On judicial review under the Clean Water Act in the wake of Decker v. Northwest Environmental Defense Center: what we now know and what we have yet to find out.

• Author: LaPlante, Allison
• Position: I. Introduction through V. On the Horizon: Continued Confusion in the Courts About Section 509(B

1. INTRODUCTION II. STATUTORY AND REGULATORY BACKDROP A. The Clean Water Act's NPDES Program B. Citizen Enforcement and Judicial Review under the CWA C Congressional (In)Action on Section 509 D. Clean Air Act Section 307"S Far Greater Reach III. THE DECKER CASE: How A SECTION 505 CITIZEN SUIT BROUGHT SECTION 509 JURISDICTIONAL QUESTIONS TO THE UNITED STATES SUPREME COURT IV. WHEN DOES A CITIZEN SUIT BECOME AN IMPROPER COLLATERAL ATTACK ON AN AGENCY'S REGULATION? V. ON THE HORIZON: CONTINUED CONFUSION IN THE COURTS ABOUT SECTION 509(B)? A. The Early Cases." Setting Sail on a Sinking Ship B. The Supreme Court Tests the Waters C. After du Pont and Crown Simpson, The Courts of Appeals Continue to Muck Up the Waters 1. Section 509(b)(1)(E) a. "Approved or promulgated" b. "Effluent limitation or other limitation" c. Specific statutory sections 2. Section 509(b)(1)(F) a. State-issued NPDES permits and the Supreme Court's Crown Simpson decision b. Underlying NPDES Regulations VI. THE NEED FOR A NARROW INTERPRETATION OF SECTION 509(B) A. Confusion in the Courts Could Be A voided by a Plain Text Interpretation of Section 509(b) B. A Narrow Interpretation of Section 509(b) A voids Significant Practical and Constitutional Concerns VII. CONCLUSION I. INTRODUCTION

   In Decker y. Northwest Environmental Defense Center, (1) the United States Supreme Court seemed poised to speak, after more than thirty years, on precisely what U.S. Environmental Protection Agency (EPA) actions were governed by the Clean Water Act's (CWA) strict 120-day appellate review provision, (2) section 509(b). (3) In Decker, Northwest Environmental Defense Center (NEDC) brought a CWA section 505 citizen suit against state forestry officials and logging companies, seeking to hold them liable for discharging pollutants from logging roads into navigable waters of the United States without permits required by the CWA's National Pollutant Discharge Elimination System (NPDES). (4) In response, defendants claimed that EPA's Silvicultural Rule (5) and the Phase I Stormwater Rule (6) exempted them from having to obtain NPDES permits for such discharges. (7) Very late in the litigation, they also argued that NEDC was attempting to invalidate these hales, (8) which they claimed was improper because EPA rules that could have been challenged pursuant to section 509(b)(1) cannot "be subject to judicial review in any civil or criminal proceeding for enforcement." (9)

   Though the question of CWA section 509(b) jurisdiction did not come into play until years into the litigation, (10) and was only a very minor part of the Ninth Circuit's ruling below, (11) the issue played a much larger role in the briefing before the Supreme Court. (12) At the end of the day, the Supreme Court rejected the petitioners' arguments that CWA section 509(b) barred the citizen suit from proceeding. (13) It did not, however, provide any guidance on which of the innumerable actions taken by EPA under the CWA on a regular basis are covered by section 509(b)(1) and must be directly challenged within 120 days in a federal court of appeals, if at all. (14) Rather, the Court ruled that NEDC had properly brought suit under CWA section 505 (15) to enforce the statute and regulations; NEDC had not, according to the Court, sought to invalidate regulations. (16) Accordingly, section 509(b) was no bar. (17)

   Though the Court reached the correct result in this case, the opinion leaves many questions unanswered. This Article explores those questions, and argues for a narrow interpretation of section 509(b)(1) that stays true to the statute's text and, as a result, avoids many of the difficulties presented by the petitioners' arguments in Decker. (18)

   First, Part II of this Article explains the statutory and regulatory framework within which CWA jurisdictional questions have arisen. It discusses the text of section 509(b)(1) and the legislative history of the provision, with a particular focus on comparing section 509(b)(1) to a similar provision under the Clean Air Act. (19) Congress drafted section 509(b)(1) with precision, listing only seven specific EPA actions that must be challenged within 120 days and in the courts of appeals. (20) Unfortunately, the legislative history of this provision sheds little light on why Congress chose to include these seven actions--and only these seven actions--within this judicial review provision. (21) We do know, however, that Congress did not draw similar judicial review provisions in other statutes quite so narrowly. (22) We also know that Congress considered, and then rejected, proposals to widen section 509(b)(1)'s reach. (23)

   Next, this Article analyzes the jurisdictional aspects of Decker. Part III describes the district court and Ninth Circuit proceedings and traces the pathway the jurisdictional questions took in the case. The relevance of section 5090)) was raised for the first time in passing in EPA's amicus brief at the Ninth Circuit. (24) The defendants themselves did not directly raise the argument that the Ninth Circuit lacked jurisdiction in light of the limitations in section 509(b) until their joint reply brief on their petitions for rehearing, and then, only in direct response to questions on which the Ninth Circuit panel ordered supplemental briefing. (25) Though most practitioners would not have predicted that section 509(b) would play any role in this section 505 enforcement action, from that point forward it was a central piece of the parties' arguments. (26)

   Because of section 509(b)'s prominence in the petitions for certiorari and merits briefing, guidance from the Supreme Court about the meaning and reach of section 509(b) seemed likely. (27) The Court could have held that the Ninth Circuit's rifling did not run afoul of CWA section 509(b) because that provision was simply inapplicable by its terms. (28) In other words, for section 509(b)(2) to pose any limit on a court's power to interpret or review the validity of an EPA rule, the rule must have been one of the EPA actions directly reviewable exclusively in the courts of appeals under section 509(b)(1). (29) As noted, however, the Supreme Court rejected the petitioners' jurisdictional challenge, but did so by concluding that section 509(b) was not implicated because NEDC was seeking to enforce a rule rather than to invalidate it. (30) The Court's framing of the case--as NEDC urging the Court to adopt an interpretation of the regulations to bring them into harmony with the statute rather than an "implicit declaration that the ... regulations were invalid" (31)--raises many questions about when a citizen suit crosses the line from enforcement to invalidation of a regulation. This Article explores those questions in Part IV.

   After Decker we are left with an inconclusive picture of the Court's views on section 509(b) because the opinion contains almost no analysis of section 509(b)'s textual reach. (32) The Court has since passed on other opportunities to shed light on the scope of this important, statutory provision. (33) As discussed in more detail in Part V, the United States and others sought review of an Eleventh Circuit decision regarding section 509(b). (34) In its petition, the United States has called this a "question of exceptional importance concerning the time and manner of judicial challenges" to certain EPA actions under the CWA. (35) While the Eleventh Circuit's decision is well supported by the text of the statute, (36) there is no denying that questions regarding section 509(b)(1)'s reach are important and need to be resolved by the High Court. The Court has for the time being, however, decided not to provide such resolve. (37) Because these pressing matters are likely to continue to be litigated divisively in the lower courts, Part V of this Article discusses at length the significant body of case law under section 509(b) that has given rise to the current state of confusing affairs and attempts to make sense of it.

   Despite the notion that section 509(b)(1) should be interpreted to apply only to those specific actions listed therein. (38) from the very beginning some courts seemed ready to move beyond the statute's text. (39) And despite the many opinions issued about section 509(b)(1) over the years, confusion in the courts persists to this day, with a sharp circuit split coming to light in the last few years regarding whether regulations governing the NPDES program fall within the scope of section 509(b)(1). (40) Part V of this Article discusses the development of the case law on section 509(b)(1), with a focus on the most litigated of the subsections--sections 509(b)(1)(E) and (F)--and discusses when and perhaps why some courts have gotten off track in their interpretations. (41)

   Finally, Part VI of this Article attempts to synthesize the confusion in the lower courts and summarize the questions that remain unanswered regarding section 509(b)(1) in the wake of the Decker decision. Beyond uncertainty regarding section 509(b)(1)'s coverage of the two specific EPA actions at issue in Decker, we do not know, for example, whether section 509(b) reaches all EPA NPDES regulations, whether it requires direct appellate review of agency documents such as letters, and several other questions. (42) Part VI of this Article suggests that a narrow interpretation of section 509(b)(1) would clear up much of the confusion in the courts and would "alleviate many practical--even constitutional--difficulties, as discussed in Part IV, posed by an expansive reading of the provision.

2. STATUTORY AND REGULATORY BACKDROP

   The purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (43) The CWA establishes an "interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife." (44) To these ends, Congress developed both a technology-based (45) and water quality-based approach to...