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

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


B. The Supreme Court Tests the Waters

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

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

The Supreme Court weighed in again on section 509 three years later in Crown Simpson Pulp Co. v. (Jostle (Crown Simpson). (252) In Crown Simpson, petitioners sought direct judicial review in the Ninth Circuit over EPA's objection to state-issued NPDES permits. (253) The Supreme Court found that the Ninth Circuit had direct judicial review under section 509(b)(1)(F) over EPA's objection to a state-issued NPDES permit because EPA's objection was "functionally similar" to EPA's denial of an NPDES permit. (254) The Court's understanding of functional similarity was narrow, only finding that EPA's objection to a state-issued NPDES permit--which at the time of EPA's veto had the "precise effect" of denying the permit (255)--was "functionally similar" to EPA's denial of a permit. (256) Notably, the Supreme Court's decision in Crown Simpson rested on an old version of the CWA. Congress amended the CWA in 1977 to authorize EPA to issue a permit itself if a state does not meet the terms of EPA's objections. (257) As discussed infra at Part V. …

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