National Association of Manufacturers v. Department of Defense, 012218 FEDSC, 16-299

Docket Nº16-299
Judge PanelSOTOMAYOR, J.
Case DateJanuary 22, 2018
CourtUnited States Supreme Court




No. 16-299

United States Supreme Court

January 22, 2018

Argued October 11, 2017



The Clean Water Act (Act) generally prohibits "the discharge of any pollutant by any person, " except in express circumstances. 33 U.S.C. §1311(a). A "discharge of a pollutant" includes "any addition of any pollutant to navigable waters from any point source, " §1362(12), and the statutory term "navigable waters, " in turn, means "the waters of the United States, " §1362(7). Section §1311(a) contains important exceptions to the general prohibition on discharge of pollutants, including two permitting schemes that authorize certain entities to discharge pollutants into navigable waters: the National Pollutant Discharge Elimination System (NPDES) program administered by the Environmental Protection Agency (EPA) under §1342, and a program administered by the Army Corps of Engineers (Corps) under §1344.

The statutory term "waters of the United States" delineates the geographic reach of those permitting programs as well as other substantive provisions of the Act. In 2015, the EPA and the Corps proffered a definition of that term through an agency regulation dubbed the Waters of the United States Rule (WOTUS Rule or Rule). The WOTUS Rule "imposes no enforceable duty on any state, local, or tribal governments, or the private sector." 80 Fed. Reg. 37102. As stated in its preamble, the Rule "does not establish any regulatory requirements" and is instead "a definitional rule that clarifies the scope of the statutory term "waters of the United States." Id., at 37054.

There are two principal avenues of judicial review of an EPA action. Generally, parties may file challenges to final EPA actions in federal district courts, typically under the Administrative Procedure Act. But the Clean Water Act enumerates seven categories of EPA actions for which review lies directly and exclusively in the federal courts of appeals, including, as relevant here, EPA actions "approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345, " §1369(b)(1)(E), and EPA actions "issuing or denying any permit under section 1342, " §1369(b)(1)(F).

Several parties, including petitioner National Association of Manufacturers (NAM), challenged the Rule in United States District Courts across the country. Many parties, but not NAM, filed "protective" petitions for review in various Courts of Appeals to preserve their challenges should their District Court lawsuits be dismissed for lack of jurisdiction under §1369(b). The circuit-court actions were consolidated and transferred to the Court of Appeals for the Sixth Circuit. Meanwhile, the parallel actions in the District Courts continued. NAM intervened as a respondent in the Sixth Circuit and, along with several other parties, moved to dismiss for lack of jurisdiction. The Government opposed those motions, arguing that the challenges must be brought first in the Court of Appeals because the WOTUS Rule fell within subparagraphs (E) and (F) of §1369(b)(1). The Sixth Circuit denied the motions to dismiss.

Held: Because the WOTUS Rule falls outside the ambit of §1369(b)(1), challenges to the Rule must be filed in federal district courts. Pp. 9- 20. (a) Neither subparagraph (E) nor subparagraph (F) of §1369(b)(1) grants courts of appeals exclusive jurisdiction to review the WOTUS Rule in the first instance. Pp. 9-17.

(1) Subparagraph (E) grants courts of appeals exclusive jurisdiction to review any EPA action "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). The WOTUS Rule does not fall within that provision. To begin, the Rule is not an "effluent limitation, " which the Act defines as "any restriction ... on quantities, rates, and concentrations" of certain pollutants "which are discharged from point sources into navigable waters." §1362(11). The WOTUS Rule imposes no such restriction; instead, it announces a regulatory definition for a statutory term. Nor does the Rule fit within subparagraph (E)'s "other limitation" language. Congress' use of the phrase "effluent limitation or other limitation" suggests that an "other limitation" must be similar in kind to an "effluent limitation": that is, a limitation related to the discharge of pollutants. This natural reading is reinforced by subparagraph (E)'s cross-references to §§1311, 1312, 1316, and 1345, which each impose restrictions on the discharge of certain pollutants. The statutory structure thus confirms that an "other limitation" must also be some type of restriction on the discharge of pollutants. Because the WOTUS Rule does no such thing, it falls outside the scope of subparagraph (E).

Even if the Government's reading of "effluent limitation or other limitation" were accepted, however, the Rule still does not fall within subparagraph (E) because it is not a limitation promulgated or approved "under section 1311." As subparagraph (E)'s statutory context makes clear, this phrase is most naturally read to mean that the effluent or other limitation must be approved or promulgated "pursuant to" or "by reason of the authority of §1311. But the EPA did not promulgate or approve the WOTUS Rule under §1311, which neither directs nor authorizes the EPA to define a statutory phrase appearing elsewhere in the Act. Rather, the WOTUS Rule was promulgated or approved under §1361(a), which grants the EPA general rulemaking authority "to prescribe such regulations as are necessary to carry out [its] functions under" the Act.

The Government contends that the statutory language "under section 1311" poses no barrier to its reading of subparagraph (E) because the WOTUS Rule's practical effect is to make §1311's limitations applicable to the waters covered by the Rule. But the Government's "practical effects" test is not grounded in the statute, renders other statutory language superfluous, and ignores Congress' decision to grant courts of appeals exclusive jurisdiction only over seven enumerated types of EPA actions set forth in §1369(b)(1). Pp. 9-15.

(2) The Government fares no better under subparagraph (F), which grants courts of appeals exclusive and original jurisdiction to review any EPA action "in issuing or denying any permit under section 1342." §1369(b)(1)(F). That provision does not cover the WOTUS Rule, which neither issues nor denies NPDES permits issued under §1342. Seeking to avoid that conclusion, the Government invokes this Court's decision in Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196, and argues that the WOTUS Rule falls under subparagraph (F) because it is "functionally similar" to issuing or denying a permit. But that construction misconstrues Crown Simpson, is unmoored from the statutory text, and would create surplusage in other parts of the statute. Pp. 15-17.

(b) The Government's policy arguments provide no basis to depart from the statute's plain language. First, the Government contends that initial circuit-court review of the WOTUS Rule would avoid a bifurcated judicial-review scheme under which courts of appeals would review individual actions issuing or denying permits, whereas district courts would review broader regulations governing those actions. But, as explained, Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts. Crown Simpson, 445 U.S., at 197, distinguished. Moreover, the bifurcation that the Government bemoans is no more irrational than Congress' choice to assign challenges to NPDES permits to circuit courts and challenges to §1344 permits to district courts, see §1369(b)(1)(E). And many of this Court's recent decisions regarding the agencies' application and definition of "waters of the United States" have originated in district courts, not the courts of appeals. Second, the Court acknowledges that, as the Government argues, routing WOTUS Rule challenges directly to the courts of appeals may improve judicial efficiency. But efficiency was not Congress' only consideration. Had Congress wanted to prioritize efficiency, it could have authorized direct circuit-court review of all nationally applicable regulations, as it did under the Clean Air Act, instead of structuring judicial review as it did in §1369(b)(1). Third, the Government argues that initial review in the courts of appeals promotes the important goal of national uniformity with regard to broad regulations. Although that argument carries some logical force, Congress did not pursue that end at all costs. Finally, contrary to the Government's contention, the presumption favoring court-of-appeals review of administrative action does not apply here, for the scope of subparagraphs (E) and (F) is set forth clearly in the statute. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745, 737, distinguished. Pp. 17-20.

817 F.3d 261, reversed and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous 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...

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