United States Court of Appeals, District of Columbia Circuit
October 21, 2016
Petition for Review of Letters Dated April 2 and June 18,
2014 from the United States Environmental Protection Agency
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
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
Before: Kavanaugh and Wilkins, Circuit Judges, and Williams,
Senior Circuit Judge.
Kavanaugh, Circuit Judge
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).
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.
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 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.
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).
this Court lacks jurisdiction to directly review EPA's
non-acquiescence statement. The petition for review is