Opposition Brief — Pronsolino v. Nastri

r Seposmne Court, ').3.

FILED

No. 02-1186 |

i APR 14 2003

In The {_ OFFICE OF THE CLERK

Supreme Court of the Anited States

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GUIDO A. PRONSOLINO AND BETTY J. PRONSOLINO,

AS TRUSTEES FOR GUIDO A. PRONSOLINO

AND BETTY J. PRONSOLINO TRUST, ET AL.,

Petitioners,

v.

WAYNE NASTRI, REGIONAL ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION

AGENCY REGION 9, ET AL.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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RESPONSE IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

2

od

JOSEPH J. BRECHER

Counsel of Record

436 14th Street, Suite 1300

Oakland, California 94612

(510) 482-2916

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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RULE 29.6 STATEMENT

None of the Respondents has a parent corporation or

stock owned by a publicly traded company.

ITI.

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TABLE OF CONTENTS

TIGERS EEOEE ss0ssccnrssnrnennnenmemincbemenmuncnie

EPA’S INTERPRETATION OF THE CLEAN

WATER ACT IS ENTITLED TOP DEFERENCE

BY THER, CCIE os ninickciomeescnieaneanewes

PETITIONERS’ POLICY ARGUMENTS ARE

BADLY FLAWED AND SHOULD NOT BE

ACCEPTED BY THIS COURT.......................

CONCLUSION

SOSH SESS HEHSEEEHHE SESS ESE STESEHE SESE SETHE EEEESE

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TABLE OF AUTHORITIES

Page

CASES

Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, 515 U.S. 687 (1995) ........ cece ecceeeceeeeeee 5

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837

EL CAI EL Tied bh inks Sabsineepiablivntesersseséinassosninents passim

Dioxin /Organochlorine Center v. Clarke, 57 F.3d

I cn susncitrveunnsaunswaneveedevekesneeorastessienente 10

Food and Drug Admin. v. Brown & Williamson

Zobacco Corp., 529 U.S. 120 (2000) .........ssecsssscocccesssssvess 2

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)................. 4

| Japan Whaling Ass’n v. American Cetacean Soc.,

a srcstcichcainsacsnnencerevesvedehineowsonbessuesesees 5

| National Federation of Federal Employees, Local

1309 v. Department of Interior, 526 U.S. 86

| atresia les daeswcnccssepnvcesinsinninsasson 4

National Railroad Passenger Corp. v. Boston &

Maine Corp., GOS UG. 407 (1902)............000..cscccessrssesesess 3

Northern Plains Resource Council v. Fidelity

Exploration and Dev. Co., ___. F.3d ____ (9th Cir.

INO. G2-GESSG, April 10, ZOOS) ......sesversessccrcasevsscesessesesevees 8

Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002)........... 9

Quarles Petroleum Co., Inc. v. U.S., 551 F.2d 1201

oi ail hil dine aideatnnpcennnentesanennad’ 7

Quivira Min. Co. v. U.S.E.PA., 765 F.2d 126 (10th

arias ibaa Raldaacrulohuinuinend aubbinsiivndibundianaahessnieeh oie 7

Regions Hosp. v. Shalala, 522 U.S. 448 (1998) .................. 3

Train v. City of New York, 420 U.S. 35 (1975)... eee 7

U.S. v. Haggar Apparel Co., 526 U.S. 380 (1999)............... 3

iv

TABLE OF AUTHORITIES -— Continued

Page

OTHER AUTHORITIES

SN TP SII cancccctncnacnncointuersntncecmnessanneiaiearcuseauemnies 6

CE Te Bee ID ieiksiditccsccecteriprrnectecrigarnecetacnnusaans 3, 5, 6

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C72. Bnet COO BRBD BD nn cssrcecsesscsscscnrcessserornseneiesssoncens 1

U.S. Bepprneme Comrt’ Beat0 UGG ...00ccvcsesecssesesssrssscncesvnsesssione 8

Be he es I BE rcinrsnnntinveminniionnainaninen 7

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I. INTRODUCTION

Defendants-Intervenors-Appellees Pacific Coast Federa-

tion of Fishermen’s Associations, et al. (“PCFFA”) opposes

the petition for writ of certiorari. This case does not

present any reason why a writ of certiorari should be

granted. Petitioners attempt to characterize their dis-

agreement with the unanimous ruling of the Court of

Appeals in terms of supposed conflicts with this Court’s

rulings. In fact, however, their argument is nothing more

than a series of contentions that the Court of Appeals did

not properly apply this Court’s precedents. As we show

below, that contention is incorrect. But even if it were true,

as Supreme Court Rule 10 instructs, “A petition for writ of

certiorari is rarely granted when the asserted error con-

sists of ... the misapplication of a properly stated rule of

law.”

II. EPA’S INTERPRETATION OF THE CLEAN

WATER ACT IS ENTITLED TOP DEFERENCE

BY THE COURTS

Petitioners contend (pp. 7-14) that the Court of Ap-

peals’ analysis of whether EPA’s regulations are entitled to

Chevron deference is flawed, claiming that the Ninth

Circuit “got it precisely backwards” because it should have

discussed whether the statutory language is ambiguous

before determining that deference was appropriate. As we

show below, the Ninth Circuit opinion addressed the

ambiguity issue in great detail. Petitioners’ complaint,

then, is reduced to a claim that the order in which the

opinion discussed the Chevron factors is incorrect. Such a

claim hardly warrants the attention of this Court.

\

In a case cited by Petitioners (p. 7) Food and Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132-33 (2000), this Court explained that the agency’s

viewpoint prevails in cases of statutory ambiguity and set

forth a road map as to how to determine such issues:

But if Congress has not specifically addressed

the question, a reviewing court must respect the

agency’s construction of the statute so long as it

is permissible. Such deference is justified be-

cause the responsibilities for assessing the wis-

dom of such policy choices and resolving the

struggle between competing views of the public

interest are not judicial ones, and because of the

agencys greater familiarity with the ever-

changing facts and circumstances surrounding

the subjects regulated.

The opinion continued:

In determining whether Congress has specifically

addressed the question at issue, a reviewing

court should not confine itself to examining a

particular statutory provision in isolation. The

meaning — or ambiguity — of certain words or

phrases may only become evident when placed in

context. Ambiguity is a creature not of defini-

tional possibilities but of statutory context. It is a

fundamental canon of statutory construction that

the words of a statute must be read in their con-

text and with a view to their place in the overall

statutory scheme. A court must therefore inter-

pret the statute as a symmetrical and coherent

regulatory scheme, and fit, if possible, all parts

into an harmonious whole.

The Ninth Circuit followed these instructions to the

letter. First, in a section of the opinion headed “Plain

a a a

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Meaning and Structural Issues — The Competing Interpre-

tations,” beginning at page 135, the opinion carefully

analyzed the key statutory term “not stringent enough to

implement... water quality standard[s]” as used in Clean

Water Act §303(d)(1)(A), which is at the heart of the

controversy. It set out the conflicting interpretations of

that language, as offered by Petitioners and by EPA. In

footnote 14 and the accompanying text, the Court com-

pared various ways the term “stringent” could be used,

noting the somewhat conflicting dictionary definitions for

the word in question, and acknowledged that the defini-

tion advanced by both sides had some plausibility. But it

determined that EPA’s interpretation was better supported

by linguistic considerations. As this Court noted in Na-

tional Railroad Passenger Corp. v. Boston & Maine Corp.,

503 U.S. 407, 418 (1992), “The existence of alternative

dictionary definitions of the word ‘required,’ each making

some sense under the statute, itself indicates that the

statute is open to interpretation.”

The very silence of the Clean Water Act on the precise

question at issue here supports the inference that the

statute is ambiguous: “Although the statute ... gives

direction not only by stating a general policy ... but also

by determining some specifics of the policy... , the statute

is ambiguous nonetheless in that the agency must use its

discretion to determine how best to implement the policy

in those cases not covered by the statute’s specific terms.”

U.S. v. Haggar Apparel Co., 526 U.S. 380, 381 (1999). See

also Regions Hosp. v. Shalala, 522 U.S. 448, 449 (1998).

In the present case,

There is obviously some ambiguity in a term like

“[not stringent enough to implement ... water

4

quality standards]” which can only be given con-

crete meaning through a process of case-by-case

adjudication. In that process of filling any gap

left, implicitly or explicitly, by Congress, the

courts must respect the interpretation of the

agency to which Congress has delegated the re-

sponsibility for administering the statutory pro-

gram. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,

448 (1987) (citations and internal quotations

omitted).

The situation in this case is analogous to that de-

scribed by this Court in National Federation of Federal

Employees, Local 1309 v. Department of Interior, 526 U.S.

86, 95 (1999):

The Statute does not indicate that Congress it-

self decided to make these specific policy judg-

ments. Hence the Agency’s policy arguments

illustrate the need for the Authority’s elaboration

or refinement of the basic statutory [require-

ment]... ; they illustrate the appropriateness of

judicial deference to considered [Agency] views

on the matter; and, most importantly, they do not

narrow the scope of a statutory provision the

language of which is consistent with a variety of

interpretations.

The law with respect to agency interpretation of

complex environmental statutes can best be summarized

by this Court’s statement with respect to the crucial

definition of “take” under the Endangered Species Act:

We need not decide whether the statutory defini-

tion of “take” compels the Secretary’s interpreta-

tion of “harm,” because our conclusions that

5

Congress did not unambiguously manifest its in-

tent to adopt respondents’ view and that the Sec-

retarys interpretation is reasonable suffice to

decide this case. [Citing Chevron]. The latitude

the ESA gives the Secretary in enforcing the

statute, together with the degree of regulatory

expertise necessary to its enforcement, estab-

lishes that we owe some degree of deference to

the Secretary's reasonable interpretation. Bab-

bitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687, 703 (1995).

Elaborating on this theme, this Court stated in Japan

Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221,

233 (1986), ... [I]f a statute is silent or ambiguous with

respect to the question at issue, our longstanding practice

is to defer to the executive department’s construction of a

statutory scheme it is entrusted to administer, unless the

legislative history of the enactment shows with sufficient

clarity that the agency construction is contrary to the will

of Congress.” (Citations and internal punctuation omitted).

After parsing the etymology and meaning of the

language of Section 303(d), the Ninth Circuit opinion

turned to the question of legislative intent. It conducted a

detailed examination of the statutory scheme to determine

whether Petitioners were correct in asserting that the

Clean Water Act did not contemplate TMDLs for nonpoint

sources. The Court pointed out that:

Point sources are treated differently from non-

point sources for many purposes under the stat-

ute, but not all. In particular, there is no such

distinction with regard to the basic purpose for

which the § 303(d) list and TMDLs are compiled,

the eventual attainment of state-defined water

quality standards. Jd. at 1137.

ana einen ae ini

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The Ninth Circuit correctly noted that the existence of

certain planning and reporting mechanisms under §§208

and 319 of the Clean Water Act that apply only to nonpoint

sources does not mean that such sources should not be

regulated under the TMDL provision of §303. Jd. at 1138-

39. Thus, the court of Appeals concluded, Chevron defer-

ence is appropriate.

Even if EPA’s regulations are not entitled to absolute

deference afforded to an agency’s interpretation of an

ambiguous statute, they are still entitled to significant

respect by the courts. As the Chevron opinion pointed out:

But whether or not they enjoy any express dele-

gation of authority on a particular question,

agencies charged with applying a statute neces-

sarily make all sorts of interpretive choices, and

while not all of those choices bind judges to fol-

low them, they certainly may influence courts

facing questions the agencies have already an-

swered. The well-reasoned views of the agencies

implementing a statute constitute a body of ex-

perience and informed judgment to which courts

and litigants may properly resort for guidance,

and we have long recognized that considerable

weight should be accorded to an executive de-

partment’s construction of a statutory scheme it

is entrusted to administer.... Chevron U.S.A.,

Inc. v. NRDC, 467 U.S. 837, 844 (1984). (Cita-

tions and internal punctuation omitted).

Ill. PETITIONERS’ POLICY ARGUMENTS ARE

BADLY FLAWED AND SHOULD NOT BE AC-

CEPTED BY THIS COURT

Petitioners’ policy arguments are inherently self-

contradictory. They assert (Petition, p. 27) that TMDLs

7

should not be applied to half the impaired waters in the

country, claiming (pp. 21-24) that the task of cleaning up

waters impaired solely by nonpoint sources should be left

entirely to the States, even though they acknowledge that

the States don’t have the money to do the job (p. 27). The

practical effect of their contention would be that there

would be no movement to clean up 43% of the polluted

waters in America (Petition, p. 27 note 11).

This is c-:tainly not what Congress intended. The

Legislature passed the sweeping 1972 Clean Water Act

amendments precisely because the previous policy of

leaving the issue to the States had resulted in a totally

ineffective clean-up program. 1972 U.S.C.C.A.N. 3668,

3675. Those amendments established “a comprehensive

program for controlling and abating water pollution.”

Train v. City of New York, 420 U.S. 35, 37 (1975). “[TJhe

overall intention of Congress in enactment of the Federal

| Water Pollution Control Act was to eliminate or to reduce

as much as possible all water pollution throughout the

United States. Quarles Petroleum Co., Inc. v. U.S., 551

F.2d 1201, 1206 (Ct. Claims 1977). Furthermore, “It is the

intent of the Clean Water Act to cover, as much as possi-

| ble, all waters of the United States instead of just some.”

Quivira Min. Co. v. U.S.E.PA., 765 F.2d 126, 129 (10th

| Cir. 1985). Congress did not intend that pollution from

nonpoint sources be ignored. Rather, the Clean Water Act

states explicitly: “It is the national policy that programs

for the control of nonpoint sources of pollution be devel-

oped and implemented in an expeditious manner so as to

enable the goals of this chapter to be met through the

control of both point and nonpoint sources of pollution.” 33

U.S.C. §1251(a)(7). Allowing nonpoint sources to continue

to pollute streams like the Garcia “would improperly

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8

undermine the integrity of [the CWA’s] prohibitions.”

Northern Plains Resource Council v. Fidelity Exploration

and Dev. Co. ___ F.3d __, __ (9th Cir. No. 02-35836, April

10, 2003).

Contrary to Petitioners’ assertion, the TMDL program

does not constitute an intrusive intervention into the

States’ traditional realm. The State of California eagerly

supported EPA’s position throughout the litigation, par-

ticipating substantially in the proceedings before the

District Court and filing an amicus brief in the Court of

Appeals. The latter brief was joined by six other states,

including Washington and Oregon, both of which have

substantial timber operations. Not a single State has

indicated support for Petitioners’ position.

‘ine seven amici States pointed out that, far from

meddling in their affairs, the federal TMDL program:

provides the necessary information so that state

regulatory agencies can impose appropriate best

management practices on land owners, based on

applicable state law.... Thus, the federal gov-

ernment’s TMDL program provides the informa-

tion so that States can make informed water

quality decisions, but does not usurp that deci-

sion-making power. By empowering States, this

process actually enhances state and local control.

Brief of Amici Curiae, p. 20.

As required by Supreme Court Rule 15.2, PCFFA

must point out that Petitioners have seriously misstated

the practical import of the decision. They claim (Petition,

p. 5) that the EPA TMDL imposed a “dramatic” impact on

landowners and that the Pronsolinos and a neighbor were

forced to endure “onerous new obligations to satisfy EPA’s

TMDL’ which added millions of dollars to the cost of their

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timber operations. But, in fact, those expenses were not

caused by EPA’s demands but, rather, were incurred in

order to comply with permit requirements imposed by the

State of California. As the Ninth Circuit opinion noted, the

restrictions about which Petitioners complain were all

imposed as conditions of a permit issued by the California

Department of Forestry. See Pronsolino v. Nastri, 291 F.3d

1123, 1129-30 and note 6 (9th Cir. 2002).

Indeed, a high-ranking official of the Department of

Forestry indicated that the contents of those permits were

not influenced, at all, by the EPA TMDL process. Deposi-

tion of Thomas Osipowich 89:2-6. That official acknowl-

edged that the EPA TMDL does not require any individual

landowner to do any particular thing. Id. 93:5-14. See also

Lundborg Deposition 90:22-91:1; 93:9-94:5; 105:5-8; 118:1-

4. An official of the State agency responsible for water

quality, including TMDLs, the North Coast Regional Water

Quality Control Board, testified that the existence or non-

existence of the federal TMDL would have made no differ-

ence as to how her agency reviewed the Pronsolinos’

timber harvest plan. Lundborg Deposition 96:5-17.

Thus, the federal TMDL is not self-enforcing and

contains no requirements that landowners take any

specific action. Ms. Lundborg testified that the federal

TMDL, lacking an enforcement or monitoring mechanism,

is not, by itself, an effective regulatory tool. Lundborg

Deposition 118:8-22. In short, the record indicates that

EPA’s TMDL has not cost the Petitioners (or anyone else)

one cent.

Rather, the federal TMDL program serves only as an

information gathering tool. But that tool is an extremely

important one. For example, the federal TMDL program

10

allowed for the funding of between 5 and 10 positions in

the North Coast Regional Water Quality Control Board to

deal with impacts to impaired rivers. Lundborg Deposition

83:8-21. And the federal TMDL generated an outreach

program that enabled landowners in the Garcia River

drainage to achieve best management practices. Lundborg

Deposition 91:2-13. See also Brief of Amici Curiae, p. 20.

IV. CONCLUSION

In conclusion, this is not a proper case for review by

this Court. Petitioners concede (Petition, p. 25) there is no

conflict among the Circuits on this issue. The case does not

establish new law, since the Ninth Circuit has already held

that TMDLs are appropriate for streams where effluent

limitations do not apply. See Dioxin /Organochlorine Center

v. Clarke, 57 F.3d 1517, 1526-27 (9th Cir.1995). As shown

above, the Court of Appeals’ statutory analysis comports

with the requirements laid out in the Chevron case. The

position espoused by the amici debunks the notion that

EPA’s TMDL program is a threat to federalism. And that

program does not inflict ruinous expense on landowners,

since it is not self-enforcing and does not impose any

mandatory requirements on anyone. The petition for a

writ of certiorari should be denied.

Respectfully submitted,

JOSEPH J. BRECHER

436 14th Street, Suite 1300

Oakland, California 94612

(510) 832-2800

April 2003