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: V. On the Horizon: Continued Confusion in the Courts About Section 509(B

2. The Supreme Court Tests the Waters

   In 1976, the Supreme Court had its first opportunity to discuss the scope of section 509. (244) In E.I. du Pont de Nemours & Co. v. Train (du Pont), (245) the Court considered the issues that had divided the courts of appeals: whether EPA had authority under section 301 to issue industry-wide regulations limiting discharges from existing plants, and the subsidiary issue of whether the courts of appeals had jurisdiction under section 509(b)(1)(E) to review "industry-wide regulations imposing ... precise [effluent] limitations" on dischargers. (246) The Supreme Court, after determining that EPA had authority to promulgate effluent limitations under section 301, found that this determination "necessarily resolve[d]" the jurisdictional question because the courts of appeals plainly have jurisdiction over such section 301 regulations under section 509(b)(1)(E). (247) Thus, the Supreme Court easily resolved the jurisdictional question, as the Court had only to look to the plain language of the statute to see that section 509(b)(1) applied to EPA's promulgation of effluent limitations under section 301. In rejecting the argument that the courts of appeals lacked direct judicial review, the Supreme Court expressed concern that such an interpretation would result in a "truly perverse situation in which the court of appeals would review numerous individual actions issuing or denying permits pursuant to [section] 402 but would have no power of direct review of the basic regulations governing those individual actions." (248) As discussed below, courts of appeals have since relied on the "perverse situation" to justify findings that broaden the scope of section 509(b)(1) to include EPA actions not expressly listed in the statute." (249)

   In addition, the du Pont Court acknowledged the probability that section 304 effluent limitation guidelines, if promulgated alone, were not directly reviewable in the courts of appeals: "If industry is correct that the regulations can only be considered [section 304] guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere." (250) Thus, even though effluent limitations and effluent limitation guidelines are closely linked, the Supreme Court recognized that the courts of appeals would probably not have jurisdiction over section 304 effluent limitation guidelines promulgated independently of effluent limitations, because section 304 is not expressly listed in section 509(b)(1)(E). Despite Congress's clear intention that section 304 guidelines were not subject to direct judicial review in the courts of appeals, neither the Supreme Court nor the courts of appeals considered the possibility that section 304 effluent limitation guidelines, when promulgated together with section 301 effluent limitations, still did not qualify for section 509(b)(1)(E) review. (251)

   The Supreme Court weighed in again on section 509 three years later in Crown Simpson Pulp Co. v. (Jostle (Crown Simpson). (252) In Crown Simpson, petitioners sought direct judicial review in the Ninth Circuit over EPA's objection to state-issued NPDES permits. (253) The Supreme Court found that the Ninth Circuit had direct judicial review under section 509(b)(1)(F) over EPA's objection to a state-issued NPDES permit because EPA's objection was "functionally similar" to EPA's denial of an NPDES permit. (254) The Court's understanding of functional similarity was narrow, only finding that EPA's objection to a state-issued NPDES permit--which at the time of EPA's veto had the "precise effect" of denying the permit (255)--was "functionally similar" to EPA's denial of a permit. (256) Notably, the Supreme Court's decision in Crown Simpson rested on an old version of the CWA. Congress amended the CWA in 1977 to authorize EPA to issue a permit itself if a state does not meet the terms of EPA's objections. (257) As discussed infra at Part V.C.2.a., several circuits have found that, because of the 1977 amendment, EPA's objection to a state-issued permit is no longer "functionally similar" to EPA's denial of a permit, (258) and parties and some courts have taken Crown Simpson out of its limited context of state-issued NPDES permit to argue for a broader interpretation of what EPA actions are subject to section 509(b)(1). (259)

   C After du Pont and Crown Simpson, The Courts of Appeals Continue to Muck Up the Waters

   Many petitioners have sought direct judicial review in the courts of appeals pursuant to section 509(b)(1). (260) Petitioners most often claim that their challenges fall under section 509(b)(1)(E), section 509(b)(1)(F), or under both sections 509(b)(1)(E) and (F). (261) However, as discussed infra, sections 509(b)(1)(E) and (F) apply to distinct situations: section 509(b)(1)(E) applies to petitions directly challenging EPA's promulgation of effluent limitations or other limitations, (262) whereas section 509(b)(1)(F) applies to petitions challenging EPA's issuance or denial of NDPES permits applying the limitations to individual dischargers. (263) While some courts have recognized the distinction between section 509(b)(1)(E) and (F) jurisdiction, (264) other courts have struggled in determining under which jurisdictional provision, if any, a challenge falls. (265) The fact that parties and EPA continue to argue that the courts of appeals have both section 509(b)(1)(E) and (F) jurisdiction over challenges highlights the existing confusion regarding the meaning and application of these sections. (266)

   Sections 509(b)(1)(A), (B), (C), (D), and (G) also confer jurisdiction on the courts of appeals over explicit EPA actions, and parties have sought direct judicial review in the courts of appeals pursuant to these provisions. (267) In addition, courts have considered timing issues in the context of section 509. (268) However, because much of the case law regarding section 509(b)(1) involves provisions (E) and (F), this Article focuses on courts' interpretations and applications of these provisions.

   1. Section 509(b)(1)(E)

      Based on the text of section 509(b)(1)(E), an EPA action must satisfy four elements to qualify for direct review in the court of appeals. 1) The action must be taken by EPA and involve 2) the approval or promulgation of 3) an effluent limitation or other limitation 4) under CWA sections 301, 302, 306, or 405. (269) Actions that do not satisfy all of these elements do not qualify for section 509(b)(1)(E) judicial review. Each one of these elements has been litigated.

      1. "Approved or promulgated"

         Section 509(b)(1)(E) only applies to effluent limitations or other limitations "approved or promulgated" by EPA. (270) Based on this requirement, courts in several circuits, including the Second, Fourth, Fifth, Seventh, and D.C. Circuits, have found that section 509(b)(1)(E) does not apply to policy statements, guidance, or other documents that lack "independent legal effect" or are not "final agency actions." (271) As Judge Easterbrook commented:

         Although the EPA may establish an "other limitation" for purposes of [section] 509(b)(1)(E) without numerical quotas on discharges ... it does not follow that every document concerning pollution is an "other limitation." It must have bite--it must at least control the states or the permit holders, rather than serve as advice about how the EPA will look at things when the time comes. (272) Similarly, the Fifth and Ninth Circuits have found that section 509(b)(1)(E) does not extend to petitions seeking to compel EPA to act or challenging EPA's failure to promulgate a regulation or fulfill a nondiscretionary duty. (273)

         Courts in the Eighth and Tenth Circuits have interpreted "promulgation" more broadly. For example, an Eighth Circuit court exercised jurisdiction over a challenge to EPA's failure to promulgate regulations. In Maier y. EPA, (274) the Tenth Circuit found that section 509(b)(1)(E) applied to EPA's refusal to promulgate new standards because "a challenge to the refusal to revise a rule in the face of new information is more akin to a challenge to the existing rule than a challenge to the refusal to promulgate a new rule." (275) Similarly, the Eighth Circuit recently found in Iowa League of Cities y. EPA (276) that letters sent by EPA to a U.S. Senator were "promulgated" for purposes of section 509(b)(1)(E). (277) In reaching this decision, the Eighth Circuit commented that section 509(b)(1)(E) should apply to actions "functionally similar" to formal promulgations. (278)

      2. "Effluent limitation or other limitation"

         Congress defined "effluent limitation" for purposes of the CWA to mean "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." (279) Congress authorized EPA to approve or promulgate effluent limitations under several different CWA sections, including sections 301(b)(1)(A)(i) (280) and (b)(2)(A)(i) (281) and section 306. (282) Thus, the quintessential effluent limitation imposes technical standards on dischargers. (283) EPA has promulgated scores of such effluent limitations for myriad industry categories and types of pollutants. (284) Courts of appeals have exercised jurisdiction pursuant to section 509(b)(1)(E) based on this straightforward understanding of effluent limitation. (285) For example, in Iowa League of Cities y. EPA, the Eighth Circuit found that an agency action is a "limitation" if it places new restrictions on industry's "discharges or discharge-related processes" and then concluded that a rule which "directly affect[ed] the concentration of discharge from a point source" was an effluent limitation. (285) In contrast, in American Iron and Steel Institute v. EPA, (287) the Third Circuit determined that the...