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

By LaPlante, Allison; Comerford, Lia | Environmental Law, Fall 2013 | Go to article overview
Save to active project

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


LaPlante, Allison, Comerford, Lia, Environmental Law


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.