Nat'l Ass'n of Mfrs. v. Dep't of Def.

• Citation: 138 S.Ct. 617,199 L.Ed.2d 501
• Decision Date: 22 January 2018
• Docket Number: No. 16–299.,16–299.
• Parties: NATIONAL ASSOCIATION OF MANUFACTURERS, Petitioner v. DEPARTMENT OF DEFENSE et al.
• Court: United States Supreme Court

138 S.Ct. 617

199 L.Ed.2d 501

NATIONAL ASSOCIATION OF MANUFACTURERS, Petitioner

v.DEPARTMENT OF DEFENSE et al.

No. 16–299.

Supreme Court of the United States

Argued Oct. 11, 2017.

Decided Jan. 22, 2018.

Timothy S. Bishop, Chicago, IL, for Petitioner.

Eric E. Murphy, Columbus, OH, for Respondents Ohio, et al. in support of Petitioner.

Rachel P. Kovner, for Respondents.

Steven J. Lechner, Mountain States Legal Foundation, Lakewood, CO, for Respondent American Exploration & Mining Association.

M. Reed Hopper, Anthony L. François, Pacific Legal Foundation, Sacramento, CA, for Respondents Washington Cattlemen's Association, et al.

Kimberly S. Hermann, Southeastern Legal Foundation, Marietta, GA, for Respondents Southeastern Legal Foundation Inc., et al.

Jennifer C. Chavez, Earthjustice, Washington, DC, for Respondents Sierra Club and Puget Soundkeeper Alliance.

Allison M. LaPlante, James N. Saul, Earthrise Law Center, Lewis & Clark Law School, Portland, OR, for Respondents Waterkeeper Alliance, et al.

Kristy A.N. Bulleit, Andrew J. Turner, Karma B. Brown, Kerry L. McGrath, Hunton & Williams LLP, Washington, DC, for Respondent Utility Water Act Group.

Catherine Marlantes Rahm, Jennifer A. Sorenson, Jon P. Devine, Jr., Natural Resources Defense Council, New York, NY, Eric F. Citron, Goldstein & Russell, P.C., Bethesda, MD, for Respondents.

Peter T. Reed, Deputy Solicitor, Columbus, OH, for Respondent State of Ohio.

Michael DeWine, Attorney General of Ohio, Eric E. Murphy, State Solicitor, Steven T. Marshall, Attorney General, State of Alabama, Jahna Lindemuth, Attorney General, State of Alaska, Mark Brnovich, Attorney General, State of Arizona, Leslie Rutledge, Attorney General, State of Arkansas, Cynthia H. Coffman, Attorney General, State of Colorado, Pamela Jo Bondi, Attorney General, State of Florida, Christopher M. Carr, Attorney General, State of Georgia, Lawrence G. Wasden, Attorney General, State of Idaho, Curtis T. Hill, Jr., Attorney General, State of Indiana, Derek Schmidt, Attorney General, State of Kansas, Andy Beshear, Attorney General, State of Kentucky, Jeff Landry, Attorney General, State of Louisiana, Bill Schuette, Attorney General, State of Michigan, Jim Hood, Attorney General, State of Mississippi, Joshua D. Hawley, Attorney General, State of Missouri, Tim Fox, Attorney General, State of Montana, Douglas J. Peterson, Attorney General, State of Nebraska, Adam Paul Laxalt, Attorney General, State of Nevada, Lara Katz, Assistant General Counsel, New Mexico Environment Department, Gregory C. Ridgley, General Counsel, Matthias Sayer, Special Counsel, New Mexico State Engineer, Wayne Stenehjem, Attorney General, State of North Dakota, Mike Hunter, Attorney General, State of Oklahoma, Alan Wilson, Attorney General, State of South Carolina, Marty J. Jackley, Attorney General, State of South Dakota, Herbert H. Slatery III, Attorney General and Reporter, State of Tennessee, Ken Paxton, Attorney General, State of Texas, Sean D. Reyes, Attorney General, State of Utah, Patrick Morrisey, Attorney General, State of West Virginia, Brad D. Schimel, Attorney General, State of Wisconsin, Peter K. Michael, Attorney General, State of Wyoming, for Respondents.

Michael B. Kimberly, Mayer Brown LLP, Linda E. Kelly, Quentin Riegel, Leland P. Frost, Manufacturers' Center for Legal Action, Washington, DC, Timothy S. Bishop, Chad M. Clamage, Jed Glickstein, Mayer Brown LLP, Chicago, IL, for Petitioner.

Kevin S. Minoli, Acting General Counsel, Karyn I. Wendelowski, Attorney, United States Environmental Protection Agency, Earl G. Matthews, Acting General Counsel, Craig R. Schmauder, Deputy General Counsel, Department of the Army, David Cooper, Chief Counsel, Daniel Inkelas, United States Army Corps of Engineers, Jeffrey B. Wall, Acting Solicitor General, Jeffrey H. Wood, Acting Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Rachel P. Kovner, Assistant to the Solicitor General, Daniel R. Dertke, Amy J. Dona, Andrew J. Doyle, J. David Gunter II, Robert J. Lundman, Martha C. Mann, Jessica O'Donnell, Attorneys, Department of Justice, Washington, DC, for Respondents.

Justice SOTOMAYOR delivered the opinion of the Court.

What are the "waters of the United States"? As it turns out, defining that statutory phrase—a central component of the Clean Water Act—is a contentious and difficult task. In 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) tried their hand at proffering a definition through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule).¹ The WOTUS Rule prompted several parties, including petitioner National Association of Manufacturers (NAM), to challenge the regulation in federal court. This case, however, is not about the substantive challenges to the WOTUS Rule. Rather, it is about in which federal court those challenges must be filed.

There are two principal avenues of judicial review of an action by the EPA. Generally, parties may file challenges to final EPA actions in federal district courts, ordinarily under the Administrative Procedure Act (APA). But the Clean Water Act (or Act) enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals. See 86 Stat. 892, as amended, 33 U.S.C. § 1369(b)(1). The Government contends that the WOTUS Rule fits within two of those enumerated categories: (1) EPA actions "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345," 33 U.S.C. § 1369(b)(1)(E), and (2) EPA actions "in issuing or denying any permit under section 1342," § 1369(b)(1)(F).

We disagree. The WOTUS Rule falls outside the ambit of § 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts.

I

A

Although the jurisdictional question in this case is a discrete issue of statutory interpretation, it unfolds against the backdrop of a complex administrative scheme. The Court reviews below the aspects of that scheme that are relevant to the question at hand.

Congress enacted the Clean Water Act in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). One of the Act's principal tools in achieving that objective is § 1311(a), which prohibits "the discharge of any pollutant by any person," except in express circumstances. A "discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source," such as a pipe, ditch, or other "discernible, confined and discrete conveyance." §§ 1362(12), (14). And "navigable waters," in turn, means "the waters of the United States, including the territorial seas." § 1362(7). Because many of the Act's substantive provisions apply to "navigable waters," the statutory phrase "waters of the United States" circumscribes the geographic scope of the Act in certain respects.

Section 1311(a) contains important exceptions to the prohibition on discharge of pollutants. Among them are two permitting schemes that authorize certain entities to discharge pollutants into navigable waters. See Rapanos v. United States, 547 U.S. 715, 723, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion). The first is the National Pollutant Discharge Elimination System (NPDES) program, which is administered by the EPA under § 1342. Under that program, the EPA issues permits allowing persons to discharge pollutants that can wash downstream "upon [the] condition that such discharge will meet ... all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343." § 1342(a)(1). "NPDES permits impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's waters." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). One such limitation is an "effluent limitation," defined in the Act as a "restriction ... on quantities, rates, and concentrations" of specified pollutants "discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." § 1362(11).

The second permitting program, administered by the Corps under § 1344, authorizes discharges of " 'dredged or fill material,' " which "are solids that do not readily wash downstream." Rapanos, 547 U.S., at 723, 126 S.Ct. 2208 (plurality opinion). Although the Corps bears primary responsibility in determining whether to issue a § 1344 permit, the EPA retains authority to veto the specification of a site for discharge of fill material. See § 1344(c).²

The statutory term "waters of the United States" delineates the geographic reach of many of the Act's substantive provisions, including the two permitting programs outlined above. In decades past, the EPA and the Corps (collectively, the agencies) have struggled to define and apply that statutory term. See, e.g., 42 Fed.Reg. 37124, 37127 (1977) ; 51 Fed.Reg. 41216–41217 (1986). And this Court, in turn, has considered those regulatory efforts on several occasions, upholding one such effort as a permissible interpretation of the statute but striking down two others as overbroad. Compare United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (upholding the Corps' interpretation that "waters of the United States" include wetlands adjacent to navigable waters), with Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (rejecting application of the Corps' interpretation of "waters of the United States" as applied to sand and gravel pit); and Rapanos, 547 U.S., at 729, 757, 126 S.Ct. 2208 (plurality opinion) (remanding for further review the Corps' application of the Act to wetlands lying "near ditches or man-made...