October 11, 2017
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
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, "
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.
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.
(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.
(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.
817 F.3d 261, reversed and remanded.
SOTOMAYOR, J., delivered the opinion for a unanimous Court.
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). 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.
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).
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.
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
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 ...