States of New York, Connecticut, Delaware, Illinois v. United States Environmental Protection Agency
699 F.3d 1280
11th Cir.2012Background
- Petitions for review challenge EPA's water-transfer rule exempting transfers of waters of the United States from the permit program.
- Petitions were filed in multiple circuits; the MDL panel consolidated them in this court, with protective petitions filed in other circuits.
- Administrator asserted review could be had in the courts of appeals under 33 U.S.C. § 1369(b)(1).
- District court injunctions had previously required permits for certain transfers; the rule created a permanent exemption for water transfers.
- We assess whether § 1369(b)(1) grants original jurisdiction or whether hypothetical jurisdiction may apply to reach merits.
- We conclude the petitions must be dismissed for lack of jurisdiction and decline to exercise hypothetical jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1369(b)(1)(E) confer original jurisdiction here? | FOE argues § 1369(b)(1)(E) applies to challenges to effluent limitations or related rules. | Administrator contends the water-transfer rule is a limitation on permit issuers, fitting § 1369(b)(1)(E). | No jurisdiction under § 1369(b)(1)(E). |
| Does § 1369(b)(1)(F) confer original jurisdiction here? | FOE contends no permit is issued or denied by the rule, so § 1369(b)(1)(F) is inapt. | Administrator argues rule's effect is functionally similar to permit denial/issuance and fits § 1369(b)(1)(F). | No jurisdiction under § 1369(b)(1)(F). |
| May the court exercise hypothetical jurisdiction to decide merits? | FOE would prefer to avoid merits and rely on jurisdictional defects. | US Sugar urges hypothetical jurisdiction when merits are foreordained. | We cannot exercise hypothetical jurisdiction. |
Key Cases Cited
- Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980) (jurisdiction when action is functionally like issuing/denying a permit)
- Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) (exemption from permit program cannot be reviewed under §1369(b)(1)(E))
- Lamie v. U.S. Tr., 540 U.S. 526 (2004) (statutory interpretation governs jurisdictional analysis; no deference to agency)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (jurisdictional defects require dismissal; no advisory opinions)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (hypothetical jurisdiction rejected; merits require proper jurisdiction)
- City of Baton Rouge v. EPA, 620 F.2d 478 (5th Cir. 1980) (direct review limited to enumerated actions in §1369(b)(1))