain different limitations and condi- tions than those to which EPA consented. Effec- tively, [petitioner] will not have a valid permit because EPA did not * * * approve it. The refusal to sign the draft permit vitiated the EPA’s consent. Pet. App. 4a-5a. Thus, if the state administrative ap- peal process had culminated in a decision favorable to 17 petitioner, EPA’s earlier conditional withdrawal of objections to the March 1995 proposed permit would not have required the agency to accede to the State’s issuance of a substantively different permit. As the district court recognized (id. at 16a-17a), the fact that Michigan’s permitting process includes an administra- tive appeal mechanism does not alter the directive contained in 40 C.F.R. 233.50(j) that if the State ultimately fails either to satisfy EPA’s objections or to deny the permit, authority to process the permit is transferred to the Corps. There is also no basis for petitioner’s repeated asser- tions (see, e.g., Pet. 9-10) that the responsible federal and state agencies colluded to subject petitioner to an unfair result. The DEQ’s reasons for granting a broad “state-only” permit are not altogether clear. The dis- trict court suggested that the State had “tak[en] a guarded approach to [petitioner’s] takings action” be- cause it had “recently suffer[ed] a huge verdict against it in a takings case.” Pet. App. 16a. DEQ’s issuance of the “state-only” permit had the effect, and perhaps the purpose, of reducing the State’s potential exposure to takings liability by making clear that the federal gov- ernment posed the only barrier to petitioner’s proposed peat-mining activities. See United States v. Bay- Houston Towing Co., No. 98-73252, 2002 WL 537630, at *30 (E.D. Mich. Mar. 13, 2002) (noting “the acute con- cerns in DEQ over the taking action in the Court of Claims and the desire of DEQ to issue a state permit to obviate any claim against the State of Michigan for a taking”). But whatever the reasons for the State’s deci- sion, the Corps’ assertion of permitting authority was a reasonable response, and one consistent with the appli- cable provisions of the statutory and regulatory scheme. 18 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. THEODORE B. OLSON Solicitor General THOMAS L. SANSONETTI Assistant Attorney General DAVID C. SHILTON JOSHUA M. LEVIN ANDREW J. DOYLE ELIZABETH ANN PETERSON Attorneys MAy 2002 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1594%3A2. Public record. Not legal advice.