Friends of the Everglades v. U.S. Envtl. Prot. Agency

• Decision Date: 26 October 2012
• Docket Number: Nos. 08–13652,08–13657,08–13653,08–14921 and 08–16283.,s. 08–13652
• Citation: 699 F.3d 1280
• Parties: FRIENDS OF THE EVERGLADES, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, South Florida Water Management District, Carole Wehle, Intervenors. Miccosukee Tribe of Indians of Florida, Petitioner, v. United States Environmental Protection Agency, Respondent, South Florida Water Management District, Carol Wehle, Intervenors. Florida Wildlife Federation, Inc., Petitioners, v. United States Environmental Protection Agency, Respondent, South Florida Water Management District, Carol Wehle, Intervenors. Sierra Club, Inc., Environmental Confederation of Southwest Florida, Petitioners, v. United States Environmental Protection Agency, Respondent, United States Sugar Corporation, Intervenor. States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, Government of the Province Of Manitoba, Canada, Petitioners, v. United States Environmental Protection Agency, Stephen L. Johnson, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

699 F.3d 1280

FRIENDS OF THE EVERGLADES, Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,South Florida Water Management District, Carole Wehle, Intervenors.

Miccosukee Tribe of Indians of Florida, Petitioner,

v.United States Environmental Protection Agency, Respondent,South Florida Water Management District, Carol Wehle, Intervenors.

Florida Wildlife Federation, Inc., Petitioners,

v.United States Environmental Protection Agency, Respondent,South Florida Water Management District, Carol Wehle, Intervenors.

Sierra Club, Inc., Environmental Confederation of Southwest Florida, Petitioners,

v.United States Environmental Protection Agency, Respondent,United States Sugar Corporation, Intervenor.

States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, Government of the Province Of Manitoba, Canada, Petitioners,

v.United States Environmental Protection Agency, Stephen L. Johnson, Respondents.

Nos. 08–13652, 08–13653, 08–13657, 08–14921 and 08–16283.

United States Court of Appeals, Eleventh Circuit.

Oct. 26, 2012.

David George Guest, Monica K. Reimer, Earth Justice Legal Defense Fund, Tallahassee, FL, Dexter W. Lehtinen, Tew Cardenas, Miami, FL, John E. Childe, Dauphin, PA, Thomas W. Reese, St. Petersburg, FL, Yinet Pino, Bernardo Roman, III, Law Offices of Bernardo Roman, III, Dione C. Carroll, Miami, FL, for Petitioners in Nos. 08–13652, 08–13657, 08–14921, and No. 08–13653.

Philip M. Bein, Kevin Donovan, New York State Dept. of Law, Albany, NY, David Wrinn, Connecticut Attorney General's Office, Hartford, CT, David L. Ormond, Jr., Deputy Atty. Gen., Civ. Div., Wilmington, DE, Gerald T. Karr, Illinois Office of Atty. Gen., Chicago, IL, Thomas A. Harnett, Maine Office of Atty. Gen., Augusta, ME, S. Peter Manning, Environment, Natural Resources and Agricultural Div., Lansing, MI, Leah Hedman, Asst. Atty. Gen., Saint Paul, MN, Jennifer Suzanne Frazier, Jefferson City, MO, Ronald A. Shems, Burlington, VT, Richard A. Wegman, Eldon V.C. Greenberg, Washington, DC, for Petitioners in No. 08–16283.

Andrew J. Doyle, ENRD, U.S. Dept. of Justice, Martha C. Mann, Washington, DC, Peter D. Nichols, Robert V. Trout, Trout, Raley, Montano, Witwer & Freeman, PC, Daniel Domenico, CO. Atty. General's Office, Denver, CO., Ronald L. Lavigne, Olympia, WA, for Respondents.

Peter D. Nichols, Berg, Hill, Greenleaf & Ruscitti, LLP, Boulder, CO, for Western Urban Coalition, et al. and Western Urban Coalition in No. 08–13652, Amici Curiae.

Hilary Meltzer, New York City, for City of New York in No. 08–13652, Amici Curiae.

Kenneth Allen Rubin, Morgan, Lewis & Bockius LLP, Washington, DC, for American Water Works Ass'n in No. 08–13652, Amici Curiae.

Larry S. Gondelman, Powers, Pyles, Sutter & Verville, Washington, DC, for Ass'n of Metropolitan Water Agencies in No. 08–13652, Amici Curiae.

Nathan Gardner–Andrews, National Ass'n of Clean Water Agencies, Washington, DC, for National Ass'n of Clean Water Agencies in No. 08–13652, Amici Curiae.

Daniel Domenico, Denver, CO, for States of New Mexico, Alaska, Idaho, Nebraska, Nevada, North Dakota, South Dakota, Texas, Wyoming, and Utah in No. 08–13652, Amici Curiae.

James Edward Nutt, South Florida Water Management Dist., West Palm Beach, FL, Kenton J. Skarin, Timothy S. Bishop, Chad M. Clamage, Mayer Brown, LLP, Chicago, IL, Peter D. Nichols, Robert V. Trout, Trout, Raley, Montano, Witwer & Freeman, PC, Denver, CO, for Intervenors Nos. 08–13652, 08–13653, 08–13657.

Petitions for Review of a Decision of the Environmental Protection Agency.

Before BARKETT and PRYOR, Circuit Judges, and BATTEN,^* District Judge.

PRYOR, Circuit Judge:

In this matter, we must decide whether we have original subject matter jurisdiction over several petitions for review of an administrative rule that exempts transfers of waters of the United States from the requirements for a permit under the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether we may avoid deciding that question and instead exercise hypothetical jurisdiction to decide the merits of the petitions. Friends of the Everglades, several other environmental organizations, nine states, the province of Manitoba, Canada, and the Miccosukee Tribe argue that original jurisdiction belongs in a district court, but they filed protective petitions for review of the water-transfer rule in this and another circuit after the Administrator of the Environmental Protection Agency stated her position that the initial judicial review of the rule could be had only in the circuit courts of appeals. The Judicial Panel on Multidistrict Litigation consolidated the petitions in this Court. The South Florida Water Management District and the United States Sugar Corporation intervened to defend the rule alongside the Administrator. United States Sugar urges us to exercise hypothetical jurisdiction and deny the petitions. But we hold that, under the plain language of the governing statute, id. § 1369(b)(1), we lack original subject matter jurisdiction to review the petitions and we may not exercise hypothetical jurisdiction over them. We dismiss the petitions.

I. BACKGROUND

In 1972, Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Id. § 1251(a). As part of this effort, the Act prohibited “the discharge of any pollutant by any person” except when permitted by law. Id. § 1311(a). The Act empowered the Administrator of the Environmental Protection Agency to issue permits for discharges of pollutants. Id. § 1342(a)(1). The Act granted broad authority to the Administrator “to prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters.” Id. § 1252(a). The Act also granted the Administrator the authority to prescribe regulations to administer the Act. Id. § 1361(a). The Administrator interpreted this authority to allow her to grant permanent exemptions from the requirements for a permit. See40 C.F.R. § 122.3.

In 2002, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment sought an injunction to force the South Florida Water Management District to obtain a permit to transfer water from the polluted canals of the Everglades Agricultural Area into Lake Okeechobee. Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1214 (11th Cir.2009). The district court allowed several parties to intervene in the lawsuit, including the Environmental Protection Agency, the Miccosukee Tribe, and the United States Sugar Corporation. Id. The environmental groups argued that the water transfer introduced pollutants into the lake and was a discharge subject to the requirements for a permit. Id. at 1216. The Act defined “discharge” as “any addition of any pollutant to navigable waters from any point source.” Id. (quoting 33 U.S.C. § 1362(12)). The Water District argued that, when it transferred pollutants from the canals to the lake, it did not alter the existing level of pollutants in United States waters. Id. at 1217. For that reason, the Water District argued that its activities did not fall within the definition of “discharge.” Id.

After a two-month bench trial, the district court enjoined the Water District to apply for a permit from the Administrator. Id. at 1214–15. The district court interpreted the Clean Water Act to require a permit for “water transfers between distinct water bodies that result in the addition of a pollutant to the receiving navigable water body.” Friends of the Everglades v. S. Fla. Water Mgmt. Dist., No. 02-80309, 2006 WL 3635465, at *48 (S.D.Fla. Dec. 11, 2006), rev'd,570 F.3d 1210 (11th Cir.2009). The Water District appealed the judgment. 570 F.3d at 1215.

Before the district court entered its injunction, the Administrator issued a notice of proposed rulemaking to create an exemption for water transfers from the permit requirements of the Act. National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule, 71 Fed. Reg. 32,887, 32,891 (proposed June 7, 2006). After receiving public comments, the Administrator issued a notice of final rule. 73 Fed. Reg. 33,697, 33,708 (June 13, 2008) (codified at 40 C.F.R. § 122.3). The rule created a permanent exemption from the permit program for pollutants discharged from water transfers:

The following discharges do not require ... permits: ...

(i) Discharges from a water transfer. Water transfer means an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.

40 C.F.R. § 122.3(i). In the notice of final rule, the Administrator stated the position that “judicial review of the Administrator's action c[ould] only be had by filing a petition for review in the United States Court of Appeals within 120 days after the decision [wa]s considered issued for purposes of judicial review.” 73 Fed. Reg. at 33,697.

Litigation ensued in two district courts. Several environmental organizations filed petitions to challenge the rule in the Southern District of New York. Nine states and the province of Manitoba, Canada, filed a parallel suit in that court, which consolidated the actions. The Miccosukee Tribe and several other environmental organizations filed suit in the Southern District of Florida.

At the same time, the petitioners in those actions filed protective petitions for review in the Second Circuit and in this Circuit. The Judicial Panel on Multidistrict Litigation consolidated those petitions in this Court. See28 U.S.C. § 2112(a)(3). We stayed the petitions during consideration of the appeal in Friends of the Everglades v. South Florida Water Management District. The Southern District of New York also stayed the actions in its court pending...