Center for Regulatory Reasonableness v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2016 Decided February 28, 2017
No. 14-1150
CENTER FOR REGULATORY REASONABLENESS,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
On Petition for Review of Letters
Dated April 2 and June 18, 2014 from the
United States Environmental Protection Agency
John C. Hall argued the cause for petitioner. With him
on the briefs were Gary B. Cohen and Philip D. Rosenman.
Jeffrey S. Longsworth was on the brief for amicus curiae
The National Association of Clean Water Agencies in support
of petitioner.
Andrew J. Doyle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Assistant Attorney General, and Richard T.
Witt, Attorney, U.S. Environmental Protection Agency.
Michele L. Walter, Attorney, U.S. Department of Justice,
entered an appearance.
2
Before: KAVANAUGH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: As a general matter, the
Clean Water Act prohibits discharge of pollutants into the
Nation’s waters except in accordance with a permit. The
Environmental Protection Agency promulgates rules
governing those permits. Some of the permitting rules apply
to publicly owned water treatment facilities. In 2011, EPA
issued policy letters that explained and arguably changed two
EPA policies with respect to publicly owned water treatment
facilities. A group representing the interests of municipalities
then sued to challenge the new EPA policy letters in the
Eighth Circuit. The group prevailed in the Eighth Circuit.
See Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir.
2013).
Beginning in 2013, EPA made statements indicating that
it would not acquiesce in or follow the Eighth Circuit’s
decision outside of that circuit. We will refer to those EPA
statements collectively as “EPA’s non-acquiescence
statement.” In this Court, an industry group – the Center for
Regulatory Reasonableness – then sued EPA. The Center
raised multiple challenges to the non-acquiescence
statement’s legality, including claims that the non-
acquiescence statement was itself a rule promulgated without
proper notice and comment and in excess of the agency’s
statutory authority.
The key threshold question here is whether this Court has
jurisdiction to hear this kind of challenge at this time. We do
not. In general, district courts have jurisdiction to review
3
final agency actions unless a statutory provision provides for
direct review in a court of appeals. To be sure, the Clean
Water Act authorizes direct court of appeals review of EPA-
promulgated effluent or other limits on discharge of
pollutants. 33 U.S.C. § 1369(b)(1)(E). We need not
determine whether EPA’s non-acquiescence statement
constitutes a “promulgation” because EPA’s non-
acquiescence statement does not announce an effluent or other
limit on discharge of pollutants. The non-acquiescence
statement merely articulates how EPA will interpret the
Eighth Circuit’s decision. Therefore, to the extent the Center
wants to directly challenge EPA’s non-acquiescence
statement, it must follow the usual path of suing in district
court under the Administrative Procedure Act, assuming other
reviewability criteria are satisfied. See 5 U.S.C. §§ 702-704;
28 U.S.C. § 1331.1
To the extent the Center seeks to directly challenge the
2011 policy letters, direct review of those letters in a court of
appeals had to be sought within 120 days (as another
petitioner did in the Eighth Circuit). See 33 U.S.C.
§ 1369(b)(1). The Center is well outside the 120-day window
to directly challenge the 2011 policy letters in this Court. To
the extent the Center believes EPA is violating the Eighth
Circuit’s mandate, it may of course try to seek mandamus or
other appropriate relief in the Eighth Circuit. See 28 U.S.C.
§ 1651(a).
1
In determining jurisdiction, this Court generally will assume
the merits as the plaintiff or petitioner pleads them, but that is not
the approach we follow when, as here, “the merits of th[e] APA
challenge are inextricably linked to our jurisdiction to hear that
challenge.” Cement Kiln Recycling Coalition v. EPA, 493 F.3d
207, 226 (D.C. Cir. 2007).
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In sum, this Court lacks jurisdiction to directly review
EPA’s non-acquiescence statement. The petition for review is
dismissed.
So ordered.