Nos.
03-74795,
06-17187, 06-17188
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST ENVIRONMENTAL ADVOCATES, et al.
Plaintiffs-Appellees ; Petitioners,
and
THE STATES OF NEW YORK, ET AL.
Plaintiff-Intervenors Appellees.
-v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Defendant-Appellant; Respondent,
and
THE SHIPPING INDUSTRY BALLAST WATER COALITION
Defendant-Intervenor Appellant,
BRIEF OF DEFENDANT-INTERVENOR APPELLANT
THE SHIPPING INDUSTRY BALLAST WATERCOALITION
Michael W . Evans
Brian K. McCalmon
Kirkpatrick & Lockhart
Preston Gates Ellis LLP
1735 New York Avenue, NW
Suite 500
Washington, DC 20006
(202) 628-1700
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1.
QUESTIONS PRESEN'T'ED
1
s
STATEMENT OF THE CASE
2
STATEMENT OF FACTS
3
.
I
EPA and Congress have consistently interpreted and relied on the normal
vessel operations exclusion for thirty-five years
3
II: Waterborne transportation is vital to our economy 4
III. The discharge of ballast water is essential to the operation of vessels 5
IV. Th ere are currently no commercially viable means of eliminating ANS
l t ballast
e water
from
uu
6
V. Congress and federal agencies have created a regulatory framework for
addressing ballast water discharges that vests primary responsibility with the
(]8~~
Coast Guard SUMMARY OF THE ARGUMENT 12
ARGUMENT 13
The District Court should have deferred to EPA's interpretation of the
C % A
r . .r
u
13
A. In applying Chevron Step One, the Court must take a comprehensive
view of congressional action 15
B. Congress was specifically aware of and approved EPA's interpretation
of the CWA
20
1 . Congress has considered and approved the normal vessel operation
exclusion
21.
2. Congress has enacted an extensive regulatory system for normal .. ..
vessel operation discharges outside of the CWA
26
C. The District Court misapplied SVVANCC 31
D. Under the second step of Chevron, this Court should defer to EPA's
reasonable interpretation of the CWA
34
H. The District Court did not have subject-matter jurisdiction
36
A. Section 549(b)(1)(F) provides the Court of Appeals with exclusive
jurisdiction over regulations governing the scope and applicability of
the NPDES permitting process
u
37
B. Section 509(b)(1)•(E) provides the Court of Appeals with exclusive
jurisdiction over regulations governing the scope and applicability of
effluent limitations
u
42
CONCLUSION
44
ii
TABLE OF AUTHORITIES
Cases
American Mining Congress v . EPA,
965 F .2d 759 (9th Cir. 1992)
39-41
Barnhart v. Walton,
535 U.S . 212
15, 35
Bob Jones Univ . v . United States,
461 U.S . 574 (1983)
19-20 33
Chemical Mfrs. Ass'n v . NRDC,
470 U.S . 116 (1985)
34-36
Chevron U.S .A., Inc. v . Natural Resources Defense Council, Inc .,
467 U.S . 837 (1984)
15-16, 29-30, 34-35
City of Las Vegas v . Clark County,
755 F .2d 697 (9th Cir. 1984)
13
Crown Simpson Pulp Co . v. Costle,
445 U .S . 193 (1980)
37, 40
Dameron Physicians Med . Group, Inc . v . Shalala,
961 F . Supp . 1326 (N.D. Cal . 1997)
18
E.I . DuPont de Nemours & Co . v. Train,
430 U.S. 112 (1977)
38
Environmental Def . Center, Inc . v. EPA,
344 F .3d 832 (9th Cir. 2003)
39-41, 43, 44
Food & Drug Administration v . Brown & Williamson Tobacco Corp .,
529 U .S . 120 (2000)
16-19, 30, 33
Morales-lzquierdo v . Gonzales,
F. 3d
, 2007 WL 329132, slip op . ( 9th Cir . 2007)
Hi
20, 33
Nat'l. Wildlife Federation v. U.S . Army Corps of Engineers,
384 F.3d 1163 (9th Cir. 2004)
12
NRDC v . U.S . EPA,
656 F.2d 768 (D .C. Cir. 1981)
37
NRDC v. EPA,
673 F.2d 400 (D .C. Cir . 1982)
42-43
NRDC v. EPA,
966 F.2d 1292 (9th Cir . 1992)
38, 40-41
NRDC v. Train,
396 F. Supp . 1393 (D.D.C . 1975)
28
Ober v. Whitman,
243 F.3d 1190 (9th Cir. 2001)
14
Ohio Valley Envtl . Coalition v. Horinko,
279 F. Supp. 2d 732 (D . W. Va. 2003)
14
Oregon v . Ashcroft,
368 F. 3d 1118 (9th Cir . 2004)
32
Owner-Operators Indep . Drivers Ass'n of Am ., Inc . v . Skinner,
931 F .2d 582 (9th Cir . 1991)
36
Ramirez-Zavala v . Ashcroft,
336 F .3d 872 (9th Cir. 2003)
18
Rapanos v . United States,
126 S . Ct. 2208, (2006)
20, 32
Rust v. Sullivan,
500 U .S . 173 (1991)
:. .. .29-30, 35
San Francisco Baylceeper v . Cargill Salt Division,
F .3d
, 2007 WL 686353, slip op . ( 9th Cir. 2007)
iv
35
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Proposed Rules, Coast Guard, Ballast Water Management For Vessels Entering the
Great Lakes,
57 Fed. Reg. 45,591 (1992)
26
Rules and Regulations, Coast Guard. Ballast Water Management for Vessels
Entering the Great Lakes,
58 Fed. Reg. 18,330 (1993)
Rules and Regulations, Environmental Protection Agency,
38 Fed. Reg. 13,528 (May 22, 1973) ;
26
3-4, 13, 32
Other Authorities
Ballast Water Invasive Species Management and Threats to Coral Reefs : Hearing
Before the National Ocean Policy Study Hearing,
109th Cong. (2005)
11
Conference Report Statement of Managers,
H . Conf. Rep . 104-450
Deep Seabed Hard Mineral Resources Act,
P.L. 96-283, 94 Stat. 553 (1980), S . Rep. 96-360 (1980)
24
21-22
Federal Water Pollution Control Act Amendments,
Pub. L . 95-217, 91 Stat . 1566 (1977)
21
Hearing Before the Subcomm . on Arms Control,Oceans and Int'1 Env't of the
Senate Comm. on Foreign Relations,
95`x' Cong. 248 (1978)
22
IMO 1620M, RMC 1 .7.250 (Feb . 13, 2004)
11
Municipal Wastewater Treatment Construction Grant Amendments of 1981,
Pub . L. 97-1.17, 95 Stat. 1623 (1981)
21
National Defense Authorization Act for Fiscal Year 1996,
Pub . L . No . 104-106, §§ 325(b)-(c)(2), 110 Stat . 186 (1996)
23
National Invasive Species Act of 1996,
vii
. Pub. L. No . 104-332, 110 Stat. 4073 (1996)
Non-Indigenous Aquatic Nuisance Prevention and Control Act,
Pub . L. 101-646, 104 Stat . 4761 (1990)
8, 26-27
8
Report of the Committee on Environment and Public Warks,
S . Rep. No. 104-113 , 0995)
23, 24
The Act to Prevent Pollution from Ships,
Pub. L. 96-478, 94 Stat . 2297 (1980)
21-22
Water Quality Act of 1987,
Pub. L. 100-4, 101 Stat . 7 (1987)
21
STATEMENT OF JURISDICTION
On March, 30, 2005, the United States District Court for the Northern.
District of California granted Plaintiffs' Motion for Summary Judgment and
Denied Defendant EPA's Motion for Summary Judgment, ER-203-220 . On
September 18, 2006, the Court issued an Order Granting Plaintiffs' Motion for
Permanent Injunctive Relief ("Remedy Order") . ER-350 . Together the orders
constituted a final judgment. Appellant Ballast Water Coalition filed its Notice of
Appeal on November 16, 2006 . ER-375.
As explained ;infra, the District Court was without subject-matter jurisdiction
to hear the case. The Court of Appeals has jurisdiction to hear any appeal from a
final judgment of a district court within its territorial jurisdiction . 28 U.S.C. §
1291 . Appeal is timely pursuant to Federal Rule of Appellate Procedure 4(a)(I)(B)
because Appellant filed a Notice of Appeal within sixty days of a final judgment in
this matter, the deadline for when the United States is a par
QUESTIONS PRESENTED
The following issues are presented for review:
(1) Did the District Court err in holding that EPA's exclusion from the
National. Pollutant Discharge Elimination System ("NPDES") permit
requirements for discharges incidental to the normal operation of a
vessel at 40 C .F.R. § 122 .3(a) is arbitrary and capricious and in excess
of the agency's authority under the Clean Water Act ("CWA")?
(2) Did the Ninth Circuit Court of Appeals have original and exclusive
jurisdiction over the matter under Section 509(b)(l) of the CWA?
STATEMENT OF THE CASE
Plaintiffs filed a Petition for Rulemaking to the EPA in January 1999
requesting that the agency repeal 40 C .F.R . § .1223(a) . ER-191-202 . The Petition
asserted that EPA lacked the authority under the CWA to exclude normal vessel
operation discharges from the requirement to obtain NPDES permits . ER-192,
196-198 . EPA denied the Petition in September 2003 . Soon after, Plaintiffs filed a
complaint in the District Court for the Northern District of California under 5
U.S .C . § 704 of the Administrative Procedure Act ("APA"), challenging EPA's
1973 promulgation of 40 C .F .R . § 122 .3(a) as ultra vires, and challenging EPA's
denial of the Petition to repeal the regulation . ER-7. The District Court
subsequently granted the Plaintiffs' Motion for Summary Judgment and denied the
EPA's Motion for Summary Judgment . ER-203-220.
On March 30, 2005, the District Court granted the Shipping Industry
Ballast Water Coalition's Motion to Intervene as defendants in this matter . ER235-239 . On September 18, 2006, the District Court issued an Order vacating 40
C .F .R. § 122 .3(a) (effective September 30, 2008) and requiring EPA to promulgate
2
new regulations of ballast water by that time . EPA and the Coalition filed timely
Notices of Appeal . ER-372-376.
STATEMENT OF FACTS
EPA and Congress have consistently interpreted and relied on the
normal vessel operations exclusion for thirty-five years.
Congress enacted the CWA in 1972 in order "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters ."1 33 U.S .C . §
1251(a) . One of the principal mechanisms for achieving the CWA's goals has
been the NPDES permitting program established in the CWA's Section 402, 33
U .S .C. § 1342 . "The discharge of any pollutant [from a point source] by any
person shall be unlawful" without an NPDES permit . 33 U.S .C. § 1311(a) . Under
the CWA., the EPA Administrator is authorized to establish regulations to
administer the NPDES program . 33 U.S .C . § 1361(a) . In 1973, the EPA
Administrator issued 40 C .F .R. § 122 .3(a), which provides that, "[a]ny discharge
of sewage from vessels, effluent from properly functioning marine engines,
laundry, shower, and galley sink wastes, or any other discharge incidental to the
normal operation of a vessel" shall not require an NPDES permit . Rules and
Regulations . Environmental Protection Agency, 38 Fed . Reg . 13,528 (May 22,
' Federal Water Pollution Control Act Amendments of 1972, Pub . L. 92-500, 86
Stat. 816 . As amended in 1977,
.this law became commonly known as the Clean
Water Act .
3
1973) ; National Pollutant Discharge Elimination System : Revision of Regulations
44 Fed . Reg . 32,854 (June 7, 1979) (re-authorized and amended to its current form)
(emphasis added) . The latter part of this regulation, the "normal vessel operation
exclusion," includes discharges of ballast water -- as discussed infra, an essential
safety feature of cargo shipping . The normal vessel operation exclusion has been
continuously in effect and has gone unchallenged until now.
I .
Waterborne transportation is vital to our economy.
The marine transportation. system moves more than 90 percent of all goods
and commodities around the world, by volume . ER-312-313 . From 1990 to 2003,
the value of the maritime trade passing through United States seaports rose from
$434 billion to $81 billion. Id. The Great Lakes system alone generates more
than $3 billion of economic activity and 150,000 jobs in the United States, and an
additional $3 billion and nearly 17,000 jobs in Canada . Id.
The members of the Coalition transport a very large percentage of the
nation's waterborne commercial services and goods . Its members' vessels include
containerships, cargo vessels, cruise ships, petroleum and chemical tankers, bulk
vessels, oceangoing barges, tugboats and towboats, and other commercial vessels.
ER-311-318 ; ER-319-339; ER-340-349. The Coalition members operate on the
Great Lakes, with one associations' members moving more than 125 million net
tons of dry-bulk cargo annually . ER-25 I . They operate domestically and
4
internationally, carrying goods on international voyages between U.S . ports and
dozens of ports around the world . ER-249 . In 2004 (the year before the District
Court issued its decision on summary judgment in this case), roughly $500 billion
worth of waterborne cargo arrived in or departed from U .S. ports on container
vessels alone, representing approximately 25 percent of the United States' total
international trade. ER-249.
III.
The discharge of ballast water is essential to the operation of
vessels.
Commercial vessels cannot operate safely without taking on and discharging
ballast water. The District Court below concisely summarized the essential role
that ballast water plays in international shipping:
Ballast water is water that is taken on by cargo ships to compensate
for changes in the ship's weight as cargo is loaded or unloaded, and as
fuel and supplies are consumed . Ballast water may be used for a
number of purposes, such as maintaining stability, maintaining proper
propeller and bow immersion, and to compensate for off center
weights . Thus, ballast water is essential to the proper functioning of
cargo ships, as well as to the safety of its crew.
ER-354 . It affects different vessels in different ways . For a commercial cargo
vessel, taking on ballast water compensates for weight lost when cargo holds are
empty. ER-252 . Without ballast water, an empty vessel would ride so high that
the ship could break in half from the stresses on the hull . Id For tugs and barges,
ballasting at docks during loading and unloading keeps a barge at the proper
"freeboard" (height above the water) compared to the level of the dock . ER-2405
241 . All vessels typically take on ballast water as they burn fuel in order to
maintain the proper freeboard . Id Far from being a series of isolated incidents
easily tracked and permitted, taking on and discharging ballast water is a constant
process at the discretion of the vessel master . Id.
IV. There are currently no commercially viable means of eliminating ANS
from ballast water.
The United States and the international community have sought for years to
establish a commercially-viable and certain means to eliminate ANS from ballast
water but nothing has yet emerged as a commercially viable alternative to the
open-ocean ballast water exchange methods already required by the Coast Guard.
The adaptation of traditional treatment processes to ballast water has not gone
smoothly because of the need to address variables such as salinity, suspended
solids, dissolved organic material, hull shape, and limitations inherent in adapting a
land-based treatment on a moving ocean vessel . ER-340-349 . For example,
biological films have interfered with the effectiveness of ultra-violet treatment, one
method of killing ANS thought to hold promise . Id . Organic material in the water
consumes chemicals intended to kill organisms in other treatments, which requires
doses specifically attuned to the water quality of the particular ballast water on
board-quite a feat for ballast water taken on-board in as many as several ports
overseas-in order to avoid under-treatment and excessive residual chemicals in
the discharge of the ballast water . Id.
6
As Commander Kathleen Moore of the Coast Guard stated in her declaration
submitted to the District Court, the successful performance of land-based
applications for the treatment of ballast water on vessels presents significant
challenges . The forced installation of unverified ballast water treatment systems
may well result in discharges that present greater risks of ANS introductions than
ballast water exchange, and may also discharge harmful residual chemicals or
disinfection by-products into the nation's waterways, trading one environmental
threat for another . ER-344 . Efforts to develop a viable treatment standard have
been underway for years . Dr. Richard Everett, the Coast Guard's Research
Coordinator for the National Aquatic Nuisance Species Program, stated in a
declaration submitted to the District Court that numerous practical issues attend the
establishment of a treatment standard:
q there are no proven ballast water treatment systems that are widely available;
o even after treatment technologies become available, the installation of these
technologies will pose particular challenges and will likely require extensive
retrofitting of existing vessels ; and
• measuring the performance of ballast water management procedures is
complicated by the laclc of economical means to measure viable
concentrations of organisms . ER-269.
7
V . Congress and federal agencies have created a regulatory framework for
addressing ballast water discharges that vests primary responsibility
with the Coast Guard.
Congress has passed two laws that are aimed directly at regulating the
problem of ANS .
In
1990, Congress specifically responded to the problem of ANS
in ballast water by passing the Non-Indigenous Aquatic Nuisance Prevention and
Control Act ("NANPCA"), Pub . L . 101-646, 104 Stat . 4761 (1990) (codified at 16
U.S.C . §§ 4701-4751), and designated the Coast Guard to administer the program.
16 U.S.C. § 4711 . As amended by the National Invasive Species Act of 1996
("NISA"), Pub . L . No . 104-332, 110 Stat . 4073 (1996), 2 NANPCAINISA directed
the Coast Guard to administer a ballast water program, issue guidelines, and, if the
guidelines were ineffective, to issue regulations converting the ballast water
exchange guidelines into requirements . 16 U.S.C . § 4711(0. The Coast Guard
thus continued the role that it had in regulating vessel discharges ever since
Congress enacted the Act to Prevent Pollution from Ships ("APPS") in 1980 and
empowered the Coast Guard to administer it . 33 U.S .C . §§ 1901-1912 (2005) . 3
The Coast Guard's ballast water management regime imposes on vessels
ballast water management and reporting requirements (codified at 33 C .F.R. Part
2 NANPCA and NISA are commonly denoted together as "NANPCAINISA ."
3 APPS established requirements to prevent the discharge of oil, noxious liquid
substances, garbage, plastics, and other "harmful substances" carried by sea . It
applies to all U .S .-flagged ships anywhere in the world and to all foreign-flag
vessels operating in the navigable waters of the U .S . 33 U.S .C. § 1902(a).
8
151, Subparts C and D) . First, any vessel, including tugs and barges, equipped
with ballast water tanks must file a report with the Coast Guard twenty-four hours
prior to arrival at a United States port or place (including inland ports). 33 C.F .R.
§ 151 .2041 (2005) .4 Second, all vessels equipped with ballast water tanks must
have a vessel-specific ballast water management plan . 33 C.F .R. § 151 .2305(7).
The ballast water management plan is mandatory for all vessels equipped with
ballast water tanks. Mandatory Ballast Water Management Program for U .S.
Waters, 69 Fed . Reg. 44,952, 44,961 (July 28, 2004) (codified at 33 C .F .R. § 151).
Finally, all vessels equipped with ballast water tanks entering U .S. waters after
operating beyond the EEZ must use one of three ballast water management
practices : (1) perform a complete ballast water exchange in an area no less than
200 nautical miles from shore, (2) retain ballast water onboard the vessel, or (3)
use an alternative environmentally sound method of ballast water management that
has been approved by the Coast Guard . ld.5 Mandatory ballast water exchange
procedures such as open-ocean exchange enjoyed an estimated 96 percent
compliance rate in 2004 . ER-333. Although such methods are not perfect (ER' Under amendments promulgated in 2004, the reporting requirements were
broadened to encompass all vessels equipped with ballast water tanks, not just
vessels entering U.S. waters after operating beyond the Exclusive Economic Zone
("EEZ"). 33 C.F.R. § 151.
S
Prior to September 27, 2004, BWM practices were voluntary for vessels not
entering the Great Lakes or the Hudson River . 33 C .F.R. § 151 .2040 (rev. as of
July 1, 2004) .
9
337-338), they reduce the volume of ballast presenting an invasion risk to the
Great Lakes to under 0 .5 percent . Id.
In addition, Coast Guard has accelerated its efforts to evaluate and approve
prototype and experimental shipboard installations of ballast water management
equipment on vessels, implementing the Shipboard Technology Evaluation
Program in 2004 . Coast Guard is also collaborating closely with EPA to
quantitatively describe the performance of ballast water treatment systems . The
Environmental Technology Verification ("ETV") Program seeks to accelerate the
development of environmental technologies based on rigorous and credible
performance tests conducted according to standardized protocols . ER-272. These
policy and regulatory efforts continue.
The Coast Guard is not alone in its efforts . Throughout this period of
regulation, the EPA has joined with the Coast Guard to improve ballast water
management practices and ballast water treatment technologies . In addition,
NANPCA/.NISA also created the Aquatic Nuisance Species Task Force ("ANS
Task Force") to coordinate federal and state efforts to address ANS . 16 U.S.C. §
4721 . The Task Force is charged with "coordinat[ing the] aquatic nuisance species
programs and activities of Task Force members and affected State agencies ." 16
U .S .C . § 4722(b)(3). The law also contains detailed and specific directions to the
Task Force to monitor ANS and implement control measures through "the
10
appropriate Federal agency" whenever it determines that there is a "substantial risk
of unintentional introduction of an aquatic nuisance species by an identified
pathway and that the adverse consequences of such an introduction are likely to be
substantial," 16 U.S.C. § 4722(c).
Finally, Presidents Clinton and Bush separately established the National
Invasive Species Council and the Great Lakes Interagency Task Force to address
ANS issues. Executive Order No . 13112 of February 3, 1999, Invasive Species, 64
Fed . Reg. 6,183, (Feb . 8, 1999) ; Executive Order No . 13340 of May 18, 2004,
Establishment of Great Lakes Interagency Task Force and Promotion of a Regional
Collaboration of National Significance for the Great Lakes, 69 Fed . Reg . 29,043,
29,044 (May 20, 2004).
In addition to these domestic initiatives, the United States has led the ballast
water discussions at the International Maritime Organization ("IMO") for over a
decade, which resulted in the adoption of an international treaty, the International
Convention for the Control and Management of Ships' Ballast Water and
Sediments . IMO 1620M, RMC 1 .7 .250 (Feb . 13, 2004) ("Convention") ; see
BallastWaterInvasive Species Management and Threats to Coral Reefs : Hearing
Before the National Ocean Policy Study Hearing, 109th Cong . (2005) (statement of
Rear Admiral T . Gilmour, United States Coast Guard) ("The U .S . delegation
played a major role in development of the Convention's basic structure and in
11
ensuring that a number of key objectives were included in this new treaty .").
Although not yet entered into force, the United States and its international
colleagues share the ultimate goal of ratification and enactment of the necessary
domestic implementing legislation.
SUMMARY OF THE ARGUMENT
The exclusion contained in 40 C .F.R. § 122.3 has been in place for almost
35 years . Far from being ignored and forgotten by Congress, it has been
specifically referenced-and left unaltered-in reauthorizations of the CWA and
other statutes . In addition, Congress has put in place an alternative regulatory
structure for controlling ANS in ballast water . Congress has acquiesced to EPA's
interpretation of the CWA, and the Court should accord it great deference.
iii addition, the Court should dismiss Appellees' action because CWA
Section § 509(b)(1)(E) and (F) provide for original and exclusive jurisdiction over
challenges to agency actions that govern the scope and manner of NPDES
permitting procedures . Appellees may not challenge the legality of the exclusion
directly in the District Court ; under § 509(b)(1), they should have brought their
challenge in. this Court.
The Court reviews the District Court's determination on both issues de novo.
Nat'l Wildlife Federation v . U .S . Army Corps of Engineers, 384 F .3d 1163, 1170
12
(9th Cir. 2004); City of Las Vegas v . Clark County, 755 F .2d 697, 701 (9th Cir.
1984).
ARGUMENT
The District Court should have deferred to EPA's interpretation of the
CWA.
The CWA prohibits "the discharge of any pollutant [from a point source] by
any person" into the navigable waters of the United States except as authorized by
an NPDES permit . 33 U.S .C . § 1311(a) . A "point source" includes, among other
things, a "vessel or other floating craft." 33 U.S .C . § 1362(14) . The "discharge of
a pollutant" is "(A) any addition of any pollutant to navigable waters from any
point source, [or]
(B) any addition of any pollutant to the waters of the contiguous
zone or the ocean from any point source other than a vessel or other floating craft."
33 U.S .C . § 1362(12).
In 1973, shortly after the CWA was enacted, EPA promulgated the "normal
vessel operation exclusion" pursuant to notice and comment rulemaking
procedures. National Pollutant Discharge Elimination System, 38 Fed . Reg . 1,362
(Jan. I1, 1973) (proposal); 38 Fed. Reg. 13,528 (May 22, 1973) (final) . The
exclusion provides that an NPDES permit is not required for "any discharge of
sewage from vessels, effluent from properly functioning marine engines, laundry,
shower, and galley sink wastes, or any other discharge incidental to the normal
13
operation of a vessel ." 40 C .F.R. § 122 .3 . The normal vessel operation exclusion
has been continuously in effect for almost 35 years.
The District Court held that the CWA precluded EPA from promulgating the
exclusion, finding that "the language of the CWA demonstrates the `clear intent' of
Congress to require NPDES permits before discharging pollutants into the nation's
navigable waters," ER-215 (quotation omitted), and finding further that EPA had
not presented sufficient evidence of Congressional acquiescence to its
interpretation, relying on the Supreme Court's decision in Solid Waste Agency of
Northern Cook County v . United States Army Corps of Engineers ( " SWANCC"),
531 U .S . 159 (2001). ER-217.
I.n fact, the language of the CWA does not demonstrate the clear intent of
Congress to regulate normal vessel operation discharges, and in the 35 years since
EPA promulgated the exclusion, Congress has abundantly demonstrated its
acquiescence to EPA's interpretation of the CWA by recognizing it in multiple
congressional actions and by enacting a wholly separate system to regulate normal
vessel operation discharges .6 Under well-established statutory canons of
`' Many vessel discharges covered by the normal operations exclusion may be
within EPA's discretion to exempt as de minimus. As stated by this Court:
"Categorical exemptions may be permissible as an exercise of agency power . . . to
overlook circumstances that in context may fairly be considered de mininhis ."
Ober v . Whitman, 243 F .3d 1190, 1194 (9th Cir . 2001) (quoting Ala . Power Co . v.
Costle, 636 F .2d 323, 360-361 (D .C. Cir. 1979)) ; see also Ohio Valley Envtl.
Coalition v . Horinko, 279 F . Supp . 2d 732, 767-71 (D . W . Va. 2003) (finding the
14
construction, the courts should consider evidence of congressional acquiescence to
an agency's interpretation in determining congressional intent . Applying the twostep Chevron standard, long-standing congressional acquiescence to the normal
vessel operation exclusion proves that Congress did not clearly intend to regulate
normal vessel operation discharges through the NPDES permitting system and that
EPA's interpretation of the CWA to exclude such discharges was reasonable.
A.
In applying Chevron Step One, the Court must take a
comprehensive view of congressional action.
When reviewing an administrative agency's interpretation of a statute that it
administers, the court first determines "whether Congress has directly spoken to
the precise question at issue," Chevron U .S.A., Inc. v . Natural Resources Defense
Council, Inc ., 467 U.S . 837, 842-43 (1984), such that "the statute unambiguously
forbids the [agency's interpretation ." Barnhart v. Walton, 535 U .S . 212, 218
("Chevron Step One") . If so, "the court must give effect to the unambiguously
expressed intent of Congress ." Chevron, 467 U.S . at 843 . If Congress has not
directly spoken to the precise question at issue or its intent is ambiguous, the
second step of the Chevron analysis ("Chevron Step Two") requires the court to
affirm the agency's construction of the statute unless it is unreasonable . Id.
EPA's decision under the CWA to allow West Virginia to include a de minilnis
provision of up to ten percent of the available assimilative capacity for any given
pollutant reasonable, but finding a similar de minims provision of up to twenty
percent unreasonable).
I5
The Supreme Court has held that in conducting a Chevron Step One
analysis, the reviewing court must look not only at the plain language of the statute
in isolation,
but also at the overall statutory context of which the specific statutory
provision is a part . FDA v. Brown. & Williamson Tobacco Corp ., 529 U.S . 120
(2000). In Brown & Williamson, the Court held that the U .S . Food and Drug
Administration ("FDA") had exceeded its statutory authority by classifying
nicotine as a "drug" under the Food, Drug, and Cosmetics Act of 1933 ("FDCA"),
particularly in light of subsequent statutes that had established different regulatory
structures for tobacco products . Id. In analyzing this question under Chevron Step
One, the Court said:
In determining whether Congress has specifically addressed the
question at issue, a reviewing court should not confine itself to
examining a particular statutory provision in isolation . The
meaning- or ambiguity-of certain words or phrases may only
become evident when placed in context . It is a `fundamental canon of
statutory construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme .'
A court must therefore interpret the statute `as a symmetrical and
coherent regulatory scheme,' and 'fit, if possible, all parts into an
harmonious whole .' Similarly, the meaning of one statute may be
affected by other Acts, particularly where Congress has spoken
subsequently and more specifically to the topic at hand.
Brown & Williamson, 529 U .S . at 132-133 (citations and quotations omitted).
After reviewing the legislative history of the FDCA, the Court reviewed the impact
of later statutes on the FDCA, because "[t]he classical judicial task of reconciling
many laws enacted over time, and getting them to make sense in combination,
16
necessarily assumes that the implications of a statute may be altered by the
implications of a later statute . This is particularly so where the scope of the earlier
statute is broad but the subsequent statutes more specifically address the topic at
hand." Id . at 143 (citations and quotations omitted) (emphasis added).
The Supreme Court thus reviewed Congress' consideration of tobaccorelated legislation over the 35 years following the enactment of the FDCA,
including the enactment of separate laws addressing the problem of tobacco use
and public health, and concluded that "[tjaken together, these actions by Congress
over the past 35 years preclude an interpretation of the FDCA that grants the FDA
jurisdiction to regulate tobacco products ." Brown & Williamson, 529 U .S . at 155.
The Court noted : "We do not rely on Congress' failure to act-its consideration
and rejection of bills that would have given the FDA this authority in reaching
this conclusion," but rather on the fact that Congress had enacted several statutes
specifically addressing the problem . Id. . see also United States v. Estate of
Romani, 523 U.S . 517, 530-31 (1998)
.(holding that a later-enacted statute should
control the construction of the federal lien priority statute, even though the later
statute did not expressly amend the federal lien priority statute, because the earlier
statute's "generalities should not lightly be construed to frustrate a specific policy
embodied in a later federal statute") (internal citations omitted) ; United States v.
Fausto, 484 U .S . 439, 453 (1988) (construing an earlier statute in light of a later
17
statute that overturned some of the implications of the earlier one, because the
"classic judicial task of reconciling many laws enacted over time, and getting them
to `make sense' in combination, necessarily assumes that the implications of a
statute may be altered by the implications of a later statute").
This Court followed the Brown & Williamson approach to Chevron Step
One in Ramirez-Zavala v . Ashcroft, 336 F .3d 872, 875 (9th Cir . 2003), stating that
"[o]ur review of an administrative agency's construction of the statute it
administers is governed by Chevron . . . as explained in Food & Drug
Administration v . Brown & Williamson . . . . In making that assessment, we look
not only at the statutory section in question, but analyze the provision in the
context of the governing statute as a whole . . . presuming congressional intent to
create a `symmetrical and coherent regulatory scheme .'") (internal citations
omitted) . See also Wilshire Westwood Assocs . v. Atl . Richfield Corp ., 881 F. 2d
801, 808 (9th Cir. 1989) (recognizing that although post-enactment developments
may not have "the weight of contemporary legislative history," they should be
considered when determining legislative intent) ; Dameron Physicians Med . Group,
Inc . v. Shalala, 961 F . Supp . 1326, 1332 (N .D. Cal . 1997) (stating that "the Ninth
Circuit does rely on post-enactment legislative history to determine whether
Congress `acquiesced' in an agency's interpretation of a statute of which Congress
18
was aware when it amended the statute") (citing Stephenson v . Shalala, 87 F .3d
350, 355 (9th Cir. 1996)).
Thus, in this case, the Court should consider all of the relevant provisions of
not only the CWA, but also subsequent statutes addressing the subject, including
NANPCAINISA . The question, under Chevron Step One is whether, looking at
these statutes and other congressional actions "as a symmetrical and coherent
regulatory scheme" in order to "fit, if possible, all parts into a harmonious whole,"
Brown & Williamson, 529 U .S . at 132, the only possible construction is that the
statutes unambiguously forbid the agency's interpretation-that is, the statutes
unambiguously forbid EPA's conclusion that is has the discretion to promulgate
the normal vessel operation exclusion.
Congressional action after the enactment of the CWA demonstrates that
Congress has acquiesced to the normal operation exclusion . A court will find
congressional acquiescence when there is persuasive evidence that Congress was
aware of and approved of an administrative interpretation . United States v.
Riverside Bayview Homes, Inc ., 474 U .S. 121, 137-38 (1985)
.(finding that
Congress had acquiesced to an agency interpretation of the definition of "navigable
waters" under the CWA when it had considered and rejected statutory alterations
to the interpretation) ; Bob Jones Univ . v . United States, 461 U .S . 574, 601 (1983)
(finding that Congress had "affirmatively manifested its acquiescence" in an
19
agency interpretation by considering and passing amendments to the underlying
legislation that did not affect the agency interpretation, and by failing to pass
legislation that would overrule the interpretation) . In SWAIrCC, the Supreme
Court acknowledged that "we have recognized congressional acquiescence to
administrative interpretations of a statute in some situations," noting the "extreme
care" that must be used in reviewing evidence of congressional acquiescence . 531
U.S . at 169.' Recently this Court, sitting en bane, stated that congressional
acquiescence will be found "where it is very clear that Congress has considered
and approved of an agency's practice ." Morales-Izquierdo v . Gonzales,
F. 3d
2007 WL 329132, slip op . at 5 (9th Cir . 2007) (noting that such instances will
be rare).
B.
Congress was specifically aware of and approved EPA's
interpretation of the CWA.
In this case, Congress has considered and approved of the normal vessel
operation exclusion by : (1) implicitly and expressly considering the exclusion
during the consideration of statutes subsequent to the promulgation of the
' In Rapanos v . United States, 126 S . Ct . 2208 (2006), the plurality opinion
expressed skepticism about the case for congressional acquiescence to the Corps of
Engineers wetlands regulations, noting the distinction between "Congress'
deliberate acquiescence" and "Congress' failure to express any opinion ." 126 S.
Ct. at 2231 . See Morales-lzqu.ierdo, 2007 WL 329132, slip op . at 5 (citing
Rapanos, saying that "The Supreme Court . . . has drawn a sharp distinction
between `Congress' deliberate acquiescence' and its `failure to express any
opinion").
20
exclusion, and (2) enacting an alternative regulatory structure to govern discharges
of ballast water.
Congress has considered and approved the normal vessel
operation exclusion.
The history of the CWA itself provides evidence of Congress' implicit
approval of the normal vessel operation exclusion . In 1977, 1981 and 1987,
Congress reauthorized the CWA, holding extensive hearings and making scores of
amendments, leaving the exclusion intact . Federal Water Pollution Control Act
Amendments, Pub . L. 95-217, 91 Stat . 1566 (1977); Municipal Wastewater
Treatment Construction Grant Amendments of 1981, Pub . L. 97-117, 95 Stat . 1623
(1981) ; Water Quality Act of 1987, Pub . L. 100-4, 101 Stat . 7 (1987) (codified at
33 U.S.C. § 1251 et seq.).
In addition, Congress has enacted specific statutes that demonstrate its
awareness of and approval of the interpretation . Congress first demonstrated its
awareness of the normal vessel operation exclusion during its consideration of the
Deep Seabed Hard Mineral Resources Act, Pub . L. 96-283, 94 Stat . 553 (1980)
(codified at 30 U .S . C . § 1419), when a committee report referred to the exclusion
to explain a provision clarifying that vessels engaged . in commercial mining
operations are fully subject to the NPDES program . S . Rep. 96-360, at 2-3
21
(1980); 8 see also The Act to Prevent Pollution from Ships, Pub . L . 96-478, 94 Stat.
2297 (1980) (codified at 33 U .S .C . § 1901 et seq.) (implementing the provisions of
the 1973 International Convention for the Prevention of Pollution from Ships by
establishing requirements, enforced by the Coast Guard, to prevent the discharge of
oil, noxious liquid substances, garbage, plastics, and other harmful substances
carried by sea).
s
There apparently were concerns that the operator of a vessel engaged in
commercial ocean mining could argue that it was engaged in normal vessel
operations and therefore excluded from the NPDES program . See Letter from
Cecil D . Andrus, Sec'y of Interior, and Juanita M . Kreps, Sec'y of Commerce, to
Senate Foreign Relations Comm . (Sept . 8, 1978), reprinted in Hearing Before the
Subcomm . on Arms Control, Oceans and Intl Env't of the Senate Comm . on
Foreign Relations, 95 0' Cong . 248 (1978) ("The Administration supports this
provision for it could avoid possible regulatory gaps which could result in the
discharge of environmentally harmful materials from seabed mining vessels").
In 1979, as part of a general review of the NPDES rules, EPA clarified the rules to
preclude this interpretation . National Pollutant Discharge Elimination System;
Revision of Regulations, 44 Fed . Reg . 32,854, 32,859-60 (June 7, 1979) (to be
codified at 40 C .F.R. 122.4) . In 1980, as part of the Deep Seabed Hard Mineral
Resources Act, Congress codified EPA's position, providing that "any vessel or
other floating craft engaged in commercial recovery or exploration shall not be
deemed to be `a vessel or other floating craft' under section 502(12)(B) of the
Clean Water Act . . . and any discharge of a pollutant from such vessel or other
floating craft shall be subject to the Clean Water Act ." 30 U.S .C. §1419(e) . The
Senate report, after discussing the general exclusion and the EPA position, said
that "Because the 1972 and 1977 Amendments to the [CWA] did not speak
specifically to this issue, the Committee recommends an amendment . . . to clarify
the application of section 402 of the Act . The Committee also expects, by
adoption of this amendment, to prevent litigation and delay in the implementation
of commercial recovery operations as well as any processing at sea of recovered
minerals." S . Rep . 96-360, at 2-3 .
22
A more specific demonstration of Congress' awareness and approval of the
exclusion came in 1995, when Congress amended the CWA to address discharges
incidental to the normal operation of military vessels . The legislation originated in
the Senate, where the report of the Committee on Environment and Public Works
explained that:
The Navy wishes to clarify the regulatory status of certain non-sewage
discharges from Navy vessels . . . . Although EPA regulations
generally exempt non-sewage discharges from the permit
requirements of the Act, some coastal states have imposed regulations
or inspection programs that may have application to these types of
discharges . A series of events in the waters of several coastal states
prompted concern at the Navy as to state authorities to regulate these
discharges.
Report of the Committee on Environment and Public Works, S . Rep. No. 104-113,
at 1-2 (1995) . To address the Navy's concern about the potential for state
regulations or inspection programs, Congress included a provision in the
Department of Defense Authorization bill amending the CWA . National Defense
Authorization Act for Fiscal Year 1996, Pub . L. No . 104-106, §§ 325(b)-(c)(2),
110 Stat. 186 (1996) (codified at 33 U .S .C. §§ 1322(a)(12), (n)) . The amendment
required EPA Administrator and the Secretary of Defense to determine the extent
to which it is reasonable and practicable to regulate normal operation discharges
from military vessels, and, where appropriate, to establish standards doing so . 33
U.S .C. § 1322(n)(2), (3) . Further, the Act expressly prohibited states from
23
conducting inspections or establishing regulations for such discharges, unless the
state formally establishes a no discharge zone . 33 U.S .C . § 1322(n)(6), (7).
The effect was to supplement the normal operation discharge exclusion for
military vessels, to require the review and potentially the regulation (under a
program separate from the NPDES program) of some normal discharges, and to
expressly preempt inspections or regulations by states . In establishing this
program, Congress specifically incorporated the very EPA regulation at issue here,
providing that the term "discharge incidental to the normal operation of a vessel"
does not include "a discharge that is not covered by part 122 .3 of title 40, Code of
Federal Regulations (as in effect on February 10, 1996) ." 33 U.S .C. § 1322(a)(12).
The Senate report explained:
The amendment . . is intended to address discharges that are
currently subject to the [CWA] as vessels are point sources of
discharge, but have been exempt from permit requirements under
section 402 of the [CWA] because of the provisions of the regulation
published at part 122 .3 of title 40, Code of Federal Regulations.
Discharges that are not exempt from permit requirements under
section 402 as the result of this regulation would not be discharges
incidental to the normal operation of a vessel and would continue to
remain subject to permit and other requirements as point source
discharges under the [CWA].
S. Rep. No . 104-113, at 7 ; see also H. Conf Rep . 104-450, reprinted at 1990 U .S.
Code Cong. & Admin . News 238, 293 (1990) (Conference Report Statement of
Managers, explaining that "The [CWA] and implemental regulations currently
exempt incidental vessel discharges from permitting requirements . Incidental
24
discharges remain subject to varying state regulation . The lack of uniformity has
presented operational problems for the Navy")
Thus, in defining the scope of military vessel discharges that would be
protected against state inspection and regulation, Congress specifically
incorporated the normal vessel operation exclusion-military vessel discharges
that are within the scope of the normal vessel operation exclusion are expressly
protected against state inspections and regulations programs, and discharges that
are outside its scope are not.
The District Court brushed off this specific evidence that Congress was both
aware of, and acted on, the normal vessel operation exclusion, with a conclusory
statement that "excluding vessels of the Armed Forces from NPDES permit
requirements [does not] suggest approval of or application [of the exclusion] to
non-military vessels ." ER-21.9 . This statement is both illogical and entirely misses
the point . It is illogical because it presupposes that Congress specifically
incorporated the exclusion to define protected military vessel discharges, yet failed
to realize that the exclusion itself was illegal and contrary to Congress' own clearly
expressed intent . It misses the point because Congress had no need to codify the
normal vessel operation exclusion for non-military vessels . The normal vessel
operation exclusion was not in dispute . It already had applied for over two decades
under EPA's long-standing and consistent interpretation of the CWA, and was the
25
necessary backdrop for the issue Congress was trying to address-the potential
application of state inspection and regulation programs to military vessels.
Congress acted with full awareness of the exclusion and incorporated it as an
operative part of the CWA as amended.
2.
Congress has enacted an extensive regulatory system for
normal vessel operation discharges outside of the CWA.
Congress has established an extensive regulatory regime for one of the
principal discharges covered by the exclusion, ballast water . In 1990, Congress
responded to growing concern about the environmental impact of aquatic nuisance
species by passing NANPCA . 16 U.S.C . §§ 4701-4751 . A purpose of the
NANPCA, as stated by Congress, is to prevent "unintentional introduction and
dispersal of nonindigenous species into waters of the United States through ballast
water management and other requirements ." Id. § 4701(b)(1) . NANPCA required
the Secretary of the Department in which the Coast Guard is operating to issue
guidelines, modeled on the International Maritime Organization guidelines, for
ballast water management ("BWM") for all U .S .-flag ships and foreign flag vessels
that arrive from outside the Exclusive Economic Zone and enter the Great Lakes.
Id . § 4711(b) . As required by NANPCA, the Coast Guard issued BWM voluntary
guidelines in 1991, and the guidelines became mandatory requirements in 1993.
Proposed Rules, Coast Guard, Ballast Water Management For Vessels Entering the
Great Lakes, 57 Fed . Reg . 45,591 (1992) ; Rules and Regulations, Coast Guard,
26
Ballast Water Management for Vessels Entering the Great Lakes, 58 Fed . Reg.
18,330 (1993).
In 1996, Congress took further action with respect to ballast water
discharges, enacting NISA, which continued and expanded NANPCA . Pub. L. No.
104-332, 110 Stat . 4073 (1996) . NISA continued the mandatory guidelines for the
Great Lakes and Hudson River, and added new voluntary guidelines for the rest of
the country, directing the Coast Guard to review the effect of the guidelines and, if
necessary, convert them into mandatory requirements . The Coast Guard has issued
implementing regulations, including a regulation converting the voluntary
guidelines into mandatory requirements . 69 Fed . Reg. 44,952 (July 28, 2004) ; see
also 69 Fed . Reg . 32,864 (June 14, 2004) (establishing penalties for failure to
submit ballast water management reports and for other violations).
Under NANPCA/NISA, the Coast Guard currently imposes three main
requirements on vessels . First, any vessel equipped . with ballast water tanks must
file a report detailing the vessel's BWM history and status with the Coast Guard
twenty-four hours prior to arrive in a United States port or face penalties of up to
$27,500 per day . 33
C.F.R. §§ 15 L1518
and 151 .2041 . Second, any vessel
equipped with ballast water tanks must have a vessel-specific BWM plan . 33
C .F.R. § 151 .2305(7) . Third, any vessel equipped with ballast water tanks entering
U.S . water after operating beyond the FEZ must use one of three BWM practices:
27
(I) perform a complete ballast water exchange in an area no less than 200 nautical
miles from shore, (2) retain ballast water onboard the vessel, or (3) use an
alternative environmentally sound method of ballast water management that has
been approved by the Coast Guard . Id:
Under the District Court's construction, Congress' enactment of NANPCA
and NISA would be redundant at best, and in direct conflict with the CWA at
worst . Congress, in enacting NANPCA and NISA, would have been subjecting
ballast water discharges, which already (under the District Court's construction)
are subject to NPDES provisions requiring the use of a specific level of pollution
control technology determined to be appropriate, to additional provisions
specifically requiring the use of ballast water exchange or other BWM method
approved by the Coast Guard . This makes no sense . A better construction, giving
meaning to all of the relevant statutes, is that, in enacting the CWA, Congress
established a broad regulatory system, in which EPA had discretion to undertake
specific exclusions in the administration of the statute . In enacting NANPCA and
NISA, Congress, in light of EPA's promulgation of the normal vessel operation
9
Under the NPDES program, EPA generally must require dischargers to meet
effluent limitations based on, at a minimum, best practical control technology and .,
in some cases, best available technology or best conventional technology . 33
U.S .C. § 1311(b) .
28
exclusion and Congress' approval of it, established a separate framework for
regulating ballast water.'
The savings clauses in NANPCA and NISA do not undermine this
construction . NANPCA provides that "The regulations issued under this
subsection shall not affect or supersede any requirements or prohibitions pertaining
to the discharge of ballast water into waters of the United States under the Federal
Water Pollution Control Act ." 16 U .S.C. § 4711(b)(2)(C) . NISA provides that
"The voluntary guidelines issued under this subsection shall . . . not affect or
supersede any requirements or prohibitions pertaining to the discharge of ballast
water into waters of the United States under the [CWA] ." 16 U.S .C . §
4711(c)(2)(J).
The most natural reading of these provisions is that Congress intended to
preserve the basic relationship among the CWA, the exclusion, and
NANPCAINISA . EPA has discretion to exclude discharges incidental to the
normal operation of a vessel, and the enactment of NANPCA/NISA does not limit
The normal vessel operation exclusion does not exempt entire categories of point
sources, as was the case in the Train/Costle line of cases . In NRDC v. Train, 396 F.
Supp. 1393 (D.D.C. 1975), affd sub nom . NRDC v . Costle, 568 F.2d 1369 (D.C.
Cir . 1977), the court found that the EPA did not have discretion to exempt entire
categories of point sources, such as stormwater or silviculture, from the NPDES
permit requirements . The normal operation exclusion, on the other hand, only
excludes certain discharges from vessels from the NPDES permit requirements . 40
C.F.R. § 122.3(a) .
29
EPA's exercise of that discretion . For example, if EPA decided to modify the
exclusion to establish NPDES requirements for certain types of ballast water (such
as ballast water discharges containing chemical contaminants), NANPCA./NISA
should not be interpreted as limiting EPA's authority to do so . See Rust v.
Sullivan, 500 U .S . 173, 186-87 (1991) (stating that, under Chevron, a revised
interpretation deserves deference because lain initial agency interpretation is not
instantly carved in stone" and that an agency "must be given ample latitude to
adapt [its] rules and policies to the demands of changing circumstances") (citations
and quotations omitted) . Similarly, the more general savings clause in APPS
simply preserves the basic relationship among that Act and other relevant laws . 33
U.S.C . § 1907(£) ("[r]emedies and require ents of this chapter supplement and
neither amend nor repeal any other provisions of law, except as expressly provided
in this chapter").
In light of both the comprehensive view of the overall statutory structure
required by Brown & Williamson, and the extreme care required in the
consideration of congressional acquiescence by SWANCC, it cannot be said,
applying Chevron Step One, . that Congress has unambiguously forbidden EPA
from promulgating the normal vessel operation exclusion . Accordingly, the
District Court was in error, and this Court should turn to Chevron Step Two.
30
C.
The District Court misapplied SWANCC.
In finding that EPA had not presented sufficient evidence of Congressional
acquiescence to EPA's interpretation, the District Court relied on the Supreme
Court's decision in SWANCC . ER-219 . In SWANCC, the question was whether
the CWA's statutory assertion of jurisdiction over the "navigable waters of the
United States" permitted the Army Corps of Engineers to interpret the CWA as
applying to isolated, non-navigable wetlands . The Court held that the CWA did
not permit this interpretation, rejecting the argument that Congress had acquiesced
to it . In doing so, the Court said that evidence of congressional acquiescence must
be reviewed "with extreme care," and found the evidence of congressional
acquiescence insufficient. 11 531 U.S . at 169-70.
In applying SWANCC to the instant case, the District Court overlooked two
important factors that made the Supreme Court particularly skeptical of
congressional acquiescence in that case . First, the interpretation at issue in
SWANCC actually was a reversal of the Corps' original interpretation . Shortly
after the CWA was enacted, the Corps of Engineers issued regulations narrowly
i In SWANCC, the principal evidence that was advanced in favor of
Congressional acquiescence was the failure to amend the CWA during the 1977,
1981, and 1987 reauthorizations ; the introduction and failure to pass of a single bill
that would have overturned the Corps' interpretation (the Court noted that this bill
was introduced in 1977, while the Corps' interpretation in question was issued in
1986) ; and the later enactment of a CWA provision that referred to navigable and
"other" waters (the Court found this reference to be ambiguous) . 531 U .S. at 17072 .
31
interpreting the meaning of "navigable waters of the United States ." Later, the
Corps issued revised regulations interpreting the phrase more broadly . When the ,
agency thereafter attempted to argue that Congress had acquiesced to its second
interpretation, the Supreme Court disagreed . in such a case, the Court said, absent
"overwhelming evidence of acquiescence, we are loath to replace the plain text and
original understanding of a statute with an amended agency interpretation ." 531
U.S . at 169 n .5 (emphasis added).
Second, in SWANCC, the Corps' interpretation extended to the outer limits
of Congress' commerce clause power, and thus required "a clear indication that
Congress intended that result ." 531 U.S . at 172 . Subsequent decisions applying
SWANCC have emphasized the need for explicit Congressional authority when an
agency's interpretation "invokes the outer limits of Congress' power ." See, e.g.,
Oregon v . Ashcroft, 368 F .3d 1118 (9th Cir. 2004) (agency directive indicating
that physicians who assist suicide of terminally ill patients would be violating the
federal Controlled Substances Act violates the clear statement rule under
SWANCC), aff d, 546 U .S . 243 (2006) ; Rapanos, 126 S . Ct. at 2224 (plurality)
(finding that agency's interpretation of jurisdiction would . "result in a significant
impingement of the States' traditional and primary power over land and water
use") (citation omitted) .
32
Neither of these factorsis present here . EPA promulgated the normal vessel
operation exclusion in 1973, shortly after enactment of the CVA, and the
exclusion has been in place without change since . 38 Fed. Reg . 1,362 (1973)
(proposed rule); 38 Fed . Reg. 13,528 (1973) (final rule). '2 The exclusion was thus
part of the agency's original understanding of the statute . Further, there is no
contention that the normal vessel operation exclusion invokes the outer limits of
Congress' power.
The District Court also misapplied SWANCC by giving excessive weight to
the fact that Congress has not considered bills that would have repealed or revised
the nog anal vessel operation exclusion, stating that EPA "presents no evidence of
Congress' consideration of and refusal to pass a statute overturning the EPA's
exemption," ER-217, and that EPA "does not provide any legislative history
suggesting that Congress was faced with a bill proposing the rejection" of the
exclusion ." ER-219 . This heavy reliance on the absence of a specific legislative
effort to overturn the exclusion is misplaced . The standard for determining
congressional acquiescence is whether there is sufficient evidence that Congress
was aware of and approved of an administrative interpretation, so that "it is very
clear that Congress has considered and approved of an agency's practice ."
Morales-Izquierdn, 2007 WL 329132, slip op . at 5 . One form of evidence may be
12 In 1979 EPA promulgated the final revision that resulted in the current version
of the exemption . 44 Fed. Reg . 32,854 (1979).
33
a Congressional debate about the interpretation, accompanied by the rejection of
legislation overturning the interpretation, as in Bob Jones University . 461 U.S . at
681 . But there are other forms of evidence as well, including, as in Brown &
Williamson, the enactment of other statutes that only make sense if the agency
interpretation is presumed to be valid : 529 U.S. at 130-131 ("Importantly, the
FDA consistently stated before 1995 that it lacked jurisdiction over tobacco, and
Congress has enacted several tobacco-specific statutes fully cognizant of the
FDA's position .") . If reviewing courts were to insist that the absence of introduced
bills reversing an interpretation constitutes evidence against acquiescence, the
paradoxical result would be that an agency interpretation that generates such
controversy that it triggers the introduction of Congressional legislation to overturn
it would be given more weight *an one that is so widely accepted as a correct
application of the law that it does not trigger the introduction of any contrary
legislation at all.
D.
Under the second step of Chevron, this Court should defer to
EPA's reasonable interpretation of the CWA.
The District Court resolved the case under Chevron Step One, finding that
the plain language of the CWA precluded EPA's promulgation of the normal
vessel operation exclusion ; accordingly, the District Court did not reach Chevron
Step Two . If this Court reverses the District Court's decision on Step One, it must
turn to Step Two .
34
Under Chevron Step Two, once a court has determined that Congress has not
addressed the specific question at issue, it must determine whether the agency's
answer is based on a permissible construction of the statute . Chevron, 467 U.S . at
843. The court need not find that the agency's construction is the only reasonable
one or even that it is the result the court would have reached . Chemical Mfrs.
Ass'n v . NRDC, 470 U.S . 116, 125 (1985) . "[A court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by the
administrator of an agency ." Chevron, 467 U .S. at 844; see also San Francisco
Baykeeper v . Cargill Salt Division,
F .3d
, 2007 WL 686353, slip op . at 4
(9th Cir . 2007) ("When legislation implicitly grants to an agency the authority to
elucidate the meaning of a statutory provision, a court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by the
administrator of an agency .") (quotation omitted).
Congress granted EPA the authority to administer and interpret the CWA,
specifically authorizing the Administrator "to prescribe such regulations as are
necessary to carry out his functions" under the CWA . Section 501(a), 33 U .S .C.
§ 1361(a) . The normal vessel operation exclusion here has been embodied in
EPA's implementing regulations for almost 35 years . A longstanding and
consistent interpretation of a statute deserves special deference . See, e .g., Barnhart
v. Walton, 535 U.S . 212, 220 (2002) (because "[t]he responsibilities for assessing
35
the wisdom of such policy choices and resolving the struggle between competing
views of the public interest are not judicial ones" and because of the agency's
greater familiarity with the ever-changing facts and circumstances surrounding the
subjects regulated) . See also Rust, 500 U .S . at 187.
Here, EPA made a reasonable policy decision to exclude normal operations
discharges from the NPDES permit requirements . Even more significant,
Congress has been aware of EPA's decision and has enacted legislation that
assumes the existence and validity of the exclusion . Given that Congress has
already assented to EPA's construction of the statute, this Court should defer to
EPA's reasonable interpretation.
IL
The District Court did not have subject-matter jurisdiction.
5 U .S .C . § 704 provides the statutory basis for the jurisdiction of the District
Court over final agency actions if "there is no other adequate remedy in a court ."
A federal district court may review a final agency action under its general federal
question jurisdiction unless Congress has set forth another path for reviewing the
action . Owner-Operators Indep . Drivers Ass'n of Am ., Inc . v. Skinner, 931 F .2d
582, 585 (9th Cir . 1991). Congress has done just that here.
The jurisdictional provision of the CWA, Section 509(b)(l ), 33 U .S.C . §
1369(b)(1 ), states, in relevant part:
Review of the Administrator's action . . . (E) in approving or
promulgating any effluent limitation or other limitation under section
36
1311, 1312, 1316, or 1345 of the [the Act], [or] (F) in issuing or
denying any permit under section 1342 of [the Act] . . . may be had by
any interested person in the Circuit Court of Appeals of the United
States for the Federal judicial district in which such person resides or
transacts business . . . .
33 U.S.C . § 1369(b)(1)(E) & (F) . These provisions vest the Circuit Courts with
exclusive jurisdiction to hear a broad range of claims arising under the CWA,
including the Appellees' challenge to the discharge exemption in 40 C .F.R . §
122.3(a) at issue here.
Section 509(b)(1)(F) provides the Court of Appeals with exclusive
jurisdiction over regulations governing the scope and applicability
of the NPDES permitting process.
This Court has original and exclusive jurisdiction over Plaintiffs' claims
under Section 509(b)(1)(F) because 40 C .F .R. § 122 .3(a) is a regulation that
governs the scope and applicability of the NPDES permitting process and decides
what does and does not require a permit . In Crown Simpson Pulp Co . v . Costle,
the Supreme Court held that the Courts of Appeals have original and exclusive
jurisdiction to hear a challenge to EPA's objection to a state permit under CWA
because the " effect of its action is to 'den[y]' a permit within the meaning of §
509(b)(1)(F) ." 445 U.S . 193, 196 (1980)(emphasis added) . The Supreme Court's
interpretation of Section 509(b)(1) "emphasized the practical impact of the
[agency] decision rather than a literal reading of the statute ." NRDC v. U .S . EPA,
656 F.2d 768, 776 (D .C. Cir . 1981) (applying the Crown Simpson , interpretive
37
methodology in order to uphold jurisdiction under Section 509(b)(i)(E) of
regulations indirectly affecting effluent limitations).
The District Court decided that vessel discharge exemption was not an
issuance or denial of "a permit," and thus did not fall within the scope of section
509(b)(l)(F) . This is an overly narrow construction . The Ninth Circuit has
interpreted section 509(b)(1)(F) to provide it with jurisdiction over EPA
regulations governing the scope and applicability of NPDES permitting on at least
three occasions, even though the issuance or denial of individual permits was not at
issue. Indeed, on two of those occasions the challenged agency actions exempted
certain classes of discharges from the need to obtain a NPDES permit.
In NRDC v. EPA., 966 F.2d 1292 (9th Cir. 1992) ("NRDC"),
EPA
extended
deadlines for municipalities to obtain permits for storm water runoff. Id . at 129799. As here, the plaintiff did not challenge the issuance or denial of any particular
permit; rather, the plaintiff challenged EPA's authority to issue regulations that
narrowed the circumstances under which a class of discharges required a permit, at
least temporarily (i .e., storm water runoff for municipalities) . Specifically,
"NRDC ask[ed] the court to . . . declare unlawful EPA's failure to issue certain of
the storm water permitting regulations by February 4, 1989 . . . ." Id. at 1299 . The
court agreed, holding that section 509(b)(l)(F) gives the courts of appeals
jurisdiction "to review rules that regulate the underlying permit procedures ." Id at
38
1297 (citing NRDC , 656 F .2d at 775 ; cf.' E.I. DuPont de Nemours & Co . v. Train,
430 U.S. 112, 236 (1977)).
In the present case, Appellees ask the Court to declare unlawful EPA's
issuance of a regulation that exempts normal vessel operation discharges from the
NPDES permitting process . Both the failure to regulate in NRDC and the
regulation creating an exclusion at issue here are agency decisions that govern the
scope and applicability of the NPDES permitting process and hence both fall under
the jurisdictional ambit of Section 509(b)(1)(F).
In American Mining Congress v. EPA, 965 F .2d 759 (9th Cir. 1992)
("AMC"), mining companies challenged an EPA rule that required inactive mines
to obtain permits for storm water runoff . Id . This Court held that it had
jurisdiction to review the rule because Section 509(b)(1)(F) "allows us to review
the regulations governing the issuance of permits . . . as well as the issuance or
denial of a particular permit ." Id. at 763 (citing NRDC, 656 F .2d at 775).
The issue in AMC was the same as is presented to the Court in this casei .e ., whether an agency decision to include or exclude a narrow class of pointsource discharges from the NPDES permitting process falls within the scope of
section 509(b)(1)(F) . The EPA rule requiring inactive mines to obtain permits and
the rule stating that ordinary course vessel discharges do not require permits are
regulations "governing the issuance of permits ." Thus, section 509(b)(I)(F)
39
extends the Courts of Appeals jurisdiction to EPA's 1973 decision to exclude a
narrow class of point-source discharges from regulati©n.
More recently, in Environmental Def. Center, Inc. v. EPA, 344 F .3d 832 (9th
Cir. 2003) ("EDC"), this Court again found jurisdiction under Section 509(b)(1)(E)
and (F) to review numerous challenges, including EPA's "failure to designate"
certain storm water pollution point-sources as subject to Phase II permitting . Id. at
843 . EPA's "failure to designate" point-sources for regulation in EDC is
functionally equivalent to EPA's exclusion of normal vessel operations from
NPDES permitting in the present case . EDC further supports the inclusion of
EPA's decision . to exclude normal vessel operation discharges from the NPDES
permitting system within the jurisdictional mandate of this Court . NRDC, AMC,
and EDC thus stand for the clear proposition that the Ninth Circuit has original and
exclusive jurisdiction over review of EPA regulations governing the scope and
applicability of the NPDES permitting program even if they do not pertain to
specific permits.
The District Court below attempted to distinguish NRDC and AMC on two
grounds-first, that both cases "involved temporary exclusions from the NP .DES
permit requirements, not the permanent exclusions found in this case," and second,
that "[t]here is no discharge subject to the permit requirements in this case, so it is
not possible for the EPA to have procedures or permits for the court to evaluate
40
under subsection (F) ." ER-210-211 . The District Court's narrow reading of
NRDC and AMC is misplaced and leads to exactly the kind of irrational,
bifurcated judicial review warned of by the Supreme Court in Crown Simpson.
First, there is neither a legal nor a logical difference between a "temporary"
and "permanent" exclusion for the purposes of determining the jurisdiction of the
Courts of Appeals under the CWA, and the Court in NRDC and AMC made no
mention of the temporal nature of the regulations in its rationale . Rather, the Court
decided the way it did in each case because it was presented with rules regulating
or governing the issuance of permits under the CWA, and such rules are reviewed
under § 509(b)(I)(F) . Second, the District Court's claim that jurisdiction is
premised upon whether normal operation discharges are currently subject to a
permit requirement flies in the face of EDC, a decision in which one of the issues
under Section 509(b)(l) review was the EPA's "failure to designate" a subcategory of discharges as requiring NPDES permits.
Unless subsection (F) were interpreted only to cover the issuance or denial
of permits on an individual basis-and neither the District Court nor Appellees
would argue that it is so limited-then it covers all of EPA's actions governing the
issuance of CWA permits, whether such actions exempt municipalities from the
timetable to obtain stormwater permits (NRDC), exempt classes of stormwater
discharges from permitting requirements altogether (;EDC), require certain classes
41
of mines to obtain permits for discharges (AMC), or exempt certain classes of
discharges from vessels from permitting requirements (this case) . Indeed, under
the District Court's logic, the Court would not have had jurisdiction to hear a
challenge to the agency decision in AMC if the agency decision had been that
inactive mines were not "industrial activity" subject to NPDES permitting,
Following the District Court's logic would lead to exactly the kind of irrational and
bifurcated review against which the Supreme Court has warned.
B . Section 5O9(b)(1)(E) provides the Court of Appeals with exclusive
jurisdiction over regulations governing the scope and applicability
of effluent limitations.
Section 509(b) (1) (E) provides the Courts of Appeals with original and
exclusive jurisdiction to hear challenges to agency decisions "in approving or
promulgating any effluent limitation or other limitation ." The District Court held
that subsection (E) did not apply to the normal vessel operation exclusion because
it was not a "limitation" within the meaning of the statute . ER-209--210. The
District Court was wrong . The normal operation exclusion found in 40 C .F.R . §
122 .3(a) is an "effluent limitation" within the meaning of subsection (E) as
interpreted by the courts ; therefore, the Ninth Circuit has original and exclusive
jurisdiction to hear challenges to that regulation.
In NRDC, the D .C. Circuit held that section 509(b)(l)(E) provided it with
original and exclusive jurisdiction to review an industry challenge to EPA
42
regulations establishing "a complex set of procedures for issuing or denying
NPDES permits" even though "thee regulations do not-set any numerical
limitations on pollutant discharge ." NRDC v. EPA, 673 F .2d 400, 402 (D.D. Cir.
1982). The court explained its reasoning in detail:
At first glance, one might read subsection E to confine this court's
review to EPA's establishment of numerical limitations on pollutant
discharges . Two aspects of the statutory language itself, however,
indicate that the provision has wider range : (1) subsection E
authorizes review of an "other limitation," not just an effluent
limitation ; and (2) section 502(1 ) defines "effluent limitation as "any
restriction on the amounts of pollutants discharged, not just a
numerical restriction.
Id. at 403 . The court went on to state that its interpretation "follows the lead of the
Supreme Court in according section 509(b)(1) a practical rather than a cramped
construction." Id. at 405 citin Crown Simpson, 445 U .S . 193 (1980)) . The court
warned that the contrary holding "would produce the truly perverse situation in
which the court of appeals would review numerous individual
actions issuing or
denying pet 'nits . . . but would have no power of direct review of the basic
regulations governing those individual actions ." Id. at 405-06 (quoting F .I. du
Pont de Nemours & Co ., 430 U .S . at 136).
In the present case, 40 C .F.R. § 122 .3 is a regulation governing the scope
and applicability of effluent limitations standards, i .e . effluent standards shall apply
to certain vessel discharges but not those occurring in the normal course of
operation. As in the D .C . Circuit NRDC case discussed above, 40 C .F.R. § 122 .3
43
does not specifically establish numerical limitations but it does govern how
effluent limitations can be set for particular discharges but not others of a distinct
point-source.
The Ninth Circuit has endorsed this reading of section 509(b)(1)(E) in EDC,
finding jurisdiction under subsections (E) and (F) to review EPA regulations and
decisions, including EPA's "failure to designate" certain storm water pollution
point-sources as subject to higher levels of regulation . EDC, 344 F .3d at 843 . The
District Court below attempted to distinguish EDC from the present case because
the regulations at issue there "clearly limited the amount of storm sewer pollutants
." ER-209 . To the contrary, several of the agency decisions under contention
in EDC were categorical non-inclusions of point sources from which EPA set no
"limit" on the amount of stornwater runoff . See EDC, 344 F .3d at 858-63.
Similarly, EPA's decision to subject certain vessel discharges to effluent
limitations, but not others, . is a decision governing the scope and applicability of
effluent limitations standards and is the functional equivalent of establishing an
effluent limitation . Review of 40 C .F.R. § 122 .3(a) thus properly falls within the
jurisdictional provision of Section 509(b)(1)(E).
CONCLUSION
For the reasons stated herein, the Court should vacate the District Court's
Orders and remand with instructions to dismiss the Complaint with prejudice for
44
lack of subject-matter jurisdiction . In the alternative, the Court should vacate the
District Court's Order on Summary Judgment and remand with instructions to
enter summary judgment for Defendants.
Dated: March 12, 2007
ILA
d
hael ' . Ev
LA
Brian K . McCalmon
Kirkpatrick & Lockhart
Preston Gates Ellis LLP
1735 New York Avenue, NW
Suite 500
Washington, DC 20006
(202) 628-1700
45
CERTIFICATE OF SERVICE
I hereby certify that on March 12, 2007, I caused a copy of the Brief of DefendantIntervenor Appellant The Shipping Industry Ballast Water Coalition to be served
on counsel of record via Federal Express overnight delivery, and addressed to the
following:
Deborah Ann Sivas
Earthjustice Legal Defense Fund
Owen House
553 Salvatierra Walk
Stanford, CA 94305-8620
Melissa Powers, Esq.
Pacific Environmental Advocacy Center
10015 Southwest Terwilliger Blvd.
Portland, OR 9721 .9
Michael R . Lozeau, Esq.
Law of Offices of Michael R . Lozeau
1516 Oak St.
Alameda, CA 94901
Timothy Hoffman, Esq.
Fourth Floor
Office of the Attorney General
Statler Towers
107 Delaware Avenue
Buffalo, NY 14202
Michael A . Cox
Michigan Attorney General
P .O.Box 30212
Lansing, MI 48909
Peggy Lautenschlager
Wisconsin Attorney General
17 West Main Street
Madison, WI 53707-7857
Mike Hatch
Attorney General of Minnesota
102 State Capitol
75 Refv. Dr. Martin Luther King, Jr.
Blvd
St Paul, MN 55155
Lisa Madigan, Esq.
Attorney General of Illinois
I .88 West Randolph Street
Chicago, IL 60601
Richard P . Mather, Esq.
Dep 't of Environmental Protection
9th Floor, RCSOB
P .O.Box 8464
Harrisburg, PA. 17104.8464
Jennifer L . Scheller
Appellate Section
Environment & Natural Resources
Division
Department of Justice
Box 23795, L'Enfant Plaza Station
Washington, DC 20026
M chael W .vans
B tan K. McCalnion
K rkpatrick & Lockhart
Preston Gates Ellis LLP
1735 New York Avenue, NW, Suite 500
Washington, DC 20006
(202) 628-1700
Nos . 03-74795, 06-17187, 06-17188
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST ENVIRONMENTAL ADVOCATES, et al.
Plaintiffs-Appellees ; Petitioners,
and
THE STATES OF NEW YORK, ET AL.
Plaintiff-Intervenors Appellees.
-v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Defendant-Appellant; Respondent,
and
THE SHIPPING INDUSTRY BALLAST WATER COALITION
Defendant-Intervenor Appellant,
SHIPPING INDUSTRY BALLAST WATER
COALITION'S WORD COUNT CERTIFICATION
The undersigned hereby certifies that the foregoing brief complies
with the type-volume limitation of Fed . R. App. P. 28 .1(e)(2)(a) because this
brief contains 10,570 words .
7ael V. Evans
Brian K . McCalmon
Kirkpatrick & Lockhart
Preston Gates Ellis LLP
1735 New York Avenue, NW
Suite 500
Washington, DC 20006
ADDENDUM
40 C.F.R. § 122.3
§ 122 .3 Exclusions.
The following discharges do not require NPDES permits:
(a) Any discharge of sewage from vessels, effluent from properly
functioning marine engines, laundry, shower, and galley sink wastes, or any
other discharge incidental to the not ntal operation of a vessel . This exclusion
does not apply to rubbish, trash, garbage, or other such materials discharged
overboard ; nor to other discharges when the vessel is operating in a capacity
other than as a means of transportation such as when used as an energy or
mining facility, a storage facility or a seafood processing facility, or when
secured to a storage facility or a seafood processing facility, or when secured
to the bed of the ocean, contiguous zone or waters of the United States for
the purpose of mineral or oil exploration or development .
33 U.S.C. 1369(b)(1)
§ 1369 . Administrative procedure and judicial review
(b) Review of Administrator's actions ; selection of court ; fees
(1) Review of the Administrator's action (A .) in promulgating any standard
of performance under section 1316 of this title, (B) in making any
determination pursuant to section 1316(b)(1)(C) of this title, (C) in
promulgating any effluent standard, prohibition, or pretreatment standard
under section 1317, of this title, (D). in making any determination as to a
State permit program submitted under section 1342(b) of this title, (E) in
approving or promulgating any effluent limitation or other limitation under
section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any
permit under section 1342 of this title, and (G) in promulgating any
individual control strategy under section 1314(1) of this title, may be had by
any interested person in the Circuit Court of Appeals of the United States for
the Federal judicial district in which such person resides or transacts
business which is directly affected by such action upon application by such
person . Any such application shall be made within 120 days from the date
of such determination, approval, promulgation, issuance or denial, or after
such date only if such application is based solely on grounds which arose
after such 120th day .