“The case stems from a 2002 suit in which Friends of the Everglades and other environmental advocates demanded…”
Law360, New York (July 01, 2013, 1:17 PM ET) — The U.S. Environmental Protection Agency asked the U.S. Supreme Court on Friday to weigh in on its efforts to force the Eleventh Circuit to rule on Clean Water Act water transfer permitting exemptions, saying the appeals court’s… refusal to do so creates troubling regulatory ambiguity.
The Eleventh Circuit determined in October that it lacked jurisdiction to rule on a 2008 agency rule creating an exception to National Pollutant Discharge Elimination System permitting requirements for water transfers, even where those transfers introduce pollutants into a destination body of water.
The EPA warned that the Eleventh Circuit’s decision will open up the water transfer rule to unrestricted litigation and create significant regulatory ambiguity by removing it from a statutory category that requires challenges of certain agency actions to be brought within 120 days and resolved within a single appellate forum.
“That approach would create a risk both of prolonged uncertainty, and of conflicting judicial decisions regarding the validity of a single EPA action,” the agency said. “Such a regime would disserve the interests not only of the EPA, but also of regulated parties and the public.”
The agency was joined in a separate petition by the U.S. Sugar Corp., which argued that the Eleventh Circuit’s finding would have far-reaching harmful effects by increasing the cost of regulatory compliance for industry, burdening the court system, inviting forum-shopping by plaintiffs and “turn[ing] a common-sense judicial review scheme upside down.”
The case stems from a 2002 suit in which Friends of the Everglades and other environmental advocates demanded that the South Florida Water Management District obtain a CWA permit to transfer water from the polluted canals of the Everglades Agricultural Area into Lake Okeechobee, claiming such a transfer amounted to a discharge subject to permitting requirements.
The district found in favor of the environmental groups, rejecting the water district’s argument that it was simply transferring water from one place to another and not altering the total level of existing pollution in U.S. waters.
Before the district court’s injunction forcing the water district to obtain a permit could be entered, however, the EPA stepped in and fashioned an exemption for water transfers under CWA permitting requirements. The agency administrator held that, under a statutory streamlining process, this rule could only be reviewed by filing a petition with the U.S. court of appeals.
Several environmental groups, nine U.S. states and the Canadian province of Manitoba filed petitions for review with the Second and Eleventh circuits, which the Judicial Panel for Multidistrict Litigation consolidated in the Eleventh Circuit. That court stayed review while it considered an appeal of the original suit against the Florida water district.
In 2009, the Eleventh Circuit deferred to the EPA’s new rule and reversed the environmental groups’ district court win, but when the stay expired on the petitions challenging that rule and the EPA asked for a decision, the appeals court decided it did not have jurisdiction to do so.
According to the appeals court, its jurisdiction is based on the review of permitting, but the EPA water transfer rule “neither issues nor denies a permit” and instead “exempts a category of activities from the requirements of a permit and ensures that no permit will ever be issued or denied for discharge from a water transfer.”
In rejecting this jurisdiction, the appeals court risks demolishing an orderly process designed to create regulatory certainty by ensuring that all such challenges are brought within 120 days and placed before one court of appeals, the EPA warned on Friday.
The agency noted that EPA actions that fall outside this streamlined process can instead be challenged under the Administrative Procedures Act, which empowers plaintiffs to bring a challenge up to six years after the date of the challenged agency action.
The decision therefore risks creating the sort of “truly perverse” situation previously rejected by the Supreme Court wherein an appeals court can review numerous individual permitting decisions, yet has no power to directly review the basic regulations governing those decisions, according to the EPA.
“The Eleventh Circuit provided no reason why congress would have chosen to streamline and centralize judicial review of individual permitting decisions, while allowing piecemeal review of an EPA regulation that categorically declares water transfers to be exempt from NPDES permitting requirements,” the agency said.
U.S. Sugar is represented by Timothy Bishop, Chad Clamage and Michael Kimberly of Mayer Brown LLP and Rick Burgess of Gunster Yoakley & Stewart PA.
Counsel information for the respondents was not immediately available Monday.
The case is U.S. Environmental Protection Agency v. Friends of the Everglades, in the U.S. Supreme Court. The case number was not immediately available.
–Editing by Katherine Rautenberg.