849 F.3d 453
D.C. Cir.2017Background
- The Clean Water Act (CWA) generally prohibits pollutant discharges except under EPA-authorized permits; EPA issues permitting rules that affect publicly owned treatment works.
- In 2011 EPA issued two policy letters altering or clarifying permit-related policies for municipal treatment facilities.
- The Iowa League of Cities challenged those 2011 policy letters in the Eighth Circuit and prevailed (Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013)).
- Beginning in 2013 EPA issued statements announcing it would not acquiesce to the Eighth Circuit decision outside that circuit (the “non-acquiescence statement”).
- The Center for Regulatory Reasonableness petitioned this Court to review EPA’s non-acquiescence statement and also sought to challenge the 2011 policy letters; EPA argued the Court lacked jurisdiction to hear the challenges.
- The D.C. Circuit held it lacks jurisdiction to directly review EPA’s non-acquiescence statement and dismissed the petition; it also noted direct appellate review of the 2011 letters was untimely in this Court (120-day window under 33 U.S.C. §1369).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction to review EPA’s non-acquiescence statement now | The statement is a reviewable agency action (a rule/interpretation) subject to direct review in the court of appeals | The statement is not an effluent or discharge limit; typical APA district-court review applies | No jurisdiction in this Court; APA/district-court route is required |
| Whether the non-acquiescence statement constitutes a "promulgation" under the CWA (i.e., an action subject to direct appellate review) | The statement is a substantive rule/promulgation that should be reviewable here | The statement merely explains how EPA will interpret an appellate decision and does not set effluent/discharge limits | Court did not decide if it was a "promulgation" but held irrelevant because it is not an effluent/discharge limit |
| Whether the 2011 policy letters could be directly reviewed in this Court | The Center sought direct review of the 2011 letters here | EPA argued direct review had to be sought within 120 days and that window passed | Direct review of the 2011 letters in this Court was untimely (120-day limit); another petitioner had timely challenged them in the Eighth Circuit |
| Appropriate forum/remedy for challenging EPA’s actions | Seek direct appellate review here | Must file under the APA in district court or pursue relief in the Eighth Circuit (e.g., mandamus) | Challenges to the non-acquiescence statement must proceed in district court under the APA; claims about violating Eighth Circuit mandate belong in the Eighth Circuit |
Key Cases Cited
- Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) (Eighth Circuit decision invalidating EPA policy letters)
- Cement Kiln Recycling Coalition v. EPA, 493 F.3d 207 (D.C. Cir. 2007) (discussing when merits and jurisdictional questions are inextricably linked)