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

Article excerpt

I. 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. …